On Youthful Cynicism by Russell Bertrand

By Russell Bertrand

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54). My aim in this paper is to sketch the outlines of a third view,2 one that is liberal in general and Kantian in particular. It is liberal – as opposed to libertarian – in that it is driven by the value of fairness as much as by the value of freedom. Like libertarianism, this third view conceives of the central problem of accident law as a problem of human freedom. When the law of accidents licenses the imposition of a risk, it enhances the freedom of some and imperils A Social Contract Conception of the Tort Law of Accidents 23 the security of others.

My aim in this paper is to sketch the outlines of a third view,2 one that is liberal in general and Kantian in particular. It is liberal – as opposed to libertarian – in that it is driven by the value of fairness as much as by the value of freedom. Like libertarianism, this third view conceives of the central problem of accident law as a problem of human freedom. When the law of accidents licenses the imposition of a risk, it enhances the freedom of some and imperils A Social Contract Conception of the Tort Law of Accidents 23 the security of others.

Bringing Kantian theory to bear on tort practice thus illuminates the significance of negligence law’s attachment to reasonableness rather than rationality – a significance obscured by the prevailing economic account of the matter – and helps to justify that attachment (Keating 1996, pp. 311–13, 341–82). Conversely, the categories of liberty and security used by this theory to describe the stakes in accidental risk imposition show how that theory is reshaped by its encounter with tort practice.

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