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Published online by Cambridge University Press: 23 December 2020
This article examines accounts of the moral basis of compensatory duties that explain such duties as the continuation, in some way, of the pre-wrong normative situation. I identify, contrast, and assess three versions of this view—duty continuity, right continuity, and reasons continuity. I argue that each version is defensible, once properly articulated. The article responds to a range of objections to these views that have not received much critical attention by their proponents.
With thanks for comments or discussion to Ori Herstein, Greg Keating, Crescente Molina, Tom Kohavi, Tim Liau, Rebecca Stone, Victor Tadros, Diego Papayannis, Nick McBride, Adam Perry, Andrea Dolcetti, James Edwards, Hasan Dindjer, and the anonymous reviewers. Special thanks to Peter Chau and Jeff McMahan for very helpful discussion and detailed comments.
1. Some may deny that the conduct in cases of pro tanto wrongdoing is wrongful in any sense. See, e.g., R. Jay Wallace, The Moral Nexus (2019), at 171–172. Readers who have this view can replace references to “pro tanto duties not to X” with “strong reasons not to X.”
2. This leaves open whether the duty to compensate arises in virtue of the wrong. The paper's starting point is the intuitive idea that wrongdoing sometimes gives rise to duties to compensate. It leaves open at the outset whether the compensatory duty is grounded in the wrong or whether wrongdoing is merely one important causal occasion for the triggering of compensatory duties: see further below, Section VI.B.
4. Other normative features of the post-breach situation, such as a duty to apologize, may have independent explanations.
5. John Gardner, Torts and Other Wrongs (2019), ch. 2.
6. I use the term “requirement” to cover “duty” and “reason.”
7. See especially Arthur Ripstein, Private Wrongs (2016), at 248 (“Rights survive their own violation…”).
8. Gardner, supra note 5.
9. On one view, a duty is a protected reason. Joseph Raz, Practical Reason and Norms (1999), at 2.3.
10. A duty may ground further duties in combination with certain requirements of practical rationality.
11. Joseph Raz, From Normativity to Responsibility (2011), at 189–192.
12. The responsibility account mentioned below is sometimes offered as a deeper account of why corrective justice demands compensation.
13. Linda Radzik, Making Amends: Atonement in Morality, Law, and Politics (2009).
15. S. Pufendorf, De Officio Hominis et Civis (1673), bk. I, ch. VI.
16. McMahan, Jeff, Self-Defence and the Problem of the Innocent Attacker, 104 Ethics 252, 259 (1994)CrossRefGoogle Scholar (“[I]n cases in which a person's [wrongful] action . . . has made it inevitable that someone must suffer harm, it is normally permissible, as a matter of justice, to ensure that it is the [wrongdoer] who is harmed rather than allowing the costs of his wrongful action to be imposed on the [other(s) on whom they might instead have fallen.]”). See also Stephen R. Perry, The Moral Foundations of Tort Law, 77 Iowa L. Rev. 449 (1992).
19. Ernest J. Weinrib, Corrective Justice (2012), at 91.
20. Friends might have special duties to honor the memory of their friends and so on, in some cases perhaps by pursuing their incomplete projects.
21. Weinrib, supra note 19, at 91.
22. Id. at 90 (“At its most general, having a right in private law means that the right-holder is normatively so connected to the object of the right that another person is under a duty not to interfere with that object.”). This suggests that what survives is the duty not to interfere.
23. Drawn from id. at 90 (“Even if the object no longer exists as a physical entity, the parties continue to be related to each other through the object's normative connection to the plaintiff and the consequent duty on the defendant to act in conformity with that connection.”).
24. For one possible analysis of this notion of causation, see H.L.A. Hart and Tony Honoré, Causation in the Law (2d ed. 1985).
25. On the distinction between negating and counterbalancing harm, see Adam Slavny, Negating and Counterbalancing: A Fundamental Distinction in the Concept of a Corrective Duty, 33 Law & Phil. 143 (2014).
26. Again, I will consider here reasons that ground all-things-considered duties first, before considering pro tanto duties later in Section IV.
27. The issue is not probed in much detail in Gardner, supra note 5.
28. See id.
29. See id. at 60–61. Or perhaps Gardner's view is that reasons part constitute and justify duties.
30. See generally id.
31. Ripstein, supra note 7, at 248. Similarly, Weinrib, supra note 19, at 91 (“The defendant's breach of duty did not of course bring to an end the duty with respect to the plaintiff's right, for, if it did, the duty—absurdly—would have been discharged by its breach.”).
32. Gardner, supra note 5, at 55–56.
33. Stephen A. Smith, Remedies for Breach of Contract: One Principle or Two?, in Philosophical Foundations of Contract Law 341, 348 (Gregory Klass, George Letsas & Prince Saprai eds., 2014).
34. Gardner, supra note 5, at 60.
35. See generally Wesley Newcomb Hohfeld, Fundamental Legal Conceptions (1919).
36. Joseph Raz, The Morality of Freedom (1986), at 166.
37. This kind of move (albeit not in defense of a continuity thesis) is made in Emmanuel Voyiakis, Private Law and the Value of Choice (2017).
39. It is plausible that, in some cases, the injurer ought to compensate the owner in Dock even when the owner consents. This might be an incident of a duty of gratitude. If the owner only consents because she knows that this will allow A to suffer a more painful death in the future, it is less clear that A owes the duty; this intention-dependence is explicable if the duty is sourced in gratitude.
40. See Gardner, supra note 5.
41. The canceling view is implausible in its own right, too. One cannot explain the necessity constraint on defensive harming without supposing that there is a reason of some kind to reduce harm to the attacker.
42. B obtained a chance at life that is valuable. But this benefit is relatively minimal and would not be greater than the detriment caused by the duty to compensate. See Sandy Steel, Rationalising Loss of a Chance in Tort, in Challenging Orthodoxy in Tort Law 235 (Stephen Pitel, Jason Neyers & Erika Chamberlain eds., 2013).
43. For an exploration of the close relationship between defensive and compensatory liability, see Guy Sela, Torts as Self-Defence (2019), https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3433223. See also Sandy Steel, Defence and Compensation (2019) (unpublished manuscript) (on file with author).
44. Victor Tadros made this or a very similar point to me in discussion.
45. For a defense of a linkage between the circumstances in which lesser-evil justifications apply and duties of rescue, see Frowe, Helen, Lesser-Evil Justifications for Harming: Why We're Required to Turn the Trolley, 68 Phil. Q. 460 (2018)CrossRefGoogle Scholar.
46. John Gardner, From Personal Life to Private Law (2018), ch. 5.
47. For a compelling defense of this claim, see Cruft, Rowan, Against Individualistic Justifications of Property Rights, 18 Utilitas 154, 165–167 (2006)CrossRefGoogle Scholar.
48. Waldron, Jeremy, Moments of Carelessness and Massive Loss, in Philosophical Foundations of Tort Law 387 (Owen, David G. ed., 1995)Google Scholar.
49. Nicholas J. McBride & Roderick Bagshaw, Tort Law 803 (5th ed. 2015).
50. See above X.
51. Smith, Stephen A., Duties, Liabilities, and Damages, 125 Harv. L. Rev. 1727, 1753 (2011)Google Scholar.
52. For discussion of the distinction between use-based and harm- or damage-based wrongs, see Ripstein, supra note 7.
53. I should stress that Smith raises this objection in the context of a discussion of legal duties, but given his Razian understanding of legal duties as the law's understanding of our moral duties, I think his objections here can be transferred to the purely moral duties. See also Victor Tadros, Secondary Duties, in Civil Wrongs and Justice in Private Law (Paul B. Miller & John Oberdiek eds., 2020) for related objections that, like Smith, claim an intrinsic significance for wrongdoing.
54. Smith, supra note 51, at 1753.
55. I am grateful to Hasan Dindjer here.
56. Gardner, supra note 5, at 55–65.
57. See Smith, supra note 51. Contrast, Steel, Sandy & Stevens, Robert, The Secondary Duty to Pay Damages, 136 Law Q. Rev. 283 (2020)Google Scholar.
58. For the suggestion that liabilities can give rise to duties in and of themselves, see Nicholas McBride, Stephen A Smith on Duties and Liabilities (University of Cambridge Faculty of Law Research Paper No. 62/2015, 2015), https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2668742.
59. In English law, where A puts it out of B's power to communicate the exercise of a legal power to A, the requirement of communication to A is dropped. Universal Carriers Corp v Citati  2 QB 402 (Eng.).
60. Smith, supra note 51.
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