A Theory of Strict Liability
A Theory of Strict Liability
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严格责任理论
DOI：
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发表时间：
1973
期刊：
影响因子：
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通讯作者：
R. Epstein
中科院分区：
文献类型：
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作者：
R. Epstein
TORTS is at once one of the simplest and one of the most complex areas of the law. It is simple because it concerns itself with fact patterns that can be understood and appreciated without the benefit of formal legal instruction. Almost everyone has some opinions, often strong even if unformed, about his rights and responsibilities towards his fellow man; and almost everyone has had occasion in contexts apart from the judicial process to apply his beliefs to the question of responsibility for some mishap that has come to pass. Indeed, the language of the law of tort, in sharp contrast, say, to that of civil procedure, reveals at every turn its origins in ordinary thought. But the simplicity of torts based upon its use of ordinary language is deceptive. Even if ordinary language contains most of the concepts that bear on questions of personal responsibility, it often uses them in loose, inexact, and ambiguous ways: witness, for example, the confusion that surrounds the use of "malice." While an intuitive appreciation of the persistent features of ordinary language may help decide easy cases, more is required for the solution of those difficult cases where the use of ordinary language pulls in different directions at the same time. There is need for a systematic inquiry which refines, but which does not abandon, the shared impressions of everyday life. The task is to develop a normative theory of torts that takes into account common sense notions of individual responsibility. Such a theory no doubt must come to grips with the central concerns of the common law of torts. But it need not (though it well may) embrace the common law solution to any particular problem. This common sense approach to torts as a branch of common law stands in sharp opposition to much of the recent scholarship on the subject because it does not regard economic theory as the primary means to establish the rules of legal responsibility. A knowledge of the economic consequences of alternative legal arrangements can be of great importance, but even among those who analyze tort in economic terms there is acknowledgment of certain questions
