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THE MORAL SIGNIFICANCE OF RISKING

Published online by Cambridge University Press:  03 July 2012

John Oberdiek
John Oberdiek*
Affiliation:
Rutgers School of Law–Camden, NJoberdiek@camden.rutgers.edu
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Abstract

What makes careless conduct careless is easily one of the deepest and most contested questions in negligence law, tort theory, and moral theory. Answering it involves determining the conditions that make the imposition of risk unjustifiable, wrong, or impermissible. Yet there is a still deeper as well as overlooked and undertheorized question: Why does subjecting others to risk of harm call for justification in the first place? That risk can be impermissibly imposed upon others—that is, the very possibility of negligence—presupposes that imposing risk is the kind of thing that can be impermissible. Unless imposing risk can be impermissible after all, unjustified risking is literally impossible. In this discussion, I explore what I call the moral significance of risking, arguing that the moral significance of risking resides in a certain kind of nonmaterial autonomy interest that is implicated whenever one imposes risk of harm on another.

Type
Research Article
Information
Legal Theory , Volume 18 , Special Issue 3: TORT THEORY , September 2012 , pp. 339 - 356
Copyright
Copyright © Cambridge University Press 2012

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References

1. Judith Jarvis Thomson describes cases of “pure risk imposition” similarly, so long as what she calls an “unwanted outcome” covers fear and disruption and not just resultant harm: “each time the agent acts he imposes a risk of an unwanted outcome, and it may be that he never at any time actually causes an unwanted outcome.” Judith Jarvis Thomson, Imposing Risks, in Rights, Restitution, and Risk (1986), at 173.

2. The language of “risk imposition” is intended to cover all cases where one subjects another to risk, whether inadvertently or intentionally. And although I do not usually specify the risk that is being imposed, risking must have an object.

3. When referring simply to “risk” (or “risk imposition,” “risking,” and so forth), I mean “pure risk” from this point forward, unless otherwise indicated.

4. Samuel Scheffler, Human Morality (1992), at 25. By “voluntary,” I take Scheffler to mean “subject to one's control” and not “intentional.”

5. James Griffin, Value Judgement: Improving Our Ethical Beliefs (1996), at 110.

6. Kumar, Rahul, Who Can Be Wronged?, 31 Phil. & Pub. Aff. 99–118 (2003)CrossRefGoogle Scholar, at 103.

7. Id.

8. I explore and defend this claim in some detail in the first chapter of John Oberdiek, Imposing Risk: A Normative Framework (forthcoming).

9. Thomas Scanlon draws the distinction between the evaluation of one's reasoning and one's actions most clearly and persuasively. See T.M. Scanlon, Moral Dimensions: Permissibility, Meaning, Blame (2008). See also John, Oberdiek, Culpability and the Definition of Deontological Constraints, 27 Law & Phil. 105–122 (2008)Google Scholar, at 109–116.

10. Scanlon introduces the term “operative reason” in T.M. Scanlon, What We Owe to Each Other (1998), at 19. An operative reason is the reason one does (or believes) something, while a normative reason is the reason there is for doing (or believing) something.

11. Finkelstein, Claire, Is Risk a Harm?, 151 U. Pa. L. Rev. 963–1001 (2003)CrossRefGoogle Scholar.

12. See, e.g., James Griffin, Well-Being: Its Meaning, Measurement, and Moral Importance (1986), at 10–17; and Kraut, Richard, Desire and the Human Good, 68 Proc. & Addresses Am. Phil. Ass'n 39–54 (1994)Google Scholar.

13. Stochastic, noncausal processes would of course still remain opaque to us even if we possessed full knowledge, for there is no foreordained fact of the matter in such cases to know.

14. Thanks to Doug Husak for this example.

15. Judith Jarvis Thomson, The Realm of Rights (1990), at 244. I also note this in Oberdiek, John, Philosophical Issues in Tort Law, 3 Phil. Compass 734–748 (2008)CrossRefGoogle Scholar.

16. Thomson, supra note 15.

17. Id.

18. See Perry, Stephen R., Risk, Harm, and Responsibility, in Philosophical Foundations of Tort Law 321–346 (Owen, David G. ed., 1995)Google Scholar. Perry introduces a caveat in Perry, Stephen R., Harm, History, and Counterfactuals, 40 San Diego L. Rev. 1283–1314 (2003)Google Scholar, at 1305–1309.

19. Perry, Stephen, Risk, Harm, Interests, and Rights, in Risk: Philosophical Perspectives 190–210 (Lewens, Tim ed., 2007)Google Scholar, at 193–198.

20. Perry, Risk, Harm, and Responsibility, supra note 18, at 331.

21. Hotson v. E. Berkshire Area Health Auth., [1987] 2 W.L.R. 287, rev'd [1987] A.C. 750. See also Falcon v. Mem'l Hosp., 462 N.W. 2d 44 (S.C. Mich. 1990); and Alberts v. Schultz, 975 P.2d 1279 (N.M. 1999).

22. Id., as quoted in Perry, Risk, Harm, and Responsibility, supra note 18, at 331–332.

23. Id.

24. Perry, Harm, History, supra note 18, at 1309–1313. Perry is responding to arguments made in Shiffrin, Seana V., Wrongful Life, Procreative Responsibility, and the Significance of Harm, 5 Legal Theory 117–148 (1999)CrossRefGoogle Scholar.

25. Perry, Harm, History, supra note 18, at 1310.

26. But see Handfield, Toby & Pisciotta, Trevor, Is the Risk–Liability Theory Compatible with Negligence Law?, 11 Legal Theory 387–404 (2005)CrossRefGoogle Scholar, arguing on the force of David McCarthy's work on risk that tort law possesses the resources to compensate for risk impositions. Note that emotional distress is material harm in the relevant sense.

27. Nagel, Thomas, Death, in Mortal Questions 6 (1979)Google Scholar.

28. Joel Feinberg, Harm to Others (1984), at 86.

29. Feinberg, Joel, The Child's Right to an Open Future, in Whose Child? Children's Rights, Parental Authority, and State Power (Aiken, William & LaFollette, Hugh eds., 1980)Google Scholar.

30. Joseph Raz maintains that “autonomy is exercised through choice, and choice requires a variety of options to choose from.” Joseph Raz, The Morality of Freedom (1986), at 398.

31. I employ this metaphor to the same end in Oberdiek, John, Towards a Right Against Risking, 28 Law & Phil. 367–392 (2009)CrossRefGoogle Scholar.

32. Not every risk imposition meaningfully curtails one's options and thus one's autonomy, and so not every single case of risking necessarily constitutes nonmaterial harm. Dropping the metaphor, an actual trap laid in a remote forest does not affect me in my workaday urban life at all, so surely its presence constitutes no diminution of my autonomy in the Razian sense. At the same time, surely something short of narrowing one's options down to that which one actually exercises counts as such a diminution. The action lies in between these poles, and I discuss how to demarcate which risk impositions diminish autonomy in id. at 376–378. Regardless, the central point is conceded: risk impositions can diminish autonomy and thus can constitute nonmaterial harm.

33. The ways one chooses to be, as much as the things one chooses to do, are central to autonomy. I borrow from Amartya Sen the language of “doings and beings,” which is central to his capabilities approach to well-being. See Amartya Sen, Inequality Reexamined (1992).

34. Thomson, Imposing Risks, supra note 1, at 185.

35. Kumar, supra note 6, at 103.

36. Id. at 109.

37. Id. at 105.

38. Id. at 103, quoted in text accompanying note 7.

39. Compare Arthur Ripstein, who argues that “Parties engaging in potentially risky activities must show reasonable care for those who might be injured by those activities, not simply for the persons who turn out to be so injured.” Arthur Ripstein, Equality, Responsibility, and the Law (1999), at 52.