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1Joel Feinberg,Rights, Justice, and the Bounds of Liberty (Princeton: Princeton University Press, 1980), p. 230.
Judith Jarvis Thomson,Rights, Restitution, and Risk (Cambridge: Harvard University Press, 1986), p. 71. Henceforth I shall refer to this book as “Thomson 1.”
Others, too, might think it false, but I shall try to advance fresh reasons in this paper. I have in mind Jules Coleman in particular, who in a series of papers (some of which are gathered in hisMarkets, Morals and the Law (Cambridge: Cambridge University Press, 1988) has argued that in such cases the victim has a right to compensation, due to considerations of what Coleman calls corrective justice, but that the victimizer need not be obligated to provide compensation. Coleman thus seeks to separate the issue of recovery from that of liability. I find this strange, in that, in standard cases at least, it is hard to see against whom it might be that the victim has a right to compensation if not against the victimizer himself. At any rate, in this paper I shall be suggesting that the victim need have no right to compensation at all.
These two aspects of the duty must be kept distinct. In other cases A may owe it to B to compensate not B but C.
See Michael J. Zimmerman,An Essay on Moral Responsibility (Totowa: Rowman and Littlefield, 1988), pp. 41–43.
Feinberg, op. cit., p. 230; Thomson 1, p. 71.
Other reasons to accept this possibility include whatever reasons there are to think that rights constitute prima facie (and sometimes merely prima facie) moral considerations. If one holds rights to be correlative with duties, and duties to be prima facie; if one is impressed by the problem of specifying the content of rights, when rights are not treated as prima facie moral considerations; if one accepts the possibility of conflicts of rights but rejects the possibility of irresolvable moral dilemmas - if any of these apply to one, as they do to me, then one will have reason to accept that (3) falls short of (4).
Shelly Kagan, “Causation and Responsibility” (American Philosophical Quarterly 25 (1988): 293–302), p. 299.
Ibid.
Ibid.
Ibid.
Thomson 1, pp. 201-2. “A” and “B” have been intersubstituted to conform with earlier formulae.
Of course, for this claim to be plausible, it would have to be qualified. One can owe compensation in the absence of infringing a right - when a bill becomes due, for instance. Thomson is quite aware of this (Thomson 1, p. 77).
Judith Jarvis Thomson,The Realm of Rights (Cambridge: Harvard University Press, 1990), pp. 273–74. Henceforth I shall refer to this book as “Thomson 2.”
Thomson 2, p. 262.
Thomson 2, p. 250.
What appeal does the Limits Thesis have? What, at any rate, are Thomson's reasons for endorsing it? She confesses herself unable to prove it true (Thomson 2, p. 280) but embraces it after having conducted a survey of the relevant normative terrain. In particular, she rules out as genuine claims various candidates that others have proposed (such as a claim not to be coerced or a claim against eavesdropping). I find her discussion persuasive, but this is not the occasion to attempt to evaluate it.
Thomson 2, p. 215.
Utilitarianism, unadorned, would appear to have this implication.
See Michael J. Zimmerman, op. cit. pp. 40–47.
Contrast the case of being a male sibling. Being a male is (necessary but) not sufficient for being a brother, and being a sibling is likewise (necessary but) not sufficient for being a brother, but being a male sibling is (both necessary and) sufficient for being a brother. Here, though, there seems to be no mystery; it is plain to see that nothing more is required for being a brother than the conjunction of these two conditions. But the case at hand is not like this. Plainly, having the capacities to have duties and to compensate is (necessary but) not sufficient for having a duty to compensate; in addition, having caused harm is not sufficient (nor is it necessary) for having this duty. But, in addition, it seems that it is not plain to see that nothing more is required for having this duty than the conjunction of these two conditions.
I know of no common term for the neutral mode. In Zimmerman, op. cit., pp. 61–62, it is referred to as “indifference-worthiness.”
See Graham Haydon, “On Being Responsible” (Philosophical Quarterly 28 (1978): 46–57), for further discussion of this.
Bernard Williams,Moral Luck (Cambridge: Cambridge University Press, 1981), pp. 27–30.
The matter is complicated by the fact that there are a number of relevant emotions to be taken into account, in particular those of remorse and shame as well as regret. See Irving Thalberg, “Remorse” (Mind 72 (1963): 545-55); Leonard Boonin, “Guilt, Shame and Morality” (Journal of Value Inquiry 17 (1983): 295–304); Gabrielle Taylor,Pride, Shame, and Guilt (Oxford: Clarendon Press, 1985); and Zimmerman, op. cit., pp. 134-35.
Here “not culpable” is to be understood to be tantamount to “inculpable.” See note 28 below.
Thomson 2, p. 108.
Unless one can bear responsibility, one is merely not culpable rather than inculpable. People are innocent; chairs are not.
It may seem that the following is a counterexample to the general principle invoked here. Suppose that C is the property of being a faculty member and D is the property of being a department chairman. It may be that regular faculty members must teach three courses but department chairmen only one, and yet all department chairmen are faculty members. The proper response to this is that the duty to teach three courses isn't grounded in C alone; it is grounded in C-minus-D, that is, in the property of being a “regular” faculty member, as opposed to a faculty member who is also a department chairman. At best, then, this gives support to the view that a duty to compensate is grounded in G1-minus-G2; but those who advocate (1d) don't restrict its application to those few people (if any) who can have duties but not bear responsibility.
For a classic discussion, see H. L. A. Hart,Punishment and Responsibility (Oxford: Clarendon Press, 1968), especially chapters 6 and 7.
Punishment may involve an especially vile form of suffering, and so strict liability to punishment in particular may be especially repugnant, but that does not alter the present point. As Honore (someone who defends (1d)) says: “[W]e do not think that in criminal law the innocent who lackmens rea should be fined rather than imprisoned. We think they should be acquitted.” See Tony Honore, “Responsibility and Luck” (Law Quarterly Review 104 (1988): 530-53), at 534.
Tony Honoré, op. cit.“Responsibility and Luck” (Law Quarterly Review 104 (1988), pp. 540–41.
Tony Honoré, op. cit.“Responsibility and Luck” (Law Quarterly Review 104 (1988), p. 542.
See Michael J. Zimmerman, op. cit. pp. 178.
The force of this observation extends beyond the rejection of (1d). Some may seek to ground A's duty to compensate B not, as (1d) does, in A's having infringed a right of B's in causing B a loss, but in A's having caused B a loss in some other way. For example, it might be claimed that property rights are best understood not in terms of one's having a right that others not make unauthorized use of one's property, but rather in terms of one's having a right that others not make such use of one's property unless such use is a matter of “necessity,” in which case one has a right to compensation for the use. If so, then, contrary to what Feinberg and Thomson say, no infringement of a right occurs in the cabin-case; still, compensation is called for. There may be something to this view, but it cannot be accepted without qualification. For the protection that innocence warrants when A inculpably causes B a loss is warranted whether or not A thereby infringes a right of B's. Hence, if the foregoing argument against (1d) is sound, it can be similarly argued that A must waive his right not to be forced to compensate B if he is to have a duty to B to do so, whether or not his causing B a loss constitutes an infringement of a right of B's.
Tony Honoré, op. cit.“Responsibility and Luck” (Law Quarterly Review 104 (1988), p. 543.
Cf. Coleman, op. cit., pp. 174-82.
Just how “implicit” can an agreement be and still ground a duty to abide by it?
Thomson 1, pp. 202-3. If is not clear to me that what Thomson says here accords with what most people would say. If your guest breaks your wine glass quite by accident and without negligence - everyone is saying “Cheers!” and clinking glasses; he clinks his glass no harder than the others, but only the glass that he holds breaks - would you not expect him to offer to replace it (even if you would, graciously, decline the offer)? And what if the object were much more valuable? Would you be content to say, wittily, “Those are the breaks!” and leave it at that? Perhaps, though, these don't count as “freak” accidents.
Thomson 1, pp. 64–65.
In certain of her writings, Thomson appears to suggest that a rights-infringement cannot be unwitting (see her “Causality and Rights: Some Preliminaries” (Chicago-Kent Law Review 63 (1987): 471-96)), but at other times she clearly allows for this possibility (see Thomson 2, p. 229). I think that we should accept the possibility; at least, we should accept that it is possible that someone should unwittingly fail to fulfill his duty to accord someone else that to which the latter has a right (whether or not we call this a matter of “infringement”).
Shelly Kagan, op. cit.“Causation and Responsibility” (American Philosophical Quarterly 25 (1988): 293–302), pp. 298-99.
Michael J. Zimmerman, op. cit., pp. 164–79.
See Coleman, op. cit., p. 185; see also his “On the Moral Argument for the Fault System” (Journal of Philosophy 71 (1974): 473-90), esp. 484 and 490.
Versions of this paper were presented to audiences in Chapel Hill and Davidson. I am grateful to all those who made comments on those occasions, and in particular to Angela Curran, Irwin Goldstein, Roderick Long, Gerry Postema, Andy Reath, Geoff Sayre-McCord, and David Schmidtz. I am grateful also to Doug Husak and, especially, Terry McConnell for comments made on other occasions. Finally, I am grateful to an anonymous referee for some penetrating and helpful comments.
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Zimmerman, M.J. Rights, compensation, and culpability. Law Philos 13, 419–450 (1994). https://doi.org/10.1007/BF02350478
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DOI: https://doi.org/10.1007/BF02350478