Middle ground on liability for costs?

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Abstract

On the strict liability view, excusably ignorant agents must cover all the wrongful costs they have inadvertently brought onto others, although it is undisputed that they are not at fault. On the fault liability view, victims need not be compensated by excusably ignorant harmers. To some, both views appear harsh. Under fault liability, those who cause harm are seen as getting off scot-free while victims suffer. Under strict liability, agents are viewed as being burdened without any fault of their own. In response to a seemingly intractable conflict between competing theories, some have called for compromise. Caney (Crit Rev Int Soc Polit Philos 13(1):210, 2010) has proposed a “modified strict liability principle” which was further developed by Bell (Monist 94(3):391–411, 2011). The principle’s revision is promising because it gives substantive reason for why and how middle ground should be achieved. In this paper, I assess this proposal and the prospects for mediating between strict and fault liability more generally. Specifically, I (1) introduce concepts, (2) present Bell’s principle of limited liability, (3) critique it, and (4) explore general avenues for finding middle ground between strict and fault liability.

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Notes

  1. 1.

    For discussions of the concept of excusable ignorance see, e.g., Smith (1983), Zimmerman (1997) and Rosen (2008). Note that this introduction and the following background section build, in part, on Wündisch (2017a).

  2. 2.

    This is a variant of the thought experiment Meteorite Strike that features in Sects. 3 and 4.

  3. 3.

    See e.g. Coleman (1992), Shue (1999), Risse (2008), Bell (2011), Zellentin (2015) and Wündisch (2017a, b).

  4. 4.

    Under fault liability, excusably ignorant agents are not liable for compensation. However, depending on the correct theory of enforcement rights, they may be just targets of limited preventive harm for their non-just rights-intrusions. See Vallentyne (2011, 2016).

  5. 5.

    The normative relevance of the difference between moral and empirical ignorance is not universally accepted. While Fields (1994), Guerrero (2007), Harman (2011) and Bell (2011) support it, Zimmerman (1997: 422–423) and Rosen (2003: 64) do not. Zimmerman (1997: 422–423) holds that moral and empirical ignorance excuse in the same way and for the same reasons. Rosen (2003: 64) defends the same position, calls it the “parity thesis”, and specifies that “[w]henever an agent acts from ignorance, whether factual or moral, he is culpable for the act only if he is culpable for the ignorance from which he acts.”.

  6. 6.

    The account of excusable ignorance I present in this section and rely upon throughout the paper is that of Rosen (2003: 63, 2004: 300–301, 2008: 609). See also Wündisch (2017a: 838–839).

  7. 7.

    See, e.g., Miller and Perry (2012) and the literature cited at Wündisch (2017a: 839, note 6).

  8. 8.

    Wündisch (2017a: 839).

  9. 9.

    Kiesewetter (2011: 1).

  10. 10.

    Bell (2011: 402).

  11. 11.

    Less often subjectivism is called perspectivism. For example, Kiesewetter (2011: 1) employs this terminology, points out that perspectivism “is sometimes spelled out in terms of the agent’s actual beliefs, and sometimes in terms of the evidence available to the agent”, and reserves the term subjectivism for belief-relative rather than evidence-relative perspectivism. I speak of subjectivism and objectivism throughout. The kind of subjectivism relevant to the debate at hand is evidence-relative.

  12. 12.

    Andrić (2013: 549). On expectable value see Zimmerman (2008: 38–39) on projected value see Zimmerman (2014: 36, 73).

  13. 13.

    Bell (2011: 403) refers to his principle as a “principle of limited liability”. This terminology is similar to, but should not be confused with, the use of “limited liability” in corporate law. There “limited liability” usually specifies that the financial liability of an owner of a limited company is limited to her investment in that company and does not extend to her personal assets. In Bell (2011) the principle of limited liability captures the idea that the liability for costs of excusably ignorant agents is limited by the benefits they derive from the harmful act in question. I use the terms limited liability and partial liability interchangeably to refer to that idea.

  14. 14.

    Here Bell (2011) glosses over the dispute between objectivists and subjectivist on the distinction between right and wrong. While objectivists indeed claim that judgments about right or wrong should be independent of the agent’s perspective, subjectivists disagree. Note that the truth of objectivism is crucial for Bell’s account. For, if subjectivism is true, the moral agent Bell describes has not acted wrongly. Thus, the truth of subjectivism would undercut Bell’s argument at an early stage. See, for example, Jackson (1991), Zimmerman (2008), Kiesewetter (2011) and Andrić (2013).

  15. 15.

    Bell (2011: 402).

  16. 16.

    The dual standpoint approach is based on Bell (1999).

  17. 17.

    See Caney (2010: 210 and 223, note 16).

  18. 18.

    Note that further assumptions are required to support the conclusion that objectivists would judge P to have acted wrongly. If determinism is true, than P acted wrongly as judged by objectivism. If, however, determinism is false, the assessment becomes more complicated. Objectivists about moral obligation may argue that whether or not P’s action was wrong depends not on whether the meteorite happened to hit the peasants, but rather, on the objective probability of that occurrence at the time of P’s action. Therefore, if the objective probability of the meteorite strike was sufficiently low, even objectivists may judge P’s action to be right. See Vallentyne (1987: 58–60).

  19. 19.

    See Shue (1999: 536), Neumayer (2000: 188), Singer (2002: 34), Gardiner (2004: 581) and Wündisch (2017b: 275–276).

  20. 20.

    In an endnote, Bell (2011: 409) briefly mentions that bystanders may also be held liable but assigns lexical priority to burdening excusably ignorant harmers as opposed to excusably ignorant bystanders. I address this additional consideration in Sect. 5.3.

  21. 21.

    On the more general case against regret, see Bittner (1992).

  22. 22.

    See Zimmerman (2008), Kiesewetter (2011) and Andrić (2013).

  23. 23.

    For an equivalent definition of harm see, for example, the seminal Nozick (1974: 57). For a counterfactual definition of benefit see, for example, Parfit (1984: 487). See also Caney (2006: 474, 481).

  24. 24.

    Here, Bell (2011: 401–402) draws on Risse (2008: 31–32).

  25. 25.

    Bell (2011: 402).

  26. 26.

    A further concern, which I cannot fully address here, is that under strict liability blameless agents are being burdened due to no fault of their own. If strict liability is thought to be important in order to incentivize agents to take greater care, the charge of burdening blameless victims can be avoided by ensuring ex-ante that reasonable agents are aware of their exposure to strict legal liability. Wündisch (2017a: 844–846). See also Risse (2008: 32).

  27. 27.

    See also Wündisch (2017a: 846–849).

  28. 28.

    Even if ignorant agents are either culpably or excusably ignorant with respect to some damage, their liability for costs may be partial with respect to the overall damages incurred by a victim. This may be so in situations where causally responsible agents were excusably ignorant regarding part of the overall damages incurred and culpably ignorant regarding the remainder. Here liability for costs is not fully gradual but at least partially sensitive to the extent of one’s ignorance (if not to the intensity of the blameworthiness of that ignorance).

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Acknowledgements

I would like to thank Rüdiger Bittner, Frank Dietrich, Benjamin Huppert, Peter Vallentyne, Fabian Wendt, audiences in Berlin, Bielefeld, Bremen, Düsseldorf, and Manchester, as well as the editor and the anonymous reviewers for their helpful comments.

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Correspondence to Joachim Wündisch.

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Wündisch, J. Middle ground on liability for costs?. Philos Stud 177, 3097–3115 (2020). https://doi.org/10.1007/s11098-019-01361-6

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Keywords

  • Liability for costs
  • Fault liability
  • Strict liability
  • Excusable ignorance
  • Responsibility
  • Regret
  • Fallibility