Disappearing without a Moral Trace? Rights and Compensation during times of Emergency*

Scholars are divided over whether a victim s rights persist when an agent permissibly responds to an emergency. According to the prevailing view the moral force of rights is not extinguished by moral permissibility and the agent, therefore, has a duty to compensate the victim. According to another influential view permissibility does erase the moral force of rights and the agent, therefore, can only have a duty to compensate for reasons other than the fact that they committed a rights transgression. I argue that liability does not follow even if we grant that the victim s rights persevere. A non-pecuniary remedy such as a formal apology provides an adequate way of vindicating the victim s rights and of recognizing the agent s causal role. Thus, the answer to the question of what remedy the permissible transgressor owes the victim does not provide us with an answer to the question of who should bear the burden. Consider those cases in which an individual damages the property of another so as to escape a deadly predicament – the hiker who breaks into a cabin in order to escape from an unexpected and life threatening blizzard, or the ship captain who jettisons cargo during an unexpected and violent storm in order to prevent the ship from sinking, or the diabetic who takes some of her absent friend s insulin in order to avoid lapsing into a coma. While rare in practice an individual s responses to circumstances of peril are often thought to throw * This article has greatly benefited from the insightful comments of Josh Cowley, Saul Smilansky, Ulrich Steinvorth, Lars Vinx, Bill Wringe and two anonymous referees. Law and Philosophy (2009) 28:617–649 Springer 2009 DOI 10.1007/s10982-009-9047-0