Prudence, Benevolence, and Negligence: Virtue Ethics and Tort Law

  • Heidi Li Feldman


Tort law assesses negligence according to the conduct of a reasonable person of ordinary prudence who acts with due care for the safety of others.1 This standard assigns three traits to the person whose conduct sets the bar for measuring negligence: reasonableness, ordinary prudence, and due care for the safety of others. Yet contemporary tort scholars have almost exclusively examined only one of these attributes, reasonableness, and have wholly neglected to carefully examine the other elements key to the negligence standard: prudence and due care for the safety of others. It is mistaken to reduce negligence to reasonableness or to try to understand the sense of reasonableness contemplated by the negligence standard without reference to the virtues of prudence and benevolence. Taken together and analyzed in relation to one another, these three traits define a distinct evaluative perspective, according to which some actions expose oneself and others to inappropriate risk of physical harm, and others do not. In this chapter, I only partially articulate this evaluative perspective, focusing on its dimensions defined by prudence and care and leaving to one side the dimension defined by reasonableness. I have restricted the exposition partly because of limits, of the article format,2 and partly to counterbalance the overattention to reasonableness that has characterized tort scholarship of the last fifty years.


Supra Note Thought Experiment Distributive Justice Virtue Ethic Corrective Justice 
These keywords were added by machine and not by the authors. This process is experimental and the keywords may be updated as the learning algorithm improves.


Unable to display preview. Download preview PDF.

Unable to display preview. Download preview PDF.


  1. 4.
    In my view, tort law both does and should involve a naturalistic understanding of reasonableness. On this view, reasonableness is a cognitive trait of human beings, an evolved adaptation we employ to reason about risks and benefits. To fully understand reasonableness as it figures in tort law, then, we need to take into account both evolutionary and social psychological research into how human beings approach risk and gain. See Heidi Li Feldman, Science, Reason, and Tort Law: Looking for the Reasonable Person in Law and Science 35 (Helen Reece ed., 1998); Heidi Li Feldman, Negligence Law and Human Psychology (June 29, 1999) (unpublished manuscript, on file with author).Google Scholar
  2. 5.
    See Robin West, The Other Utilitarians in Analyzing Law: New Essays in Legal Theory (Brian Bix ed., 1998), pp. 197, 206.Google Scholar
  3. 28.
    See, for example, Richard A. Epstein, Cases and Materials on Torts (6th edn, 1995), pp. 193–195. Epstein includes Terry’s list in a section with cases on the “Calculus of Risk.” Id. at 189–210. This section leads up to the presentation of United States v. Carroll Towing Co., 159 F.2d 169 (2nd. Cir. 1947), the case in which Judge Learned Hand described negligence in “algebraic terms” and claimed that the defendant’s actions constituted negligence if the burden of taking adequate precautions against an accident was less than the probability of injury without taking those precautions. Id. at 172. Richard Posner famously claimed that in Carroll Towing “Hand was adumbrating, perhaps unwittingly, an economic meaning of negligence.” Richard A. Posner, A Theory of Negligence, 1 J. Legal Stud. 29, 32 (1972).Google Scholar
  4. 29.
    Warren A. Seavey, Principles of Torts, 56 Harv. L. Rev. 72, 89 (1942).Google Scholar
  5. 46.
    For good discussions of simulation theory, see Alvin I. Goldman, Empathy, Mind, and Morals in Mental Simulation: Evaluations and Applications (Martin Davies and Tony Stone eds, 1995), pp. 185, 185–199 andGoogle Scholar
  6. Robert M. Gordon, Folk Psychology as Simulation in Folk Psychology: The Theory of Mind Debate (Martin Davies and Tony Stone eds, 1995), p. 60.Google Scholar
  7. 49.
    See, for example, Robert L. Rabin, The Historical Development of the Fault Principle: A Reinterpretation, 15 Ga. L. Rev. 925, 930–931 (1981) (rejecting either an exclusively economic or exclusively moral interpretation of tort law’s “fault” principle);Google Scholar
  8. Gary T. Schwartz, Mixed Theories of Tort Law: Affirming Both Deterrence and Corrective Justice, 75 Tex. L. Rev. 1801, 1819–1824 (1997) (arguing that both economic and ethical considerations underwrite tort law’s liability standards);Google Scholar
  9. Gary T. Schwartz, The Beginning and the Possible End of the Rise of Modern American Tort Law, 26 Ga. L. Rev. 601, 607 (1992) (“In light of all the tensions that are possible between ethical and economic approaches to tort law, what is distinctive about the negligence standard is that it achieves a certain synthesis of fairness and deterrence values”).Google Scholar
  10. 52.
    Richard Epstein’s early tort scholarship provides a counterexample. There, Epstein attempted a tort theory premised on formal ideas of Aristotelian corrective justice. Richard A. Epstein, A Theory of Strict Liability, 2J. Legal Stud. 151 (1973). In his later work, however, he has been increasingly influenced by the idea of tort law as a tool for efficient welfare maximization. Richard A. Epstein, Simple Rules for a Complex World (1995), p. 97 (“Efforts to refine and apply strong moral intuitions often lead to inquiries with a distinct economic cast....”). According to Epstein, economic welfare militates in favor of strict liability in tort. Id. Google Scholar
  11. 53.
    John Rawls, A Theory of Justice (1971). A Theory of Justice exerted influence over legal theorists outside of tort scholarship. See, for example, Ronald Dworkin, Taking Rights Seriously (1977), pp. 151–183;Google Scholar
  12. Ronald Dworkin, The Original Position, 40 U. Chi. L. Rev. 500 (1973);Google Scholar
  13. Frank I. Michelman, In Pursuit of Constitutional Welfare Rights: One View of Rawls’ Theory of Justice, 121 U. Pa. L. Rev. 962 (1973).Google Scholar
  14. 55.
    See Heidi Li Feldman, Rawls’ Political Constructivism as a Judicial Heuristic: A Response to Professor Allen, 51 Fla. L. Rev. 67, 76–78 (1999) (analyzing when, if ever, common law falls within the basic structure of society on a Rawlsian view of the basic structure).Google Scholar
  15. 56.
    George P. Fletcher, Fairness and Utility in Tort Theory, 85 Harv. L. Rev. 537 (1972).Google Scholar
  16. 62.
    I have argued this point elsewhere. See Heidi Li Feldman, Harm and Money: Against the Insurance Theory of Tort Compensation, 75 Tex. L. Rev. 1567 (1997). Many philosophers and some economists have criticized the neoclassical economic conception of rationality. See, for example, Elizabeth Anderson, Value in Ethics and Economics 201–202 (1993);Google Scholar
  17. Amartya K. Sen, Rational Fools: A Critique of the Behavioral Foundations of Economic Theory in Beyond Self-Interest (Jane J. Mansbridge ed., 1990), pp. 25, 42–43. Legal scholars have also offered critiques.Google Scholar
  18. See Cass R. Sunstein, Legal Interference with Private Preferences, 53 U. Chi. L. Rev. 1129 (1986).Google Scholar
  19. 67.
    Richard A. Posner, The Ethical and Political Basis of the Efficiency Norm in Common Law Adjudication, 8 Hofstra L. Rev. 487 (1980).Google Scholar
  20. 74.
    Ernest J. Weinrib, Toward a Moral Theory of Negligence Law, 2 Law & Phil. 37, 37 (1983).CrossRefGoogle Scholar
  21. 90.
    See, for example, Oliver Wendell Holmes, The Common Law (Mark DeWolfe Howe ed., 1963) (1881); Leon Green, Judge and Jury (1930), pp. 395–417; Fleming James, Jr., Functions of Judge and Jury in Negligence Cases, 58 Yale L. J. 667 (1949);Google Scholar
  22. Mark P. Gergen, The Jury’s Role in Deciding Normative Issues in the American Common Law, 68 Fordham L. Rev. 407, 424–439 (1999).Google Scholar
  23. 95.
    See James A. Henderson, Jr., Expanding the Negligence Concept: Retreat from the Rule of Law, 51 Ind. L. J. 467, 468–482 (1976). Although Henderson’s primary target is not the reasonable person standard, he thinks that this approach to tort law is problematically “polycentric” or open-ended, a difficulty that is hidden by having juries apply the standard.Google Scholar
  24. 96.
    In constitutional law scholarship, resolving the “countermajoritarian” problem—the tension between judicial review and democracy—has been called “the central obsession of modern constitutional scholarship.” Barry Friedman, The History of the Countermajoritarian Difficulty, Part One: The Road to Judicial Supremacy, 73 N.Y.U. L. Rev. 333, 334 (1998). Alexander M. Bickel seems to have introduced the term “countermajoritarian” and articulated an influential encapsulation of the problem in the context of American law and government. Alexander M. Bickel, The Least Dangerous Branch: The Supreme Court at the Bar of Politics (1962), pp. 16–23. The root difficulty is that judicial review is a countermajoritarian force in our system... [that] thwarts the will of representatives of the actual people of the here and now; it exercises control, not on behalf of the prevailing majority, but against it. That, without mystic overtones, is what actually happens. It is an altogether different kettle of fish, and it is the reason the charge can be made that judicial review is undemocratic. Id. at 16–17.Google Scholar
  25. 97.
    See Reid Hastie and W. Kip Viscusi, What Juries Can’t Do Well: The Jury’s Performance as a Risk Manager, 40 Ariz. L. Rev. 901 (1998).Google Scholar

Copyright information

© Heidi Li Feldman 2008

Authors and Affiliations

  • Heidi Li Feldman
    • 1
  1. 1.Georgetown UniversityUSA

Personalised recommendations