Choice Group Seminar by Todd Karhu (King’s College London): ‘Compensatory Liability and the Overdetermination Problem’

Abstract: Jane wrongfully breaks Victim’s wrist. Virtually everyone agrees that Jane should compensate him. But how much compensation does she owe? The natural answer is a simple counterfactual one: she ought to compensate Victim until he is no worse off than he would have been but for the broken wrist. But suppose that, unbeknownst to her, had Jane not broken Victim’s wrist, John would have done so soon anyway. Virtually everyone would still think Jane owes compensation. Since the counterfactual account predicts otherwise, most theorists reject it as a theory of compensatory liability. I will attempt to defend the counterfactual account of liability against the problem posed by pre-emption cases like that and by other kinds of overdetermination. After showing why some alternative proposals won’t work, I explore a novel solution. A key component is the idea that we can become liable to compensate not only for reducing people’s counterfactual wellbeing, but also for reducing their counterfactual entitlements to wellbeing. What emerges is a unified counterfactual account of liability, and one which also provides a moral basis for offenders’ “joint and several liability”, a legal doctrine that has hitherto seemed somewhat mysterious.

Todd Karhu is a lecturer at KCL.
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