Document Type

Article

Comments

Mischief and Misfortune (with Arthur Ripstein), 41 McGill Law Journal 91 (1995)

Abstract

This article argues that the problems of corrective and distributive justice are, at bottom, the same. The authors argue that both can be understood as responses to the question: who owns which of life's misfortunes? Two extreme but unattractive positions set the range of possibilities. All misfortunes could be left where they fall, or all could be held in common. Neither extreme is attractive, because neither has room for the intuitive idea of responsibility, that is, that people should bear the costs of their activities. Libertarians try to incorporate that idea by adding a rule of strict liability for injuries as an exception to a general rule that injuries should lie where they fall. Liberal egalitarians seek to make room for responsibility by supposing that all misfortunes should be held in common except those to which people willingly expose themselves. The authors argue that the libertarian and the egalitarian employ parallel strategies, neither of which can succeed, because, on their own, the concepts of causation and choice are indeterminate. The idea that people should bear the costs of their activities to others depends on an objective measure of the value of activities.

Date of Authorship for this Version

1995

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