Adam Slavny, ‘Nonreciprocity and the Moral Basis of Liability to Compensate’

This article offers a normative critique of the view, proposed by George Fletcher, that holding one person liable to compensate another for an injury she has caused is justified if it results from a nonreciprocal risk imposition. I briefly attempt to ascertain the moral underpinning of nonreciprocity, considering the concepts of fairness, standing and causation. Concluding that there is no compelling moral rationale for nonreciprocity, I use case analysis to show that two competing considerations — the extent to which either party could have avoided the risk and the distribution of benefits created by the risky activity — override nonreciprocity. I conclude that we ought to reject the nonreciprocity principle as a moral basis of liability to compensate. The results of the critique are not purely negative, however. In outlining and assessing the relevance of avoidability and benefit distributions, I make some progress towards a new account of liability to compensate for unintentional harm.

Adam Slavny, ‘Nonreciprocity and the Moral Basis of Liability to Compensate’. Oxford Journal of Legal Studies (2014). doi: 10.1093/ojls/gqt034. First published online: January 13, 2014.

First posted 2014-01-14 08:30:09

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