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Chapter 7 attempts to define accurately the standard of care adopted by Maimonides in his Code with respect to four categories of damage: (1) damage caused by a person to the property of another, (2) damage caused by a person who injures another, (3) damage caused by property, and (4) murder. In relation to each of these four categories, Maimonides proposed a standard of care that lies on the scale between fault, negligence, and strict liability. A careful examination of Maimonides’ writings reveals that he favored different liability regimes for different categories of damage. We present a scheme that illustrates Maimonides’ differential model and explains its rationale with respect to the hierarchy in the different standards of care applied in different cases. We also describe the historical background, circumstances, and nature of the tortfeasors in Maimonides’ time and in the contemporary era. This is essential for an understanding of the differential liability model in itself and as compared to contemporary models. Maimonides’ tort theory, we argue, is based upon a fundamental distinction between two questions: (1) upon whom should tort liability be imposed and (2) what is the standard of care that should be imposed in each case.
Chapter 8 draws some cautious lessons from a contemporary analysis of torts for Maimonides’ theory of torts and vice versa. We offer a full conceptual description of the Maimonidean theory, based on the previous chapters, and also characterize Maimonides as a pluralistic-differential scholar. We show that, as opposed to contemporary approaches to torts, which emphasize law and economics and corrective justice, Maimonides’ approach should be characterized as pluralistic and not monistic. After showing how contemporary approaches shed light on Maimonides’ approach, we can move in the opposite direction; that is, we can draw some careful – but important – lessons from the Maimonidean theory for contemporary tort law. We suggest one possible way of learning lessons from Maimonides’ theory for contemporary law, which may help enrich the current tort law discourse. The argument that Maimonides is a true pluralist enables us to draw a careful comparison between Maimonidean and contemporary pluralistic approaches to tort law, such as those of Glanville Williams, Fleming James Jr., Izhak Englard, Gary Schwartz, Mark Geistfeld, Christopher Robinette, Steven Burton, John Goldberg, and Benjamin Zipursky. This comparison reveals differences among the approaches, as well as advantages and disadvantages of each approach.
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