Do societies prioritize harm prevention?

Abstract

In this essay, I respond to Keating's claim that harm prevention is a normative principle that rationally guides the law. Starting with tort law, I argue that though there are doctrines like strict liability that seem to reflect the priority of harm prevention, they can be explained differently. Rather than reflecting a concern with preventing harms, I suggest these doctrines are based on concerns with the distribution of losses. I then argue that it is not obvious that societies in fact prioritize harm prevention, and question whether they should when the costs of doing so outweigh the losses. Finally, I raise some questions about the method of argument that relies on appeal to intuitions about concrete cases, which Keating and others rely on in arguing for the priority of harm prevention.