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On Benefiting from Injustice

Published online by Cambridge University Press:  01 January 2020

Daniel Butt
Daniel Butt*
Affiliation:
Oriel College, Oxford University, OxfordOX1 4EW, UK
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Extract

How do we acquire moral obligations to others? The most straightforward cases are those where we acquire obligations as the result of particular actions which we voluntarily perform. If I promise you that I will trim your hedge, I face a moral Obligation to uphold my promise, and in the absence of some morally significant countervailing reason, I should indeed cut your hedge. Moral obligations which arise as a result of wrongdoing, as a function of corrective justice, are typically thought to be of a similar nature.

Type
Research Article
Information
Canadian Journal of Philosophy , Volume 37 , Issue 1 , March 2007 , pp. 129 - 152
Copyright
Copyright © The Authors 2007

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References

1 Judith Jarvis, Thomson ‘Preferential Hiring’, in Rights, Restitution and Risk: Essays in Moral Theory (London: Harvard University Press 1986) 135–53, at 152Google Scholar

2 I use ‘involuntary’ here, and throughout, to indicate that the benefits in question are not voluntarily acquired or accepted, in that they are conferred upon those who receive the benefits without an exercise of the will on the part of the beneficiaries.

3 Miller, David ‘Distributing Responsibilities’, Journal of Political Philosophy 9 (2001) 453-71CrossRefGoogle Scholar

4 Miller, ‘Distributing Responsibilities’, 454Google Scholar

5 This is consistent with his argument in On Nationality (Oxford: Clarendon Press 1995), in which he outlines a theory of basic rights with correlative obligations regardless of nationality. These are principally conceived of as rights to f orbearance, 'but may also include rights to provision, for example in cases where a natural shortage of resources means that people will starve or suffer bodily injury if others do not provide for them’ (74).

6 Miller, ‘Distributing Responsibilities’, 454Google Scholar

7 Miller, ‘Distributing Responsibilities’, 454Google Scholar

8 Miller, ‘Distributing Responsibilities’, 469Google Scholar

9 Miller, ‘Distributing Responsibilities’, 461Google Scholar

10 Miller, ‘Distributing Responsibilities’, 470Google Scholar

11 See Burrows, Andrew The Law of Restitution (London: Butterworths 1993), 16–23.Google Scholar

12 Nickel, James W. ‘Justice in Compensation,’ William and Mary Law Review 18 (1976) 379–88,Google Scholarat 382

13 For discussion of this in a legal context, see Fuller, Lon L. and Purdue, William R. Jr., 'The Reliance Interest in Contract Damages’, Yale Law Journal 46 (1936) 52–96.CrossRefGoogle Scholar See also Frankel, Ellen Paul's discussion in ‘Set-Asides, Reparations and Compensatory Justice’, NOMOS XXXIII: Compensatory Justice, Chapman, John W. ed. (New York: New York University Press 1991) 97–139Google Scholar at 98-104.

14 Coleman, Jules L. Markets, Marals and the Law (Cambridge: Cambridge University Press 1988), 185Google Scholar

15 Though see the argument in Part III relating to morally relevant counterfactuals.

16 See Coleman, Jules L. ‘Justice and the Argument for No-Fault’, Social Theory and Practice 3 (1974) 161–80,CrossRefGoogle Scholar at 161.

17 Cane, Peter Atiyah's Accidents, Compensation and the Law (London: Butterworths 1993), 355Google Scholar

18 See Coleman, ‘The Morality of Strict Tort Liability’, William and Mary Law Review 18 (1976) 259–286Google Scholar and Honore, ‘Responsibility and Luck’, Law Quarterly Review 104 (1988) 530–53.Google Scholar

19 Thus Bernard Boxhill argues that Community membership is sufficient to ground obligations of compensation to victims on the part of the Community as a whole. Such a commitment is, he maintains, implicit in the community's social contract; so he writes, ‘The case for rights of compensation depends … on the fact that the individuals involved are members of a Single Community, the very existence of which should imply a tacit agreement on the part of the whole to bear the costs of compensation’ (Boxhill, ‘The Morality of Reparation’, in Gross, ed., Reverse Discrimination [Buffalo: Prometheus 1977] 270–8,Google Scholar at 272).

20 Saul Levmore, ‘Variety and Uniformity in the Treatment of the Good-Faith Purchaser’, Journal of Legal Studies 16 (1987) 43–65.CrossRefGoogle Scholar Levmore attributes the wide variety of practice he identifies in the treatment of good-faith purchasers of stolen goods to the existence of uncertainty or reasonable disagreement about the behavioural effects of alternative legal rules: ‘some reasonable people might favor the innocent owner, some might prefer the innocent purchaser, and others might split between the two on the basis of time passed, place of purchase, or both’ (57).

21 O'Neill, Onora ‘Rights to Compensation’, Social Philosophy and Policy 5 (1987) 72–87,CrossRefGoogle Scholar at 77

22 Thomson, ‘Preferential Hiring’, 152. This position, insofar as it relates to the benefit acquired by a group rather than by individuals, obviously raises important questions as to the distribution of compensatory burdens within the benefiting group, which Thomson only addresses fleetingly. For criticism, see Jones, ‘On the Justifiability of Reverse Discrimination’ in Gross, ed., Reverse Discrimination, 348-57. Others have questioned the extent to which all white males do in fact benefit from their societal identity. For defence of the proposition, see Lawrence, Charles R. III and Matsuda, Mari J. We Won't Go Back: Making the Case for Affirmative Action (Boston: Houghton Mifflin Company 1997).Google Scholar For Opposition, see Ezorsky, Gertrude Racism and Justice: The Case for Affirmative Action (Ithaca: Cornell University Press 1991), 83–4.CrossRefGoogle Scholar

23 This is the version of the principle given in Fullinwider's 1980 book, The Reverse Discrimination Controversy (Totowa, NJ: Rowman and Littlefield 1980). It replaces the more commonly cited ‘he who benefits from a wrong shall pay for the wrong' from his 1975 article, ‘Preferential Hiring and Compensation,’ Social Theory and Practice 3 (1975) 307-20.

24 Fullinwider, ‘Pref erential Hiring and Compensation’ in Steven M., Cahn The Affirmative Action Debate (New York: Routledge 2002) 68–78,Google Scholar at 75

25 Fullinwider, ‘Preferential Hiring and Compensation’, 75-6

26 Fullinwider, ‘Preferential Hiring and Compensation,’ 76.Google Scholar This point mirrors the legal doctrine of free acceptance. See Birks, An Introduction to the Law of Restitution (Oxford: Clarendon Press 1989), 265ff.Google Scholar

27 Perhaps I rent my house on a long-term lease. Or perhaps the re-surfacing has been cosmetic rather than structural. I am grateful to Hillel Steiner for helping to clarify this point.

28 Fullinwider assumes this to be the case: ‘Presumably I valued other things more dearly than having my own driveway repaired; otherwise I would have done it myself (The Reverse Discrimination Controversy, 39).

29 Generally, it seems to me that we should see the obligations of offender to victim as conceptually prior to any compensatory obligations other parties might have. O'Neill argues that only when compensation is forthcoming from offender to victim can restitution, in the sense of the restoration of the moral relationship between the parties, occur. As such, compensation is always a second-best response to an incidence of injustice. Thus there is a temptation to introduce lexical priority here, and hold that third parties only acquire compensatory obligations when offenders cannot or will not fulfil their own obligations. However, some may prefer to extend Miller's ‘connection theory’ into this area, and maintain that this is only a presumptive priority. It is quite possible to think of circumstances where relatively minor wrongs could have massive consequences, in that one party could lose and a third party could gain huge amounts, but where the offender makes no material gain at all, or even an Overall loss (should, for example, her plans go awry). It is not necessarily clear that the offender should foot all of this bill, even if she is able to, when such an obvious distortion has entered into the distributive scheme. Nonetheless, even Fullinwider's revised formula, ‘he who benefits from a wrong must help pay for a wrong’ is far too strong here, as in many cases of wrongdoing when a third party benefits, the entire bürden of compensation will fall on the wrongdoer.

30 Wolff, Jonathan ‘Political Obligation, Fairness and Independence’, Ratio 8 (1995) 87–99,CrossRefGoogle Scholar at 96. This point can be used in the context of Nozick's famous account of the Community public address System, whereby it is claimed that one has an Obligation to contribute a day's labour to the System on the grounds that one has benefited from it, even though one voted against its institution. See Anarchy, State and Utopia (New York: Basic Books 1974), 93-5. The bürden becomes less onerous if the proviso that one receives net benefit is included, which is to say that one has benefited even after doing one's day of Service. Nozick's initial example has such force because we imagine the possibility of an individual who has indeed benefited from the System, but not to the extent that he would receive a net benefit from having listened to the System and provided a day's labour.

31 My exposition of this section of the argument is deeply endebted to an anonymous referee for the Canadian Journal of Philosophy.

32 Thompson, Janna ‘The Apology Paradox’, The Philosophical Quarterly 50 (2000) 470–5,CrossRefGoogle Scholar at 475

33 Waldron, ‘Superseding Historic Injustice’, Ethics 103 (1992) 4–28,CrossRefGoogle Scholar at 11

34 See Butt, Rectifying International Injustice: Principles of Restitution and Compensation Between Nations (Oxford University Press, forthcoming)CrossRefGoogle Scholar as well as the discussion in Sher, George ‘Ancient Wrongs and Modern Rights’, Philosophy and Public Affairs 10 (1980) 3–17;Google Scholar Simmons, A. John ‘Historical Rights and Fair Shares’, in Simmons, Justification and Legitimacy: Essays on Rights and Obligations (Cambridge: Cambridge University Press 2001), 222–48;Google Scholar and Feinberg, Joel ‘Wrongful Life and the Counterfactual Element in Harming’, in Freedom and Fulfillment: Philosophical Essays (Princeton: Chichester 1992), 3–36.Google Scholar

35 Sher, ‘Ancient Wrongs and Modern Rights’, 13Google Scholar

36 Simmons, ‘Historical Rights and Fair Shares’, 171n.Google Scholar

37 Waldron, ‘Superseding Historic Injustice’, 6Google Scholar

38 Birks, The Foundations of Unjust Enrichment (Wellington: Victoria University Press 2002), 95Google Scholar

39 Birks, The Law of Restitution, 109Google Scholar

40 It should be noted here that the fact that the extent to which an individual benefits from a given action will, to a large extent, depend upon the subjective preferences of the agent does not necessarily mean that an individual cannot be mistaken concerning the degree of benefit which they have in fact received. Suppose it is the case both that a) I prefer, in aesthetic terms, my old driveway to my present driveway, and that b) the new driveway adds considerably to the value of my house. If I am not aware of (b), then it may be that I have in fact gained a net benefit from the act of injustice, but mistakenly believe that I have not. (Of course, it is still possible that even though I am ignorant of (b), my dislike of my new driveway is so great that I am not compensated by the increase in my property's value, and so have not benefited Overall.) In such a case, I do possess compensatory obligations to my neighbour, even though I am not aware of it. Whether or not I am culpable here, in moral terms, depends on whether we think I am negligent in failing to be aware of the true nature of the lasting ef f ects of injustice. As noted above, I do believe that moral agents face a duty to scrutinise actively the nature and provenance of their place in the world.

41 O'Neill, Onora ‘Rights to Compensation,’ 84Google Scholar

42 Fullinwider, The Reverse Discrimination Controversy, 37Google Scholar

43 I address this possibility in Butt, ‘Nations, Overlapping Generations and Historie Injustice’, American Phäosophical Quarterly 43 (2006) 357–67.Google Scholar

44 I would like to thank the following for their comments on this article: Cläre Chambers, Francesca Galligan, Robert Goodin, Dan McDermott, David Miller, Jon Quong, Henry Shue, Hillel Steiner, Zofia Stemplowska, Adam Swift and anonymous referees from the Canadian Journal of Philosophy. I would also like to thank partieipants of the Nuffield College Workshop in Political Theory in Oxford.