Use this URL to cite or link to this record in EThOS: https://ethos.bl.uk/OrderDetails.do?uin=uk.bl.ethos.757176
Title: Negligence law and the problem of coherence : an exploratory approach
Author: Mickiewicz, Emilia Barbara
ISNI:       0000 0004 7429 999X
Awarding Body: Newcastle University
Current Institution: University of Newcastle upon Tyne
Date of Award: 2018
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Abstract:
The present thesis seeks to address the problem of coherence in negligence law. This problem arises where plural and potentially incommensurable impulses assume relevance in the process of determining negligence law disputes (e.g. principled arguments and policy concerns). The existing theoretical accounts fail to offer a general explanatory framework that could accommodate these plural impulses defensibly. The present thesis asserts that one of the reasons for this failure is shared by the various accounts under scrutiny commitment to the classical understanding of coherence as one, which is necessarily informed by the requirement of non-contradiction. The principle of non-contradiction states that contradictory statements cannot be both true at the same time. An extension of this principle to the legal field has led some of the legal theorists to argue that negligence law can only be explained within a uniform normative framework which is informed by a single normative impulse (e.g. the principle of corrective justice, economic welfare etc.) Others conclude that there could be no general theory of negligence law or there that this general theory must be as fragmented as the field it seeks to explain. Yet others emphasized the need for a secondary ranking mechanism of some kind which would allow for an ex ante accommodation of these plural impulses. The present thesis seeks to demonstrate that the principle of non-contradiction on which these accounts are based provides an inappropriate foundation on which to assess the coherence of negligence law. Whereas the classical logical principle of non-contradiction might be useful for the assessment of static or abstract fields, it cannot be applied to the dynamic and contingent fields of human practice, which develop over time. Law is a human practice and any theory that seeks to explain it must take into account its temporal and existential dimensions. Contradictory statements cannot be true at the same time, but they might be both true at different times and in different contexts. There is nothing incoherent in determining seemingly similar legal disputes differently at different times, as long as these alternative findings can be justified against the background in which they operate. The present thesis offers an account of coherence, which relaxes the requirement of non-contradiction by integrating the temporal and existential dimension of the law. In this sense the word “coherent” signifies, for the purposes of the present thesis, a quality of being “meaningful” or “defensible” as opposed to being “non-contradictory”. Based on ii this view, the present thesis develops an exploratory account of coherence, which is based on three limbs: hermeneutics, everyday language philosophy, and modal logic, all of which perceive the temporal dimension as integral to any coherent theory of human practice. The present thesis applies the three limbs to the law of negligence and demonstrates how it can help to explain its operations. The result is a theory that explains the law’s operations more effectively than other theories.
Supervisor: Not available Sponsor: Not available
Qualification Name: Thesis (Ph.D.) Qualification Level: Doctoral
EThOS ID: uk.bl.ethos.757176  DOI: Not available
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