Against Harm: Keating on the Soul of Tort Law

Abstract

An orthodox view of tort law sees it as primarily a means of assigning costs -- for economic reasons, on some views, or for moral reasons, on others. Gregory Keating compellingly challenges this orthodoxy, showing how tort is essentially a matter of setting prospective norms designed to protect rational agents from wrongful harms, to which it attaches special negative significance. Here I discuss two areas that may raise complications for this account -- strict liability and the tortious infliction of pain -- and propose a reconciliation.