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The Respect View has plausible implications in many cases. In particular, it captures something important when applied to (1) and (3)-type cases, where the victim is not made worse off (or is benefitted) but she mistakenly believes that she is harmed. Respecting the

harm or disadvantage, as well as other (non-counterfactual) comparative accounts such as temporal comparativism. I attempted to justify these assumptions in chapter 3.

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autonomy of the victim often demands that she be compensated even though she has been benefitted.

There are many different cases that fit these schemas, and how one will describe these cases obviously depends on one’s views about wellbeing. If we agree with the judges in Mcfarlane that a healthy child is a benefit, then in failed sterilisation cases where the parents reject this judgement, the victims have false beliefs about their wellbeing. We can also construct cases involving more general disagreements about the nature of wellbeing. Here is a hypothetical example based on a more fundamental debate between philosophers who endorse hedonistic and non-hedonistic views:

The Reticent Philosopher: V spends her life writing a series of philosophical works. Although the works are brilliant, advancing knowledge in various ways, she decides not to publish them as she finds publicity excruciating. D negligently distributes the works against the author’s wishes, which deepen the understanding of many who read them and thrusts her into the limelight. V, however, is a Hedonist about wellbeing and does not believe that the achievement improves her life. Instead, she finds her new life in the public eye unbearable.

Let us assume that Hedonism is false and V’s philosophical achievements make her life go better. Moreover, these achievements are significant enough to outweigh any discomfort she feels about her fame. Of course, these are controversial assumptions about the nature of wellbeing, but this is not problematic. We are simply stipulating that these claims are true in order to ask what follows. We could easily reformulate the case on the presumption that some other view of wellbeing is correct.

Like the failed sterilisation examples, in The Reticent Philosopher, D benefits V by wronging her. V’s hedonistic view is wrong: her life is better as a result of her achievements even if this is not reflected by any improvements in the quality of her mental states. Despite this, it is intuitive that V’s choices should be respected in both cases, and indeed any other (1) and (3)-type cases, and we should recognise a moral duty owed by D to offer

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compensation. D might object to this on the grounds that, in truth, he has benefitted her. He might argue that it is reasonable to expect victims to take responsibility for their own mistakes, and the burden for this mistake should not fall on him. Thus, even though he accepts responsibility for his wrongful conduct, which in principle involves payment of damages for any harm done, he owes no compensation as he has done no harm.

But we have two important reasons to compensate V nonetheless. First, the wrongdoer can be expected to bear some costs for a system of compensation that respects the autonomy of victims. The liberal intuition comes into its own in these cases. If compensation is measured according to a single legally sanctioned metric, with which many citizens fundamentally disagree, this policy could not be justified to those on whom it is imposed. It would be vulnerable to familiar criticisms of general illiberal policies.13 Many

people find this idea very appealing, but as I said at the start, it is quite difficult to spell out its underlying rationale. It is therefore worth pausing to consider a couple of views that seek to explain its appeal.

One view, attributable to Jonathan Quong, can be called The Moral Status View. This makes two claims. First, the law’s rejection of the victim’s false conception of wellbeing treats her as if she lacks the capacity, in this context, to plan, revise and rationally pursue her own conception of the good. The second claim is that to treat her in this way is inconsistent with her moral (or political) status as a free and equal citizen.14 This explains the liberal intuition that V’s sincerely held beliefs should not be discarded.

Both of these claims might be questioned. To take the second claim first, to know whether such treatment is inconsistent with a person’s moral status, we need to know more

13

See, for example, Jon Quong on the charge of paternalism in Liberalism Without Perfection, Oxford: Oxford University Press, (2011), pp. 73 – 108. I will later argue that paternalism is not always problematic, although I agree that it is problematic in (1) and (3)-type cases, as it involves a violation of the victims choices.

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about the nature of this status. The law regularly denies that certain individuals lack the capacity to rationally pursue a conception of the good when it restricts the civil liberties of the young or mentally disabled. It is not clear that in doing so it fails to respect their moral status. We do not, after all, consider the mentally disabled to be unequal in terms of moral status. Nevertheless, a defender of The Moral Status View could build a plausible argument that treating those who have false beliefs about their wellbeing as equivalent to the mentally disabled is inconsistent with their moral status, so let us focus on the first claim.

As a point of clarification, it is surely wrong for Quong to say that refusing to compensate victims according to their mistaken beliefs treats them as if they lack the capacity to pursue their own conception of wellbeing.15 This is nonsensical: avoiding their

conception of wellbeing is precisely what these judgements aim at! The claim is rather that they treat victims as if they lack the capacity to form the correct conception of wellbeing.

This claim might be criticised in two ways. First, it might be questioned whether this treatment is deeply problematic. Individuals are still free to make their own mistake as long as they do not increase the burdens that others are expected to bear for them. It is not unreasonable, this objection holds, to judge that victims are unable to form correct beliefs about wellbeing when the burdens of others are affected by these beliefs. Second, it might be doubted whether in these cases victims are really treated as if they lack the capacity to pursue the correct conception of the good. Why, one might ask, should accurately judging that they have made a mistake imply this? It is a basic truth that judging that someone has got something wrong does not imply that they could not have got it right. If I notice that a student has made a mistake in an exam, this does not imply that they could not have reached the correct answer. It is therefore too strong to conclude that victims are treated as if they lack the capacity to pursue a valid conception of the good.

I will not explore this view any further here. Instead, let us briefly consider an alternative that seeks to explain the appeal of the intuition behind The Respect View. This

15 _{Ibid. at p. 101.}

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can be called The Endorseability View. It states that we have reasons to ensure that the set of laws to which citizens are subject are endorseable from their perspective. Joseph Raz summarises the attraction of this view: “While I am concerned to lead the life that I now believe to be the right one, I am even more concerned to be able to lead the life that conforms to my freely developed conception of the good as it may be from time to time. Hence the way to relate to others who do not share our conception of the good is to establish a scheme of cooperation, to which all could agree, and which would enable all to pursue their own conceptions of the good within fair terms of cooperation.”16

This might be beneficial in a number of ways. For those, like Raz, who believe that a political doctrine of liberal justice is embedded in a true comprehensive moral theory, the state facilitates the value of autonomously chosen actions by ensuring that its laws are endorseable. The appeal of endorseability is thus partly explained by its relation to a fundamental moral doctrine. As Raz explains, there is a double benefit on this view, as this fundamental doctrine is even consonant with the views of those who reject it. In fact, it is the correct doctrine because even those who reject it are implicitly committed to it. In satisfying this condition, it is the doctrine that best realises the value of allowing citizens to pursue their freely chosen ways of life.

If The Endorseability View is right, it also suggests that we have reason to respect perverse or wildly wrong beliefs as well as reasonable ones. It is important that citizens can endorse the entire set of laws that apply to them, rather than particular provisions or judgements. It is difficult to see how this could be achieved if the courts made it their business to make fine or controversial distinctions between false beliefs that are reasonable and those that are too abhorrent to merit respect. And of course, if such distinctions were made, those with unreasonable false beliefs could not endorse the law as a whole.

16

Joseph Raz, “Facing Diversity: The Case of Epistemic Abstinence”, Philosophy and Public Affairs, 19(1), (1990), 3 – 46, p.26

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Since we lack the space to adjudicate between these views, it is probably best to remain ecumenical, although the above comments indicate that there are some serious problems with The Moral Status View. Both purport to explain the intuition that drives The Respect View, and support more general constraints designed to prevent state power being exercised for the furtherance of comprehensive conceptions of the good that can be reasonably rejected. Hopefully this brief sketch gives some explanation, however patchy, of the liberal underpinnings of The Respect View.

The second reason we have to recognise D’s moral duty to offer compensation is that D cannot reasonably complain about bearing these burdens for the sake of respecting V’s autonomy. He only bears this burden because of his own conduct, and given this conduct, it is inevitable that the extent of his liability is partly a matter of luck. Can he really complain when he might just as easily have harmed the victim according to the correct conception of wellbeing? He could have avoided running this risk by refraining from his negligent conduct conduct (note that the avoidability argument is even stronger if his wrongful act is intentional, as it is easier to avoid intentional wrongs). His grounds for complaint are weaker given that he was in the best position to avoid his own liability.

We have assumed that The Reticent Philosopher is a type-(1) case. In other words, D does not hold a false view and knows that he has benefitted V. The considerations outlined above justify the rejection of his view for the sake of V’s autonomy. D’s grounds for complaint are further undermined if we turn The Reticent Philosopher into a type-(3) case in which the defendant shares V’s false view of wellbeing and believes he has harmed her. It is not necessary that D’s beliefs should also be false, but if they are this can only be another point against his complaint.

If the foregoing discussion is correct, The Respect View shows that a common assumption is false. That assumption is that it is necessary for a claim to compensation that the wrongdoer causes harm to the victim. One premise here is that the quantification of damages follows from the measure of harm. If it does not, this raises a quandary, as how is compensation quantified if not by measuring the amount of harm done? But if V has a valid

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claim in The Reticent Philosopher or failed sterilisation cases, the assumption must be false: V is owed compensation even though she has not been harmed.17