Historical, Philosophical, and Legal Foundations of Strict Liability in Hugo Grotius—Some Introductory Remarks to the Special Dossier

Abstract

Present-day scholarship on the law of delicts (or the law of torts) can be broadly divided into two 'camps' .1 The first group of theorists manages a consequentialist conception: the system of delictual liability is modelled in view of the consequences it yields. Since the work of Ronald Coase, Guido Calabresi, and Richard Posner, these consequences are often seen in economic terms. The costs of accidents are externalities; the prevention of those externalities also leads to costs. It is the role of the law of delicts to force injurers and victims to take these costs into account and/or allow them to adjust their level of behavioural activity. The overall result is wealth maximisation. The second group of theorists favours a non-consequentialist or 'moral' approach. This is not to say that an economic analysis is not 'moral'; there is a sense in which wealth maximisation is the embodiment of the moral requirement of putting resources to their highest use. At the very least, as Posner emphasises, wealth maximisation is perfectly consistent with most influential moral systems.2 Rather, the 'moral' or non-consequentialist approach starts the analysis from the general idea that wrongdoing or unjustified conduct underlies liability.3Strict liability is easily incorporated into a consequentialist or economic conception as it builds upon the kind of cost-benefit analysis the Learned Hand Philosophical Foundations of Tort Law, ed. by David G. Owen (Oxford: Oxford University Press, 1995), pp. 99-111 (p. 111). 3 A still-useful overview of tort scholarship until the end of the twentieth century is provided by David G. Owen, 'Foreword. Why Philosophy Matters to Tort Law' , in Philosophical Foundations of Tort Law, pp. 1-27.