In defence of infringement

Law and Philosophy

Volumn 27, Issue 3, 2008, Pages 269-292

  Botterell, Andrew ^a  

^a UNIVERSITY OF WESTERN ONTARIO   (Canada)

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EID: 41349114043     PISSN: 01675249     EISSN: None     Source Type: Journal    
DOI: 10.1007/s10982-007-9018-2     Document Type: Article

References (52)

1. Oberdiek, John, 'Lost in Moral Space: On the Infringing/Violating Distinction and Its Place in the Theory of Rights', Law and Philosophy 23 (2004): 325-346.
2. See Hohfeld, Wesley, 'Some Fundamental Legal Conceptions as Applied in Judicial Reasoning', The Yale Law Journal 23(1) (1913): 16-59. In what follows I rely heavily on Judith Thomson's explication of Hohfeld's analysis of rights.
3. See in particular Thomson, Judith, The Realm of Rights (Cambridge, MA: Harvard University Press, 1990).
4. Hohfeld (1913, p. 30).
5. Hohfeld (1913, p. 32).
6. Hohfeld and Thomson also talk about powers and immunities. Because they are not relevant to the points I wish to make, I will ignore them in what follows.
7. Thomson (1990, p. 122).
8. Thomson, Judith, 'Self-defense and Rights', in Rights, Restitution, and Risk (Cambridge, MA: Harvard University Press, 1986), pp. 33-48.
9. A similar criticism can be found in Margery Bedford Naylor's review of Thomson's Rights, Restitution, and Risk.
10. See Bedford Naylor, Margery, Review of Rights, Restitution, and Risk, Noûs 23(3) (1989): 399-401.
11. Feinberg, Joel, 'Voluntary Euthanasia and the Inalienable Right to Life', Philosophy and Public Affairs 7(2) (1978): 93-123 at p. 102.
12. Feinberg (1978, p. 102).
13. The phrase 'does nothing wrong' is purposefully vague. I will make it more precise below.
14. For an example of somebody who sees things in this way, see Montague, Philip, 'Rights and Duties of Compensation', Philosophy and Public Affairs 13(1) (1984): 79-88.
15. Perhaps the hiker's reasons will give rise to actions that are either justified or excused. It is commonplace to distinguish justifications from excuses. An excuse is something that calls attention to features of the agent at the time that she performs an action. Thus, an agent claiming an excuse admits that the action in question was wrongful, but denies that she was appropriately responsible for its performance. A justification, on the other hand, calls attention to features of the situation or circumstances at the time that the agent performs an action. Thus, an agent claiming a justification admits that she is responsible for the action in question, but denies that the action was wrongful in the circumstances. It is uncontroversial, moreover, that the distinction between justifications and excuses is an important one. A justification entails that the accused has done nothing wrong, while an excuse entails that the accused has done something wrong, but that for various reasons her punishment should be subject to reduction. Thus, if the hiker breaks into the cabin because he is on the verge of starvation, his action might give rise to a justification, If he breaks in because he mistakenly believes that the cabin is his, his action might give rise to an excuse. I am not entirely sure to what extent the distinction between justifications and excuses is relevant to the Cabin Case, and if it is, how it ought to be incorporated into discussion of the example. For some discussion of these issues, see Greenawalt, Kent, 'The Perplexing Border Between Justification and Excuse', Columbia Law Review 84(8) (1984): 1897-1927;
16. Gardner, John, 'Justifications and Reasons', in A.P. Simester and A.T.H. Smith (eds.), Harm and Culpability (Oxford: Oxford University Press, 1996), pp. 103-129,
17. and Gardner, John, 'The Gist of Excuses', Buffalo Criminal Law Review 1 (1997-1998): 575-598.
18. Montague (1978 at p. 80).
19. Westen, Peter, 'Comment on Montague's "Rights and Duties of Compensation'", Philosophy and Public Affairs 14(4) (1985): 385-389, p. 386.
20. I am not suggesting that if X has a claim against Y that S obtain, and if as a result of S's obtaining Y suffers a harm or loss, then X should not be liable for that loss. It is worth comparing this case with another, similar, one. Suppose that X has a duty to Y to allow Y to use X's car to go to the corner store. And suppose that while driving to the store, Y gets into an accident and destroys X's car. Here X can surely demand compensation from Y even though the harm occurred while Y was doing what X had a duty to allow Y to do. The difference here is that Y had no claim against X that Y could destroy X's car whereas by hypothesis the hiker did have such a claim against the cabin-owner.
21. For a convincing defence of this idea, see Brudner, Alan, 'A Theory of Necessity', Oxford Journal of Legal Studies 7(3) (1987): 339-368.
22. The claim that H can avail himself of a defence of necessity might be challenged on the grounds that necessity is a complete defence, i.e., a justification. For arguments to this effect see, for example, Brudner (1987). But from the idea that necessity is a complete defence it would seem to follow that H does nothing wrong, i.e., commits no wrongful act. But if that is so, then it is harder to see how there could be a civil requirement that H pay C for the property used, consumed, or destroyed. I think that there are two sorts of responses here. First, one could argue that necessity only works as an excuse, and hence, as a partial defence. Or one could insist that the criminal and civil realms are distinct: that H commits no criminal wrong - that H acts in an entirely justified manner with respect to the criminal realm - does not entail that H commits no civil wrong. This seems right. For H could lack the requisite mens rea for the criminal act but still be guilty of negligence leading to a civil wrong.
23. Westen (1985, pp. 388-389). Of course, it is one thing to say that this state of affairs is consistent; it is another thing to say that this is the state of affairs that we ought to prefer. Why, it might be asked, should the burden of compensation fall on the hiker alone? Why shouldn't it fall in whole or in part on the cabin-owner?
24. Bohlen, Francis, 'Incomplete Privilege to Inflict Intentional Invasions of Interests of Property and Personality', Harvard Law Review 39 (1926): 307-324, p. 316.
25. I wonder whether there is a tighter connection between infringements and violations, and criminal and civil wrongs. Indeed, I wonder whether we could say that rights violations simply are what we would call criminal wrongs; and that mere rights infringements simply are what we would call civil wrongs. For speculation along the same lines, see Brudner, Alan, 'Agency and Welfare in the Penal Law', in S. Shute, J, Gardner, and J. Horder (eds.), Action and Value in the Criminal Law (Oxford: Clarendon Press, 1993), pp. 21-53
26. and Brudner, Alan, The Unity of the Common Law (Berkeley: University of California Press, 1995).
27. Oberdiek (2004).
28. See Oberdiek (2004, p. 331). Oberdiek notes that the argument is strictly speaking invalid, but argues that when it is coupled with the assumption that there is no other possible explanation for the duty of compensation, the conclusion follows. I am not sure that I completely understand this claim, but no matter.
29. Strawson, P.F., 'Freedom and Resentment', in Gary Watson (ed.), Free Will (Oxford: Oxford University Press, 1982), pp. 59-80.
30. Thomson (1990, p. 85).
31. Thomson (1990, p. 85).
32. Feinberg (1978, p. 102).
33. Oberdiek (2004, p. 332).
34. Oberdiek (2004, p. 333).
35. Oberdiek (2004, p. 337).
36. The classic judicial statement about the need to pay compensation in such cases is Vincent v. Lake Erie Transportation Co., 124 N.W. 221 (Minn. 1910).
37. Another case that reaches a similar conclusion concerning liability is Ploof v. Putnam (Vt.), 71 Atl. 188, 20 LRA (NS) 152.
38. For endorsement of the idea that the duty to pay compensation is compatible with permissible rights infringements see again Westen (1985); Bohlen (1926); Thomson, Judith, 'Rights and Compensation', in Rights, Restitution, and Risk (Cambridge, MA: Harvard University Press, 1986), pp. 66-77, and Thomson (1990); and Feinberg (1978).
39. It should be noted, however, that although there is general agreement that compensation is owed in cases like Vincent v. Lake Erie, there is considerable disagreement about the basis for that liability. For an excellent discussion of the issues raised by Vincent v. Lake Erie, see Klimchuk, Dennis, 'Necessity and Restitution', Legal Theory 7(1) (2001): 59-81.
40. Oberdiek (2004).
41. Oberdiek (2004, p. 335).
42. Oberdiek (2004, p. 335).
43. The phrase 'moral space' and the general picture of rights suggested by it comes from Nozick, Robert, Anarchy, State, and Utopia (New York: Basic Books, 1974).
44. Oberdiek (2004, pp. 326-327).
45. See Perry, Stephen, 'Libertarianism, Entitlement, and Responsibility', Philosophy and Public Affairs 26 (1997): 351-396.
46. Oberdiek (2004, p. 344). Note that Perry does not endorse this view about causation. Perry's point, as I understand it, is that no account of causation that does not incorporate normative elements can pick out any single party as the cause of a legal harm. This is not to say, however, that other accounts of causation might not be able to do the trick.
47. Oberdiek (2004).
48. Oberdiek (2004, p. 345).
49. Oberdiek (2004, p. 345).
50. Consider in particular her views on abortion, according to which a woman who aborts her fetus causes the fetus a harm, but does not owe compensation as a result. The reason is that the woman neither infringes nor violates any rights of the fetus. See Thomson, Judith, 'A Defense of Abortion', Philosophy and Public Affairs 1(1) (1971): 47-66. As Oberdiek also points out, however, this reveals a tension in Thomson's metaphysics of rights. On the one hand, she is generally skeptical about specificationism about rights; on the other hand, she famously believes that the right to life is not the right not to be killed, but is rather the right not be killed unjustly.
51. Perry is clear that there are such conceptions. As he points out, the dilemma that faces the libertarian is that "[s]tandard accounts of causation, while suitable for the libertarian's purpose insofar as they are general and normatively neutral, do not pick out a single person as the cause of a given harm. But nonstandard accounts of causation...that do generate unique attributions of harm appear inevitably to give up normative neutrality." Perry (1997, pp. 383-384).
52. Oberdiek (2004, p. 345).