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Nonreciprocity and the moral basis of liability to compensate
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Slavny, Adam (2014) Nonreciprocity and the moral basis of liability to compensate. Oxford Journal of Legal Studies, Volume 34 (Number 3). pp. 417-442. doi:10.1093/ojls/gqt034 ISSN 1464-3820.
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Official URL: http://dx.doi.org/10.1093/ojls/gqt034
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.
Item Type: | Journal Article | ||||||||
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Divisions: | Faculty of Social Sciences > School of Law | ||||||||
Journal or Publication Title: | Oxford Journal of Legal Studies | ||||||||
Publisher: | Oxford University Press | ||||||||
ISSN: | 1464-3820 | ||||||||
Official Date: | September 2014 | ||||||||
Dates: |
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Volume: | Volume 34 | ||||||||
Number: | Number 3 | ||||||||
Page Range: | pp. 417-442 | ||||||||
DOI: | 10.1093/ojls/gqt034 | ||||||||
Status: | Peer Reviewed | ||||||||
Publication Status: | Published | ||||||||
Access rights to Published version: | Restricted or Subscription Access |
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