Varieties of Consequentialism and Deontology in Theories of Tort Law

Abstract An important contribution of Gregory Keating’s Reasonableness and Risk is to mount objections to law and economics whilst articulating an alternative deontological vision of tort law to that offered by corrective justice theorists. In this paper I offer two reservations about Keating’s account. One is that some forms of consequentialism can accommodate at least some aspects of his deontological theory, so we must be careful to distinguish between claims that strike at the heart of consequentialism and those that are only a problem for wealth maximisation. The second is that there are yet other varieties of deontology besides Kantianism and Keating’s alternative to it, and while I accept some of Keating’s claims, I think we should reject others. I will make the case for each of these reservations via discussion of three core features of Keating’s account: the harm/benefit asymmetry, the commitment to objective rather than subjective valuation, and his justification of strict liability.