Abstract
I will discuss the relationship between two different accounts of remedial duty ascriptions. According to one account, the beneficiary account, individuals who benefit innocently from injustices ought to bear remedial responsibilities towards the victims of these injustices. According to another account, the causal account, individuals who caused injustices (even innocently) ought to bear remedial duties towards the victim. In this paper, I examine the relation between the principles central to these accounts: the Beneficiary Pays Principle and the well-established principle of Strict Liability in law. I argue that both principles display a strong yet unexplored similarity as they make certain kinds of causal connection sufficient for incurring liability. Because of this similarity, I suggest that insights into the Beneficiary Pays Principle can be gained from exploring its relation with Strict Liability. In particular, I examine two new positive arguments that could be adapted to support of the Beneficiary Pays Principle: the Minimising Injustice Argument and the Normative Connection Argument. However, I’ll show that only one of those arguments, namely the Normative Connection Argument, can truly support the Beneficiary Pays Principle. I conclude that, if you endorse the Normative Connection Argument for Strict Liability, you have at least a strong prima facie reason to endorse the parallel argument for the Beneficiary Pays Principle.
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Notes
It might be objected that the debate about strict liability is not parallel to that about the BPP but orthogonal to it. Strict liability is a claim about liability irrespective of fault. The BPP is a claim about liability irrespective of causal responsibility or fault. But—the objection goes—fault and causal responsibility needn’t always align in this way. We can think of cases where the persons who benefit from injustice are at fault, but the question may still arise whether they can be liable despite having no causal responsibility for the injustice. In reply, let me note the following. First, I follow here the bulk of the literature on the BPP in taking it to exclusively concern cases of innocently (viz. faultlessly) benefitting from injustice. Lack of fault is therefore an essential component of both debates. Second, it is true that one important disanalogy between Strict Liability and the BPP is that in the former one is causally responsible for the harm/injustice and in the latter one isn’t. My entire argument revolves around the point that although in the BPP case one isn’t causally responsible for the injustice, one is still causally related to it in a way that can generate liability (via a kind of ‘moral taint’). The parallel I draw between the two debates concerns the existence of a relevant causal relation. Third, my argument doesn’t require Strict Liability and the BPP to be normatively identical or for me to deny important differences between the two. It relies only on the weaker claim that there are structural parallels between the two that we can use to shed light on the BPP and to address persistent worries about its normative grounds. Finally, I address further the objection that the principles are too dissimilar in Sect. 7.3.
For a discussion of benefitting that is not innocent, see Goodin and Pasternak (2016).
Butt similarly argues that the BPP is easier to accept in cases involving such intention: ‘It is not a necessary condition of having these duties that it was intended that we benefit from the act of injustice but it may be that we can see our moral duties more clearly when this is indeed the case’ (Butt 2007, p. 146).
This distinction might remind of the distinction in law between two monetary remedies for wrongdoing; ‘restitutionary damages’ and disgorgement damages’. While restitutionary damages aim to reverse wrongful transfers, disgorgement damages aim to strip the beneficiary of profit made by wrongful conduct (Edelman 2002). Note that in law, these kinds of damages are attributed to those who wrongfully benefitted (hence not innocent beneficiaries).
Note that the fact that one has made a voluntary decision doesn’t mean that one is ultimately morally responsible. The arguments examined here do not need to commit themselves to specific views about moral responsibility and freedom of the will.
Consider, for instance, the predominant place that luck egalitarianism holds in debates on social justice. Luck egalitarians argue that redistribution should track substantive responsibilities and that only inequalities that do not result from agents’ differential responsibility should be corrected.
This corresponds to what Simester refers to as substantive Strict Liability: ‘an offence imposes substantive Strict Liability when it contemplates the conviction of persons who are blameless for committing that particular offence’ (Simester 2005, p. 23).
I found this account particularly congenial in thinking about benefitting cases. That said, I am not committed to it and I believe other competing accounts of causality, such as a probabilistic ones, are also compatible with the arguments presented here.
Note that in law, on the contrary, the concept of Strict Liability is restricted to specific fields of application.
It is important to note here that Strict Liability cover cases which involve the involuntary bringing about of a harmful outcome as well as cases which involve a voluntary but justified decision to bring about a harmful outcome. In a case discussed by Gardner (Vincent vs Lake Erie), the captain moors his boat at a dock, while a storm is raging in order to save his crew and his vessel from damage. Damage to the dock resulted and the owner of the dock was held entitled to compensation. In other words, the captain was held legally responsible for the damages while not being at fault (Gardner 2005). Since the captain made a decision to risk damages to the dock, he could be said to be substantively responsible as well as legally responsible for the damages. This explains why the debate on Strict Liability should be understood as focusing on the role of fault rather than on the role of responsibility. I am grateful to an anonymous reviewer for pressing me to think more about the predominant role of fault (rather than responsibility) in Strict Liability cases.
One might also endorse the view that both principles have a role and that the burden must thus be shared between Adam and Jennifer (Huseby 2013).
I will consider another aspect of this objection in section (namely the claim that causing isn’t similar to benefitting because of its relation to agency).
I owe this example to Robert Huseby.
Does that mean that if we accept the validity of the principle of Strict Liability, we are bound to accept the legitimacy of the BPP? No, as one of these principles might be overall better justified: even in the absence of a relevant normative distinction between the two, pragmatic reasons could still lead us to favor one principle over the other. For instance, it is often argued that, by instituting Strict Liability, we would give further incentives to individuals to avoid causing harm and that it is a good mechanism to allocate the costs of risk creating activities (Stanton-Ife 2007, p. 155). But similar as yet undiscovered pragmatic reasons might exist in favor of the BPP, as we might also be incentivised to become attentive to the source of our benefits and refuse to, say, acquire some goods, which might have been produced under unjust conditions. By refusing some benefits that could have resulted from injustices, we might prevent future similar injustices to be created, in particular when injustices are committed in order to benefit specific others (Haydar and Øverland 2014) or when the injustices would not be committed in the absence of a demand (sweatshops benefit the perpetrator and the beneficiary). So the similarity between the principles at the normative level cannot give us direct definite answer on the role and importance of each of the principles.
For a critique of this argument, see Stanton-Ife (2007).
Some might still object that the holding of remedial/disgorging duties would be tantamount to punishment. And punishment can only be justified if the person is found guilty of some criminal violation. But, in the non-stigmatising case of innocently benefitting from injustice, the holding of remedial/disgorging duties doesn’t amount to punishment.
For an example of this intuition, see Shue (2015, pp. 16–17).
I don’t want to suggest here that no argument could be made in support of the claim that benefits from injustices ought to be disgorged even when they don’t help the victim (in fact the Causal Connection Argument I explore later in this paper could support a beneficiary-centred version of the BPP, which would attribute duties to disgorge even when this can’t benefit the victim). Some authors have argued along these lines (Goodin 2013). In law, gain-based disgorgements greater than what is needed to compensate the victim have been justified on the ground that they could provide a deterrent (Edelman 2002). In this section, I aim to highlight that endorsing the Minimising Injustice Argument can only support a victim-centred version of the BPP.
This distinction might appear surprising. One might even want to investigate whether such a distinction is reasonable. For my purposes here, I merely want to point out that this distinction can’t be supported by the Minimising Injustice Argument. This however shouldn’t lead us to reject the distinction, as other arguments in support of the BPP not considered here might be able to justify it.
I don’t want to imply that the different principles I examine in this paper (including Strict Liability) are rivals. We could combine different principles by, for instance making the person who is strictly liable responsible for insuring, and hence spreading, the losses (I owe this suggestion to an anonymous reviewer for this Journal). Or in the case of the BPP, by making the beneficiary responsible for insuring.
The remedy principle: If and only if x holds vis-à-vis y a moral right against y’s phi-ing, y’s phi-ing will place y under a moral obligation to x to remedy the resultant situation in some way.
“Morally blameless actions often do change their agent’s moral situation for the worse. Often their agent is morally bound to repair, to mitigate, to apologize, or to explain. Explaining includes offering a justification or excuse.” (Gardner 2015, p. 3).
One possible interpretation that I won’t discuss here is that this normative claim ultimately relies on Gardner’s conception of ‘responsibility in the basic sense’ as the ‘ability to offer justifications and excuses- or alternatively the ability to explain oneself, to offer an account of oneself, to answer for oneself’ (Gardner 2007). I won’t discuss this possibility further here, as this conception of responsibility is not widely supported but it could ground the claim that morally blameless actions can have an effect on the agent’s moral situation as individuals are responsible in this sense even when they are not substantively responsible.
The justification of such considered judgments can be understood in several ways—as based in their intrinsic plausibility upon reflection, as based on prior intuitions or sentiments that survive critical scrutiny, or as the customary inputs to reflective equilibrium. For my purposes, it is enough that such appeals to our considered judgments are in line with standard practice in moral and political philosophy—including in the debates on the BPP and Strict Liability.
It is not clear that these arguments adapted from the arguments articulated by Gardner and Kramer can be made without any reliance on some considered judgments about what kinds of connection is normatively relevant. In these arguments, there is an implicit assumption that the beneficiary is the fitting duty-holder. Let us assume that you accept the claim that it is in the nature of rights to demand remediation when they are violated or that you accept Gardner’s claim that the reasons that stood against the violation of certain rights are still pressing us to do the ‘next best thing’. Either way, the argument assumes that the beneficiaries (or the causal agents in the original arguments) are the relevant duty-holders. This assumption is ultimately based, it seems to me, on our considered judgments about the relevant cases.
An implication of the non-identity problem is that in many cases, current people can’t be said to be benefitting from past injustices if these injustices are also conditions for their existence, as there is no alternative world in which they exist but don’t benefit (Caney 2006). Some have suggested that the BPP isn’t entirely vulnerable to that objection as it could merely limit its application (Barry and Kirby 2017). Others have suggested possible ways of avoiding the problem altogether (Butt 2007). However, I am putting aside the controversy related to this issue.
Moreover, once again, although the beneficiary is not responsible for receiving the benefits at t1, she is responsible for keeping the benefits received at t2 and, to that extent, contributes directly to an unjust distribution of goods. From this perspective, apologies, compensation or punishment might thus still be required.
But if the normative relevance of causal relations is based on the claim that we have reasons to remedy injustices, then intentions might matter less. But, as mentioned above, it is not clear to me that the claim can identify beneficiaries as the fitting duty-bearers without ultimately relying on certain considered judgments.
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Acknowledgements
For helpful written comments or discussions, I’d like to thank Cecile Fabre, Robert Huseby, Guy Kahane, Ole Martin Moen, Adam Perry, Henry Shue, Gerhard Øverland, as well as the members of the Centre for the Study of Social Justice (Oxford University), the audience members at the Conference in honour of Gerard Øverland, Philosophy Colloquium (Oslo University) and two anonymous reviewers for this Journal. For financial support, I’d like to thank the Research Council of Norway. I am also grateful to the CSMN (Oslo) for hosting me as a research fellow and to the Uehiro Centre for Practical Ethics (Oxford) for hosting me as a visiting fellow.
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Couto, A. The Beneficiary Pays Principle and Strict Liability: exploring the normative significance of causal relations. Philos Stud 175, 2169–2189 (2018). https://doi.org/10.1007/s11098-017-0953-y
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DOI: https://doi.org/10.1007/s11098-017-0953-y