Abstract
There is widely thought to be a proportionality constraint on harming others in self-defense, such that an act of defensive force can be impermissible because the harm it would inflict on an attacker is too great relative to the harm to the victim it would prevent. But little attention has been given to whether a corresponding constraint exists in the ethics of compensation, and, if so, what the nature of that constraint is. This article explores the issue of proportionality as it applies to the liability to compensate. The view that some perpetrators are not liable to pay full compensation because doing so would be disproportionately burdensome is clarified and defended, and it is asked what view we should adopt instead. A key step in that inquiry is an argument that someone is liable to bear the cost of compensating for an injury if and only if she would have been liable to bear that same cost in defense against that same injury ex ante.
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Notes
For ease of presentation, I will assume that necessity and proportionality are 'internal' to liability, such that a person is not liable to harm that is not necessary or not proportionate. To be clear, I am concerned with proportionality in its narrow sense, which is a constraint on a liability justification for harming, as contrasted with wide proportionality, which constrains a lesser-evil justification for harming non-liable people.
See David McCarthy, ‘Liability and Risk’, Philosophy and Public Affairs 25(3) (1996): pp. 238–262 at p. 244; Peter Vallentyne, ‘Responsibility and Compensation Rights’, in S. De Wijze, M. H. Kramer, and I. Carter (eds.), Hillel Steiner and the Anatomy of Justice: Themes and Challenges (New York: Routledge, 2009), pp. 85–98; Saul Smilansky, ‘A Difficulty Concerning Compensation’, Journal of Moral Philosophy 10(3) (2013): pp. 329–337; Robert E. Goodin, ‘Theories of Compensation’, Oxford Journal of Legal Studies 9(1) (1989): pp. 56–75.
For simplicity, where necessary I will understand a person to be harmed, or to be bearing a burden or cost, to the extent that her wellbeing is decreased relative to what it would have been if the harm were not done, or the burden or cost not borne. Correspondingly, someone is compensated for harm to the extent that her wellbeing approaches the level it would have been at if not for the harm. For a useful discussion of these issues, as well as a defense of a counterfactual-wellbeing account, see Victor Tadros, ‘What Might Have Been’, in J. Oberdiek (ed.), Philosophical Foundations of the Law of Torts (Oxford: Oxford University Press, 2014), pp. 171–192.
McCarthy, ‘Liability and Risk’ at pp. 241–244. On the prevalence of this justification in tort law, see Joel Feinberg, Doing and Deserving: Essays in the Theory of Responsibility (Princeton: Princeton University Press, 1970), p. 28. This distinction is partly obscured by the fact that the monetary cost of providing compensation is the same as the monetary benefit of receiving it. It is also easy to slip, I believe, from the question of how much compensation it would take to offset a victim’s harm to the question of how much compensation she is owed.
Vallentyne, ‘Responsibility and Compensation Rights’ at pp. 91–93. See also Jeremy Waldron, ‘Moments of Carelessness and Massive Loss’, in D. Owen (ed.), Philosophical Foundations of Tort Law (Oxford: Oxford University Press, 1995), pp. 387–408.
Note that a defender of the stringent view cannot reply that I am liable to fully compensate you only if others compensate me (for to do so is just to deny the stringent view).
On the idea that a person’s liability to defensive force is grounded in the just redistribution of harm, see Jeff McMahan, ‘The Basis of Moral Liability to Defensive Killing’, Philosophical Issues 15(1) (2005): pp. 386–405 at p. 395; Phillip Montague, ‘Self-Defense, Culpability, and Distributive Justice’, Law and Philosophy 29(1) (2010): pp. 75–91; Kerah Gordon-Solmon, ‘What Makes a Person Liable to Defensive Harm?’, Philosophy and Phenomenological Research 97(3) (2018): 543–567.
On this distinction in the context of corrective justice, see Adam Slavny, ‘Negating and Counterbalancing: A Fundamental Distinction in the Concept of a Corrective Duty’, Law and Philosophy 33(2) (2014): pp. 143–173. For similar distinctions, see Goodin, ‘Theories of Compensation’ and John Gardner, ‘What is Tort Law For? Part 1. The Place of Corrective Justice’, Law and Philosophy 30(1) (2011): pp. 1–50 at pp. 28–37.
Joel Feinberg, ‘Voluntary Euthanasia and the Inalienable Right to Life’, Philosophy and Public Affairs 7(2) (1978): pp. 93–123 at p. 102.
A complication arises when it is possible for a perpetrator to negate a harm but much more costly for him to do so than to offset it. Here I believe that the perpetrator is liable to negate the harm provided the cost of doing so would not be disproportionate. If negating the harm would impose on him a disproportionate cost, then he is liable only to offset it.
Jeff McMahan, ‘Debate: Justification and Liability in War’, Journal of Political Philosophy 16(2) (2008): pp. 227–244 at p. 233. See also Uwe Steinhoff, ‘The Liability of Justified Attackers’, Ethical Theory and Moral Practice 19(4) (2016): pp. 1015–1030.
Feinberg, ‘Voluntary Euthanasia and the Inalienable Right to Life’ at p. 102.
124 N.W. 221 (Minn. 1910).
Feinberg, ‘Voluntary Euthanasia and the Inalienable Right to Life’ at p. 102.
McMahan, ‘Debate: Justification and Liability in War’ at p. 233.
Some would construe it as a feature of the necessity constraint. See Seth Lazar, ‘Necessity in Self-Defense and War’, Philosophy and Public Affairs 40(1) (2012): pp. 3–44; Jeff McMahan, ‘The Limits of Self-Defense’, in C. Coons and M. Weber (eds.) The Ethics of Self-Defense (Oxford: Oxford University Press, 2016): pp. 185–209. Others construe it as a kind of proportionality. See Thomas Hurka, ‘Proportionality in the Morality of War’, Philosophy and Public Affairs 33(1) (2005): pp. 34–66 at p. 37; Alec Walen, ‘Targeted Killing and the Criminal Law’, in L. Alexander and K. Ferzan (eds.), The Palgrave Handbook of Applied Ethics and the Criminal Law (New York: Palgrave, 2019): pp. 753–771 at pp. 759–761.
See Derek Parfit, ‘Equality and Priority?’, in M. Clayton and A. Williams (eds.), The Ideal of Equality (New York: St. Martin’s Press, 2000): pp. 81–125.
Acknowledgments
For valuable feedback and discussion, I am grateful to Tomi Francis, Michal Masny, Jeff McMahan, Michael Otsuka, Prach Panchakunathorn, Aidan Penn, Robert L. Rabin, Bastian Steuwer, Leif Wenar, and two anonymous referees.
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Karhu, T. Proportionality in the Liability to Compensate. Law and Philos 41, 583–600 (2022). https://doi.org/10.1007/s10982-022-09441-1
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DOI: https://doi.org/10.1007/s10982-022-09441-1