Barbara Herman, "The Moral Side of Non-Negligence"

Legal discussions of negligence focus on issues of harm, fault, and remedy in the context of failure to exercise reasonable care. The point of orientation is the negligent event. In this talk I want to investigate a related moral duty, the duty of due care. Its orientation is ex ante; it is an imperfect duty that ranges across private and public morality; its content is not restricted to injury and loss. The wrongful failure of due care need not increase the risk of a negligent event. An agent acting negligently in the moral sense has failed to take on the full burden of some other duty. The argument for this view of due care will lend support to three more general theses: about the nature and importance of imperfect duties, about the primacy of non-negligence, and about the rationale for different schemes of remedy on the legal side. Barbara Herman is Griffin Professor of Philosophy and Professor of Law at UCLA. This talk was recorded on February 26, 2014, as the Dewey Lecture in Law and Philosophy.