What explains the crime/tort distinction? Developing and applying Razian theory
Citation:
Campbell, David, What explains the crime/tort distinction? Developing and applying Razian theory, Trinity College Dublin. School of Law, 2020Download Item:
Abstract:
This thesis is a work of legal theory within the discipline of philosophy of action and more particularly the field of practical reason theory. The thesis asks the question: What explains the crime/tort distinction? It adopts and develops Razian theory to provide an answer. The explanation proposed is that crime is fundamentally concerned with assessing the rightness of agency in light of relevant norms whereas tort is fundamentally concerned with assessing the conformity of agency with applicable norms. Joseph Raz identified as the most important branches of practical philosophy; value theory, normative theory and ascriptive theory. Value theory being centrally concerned with good, bad, better and worse; normative theory with ought, rules, duties; and ascriptive theory with attributing blame and responsibility. The thesis works through the lens of Razian theory and largely within the normative and ascriptive domains of this schema. The thesis contends that the Razian calculus of determining what is to be done by reference to the undefeated outcome of conflicting reasons of differing positional and internal weight does not fully explain or fit our assessments of instances where an agent s sound reasoning conflicts with the requirements of an applicable norm. Another distinction, noted but undeveloped by Raz, between acting reasonably and acting in a manner well-grounded in reason is adopted and developed, where the former is an assessment of the agency in light of subjectively bounded but objectively determined relevant norms and the latter an assessment of the conformance of agency with purely objectively discerned applicable norms. It is proposed this distinction provides a solution to this problem of incompleteness and it is argued also forms the basis of an explanation for the crime/tort distinction. The thesis adopts and develops John Gardner s understanding of wrongness as constituted by dissonance between guiding and explanatory reasons. It is argued that wrongness is in fact a species of reasonableness assessment while on the other hand duty breaches are a species of well-groundedness assessments. The thesis adopts a central case approach to argue that at the core of criminal blameworthiness assessments is wrongness, making it fundamentally a reasonableness assessment while at the core of tortious responsibility assessments is duty breach, making it fundamentally a well-groundedness assessment. The theory developed by this thesis is then tested through its application to cognate theoretical debates and against critiques of general theories, in order to assess whether or not the theory can provide a coherent and fitting set of answers to these ongoing debates.
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Irish Research Council (IRC)
Trinity College Dublin (TCD)
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https://tcdlocalportal.tcd.ie/pls/EnterApex/f?p=800:71:0::::P71_USERNAME:CAMPBELDDescription:
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Author: Campbell, David Edward
Advisor:
Prendergast, DavidPublisher:
Trinity College Dublin. School of Law. Discipline of LawType of material:
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Full text availableKeywords:
Raz, Crime/Tort, Legal Theory, PhDMetadata
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