University of Pittsburgh, Summer 1999
Philosophy 1380: Business Ethics
C.L. G13—Mondays, 6 p.m. to 8:55 p.m.
Some reflections on Brenkert
There seem to be at least five problems with section III of Brenkert’s “Strict Products Liability and Compensatory Justice”:
1. Brenkert says that if uncompensated injury were universalized (i.e., if consumers were always injured by products they bought, and not compensated for those injuries), then the free-enterprise system would collapse. From this Brenkert infers that the practice of businesses’ not compensating injured consumers is unacceptable (p. 214a). But Brenkert has not shown that a business practice is unacceptable simply because universalizing it would cause the collapse of the free-enterprise system. After all, a business practice whose universalization would cause the collapse of the free-enterprise system might be perfectly tolerable when not universalized.
To this Brenkert might reply that the question of fraud shows that a business practice is unacceptable if universalizing it would cause the collapse of the free-enterprise system. But what Brenkert says about fraud doesn’t actually prove this principle. Brenkert says that fraud is wrong and that universalizing it would cause the collapse of the free-enterprise system, but he doesn’t give us any reason to think that fraud is wrong because universalizing it would cause the collapse of the free-enterprise system. Maybe fraud is wrong for some other reason (such as that it violates the rights of the person being defrauded), and maybe this reason doesn’t hold in the case businesses’ not compensating consumers for injuries.
2. Even if we grant what has just been shown to be unsupported (Brenkert’s principle that a business practice is unacceptable if universalizing it would cause the collapse of the free-enterprise system), then there is still another problem with Brenkert’s defense of strict liability. The practice that Brenkert discusses the universalization of is one of uncompensated injury (i.e., consumers are injured by products they buy, and are not compensated for those injuries). But this is not the practice proposed by the opponents of strict liability. All someone needs to propose, in order to reject Brenkert’s defense of strict liability, is that if a consumer gets injured, then he or she doesn’t get compensated—not that the consumer does get injured, and then doesn’t get compensated. Brenkert makes his case seem stronger than it really is by suggesting that the alternative is worse than it really is.
3. Brenkert says that the possibility of “some third party — such as government” being responsible for compensating injured consumers “must be rejected because it permits the interference of government into individual affairs” (p. 214b) But even if Brenkert is right that we should not make government responsible for compensating injured consumers, he has not shown that there is not some other third party that we should make responsible for compensating injured consumers. In effect, he identifies one third party that we should not make responsible for compensating injured consumers (i.e., government) and then says that there is no third party that we should make responsible for compensating injured consumers.
4. Brenkert says that manufacturers of defective products should be held responsible for compensating injured consumers because if they are not held responsible for compensating injured consumers, then consumers would stop buying their products and they would go out of business (pp. 214b–215a). But this latter claim—that if they were not held responsible, then they would go out of business—is belied by the fact that manufacturers (who surely want to stay in business) do not want to be held responsible for compensating inured consumers. Presumably, if being held responsible were in manufacturers’ interests, then they would realize this and support strict liability. The fact that they don’t suggests that Brenkert misunderstands what it takes for manufacturers to stay in business.
5. Brenkert says that “The seller need not guarantee that the buyer/user will benefit from the purchase of the product; after all, the buyer may miscalculate or be careless in the use of a nondefective product” (p. 215a), implying that buyers are responsible for the injuries they suffer due to their own miscalculations. But if this were the case, then strict liability would be pointless, since presumably every case of injury to a careful buyer is a case of miscalculation: the buyer has failed (however understandably) to anticipate some harmful consequence of using a product in a certain way. So, no proponent of strict liability (such as Brenkert) can say that buyer miscalculation relieves the seller of responsibility. On the other hand, however, strict liability becomes too strict if there is not some way of holding buyers responsible for certain ill-advised uses of products. It’s incumbent on Brenkert and other proponents of strict liability to figure out what relieves a seller of responsibility. Miscalculation by the buyer, obviously, does not do it.