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42 Grotiana (n.s.) 1 (2021)

handle is hein.journals/grotia42 and id is 1 raw text is: GROTIANA 42 (2021) 1-4
GROTIANA
BRILL                                                          brill.com/grot
Historical, Philosophical, and Legal Foundations of
Strict Liability in Hugo Grotius-Some Introductory
Remarks to the Special Dossier
Bart Wauters
IE Law School / IE University, Segovia-Madrid, Spain
bart.wauters@ie.edu
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 conse-
quentialist 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 behav-
ioural 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 max-
imisation 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.3
Strict liability is easily incorporated into a consequentialist or economic
conception as it builds upon the kind of cost-benefit analysis the Learned Hand
1 Gregory C. Keating, 'Strict Liability Wrongs, in: Philosophical Foundations of the Law of Torts,
ed. by John Oberdiek (Oxford: Oxford University Press, 2014), pp. 292-311 (pp. 292-4).
2 Richard A. Posner, 'Wealth Maximization and Tort Law: A Philosophical Inquiry', in:
Philosophical Foundations of Tort Law, ed. by David G. Owen (Oxford: Oxford University Press,
1995), pp. 99-111 (p. m1).
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.

© KONINKLIJKE BRILL NV, LEIDEN, 2021 1 DOI:10.1163/18760759-42010001

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