Caesar’s Gambit: Coherence, Justification of Legal Rules, and the Duty Test: Towards an Interactional Theory of Government Liability for Negligence in Disaster Management

Research output: Articlepeer-review

Abstract

This article examines barriers posed by the duty of care test for government liability for negligence in disaster management. It argues that various aspects of the test raise concerns about coherence, legitimacy of judicial decision-making, and ultimately how we justify liability in tort law. In examining the coherence of the duty test through multiple prisms, including through theoretical justifications for tort principles, this article contends that the duty test, in its framing and interpretations, fails to meet the formal and substantive demands of coherence, correctness and legitimacy. Arguing that justificatory theories offer necessary theoretical lenses through which to understand, critique, and reform the normative structure of legal rules such as the duty test, this article offers a different moral theory of government liability for negligence-articulated in the idea of an Interactional Theory-that gives expression to the co-efficient relationship between the formal and substantive dimensions of a legal rule.
Original languageEnglish
Pages (from-to)27-81
Number of pages55
JournalDalhousie Law Journal
Volume46
Issue number1
DOIs
Publication statusPublished - 2023

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