It could be argued that tort law is failing, and arguably an example of this failure is the recent public liability and insurance (‘PL&I’) crisis. A number of solutions have been proposed, but ultimately the chosen solution should address whatever we take to be the cause of this failure. On one account, the PL&I crisis is a result of an unwarranted expansion of the scope of tort law. Proponents of this position sometimes argue that the duty of care owed by (...) defendants to plaintiffs has expanded beyond reasonable levels, such that parties who were not really responsible for another’s misfortune are successfully sued, while those who really were to blame get away without taking any responsibility. However people should take responsibility for their actions, and the only likely consequence of allowing them to shirk it is that they and others will be less likely to exercise due care in the future, since the deterrents of liability and of no compensation for accidentally self-imposed losses will not be there. Others also argue that this expansion is not warranted because it is inappropriately fueled by ‘deep pocket’ considerations rather than by considerations of fault. They argue that the presence of liability insurance sways the judiciary to award damages against defendants since they know that insurers, and not the defendant personally, will pay for it in the end anyway. But although it may seem that no real person has to bear these burdens when they are imposed onto insurers, in reality all of society bears them collectively when insurers are forced to hike their premiums to cover these increasing damages payments. In any case, it seems unfair to force insurers to cover these costs simply because they can afford to do so. If such an expansion is indeed the cause of the PL&I crisis, then a contraction of the scope of tort liability, and a pious return to the fault principle, might remedy the situation. However it could also be argued that inadequate deterrence is the cause of this crisis. On this account the problem would lie not with the tort system’s continued unwarranted expansion, but in the fact that defendants really have been too careless. If prospective injurers were appropriately deterred from engaging in unnecessarily risky activities, then fewer accidents would ever occur in the first place, and this would reduce the need for litigation at its very source. If we take this to be the cause of tort law’s failure then our solution should aim to improve deterrence. Glen Robinson has argued that improved deterrence could be achieved if plaintiffs were allowed to sue defendants for wrongful exposure to ongoing risks of future harm, even in the absence of currently materialized losses. He argues that at least in toxic injury type cases the tortious creation of risk [should be seen as] an appropriate basis of liability, with damages being assessed according to the value of the risk, as an alternative to forcing risk victims to abide the outcome of the event and seek damages only if and when harm materializes. In a sense, Robinson wishes to treat newly-acquired wrongful risks as de-facto wrongful losses, and these are what would be compensated in liability for risk creation (‘LFRC’) cases. Robinson argues that if the extent of damages were fixed to the extent of risk exposure, all detected unreasonable risk creators would be forced to bear the costs of their activities, rather than only those who could be found responsible for another’s injuries ‘on the balance of probabilities’. The incidence of accidents should decrease as a result of improved deterrence, reduce the ‘suing fest’, and so resolve the PL&I crisis. So whilst the first solution involves contracting the scope of tort liability, Robinson’s solution involves an expansion of its scope. However Robinson acknowledges that LFRC seems prima facie incompatible with current tort principles which in the least require the presence of plaintiff losses, defendant fault, and causation to be established before making defendants liable for plaintiffs’ compensation. Since losses would be absent in LFRC cases by definition, the first evidentiary requirement would always be frustrated, and in its absence proof of defendant fault and causation would also seem scant. If such an expansion of tort liability were not supported by current tort principles then it would be no better than proposals to switch accident law across to no-fault, since both solutions would require comprehensive legal reform. However Robinson argues that the above three evidentiary requirements could be met in LFRC cases to the same extent that they are met in other currently accepted cases, and hence that his solution would therefore be preferable to no-fault solutions as it would only require incremental but not comprehensive legal reform. Although I believe that actual losses should be present before allowing plaintiffs to seek compensation, I will not present a positive argument for this conclusion. My aim in this paper is not to debate the relative merits of Robinson’s solution as compared to no-fault solutions, nor to determine which account of the cause of the PL&I crisis is closer to the truth, but rather to find out whether Robinson’s solution would indeed require less radical legal reform than, for example, proposed no-fault solutions. I will argue that Robinson fails to show that current tort principles would support his proposed solution, and hence that his solution is at best on an even footing with no-fault solutions since both would require comprehensive legal reform. (shrink)

When states are required to compensate victim groups for the historic wrongs they have committed, how should the compensation due be calculated? It seems that alongside the counterfactual world in which the wrongdoing never occurred, we should also consider the counterfactual world in which the wrongdoing has occurred, but the victims have responded to it in a prudent way. Under tort law, the damages a victim can claim are reduced if they are judged to have been contributorily negligent, thereby (...) exacerbating the harm they have suffered. The paper considers four reasons why victim groups could not be expected to respond collectively to injustice in a way that outsiders might judge to be prudent. 1. The wrongdoing has destroyed their capacity to act as a group agent. 2. The wrongdoing has inflicted psychological traumas that lead them to make poor decisions. 3. They would need to violate a moral norm that is deeply embedded in their culture. 4. They would need to adopt policies that risk inflicting severe injustice on an internal minority. In many instances of historic injustice, one or more of these reasons apply. So although in principle victims’ behaviour is relevant when compensation is being calculated, we must be very cautious in using that doctrine to assess real cases. (shrink)

This paper offers a critique of recent attempts, by George Sher and others to justify compensation to be paid to descendants of deceased victims of past wrongs. This recent attempt is important as it endeavours to avoid some well-known critiques of previous attempts, such as the non-identity problem. Furthermore, this new attempt is grounded in individual rights, without invoking a more controversial collectivist assumption. The first step in this critique is to differentiate between compensation and restitution. Once this important (...) distinction is clear, an examination of several factors follows: the importance of the passage of time vis-à-vis claims for compensation and/or restitution, the responsibility of the would be payers, the responsibility of the descendants of the victims, the welfare level of the descendants of the victims, information-related issues, and several additional factors. The conclusion is that once we take into account the distinction between compensation and restitution, and the additional factors mentioned, the case for compensation and/or restitution under the ‘continuing injustice argument’, is highly limited. (shrink)

Can compensation repair the moral harm of a previous wrongful act? On the one hand, some define the very function of compensation as one of restoring the moral balance. On the other hand, the dominant view on compensation is that it is insufficient to fully repair moral harm unless accompanied by an act of punishment or apology. In this paper, I seek to investigate the maximal potential of compensation. Central to my argument is a distinction between apologetic compensation and non-apologetic (...) compensation. Apologetic compensation, I argue, is an act that expresses regret and apology by means of some offer of money, goods, or services. Non-apologetic compensation is an act that seeks to restore loss or harm without expressing regret or apology. In the paper, I defend the view that acts of compensation can be apologetic and argue that such apologetic compensation is sufficient for moral repair. (shrink)

People react negatively not only to injustices they personally endure but also to injustices that they observe as bystanders at work—and typically, people observe more injustices than they personally experience. It is therefore important to understand how organizations can restore observers’ perceptions of justice after an injustice has occurred. In our paper, we employ a policy capturing design to test and compare the restorative power of monetary compensation, procedure changes and apologies, alone and in combination, from the perspective of third (...) parties. We extend previous research on remedies by including different degrees of compensation and procedural changes, by comparing the effects of sincere versus insincere apologies and by including apologies from additional sources. The results indicate that monetary compensation, procedure changes, and sincere apologies all have a significant and positive effect on how observers perceive the restoration of justice. Insincere apologies, on the other hand, have no significant effect on restoration for third parties. Procedural changes were found to have the strongest remedial effects, a remedy rarely included in previous research. One interpretation of this finding could be that observers of injustice prefer solutions that are not short sighted: changing procedures avoids future injustices that could affect other people. We found that combinations of remedies, such that the presence of a second remedy strengthens the effect of the first remedy, are particularly effective. Our findings regarding interactions underline the importance of studying and administering remedies in conjunction with each other. (shrink)

I broadly explore the question by examining several common criticisms of CEO pay through both philosophical and empirical lenses. While some criticisms appear to be unfounded, the analysis shows not only that current compensation practices are problematic both from the standpoint of distributive justice and fairness, but also that incentive pay ultimately exacerbates the very agency problem it is purported to solve.

A "wrongful life" suit is based on the purported tortious liability of a genetic counsellor towards an infant with hereditary defects, with the latter asserting that he or she would not have been born at all if not for the counsellor's negligence. This negligence allegedly lies in the failure on the part of the defendant adequately to advice the parents or to conduct properly the relevant testing and thereby prevent the child's conception or birth. This paper will offer support for (...) the thesis that it would be both feasible and desirable to endorse "wrongful life" compensation actions. The genetic counsellor owed a duty of due professional care to the impaired newborn who now claims that but for the counsellor's negligence, he or she would not have been born at all. The plaintiff's defective life constitutes a compensable injury. A sufficient causal link may exist between the plaintiff's injury and the defendant's breach of duty of due professional care and an appropriate measure of damages can be allocated to the disabled newborn. Sanctioning a "wrongful life" cause of action does not necessarily entail abandoning valuable constraints with regard to abortion and euthanasia. Nor does it inevitably lead to an uncontrolled slide down a "slippery slope". (shrink)

In "Should Race Matter?," David Boonin proposes the compensation principle: When an agent wrongfully harms another person, she incurs a moral obligation to compensate that person for the harms she has caused. Boonin then argues that the United States government has wrongfully harmed black Americans by adopting pro-slavery laws and other discriminatory laws and practices following the end of slavery, and therefore the United States government has an obligation to pay reparations for slavery and discriminatory laws and practices to those (...) who have been harmed by them - in particular, to contemporary black Americans. Here I argue that the compensation principle is false because it violates the control principle, the foundational principle of ethics that states that moral responsibility requires control; for an agent to be morally responsible for something, whether or not she does that thing must be within her control. If the compensation principle creates a moral obligation for an agent to compensate a harmed party, failure to do so will result in that agent's being morally blameworthy for failing in her obligation. Because some harms cannot be compensated for, agents who wrongfully harm others will be required to do something that is outside of their control. (shrink)

This is the first book to argue in favor of paying people for their blood plasma. It does not merely argue that offering compensation to plasma donors is morally permissible. It argues that prohibiting donor compensation is morally wrong--and that it is morally wrong for all of the reasons that are offered against allowing donor compensation. Opponents of donor compensation claim that it will reduce the amount and quality of plasma obtained, exploit and coerce donors, and undermine social cohesion. James (...) Stacey Taylor argues that empirical evidence demonstrates that compensating plasma donors greatly increases the amount of plasma obtained with no adverse effects on the quality of the pharmaceutical products that are manufactured from it. Prohibiting compensation thus harms patients by reducing their access to the medicines they need. He also argues that it is the prohibition of compensation--not its offer--that exploits donors, fails to respect the moral need to secure a person's authoritative consent to her treatment, and prevents donors from giving their informed consent to donate. Prohibiting compensation thus not only harms patients--it wrongs donors. Bloody Bioethics will appeal to researchers, advanced students, and medical professionals interested in bioethics, moral philosophy, and the moral limits of markets. (shrink)

It is more or less uncontroversial that when we harm someone through wrongful conduct we incur an obligation to compensate her. But sometimes compensation is impossible: when the victim is killed, for example. Other times, only partial compensation is possible. In this article, I take some initial steps towards exploring this largely ignored issue. I argue that the perpetrator of a wrongful harm incurs a duty to promote the impartial good in proportion to the amount of harm that cannot be (...) made up for by compensating her victim. (shrink)

The extent to which English law remedies injury to autonomy as a stand-alone actionable damage in negligence is disputed. In this article I argue that the remedy available is not only partial and inconsistent but also gendered and discriminatory against women. I first situate the argument within the broader feminist critique of tort law as failing to appropriately remedy gendered harms, and of law more broadly as undervaluing women’s interest in reproductive autonomy. I then show by reference to English remedies (...) law’s first principles how imposed motherhood cases—Rees v Darlington and its predecessor McFarlane v Tayside Health Board—result in gender injustice when compared with other autonomy cases such as Chester v Afshar and Yearworth v North Bristol NHS Trust: A minor gender-neutral ITA is better remedied than the significant gendered harm of imposing motherhood on the claimant; men’s reproductive autonomy is protected to a greater extent than women’s; women’s reproductive autonomy is protected by an exceptional, derisory award. Worst of all, courts refuse to recognise imposed motherhood as detriment; and the deemed, mansplained, nonpecuniary joys of motherhood are used to offset pecuniary upkeep costs, forcing the claimant into a position she sought to avoid and thus further undermining her autonomy. The recent Singaporean case ACB v Thomson Medical Pte Ltd, awarding compensation for undermining the claimant’s genetic affinity in an IVF wrong-sperm-mix-up demonstrates some improvement in comparison to English law, and some shared gender injustices in the context of reproductive autonomy. ACB’s analysis is oblivious to the nature of reproductive autonomy harm as gendered; and prioritises the father’s interest in having genetic affinity with the baby over a woman’s interest in not having motherhood imposed upon her. (shrink)

_ Source: _Page Count 20 According to the fair play defense of political obligations citizens have a reciprocity-based duty to share the costs involved in the production of public goods. But sometimes, states produce collective goods through wrongdoing. For example, sometimes states’ wrongful immigration policies can contribute to the welfare of their own populations. Do citizens have duties of reciprocity in light of such wrongful benefits? I argue that the answer to this question is negative. Drawing on the observation that (...) beneficiaries of wrongdoing incur compensatory duties to the victims of that wrongdoing, I argue that, rather than having a duty of reciprocity for wrongful benefits, citizens have a duty to disgorge the benefits in compensation. Furthermore, the fair play defense of political obligations entails that citizens can be justified in disobeying the law in order to comply with their compensatory duties to victims of their state’s wrongdoing. (shrink)

Because of its practical advantages, machine learning (ML) is increasingly used for decision-making in numerous sectors. This paper demonstrates that the integral characteristics of ML, such as semi-autonomy, complexity, and non-deterministic modeling have important ethical implications. In particular, these characteristics lead to a lack of insight and lack of comprehensibility, and ultimately to the loss of human control over decision-making. Errors, which are bound to occur in any decision-making process, may lead to great harm and human rights violations. It is (...) important to have a principled way of assigning responsibility for such errors. The integral characteristics of ML, however, pose serious difficulties in defining responsibility and regulating ML decision-making. First, we elaborate on these characteristics and their epistemic and ethical implications. We then analyze possible general strategies for resolving the assignment of moral responsibility and show that, due to the specific way in which ML functions, each potential solution is problematic, whether we assign responsibility to humans, machines, or using hybrid models. Then, we shift focus on an alternative approach that bypasses moral responsibility and attempts to define legal liability independently through solutions such as informed consent and the no-fault compensation system. Both of these solutions prove unsatisfactory because they leave too much room for potential abuses of ML decision-making. We conclude that both ethical and legal solutions are fraught with serious difficulties. These difficulties prompt us to re-weigh the costs and benefits of using ML for high-stake decisions. (shrink)

According to the fair play defense of political obligations citizens have a reciprocity-based duty to share the costs involved in the production of public goods. But sometimes, states produce collective goods through wrongdoing. For example, sometimes states’ wrongful immigration policies can contribute to the welfare of their own populations. Do citizens have duties of reciprocity in light of such wrongful benefits? I argue that the answer to this question is negative. Drawing on the observation that beneficiaries of wrongdoing incur compensatory (...) duties to the victims of that wrongdoing, I argue that, rather than having a duty of reciprocity for wrongful benefits, citizens have a duty to disgorge the benefits in compensation. Furthermore, the fair play defense of political obligations entails that citizens can be justified in disobeying the law in order to comply with their compensatory duties to victims of their state’s wrongdoing. (shrink)

Rights to compensation are much invoked and much disputed in recent liberal debates. The disputes are generally about supposed fundamental rights to compensation, whose recognition and legal enactment would transform some lives. For example, special treatment in education or employment are claimed as compensation for past denials of equal opportunity; special consideration for Third World countries in aid and trade terms is claimed as compensation for the injustices of the colonial past. We can make ready sense of the idea of (...) legal rights to compensation. Legal rights to compensation guarantee recompense for damage suffered. The damage for which compensation is given may or may not be produced by wrongdoing; it may also be negligent or accidental or due to natural causes. In law, compensation is not always contingent upon the victim having suffered injury as well as harm, nor upon saddling a wrong-doer with the costs of compensation. Insurance policies standardly cover damage due to accident and neglect. Legal rights to compensation may provide for payments to victims of violent crime, to those whose property is requisitioned or damaged, to victims of libel or malpractice, and even to victims of natural disasters such as floods or earthquakes. Legal rights to compensation are a standard way of dealing with the predicament of those who become victims, whether of others' action, of their own negligence, or of natural catastrophe. None of this shows that there are fundamental rights to compensation. Legal rights to compensation may lack moral grounding: and if they are morally grounded, they may rest not on fundamental rights to compensation, but on background positions in which rights are derivative or inessential. (shrink)

ABSTRACT:If an employee is committed to his firm—if he is “attached” or “bound” to it—then his firm may be able to obtain a discount on his labor. This paper asks: Is it wrong for firms to do so? If we understand just or fair pay solely in terms of voluntary agreements between employers and employees, the answer seems to be ‘no.’ Against this, I argue that, in some cases, it is ‘yes.’ In particular, it is wrong for firms to try (...) to obtain discounts on their committed employees’ labor when their employees reasonably expect that they will not try to obtain them. In the process, I probe the limits of exploitation and question the relevance of contribution to fairness in compensation. (shrink)

I address an issue that arises for rights theories that recognize rights to compensation for rightsintrusions. Do individuals who never pose any risk of harm to others have a right, against a rightsintruder, to full compensation for any resulting intrusion-harm, or is the right limited in some way by the extent to which the intruder was agent-responsible for the intrusion-harm (e.g., the extent to which the harm was a foreseeable result of her autonomous choices)? Although this general issue of strict (...) liability vs. fault liability has been much analyzed and debated, there is a promising position that, to the best of my knowledge, has not been much discussed. This is the view that (1) when the intruder is agent-responsible for violating the rights (e.g., does so knowingly), she owes the intrudee compensation for the entire intrusion-harm, but (2) when the intruder is not agentresponsible for wrongly intruding upon the rights (because the intrusion was not wrong or because the intruder could not reasonably have known it was wrong), then she owes the intrudee compensation only for the intrusion-harm for which she is agent-responsible (and not, for example, harm that she could not have reasonably foreseen). I shall develop and motivate this position without attempting a full defense. Throughout, I focus on the rights of the intrudee, against the intruder, to compensation and the correlative duty of the intruder to the intrudee. I’m pleased and honored to have this paper included in this collection in honor of Hillel Steiner. Much of what I know about rights and libertarianism I learned from him – both from his written works and from his very helpful correspondence over the years. Moreover, his intellectual rigor, honesty, and modesty have been a source of inspiration. Although Hillel has not written extensively on compensation for intrusion-harms, it is a topic central to his view of justice, as it is to mine. (shrink)

The paper argues that there are resources within theories of corrective justice to make the case against the deportation of immigrants, including those accused of committing criminal actions. More specifically, the argument defended here is that a nation acts impermissibly by deporting criminal immigrants who belong to countries that the nation itself wronged in a manner that contributed to create the migratory flow that led the immigrants in question there. In that case, admission and, equally important, permanent residence in the (...) host nation must be understood as a form of compensation for past wrongs, the interruption of which represents a breach of its duties of rectification, and is therefore unjust. Put in slightly different terms, some migrants have a retributive right-claim against their host state (which they may or may not exercise) to be admitted into the host state and not be deported. (shrink)

Local opposition to infrastructure projects implementing renewable energy (RE) such as wind farms is often strong even if state-wide support for RE is strikingly high. The slogan “Not In My BackYard” (NIMBY) has become synonymous for this kind of protest. This paper revisits the question of what is wrong with NIMBYs about RE projects and how to best address them. I will argue that local opponents to wind farm (and other RE) developments do not necessarily fail to contribute their fair (...) share to producing a desirable public good (clean energy). In fact, with landscape concerns being at the heart of much protest, the question of fair burden distribution becomes sidelined: landscape impacts cannot be distributed nor compensated for. Protests may be attempts to express a true conflict of (incommensurable) values. Understanding them as such will help us better address NIMBY concerns and overcome such opposition through ensuring procedural justice. (shrink)

This paper examines the ethics of contemporary managerial compensation in the context of executive stock options. Economic considerations would dictate that executive stock options should be adjusted to eliminate the effect of overall stock market movements which are beyond the control of the executive. However, in practice, most executive stock options are not adjusted to control for these outside factors. Agency considerations are the most likely culprit. Adjusting for the influence of outside factors, such as a generally rising stock market, (...) from executive stock options sets a higher bar for managers to reach. Furthermore, traditional accounting standards permitted firms that did not adjust options to avoid reporting options as expenses. This presents CEOs and boards of directors with a major ethical dilemma. On the one hand, their duty to their shareholders and stakeholders dictates that executive stock options should be adjusted to eliminate outside noise from unrelated movements in the overall stock market. However, financial statements are presented in the language of accounting. If the overwhelming majority of the users of a language define a particular item in one way, then to deviate from the norm implies that the recipient of such a deviant statement may not properly interpret the statement. Likewise, if the standard practice is for firms to use unadjusted options and thus under-report expenses, to deviate from this industry norm risks that users of financial statements would not properly interpret the financial statements, with perhaps negative consequences for the shareholders. In short, if "everyone else does it," then it could be wrong for an individual firm to deviate from the norm as that would harm the shareholders. (shrink)

Currently living people cannot be said to be wronged because of the wrongless emissons of greenhouse gases by past people. According to the usual subjunctive-historical understanding of harm, currently living people cannot be said to be harmed by the impact of greenhouse emissions on their well-being. By relying on a subjunctive-threshold notion of harm we can justify conclusions about both the present generation’s duties not to violate the rights of future generations, and the present generation’s duties to compensate currently living (...) people for the harms inflicted upon them through the lasting impact of wrongless past harms. This interpretation supports a forward-looking understanding of the grounds of our relating to wrongless past harms. The significance of past harms lies in their consequences for the well-being of currently living and future people. The subjunctive-threshold notion of harm lends support to a standard of minimal, general, and universal justice. Those actors who are in a position to fulfill its requirements are under a duty to do so. Especially the rich and powerful countries ought to counteract the harmful impact of past greenhouse emissions. (shrink)

Critics of commodification object to sales but not gifts of some goods, such as human blood or human organs, on grounds that such trade wrongly coerces, morally corrupts, and crowds out altruism. This essay takes issues with each of these claims. It disputes Micheal Sandel’s claim that voluntary exchange coerces, arguing that he confuses what is unfair with what is unfree. It argues, where trade does create moral costs, that these costs should be weighed against the moral costs of trade (...) bans, such as the loss of human life, and the harms endemic to illegal markets. The essay also quarrels with Richard Titmuss’s The Gift Relationship, arguing that compensation for blood need not crowd out blood donation, that compensation does not preclude a charitable impulse, and that some important gift relationship posses elements of altruism and exchange.Ceux qui critiquent la marchandisation sont contre la vente mais pas contre le don de certains biens comme le sang ou les organes humains parce qu’un tel commerce exercerait une contrainte, corromprait morallement, et ne laisserait pas de place à l’altruisme. Ce papier traite de chacune de ces affirmations. Il consteste l’affirmation de Micheal Sandel selon laquelle l’échange volontaire exerce une contrainte, en suggérant qu’il confond ce qui injuste avec ce qui n’est pas libre. Si le commerce entraîne des coûts moraux, cet essai suggère que ces coûts devraient être comparés avec les coûts moraux associés aux interdictions de commerce tels que la perte de la vie humaine et ceux associés aux maux endémiques des marchés illégaux. Il critique aussi l’ouvrage de Richard Titmuss, “The Gift Relationship” en suggérant que les compensations monétaires en échange d’un don de sang n’évincent pas nécessairement le don de sang, qu’elles n’empêchent pas les impulsions charitables, et que d’importants actes de don comportent des éléments d’altruisme et d’échange. (shrink)

Biodiversity offsetting is an increasingly popular policy instrument used to compensate for losses in biodiversity and ecosystem services caused by development projects. Although evidence suggests that offsetting can yield significant environmental benefits, application of the policy instrument is surrounded by controversy. Among other things, critics argue that offsetting builds on normatively contentious assumptions regarding the value of nature and the fungibility of biodiversity components, such as species, habitats, ecosystems, and landscapes. A large portion of the criticism targets the allegedly illegitimate (...) commodification of nature that the policy instrument entails. Exploring the significantly more developed normative discussion on carbon offsetting, this article identifies four arguments that plausibly could be made to support the claim that it is wrong to commodify nature in the way biodiversity offsetting schemes do: the common ownership argument, the price argument, the non‐substitutability argument, and the “crowding out” argument. Although none of the arguments definitively invalidate the use of biodiversity offsets, they provide good reasons to proceed with caution when designing and implementing them. (shrink)

Our century has witnessed violence on an unprecedented scale, in wars that have torn deep into the fabric of national and international life. And as we can see in the recent strife in Bosnia, genocide in Rwanda, and the ongoing struggle to control nuclear weaponry, ancient enmities continue to threaten the lives of masses of human beings. As never before, the question is urgent and practical: How can nations--or ethnic groups, or races--after long, bitter struggles, learn to live side by (...) side in peace? In An Ethic for Enemies, Donald W. Shriver, Jr., President Emeritus of Union Theological Seminary, argues that the solution lies in our capacity to forgive. Taking forgiveness out of its traditional exclusive association with personal religion and morality, Shriver urges us to recognize its importance in the secular political arena. The heart of the book examines three powerful and moving cases from recent American history--our postwar dealings with Germany, with Japan, and our continuing domestic problem with race relations--cases in which acts of forgiveness have had important political consequences. Shriver traces how postwar Germany, in its struggle to break with its political past, progressed from denial of a Nazi past, to a formal acknowledgement of the crimes of Nazi Germany, to providing material compensation for survivors of the Holocaust. He also examines the efforts of Japan and the United States, over time and across boundaries of race and culture, to forgive the wrongs committed by both peoples during the Pacific War. And finally he offers a fascinating discussion of the role of forgiveness in the American civil rights movement. He shows, for instance, that even Malcolm X recognized the need to move from contempt for the integrationist ideal to a more conciliatory, repentant stance toward Civil Rights leaders. Malcolm came to see that only through forgiveness could the separate voices of the African-American movement work together to achieve their goals. If mutual forgiveness was a radical thought in 1964, Shriver reminds us that it has yet to be realized in 1994. "We are a long way from ceasing to hold the sins of the ancestors against their living children," he writes. Yet in this poignant volume, we discover how, by forgiving, enemies can progress and have progressed toward peace. A timely antidote to today's political conflicts, An Ethic for Enemies challenges to us to confront the hatreds that cripple society and threaten to destroy the global village. (shrink)

The use of reproductive techniques and the eventual reproductive negligence from the provider of reproductive services gave rise to situations in which the intended parents are deprived of raising a child genetically connected to them. Courts have been dealing with cases of those for years, but have systemically denied claimants compensation, failing to recognise as damage the loss of genetic connection. In 2017, for the first time, the Singapore High Court provided compensation for that damage, labelled “loss of genetic affinity”. (...) This paper will argue that the damage in question is the loss of genetic connection and results from a violation of reproductive rights because a key element of reproductive rights is to have children with whom we keep a genetic bond and raise them. The paper will explain why the arguments classically argued against such compensation are unfounded and it will argue for a compensation covering both patrimonial and non-patrimonial damages. (shrink)

This article addresses the question of whether present day individuals can inherit rights to compensation from their ancestors. It argues that contemporary writing on compensatory justice in general, and on the inheritability of rights to compensation in particular, has mischaracterized what is at stake in contexts where those responsible for wrongdoing continually refuse to make reparation for their unjust actions, and has subsequently misunderstood how later generations can advance claims rooted in the past mistreatment of their forebears. In particular, a (...) full consideration of the wrongful character of non-rectification needs to take account of the multiplicity of temporal points at which compensation could have been, but was not, paid, each with potentially significant consequences for the victims of injustice. This has relevance for what is owed to those who have been wrongfully denied compensation for wrongs that caused them direct harm, and can be extended to others, such as their direct heirs, who are likewise affected by non-rectification. This opens the door to the endorsement of potentially extensive contemporary claims on behalf of the heirs of victims of wrongdoing. (shrink)

How can we respond in the aftermath of wrongdoing? How can social trust be restored in the wake of intense political conflict? In this challenging work, philosopher Trudy Govier explores central dilemmas of political reconciliation, employing illustrative material from Rwanda, Sierra Leone, South Africa, Australia, Canada, Peru, and elsewhere. Govier stresses that reconciliation is fundamentally about relationships. Whether through means of truth commissions, apologies, community processes, or criminal trials, the basic goal of reconciliation is improved social trust among alienated individuals (...) and groups. A major strength of Govier's approach is her creative practical framework for reflection. She explains that people should not to be identified with the roles they may have played, and she points out that, with reference to wrongs committed in political conflicts, individuals often play several roles. The perpetrators of some acts can be the victims of others; the victims in some circumstances may become responsive interveners in others. Rare is the political conflict in which one group commits all wrongs. Govier argues that, to build social trust and sustainable peace, acknowledgment of past wrongs is crucial. The need for mutuality in acknowledgment is an underappreciated aspect of the aftermath of conflicts. She further examines the themes of responsibility ; apology; forgiveness; reparations; the rehabilitation of child soldiers; the problems of monetary compensation; and truth-telling and truth commissions. Govier's lucid style and willingness to explore counterarguments make this a lively and thought-provoking work. (shrink)

Injustices of the past cast a shadow on the present. They are the root cause of much harm, the source of enmity, and increasingly in recent times, the focus of demands for reparation. In this groundbreaking philosophical investigation, Janna Thompson examines the problems raised by reparative demands and puts forward a theory of reparation for historical injustices. The book argues that the problems posed by historical injustices are best resolved by a reconciliatory view of reparative justice and an approach that (...) explains how people acquire intergenerational responsibilities and entitlements. It ranges in its subject matter from the claims of indigenous people to land stolen from their ancestors to the growing movement for reparations for slavery. The book provides an original and convincing answer to the questions of how citizens can have reparative responsibilities for wrongs committed before they were born, and why descendants of victims may be entitled to compensation for historical injustices such as slavery. It also explains how members of nations can make recompense for injustices of the past without ignoring the inequities of the present.Taking Responsibility for the Past is a significant contribution to philosophical and legal debates about reparative justice, and at the same time an accessible and thought-provoking book for general readers. (shrink)

Adherents to reconciliation, restorative justice, and related approaches to dealing with social conflict are well known for seeking to minimize punishment, in favor of offenders hearing out victims, making an apology, and effecting compensation for wrongful harm as well as victims forgiving offenders and accepting their reintegration into society. In contrast, I maintain that social reconciliation and similar concepts in fact characteristically require punishment but do not require forgiveness. I argue that a reconciliatory response to crime that includes punitive disavowal (...) but not necessarily forgiveness is supported by an analogy with resolving two-person conflict and by relational facets of human dignity. I also specify a novel account of the type of penalty that is justified by reconciliation, namely, burdensome labor that is likely to foster moral reform on the part of wrongdoers and to compensate their victims, which would serve neither retributive nor deterrent functions. I illustrate this conception of punishment in contexts that include having cheated on an exam at a university, engaged in criminal behavior such as robbery, and committed atrocities during large-scale social conflict. (shrink)

The controversial issue of whether Chief Executive Officer (CEO) compensation is excessive or appropriate is examined in terms of two competing claims: that CEOs are overpaid for the value they provide to an enterprise, and that CEO compensation is inherently equitable. Various arguments and perspectives on both sides of the issue are assessed. Little evidence supports the claim that CEO performance justifies very high compensation. Further, the complex interactive alliance between boards of directors and CEOs compromises rational decision-making about CEO (...) compensation, with the Enron affair offered as an illustration of what can go wrong when dishonest CEO actions combine with lax board oversight. Recommendations for restoring trust in the system include continuing current regulatory actions, using different metrics for determining CEO compensation, making board member-CEO relationships transparent to all company stakeholders, and several more radical ideas for change. Stakeholders must resist being distracted by other social, economic, or political issues from pursuing serious, lasting reform. (shrink)

In this wide-ranging investigation of leading issues in contemporary legal and political philosophy, distinguished philosophers and legal theorists tackle issues such as the rights of animals, the role of public-policy considerations in legal reasoning, the appropriateness of compensation as a means of rectifying mishaps and misdeeds, the extent of individuals' responsibility for the consequences of their choices, and the culpability of failed attempts to commit crimes.

If D commits a wrong against V, D typically incurs a corrective duty to V. But how should we respond if V has false beliefs about whether she is harmed by D’s wrong? There are two types of cases we must consider: those in which V is not harmed but she mistakenly believes that she is those in which V is harmed but she mistakenly believes that she is not. I canvass three views: The Objective View, The Subjective View and (...) The Mixed View. The Objective View holds that V’s claim depends on the correct account of harm, rather than her false beliefs, and so D has a duty to offer damages to V in but not in in order to compensate her. The Subjective View holds that, for broadly anti-perfectionist reasons, V’s claim depends on her sincere beliefs, even if they are mistaken, and so D has a duty to compensate V in but not in. The Mixed View holds that we should defer to her beliefs in but not in, so D has a duty to compensate her in both cases. In this article, I argue that we should accept The Mixed View. (shrink)

"International and domestic laws commonly hold states responsible for their wrongdoings. States pay compensation for their unjust wars, and reparations for their historical wrongdoings. Some argue that states should incur punitive damages for their international crimes. But there is a troubling aspect to these practices: States are corporate agents, comprised of flesh and blood citizens. When the state uses the public purse to finance its corporate liabilities, the burden falls on these citizens, even if they protested against the state's policies, (...) did not know about them, or entirely lacked channels of political influence. How can this "distributive effect" of state-level responsibly be justified? The book develops an answer to this question, which revolves around citizens' participation in their state. It argues that citizenship can be a type of massive collective action, where citizens willingly orient themselves around the authority of their state, and where state policies are the product of this collective action. While most ordinary citizens are not to blame for their participation in their state, they nevertheless ought to accept a share of the remedial obligations that flow from their state's wrongful policies. However, the distributive effect cannot be justified in all states. Specifically, in non-democratic states most citizens are not participating in their state in the full sense, and should not pay for their state's wrongdoings. This finding calls then for a revision of the way we hold states responsible in both the domestic and international levels"--. (shrink)

In The Metaphysics of Morals Kant suggests that the bad results of wrongful acts can always be imputed to the agent but the bad results of dutiful acts can never be. Although Kant's concern in the context was apparently legal imputation, the article considers how Kant's doctrine might apply to questions about moral responsibility for bad consequences in cases where legal enforcement is inappropriate. First , interpretative questions are addressed. For example, does imputation imply being to blame for bad results (...) or merely being liable to compensate for them? What are the criteria for bad results? What is the relation between assessments of responsibility for bad consequences and judgments of the moral worth or desert of the agent? Is the operative notion of "results" or "consequences" a descriptive or normative one? The suggestion is that liability, not blame, is what is crucial, and wrong-doers are responsible for whatever bad causally results from their misdeeds, whether it was foreseeable or not. Second , putative counter-examples to Kant's doctrine are evaluated: for example, cases where it seems an agent may be liable for bad consequences even when doing what is permissible, dutiful, or even meritorious. Although many of the objections fail to survive examination, there remain cases where bad results of a wrongful act cannot plausibly be imputed to the agent and other cases where the agent seems clearly liable for bad results despite having acted innocently. Such intuitive objections, however, must be reviewed from a larger perspective of a systematic moral theory. In der Metaphysik der Sitten nimmt Kant an, daß die schlechten Folgen einer pflichtwidrigen Handlung dem Handelnden stets zugerechnet werden können, im Gegensatz zu den schlechten Folgen pflichtgemäßer Handlungen, die dem Handelnden niemals zugerechnet werden können. Obwohl es Kant im Kontext der Metaphysik der Sitten offensichtlich auf die juridische Zurechnung ankommt, geht es im vorstehenden Beitrag um die Frage, ob sich Kants Lehre auf die moralische Verantwortlichkeit für schlechte Folgen in denjenigen Fällen übertragen läßt, in denen eine juridische Normdurchsetzung unpassend ist. Und zwar geht es erstens um eine angemessene Interpretation der einschlägigen Textstellen selbst. Etwa: Meint "Zurechnung", daß der Handelnde für die schlechten Folgen seiner Handlung zu tadeln ist, oder meint "Zurechnung" lediglich seine Haftung für den angerichteten Schaden? Was sind die Kriterien dafür, Folgen als "schlechte" Folgen zu bezeichnen? Welches Verhältnis besteht zwischen der Zurechnung von Verantwortlichkeit für schlechte Folgen und dem Urteil über den moralischen Wert oder das moralische Verdienst des Handelnden? Ist "Folge" als operativer Begriff deskriptiv oder normativ zu verstehen? Der Beitrag geht davon aus, daß Haftung, und nicht Tadel, das eigentlich Entscheidende ist und daß, wer pflichtwidrig handelt, für alles Schlechte verantwortlich ist, das von seinen Taten verursacht wird, und zwar gleichgültig, ob es vorhersehbar war oder nicht. Zweitens geht es um vermeintliche Gegenbeispiele zu Kants Theorie. Etwa: Es werden Fälle erörtert, bei denen es so zu sein scheint, daß der Handelnde auch für solche schlechten Folgen haftet, die aus einem erlaubten, einem pflichtgemäßen oder sogar aus einem verdienstlichen Handeln herrühren. Obwohl viele Einwände einer näheren Überprüfung nicht standhalten, gibt es doch Fälle, bei denen die Zurechnung der schlechten Folgen einer pflichtwidrigen Handlung immer noch als unplausibel, und andere Fälle, bei denen die Zurechnung der schlechten Folgen einer nicht pflichtwidrigen Handlung immer noch als notwendig erscheint. Solche intuitiven Einwände sind von dem höheren Standpunkt einer systematischen Moraltheorie aus zu beantworten. (shrink)

When it comes to how to hold people responsible for wrongdoing, much of the African philosophical tradition focuses on reconciliation as a final aim. This essay expounds an interpretation of reconciliation meant to have broad appeal, and then draws out its implications for responsibility in respect to three matters. First, when it comes to criminal justice, prizing reconciliation entails that offenders should be held responsible to “clean up their own mess,” i.e., to reform their characters and compensate victims in ways (...) they find burdensome, an approach to punishment that differs from deterrence and desert theories. Second, regarding civil justice, reconciliation means that holding responsible to compensate wrongful harm means improving victims’ quality of life in ways they accept, which contrasts with a common prescription to put victims in the condition they would have been in had the wrong not occurred. Third, reconciliation can involve putting on trial more than just the direct offender, for instance family members who had been able to influence his behavior and were allied with him. The chapter provides reason to take the reconciliatory approaches seriously that will be found prima facie attractive by those from a variety of backgrounds. (shrink)

Our century has witnessed violence on an unprecedented scale, in wars that have torn deep into the fabric of national and international life. And as we can see in the recent strife in Bosnia, genocide in Rwanda, and the ongoing struggle to control nuclear weaponry, ancient enmities continue to threaten the lives of masses of human beings. As never before, the question is urgent and practical: How can nations--or ethnic groups, or races--after long, bitter struggles, learn to live side by (...) side in peace? In An Ethic for Enemies, Donald W. Shriver, Jr., President Emeritus of Union Theological Seminary, argues that the solution lies in our capacity to forgive. Taking forgiveness out of its traditional exclusive association with personal religion and morality, Shriver urges us to recognize its importance in the secular political arena. The heart of the book examines three powerful and moving cases from recent American history--our postwar dealings with Germany, with Japan, and our continuing domestic problem with race relations--cases in which acts of forgiveness have had important political consequences. Shriver traces how postwar Germany, in its struggle to break with its political past, progressed from denial of a Nazi past, to a formal acknowledgement of the crimes of Nazi Germany, to providing material compensation for survivors of the Holocaust. He also examines the efforts of Japan and the United States, over time and across boundaries of race and culture, to forgive the wrongs committed by both peoples during the Pacific War. And finally he offers a fascinating discussion of the role of forgiveness in the American civil rights movement. He shows, for instance, that even Malcolm X recognized the need to move from contempt for the integrationist ideal to a more conciliatory, repentant stance toward Civil Rights leaders. Malcolm came to see that only through forgiveness could the separate voices of the African-American movement work together to achieve their goals. If mutual forgiveness was a radical thought in 1964, Shriver reminds us that it has yet to be realized in 1994. "We are a long way from ceasing to hold the sins of the ancestors against their living children," he writes. Yet in this poignant volume, we discover how, by forgiving, enemies can progress and have progressed toward peace. A timely antidote to today's political conflicts, An Ethic for Enemies challenges to us to confront the hatreds that cripple society and threaten to destroy the global village. (shrink)

On many philosophical accounts, the emotion of anger includes a belief that we have been wrongly injured by someone, deliberately or from a lack of due regard. It includes also the belief that the person who injured us deserves to suffer for what she did. Her suffering would serve as fair payback for the suffering she caused us. In slightly different terms, anger includes a desire to strike back at someone who has injured us because we believe that hurting her (...) will compensate for our hurt. A key ethical question concerning anger is whether indulging a desire for retribution or payback is worthy of us as persons. (shrink)

This article continues the themes developed in a previous paper looking at reparations for past wrongs in post-colonial Australia. It narrows the focus to examine the scope of the law of tort to provide reparations suffered as a result of colonisation and dispossession, with particular emphasis on the assimilation policies whose legacy is now known emphatically, although it ought not be exclusively, as the Stolen Generations. The search for more than just words is particularly topical in light of the (...) Australian Prime Minister’s formal apology in early 2008. This highly symbolic step must not lose momentum. That momentum could be both political and legal. In the latter context, we explore here the concept of alien tort, in the light of current Australian tort jurisprudence, which has thus far proved inadequate to achieve compensation for the harms suffered. Taking a comparative approach, procedural and substantive developments are to better deliver justice consistent with community values. In particular, the greater acceptance of psychological harm as actionable tortious conduct in Canada and the United States is examined. The article further examines the scope for stolen children to bring suit under the US Alien Tort Claims Act 1789. While the Australian government enjoys sovereign immunity in the courts of the United States, non-state organisations such as churches that were complicit in the forcible removals may be subject to United States jurisdiction wherever they have a presence in that country. The procedural and substantive elements of such a claim are discussed. In particular, the relevant cause of action, the issue of forum non conveniens and the statute of limitations will be analysed to map out whether a claim could be developed and successfully prosecuted. (shrink)

Nicholas Agar argues, that enhancement technologies could be used to create post-persons—beings of higher moral status than ordinary persons—and that it would be wrong to create such beings.1 I am sympathetic to the first claim. However, I wish to take issue with the second.Agar's second claim is grounded on the prediction that the creation of post-persons would, with at least moderate probability, harm those who remain mere persons. The harm that Agar has in mind here is a kind of meta-harm: (...) the harm of being made more susceptible to being permissibly harmed—more liable to harm. Agar suggests that, if post-persons existed, mere persons could frequently be permissibly sacrificed in order to provide benefits to the post-persons. For instance, perhaps they could be permissibly used in lethal medical experiments designed to develop medical treatments for post-persons. By contrast, he suggests that mere persons typically cannot be permissibly sacrificed to provide benefits to other mere persons. He thus claims that mere persons would be more liable to sacrifice if post-persons existed than they are in the absence of post-persons. The creation of post-persons would make them worse off in at least this one respect.Agar then argues that, since this meta-harm imposed on mere persons would not be compensated, it would be wrong to create post-persons. It is here that I believe his argument begins to go awry. According to the concept of compensation that Agar deploys , a harm imposed on X is compensated just in …. (shrink)

The renewed interest in the issue of black reparations, both in the public sphere and among scholars, is a welcome development because the racial injustices of the past continue to shape American society by disadvantaging African Americans in a variety of ways. Attention to the past and how it has shaped present-day inequality seems essential both to understanding our predicament and to justifying policies that would address and undermine racial inequality. Given this, any argument for policies designed to pursue racial (...) justice must be, at least in part, backward-looking, justifi ed partly as compensation for the effects of the wrongs of the past. However, some arguments about black reparations, both pro and con, are focused too far in the past. An unspoken assumption of much of the debate about black reparations is that these would be reparations for slavery. This, we argue, is a mistake. Racial inequality in the United States today may, ultimately, be based on slavery, but it is also based on the failure of the country to take effective steps since slavery to undermine the structural racial inequality that slavery put in place. From the latter part of the nineteenth century through the fi rst half of the twentieth century, the Jim Crow system continued to keep Blacks “in their place,” and even during and after the civil rights era no policies were adopted to dismantle the racial hierarchy that already existed. An important part of the story of racial inequality today is the history of housing and lending discrimination in the second half of the twentieth century (McCarthy 2002; 2004). Home equity, for many Americans, is a very important source of wealth, and the decades after World War II were ones of rapid home equity growth. They were the decades that saw the creation of a large, mostly suburban, middle class. But the middle class that was created was also mostly White, and this was due largely to government policies that (in many cases intentionally) excluded Blacks from the opportunities to get into the home market and benefi t from home equity growth. In this paper we argue that recent housing and lending discrimination constitutes an important basis for black reparations.. (shrink)

We introduce what we call the Emergent Model of forgiving, which is a process-based relational model conceptualizing forgiving as moral and normative repair in the wake of grave wrongs. In cases of grave wrongs, which shatter the victim’s life, the Classical Model of transactional forgiveness falls short of illuminating how genuine forgiveness can be achieved. In a climate of persistent threat and distrust, expressions of remorse, rituals and gestures of apology, and acts of reparation are unable to secure (...) the moral confidence and trust required for moral repair, much less for forgiveness. Without the rudiments of a shared moral world — a world in which, at the very least, the survivor’s violation can be collectively recognized as a violation, and her moral status and authority collectively acknowledged and respected — expressions of remorse, gestures and rituals of apology, or promises of compensation have no authority as meaningful communicative acts with reparative significance. Accordingly, we argue that repair in the wake of traumatic violence involves ‘world-building,’ which supports the ability of survivors to move from despair to hope, from radical and disabling distrust to trust and engagement, and thus from impotence to effective agency. Our Emergent Model treats forgiveness as a slowly developing outcome of a series of changes in a person’s relationship to the trauma and its aftermath, in which moral agency is regained. We argue that forgiveness after grave wrongs and world-shattering harm, when it occurs, emerges from other phenomena, such as cohabitation within a community, gestures of reconciliation, working on shared projects, the developing of trust. On this view, forgiveness is an emergent phenomenon; it entails taking and exercising normative power—coming to claim one’s own moral authority in relation to oneself, one’s assailant, and one’s community. The processes that ultimately constitute forgiving are part and parcel of normative repair more broadly construed. (shrink)

This article discusses a recent ruling by the German Federal Court concerning medical professional liability due to potentially unlawful clinically assisted nutrition and hydration at the end of life. This case raises important ethical and legal questions regarding a third person’s right to judge the value of another person’s life and the concept of ‘wrongful life’. In our brief report, we discuss the concepts of the ‘value of life’ and wrongful life, which were evoked by the court, and how these (...) concepts apply to the present case. We examine whether and to what extent value-of-life judgements can be avoided in medical decision-making. The wrongful-life concept is crucial to the understanding of this case. It deals with the question whether life, even when suffering is involved, could ever be worse than death. The effects of this ruling on medical and legal practice in Germany are to be seen. It seems likely that it will discourage claims for compensation following life-sustaining treatment. However, it is unclear to what extent physicians’ decisions will be affected, especially those concerning withdrawal of CANH. We conclude that there is a risk that LST may come to be seen as the ‘safe’ option for the physician, and hence, as always appropriate. (shrink)

Cliff Landesman provides a vivid description of a case where we have no best outcome available to us. He poses this as a problem for utilitarians who advise us to do the best we can. This does indeed make such advice impractical. I begin by contrasting older versions of utilitarianism with newer ones that have appeared in deontic logic and that were designed precisely to accommodate Landesman's sort of scenario. (I cast matters in terms of the Limit Assumption and world-theoretic (...) versions of utilitarianism.) I then make three points. First, Landesman's problem does not pose any special problem for these newer theories. Secondly, I note that it is an interesting consequence of these newer theories being utilitarian theories, that--contrary to the tradition--utilitarianism isn't automatically a no conflicts theory of obligation. Thirdly, and most importantly, I identify a new, deeper and wider theoretical problem: "The Confinement Problem". This problem infests the newer versions of utilitarianism. Worse still, the infestation spreads to satisficing consequentialism (cf. Scheffler, Slote), the direction Landesman points to for a solution to his problem, and this new problem is one where the theoretical rulings of these theories clearly conflict with intuition. (shrink)

This paper questions the fairness of our current tort-law regime and the philosophical underpinnings advanced in its defense, a theory known as corrective justice. Fairness requires that the moral equality and responsibility of persons be respected in social interactions and institutions. The concept of luck has been used by many egalitarians as a way of giving content to fairness by differentiating between those benefits and burdens that result from informed choice and those that result from fate or fortune. We argue (...) that the theory of corrective justice, along with its institutional embodiment of tort law, is at odds with an egalitarian commitment to fairness because it allows luck an unjustifiable role in determining dissimilar liability for similar wrongs and dissimilar compensation for similar losses to bodily integrity. Many egalitarian political theorists have also recognized, if not defended, the notion of distinct forms of justice, namely corrective, retributive, and distributive. Although theorists of these different forms of justice have been concerned with negating unfair luck inside the operations of each form of justice, there has been little attention to the way in which luck operates to sort cases into each form of justice. We claim that there is a significant way in which luck operates to subject different people to principles of corrective, retributive, and distributive justicewhich flies in the face of the egalitarian value of fairness. After surveying the arguments put forward by theorists defending a categorical distinction between corrective justice and retributive and distributive principles, we argue that although analytical distinctions can be made between different forms of justice (although, we also suggest that the distinctions are not as sharp as some commentators suggest), there is no good reason to defend an acoustic separation between these forms of justice when doing so creates unfair outcomes. (shrink)

It is commonly argued that cultural objects ought to be returned to their place of origin in order to remedy injustices committed in the past. In this paper, it is shown that significant challenges attach to this way of arguing. Although there is considerable intuitive appeal in the idea that if somebody wrongs another person then she ought to compensate for that injustice, the principle is difficult to apply to wrongdoings committed many decades or centuries ago. It is not (...) clear that historic injustices can meaningfully be corrected, or compensated for, and there are several arguments why, even in cases where there is a prima facie moral case for compensation, repatriation might not be a legitimate means of remedy. In order to bring analytical clarity to the issue, this paper discusses the various steps of the argument that must be addressed in order to ground a valid repatriation claim based on historic injustices. (shrink)

Let’s say that an act requires Person-Affecting Justification if and only if some alternative would have been better for someone. So, Lucifer breaking Xavier’s back requires Person-Affecting Justification because the alternative would have been better for Xavier. But the story continues: While Lucifer evades justice, Xavier moves on and founds a school for gifted children. Xavier’s deepest values become identified with the school and its community. When authorities catch Lucifer, he claims no Person-Affecting Justification is needed: because the attack set (...) Xavier on his life’s path, it’s no longer true that the alternative would have been better by the standard of what Xavier now values most. An unappealingly paternalistic way to hold Lucifer to account is to discount Xavier’s preferences as merely adaptive. Instead, I propose understanding the persons of Person-Affecting Justification to be not persons but person stages. This allows us to hold Lucifer to account without having to discount Xavier’s actual preferences, and has interesting implications for compensatory justice, including making sense of reparations for historical wrongs. (shrink)

This article continues the themes developed in a previous paper looking at reparations for past wrongs in post-colonial Australia. It narrows the focus to examine the scope of the law of tort to provide reparations suffered as a result of colonisation and dispossession, with particular emphasis on the assimilation policies whose legacy is now known emphatically, although it ought not be exclusively, as the Stolen Generations. The search for more than just words is particularly topical in light of the (...) Australian Prime Minister's formal apology in early 2008. This highly symbolic step must not lose momentum. That momentum could be both political and legal. In the latter context, we explore here the concept of alien tort, in the light of current Australian tort jurisprudence, which has thus far proved inadequate to achieve compensation for the harms suffered. Taking a comparative approach, procedural and substantive developments are to better deliver justice consistent with community values. In particular, the greater acceptance of psychological harm as actionable tortious conduct in Canada and the United States is examined. The article further examines the scope for stolen children to bring suit under the US Alien Tort Claims Act 1789. While the Australian government enjoys sovereign immunity in the courts of the United States, non-state organisations such as churches that were complicit in the forcible removals may be subject to United States jurisdiction wherever they have a presence in that country. The procedural and substantive elements of such a claim are discussed. In particular, the relevant cause of action, the issue of forum non conveniens and the statute of limitations will be analysed to map out whether a claim could be developed and successfully prosecuted. © Springer Science + Business Media B.V. 2009. (shrink)

Then newly elected Labor Prime Minister, Kevin Rudd, made a historic statement of “Sorry” for past injustices to Australian Indigenous peoples at the opening of the 2008 federal parliament. In the long-standing absence of a constitutional ‘foundational principle’ to shape positive federal initiatives in this context, there has been speculation that the emphatic Sorry Statement may presage formal constitutional recognition. The debate is long overdue in a nation that only overturned the legal fiction of terra nullius and recognised native title (...) to lan with the High Court’s decision in Mabo in 1992. This article explores the implications of the Sorry Statement in the context of reparations for the generations removed from their families under assimilation policies (known since the Bringing Them Home Inquiry as the Stolen Generations). We draw out the utility of recent human rights statutes—such as the Human Rights Act 2004 (ACT)—as a mechanism for facilitating justice, including compensation for past wrongs. Our primary concern here is whether existing legal processes in Australia hold further capacity to provide reparation for Australian Indigenous peoples or whether their potential in that regard is already exhausted. We compare common law and statutory developments in other international jurisdictions, such as Canada, as an indication of what can be achieved by the law to facilitate better legal, economic and social outcomes for Indigenous peoples. The year 2008 also saw Canadian Prime Minister Stephen Harper express his apology to residential school victims in the Canadian Parliament, providing thematic and symbolic echoes across these two former colonies, which, despite remaining under the British monarchy, both forge their own path into the future, while confronting their own unique colonial past. We suggest that the momentum provided by the recent public apology and statement of “Sorry” by the newly elected Australian Prime Minister must not be lost. This symbolic utterance as a first act of the 2008 parliamentary year stood in stark contrast to the long-standing recalcitrance of the former Prime Minister John Howard on the matter of a formal apology. Rather than a return to a law enforcement-inspired “three strikes and you’re out” approach, Australia stands poised for an overdue constitutional and human rights-inspired “three ‘sorries’ and you’re in”. (shrink)

Are the state’s obligations to victims of its own wrongdoing greater than to persons who have suffered from bad luck? Many people endorse an affirmative answer to this question. Call this the Difference View. This view can seem arbitrary from the perspective of the victims in question; why should a victim of bad luck, who is just as badly off through no fault of her own, be entitled to less assistance from the state than a victim of state-caused wrongful harm? (...) This paper defends a qualified version of the Difference View, the Threshold Version of the Difference View. According to this view, all disadvantaged persons, no matter what the cause of their disadvantage, must be compensated until they reach a minimum threshold of wellbeing; however, among disadvantaged persons above this threshold, full compensation is owed for those who are victims of state wrongdoing, whereas full compensation is not necessarily owed to those who are disadvantaged due to bad luck. (shrink)

According to Mathias Risse and Richard Zeckhauser, racial profiling can be justified in a society, such as the contemporary United States, where the legacy of slavery and segregation is found in lesser but, nonetheless, troubling forms of racial inequality. Racial profiling, Risse and Zeckhauser recognize, is often marked by police abuse and the harassment of racial minorities and by the disproportionate use of race in profiling. These, on their view, are unjustified. But, they contend, this does not mean that all (...) forms of racial profiling are unjustified; nor, they claim, need one be indifferent to the harms of racism in order to justify racial profiling. In fact, one of the aims of their paper is to show that racial profiling, suitably understood, “is consistent with support for far-reaching measures to decrease racial inequities and inequality.” Hence, one of their most striking claims, in an original and provocative paper, is that one can endorse racial profiling without being in any way indifferent to the disadvantaged status of racial minorities. In an initial response to these claims, I argued that Risse and Zeckhauser tend to underestimate the harms of racial profiling. I suggested two main reasons why they did so. The first is that they tend to identify the more serious harms associated with profiling with background racism, and therefore to believe that these are not properly attributable to profiling itself. The second reason is that they ignore the ways in which background racism makes even relatively minor harms harder to bear and to justify than would otherwise be the case. Hence, I concluded, racial profiling cannot be a normal part of police practice in a society still struggling with racism, although under very special conditions and with special regulation and compensation in place, it might be justified as an extraordinary police measure. I want to stand by those claims. However, Risse’s response to my arguments persuades me that I misinterpreted his earlier position in one significant respect. So I will start by explaining what interpretive mistake I believe that I made. I will then argue that despite Risse’s patient and careful response to my arguments, my initial concerns with his justification of profiling remain valid. -/- . (shrink)