Sandy Steel

Nico Cornell’s terrific book Wrongs and Rights Come Apart rejects the commonly held view that moral wrongs are simply moral right violations. Rather, wrongs and rights ‘come apart’: there can be wrongs without right violations and right violations without wrongs.

The book proceeds by providing a range of powerful examples from law, philosophical writing, and literature to make its case. How can we tell, in these examples, whether a person has been wronged but their rights not violated? Cornell provides an account of the characteristic features of an entity holding a right: (1) the power to waive the correlated duty, (2) the fact that certain conduct can be demanded by that person, (3) enforceability of the correlated duty, (4) the presence of a special kind of reason (a trump or an exclusionary reason), and (5) a distinctive phenomenology. (Pp. 14-15.)

None of these is argued to be necessary or individually sufficient; instead they are characteristic features; each provides evidence of the fact that a duty is grounded in, or correlated with, a right. If Cornell’s examples show that a person is wronged, yet (1)-(5) are all absent, then (assuming (1)-(5) give us all of the characteristics of rights) we have wrongs without right violations. (Pp. 16-17.)

It is impossible to do justice to the nuance and richness of the book in a Jot.¹ I briefly outline and comment on some examples Cornell employs to prise apart wrongs and right violations, leaving aside his argument that there can be right violations that are not wrongs.

Intimate promises. For Cornell, promises to have sex or to love do not give rise to a right that another have sex or love, but the non-fulfilment of the promise wrongs the beneficiary. In relation to such promises, demandability and enforceability – features (2) and (3) above – are not present. One may not demand that a person perform their promise to have sex or enforce such a promise. Yet, if the promise is not fulfilled (without justification), it seems that the person has some kind of moral complaint. Cornell’s explanation neatly clarifies this apparent difference between the ex ante and ex post moral position: the promisee stands to be wronged, yet lacks a right to performance.

Three-party cases with unforeseeable victims. The basic structure of this kind of example is: A violates B’s right, with an unforeseeable harmful effect on C.

Palsgraf. Railroad employees (A) carelessly thrust a person (B) onto a train, with the result that their firework-containing package drops and explodes, causing a set of scales at the end of the platform to fall over and harm Palsgraf (C).

Overheard Lie. Suppose that you (C) overhear your coworker (B) talking to a customer (A) at work. Your coworker tells the customer that the South Bridge has been fixed and is now operational. Later that day, you are suffering from an asthma attack and need to rush to the hospital. You try to take the South Bridge only to find it closed, and you end up in a great deal of distress. Your coworker later tells you that he was lying because he does not like the customer. (Pp. 31-32.)

About both cases Cornell’s view is that C is wronged, but C’s rights are not violated. C is wronged because “[t]he familiar package of emotions and practices would seem to apply: resentment, apology, forgiveness, and so on.” It would be apt for Palsgraf to resent her having been injured through another’s carelessness and for the latter to give an apology; likewise, the co-worker in Overheard Lie ought to apologise for their lie that caused you great distress. C’s rights are not violated, however, as C, being unforeseeable, cannot figure in A’s deliberations about what to do, thus (I think) undermining (3), and perhaps (2).

Warranties. One of Cornell’s most intriguing putative examples of rightless wrongs is breach of warranty:

Suppose that I’m your roofer. I’ve done various repairs for you, and now you’ve hired me to replace your roof. At the end of the job, I promise you that the roof will last for at least twenty years. It fails miserably the next winter. On these facts, I do owe it to you to replace the roof and indemnify you for your losses. But that would not be performance; it would be a remedy for a failure. (P. 71.)

You are wronged, Cornell claims, because (i) “there would be a moral residue: even if I replace the roof, I still owe you an apology”; (ii) it would be normal to describe the promisor as not having kept his word; (iii) if it were merely a promise to indemnify, there would be nothing wrong with saying ‘I promise that the roof will last twenty years’, while knowing that it won’t last. (P. 72.)

Yet, Cornell argues, it is unclear how the promise that the roof will last for twenty years grounds a right. If rights necessarily constitute reasons capable of entering deliberation (3), the promise does not ground a right, since it does not specify any action and reasons are, well, reasons for action. True, the roofer has some reasons because of the promise—for instance, a reason to take steps to ensure that he can fulfil any liability that may arise for its non-fulfilment. But this is not a reason generated by there being a right. If the roofer had promised to repair if the roof did not last 20 years, then the roofer would have exactly the same reason to take steps to ensure that he can fulfil any liability so arising. As Cornell sums up: “…though it can be the basis for a wrong, the warranty may not generate any action-shaping duties. It’s not about action. It’s about a fact obtaining in the world.” (P. 71.)

Two quick responses to the first two categories of example. First, it does seem that intimate promises ought still to figure in deliberation, and not merely as a vanilla reason to be weighed in the balance with others. If a step-parent promises their partner that they will love the partner’s child, the promise gives the former at least a reason to try to love the child, and that reason is not merely to be weighed in the balance with others. Thus while it may be that this promise is not enforceable or demandable, it has a distinctive reason-giving importance; a properly-motivated promisor in this position will aptly feel a sense of moral failure if they are unable to live up to the reasons given by the promise, and the promise ought to figure in their deliberative horizon. In short, the promise still has the kind of reason-giving force that promises generally have, and so if that reason-giving force of a promise makes it right-grounding, then there is a right here.²

Second, as to Palsgraf, consider the position if Palsgraf could see the heavy set of scales about to topple on her, and she could somehow redirect them so that they fell on the employees. Redirecting the scales seems permissible. So the unforeseeable third party has a special moral liberty to impose a right-infringing burden on the employees (special because her say-so seems to affect the permissibility of others acting on that liberty on her behalf). Thus, if one is tempted by the verdict that there is a moral wrong in this scenario, this is at least consistent with the enforceability characteristic of right-holding.

As to Overheard Lie, it is interesting to compare one’s (my) intuition in a variant in which the co-worker carelessly misrepresents the situation. Here it seems less clear that C has a legitimate grievance against B. Notably, the law tends to expose persons to liability in respect of unforeseeable harms when they behave with high culpability.³ Here one might say that everyone has a right not to suffer serious distress as a result of a lie. The foreseeability of reliance on the lie is neither here nor there.

Cornell’s warranty examples are the most difficult for a defender of wrongs-as-right-violations, since if we accept the intuition about the examples, the defender needs to decouple rights from reasons for action. But before we can trust intuitions about the roofer case, it would be useful to modify the example. One distracting feature is that the roof ‘fails miserably’ after a short time when it was guaranteed for twenty years. This inclines the reader to believe the construction was careless or that representing that the roof was of high quality was itself careless. Further, the example implies that there was at least a representation that the roof was sound and leaves open whether this was relied upon.

A modified version:

Suppose that I’m your roofer. I’ve successfully done various repairs for you, and now you’ve hired me to replace your roof. At the end of the job, which has been completed according to the highest standards of craft, I explain that, over the past twenty years, extensive research has revealed that roofs constructed in this way have never failed, though it is not entirely impossible, of course, that one will, and so I say “I am happy to promise you that the roof will last for at least twenty years.” You reply: “Well, I don’t believe that roofs of this kind will last that long, but I’m nonetheless happy to accept your promise.” The roof fails in 10 years, due to a weakness in one piece of timber that was undetectable.

Although the law holds that there is a right to the roof’s lasting for 20 years, morally, it seems inapt to blame or resent the builder if it did not here, or for the builder to feel guilt. The only ‘residue’ seems to be a distinctive reason to regret, and express regret, that things did not occur as promised. Perhaps when we make a promise in relation to a state of affairs (without promising to bring about the state), we establish a special agential connection with the non-occurrence of the state of affairs, such that we have special reason to regret its non-occurrence, and perhaps to communicate our regret to the beneficiary. Still, this is not moral wronging.⁴ The law’s describing warranties in terms of rights and duties to states of affairs is explicable in practical terms: by encasing the occurrence of a fact in a contractual duty, the parties can straightforwardly assent to a measure of compensation if the state of affairs does not occur, and can import other rules that hinge upon breach.

Whatever one makes of these last points (and Cornell has many more examples to contend with!) the book amply succeeds in mounting a sophisticated challenge to orthodox thinking on the relation between right violations and wrongs; it deserves to be widely read.

1. A considerably longer version of this Jot is available on request.
2. Or perhaps a map of relational morality is still more complex than even Cornell allows; arguably relational (action-guiding) duties sometimes do, and sometimes do not, correlate with rights.
3. For discussion see Sandy Steel, Culpability and Compensation, in Taking Law Seriously: Essays in Honour of Peter Cane (James Goudkamp, Mark Lunney & Leighton McDonald eds., 2022).
4. As this suggests, Cornell’s roofer is a sort of promissory version of moral luck cases in which our interactions can create a moral problem that is not traceable to our own agency, or at least to outcomes of our agency that are within our control.