Darley, Solan, Kugler and Sanders, ‘Doing Wrong Without Creating Harm’

When one person negligently brings harm to another, the injured party generally can seek compensation under tort law. But what about cases in which, by another’s careless actions, a person is put in the path of harm but by chance no harm ensues? Since no harm results, the actor escapes the obligation of paying compensation that the wrong act would otherwise trigger. This question has long been of interest to philosophers, who examine it as an instance of “moral luck,” but it has also arisen with increasing frequency in tort law.

Courts now are presented with cases in which the actions of some entity make it possible, but not certain, that others will come to harm. Consider, for example, a toxic pollutant case. When a company negligently emits toxic chemicals, some people may be immediately harmed, others may be harmed after some delay, and still others who were exposed may not be affected at all. In this article we ask how such a negligent or reckless act should be punished, how the victim of the harm should be compensated, and what should be done for the person who might be harmed in the future. How to deal now with the possibilities of future harmful consequences is a topic that vexes the legal system.

We examine this question through the lens of lay intuitions; what common people think the law should be. Lay intuitions matter for a number of reasons. Many agree that society’s ability to gain compliance with the law relies to some extent on citizens perceiving that the law is a legitimate guide to moral conduct (e.g., Robinson & Darley 2007; Tyler 1992) and people may be less willing to support the justice system if they feel the law is not consistent with their personal moral codes (Mullen & Nadler 2008; Nadler 2005). The problem of community disagreements with legal codes becomes more pointed since it is the role of juries to determine outcomes and damage awards in tort cases. It would be awkward if juries’ notions of justice caused them to reach outcomes that were at odds with what the legal system held that the laws required.


John M Darley, Lawrence M Solan, Matthew B Kugler, and Joseph Sanders, “Doing Wrong Without Creating Harm” (2010) 7 Journal of Empirical Legal Studies 30.

First posted 2012-02-24 09:19:08

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