Establecimiento de estrategia en función del grado de Madurez

So far, I have adduced cases to show that the Nonreciprocity Principle is often outweighed by both of the other principles under consideration. Nonreciprocal risk-taking does not ground liability either when the person who is subject to the risk could have avoided it more easily than the risk-imposer or when the person who is subject to the risk is the prime beneficiary (though only when the benefit is sufficient and seeking consent is not possible or

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necessary). We can now take a step further and inquire whether nonreciprocity grounds a claim when neither of these conditions obtains. In other words, does the Nonreciprocity Principle yield plausible results even when it does not conflict with the Avoidability or

Benefit principles? Consider:

Life Raft: Through no fault or choice of their own, Alice, who has a broken arm, and Rachel are set adrift, in danger of death. Alice can climb aboard a life raft and potentially save their lives, but in order to do so she must clamber over Rachel’s unconscious body, risking moderate injury. Alice does this, saving their lives, but in doing so breaks Rachel’s arm.

In Life Raft, the Avoidability and Benefit Principles are inapplicable. Both parties lack an adequate opportunity to avoid the risk and the rescue attempt benefits both equally. Conversely, the Nonreciprocity Principle applies as Alice risks injury to Rachel but not vice versa. We should also assume that Alice already has a broken arm in this case. If not, the inequality of the outcome may give us independent reasons to hold Alice liable to compensate Rachel to some degree.36 Since we wish to isolate the effect of nonreciprocal

risk-taking, we should ensure that the outcomes are equal, thus eliminating reasons to transfer resources based on outcome inequality. I will make the same assumption about subsequent variations of Life Raft, with the exception of Life Raft 4, where my purpose is explicitly to compare the moral relevance of outcomes with ex ante risk distribution. With these clarifications made, it still seems that in Life Raft Rachel has no convincing claim for compensation against Alice.

36

For a detailed discussion of inequality and the multifarious ways it might be undesirable, see Larry Temkin, Inequality, Oxford: Oxford University Press, (1993).

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We can further investigate the apparent insignificance of nonreciprocity by evaluating its components rather than comparing it in its entirety to other factors. Recall that nonreciprocity has two components: unequal distribution of risk and asymmetrical creation of risk. I noted in section 1A that these components are distinct. A risk can be distributed equally or unequally between a set of people independently of whether any of them is a cause of the risk. Two drivers parked by the side of the road may be subject to equal risk from a passing lorry, in which case neither of them is a cause of the risk.

We can begin by showing that the asymmetrical causality component of nonreciprocity is insignificant. We can do this by comparing two variations of Life Raft. In the first variation, Alice and Rachel will benefit equally from a rescue attempt being performed by Alice alone. Alice performs the rescue, imposing an equal risk of harm on both herself and Rachel. As a result, Rachel is injured. In the second variation, Alice and Rachel will benefit equally from a rescue attempt being performed by Alice and Rachel

together. Alice and Rachel perform the rescue, reciprocally imposing an equal risk of harm on each other. As a result, Rachel is injured.

Let us review the similarities and differences here. In both variations, the risk imposition equally benefits both parties. Both parties are also subject to an equal risk. The outcomes are also identical. The only difference between the two is that asymmetrical causality is present in one but not the other. In the first variation Alice is the only causal source of the risk, while in the second Alice and Rachel both cause risks. But it is still difficult to see how there is a morally relevant difference between the two. Note that we need not come to any decision about whether Rachel ought to be compensated, and if so how much. We need only claim that if Rachel ought to be compensated in the first variation then she ought to be compensated in the second, and if she ought not to be compensated in the first then the same judgment should be reached in the second.

What about the second component of nonreciprocity, unequal risk distribution? The distribution of risk does seem to affect liability. In Life Raft, we assumed that Alice and

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Rachel could only be saved if Alice climbed over Rachel’s unconscious body. But consider the following variation:

Life Raft 2: The same as Life Raft, except Rachel is not unconscious and either she or Alice can use the other to climb to safety, imposing a risk of moderate injury. Acting unilaterally, Alice uses Rachel’s body to climb to safety, saving them both. In doing so, she’s breaks Rachel arm.

Is Rachel entitled to any compensation in Life Raft 2? Rachel could argue that, although her injury is preferable to death, Alice still did not act fairly. Either of them could have imposed the risk on the other with the same prospect of mutual benefit, and this risk could have been distributed equally by splitting the risk, or if the risk is indivisible, by splitting the odds of undertaking the risk. In other words, unequal risk distribution may be grounds for compensation even when the risk-imposing act is equally avoidable, and for the equal benefit of both parties, if the ex ante risks were not distributed fairly.

But although Life Raft 2 demonstrates the relevance of risk distribution, this does nothing to vindicate the Nonreciprocity Principle. This is for two reasons. First, nonreciprocity holds that there may be a case for compensation if the risks are unequal. In describing nonreciprocity as a principle of fairness, Fletcher thus assumes that unequal distributions are unfair. But it is familiar from debates about distributive justice in political theory that this is not a safe assumption to make. And arguments that apply to the fair distribution of resources, welfare, opportunities and so forth, also apply to risk distribution. In some cases, for instance, we may have prioritarian reasons to gives benefits to the worse off rather than distribute them equally.37 This is demonstrated by the following variation of

Life Raft:

37

On the distinction between priority and equality, see Derek Parfit, “Equality and Priority,” Ratio, 10, (1997), 202-221.

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Life Raft 3: Alice and Rachel are set adrift, in danger of death. Alice and Rachel can distribute the risks of the rescue attempt equally, or one of them can use the other to climb to safety, imposing the risk on them. Rachel has a degenerative disease which means that she generally at risk of losing the use of some of her limbs.

In Life Raft 3, Alice ought to accept the risk for the sake of the rescue. Splitting the risk would be unfair in this case as Rachel is already subject to greater risk of physical injury than Alice, and therefore has priority in avoiding further burdens. But the Nonreciprocity Principle has the counterintuitive implication that if Rachel performs the rescue by visiting the risk on Alice, as a result of which Alice is injured, Alice will be able to seek compensation from Rachel. By conflating fairness with equality, the Nonreciprocity Principle is unable to reach plausible conclusions in this and similar cases.

Second, even if we assume that equal and fair distributions are identical, the relevance of fairness in the distribution of costs goes beyond the boundaries set by the

Nonreciprocity Principle, sometimes in ways that conflict with the principle. This is because nonreciprocity applies the distribution requirement exclusively to risk. But the importance of distribution applies to other costs besides risks, such as ex post harms, and sometimes justifies redistribution despite initially equal distribution of risk. Keating makes the same point in his defence of strict liability, claiming that “what counts is not reciprocity of risk but reciprocity of harm… Risk can be fairly distributed while harm is unfairly concentrated, and

it is harm that matters.”38

To qualify the argument, it is important to note that this is not true when the value of the risk-distributing activity relies on letting wins and losses lie where they fall. If Alice freely gambles her money in a card game with Rachel, she has no claim for compensation against Rachel when she loses her money to her. The value of gambling depends on not

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interfering with the outcome and is in principle a permissible activity (assuming it does not involve severe exploitation or asymmetry in bargaining power). This might be because a freely made decision to gamble reflects a permissible exercise of one’s autonomy,39

and perhaps for other reasons. But in other cases we do not have these reasons to let losses lie where they fall. They are not present in the life raft variations we have been considering, where the risks are unwanted but accepted for the sake of mutual benefit. Here, there may be grounds of compensation which are not picked out by the Nonreciprocity Principle because the initial distribution of risk is equal:

Life Raft 4: Through no fault or choice of their own, Alice and Rachel are set adrift, in danger of death. They can save themselves by climbing aboard a life raft but each are subject to a risk of serious injury. The attempt will only succeed if they are both involved. They perform the rescue attempt together, imposing equal risks on one another. Alice emerges onto the life raft unscathed but Rachel injures herself and loses the use of her legs.

Does Rachel have a claim for compensation in Life Raft 4? The Nonreciprocity Principle implies that she does not, since the ex ante risks are equal, but this is implausible. As Keating recognises, risks are only significant insofar as they threaten actual harm or loss. We ought to care about the distribution of actual losses more than the distribution of risk. Rachel suffers a significant harm whilst Alice is unscathed. Given that the cooperation of both parties is required to secure the overriding mutual benefit, we have reasons to compensate Rachel to some degree.

39

For a discussion of three different values of choice, see Scanlon, What We Owe to Each Other, pp. 251 – 6.

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These final arguments show that quite apart from the significance of other considerations that outweigh nonreciprocity, the components of nonreciprocity itself, on closer inspection, do not seem to have much impact on liability.

6. Conclusion

Let us summarise what we have found. Nonreciprocity consists of two distinct ideas; first, that A and B are subject to unequal risk, and second, that A causes a risk to B and not vice versa. I sought to identify a convincing moral notion which underpins the Nonreciprocity Principle, encompassing both of its components. The claim that A lacks standing to complain against B’s risk-imposition because if A has reciprocated the risk then she is a hypocrite covers both components of nonreciprocity. But this suggestion is not convincing for two reasons. First, it fails to explain cases where risks are reciprocated but there is still a claim for compensation, such as the case of the two negligent motorists. Second, it does not apply to permissible activities, yet nonreciprocity seeks to explain liability arising from permissible as well as wrongful acts, so the hypocrisy argument is too limited to support the

Nonreciprocity Principle.

In order to assess the normative impact of nonreciprocity against other factors such as avoidability and benefit, I then evaluated cases in which the implications of the

Nonreciprocity Principle conflict with the implications of the Avoidability and Benefit

principles. In both instances nonreciprocity is overridden. In cases where the benefit accrues to the risk-imposer or she could have avoided the risk more easily, nonreciprocity does not ground a claim for liability. We also found that when the other two factors are equalised (when both parties can equally avoid the risk and the activity is to their equal benefit) nonreciprocity still has false implications, as even here there is not always a valid compensatory claim.