From a moral point of view, the function of compensation is straightforward. Compensation serves to right what would otherwise count as wrongful injuries to persons or their property. That is the role of ‘compensatory damages’ in the law of torts. That is the role of ‘just compensation’ paid in return for the public taking of private property, pursuant to the state's power of eminent domain. That is what the New Welfare Economists are relying upon when making the possibility of gainers compensating losers the proper measure of permissible policies.

It would, however, be wrong to presume that we as a society can do anything we like to people, just so long as we compensate them for their losses. Such a proposition would mistake part of the policy universe for the whole. The set of policies to which it points – policies that are ‘permissible, but only with compensation’ – is bounded on the one side by a set of policies that are ‘permissible, even without compensation’ and on the other side by a set of policies that are ‘impermissible, even with compensation’.

There clearly are some things that we as a society can do to people without compensating them in any way for their ensuing losses. This is familiar to American constitutional lawyers through, eg, the distinction between actions arising under the state's ‘police power’ and those arising under the state's ‘takings power’.

This volume of essays is based upon a conference on liability and responsibility sponsored by the Department of Philosophy of Bowling Green State University in 1988. Other invited essays have been added.

Our aims in holding a conference on the theme of liability and responsibility in law and morals were twofold. First, we hoped that our participants, from different viewpoints and with different emphases, would be able to shed light on this most troublesome area of interconnection between law and morals. The whole concept of responsibility in morals is a difficult one, and problems there seep into and infect the discussion of liability in law. In order to avoid a scattering of essays upon all sorts of issues to do with responsibility and so to focus our considerations, we decided to concentrate upon four areas. One, of course, had to be conceptual in character, even though all contributors could be expected in part to be attempting conceptual clarification; the remaining three areas – contract, torts, and punishment – we chose because some of the most interesting work being done in legal philosophy today occurs there.

Our second aim in holding our conference, and in inviting additional contributions, was to show the interdisciplinary character of much of the work in our four areas of concentration.

The distinction between what is intended and what is not intended but brought about as a side-effect is at the basis of the vast modern law of tortious liability in negligence; it is the focus, too, of the criminal law's long-accepted distinction between murder and manslaughter. As those facts suggest, it is not the esoteric preserve of some sectarian moral teaching, but a morally significant distinction which is intrinsic to practical reasonableness.

But accounts of it, judicial, legal-academic, and philosophical, remain deeply confused. The confusion can be traced to two main sources: (i) failure to distinguish free choice from spontaneity, and rational from subrational motivation, and (ii) lack of an ethical theory clear enough to identify the variety of different moral norms which human conduct is required to satisfy, some norms bearing only on what one intends (and does) but others bearing, in other ways, on what one foresees and thus somehow controls as the side-effect(s) of what one intends (and does).

It would be good to show how several philosophical accounts of modern tort law – notably those inspired by economic analysis – overlook the significance of the intention/side-effect distinction for the entire structure of tort. But in this essay I shall attend only to criminal law. In that restricted context, I shall try to advance a clarification of issues by discussing a newly, though not wholly, clarified judicial understanding of intention and side-effect.

No doubt Hume had a number of reasons to be interested injustice and the judgments of justice and injustice that we make. But there is also a special theoretical reason for discussing the subject in Book III. The theory of morals developed in Part i has a special (circularity) problem in regard to what Hume calls ‘justice’ and that problem is what he immediately takes up in the first section of Part ii. It is in that regard that Hume is particularly concerned to distinguish the ‘artificial virtues’ from the ‘natural virtues’, arguing that the virtue of justice is artificial in an important sense. One feels things would have been so much easier for Hume if our ordinary moral judgments were only attributions of ‘natural virtues’, that is, if we made no justice judgments. His theory of morals, in that case, would have benefitted from a plausibility born of simplicity. It would have had no hard cases to deal with.

So the basic question we ask in this chapter is: ‘What is the problem that threatens Hume's theory of morals in the case of justice and the artificial virtues but which doesn't threaten it in the case of the natural virtues?’ That is, ‘What is the special problem that arises in regard to justice?’ But this question cannot be discussed without raising a second question at the same time: ‘What exactly is this distinction between the artificial and the natural virtues and, indeed, what is the point of making that distinction?’

Those who say philosophy is the search for truth overlook that other pursuit of philosophy, the search for nonsense. They miss a good part of the fun. The investigation of really magnificent confusions or of irresistibly compelling conceptual illusions usually has it all over plodding along after wherever the argument leads. Chapters 4 and 5 risk that kind of dullness. They pursue some good reasons for not believing Hume's first premiss. But the present chapter considers the bad, but seductive, reasons so many have had for accepting that premiss. This is important. It is usually not enough to give good arguments against a prevailing prejudice. One must also explain why so many have found it compelling.

Something close to Hume's first premiss (strong version) is held, or just assumed, by a great many contemporary philosophers. We can find something like it, for example, in D. Davidson's classic article ‘Actions, Reasons and Causes’ (1963). (This and other contemporary versions are discussed in Chapter 4.) Davidson presents as relatively unproblematic what I will call his ‘pro-attitude account’ of what it is for an agent to have done something for a reason (or to have a reason for doing it). Where an agent ‘does something for a reason’ (or ‘has a reason for doing something’):

1. 1. He has some sort of pro-attitude toward actions of that kind,

and

1. 2. He believes that his action is of that kind,

where ‘pro-attitude’ covers not only:

1. a. Desires, wantings, urges, promptings,

but also:

1. b. Moral views, aesthetic principles, economic prejudices, social conventions, public and private goals and values.

Hume requires a theory of convention for two reasons. One is somewhat incidental to his defence of sentimentalism, but is relevant to the broader project of a naturalistic methodological individualism. Hume's approach, in this latter regard, is to explain social institutions (such as legal institutions or the marketplace) and social practices (such as promising or buying) in terms of social norms or rules (i.e., ‘convention’) which, in turn, he wants to explain in terms of acts and properties of individuals themselves plausibly susceptible of a naturalistic account. The second reason Hume needs a theory of convention is in order to give a naturalistic account of the special sort of sentiment which approves of just acts and persons. Hume needs, specifically, an account that can be used non-circularly in a sentimentalist account of our judgments of justice and injustice, i.e., for the judgments which are ‘hard cases’ for his theory.

Many philosophers have been concerned, in the context of philosophy of the social sciences or philosophy of language (that is, rather than in the context of moral philosophy) to propose theories of convention (or rules, or norms) within a general naturalist and methodologically individualist framework (e.g. Grice, 1957; Shwayder, 1965; Lewis, 1969; Blackburn, 1984, ch. 4). However, Hume attempts to produce a satisfactory theory of convention falling under a further constraint beyond what these philosophers require. His theory must also, must most of all, be adequate to meet Hume's second project as well, i.e., to defend his sentimentalism against the charge of circularity.

The interesting thesis, for contemporary Humeans, in Part i of Book III of the Treatise is Hume's account of moral belief (broad sense), i.e., his sentimentalism, as some have called it. Hume's account has two parts. The basic, most argued for, part is a negative account of moral belief (III,i,l). It makes a claim about what moral judgments are not. They are not ‘deriv'd from reason’. I have argued that this negative claim is non-cognitivism (unless it is a highly subjectivist cognitivism). The positive thesis (III,i,2) is an account of what moral beliefs are. They are, or express, or centrally involve, the having of special sentiments (unless, perhaps, they are noninferential cognitive beliefs about one's having sentiments).

Sentimentalism is a meta-ethical thesis, at least in the broadest sense of ‘meta-ethical’, for it is a claim about the nature of moral judgments and not (obviously, at any rate) itself one of the substantive moral judgments it is about.

Most of the core of Hume's theory of ‘the rules of justice’ is contained in the section ‘Of the Origin of Justice and Property’ (III,ii,2). Rather than a theory of ‘justice’ in the ordinary sense, we may think of it as a theory of those judgments of moral obligation we make which pose ‘hard cases’ for Humean meta-ethical sentimentalism. As a requisite preliminary, Hume gives us a description of ‘the circumstances of human nature’ without which rules of justice would be unnecessary and with which it is virtually a human necessity. Next, Hume gives an account of how our having ‘rules of justice’ can be accounted for as a socio-psychological fact, given these circumstances of human nature. Because this account employs the notion of social ‘conventions’, Hume must then give us some account of ‘convention’. Finally, Hume gives an account of the sentiment we have which approves of compliance, and of the motive to comply, with such rules. It is an account of‘the regard to justice as such’.

TWO REDUCTIVE PROJECTS

The story Hume gives can, of course, be interpreted in ways which are an embarrassment to contemporary Humeans and which also tend to make Hume's discussion look discontinuous. It may look as if Hume has changed the subject of discussion from the defence of sentimentalism to either bad anthropology or else substantive normative ethics. For example, despite Hume's own disclaimers (493), Hume's account can look like a story about historical origins, as a story about a pre-history where men found it useful to ‘remedy’ certain problems by ‘establishing’ conventions.

There could well be two theories about reasons for acting and preferring in Hume. One is a theory of motivating reasons. The other is a theory of justifying reasons. While they might be related in some way, they are not to be just confused outright. The former is a descriptive thesis about what further has to be involved beyond a belief if an agent is to have a motivating reason for acting (or preferring) where a motivating reason is one sort of thing that can sometimes help to explain an agent's acting (or preferring). The latter thesis is a normative thesis about what has to be involved if there is to exist a good reason for an agent to act (or prefer) in certain ways (whether or not the agent is aware of this or motivated by it) where a good reason is something that can justify an agent's acting (or preferring) in certain ways. In both cases, however, it is something like a passion, desire, want, pro-attitude, etc., which is said to be this further thing which has always to be involved.

In contemporary philosophy we can find both a Humean theory of motivating reasons and a Humean theory of justifying reasons, whether or not we can find both of these in Hume. The former clearly can be found in premiss (1) of the influence argument. However it is not quite so obvious that we can attribute the Humean theory of justifying reasons to Hume, although he may have lapsed into it in unguarded, rhetorical moments.