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Philosophical Foundations of the Law of Torts

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Oxford
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شابک: ۹۷۸۰۱۹۸۷۰۱۳۸۵

سال چاپ:۲۰۱۴

کد کتاب:330
۴۶۳ صفحه - وزيري (شوميز) - چاپ ۲
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Philosophy of tort law, ironically, owes its preoccupations and shape, in large part, to an altogether different discipline: economics. H.L.A. Hart and Tony Honoré’s 1959 masterpiece, Causation in the Law, was a key influence in the development of philosophy of tort law, but it was the surge of economic analysis of tort law in the 1960s and 1970s that stimulated the reaction that accounts for so much of what philosophy of tort law is today. Law and economics represented the culmination of various strands in the history of torts, providing a coherent and seemingly powerful lens through which tort law could be viewed. That efficiency and the maximization of aggregate wealth guided economic analysis, however, revealed the approach to be a particular, and particularly crude, version of consequentialism. Consequentialism in its various forms had long ruled moral and political philosophy, so it was only natural that it would penetrate the normative domain of tort law. But in the 1970s the tide began to turn. And it was in the wake of the general revival of non-consequentialism that George Fletcher, Jules Coleman, and Ernest Weinrib staked out non-consequentialist alternatives to the economic analysis of tort law. Their early efforts were important as first-order contributions to theoretical debates about tort law, of course, but they also helped to substantiate philosophy of tort law’s standing as a distinct subfield within philosophy of law. David Owen provides a succinct history of tort theory as a discipline in his introduction to Philosophical Foundations of Tort Law, Oxford University Press’s 1995 predecessor to the present volume, and identifies a Law and Philosophy symposium as a signal event in the development of the field. What was so important about that two-issue symposium published in 1982 and 1983, according to Owen, was that philosophers, including Fletcher, Coleman, and Weinrib, presented a unified front against the economic analysis of tort law, and that Coleman and Weinrib presented early sketches of their quite different corrective justice theories of tort law alongside each other.