!!Экзамен зачет 2023 год / metaphysics of modern tort law

(Cite as: 28 Val. U. L. Rev. 919)

[FN169]. See HANNAH ARENDT, THE LIFE OF THE MIND 25 (1978).

[FN170]. Weinrib, supra note 140, at 512.

[FN171]. Id. at 516.

[FN172]. See Weinrib, supra note 144, at 422-25.

[FN173]. In any event, as the will in question is concerned with effectiveness, it is not Kant's conception of will, the moral worth of which is expressly divorced from its effects in the world, but Nietzsche's. See KANT, supra note 34, at 61-62; cf. NIETZSCHE, BEYOND GOOD AND EVIL, supra note 62, at 48.

[FN174]. See 3 MARTIN HEIDEGGER, NIETZSCHE: THE WILL TO POWER AS KNOWLEDGE AND AS METAPHYSICS, 137-49, 235-51 (David F. Krell ed. & Joan Stambaugh et al. trans, 1987) (1961).

[FN175]. See generally MARTIN HEIDEGGER, AN INTRODUCTION TO METAPHYSICS (R. Manheim trans., 1953).

[FN176]. Although Nietzsche claimed this understanding of will was no metaphysics but the way the world essentially is, see, e.g., NIETZSCHE, BEYOND GOOD AND EVIL, supra note 62, at 48, 203-04, that claim is itself the mark of metaphysics. See HEIDEGGER, supra note 175, at 17-24; 3 HEIDEGGER, supra note 174, at 3-9.

[FN177]. See Weinrib, supra note 140, at 513; supra notes 60-61 and accompanying text.

[FN178]. That the spending of money serves, in its efficaciousness, as the visible exercise of will can be seen in the use made of it in economic theory, where it is taken as the evidence of preference, or the desire of the will. Moreover, that theory often assumes that, as in an imaginary Monopoly game, all participants begin with ample money with which to realize their preferences (that is, to make them effective, and so real), subsequent shortfalls being seen as the product of earlier preferences that have been effectuated; to recognize limitations at the outset would be inconsistent with the "freedom" of will that money embodies--that is, with will's capacity as ground, and so as prior to the world which it brings into being, rather than as limited by it.

[FN179]. Though the compensation approach rejects the Coasian account of tortious harms as willed, the account of such harms as random misfortune which it adopts implicitly in its stead presents only a mirror-image distortion of the phenomena of accidents: Whereas will is fully in control, on the Coasian economic account, it is wholly uninvolved, on the compensation alternative. (As a result, the theory has no place for attention to the tortfeasor's action, and no ability to distinguish tortious harms from illness or general misfortune.) Accidents are not, however, identical with "acts of God," or strikes of lightning, in which human action plays no part; on the contrary, it is our very involvement--but not our control--in situations of accident that makes the task of grounding responsibility for accidents so intractable.

In adopting an account of tortious harms seemingly diametric to that of Coasian economic theory, the compensation account nevertheless stays within the metaphysical framework given by will: No longer fully in control, will is now understood to be conspicuously absent, and this absence is seen to require the removal of tortious harms from the law's concern. Such harms are now nothing to the law, because they are not the doing of will. These positions are the same in that they assert that everything is the effect of will, or that nothing is; they are both about only will. It is will that sets out the poles and drives their antinomy. It is will, alone, that is real. The two schools thus present no alternative to that metaphysics that holds the will as ground, but merely a "flip," an oscillation between the valences of will, its negative and positive ways of occupying the world.

[FN180]. See supra text accompanying notes 124-26.

[FN181]. See, e.g., Perry, Mixed Conception, supra note 122, at 929 (arguing that tortfeasor's action can be understood as "fault-like, if not exactly faulty" or as involving "a fault-in-the-doing" even if "not ... in ... the

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(Cite as: 28 Val. U. L. Rev. 919)

doer"). Cf. supra text accompanying notes 126-31 (discussion of overtones of culpability appearing in Coleman's terminology).

[FN182]. See supra notes 115, 120-21 and accompanying text (discussing Coleman's provision for systems of compensation); cf. supra text accompanying notes 35-65 (discussing justification offered for compensation programs).

[FN183]. See supra text accompanying notes 83-113 (discussing Epstein's theory of strict causal liability). Cf. supra text accompanying notes 140-43, 165-70 (relating Weinrib's account of causation as joining the parties, constituting the matter for tort law). But see infra note 184. Coleman, too, can be seen to partake of this "solution" when he grounds the tortfeasor's liability in his innocent violation of a positive standard. See supra text accompanying notes 130-32 & supra note 131.

To be sure, Coleman and Weinrib both maintain that their theories require wrongdoing as well as causation to ground liability. See supra text accompanying notes 126-31, infra note 184. Yet specifying the content of that wrongdoing--and how it is wrong within our usual moral framework, given that the harms in question are typically negligent, or "non-culpable"--remains the central difficulty for moral tort theory. It is the source and nature of this difficulty, against which each of the theories can be seen to contend, that I have been concerned to uncover by exploring them. See supra text accompanying notes 126-29, 170-173. Cf. supra note 132.

[FN184]. In Causation and Wrongdoing, 63 CHI.-KENT L.REV. 407 (1987), Professor Weinrib argues that causation alone is insufficient to particularize the tortfeasor from among those causally implicated in the harm; for that, the tortfeasor's wrongdoing is necessary as well. Similarly, wrongdoing alone fails to particularize the victim from among those put at risk, requiring for this causation, or actualized harm. Both wrongdoing and causation are here understood as unrealized potentialities pending their alighting upon the opposite party. Despite the claim that these belong together, the conception presented suggests separate target-seeking missions, inherently independent and only contingently eventuating in mutual collision. This echoes the understanding of the parties as originally--and so irretrievably--unconnected, which I have argued renders their connection in the event of harm and its remedy as problematic, and so as in need of the justification that tort theory labors to provide.

In order to fail in the way Weinrib describes here, causation must be viewed as only the impact of a trajectory set in motion by a cause--that is, as effect, divorced somehow from its cause--rather than as that trajectory itself. Causation, as the jointure of cause and effect, already "particularizes" both the tortfeasor and victim, and names the link of force between them that Weinrib is concerned to preserve, as he elsewhere recognizes. See, e.g., supra text accompanying notes 140-43. Here, Professor Weinrib rules out this understanding of causation in favor of that according to which everything prior to a given result is equally its "cause." See Weinrib, supra, at 417-18. The conception that yields this illimitable pool of "causes" amounts to the "but-for" test for causation already seen to be the source of considerable confusion in tort law, raising all the problems of reasoning by counter-factuals and the metaphysics of possible worlds that plague that test. See supra note 12. Such a conception arises only from theorizing about cause; in practice we no more regard all antecedent events as equally causes than we regard sounds as frequencies of sound waves (another substitution of theory for experience, see MARTIN HEIDEGGER, The Origin of the Work of Art, in POETRY, LANGUAGE, THOUGHT 26 (Albert Hofstadter trans., 1971) (1960)). Nevertheless, Weinrib's effort here to limit the reach of causation as the ground of liability is significant, as it implicitly recognizes the inadequacy of causation alone as a justification of liability, within the understanding of control as necessary to that justification.

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