Gerry L.

Contillo
Ma. Cielo Amar-Motin
The Consequentialist/ Non-consequentialist Ethical Distinction:
A Tool for the Formal Appraisal of Traditional Negligence and
Economic Tort Analysis
Paul J. Zwier

Abstract
Decision-making in tort cases utilizes the traditional negligence or the economic
analysis approach. The essence of the tort was that a person should be subject to
liability for carelessly causing harm to another. The arguments and counter-arguments
of the traditional negligence are examined using its elements, namely duty, breach of
duty, and proximate cause. These three elements of negligence is important to an
elemental understanding of the nature of this tort and how it properly should be applied.
The ethics of economic analysis is then analyzed in comparison with the negligence
language. Both approaches will be appraised in the lens of the Consequentialist/ Nonconsequentialist perspectives to see which of the two approaches lends the public
greater good.

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Statement of the Book Chapters Research Problem

Which approach or perspective is better between traditional negligence and
economic analysis using consequentialism / non-consequentialism principles as
a tool?
Goals, Purpose and Significance of the Book Chapter
Goal:
To provide a recommendation of the best approach or view (traditional
negligence and economic analysis) to serve as basis for decision-making in tort
cases
Purpose:
To present arguments / counter-arguments in the ethics of negligence and
economics in the light of duty, breach of duty and proximate cause
characteristics and identification of the application of consequentialism / nonconsequentialism principles
Significance
The similarities and differences of traditional negligence and economic analysis

Framework Used in the Book Chapter

Decision-making in the courts whether it is done by the judge per se, the jury, a factfinding committee or under-cover expert/s employ either one of the approaches the
traditional negligence (TN) or economic analysis (EA) approach. Zwiers appraisal
consisted of the presentation of arguments on both approaches using the elements of
TN which are duty, breach and proximate cause. They are then examined in the light of
the ethical categories consequentialism / non-consequentialism. A conclusion and /or
recommendation are then made based on comparison of the results.
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Data Collection Methods and Analysis Used in the Book Chapter

Data Collection Method
According to Yin (2009), the six sources of evidence or the methods that one could
employ in collecting data are through documentation, archival records, interviews, direct
observations, participant observation and physical artifacts. Documentation includes
administrative documents, news clippings, formal studies, and all other types of
documents available through Internet searches and sites; while archival records often
take the form of computer files and records like public use files made available by
government agencies, service records, organizational records, etc. Yin had not provided
a clear distinction of the difference between the two methods because archival record
samples could also be considered under documentation as well as pictures, videos, and
databases. For Zweirs paper, documentation and archival records are the methods
used.
Analysis
For non-consequentialists (NQ), action drives their moral decision that is, moral right
or wrong is not dependent on the outcome. In short, the means is more important than
the ends. Consequentialists (CQ) the other hand, outcome drives their moral decision
that is moral right or wrong is dependent on the outcome. In short, the ends are more
important than the means (Ethical theories kept simple!, 2004).
Negligence law took shape as a general theory of liability for carelessly caused harm.
The paper tackles its three elements namely duty, breach, and proximate cause and
examined it in the lens of the consequentialists and non-consequentialists. The
screening tool element of negligence law, the front door - is the duty, is obviously NQ in
nature. The process of finding though of the duty has an implied CQ justification. The
breach is the misconduct itself, the defendants improper act or omission (Owen, 2007).
The identification of the improper act or omission is NQ in nature. In determining
breach, negligence law normally compares the defendants conduct to a mythically
reasonable prudent person standard. This decision-making process is primarily CQ.
Sometimes, applying an objective, reasonable-person standard of behavior to complex
situations requires considered thought. If the actor and the victim have some type of
established relationship, such as teacher to student, doctor-patient, or possibly even
friend-friend, custom and experience often provide a strong guide to the kinds of rights
and responsibilities that flow between the parties (Owen, 2007). Instances like these are
clothed in NQ garbs. Risk-benefit / cost-benefit approach are employed in the
evaluation of risky conduct like balancing of interests when freedom and securit y is in
question. The calculus-of-risk approach for judging the quality of choices in the
celebrated B < P x L formula for negligence developed by Judge Learned Hand
perceived as an economic model of negligence law (Owen, 2007) is highly influential.
These mathematical formulas provide a NQ appearance similar to that of prima facie
case (Zwier, 1985), but to "find" the values to substitute in for the variables the
processing done is CQ. The proximate cause element is aptly described as an elusive
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butterfly, for it is a cauldron of many factual and legal issues thrown and mixed
together. Today, the concept of foreseeability, is its cornerstone. The responsibility of
an actor for the consequences of wrongful action is limited by principles of reasonable
foreseeability. This outer boundary of tortious responsibility seeks to prevent actors
from being held liable for consequences that fall outside the scope of their wrongdoing,
beyond their moral accountability. The idea here is that responsibility for consequences
should be based on the quality of an actors choices that led to the consequences.
(Owen, 2007). Once again, therefore, while the substance of the proximate cause
element is most often thought of as CQ, it certainly is NQ in the evidentiary limitations
which constrain and obscure the decision (Zwier, 1985).
Economic analysis of law applies the tools of microeconomic theory to t he analysis of
legal rules and institutions. Ronald Coase [1960] and Guido Calabresi [1961] are
generally identified as the seminal articles, while Richard Posner [1973] brought
economic analysis of law to the attention of the general legal academy (The Economic
Analysis of Law, 2011). The paper focuses on Calabresi and Posners arguments.
According to Posner, there is no need for traditional contract analysis, or negligence
analysis. His process does not involve duty analysis, or breach analysis, or proximate
cause analysis, or offer analysis, or acceptance analysis. Contract law and tort law are
presumably submerged, if they exist at all, in the economic analysis of this one major
principle. The liability decision rests solely on which decision alternative maximizes
wealth to society. While for Calabresi, key question is Who is the cheapest cost
avoider? Both their principles are CQ in nature and both employs mathematical
formulas. Calabresi employs cost/benefit analysis between accident cost and accident
avoidance cost, as well as formulas for spreading losses, distributional equity, and
deterrence. While Posner uses the Hand formula as his economic model. The dollar
value for determining his wealth maximization is found by using either actual or
hypothetical markets. Since most tort cases deal in the realm of accidents, and are
non-voluntary, hypothetical market is usually used which has great similarities with
negligence's use of the reasonable person theory. As explained in the previous
paragraph, the use of mathematical formulas involves a combination of both NQ and
CQ principles.

Summary of the Results

Legend: NQ -> non-consequentialist, CQ -> consequentialist

Three (3) Major Points of Agreement

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1. The law through the courts indirectly forces men to help one another by
controlling improper conduct.
The purpose of the law is to protect the rights of the smallest minority that has
ever existed the individual (What is the purpose of the law?, 2016). The four
principal purposes and functions of the law are establishing standards,
maintaining order, resolving disputes, a nd protecting liberties and rights.
The law is a guidepost for minimally acceptable behavior in society (Harris &
Brickley, 2016).
From the very start, the law was given by God to make man conscious of sin - for
there would be no sin if there is no law that is the first part. The second, it sets
the standard how man should live the dos and the donts. And finally, mans
responsibility towards other human beings for we are our brothers keeper.
2. Existing decision-making practices are not inscribed in a stone so is the
question of superiority of an approach or a view is an issue not worth the effort.
Economists were and are demonstrably mistaken in their claim of ethical
superiority. Real world ethical systems need to allow for changing values and
changing valuation procedures. Should they ever be totally definite and
complete, societies' growth and evolution would be too easily stifled there could
never be a winner in these logical criteria (Zwier, 1985).
The only thing that is constant is change. In every rule, there will always be an
exemption. There will always be an unforeseen or unexpected incident along the
way. Flexibility is the by-word of this present generation.
3. Valuation procedures done whether by the negligence approach or economic
analysis generally end up based on beliefs and assumptions.
In law, however, disputes are frequently about something more than a
disagreement as to facts; they involve disagreements as to values. These valuebased disagreements shape the facts as people understand them, and influence
the relative importance attributed to any given fact by any particular party. Value
disputes are not easily resolved by appeal to economic analysis. At best,
economics can only offer some indirect input on factors to consider in a given
situation, but in the end law must operate to make a judgment; a value choice
between and among competing claims that are often based on emotion, culture,
and other human characteristics that are not easily subject to an economic
calculus (Malloy, 2015).

Three (3) Major Points of Disagreement

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1. The assumption that the defendant is negligent and therefore is at fault is not a
good assumption at the start of a case.
2. A fault requires an act, therefore, if there is no act, there is no fault. To act or not
to act is individual liberty.
If an individual is given unrestrained liberty to do whatever he likes, he will cause
harm to others. There will be chaos in society if individuals are given
unrestrained liberty (Pooja, 2013). What liberty does offer us is equality of
opportunity, based on talent, energy, effort, and moral character (Equality vs
Liberty, 2004).
The use of individual liberty as justification for breach of duty is a misplaced
scapegoat. The absence of an action is in itself a choice and therefor still
corresponds to an act.
3. A proposed double standard of conduct which should exercise a relaxed
standard for contributory negligence (plaintiff) and a not relaxed standard for
negligence (defendant).
Double standard is defined as a set of principles that allows greater freedom to
one person or group than to another (Dictionary.com, 2012). This is an unfair
setup and therefore not acceptable, unless otherwise this involves children.
Children have a favored status relative to contributory negligence because they
have less capacity (and sometimes no capacity) for appreciating and avoiding
danger. It is, therefore, unfair to hold them to the same standard of care as an
adult (Keet Jr., 1963).
Sources of information Used in Analyzing the Book Chapter
Equality vs Liberty. (2004, April 23). Retrieved June 24, 2016, from The View From 1776:
http://www.thomasbrewton.com/index.php/equality_vs_liberty/
Ethical theories kept simple! (2004). [Motion Picture].
The Economic Analysis of Law. (2011). Retrieved June 25, 2016, from Standard Encyclopedia of
Philosophy: http://plato.stanford.edu/entries/legal-econanalysis/
(2012). Retrieved June 24, 2016, from Dictionary.com: http://www.dictionary.com/browse/doublestandard
What is the purpose of the law? (2016). Retrieved June 24, 2016, from Capitalism.Org:
http://capitalism.org/government/what-is-the-purpose-of-law/

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Harris, B., & Brickley, S. (2016). Chapter 3: Purposes and Functions of Law. Retrieved June 24, 2016, from
Business Basics: www.businesslawbasics.com/chapter-3-purposes-and-functions-law-1
Keet Jr., J. H. (1963). Contributory Negligence of Children. Cleveland State Law Review.
Malloy, R. P. (2015, March 2). An Interpretive Critique of an Economic Analysis of Law. Retrieved June 24,
2016, from Social Science Research Network:
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2572497
Owen, D. G. (2007). THE FIVE ELEMENTS OF NEGLIGENCE. Hofsta Law Review, 35(4).
Pooja. (2013). Relationship between Liberty and Equality. Retrieved June 24, 2016, from Political Science
Notes: http://www.politicalsciencenotes.com/essay/relationship-between-liberty-andequality/274
Yin, R. K. (2009). Case Study Research - Design and Methods. California: SAGE Publications, Inc.
Zwier, P. J. (1985). The Consequentialist/ Non-consequentialist Ethical Distinction: A Tool for the Formal
Appraisal of Traditional Negligence and Economic Tort Analysis. Boston College Law Review,
905-944.

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