The elimination of vulnerability continues to be a dominant concern in contemporary political thought. For example, one can think of the high liberal tradition, with its seeds in the mid-nineteenth-century writings of John Stuart Mill and its most comprehensive modern statement in the work of John Rawls, as a response to vulnerability.76 Rather than focusing on the
negative liberties protecting one from vulnerability before the state, however, the high liberal tradition focuses on the state’s duty to protect citizens from the accidents of disadvantaged birth or the adverse fortunes of the marketplace.77 Notice, however, that even in these most recent formulations of liberal theory, the legitimacy of the state is tied to the elimination of vulnerability.
Civil liability thus represents something of a puzzle. If the purpose of civil liability is to compel defendants to perform their duties or pay the efficient price for their actions, then civil liability fits smoothly into the vision of law as an instrument of the state for eliminating vulnerability and misbehavior. On the other hand, if civil liability is about creating vulnerability to
private attack, then it seems at odds with the liberal tradition. From the state of nature that so concerned Hobbes and Locke to the jaundiced view of the unregulated market that dominates the thought of modern egalitarians like
Rawls, the purpose of the law is to limit the vulnerability of individuals. Why, then, should so much of the law be devoted to the creation of vulnerability?