^ Professor Stephen Smith agrees with defenders of the Palsgraf perspective that the tort of negligence (like other torts) lays down a qualified duty of non-injury, but he suggests that such duties are “ad hoc mixtures of qualitatively different and independently complete concepts.” Stephen A. Smith, Duties to Try and Duties to Succeed, in Defences in Tort 65, 78 (Andrew Dyson, James Goudkamp & Frederick Wilmot-Smith eds., 2015). Smith believes that the common law of tort embraces such incoherent legal duties because it ultimately derives from the medieval forms of action, which were liability rules directly designed to provide remedial relief in appropriate circumstances (rather than to guide conduct). Id. at 83–84. I agree with Smith that the concept of a qualified duty of non-injury is ad hoc and unnatural, but I disagree that the common law of torts recognizes any such legal or moral duty. Rather, I believe, common law torts do not represent legal or moral duties (or wrongs) at all (even if the tort of negligence contains a legal and moral duty, the duty of care, as one of its elements). Rather, like the medieval common law’s forms of action and the modern civil law’s general clauses, today’s common law torts are remedial legal liability rules that roughly track the conditions of remedial moral liability.
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