In this chapter I elucidate the immanence of corrective justice in negligence liability. My discussion so far has focused on the theoretical notions of form, corrective justice, and Kantian right, with only sporadic and general treatment of legal doctrine. In this chapter, in contrast, I present a sustained account of a specific area of common law liability.
The reason for dealing with negligence law in particular is that it poses an especially strong challenge to the unity of doing and suffering that corrective justice postulates. Negligence law holds the defendant liable for the harm that materializes from the creation of an unreasonable risk. Because the harm is an unintended consequence of the defendant’s action, one might suppose that its occurrence is a fortuity that is morally irrelevant to the defendant’s culpability. On this view, negligent harming is comprised of two separate episodes, the defendant’s risk-creating act and the plaintiff’s consequent injury. Postulating the unity of doing and suffering appears particularly unpromising.
To show how negligence law unifies doing and suffering, I shall pay particular attention to its ensemble of concepts: duty of care, proximate and factual cause, misfeasance, and the standard of the reasonable person. Each of these concepts, I contend, can be understood as expressing the normative correlativity of doing and suffering harm. Together, they treat the progression from the defendant’s action to the plaintiff’s injury as a single moral sequence. The negligence concepts allow the negligence relationship to be constructed, in two related senses: each concept can be construed as linking doer and sufferer and, taken as a group, they construct the liability that coherently connects the defendant’s risk creation and the plaintiff’s injury.
The assumption behind my account of negligence liability is that legal concepts are the provisional signposts of the law’s coherence. Because a sophisticated legal system, such as the common law, values and tends toward its own coherence, one can adopt as a working hypothesis the idea that the concepts of the common law are constitutive of the unity of the plaintiff-defendant relationship. Over the centuries, the common law has engaged in the reasoned elaboration of its doctrine through cases in which plaintiffs vindicated their entitlements against defendants. It would be remarkable if the bipolarity of such litigation did not structure the legal doctrine that it spawned. If, as I claim, corrective justice and Kantian right truly are the unifying structure and normative ground of the private law relationships, the legal concepts that make up that relationship should be expressive of that structure and ground. Of course it may turn out, on examination of those concepts, that the hypothesis of the law’s coherence cannot be sustained. Then the law will have failed to live up to its own aspirations to be a truly justificatory phenomenon.
In affirming the coherence of the common law’s treatment of negligence, my account of negligence liability illustrates the formalist idea that corrective justice is immanent in a sophisticated system of private law. Given the juridical necessity for such a system to have its concepts and discourse express coherent bipolar relationships, corrective justice and Kantian right are theoretical notions that must be seen as implicit in the system’s functioning. Private law does not refer to these theoretical notions explicitly, because private law is not a theory but a normative practice. Nonetheless, corrective justice and Kantian right are as immanent in its discourse as principles of syntax and logic are in discourse generally.
In this chapter I also illustrate formalism’s acceptance of the concepts of private law on their own terms. Such acceptance is an aspect of the immanence of corrective justice and Kantian right in private law as a normative practice. Because formalism assumes that private law strives to be an expression of justificatory coherence, formalism treats the law’s concepts as pathways into an internal intelligibility. The formalist therefore tries to understand these concepts as they are understood by the jurists who funnel their thinking and their discourse through them. Instead of looking upon legal concepts as proxies for extrinsic goals or as an alien vocabulary that requires translation into the discourse of another discipline, formalism sees them as having the meaning that juristic thought supposes that they have. For instance, whereas the practitioner of economic analysis might construe the plaintiff’s cause of action as a mechanism for bribing someone to vindicate the collective interest in deterring the defendant’s economically inefficient behavior, the formalist interprets that cause of action simply as what it purports to be: the assertion of right by the plaintiff in response to a wrong suffered at the hands of the defendant.
My argument in this chapter is that, understood in their own terms, the concepts of the common law of negligence constitute a single normative sequence that begins in the defendant’s action and ends in the plaintiff’s suffering. I will first consider the concepts that mark the two termini of this sequence: the standard of reasonable care, whose violation by the defendant creates the wrongful risk, and the concepts of factual cause and misfeasance, which represent the effects of that wrongfulness on the plaintiff. I will then consider the concepts of duty of care and proximate cause, which, I shall argue, span the moral space between these two termini. Together these concepts form an integrated ensemble that is the expression in common law of the unity of negligent doing and suffering.
Under negligence law, wrongdoing consists of the failure to live up to the standard of reasonable care. The standard is breached by action that creates a risk that no reasonable person would impose upon others. Presupposed is the existence of a certain level of risk to which the defendant can expose the plaintiff without committing a wrong, even if injury should result. The defendant is liable only for injuries that materialize from risks above that level.
The focus on risk is significant for corrective justice because risk is a relational concept that connects doing and suffering. As used in negligence law, risk refers to the potential for harm that is present in an act. Through the notion of risk, what one person does can be regarded from the standpoint of what another person might suffer. Risk thus links the active and passive aspects of injurious conduct.
Although the common law determines the acceptability of the risk on a case by case basis, there have been two attempts to schematize the significance of risk more explicitly. The American approach compares the risk and the cost of precautions. The English and Commonwealth approach disregards the cost of precautions. As I shall now argue, the second of these approaches rather than the first conforms to corrective justice.
The classic formulation of the American approach is in the famous case of United States v. Carroll Towing.1 There Judge Learned Hand proposed that the defendant’s duty is a function of three variables: the probability of an accident’s occurring, the gravity of loss if it should occur, and the burden of adequate precautions. He then continued: “Possibly it serves to bring this notion into relief to state it in algebraic terms: if the probability be called P; the injury, L; and the burden, B; liability depends upon whether B is less than L multiplied by P: i.e., whether B [is less than] PL.” In this formula P and L constitute the ingredients of risk. Risk creation is tortious when PL exceeds B.
The role of B in controlling the legitimacy of PL renders the test problematic from the standpoint of corrective justice. The test centers on whether the defendant who does not take precautions gains more ex ante than those exposed to the risk lose. It thus pivots not on the equality of the parties to the transaction but on the surplus that one party realizes at the expense of others. As its role in economic analysis shows, the Learned Hand test aims not at achieving corrective justice between the plaintiff and the defendant, but at maximizing the aggregate wealth of those affected by the risk-creating act.
In contrast, the English and Commonwealth approach to reasonable care ignores B almost completely and focuses narrowly on the risk, consisting in the combination of P and L. From a corrective justice standpoint, disregard of B makes sense, because it is the risk, not the cost of eliminating it, that connects the parties to an accident as doer and sufferer.
In determining whether the defendant has lived up to the standard of care owed to the plaintiff, Commonwealth courts proceed in several stages.2 They first ask whether the risk was “reasonably foreseeable.” In this inquiry, reasonableness refers to the degree of risk itself, rather than to the relationship of risk to prevention cost. The question reflects the sense that there is a threshold degree of risk that a reasonable person ought not to ignore. The assumption is that in any particular case one can distinguish risk that is “real” and ought not to be brushed aside even if it is quite unlikely to occur from risk that is “so fantastic or far-fetched that no reasonable man would have paid any attention to it.”3 Once a plaintiff gets over this undemanding4 threshold, “it is then for the tribunal of fact to determine what a reasonable man would do by way of response to the risk.”5
The reasonable response in turn depends on the risk’s magnitude. For a real risk that is not small (the adjective used is “substantial,” but, as we shall see at once, this does not mean that it must be large), the cost of precautions is irrelevant. In the leading case of Bolton v. Stone,6 for example, the House of Lords decided that the defendant cricket club was not negligent when a ball hit over the fence of the cricket pitch struck the plaintiff. Lord Reid formulated the conception of reasonable care as follows: “[I]t would be right to take into account not only how remote is the chance that a person might be struck, but also how serious the consequences are likely to be if a person is struck, but I do not think it would be right to take into account the difficulty of remedial measures. If cricket cannot be played on a ground without creating a substantial risk, then it should not be played there at all.”7 Unlike the Learned Hand test, the consideration that the cost to the defendant of precautions would exceed the ex ante quantification of the plaintiff’s injury does not exonerate the defendant from liability. The defendant can therefore be liable even for a cost-justified action.
Only if the risk, although real, is fairly small does one consider the cost of precautions. The idea here is that it might be reasonable not to go to considerable expenditure to eliminate a risk that, while not “fantastic and far-fetched,” was nevertheless very unlikely to occasion harm. Lord Reid subsequently explained the holding in Bolton v. Stone on this basis.8 Hitting a cricket ball onto the street was not “fantastic and far-fetched”; indeed, it had happened six times in twenty-eight years. And if the ball was so hit, it was not “fantastic and far-fetched” that it would strike someone. But since the street was a relatively unfrequented side road, “the chance of its happening in the foreseeable future was infinitesimal. A mathematician given the data could have worked out that it was only likely to happen once in so many thousand years.” Therefore, explained Lord Reid, “[t]he House of Lords felt the risk was so small that in the circumstances a reasonable man would have been justified in disregarding it and taking no steps to eliminate it.” Referring to the significance of high precaution costs, Lord Reid continued:
It does not follow that, no matter what the circumstances, it is justifiable to neglect a risk of such a small magnitude. A reasonable man would neglect such a risk if he had some valid reason for doing so, e.g., that it would involve a considerable expense to eliminate the risk. He would weigh the risk against the difficulty of eliminating it … Bolton v. Stone did not alter the general principle that a person must be regarded as negligent if he does not take steps to eliminate a risk which he knows or ought to know is a real risk and not a mere possibility which would never influence the mind of a reasonable man. What that decision did was to recognise and give effect to the qualification that it is justifiable not to take steps to eliminate a real risk if it is small and if the circumstances are such that a reasonable man careful of the safety of his neighbour would think it right to neglect it.
In Bolton v. Stone, then, the risk, though real, was so small that the defendant might reasonably forgo the large expenditure required to eliminate it. Even here, however, we are still far from the Learned Hand test. On Lord Reid’s explanation, precaution costs are relevant to a very small risk only if they are “considerable” and only as a “qualification” to the general principle.9
In the English and Commonwealth approach, the conclusion that a particular risk is unacceptable generally reflects not a comparison with the cost of taking precautions but a casuistic judgment concerning the magnitude of the risk. Negligence consists in exposure to “real” risk, that is, to risk that, even if unlikely, cannot reasonably be regarded as “fantastic and far-fetched.” The greater the risk, the greater the precautions incumbent on the risk-creator, regardless of cost, to lower the risk to the level of the “fantastic and far-fetched.” As Lord Reid says, the question that arises is “whether the risk of damage was so small that a reasonable person in the position of the [defendants], considering the matter from the point of view of safety, would have thought it right to take steps to prevent the danger.”10 Because this “is a question, not of law, but of fact and degree,”11 it is reserved to triers of fact who apply the judge’s general instructions about reasonableness on a case by case basis.12
This conception of reasonable care gives expression to the idea of agency that underlies corrective justice. Two aspects of the relationship of risk to human action are pertinent here, the first dealing with the legitimacy of action and the second with the illegitimacy of indifference to the suffering that action can cause.
First, risk is an unavoidable concomitant of human action. Although action is the attempt to realize some purpose that the actor sets, it takes place in a world that is not completely within the actor’s control. As Lord Reid observes, “[i]n the crowded conditions of modern life, even the most careful person cannot avoid creating some risks and accepting others.”13 The actor therefore cannot be under a duty not to impose risk. Such a duty would deny the moral possibility of action and, since duty presupposes the exercise of agency, would therefore be self-contradictory.
Second, although risk is a concomitant of action, it can nonetheless be affected by the actor. Through action, actors attempt to work their purposes in the world. Nothing prevents actors from including among their purposes the reduction of the risks that accompany their own actions. Actors who implicitly claim that they can change the world through action (and therefore through the creation of risk), and yet that they cannot affect the risks that attend such action, assert a convenient but incoherent powerlessness in the exercise of power. Because action by its very nature involves the possibility of unintended consequences, the harm into which risk materializes is not alien to the risk-creating actor. To refuse to mitigate the risk of one’s activity is to treat the world as a dumping ground for one’s harmful effects, as if it were uninhabited by other agents.
From the standpoint of Kantian right, which conceives of doing and suffering as a relationship of free wills, these two considerations are mirror images of each other. Under the Kantian principle of right, the position of each party must be consistent with the other’s being a self-determining agent. Accordingly, the plaintiff cannot demand that the law regard as wrongful the creation of all risk; such a judgment of wrongfulness would render action by the defendant impermissible, thus denying to the defendant the status of agent. Similarly, the defendant cannot claim immunity regarding risks that could have been modulated; that claim would ignore the effect of one’s action on other agents and would treat them as nonexistent. When combined, these two considerations constitute a standard of care in which doer and sufferer rank equally as self-determining agents in judgments about the level of permissible risk creation.