Compensation and Commensurability

Abstract

In this Essay I want to explore the disputed "equation" between bodily integrity and money. I am writing about meaning-the way human interactions are understood by a community sharing a concept in practice. The concept in practice I focus on is compensation, in particular compensation for personal injury. Of course, compensation remedies are pervasive in law, so the investigation I offer here is just a first look at a piece of the picture. I will suggest that our legal practice reflects conflict in how compensation for personal injury is understood-that compensation is a contested concept. A commodified conception of compensation, in which harm to persons can be equated with a dollar value, coexists with a noncommodified conception, in which harm cannot be equated with dollars. In the commodified conception, harm and dollars are commensurable, and in the noncommodified conception, they are incommensurable. After describing the significance of commensurability as a philosophical issue, I will go on to suggest that once we understand the relationship of commensurability to the issue of what compensation means, we will be in a better position to understand the contemporary debate about whether the tort system should compensate for "nonpecuniary" harms.

A new regime of carbon counting: The practices and politics of accounting for everyday carbon through CO2e

“…There is a rich literature that grapples with how, and by whom, different things are made the 'same', from compensation payments making physical injuries comparable (Radin, 1993), indicators weighing the risks associated with disaster risk reduction strategies (Cardona, 2011) to unwritten ratios used by parents to equate number of hours with 'quality time' spent with children (Hays, 1996). Environmental geographers have joined this debate by discussing the commensurability (Espeland and Stevens, 1998) of environmental resources, including water (Bakker, 2005), biodiversity (McAfee, 1999), fish (Mansfield, 2003) and wetlands (Robertson, 2004).…”

Working to Avoid Collateral Emotional Harm to Clients: Cases and Recommendations for the Personal Injury Attorney

“…Radin (1993) has questioned why the dominant translation of the tort system assumes that money is commensurable with terrible personal losses. Unfortunately, the tort system does not seem likely to undergo a complete overhaul at any time in the near future, because there are too many powerful players with great stakes in the maintenance of its current mode of functioning (e.g., trial lawyers associations, judges whose campaigns are funded by trial lawyers; Lyles 2003).…”

Compensation as a means to justice? Sexual violence survivors’ views on the tort law option in Iceland

“…This has been characterised as a problem of incommensurability, i.e. when different values lack a common measure (Sunstein 1993;Radin 1993;Abel 2006). If we do not want to do away with non-pecuniary compensation, we must assign symbolic meaning to it.…”