Compensation for Permissible Harm

Abstract This article examines the law on when a person has a duty to compensate, despite acting permissibly in causing harm that normally violates a person’s right. First, it compares the law’s approach to compensation across a number of different types of permitting fact, such as defence, private necessity, public necessity and preventive action against a common enemy, and seeks to explain the extent to which the law’s approach is consistent. It will be shown, on the one hand, that some initially puzzling distinctions can be justified, while others require alterations in the law. Second, it seeks to develop a new account of the normative foundations of compensation for permissible harm. This account contrasts with the popular view that compensation is owed because one permissibly infringed a right. Instead, it proposes that compensation is owed as fair payment for an exceptional permission to use another’s resources in a harm-causing manner.