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Only in the property torts, such as trespass and conversion, does tort law directly encode and enforce moral rights against injury, and that is largely for contingent historical reasons involving the common law’s use of property torts to perform noncompensatory functions such as settling disputes about title.46 Most of the time, tort law — like the common sense morality that it reflects — holds a defendant liable to compensate a plaintiff only if the defendant’s infringement of the plaintiff’s right is attributable to and reflective of some morally significant feature of the defendant’s responsible agency (such as, paradigmatically, a culpable and wrongful choice). A great deal of tort doctrine consists in the law’s attempt to articulate, elaborate, and enforce “informed common sense” about “how far the responsibility of the defendant ought fairly to extend”47 for causing unjust damage to other people, that is, infringing their fact-relative rights against injury.

instituted by Moses in the Old, nor by Christ in the New Testament; nor

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