Philosophical Foundations of Tort Law

By David G. Owen | Go to book overview

Afterword What Has Philosophy to Learn from Tort Law?

BERNARD WILLIAMS*


I. TESTING COMMON SENSE: THE PICTURE

One answer to my question is that philosophy might learn from tort law the difference between practical reality and philosophical frivolity. J. L. Austin was disposed to give that answer. Austin was, like Wittgenstein and Nietzsche, struck by the irresponsibility of philosophy, its light-headed willingness to suppose that large problems could be usefully addressed by some distinctions or formulations that were simply thought up 'of a Sunday afternoon'. (There was a difference between Austin and those others: unlike them, he did more or less take it for granted that there was a subject, philosophy, which might come to conduct itself more seriously and usefully in these respects, even if he was less than clear about the form that the subject might take.)

What is this contrast? What is it that supposedly provides us with distinctions more adequate than those offered by philosophy? Austin said (with some reservations) that it was common sense or, perhaps, ordinary language, and one reason he sometimes gave for this judgement was a quasi-evolutionary one, that common sense (as I shall call it)1 had been, at least with regard to central human concerns, under heavy selective pressure for a very long time, and the distinctions that had survived and flourished in it were likely to answer fairly reliably to human needs. This was not a very good answer, for more than one reason, and it is not easy to tell how seriously Austin took it. However, it does at least provide a starting point for thinking about something less general, a contrast drawn in similar terms between philosophy and the law. Austin also appealed to the law, and the famous article A Plea For Excuses, in which he sets out some of his methodological

____________________
*
White's Professor of Moral Philosophy, University of Oxford; Deutsch Professor of Philosophy, University of California, Berkeley.
1
Some philosophers of Austin's tendency may have thought that 'common sense' was consistent, self-validating, and free of ideology. The present discussion makes no such assumptions.

-487-

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