Publication Date

6-10-2025

Journal

Law and Philosophy

Abstract

Gregory Keating seeks to ground tort rights and obligations in a balancing of people’s objective interests in liberty and security, with security taking priority because it is a requirement of effective agency. I argue that Keating’s approach shares in the structural shortcomings of the economic theories he criticizes. Both theories appeal to monadic, free-standing values (efficiency, effective agency) that concern individual parties in isolation; neither theory gives an adequate account of tort law’s relational (transactional) structure. The common law distinction between misfeasance and nonfeasance illustrates the point. Keating’s harm-based framework fails to explain tort law’s most basic duty limitation, the principle that there is no duty to rescue others from perils one did not create. Drawing on the corrective justice tradition, I argue that an explanation of tort law requires relational rather than monadic concepts, focusing on interpersonal transactions rather than the promotion of independently valuable states of affairs. Despite its moral orientation, Keating’s framework remains fundamentally instrumentalist in ways that make it vulnerable to the criticisms that have been directed toward economic accounts.

Publisher

Springer Nature

DOI

https://doi.org/10.1007/s10982-025-09534-7

Disciplines

Law | Law and Economics | Law and Philosophy | Legal History | Torts

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