In some cases, harming another gives rise to a duty to compensate for harm done. This paper argues that the influential explanations of such duties of compensation—that they are somehow derived from rights intrusions, or breaches of duties not to harm—fail. I offer and defend an alternative explanation for why certain harms and not others give rise to compensatory duties, an explanation that seeks to derive them from wide-scope duties not to harm or to compensate for harm done.

The union of contemporary philosophy and tort law has never been better. Perhaps the most dynamic current in contemporary tort theory concerns the increasingly sophisticated inquires into the doctrinal elements of the law of torts, with the tort of negligence in particular garnering the most attention from theorists. In this article, I examine philosophically rich issues revolving around each of the elements constituting the tort of negligence: compensable injury, duty, breach, actual cause, and proximate cause.

I explore how agent-regret and its object—faultlessly harming someone—can call for various responses. I look at two sorts of responses. Firstly, I explore responses that respect the agent’s role as an agent. This revolves around a feature of “it was just an accident”—a common response to agent-regret—that has largely gone ignored in the literature: that it can downplay one’s role as an agent. I argue that we need to take seriously the fact that those who have caused harms are genuine (...) agents, to ignore this fails to allow these agents to move on. Secondly, following Sussman and MacKenzie, I explore responses that benefit the victim. I argue that we should strive to understand how to configure these responses in a way that does not blame the agent. To do this I look at the role of actions in our self-understanding, as people who have done particular things. I end by briefly considering the ways in which tort law and restorative justice might help us to understand how to appropriately respond to accidentally harming someone. I urge that we need to take this as a starting point to find a better way to respond to the agents of faultless harms. (shrink)

When sporting agents fail through wrongful or faulty behaviour, they should feel guilty; when they fail because of a deficiency in their abilities, they should feel shame. But sometimes we fail without being deficient and without being at fault. I illustrate this with two examples of players, Moacir Barbosa and Roberto Baggio, who failed in World Cup finals and cost their teams the greatest prize in sport. Although both players failed, I suggest that neither was at fault and neither was (...) deficient. I argue that we can fail through no fault of our own because our abilities are always fallible. This fallibility means that to succeed – to achieve sporting glory – we must run the risk of failure. The appropriate emotion to feel over such failures is agent-regret. Sporting agents and observers should not take up what I call the ‘critical position’: the idea that someone who fails must be deficient or must have been at fault. This allows for a softer, but also more accurate, attitude towards our own failures and the failures of others. I end by suggesting that the fallibility of our abilities is made clear through playing or watching sport, and this can illuminate life more broadly. (shrink)

This essay answers two questions that continue to drive debate in moral and legal philosophy; namely, ‘Is a risk of harm a wrong?’ and ‘Is a risk of harm a harm?’. The essay’s central claim is that to risk harm can be both to wrong and to harm. This stands in contrast to the respective positions of Heidi Hurd and Stephen Perry, whose views represent prominent extremes in this debate about risks. The essay shows that there is at least one (...) category of risks – intentional impositions of risk on unconsenting agents – which can be both wrongful and harmful. The wrongfulness of these risks can be established when, on the balance of reasons, one ought not to impose them. The harmfulness of these risks can be established when the risks are shown to set back legitimate interests. In those cases where risks constitute a denial of the moral status of agents, risks set back agents’ interest in dignity. In these ways, the essay shows that there are instances when a risk can constitute both a wrong and a harm. (shrink)

The political representation of future generations would change the relationship between public decisions and the members of democratic political systems. In this paper we examine the implication of these changes on the responsibility of the living members for the future effects of current polices with special reference to climate change. The claim defended is that the collective responsibility of the living members for future outcomes diminishes when public decisions are made less responsive to them. In order to explain why this (...) is the case a ‘participatory account' of collective responsibility is developed according to which collective responsibility is premised on the extent to which public decisions depend on their members. The paper concludes with a discussion on the grounds for valuing collective outcome responsibility and why the conflict between this norm and the claim that future generations should be granted political representation poses fundamental questions about the value of democracy. (shrink)

The paper addresses the nature of duties grounded in human rights. Rather than being protections against harm, per se, I contend that human rights largely shield against risk impositions to protected interests. “Risk imposition” is a normative idea requiring explication, but understanding dutiful action in its terms enables human rights to provide prospective policy guidance, hold institutions accountable, operate in non-ideal circumstances, embody impartiality among persons, and define the moral status of agencies in international relations. Slightly differently, I indicate a (...) general understanding of dutiful action that permits human rights to see to the tasks of an institutional morality. (shrink)

This chapter contains sections titled: Economic Theories: Internalization Economic Theories: Deterrence Economic Theories: Loss Spreading Rights‐Based Theories and Distributive Justice Rights‐Based Theories and Corrective Justice References.

This paper surveys the current philosophical discussion of the ethics of risk imposition, placing it in the context of relevant work in psychology, economics and social theory. The central philosophical problem starts from the observation that it is not practically possible to assign people individual rights not to be exposed to risk, as virtually all activity imposes some risk on others. This is the ‘problem of paralysis’. However, the obvious alternative theory that exposure to risk is justified when its total (...) benefits exceed its total costs faces the standard distributional challenges of consequentialism. Forms of contractualism have been proposed as a solution, but how exactly such theories can be formulated remains problematic, especially when confronted with the difficult cases of mass, novel, risk such as climate change. (shrink)

This paper surveys the current philosophical discussion of the ethics of risk imposition, placing it in the context of relevant work in psychology, economics and social theory. The central philosophical problem starts from the observation that it is not practically possible to assign people individual rights not to be exposed to risk, as virtually all activity imposes some risk on others. This is the ‘problem of paralysis’. However, the obvious alternative theory that exposure to risk is justified when its total (...) benefits exceed its total costs faces the standard distributional challenges of consequentialism. Forms of contractualism have been proposed as a solution, but how exactly such theories can be formulated remains problematic, especially when confronted with the difficult cases of mass, novel, risk such as climate change. (shrink)

This paper examines the efforts of contractualists to develop an alternative to aggregation to govern our duty not to harm (duty to rescue) others. I conclude that many of the moral principles articulated in the literature seem to reduce to aggregation by a different name. Those that do not are viable only as long as they are limited to a handful of oddball cases at the margins of social life. If extended to run-of-the-mill conduct that accounts for virtually all unintended (...) (in the sense of undesired) harm to others—noncriminal activities that impose some risk of harm on others—they would rule out all action. Moreover, because such conduct poses an irreducible conflict between freedom of action and freedom from expected harm, it can be regulated only by principles that accept the necessity of making precisely the sorts of interpersonal trade-offs that contractualism is foundationally committed to reject: trade-offs in which the numbers count, such that a risk of serious harm to one person can be justified by small benefits to the many. (shrink)

How can tort reparation be justified? Stephen Perry's comparative account relies on two ideas: (1) the loss arising from an injurious event should be distributed between the injurer and the victim rather than be borne by society at large; and (2) the distribution of loss between the injurer and the victim depends on a comparison of their “relative degree of fault.” Many believe that a strength of the comparative account lies in its ability to explain apportionment in contributory negligence cases. (...) I argue, to the contrary, that such cases pose a serious difficulty for the account. (shrink)