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STRICT MORAL LIABILITY

Published online by Cambridge University Press:  03 September 2019

Justin A. Capes
Justin A. Capes*
Affiliation:
Humanities, Flagler College
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Abstract:

Strict liability in tort law is thought by some to have a moral counterpart. In this essay I attempt to determine whether there is, in fact, strict liability in the moral domain. I argue that there is, and I critically evaluate several accounts of its normative foundations before suggesting one of my own.

Keywords

strict liabilitymoral responsibilityblameworthinessremedial obligationapology
Type
Research Article
Information
Social Philosophy and Policy , Volume 36 , Issue 1 , Summer 2019 , pp. 52 - 71
Copyright
Copyright © Social Philosophy and Policy Foundation 2019 

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Footnotes

*

An earlier version of this essay was presented at the Rutgers Responsibility Workshop. My thanks to the audience at that gathering, and to the other contributors to the present volume for their helpful feedback. I’d especially like to thank Justin Coates, Macalester Bell, David Black, Doug Husak, Elinor Mason, Michael McKenna, David Shoemaker, Jada Strabbing, Philip Swenson, Hannah Tierney, and an anonymous referee, all of whom provided especially helpful criticisms and feedback.

References

1 Terminological note: I use the term “restitution” to cover both reparation and compensation, where “reparation” involves restoring the status quo ante, and “compensation” involves bestowing benefits on the victim designed to offset the victim’s suffering or loss but which aren’t, strictly speaking, reparative. Also, to say that an agent is culpable or blameworthy is to say that he deserves, in a basic sense, blame and possibly other sanctions too.

2 See, e.g., Hart, H. L. A., The Concept of Law (Oxford: Clarendon Press, 1961), 168–69.Google Scholar

3 Rosen, Gideon, “The Alethic Conception of Moral Responsibility,” in Clarke, Randolph, McKenna, Michael, and Smith, Angela M., eds., The Nature of Moral Responsibility: New Essays (New York: Oxford University Press, 2015), 66.Google Scholar

4 Some readers have expressed skepticism about whether we would ordinarily consider agents in cases like these to be blameless. Mightn’t we deem such agents worthy of at least some blame on the grounds that we could reasonably have expected them to govern themselves more carefully? Perhaps we would, if we suspected them to be guilty of some form of negligence. But I think there are many ordinary cases like this in which it would be exceedingly demanding to expect the agent to have been more careful. Perhaps the person could indeed have exercised more care and thereby prevented the incident, but perhaps too that would have required a level of vigilance on her part that can’t reasonably be expected of people in the mundane activities of everyday life. Suppose, for instance, that part of what led to Phyllis breaking the plate in Damaged Goods was that her attention was momentarily and understandably diverted by the unforeseeable and uncharacteristic shenanigans of her nephew who was horsing around outside the shop. In cases like that, Phyllis’s momentary lapse of attention and the damage in which it resulted strike me as entirely blameless.

5 Rosen, Gideon, “Skepticism about Moral Responsibility,” Philosophical Perspectives 18, no. 1 (2004): 296.CrossRefGoogle Scholar

6 Though, as an anonymous referee pointed out to me, we might wonder why this is so. What is it about being blameworthy for a harm that makes it especially clear that there is an obligation to make restitution? Here’s a stab at answering the question. Incurring an obligation to pay damages or otherwise make restitution can be viewed as a kind of sanction (see, for example, Rosen, “Skepticism about Moral Responsibility, 296), and discharging an obligation of that sort often requires making sacrifices to your own interests. In the case of culpable injurers, the sanction and the loss involved in it are deserved (that’s part of what being culpable involves), whereas in cases in which the injurers aren’t culpable, the losses are undeserved.

7 Couto, Alexandra, “The Beneficiary Pays Principle and Strict Liability: Exploring the Normative Significance of Causal Relations,” Philosophical Studies 175, no. 9 (2018): 2169–89, raises a similar worry.CrossRefGoogle Scholar

8 Couto, “The Beneficiary Pays Principle and Strict Liability.” See also Epstein, Richard, “A Theory of Strict Liability in Tort,” Journal of Legal Studies 2, no. 1 (1973): 151–204.CrossRefGoogle Scholar

9 Thanks to an anonymous referee for drawing my attention to cases like this.

10 See, e.g., MacCormick, D. N., “The Obligation of Reparation,” Proceedings of the Aristotelian Society, new series, vol. 78 (1977–1978): 175–93, andCrossRefGoogle Scholar Gardner, John, “What is Tort Law For? Part I. The Place of Corrective Justice,” Law and Philosophy 30, no. 1 (2011): 1–50.CrossRefGoogle Scholar

11 See, e.g., MacCormick, “The Obligation of Reparation.” For a slightly different argument linking rights with remedial obligations, see Kramer, Matthew, “Moral Rights and the Limits of the Ought-Implies-Can Principle: Why Impeccable Precautions are No Excuse,” Inquiry 48, no. 4 (2005): 307–55.CrossRefGoogle Scholar

12 Gardner, “What is Tort Law For?” 33.

13 Ibid., 33–34.

14 Epstein, “A Theory of Strict Liability in Tort,” 175, denies this (at least in the case of legal liability), claiming that if A compels B to harm C, then “C has a prima facie case against B,” and that B can’t escape liability by showing that he was compelled by A. (It’s worth noting that, on Epstein’s view, B will have a legitimate claim “against A after he [B] has paid C,” and that C can also make a direct claim against A, thereby bypassing B entirely.) But this position has some rather implausible consequences, at least when applied to the moral domain. If a mob boss compels me at gunpoint to punch you in the face and is culpable for doing so, it seems mistaken to say that the mob boss and I have similar compensatory obligations to you or that it would be just as reasonable for you to demand compensation from me as it would be for you to demand it of the mob boss.

15 Swinburne, Richard, Responsibility and Atonement (Oxford: Clarendon Press, 1989), 204.CrossRefGoogle Scholar

16 Ibid., 205.

17 Epstein, “A Theory of Strict Liability in Tort,” 168, is explicit on this point, saying that proof that A caused harm to B suffices “to establish a prima facie case of liability. I do not argue that proof of causation is equivalent to a conclusive demonstration of responsibility.” MacCormick, “The Obligation of Reparation,” 181, makes a similar qualification, noting that the obligation to make reparation “is no doubt itself restricted by [the injurer’s] ability to pay, and it may also be restricted by a possible duty on [the victim], having regard to his own and [the injurer’s] relative means, not to demand or even accept payment by [the injurer] beyond what he can reasonably afford.”

18 Couto, “The Beneficiary Pays Principle and Strict Liability,” has independently proposed a similar response on behalf of strict liability.

19 Mason, Elinor, “Between Strict Liability and Blameworthy Quality of Will: Taking Responsibility,” Oxford Studies in Agency and Responsibility vol. 5, forthcoming, discusses similar cases, arguing that the agent should take responsibility for what she did, her blamelessness notwithstanding.Google Scholar

20 Cf. Radzik, Linda, Making Amends: Atonement in Morality, Law, and Politics (New York: Oxford University Press, 2009), esp. chap. 4.CrossRefGoogle Scholar

21 This view of apologies and the development of it that follows owes much to Swinburne, Responsibility and Atonement, 82–84.

22 Swinburne makes a similar point. He says, “If unintentionally we are the agents of harm, we must distance ourselves from that agency. But in so far as we never intended it in the first place (and had every intention of preventing it), what we must do is to emphasize that our present benevolent ideals and purposes were our past ones also. An apology . . . is needed; but it needs behind it no repentance in the form of change of mind, only sincerity in the re-emphasis of ideals and purposes” (Swinburne, Responsibility and Atonement, 83).

23 We might think of this further demonstration as a component of the apology, or instead as something distinct from, but importantly connected to, the apology. On the former view, the further demonstration is necessary because it’s part of what it is to apologize. On the latter view, the further act is necessary not because it’s part of apologizing, but rather because it helps us substantiate the apology. On this view, we are obligated to offer a particular kind of apology, namely, a sincere one, and the further act helps demonstrate that that is the sort of apology on offer. For present purposes, nothing of significance hinges on which of these two views we adopt.