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Rights to Compensation

  • Onora O'Neill (a1)

Rights to compensation are much invoked and much disputed in recent liberal debates. The disputes are generally about supposed fundamental (natural, human or moral) 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 (some) 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' (criminal) 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.

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1 With misgivings I have used the term “welfare liberal” for liberals who advocate welfare rights. I have placed the term “welfare” in scare quotes because the term seems to me ideologically laden, and perhaps self-destructive. The claim that there are welfare rights is bound to seem contentious, if not contradictory, in a milieu in which matters of welfare are taken by some to contrast with matters of right.

2 The topic is enormously discussed in literature in development studies, in particular in works on neo-colonialism and dependent development. Philosophical discussion of rights to compensation in this context are fewer. But see Sher, George, “Ancient Wrongs,” Philosophy and Public Affairs, vol. 10 (Winter 1981); Lyons, David, “The New Indian Claims and Original Rights to Land,” Paul, J., ed., Reading Nozick (Totowa, NJ: Rowman and Littlefield, 1981); and O'Neill, Onora, “Lifeboat Earth,” Beitz, , Cohen, , Scanlon, , and Simmons, , eds., International Ethics (Princeton, NJ: Princeton University Press, 1985).

3 Locke, John, Second Treatise of Government, (London: Dent and Sons, 1924), Ch. II, para. 5.

4 ibid., Ch. II, paras 10 and 11.

5 Jeffrey Paul, “The Withering of Nozick's Minimal State” and Robert Paul Wolff, “Robert Nozick's Derivation of the Minimal State,” Jeffrey Paul, ed., Reading Nozick.

6 Wolff, “Minimal State,” p. 86. Nozick's uneasy hovering between two ethical theories is also apparent in a second major use he makes of the notion of compensation, in his interpretation of the Lockean proviso which requires that just appropriation leave enough and as good for others. He takes it that appropriation of land meets this proviso even when no land is left for appropriation, providing some equivalent goods or opportunities are left which can compensate for the rights violated by others' appropriation. Cf. Anarchy, State, and Utopia, Ch. 7 and criticism of the argument by Cheyney C. Ryan, “Yours, Mine and Ours: Property Rights and Individual Liberty” in Jeffrey Paul, ed., Reading Nozick, esp. pp. 338–9.

7 Wolff, “Minimal State,” p. 87. Surely, one may protest, rights theorists too must take account of the uncertainty of human action and take some line on whether it is wrong to prohibit action that merely risks rights violation. This is true; however, a more coherent way for a rights theorist to take acount of uncertainty is not to assume a scale for valuing actions which is independent of rights, but to insert probabilistic considerations into contexts of deliberation where what is at stake is whether in these circumstances doing thus or so would or would not constitute a violation of rights. This is not to deny that rights theories have acute and often neglected problems with formulating an adequate theory of action.

8 Cf. Parfit, Derek, Reasons and Persons (Oxford: Clarendon Press, 1984), pp. 351ff., esp. 361.

9 For these topics see the items mentioned in note 2 above.

10 The literature on this topic is immense. Recent general discussions include MacIntyre, Alasdair, After Virtue (London: Duckworth, 1981); Sandel, Michael, Liberalism and the Limits of Justice (Cambridge: Cambridge University Press, 1982); Williams, Bernard, Ethics and the Limits of Philosophy (London: Fontana, 1985), p. 194. I have outlined my own reservations about individualist accounts of agency, and suggested some moves that can be made in O'Neill, Onora, “Who Can Endeavour Peace?,” Canadian Journal of Philosophy, Supp. vol. 12 (December 1986), pp. 4173.

11 I have offered a relatively complex critique of the foundations of non-utilitarian accounts of rights in “The Most Extensive Liberty,” Proceedings of the Aristotelian Society, 1979; and a constructive account of a theory of obligations and reasons for regarding them as more fundamental in Faces of Hunger: An Essay on Poverty, Justice and Development (Winchester, MA: Allen and Unwin, 1986), chapters 6, 7, and 8; further comments can be found in “Rights, Obligations and Needs,” Logos, vol. 6 (1985), pp. 29–47; “Children's Rights and Children's Lives,” forthcoming in Ethics, and “Practices of Toleration,” forthcoming.

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Social Philosophy and Policy
  • ISSN: 0265-0525
  • EISSN: 1471-6437
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