Mischief and Misfortune

41 Pages Posted: 27 May 2008

See all articles by Jules L. Coleman

Jules L. Coleman

New York University (NYU); New York University (NYU) - New York University Abu Dhabi

Arthur Ripstein

University of Toronto - Faculty of Law

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.

In place of the attempt to base an account of responsibility on a neutral conception of agency, the authors articulate the form of reasoning that is implicit in the fault system in tort. Fault assigns liability to injurers only when they have failed to exercise reasonable care for the security of others. How much care counts as "reasonable" depends on the liberty and security interests that are at stake, which in turn depends on the importance of the activity in which the defendant is engaged and the significance of the plaintiff's interest that might be injured. Thus, the idea that people should bear the costs of their activities can only be rendered determinate in relation to views about the importance of various activities.

The authors argue that parallel positions show that issues of distributive justice depend on views about the importance of various goods in enabling people to pursue their own ends. The authors concede that any such views will be controversial but argue that the idea that people should bear the costs of their activities requires it.

Suggested Citation

Coleman, Jules L. and Ripstein, Arthur, Mischief and Misfortune. McGill Law Journal, Vol. 41, No. 1, 1995, Available at SSRN: https://ssrn.com/abstract=1137655

Jules L. Coleman

New York University (NYU) ( email )

Bobst Library, Room 1240
70 Washington Square South
New York, NY 10012
United States

New York University (NYU) - New York University Abu Dhabi ( email )

PO Box 129188
Abu Dhabi
United Arab Emirates

Arthur Ripstein (Contact Author)

University of Toronto - Faculty of Law ( email )

78 and 84 Queen's Park
Toronto, Ontario M5S 2C5
Canada
(416) 978-0735 (Phone)
(416) 978-2648 (Fax)

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