Duty of Care + Standard of Care + Norm value differences w/ Posner
The author describes the fault system dividing risks on two levels: the duty of care and the
standard of care.
The duty of care is “the specification of the interests of others with respect to which one must
exercise care” (50). The author clarifies that not all interests are protected from the risk
of injury. For example, all economic interests are not protected. The author expands saying,
“if I could not act unless I was sure that your financial position would not be adversely affected,
I could not act at all” (50). Which interests connected to security and liberty are protected
depend on “substantive views of the importance of various interests to the ability to lead a life
of one’s own” (50). Injuries are differentiated partly on the burden to liberty that precautions
against them post.
The standard of care is “the amount of care one must exercise so as to avoid injury to protected
interests. The author clarifies that their fault system “does not require that unlimited efforts
be taken to avoid injuring the protected interests of others” (51). Instead, risks should be
divided fairly and that people only moderate their behavior “in light of the interests of others.”
The author of this passage grounds their argument in the value of security and liberty shared
equally amongst individuals. The author writes that “security from bodily injury is obviously important as is the liberty to come and go as one pleases” (51). Conversely, Posner grounds his argument—which claims
to be empirical but does ground itself in norms to some degree—in utilitarianism and individualism.
Both authors claim that society obviously values their respective values.
While individualism and liberty appear more similarities to
me, I find their respective values in utilitarianism and security more juxtaposing. Both may
infringe on certain rights, however, for different values. While utilitarianism prioritizes the
greatest good, security prioritizes stability and protection. On the surface, I may be attracted
to utilitarianism concerns over security concerns, however I find the author of this passage
much more appealing than Posner. I find this passage to explain better initiative notions of
justice.
Hi Bika!
ReplyDeleteReally interesting post, I hadn’t thought about the similarities between Ripstein and Posner both basing their arguments upon how to weigh and achieve an appropriate combination of two specific values.
I am curious about whether the scope of where they each think those two values are important. While they both directly address how their two values ought to be upheld in tort law, I think Posner extends his argument to advocate for utility and individualism as general goals for an ideal society.
Ripstein discusses liberty and security in relation to determining guidelines for determining “justice in holdings” and determining when “people fail to behave reasonably” (24). To determine who has wronged who and who is liable requires determining “the boundaries between persons,” which are “given by a concern for equal liberty and security for all” (49). He focuses “only on the issues that arise when people fail to behave reasonably” (24). This pretty directly circumscribes the scope of his argument to tort law. To Ripstein, liberty and security are important to determine harms and liability.
For Posner, alternatively, I think utility and individualism play a role in his defense of wealth maximization as a broad (and perhaps comprehensive) ideal for society, including all government intervention and the division of property rights.
To him, utility and individualism are the “values which provide the underlying ethical appeal of wealth maximization” (96). He thinks that wealth maximization “promotes prosperity,” which usually “engenders happiness,” and “protects individual rights, and therefore promotes individualism” (96). The benefit of wealth maximization as an ideal is how it follows both of these in important ways and solves some problems with each. These benefits seem to be the same ones which underlie his advocacy for wealth maximization as the ideal for tort law, as well as for directing the creation of a new society. This makes the scope of where he thinks utility and individualism ought to be realized feel bigger than Ripstein’s emphasis on security and liberty.
I think if a society optimally achieved utility and individualism, Posner would think this would be the ideal society. However, if a society equally and perfectly achieved security and liberty for every person, I don’t think Ripstein would necessarily believe these are complete to make the ideal society – only that corrective justice would be properly realized and wrongs have been retributed.
Cool post and cool comment. Bika is pointing out apparent similarities, and Violet is emphasizing fundamental differences. One way of capturing Violet's point is that Posner's approach is fundamentally outcome-centered, while Ripstein's does not aim at promoting any overall outcome at all. Posner aims to maximize wealth across all persons, while Ripstein aims to articulate the appropriate balance of liberty and security interests (what we are free to do and what we are free from) WITHIN each person, in the process articulating an account of reasonable interaction between persons.
ReplyDelete