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

Abstract

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. 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.

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