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Civil Wrongs and Justice in Private Law$
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Paul B. Miller and John Oberdiek

Print publication date: 2020

Print ISBN-13: 9780190865269

Published to Oxford Scholarship Online: July 2020

DOI: 10.1093/oso/9780190865269.001.0001

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PRINTED FROM OXFORD SCHOLARSHIP ONLINE (oxford.universitypressscholarship.com). (c) Copyright Oxford University Press, 2021. All Rights Reserved. An individual user may print out a PDF of a single chapter of a monograph in OSO for personal use. date: 12 June 2021

Should Tort Law Demand the Impossible?

Should Tort Law Demand the Impossible?

(p.373) 17 Should Tort Law Demand the Impossible?
Civil Wrongs and Justice in Private Law

Adam Slavny

Oxford University Press

This chapter critically examines the moral justification of two settled features of tort law—the objective standard of care and strict liability—insofar as they appear to violate the putative moral stricture “ought-implies-can.” The proposition that duties must be possible of fulfillment (and likewise, compliance with applicable normative reasons) has a pedigree stretching back to Immanuel Kant and is still widely assumed. Thus, this chapter begins by defending this foundational proposition on the grounds that normative reasons must be able to guide conduct. It notes that reasons that fail to comply with ought-implies-can are incapable of guiding conduct. This chapter then confronts arguments on behalf of the objective standard of care in negligence and strict liability, respectively, that purport to show that both doctrines sometimes justifiably violate ought-implies-can.

Keywords:   ought-implies-can, strict liability, objective standard of care, guiding conduct, negligence

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