| Ours is an age that thinks it has dispensed with metaphysics. Yet metaphysics, the starting-schema according to which we understand the world as a whole to be constituted, permeates and envelops our thinking about its parts. The metaphysics of our age, founded on will and control, accordingly takes as nothing everything that is not our will, including law, truth, and responsibility; these are all interpreted now as but the projection and effects of our will.; In tort law, this metaphysics poses special problems because that field of law is distinctively concerned with the rationalization of responsibility for accidents: The prototypical tort case arises through one or both parties' negligence, or default of attention and control. This presents significant difficulties for a theory justifying tort law which begins, as modern legal theory does, from within a metaphysics of will, taking for granted at the outset that either the nature of the tort, or the purpose of the law, involves a fundamental control over the events in issue.; To show the way this difficulty persists--and thus the hold and workings of our metaphysics--I explore in detail the substance and presuppositions of the three main contemporary schools of tort theory, which disagree sharply over the character and aims of tort law and the justification of liability under it. Considering this dispute on a different plane than do those engaged in it, I suggest that the impasse in tort theory, the nature and concerns of the competing theories, and the career of tort doctrine itself are but symptomatic of the far deeper problems raised by our metaphysics.; Chief among these problems is the threat posed by our metaphysics to our understanding of law as obligation. Exploring the difficulties tort theory faces in its attempt to control and manage accidents allows us to catch sight of our metaphysics at work, in our relentless efforts to subject accidents to our calculative reason, which they nevertheless elude. Further, however, it allows us also to glimpse the possibility of another understanding of law, lying beyond the metaphysical premises that subject law and responsibility to control by the will. |
