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The impulse reflects the appeal of explanatory unity and simplicity in legal doctrine and moral theory. But it also derives its force from the fact that our moral judgments about fault-based and non-fault-based (“strict”) species of remedial moral responsibility may well prove to be inconsistent with one another — generating incoherence in legal doctrine and ordinary moral thought and reflective pressure to tame this incoherence by pruning the species of remedial moral responsibility that we ultimately recognize. Consider an agent who saves her own life from a credible threat by turning her car in the direction of a pedestrian, knowing that it is extremely likely to collide with him and inflict a moderately serious injury on him (but not intending to do so).277 The agent will be held liable in battery to her victim, on the basis that she was “substantially certain” her action would injure him.278 Neither the law’s articulation of the battery tort, nor any of the battery tort’s defenses, will allow the agent to escape liability to her victim on the basis that her action was permissible and faultless. Yet if the agent saves her own life by imposing (say) only a five percent chance of inflicting such an injury, her action will be treated under the tort of negligence, and she will easily evade liability, without even needing to plead her absence of fault as an affirmative defense: The law articulates the content of the tort of negligence such that performing a permissible and faultless action, however injurious, does not even count as committing the tort.
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