Download Complete Ebook By email at etutorsource@gmail.com
Download Complete Ebook By email at etutorsource@gmail.com
We Don’t reply in this website, you need to contact by email for all chapters
Instant download. Just send email and get all chapters download.
Get all Chapters For E-books Instant Download by email at
etutorsource@gmail.com
You can also order by WhatsApp
https://api.whatsapp.com/send/?phone=%2B447507735190&text&type=ph
one_number&app_absent=0
Send email or WhatsApp with complete Book title, Edition Number and
Author Name.
Download Complete Ebook By email at etutorsource@gmail.com
Wrongs, Harms, and Compensation
Download Complete Ebook By email at etutorsource@gmail.com
Download Complete Ebook By email at etutorsource@gmail.com
OX F O R D P R I VAT E L AW T H E O RY
Oxford Private Law Theory publishes leading work in private law theory. It
commissions and solicits monographs and edited collections in general private
law theory as well as specific fields, including the theoretical analysis of tort law,
property law, contract law, fiduciary law, trust law, remedies and restitution, and
the law of equity. The series is open to diverse theoretical approaches, including
those informed by philosophy, economics, history, and political theory. Oxford
Private Law Theory sets the standard for rigorous and original work in private
law theory.
Series Editors
Paul B Miller, University of Notre Dame
John Oberdiek, Rutgers University
Advisory Board
Marietta Auer, Max Planck Institute for Legal History and Legal Theory
Molly Brady, Harvard University
Hanoch Dagan, University of California, Berkeley
John Goldberg, Harvard University
Matthew Harding, University of Melbourne
Irit Samet-​Porat, King’s College London
Seana Shiffrin, University of California, Los Angeles
ALSO PUBLISHED IN THIS SERIES
Rights, Wrongs, and Injustices
The Structure of Remedial Law
Stephen A Smith
Civil Wrongs and Justice in Private Law
Edited by Paul B Miller and John Oberdiek
Private Law and Practical Reason
Essays on John Gardner’s Private Law Theory
Edited by Haris Psarras and Sandy Steel
Standing in Private Law
Powers of Enforcement in the Law of Obligations and Trusts
Edited by Timothy Liau
Download Complete Ebook By email at etutorsource@gmail.com
Download Complete Ebook By email at etutorsource@gmail.com
Wrongs, Harms, and
Compensation
Paying for Our Mistakes
A DA M SL AV N Y
Download Complete Ebook By email at etutorsource@gmail.com
Download Complete Ebook By email at etutorsource@gmail.com
Great Clarendon Street, Oxford, OX2 6DP,
United Kingdom
Oxford University Press is a department of the University of Oxford.
It furthers the University’s objective of excellence in research, scholarship,
and education by publishing worldwide. Oxford is a registered trade mark of
Oxford University Press in the UK and in certain other countries
The moral rights of the author have been asserted
First Edition published in 2023
All rights reserved. No part of this publication may be reproduced, stored in
a retrieval system, or transmitted, in any form or by any means, without the
prior permission in writing of Oxford University Press, or as expressly permitted
by law, by licence or under terms agreed with the appropriate reprographics
rights organization. Enquiries concerning reproduction outside the scope of the
above should be sent to the Rights Department, Oxford University Press, at the
address above
You must not circulate this work in any other form
and you must impose this same condition on any acquirer
Public sector information reproduced under Open Government Licence v3.0
(http://​www.natio​nala​rchi​ves.gov.uk/​doc/​open-​gov​ernm​ent-​lice​nce/​open-​gov​ernm​ent-​lice​nce.htm)
Published in the United States of America by Oxford University Press
198 Madison Avenue, New York, NY 10016, United States of America
British Library Cataloguing in Publication Data
Data available
Library of Congress Control Number: 2023942152
ISBN 978–​0–​19–​286456–​7
DOI: 10.1093/​oso/​9780192864567.001.0001
Printed and bound in the UK by
TJ Books Limited
Links to third party websites are provided by Oxford in good faith and
for information only. Oxford disclaims any responsibility for the materials
contained in any third party website referenced in this work.
Download Complete Ebook By email at etutorsource@gmail.com
Download Complete Ebook By email at etutorsource@gmail.com
Summary Contents
1.Introduction 1
2.Interpretivism and Foundationalism 9
3.Unpacking Corrective Duties 41
4.Capacity and Cost Sensitivity in Negligence 75
5.Outcome Responsibility 101
6.Fairness and Liability 129
7.Corrective and Distributive Justice 153
8.Compensation Schemes 176
Bibliography Index 207
217
Download Complete Ebook By email at etutorsource@gmail.com
We Don’t reply in this website, you need to contact by email for all chapters
Instant download. Just send email and get all chapters download.
Get all Chapters For E-books Instant Download by email at
etutorsource@gmail.com
You can also order by WhatsApp
https://api.whatsapp.com/send/?phone=%2B447507735190&text&type=ph
one_number&app_absent=0
Send email or WhatsApp with complete Book title, Edition Number and
Author Name.
Download Complete Ebook By email at etutorsource@gmail.com
Detailed Contents
1.Introduction 1
2.Interpretivism and Foundationalism 9
I.The Four-​Fold Analysis II.Map of the Book 2
5
Introduction I.Defining Interpretivism and Foundationalism 9
10
II.The Limits of Interpretivism 16
III.The Relevance of Moral Duties to Tort Theory IV.Four Objections 21
27
V.Hypothetical Case Analysis Conclusion 38
40
3.Unpacking Corrective Duties 41
42
44
47
A.Three Features of Interpretivism B.An Alternative Methodology A.Non-​Comparativism B.The Relationship between Explanation and Justification C.Normative Distinctiveness A.Wrongs and Duties B.Indeterminacy and Disagreement C.The Divergence of Torts and Moral Wrongs D.Legal Wrongs and Legal Authority 10
13
16
18
20
28
29
32
36
Introduction I.Negating and Counterbalancing II.The Normative Significance of Negating and Counterbalancing 49
III.Primary and Secondary Duties 59
IV.Continuity or Responsiveness? 62
Conclusion 73
A.Understanding the Distinction B.Overriding the Presumption C.Two Objections A.Implications for Permissibility B.Five Features of Interference C.The Anti-​Holmesian Argument A.The Forward-​looking Character of Secondary Duties B.Two Objections A.The Two Theses B.The Central Objection to The Continuity Thesis C.In Defence of the Responsiveness Thesis 41
42
49
51
53
59
61
62
64
69
Download Complete Ebook By email at etutorsource@gmail.com
Download Complete Ebook By email at etutorsource@gmail.com
x
Detailed Contents
4.Capacity and Cost Sensitivity in Negligence 75
A.Capacity Sensitivity B.Cost Sensitivity 77
79
A.The Fairness Argument B.The Equality Argument C.The Mixed Account A.The Undue Burden Argument B.The ‘Ought Implies Can’ Argument C.The Variability Objection Introduction I.Clarifying the Two Metrics 75
77
II.Is the Objective Standard of Care Capacity and Cost Insensitive? III.Arguments for the Objective Standard 80
84
IV.Defending Capacity and Cost Sensitivity 91
Conclusion 100
84
86
89
91
93
97
5.Outcome Responsibility 101
104
106
107
115
Introduction I.Four Arguments for Outcome Responsibility II.Salvaging Outcome Responsibility 117
Conclusion 127
A.The Fairness Argument B.The Consistency Argument C.Duties to Succeed D.The Effacement Argument A.The Duty to Avoid Harm B.What Response? 101
104
117
124
6.Fairness and Liability 129
A.Defending the Principle B.Unwanted Benefits 136
140
A.In Defence of The Avoidance Principle B.Choice and Opportunity Introduction I.Understanding Non-​Reciprocity II.Some Objections to The Non-​Reciprocity Principle III.The Benefit Principle IV.Avoidance Costs 142
V.Choice Sensitive Fairness Conclusion 149
151
7.Corrective and Distributive Justice Introduction I.The Priority of Corrective over Distributive Justice II.The Parity of Corrective and Distributive Injustice III.The Anti-​Luck Objection 129
131
132
136
142
144
153
153
155
159
160
Download Complete Ebook By email at etutorsource@gmail.com
Download Complete Ebook By email at etutorsource@gmail.com
Detailed Contents
xi
IV.The Priority of Distributive over Corrective Justice 163
V.The Division of Labour Argument Conclusion 172
174
A.Just and Unjust Holdings B.Hypersensitivity C.Let’s Hang on to What We’ve Got 163
167
169
8.Compensation Schemes 176
181
186
189
Introduction I.Three Arrangements II.Compensation Scheme vs Tort without Insurance III.Compensation Schemes vs Insurance-​Backed Tort IV.Tort Law, At-​Fault, or No-​Fault Conclusion A.Dischargeability B.Accountability C.Causation Bibliography Index 176
177
179
181
196
200
207
217
Download Complete Ebook By email at etutorsource@gmail.com
Download Complete Ebook By email at etutorsource@gmail.com
1
Introduction
This book is concerned with corrective duties: their content, grounds, and the
legal or non-​legal practices and institutions they justify. Corrective duties are a
familiar part of our daily ethical experience. If you knock someone’s drink over,
you should offer to buy them another; if you break a promise to meet a friend
for lunch, you should propose a new time and place; if you hit someone with
your car, you should see they receive medical attention.
At first glance, tort law is also in the business of imposing corrective duties.
This idea is associated with theories of corrective justice, which treat the enforcement of corrective duties as central to the normative practice of tort law
and other parts of private law. Some corrective justice theorists insist on a juridical approach, focussing on the nature of the relationship between the doer
and sufferer of harm as embodied in the private legal action.1
Our approach to corrective duties will be non-​juridical, however, our
starting point moral rather than legal duties. This marks a departure, not
just from the methodology favoured by corrective justice theorists, but from
that which has dominated non-​instrumentalist private law theory in general: interpretivism. Interpretivism is a hybrid methodology, synthesizing
both explanatory and normative elements. Its main aim is to understand the
concepts, doctrines, and structures of the law, but to do so in rational, principled, and defensible terms.
The alternative adopted here—​which I will call foundationalism—​begins
with a moral conception of corrective duties and builds towards questions
of legal enforcement and institutional design. Unlike many books on private law theory, then, we will not spend much time trying to understand
the law. Not for us the wrangling over disputed judgments and doctrines,
the attempt to distil the law into its core features and structures, or the
1 The leading figure here is Ernest Weinrib, to whom we will return in Chapter 2. See The Idea of
Private Law (first published 1995, Oxford University Press 2012) and Corrective Justice (Oxford
University Press 2012).
​
​
Download
Complete Ebook By email at etutorsource@gmail.com
Download Complete Ebook By email at etutorsource@gmail.com
2
Wrongs, Harms, and Compensation
articulation of a special type of justice inherent in it. Given this, one might
wonder in what sense I propose to do legal theory at all. The answer is that
legal theorists—​and legal scholars, practitioners, and pretty much everyone
else—​should be concerned with whether legal institutions like tort law, institutions that restrict freedom, impose burdens, carry overtones of moral
criticism and all at great expense, are justified. And they cannot be justified without reference to our underlying moral corrective duties, since it is
these duties that determine when the expensive, coercive, and censorious
apparatus of the law may be invoked against some for the purpose of winning remedies for others.
Unlike interpretivism, which tends to have an apologistic bias, foundation­
alism is committed neither to apologism nor reformism. Our moral duties
might play an indispensable role in justifying the law’s current practices, or
they might recommend alternative laws or alternatives to the law. Failing to
think about corrective duties independently of our current institutional framework risks obscuring this complex relationship. It can lead us to underestimate
the malleability of the law’s normative foundations, and to mistakenly think
they are most naturally instantiated—​or can only be instantiated—​by private
law mechanisms.
For a foundationalist, the question is not ‘What is the best argument for tort
law?’ We must return to first principles and consider which are the best answers to the cluster of questions about wrongs, harms, and compensation for
which tort law provides one set of answers. In formulating our methodology
this way, we depart from interpretivism and from the old territory of private
law theory. By entering a new territory, the realm of foundationalism, we will
find a way of re-​charting the old.
I. The Four-​Fold Analysis
Corrective justice theorists (along with many other interpretivists) are especially interested in the form of private law. They aim to elucidate the nature of
the relationship between the doer and sufferer of harm in private law interactions.2 Our concern is the reverse. We will say something about the structure
2 Weinrib is perhaps the best-​known example of an interpretivist who focusses on form. There are
also more substantive interpretivist approaches such as George Fletcher’s non-​reciprocity theory, which
we examine in Chapter 6. See ‘Fairness and Utility in Tort Theory’ (1972) 85 Harvard Law Review 537.
Download Complete Ebook By email at etutorsource@gmail.com
We Don’t reply in this website, you need to contact by email for all chapters
Instant download. Just send email and get all chapters download.
Get all Chapters For E-books Instant Download by email at
etutorsource@gmail.com
You can also order by WhatsApp
https://api.whatsapp.com/send/?phone=%2B447507735190&text&type=ph
one_number&app_absent=0
Send email or WhatsApp with complete Book title, Edition Number and
Author Name.
Download Complete Ebook By email at etutorsource@gmail.com
Introduction
3
of corrective duties, but our main goal is to build an account of their content and grounds. Specifically, we defend a four-​fold analysis, which I summarize here.
(1) Wrongdoing: If A violates a duty not to harm B, A incurs a secondary duty
to respond by giving greater regard than was previously sufficient to the
values that grounded A’s primary duty. This secondary duty typically requires compensating B.
(2) Conditional Permissibility: A’s conduct is sometimes such that its permissibility is conditional on compensating B in the event that B is harmed. If
A engages in such conduct and B is harmed, then A has a duty to compensate B.
(3) Outcome Responsibility: If A harms B, A has a duty to reduce the amount
of harm caused overall, typically by compensating B.
(4) Distributive Fairness: If A harms B, the party who (i) is the primary beneficiary of A’s conduct and (ii) could have avoided the harm at the lowest cost
has a duty to compensate B.
This is only a sketch, and the four-​fold analysis will be explained in more detail
in subsequent chapters, but a few points are worth noting at the outset. First, the
duties here are pro tanto and can be overridden by other factors. Second, as the
name suggests, it is a pluralistic account of the sources of corrective duties. It does
not make sense to try and assimilate them to a single grand or abstract idea. This
pluralism extends to the structure of the duties as well as their content. Usually,
it is the doer of harm who must compensate the sufferer—​an important dictum
of corrective justice theory, and an idea embodied in the law’s causation requirement. But as principle (4) suggests, third parties can also owe corrective duties.
When the beneficiary of the harmful conduct is someone other than the doer of
harm, this beneficiary sometimes owes the duty instead.
There is another kind of pluralism implicit in the four-​fold analysis: only
one limb involves wrongdoing. Wrongdoing is therefore only part of the
explanation of the corrective duties we owe to each other. To clarify the
role wrongdoing plays in the four-​fold analysis, it is worth laying out what
I mean by a moral wrong here. An all-​things-​considered moral wrong is a
violation of an all-​things-​considered moral duty. A moral duty is a requirement to do or refrain from doing something. Thus, wrongdoing—​again,
Download Complete Ebook By email at etutorsource@gmail.com
Download Complete Ebook By email at etutorsource@gmail.com
4
Wrongs, Harms, and Compensation
all-​things-​considered wrongdoing—​implies impermissible action (action
there is a duty not to perform) or impermissible omission (failure to perform
an action there is a duty to perform).
Some interpretivists argue that tort law should be viewed as a coherent
set of wrongs.3 The four-​fold analysis generates problems for this view. The
first is that, as we have just seen, it is misleading to think of wrongdoing as
holding a privileged place amongst the plural grounds of corrective duties.
A natural response to this is to adopt a broader conception of wrongdoing
that can encompass more of the law. It is not just fault-​based conduct that
should be regarded as wrongful, it might be argued; strict liability torts,
which do not impute fault to the tortfeasor, are also properly understood as
wrongs. It is often said in defence of this claim that legal wrongdoing need
not imply moral blameworthiness.4 This emphasis can be a distraction,
though. True, legal wrongdoing need not imply moral blameworthiness, but
if it does not imply moral impermissibility (whether blameworthy or not)
then liability is imposed on those who were morally free to act exactly as
they did.
This is either a problem or an even bigger problem. It is a problem if imposing this burden on a person is justified but not on the grounds that they
are a wrongdoer. This misidentifies the justificatory reasons for liability and
misappropriates the expressive function of the law. Labelling someone a tortfeasor is not quite labelling them a criminal, but if tort is—​or should be—​a law
of wrongs, it nevertheless carries overtones of criticism and moral disapproval
that are inappropriate when applied to those who act permissibly. It is an even
bigger problem when imposing the burden is not justified at all. In this case,
not only is a person labelled a tortfeasor, they are also coerced into repairing
the harm when they have no duty to do so.
We should not conclude from this, however, that the four-​fold analysis
undermines the law at every turn. We will see that it also offers support for
some elements of the law, such as rules regarding remedies and the distinction between strict and fault-​based liability. The overlap between our
moral corrective duties and the remedial side of tort law cannot be ignored when assessing the latter’s justifiability. The four-​fold analysis thus
3 For a recent example, see John Goldberg and Benjamin Zipursky, Recognizing Wrongs (Harvard
University Press 2022).
4 Again, Goldberg and Zipursky’s Recognizing Wrongs is an example (n 3) at 65.
Download Complete Ebook By email at etutorsource@gmail.com
Download Complete Ebook By email at etutorsource@gmail.com
Introduction
5
has an ambivalent relationship with tort apologism. This ambivalence will
be heightened in the latter part of the book when we examine the relationship between corrective and distributive justice and the debate between tort
apologists and reformers.
We find that the practice of corrective justice it is not isolated or immune to
critiques based on distributive justice. Although judges should not freely take
issues of background injustice into account in tort decisions, this constraint
itself presents problems for justifying the law as a whole. We also find that,
despite the choice between tort law and compensation schemes usually being
framed as one between irreducibly distinct paradigms of justice—​corrective
and distributive justice respectively—​our moral duties are in fact consistent
with various types of schemes. Ultimately, what emerges from a foundationalist
perspective is neither a wholesale defence of nor attack on the tort system. If it
can be made to work fairly and effectively, it can be justified in some form. But
where it deviates significantly from our moral duties, exacerbates background
injustice, and presents huge barriers to access, tort law, or at least a large portion of it, is an expensive mistake.
II. Map of the Book
Here is a map of the book. In Chapter 2 I offer some criticisms of
interpretivism and develop the foundationalist methodology. Although
the two methods are not inconsistent, and in some respects may be mutually supportive, I argue that the non-​comparative nature of interpretivism
makes it unable to evaluate the full range of views and arguments necessary to reach an all-​things-​considered judgement about the justification of
the law. Foundationalism cannot reach an all-​thing-​considered evaluation
either, of course, as normative theory can only do so much in the absence
of empirical analysis. We need economists, social scientists, policymakers,
and lawyers to consider the practicalities and consequences of any possible
reforms. But foundationalism can make better normative progress than
interpretivism. Free from considerations of fit, it can evaluate the full range
of views and arguments in the relevant normative space rather than just
those that best explain the law.
Chapter 2 also expands on the claim that moral corrective duties are
crucial to the justification of the law. When a legal duty is imposed in the
Download Complete Ebook By email at etutorsource@gmail.com
Download Complete Ebook By email at etutorsource@gmail.com
6
Wrongs, Harms, and Compensation
absence of an enforceable moral duty, defendants can complain that their
moral freedoms are being curtailed and they are suffering an undue burden.
When a legal duty is not imposed in the presence of an enforceable moral
duty, would-​be claimants can complain that they have no recourse for
wrongs done to them and as a result their interests are de-​prioritized relative
to those of others. These complaints can be overridden, but they provide a
powerful general case for the relevance of moral duties to the justification of
the law.
In Chapter 3 I defend a distinction between negating and counterbalancing as fundamental to understanding different types of corrective action, thus
disambiguating more generic terms like ‘compensation’, ‘repair’, and ‘making
whole’. We also distinguish between the well-​known continuity thesis and the
responsiveness thesis. The continuity thesis explains secondary duties in terms
of the reasons, duties or rights that precede and survive a wrong. This thesis
tends to erase or underplay the significance of wrongdoing in the derivation
of secondary duties by implying that the wrong did not occur, or that it played
no grounding role, or via its inability to account for the increased stringency of
secondary duties. I defend the responsiveness thesis, which places less emphasis
on trying to make it as if the wrong did not happen, and more on responding
appropriately to the failures of one’s moral agency. Throughout this discussion,
Chapter 3 introduces the first two limbs of the four-​fold analysis. The responsiveness thesis shows how wrongdoing grounds corrective duties, and the distinction between negating and counterbalancing helps to defend the concept
of conditional permissibility.
Chapter 4 further develops the first limb of the four-​fold analysis by examining the wrong of negligence. It argues the moral wrong of negligence is both
capacity and cost sensitive, meaning that the level of care one owes to others
depends on one’s capacity to exercise that care, and the cost and difficulty to
one of doing so. We consider and reject some principled arguments that some
have adduced in favour of the objective standard of care (which can be restated
as arguments for capacity and cost insensitivity) and conclude that, if the law is
justified in departing from a capacity and cost sensitive approach, this is not for
any deep reasons of principle but rather because of the difficulties of enforcing
alternative standards in non-​ideal conditions.
Chapters 5 and 6 develop the final two limbs of the four-​fold analysis.
Chapter 5 considers and rejects a range of existing justifications for some form
of outcome responsibility. It defends an alternative version that connects the
Download Complete Ebook By email at etutorsource@gmail.com
Download Complete Ebook By email at etutorsource@gmail.com
Introduction
7
duty of repair to our prior duties to bear special costs to avoid harming others,
grounded in the Doctrine of Doing and Allowing. On this view, we have some
corrective responsibilities—​though not necessarily the full burden of repair—​
even when we harm others through involuntary action.
Chapter 6 argues that principles of distributive fairness are relevant to
individual corrective duties. In particular, we evaluate three distributive
principles, The Non-​Reciprocity Principle, The Benefit Principle, and The
Avoidance Principle. We cast doubt on the independent significance of The
Non-​Reciprocity principle but argue that the other two interlock and play an
important role in grounding corrective duties. The result is that considerations of fairness co-​exist with the relational grounds of corrective duties
such and wrongdoing and causation.
This concludes the section of the book dedicated to investigating the
grounds of corrective duties, and the four-​fold analysis. The remaining two
chapters apply this moral account to broader institutional issues. Chapter 7
considers the relationship between corrective and distributive justice. We find
that there is no straightforward generalization to be made about the priority or
independence of the two spheres of justice. In some respects, corrective justice
has priority, in others distributive justice has priority, and in others there is
parity. This mixed picture should bring no comfort to tort apologists. Although
corrective duties are not reducible to deviations from distributive justice or always overridden by them, interference effects between the two spheres present
systemic problems for justifying the practice of corrective justice in an unjust world.
In Chapter 8, we consider whether our moral account of corrective duties
favours tort law structures over alternative institutional means of governing
claims for compensation, particularly at-​fault and no-​fault compensation
schemes. Although one might think the morality of corrective duties would
favour tort, I argue this is not the case, and in fact our duties are consistent
with all three institutional arrangements, in the sense that none imposes burdens on individuals that those individuals lack duties to bear for the sake of
compensating others. This means that empirical considerations play a more
decisive role in the justification (or otherwise) of tort law than many apologists
would be comfortable with. Which institutional arrangement should be preferred depends on issues such as deterrence, cost, and efficiency; the extent to
which the effects of background injustice can be mitigated; and uptake of meritorious claims, rather than the superiority of one arrangement over another
Download Complete Ebook By email at etutorsource@gmail.com
Download Complete Ebook By email at etutorsource@gmail.com
8
Wrongs, Harms, and Compensation
in implementing corrective justice. This conclusion challenges the assumption
that has structured the debate between reformists and apologists; that tort law
and compensation schemes embody irreducibly distinct paradigms of justice.
In truth, the morality of corrective duties is far more varied and flexible than
this dichotomy has led us to believe.
Download Complete Ebook By email at etutorsource@gmail.com
We Don’t reply in this website, you need to contact by email for all chapters
Instant download. Just send email and get all chapters download.
Get all Chapters For E-books Instant Download by email at
etutorsource@gmail.com
You can also order by WhatsApp
https://api.whatsapp.com/send/?phone=%2B447507735190&text&type=ph
one_number&app_absent=0
Send email or WhatsApp with complete Book title, Edition Number and
Author Name.