Sent: Sunday, February 18, 2018 1:13 PM
Subject: Subjectivity of harm
Dear Dr. Block, This is a question I have been wrestling with for some time. I’ll state it as simply as I can: If value is subjective, then harm (loss of value) must also be subjective. What are the consequences of the subjectivity of harm to the principle of restitution in a private law society? Best regards, J
Dear J: Yours is an excellent question. I am an Austro-libertarian, and, I agree with you when you imply there is a “tension” not to say a down right contradiction, between libertarian punishment theory and Austrian subjectivism. I accidentally hit two cars, both of the same vintage, brand, etc. They are in every way equally expensive in terms of book value. But one of them, car A, has great sentimental value to the owner, the other, car B, none at all. How much sentimental value? 100 utils? 300 happiness units? The Austrian in me recoils from ever making sense of such a distinction. But, the libertarian in me says we must. However, we can only do so in a rough and ready way, with little or no help from the Austrian’s proper emphasis on subjectivism. One way to do so is to allow juries to add an extra amount for “pain and suffering.” Presumably, the owner of car A will get more in damages than his counterpart B, if he can convince a jury that he has indeed lost great sentimental value in the wreckage of his automobile.
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