Enoch, David, Tort Liability and Taking Responsibility (May 16, 2015). John Oberdeek (ed.) Philosophical foundations of the Law of Torts (OUP 2014). Available for download at SSRN: http://ssrn.com/abstract=2607013

“Is anything missing, morally speaking, in a society that does not have any practice remotely resembling tort liability? If we take care of instrumental matters in some other ways (perhaps an insurance-like pool that severs the ties between tortfeasors and “their” victims), is anything still missing? Corrective justice approaches answer in the positive, but I find their reasoning by-and-large unconvincing. In this paper, I offer a very qualified and tentative positive answer that starts from the idea of taking responsibility. In another paper (“Being Responsible, Taking Responsibility, and Penumbral Agency”, forthcoming in Ulrike Heuer and Gerlad Lang (eds.), Luck, Value, and Commitment: Themes from the Ethics of Bernard Williams (Oxford University Press, 2011)), I note that sometimes taking responsibility amounts not to acknowledging a responsibility that is already there, but rather to making it the case that one is responsible, in virtue of the act of will of taking responsibility. I suggest that tort liability can play a role in accommodating taking responsibility in this sense. If so, there could be something missing in a tort-less society – this way of accommodating the important phenomenon of taking responsibility would be missing. But there need not be anything missing in such a society, because it may allow for other, sufficient ways of taking responsibility.”