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In continental Europe, the non-relational normative principles operative beneath the relationally worded Romanist causes of action were distilled over many centuries by doctrinal scholars and moral philosophers, a process that culminated in the enactment of continental codes such as the Italian Civil Code and the German BGB.52 In England and America, with a few exceptions, such sweeping attempts at normative distillation and doctrinal reconfiguration have rarely occurred.53 Despite the formal doctrinal divergence between common law tort and civil law tort, this Article argues that the two categories’ moral substance is much the same. Like the general clauses of the civil law, the pigeonhole causes of action in the common law are centrally concerned with identifying and enforcing remedial moral liabilities that arise from a defendant’s moral responsibility for infringing a plaintiff’s rights against injury.
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