Given that the victim has an actionable claim in (1) and (3)-type cases, how much should she be compensated? The Respect View holds that she is entitled to be compensated according to her own beliefs. In practice, of course, such a rule would often have to be displaced by an objective calculation because, in the absence of any convincing evidence, it would be too
17
Admittedly, this claim depends on which view of harm we adopt. Those who believe that harm consists in the frustration of preferences will hold that V has been harmed even though her beliefs are false. I reject this view of harm in chapter 3. I will note, however, that the possibility of cases such as The Reticent Philosopher provides a further reason to reject preference-based accounts of harm. It is surely possible that a person’s false beliefs can make their preferences conflict with what is genuinely to their benefit. The preference-based account implausibly dismisses these cases as conceptually impossible.
Moreover, in outlining this reason why the assumption that it is necessary for compensation that D harms V is false, I do not mean to suggest that it is the only reason. Briefly, here is another. Suppose V is in an accident and is taken to hospital for a skin graft. While she is unconscious, the surgeon performing the procedure notices that her nose could be more attractively shaped and takes the liberty of fixing it (see Matthew Clayton’s “The Case Against the Comprehensive Enrolment of Children”, The Journal of Political Philosophy, 20(3), (2012), 353 – 364 at p. 357). In this case it is plausible that V ought to be compensated even if she believes (correctly, let us assume) that she has been benefitted by the procedure. V had a right that her consent be sought and the failure to do so grounds her claim. V’s claim is based neither on harm she has suffered (since she has benefitted) nor on her sincere belief that she is harmed (since she does not hold this belief).
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easy for claimants to falsely report their beliefs. But even in principle, we ought to reject this implication. This is for two reasons. The first reason is not particular to The Respect View, but sets a limit on actionable damage generally. We are often not permitted to enforce compensatory duties if this will place the defendant below a certain threshold of wellbeing. Suppose D steals a small amount from V, but fully compensating V will render D destitute. It may not be permissible to enforce D’s liability to V because doing so will leave D too badly off.18
This threshold places a general limit on what liabilities we are permitted to enforce and the extent to which we may do so. A full discussion of this threshold would deviate too far from the evaluation of The Respect View, which is our present purpose, but it is worth mentioning one question that arises in this context. Suppose that when D steals from V, compensating her (according to the correct conception) requires paying £X to V. Imagine too that compensating V in The Reticent Philosopher (according to her false conception) also requires paying V £X. If we are permitted to enforce D’s liability to pay £X in the first case, does it follow that we are permitted to do so in the second? Imagine that requiring D to pay £X in the first case would be just about acceptable. Having to give up the money would leave D badly off, but not so badly off that third parties are not permitted to force him to correct his wrong. As least, one might think, he is compensating for the harm he has inflicted. Is the same true of the second case? Are we permitted to force D to transfer the money to V, leaving him equally badly off, in order to compensate V according to her false beliefs even though D has in fact benefitted her? In other words, does the truth of the matter about whether D has benefitted or harmed V affect the threshold that limits enforceable liabilities?
It seems clear that it does. Consider:
18
See Victor Tadros, “Orwell’s Battle with Brittain: Vicarious Liability for Unjust Aggression” (forthcoming), p. 9.
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Lightning Bolt: Achilles and Narcissus are struck by a lightning bolt negligently issued from a conjurer whilst trying to impress a group of children. Achilles receives an injury to his left heel, which paralyses him, while Narcissus receives a shallow wound. Narcissus’ wound leaves a faint scar, but as he is extraordinarily vain, he sincerely believes that he is harmed just as much as Achilles and demands an equal amount of compensation. The conjurer has enough to pay both victims, but as his coffers are running dry, doing so would leave him very badly off.
In Lightning Bolt, it is intuitive that Narcissus should not be granted the award he seeks, but
Achilles is entitled to full compensation. This asymmetry must be based on the judgment that
Narcissus’ beliefs about his wellbeing are false. We are not willing to render the conjurer so badly off to respect
Narcissus’ false beliefs simply because is negligent, but we are willing to do so in response the real harm inflicted on Achilles.
The next reason relates to the size of D’s liability. When D wrongs V, it is foreseeable that V will be harmed. However, the extent of the harm may not be. If V has some condition that makes her harm greater than that which is foreseeable from D’s ex ante
perspective, it seems fair to require D to compensate her for the entire injury, including the unforeseeable portion. In law, this is known as the ‘thin skull rule’, which I mentioned in the introduction.
TheRespect View might be seen as an extended version of the thin skull rule. Some victims have thin skulls, others have thin beliefs. Either way the defendant must take her victim as she finds him. But now return to Achilles and Narcissus. Even if D can compensate both of them without rendering himself very badly off, it is still implausible that Narcissus
deserves as much compensation as Achilles. It is not just the effect of the payment on D’s
wellbeing that prevents us reaching this conclusion. If we treat Narcissus’ affronted vanity (especially if we are dealing with legal as well as moral duties) as equivalent to Achilles’ paralysis, this is an insult to Achilles. These considerations undermine The Respect View.
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Even if we accept that Narcissus has an actionable claim, it is wrong to suggest that compensation should be quantified according to his false beliefs. Instead, the responses sketched above support the following claim. Where a victim suffers actual harm, compensation should be quantified according to the correct account of wellbeing, but when a victim does not suffer harm or is benefitted, any claim he possesses, grounded in respect for his autonomy, is limited to a reasonable threshold.
I will not discuss this threshold in any more detail. At present I am only arguing that it exists. However, we are still faced with the quandary I mentioned earlier. If the victim has an actionable claim grounded in respect for her autonomy, yet she is not entitled to the sum of damages she sincerely believes she deserves, how are her damages to be calculated? One solution to this problem would be to stipulate a threshold that is consistent between claimants. This would allow the victim’s beliefs to play at least some role in the ideal quantification, but only up to a limit. Another solution would be to offer all victims a fixed sum to recognise and make allowance for their beliefs about the harm they have suffered. Tort law adopts a similar policy elsewhere, where it is difficult or undesirable to quantify harms, such as damages awarded for bereavement under S.1(a) of The Fatal Accidents Act.
As before, these conclusions are not affected if we imagine that the case of Achilles
and Narcissus is type-(3) rather than type-(1). If evidence could be offered that the conjurer is also extraordinarily vain and falsely believes that Narcissus is as badly off as Achilles, such evidence could not be used to force him to pay Narcissus as much as Achilles. The central point is that it is unfair to force him to pay an enormous sum of compensation as a result of Narcissus’ mistake, even if this mistake is also made by him.