Nonreciprocity and the Moral Basis of Liability to Compensate

Abstract

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.