Egalitarianism as Justification: Why and How Should Egalitarian Considerations Reshape the Standard of Care in Negligence Law?

Tsachi Keren-Paz


The two leading theoretical approaches to tort law — economic analysis and corrective justice — are blind to distributive considerations. Moreover, even the main distributive approaches to tort law — loss-spreading and fairness — fail to emphasize egalitarianism as a distributive consideration. This article argues that egalitarianism should influence the normative evaluation of one’s conduct as negligent or not. It first explains why normatively negligence law should be sensitive to the egalitarian concern, suggesting three different accounts for this claim, based on needs, equality, and desert as criteria for distribution. Second, it argues that egalitarianism is commensurate with the basic understanding of negligence law as reflecting corrective justice and notions of fault. The notion of fault is, therefore, reformulated from within, in order to accommodate egalitarianism. Third, I maintain that in order for egalitarianism to accommodate notions of corrective justice, egalitarian concerns should matter also at the stage of the standard of care. While the egalitarian concern can and should be integrated into the duty stage, I argue that such integration is insufficient. A correct and full understanding of the egalitarian concern and the tort of negligence requires a conclusion that the normative evaluation of one’s action as negligent or not cannot be separated from the distributive results that this action entails. The egalitarian concern works at the duty stage as an excuse for not imposing liability for wrongful activity. In contrast, at the standard stage, it works as a justification that turns an otherwise wrongful activity into a legitimate one. My claim is that morally we should usually expect more care from the better-off than from the disadvantaged. Findings of negligence are based on the failure to balance properly between one’s interests and those of another. In deciding to what extent the defendant should burden herself in order to prevent a loss to potential victims, one morally relevant criterion is the relative ability of the injurer and victim to bear precaution costs and expected accident loss, respectively.

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