Band 16, Heft 1 - Special Issue: Reasonableness and Risk: The Torts Scholarship of Gregory C Keating

4This paper explores the significance of heterogeneity in Gregory C Keating’s Reasonableness and Risk , and defends his heterogenous approach while also noting the significance of his distinction between the world of activities and the world of actions. It notes that English common law takes a different route to liability for activities from the approach described, which is drawn from US law. Finally, it proposes that we seize the insights connected with acts and activities and develop them further, noting in particular the frequent involvement of multiple enterprises in activities, and the means law has of responding to this, as well as future challenges.

20Gregory C Keating’s Reasonableness and Risk is an important and insightful contribution to tort theory. The account Keating offers is a distinctive view that denies some of the central tenets of the economic analysis of tort law. At the same time, however, Keating 21rejects the formalism of Kantian theorists like Weinrib and Ripstein. This commentary focuses on what separates Keating from the Kantian formalism of Weinrib and Ripstein – namely, that Keating is an instrumentalist about legal institutions. Keating’s instrumentalism makes his theory more plausible, to my mind, than the interpretation of tort law in terms of corrective justice, Kantian right, or mutual independence. But it also makes the central features of tort law, and of the common law more broadly, subject to contingency: once we adopt an instrumentalist perspective, it is always an open factual question whether the rules, doctrines, and institutions we have are justified.

31Gregory C Keating’s Reasonableness and Risk presents a sophisticated analysis of tort law, intertwining considerations of distributive and interpersonal justice. While his treatment of the distributive aspect of tort law and its role in protecting core interests, such as safety and bodily integrity, is compelling and influential, I argue that his conception of strict liability introduces significant theoretical distortions. In particular, Keating asserts that in strict liability torts, agents are not under a duty not to harm, but are only under a duty to pay compensation. This creates a dissonance with negligence law that ultimately undermines interpersonal justice as an explanation for the normative structure of tort law. I contend that this is due to his overemphasis on the aggregative-distributive framework. My critique suggests that Keating’s theory can be adjusted to better reflect the way that tort law is committed to both social and interpersonal justice.

52This commentary explores the various meanings and dimensions of reasonableness as presented by Gregory C Keating in Reasonableness and Risk . It examines the concept’s foundations, particularly in relation to the principle of non-harmful interference between individuals, as well as its underlying metaphysical assumptions concerning human vulnerability. Beginning with a distinction between the rational and the reasonable, the essay addresses key topics such as the duty of reasonable care, the Golden Rule, and universalizability, along with their connections to the principle of non-harmful interference. Furthermore, the commentary investigates how the notion of reasonableness intersects with concepts such as common sense, normality, and average prudence. It also considers the role of proportional balancing in Keating’s understanding of tort law. The primary aim of this commentary is to examine the philosophical foundations underpinning Keating’s conception and to clarify its implicit premises and broader implications. Keating’s analysis offers significant insights into the ideologies and methodologies that shape tort law, extending beyond the boundaries of Anglo-North American or common law systems. These ideologies and methodologies, it is suggested, are not intrinsic to tort law itself. The analysis emphasises how reasonableness reflects individual ethical orientations and highlights its pervasive role in the functioning of tort law. Moreover, it underscores that the cost-benefit approach within tort law resists simple mathematical calculation, as it is ultimately grounded in the concept of reasonableness. Finally, the commentary defends the thesis that reasonableness is embedded in the overarching principle of non-harmful interference between individuals and shapes the doctrines, instruments, and principles that govern the implementation of tort law.

71This article responds to four thoughtful critics of my book Reasonableness and Risk (OUP, 2022). In response to Felipe Jiménez’ argument that my view is instrumentalist, I explain why I think that instrumentalism and formalism play complementary roles in my view. Because persons, not law, have intrinsic value, the formal concepts of the law must be articulated in ways which further the interests of the persons whose relations they govern. My reply to Diego M Papayannis explains why I believe that strict liability does not collapse into a price system when it is understood as a conditional wrong, and why even administrative schemes do interpersonal justice. Agreeing with Jenny Steele, I elaborate on why my view is supportive of her thesis that enterprise liability informs modern negligence law. In response to Silvia Zorzetto, I explain how it is that my view moves from the metaphysics that she emphasizes to moral and political theory.