This is a post by Diego M. Papayannis (University of Girona).
Imagine you live just 50 meters away from a massive cement plant. The plant operates lawfully and takes every reasonable precaution, yet its dust emissions still cause severe damage to your property and health. Because the economic activity carried out by the plant is of utmost importance to your town, the court refuses to issue an injunction to put an end to the nuisance. Instead, it awards you permanent damages to compensate for all the harm suffered. Problem solved?
For many influential scholars from different traditions, the answer is a categorical “yes.” The payment of damages is the fair solution here. This view can be defended on very different grounds. If efficiency is your thing, you would hardly question the court’s ruling, since an injunction would destroy a highly valuable activity. On the other hand, perhaps you are not persuaded by efficiency arguments but still attracted to the aggregative, social dimension of the dilemma. Legal institutions, after all, should allocate as fairly as possible the inevitable costs arising from necessary, valuable, yet risky modern activities—such as operating a cement plant, manufacturing complex products, or driving a car. From this perspective, the payment of damages appears to balance the social interest in keeping the plant running with the individual victim’s interest in enjoying a reasonable degree of security in their life.
Cases like this lie at the heart of one of the most profound and enduring debates in legal philosophy: What is the fundamental purpose of tort law? Is it primarily about promoting social efficiency, guaranteeing a fair distribution of risk, enforcing the basic duties we owe to each other as moral equals, or some combination of these goals?
For decades, Gregory C. Keating, a leading tort law scholar, has argued that tort law serves a crucial function of distributive justice. In his latest book, Reasonableness and Riks (OUP, 2022), he defends an aggregative conception of strict liability, according to which the cement plant’s true duty is not to refrain from harming you, but rather to compensate you whenever you suffer harm at its hands. Strict liability is a non-fault liability, imposed on grounds different from the defendant’s failure to take reasonable precautions. It is typically reserved for lawful activities that we do not want to discourage, or even wish to promote as a society. Keating’s logic is simple and compelling: the plant is not doing anything wrong (or anything we would expect it to stop doing), yet someone must bear the cost of the injury. Since the plant is the source of the risk —a risk that ultimately benefits society as a whole—it should be responsible for covering that cost. Compensation thus becomes the mechanism for achieving a socially just distribution of inevitable burdens. In this way, we keep the cement plant running, and we prevent the burden from lying exclusively on you. It looks like a pretty reasonable deal.
So far, so good—except for one thing. It is true that tort law is part of the basic structure of society and, therefore, it is subject to the demands of distributive justice. But there is also something genuinely private about tort law. It is, at its core, the law of interpersonal justice—the body of law that governs how individuals interact with one another as free and equal persons, independently of their relationships as members of a political community.
An exclusive focus on the aggregative view neglects how things look like from the micro-level perspective—that of one-on-one moral relationships. This, I contend, produces a significant theoretical distortion in our understanding of strict liability and of tort law more generally.
Arguably, if we are to relate to one another with respect, even in cases of strict liability the injurer still breaches a primary duty not to harm their neighbour. This duty not to harm is foundational to our standing as equals within a shared moral and legal order, as it embodies our reciprocal respect for essential interests such as physical integrity, health, and property. It is a commitment that holds regardless of how socially useful the risky activity may be, limited only by principles that reasonable persons would endorse under ideal conditions of deliberation.
Therefore, when the court orders the payment of damages, it is not enforcing the plant’s sole duty; it is merely providing a remedy for a wrong that has already occurred—a breach of the primary, pre-existing duty not to interfere with another’s bodily integrity or property interests. This should be understood as a second-best outcome compared to you suffering no harm.
Ignoring this strips tort law of its distinctive moral structure. We inadvertently reduce an individual’s fundamental right not to be harmed to a mere right to receive compensation once harm occurs. Correspondingly, if there is no duty not to harm, then the harm itself constitutes no moral wrong—and still less a wrong to the victim. The defendant merely bears a pecuniary burden—namely, to compensate the victim—as the price of legitimately engaging in the economic activity that produced the externality. This “pay-as-you-go” rule hardly reflects how people ought to behave if they are to respect one another.
The key issue is that authors like Keating seem to conflate the justification of the risk with the justification of the harm that results from any valuable activity. Harming others as a consequence of engaging in such activities—say, for instance, running over a pedestrian in a non-fault car accident—is never justified, no matter how frequent or statistically unavoidable the harm may be. It is not supported by good reasons.
Those of you who are movie buffs might remember a crucial scene in The Deer Hunter: Mike Vronsky may have had good reasons to play Russian roulette with three bullets in the gun—after all, it was his only chance of escaping captivity—but he had no good reason to kill himself. Good reasons to take or impose risks are pervasive in modern societies; good reasons to cause or suffer harm are rare, indeed exceptional. The fact that we cannot obtain an injunction to eliminate the risks posed by those engaging in lawful activities does not mean that, when harm is caused, our rights are not infringed. They are—and compensation is owed as a matter of interpersonal justice. The defendant did nothing wrong in undertaking the activity, but did wrong in causing the harm. Compensation is not owed—or not owed merely—as a matter of distributive justice; it is owed as a requirement of interpersonal justice, grounded in the past wrong, not in the broader fairness of cost and benefit distribution.
Ultimately, the problem lies in an unwarranted inference. The distributive framework inadvertently legitimizes wrongdoing when it moves from lawful risks—those that society accepts—to permissible harms. True, if a harm is permissible, so is the risk that leads to it. But the reverse does not hold: some risks may be permissible, yet the resulting harms are not. This is precisely the case with strict liability. By contrast, a lawful risk that gives rise to a truly permissible harm—like the crushing blow of romantic disappointment—does not trigger liability. (Otherwise, our court systems would collapse every Valentine’s Day!) Restoring the primary duty not to harm within strict liability ensures that, even when risky activities are tolerated for the greater good, agents remain accountable for the injuries they actually cause.
If the person who caused the harm did nothing wrong in the law’s eyes, why is she—rather than society—on the hook for compensation? Saying the activity was beneficial to the defendant does not help, since socially valuable activities benefit everyone. On the other hand, even if the defendant lost money, or the victim benefited too, liability still applies. That’s why the idea that wrongs ground liability makes more sense: it offers a clean, coherent reason for individual responsibility.
Moreover, Keating’s view creates a puzzling split: in negligence cases, there is a duty not to harm—but in strict liability, that duty vanishes. If someone runs you over with a bike, they have breached a duty to you. But if a cement plant harms you, they have not. They are simply required to give some money to you, based on the distributive unfairness of leaving harm uncompensated. Why should your right to physical integrity depend on how socially valuable the activity is? This divide undermines the idea that all persons stand as equals in moral and legal relationships.
The good news is that distributive approaches to tort law—like Keating’s and my own—are not necessarily tied to that view of strict liability. In fact, I argue that restoring the primary duty not to harm is essential for making tort law truly coherent. Only then can it serve its dual purpose: advancing social justice while honouring the interpersonal justice at its core.
To read more, see my paper Tort Law Without Interpersonal Justice, Journal of European Tort Law, 2025, 16 (1): 31–51. DOI: https://doi.org/10.1515/jetl-2025-0004
Diego M. Papayannis is a Professor in Legal Philosophy at the University of Girona, and Senior member of BIAP. His teaching and research focusses on private law theory, economic analysis of law, and philosophy of law more generally. His work has appeared, among others, in Legal Theory, Revus, Jurisprudence, Ratio Juris, and The Canadian Journal of Law and Jurisprudence.
Open Philosophy 