Responsibility for Outcomes, Risk,
and the Law of Torts
STEPHEN R. PERRY *
Can there be a non-consequentialist moral theory of negligence law, or, more generally, can there be a non-consequentialist moral theory capable of justifying the imposition of tortious liability for unintentional harm? Most corrective justice theorists say yes, but the basis of that answer is hardly obvious on its face. After all, the predominant scholarly view is that the negligence standard of reasonable care is to be understood in utilitarian or economic terms, and this view is shared even by some who call themselves deontologists (Hurd 1996). Furthermore, the actions that bring about unintentional harm are not typically culpable or blameworthy, and sometimes they are not in any sense wrongful either. But the notions of culpability, blameworthiness, and wrongfulness lie at the heart of non-consequentialist theories of the criminal law, and it would not be implausible to think that they are central to non-consequentialist thought generally. It is true that negligence is characterized by the law as a species of “fault, ” but this clearly does not refer to fault in the core sense of wrongful action motivated or accompanied by a culpable state of mind. Moreover there are a number of circumstances in which tort law imposes strict liability for unintentional harm, and in these cases the law does not even purport to claim that the action giving rise to the harm is to be regarded as faulty. Is it possible to account in non-consequentialist terms for the full range of tortious liability for unintentional injury?
To answer the questions posed in the preceding paragraph, it will be helpful to draw the following distinction. Sometimes we say of a person, generally in a context in which blame or punishment is at stake, that he is responsible for some specific action, where the action in question consists, in the usual case, of reprehensible conduct of some kind. At other times we say rather that someone is responsible for a certain state of affairs, meaning that he is responsible for that state of affairs having come into being. If we focus on positive acts, as I intend for the most part to do in this article, and leave aside omissions, the