Legal and fundamental rights to compensation

Rights to compensation have been much invoked and much disputed in liberal debates. Some argue that a fundamental (natural, human or moral) right to compensation should be recognised and that doing so would transform many lives. For example, special treatment in education or employment might be owed in compensation for past denials of equal opportunity in developed societies; special consideration for Third World countries in aid and trade terms might be owed in compensation for the injustices of the colonial past.

We can make ready sense of the idea of legal rights to compensation. Legal rights to compensation provide (some) recompense for damage suffered. The damage for which compensation is given may or may not be produced by wrongdoing; it may also be negligent or accidental or due to natural causes. In law, compensation is not always contingent upon the victim having suffered harm caused by others’ wrongdoing, or on saddling wrongdoers with the costs of compensation. Insurance policies standardly cover damage due to accident and neglect. Legal rights to compensation may provide payments to victims of violent crime, to those whose property is requisitioned or damaged, to victims of libel or malpractice, and to victims of natural disasters such as floods or earthquakes. Legal rights to compensation are a standard way of dealing with the predicament of those who are harmed, whether the harm is due to others’ (criminal) action, their own negligence or natural catastrophe. Nor do they show that there are fundamental rights to compensation. Legal rights to compensation may lack moral grounding; and if they are morally grounded, they may be backed not by fundamental rights to compensation, but by other background claims or institutions. However, fundamental rights to compensation are also widely invoked. Surprisingly, some libertarians (laissez-faire liberals) and less surprisingly many welfare liberals (social justice liberals) have embarked on this journey, while disagreeing sharply about where it ends.

Since the 1970s discussion of rights to compensation has often concentrated on cases where poverty and discrimination are said to have reduced the educational or employment prospects of specific social groups, for example women and racial minorities in developed countries. The proposed remedies, often more discussed than implemented, included various educational and employment measures that are thought of as compensating for a previously unjust distribution of various sorts of opportunities.