This paper examines the role of moral culpability in relation to legal duties to compensate. It explains why duties to compensate generally arise independently of culpability, but why culpability considerations still play a role in determining the incidence and extent of compensatory liability.
Despite the prevalence of culpability-independent liability in private law, I describe various doctrines which nonetheless appear either to require culpability to establish liability or justify an expanded liability by reference to it. The paper offers various explanations of these doctrines. In some cases, they are probably mistaken. In other cases, the appearance that the doctrine makes liability hinge upon culpability is misleading. In still others, culpability justifies an expanded liability in virtue of defeating or diminishing an objection to liability that would otherwise exist. That objection may be one that, as Cane has argued, points to the social interest in conditioning liability upon culpability. But it may also be an objection that an individual defendant could reasonably make to bearing the particular form of liability in the absence of elevated culpability. I conclude with some sceptical observations on views which would elevate moral culpability to a positive sufficient ground of compensatory liability in private law, alongside responsibility.
Steel, Sandy, Culpability and Compensation (March 10, 2022) in J Goudkamp, M Lunney and L McDonald (eds), Taking Law Seriously: Essays in Honour of Peter Cane (Hart, 2022).