Revising the Puzzle of Negligence: Transforming the Citizen towards Civic Maturity

Abstract

Corrective justice theorists tell us that to resort to features or characteristics alien to the internal structure of corrective justice and the law of negligence undermines the intelligibility of the phenomena, i.e., the interaction between the plaintiff and the defendant. Like friendship or love which can only be understood by reasons of love or friendship itself, the doctrinal aspects of negligence law can only be correctly understood and become intelligible within the normativity, internal logic and reasons of corrective justice, i.e., equality between persons, autonomy. Furthermore, law and juridical thinking are a matter of rights and duties. By contrast, ethical deliberation and practical reason are a matter of virtuous action, values and what is good. The first underlying presupposition will be called the “internal logic” thesis. The latter will be called the “the separation of rights and values” thesis. I aim to debunk both theses and argue, first, that we need to grasp the values embedded in the law in our “doing” and in our engagement with the law. This does not mean that these values are external and therefore that we make the internal logic of negligence law unintelligible. I will show that from the forward-looking perspective of the citizen there is no stark separation of rights and values. When engaging in decisions judges attribute liability grounded on the plaintiff’s rights and defendant’s duties, they take the backward-looking standpoint. However, in negligence law, judges advance values that play the role of proleptic thoughts, i.e., descriptions and re-descriptions of values, in the practical reasoning of the citizens. We can understand both functions or roles because we can understand that there is no stark separation of rights/duties and values. Finally, the paper considers whether my position sheds light on the role of moral luck in negligence law.