Kinsella and Rothbard are divided on the issue on negligence. Kinsella opposes strict liablity
Rothbard supports strict liability saying the following in his book “Law, property rights and air pollution”
Where do you stand on this issue?
Strict liability. Otherwise people don’t care what damage they do as long as they can plausibly make the case that they “didn’t mean to”.
I’m with Kinsella here.
What? That’s crazy. Take the example of the store owner who is caught up in a riot. A cop comes to help the store owner but the store owner isn’t sure whether it is a rioter, so he shoots the cop. Without strict liability people have no reason to think twice, no reason to be cautious as long as they are in a situation where they have an excuse. They just shoot each others as long as they can say they didn’t intend to.
I don’t think I read carefully enough. My mistake. Negligence is reason for a person to pay full compensation, but not necessarily reason for criminal retribution. So in the case of the man who accidentally hits another with his car, he must pay hospital bills plus pain and suffering. If he hits him intentionally, he must pay hospital bills plus pain and suffering plus the other guy gets to hit him with his car.
As for your example of the rioters, I would take it on a case to case basis. The shooter certainly could bear some liability, but I would put liability on the rioters as well.
Let’s assume you are uninsured, and you cause someone’s death by mistake. That’s completely not your fault, but it happened. Now you have to pay the same restitution as a murderer. That’s a lot of money, and since you are uninsured, you will have to work most of your life to collect it, especially if are a blue collar worker. You will have to live in poverty for the rest of your life, for something that wasn’t even your fault to begin with.
If it’s not your fault, then why should you pay restitution? Either you accidentally killed someone, then it is your fault. Or you didn’t, then you don’t have to pay restitution.
EmperorNero, if someone dies due to accidental actions on your part (i.e. actions that you did not intend to cause his death), then how can it be said that you actually killed him? Here I’m imputing semantics of intentionality to the verb “kill”.
An accidental death is one thing, but if someone is negligent it means they should have known better. If I throw a piano off a building onto a sidewalk, I may not have had the intention to kill someone, but I was criminally negligent.
How could a death ever be someones fault without negligence or intention?
Kinsella’s wrong. Rothbard is precisely on the mark… the prospect of being held liable even for negligent actions performed in the line of performing another, well-intentioned action is what motivates the actor to take appropriate care not to cause injury to others. The “collateral damage” is obliterated by strict liability… you can’t justify accidentally blowing up an innocent person’s house just because you were supposedly going about the noble cause of defending other innocents from foreign attack and invasion.
Clayton -
If a kid suddenly jumps to the middle of the road, and you run him over. You might have followed all the rules and speed limits, but you still couldn’t expect a kid there. Certainly it is the kid’s fault. But there was no negligence or intention sure. Surely we don’t expet the driver to pay compensation here.
Another example. A plane crashes and kills the people on the ground and the people inside the plane. The people inside the plane agreed to the terms that there is a very small chance that a plane will crash, and the people on the ground didn’t agree to anything, but certainly you can’t ban air traffic because of an extremely small chance that sometimes people on the ground will be killed by a crashing airplane. In any case there was no negligence here.
Yes, because it’s not his fault. You brought up the example of a poor worker having to pay restitution all his life for something that’s not his fault. But if it’s not his fault he doesn’t have to pay anything. Either it’s his fault, or he doesn’t have to pay.
Yes, I didn’t say anything that physically happens to someone is his fault. A death might not be his fault, or it might be so unpredictable that we consider it such. But if it is his fault then it’s either negligence or intention. Someone would not get punished for a death that’s “not his fault”. But if it is his fault, then it doesn’t matter whether he intended to or not.
Whether you need permission to fly over someone’s property depends on whether the airspace is a public thoroughfare or has been homesteaded in some way. Homesteading requires some publicly knowable improvement of the resource in question. For airspace, it could be the provision of transponders, radar towers, air traffic controllers, etc. This suggests to me that most airspace would be a public thoroughfare in a natural order society and passing through that airspace would not require the permission of those on the ground any more than driving past someone’s house on a public road requires their permission.
Nevertheless, the airplane operator (crew + owners) must be held fully liable for his actions and if his plane crashes, causing property damage, death and injury, he must be liable to suit by the victims. This is the limiting factor. That is, the potential for legal liability is what internalizes the costs of flight accidents onto airplane operators.
Clayton -
When a plane crashes and kills the people on the ground it is the fault of the airplane company, but it is most likely not negligence. Nothing is 100% safe, so it is absolutely certain that a certain, even if measly, percentage of planes will crash.
Another example. My house had a fire and burned the house of the neighbor. Its certainly my fault. After all if I didn’t live there and didn’t have a house, there would be no fire. However it is not necessarily negligence. Fire can happen just because it was a very hot day, and my house was made from wood.
In both cases I believe the person who caused the death should offer restitutions, but in neither of these cases negligence occured. Negligence implies that a reasonable person would have done things differently. Yet no reasonable person would have created a 100% safe house or a 100% safe airplane, because that’s just impossible.
I’ll tackle the question form a liability’s insurer’s perspective, as I always tend to.
Now, if you willfully murder someone, numbers are likely to show that this makes more likely to kill again, or otherwise cause property damages in the future.
On the other hand, if you cause damages or even death by negligence, number will probably show that you’re less likely, if indeed at all, to cause further damage in the future. Hence, form an insurance perspective, it makes a huge difference.
@ the OP
I think it would have been better to state more of Kinsella’s case.
Kinsella:
- Notice that this analysis helps to explain why damages or punishment is greater for intentional crimes than for negligent torts that result in similar damage. For example, punishment is an action: it is intentional and aims at punishing the body of the aggressor or tortfeasor. In punishing a criminal, the punishment is justified because the criminal himself intentionally violated the borders of the victim; the punishment is therefore symmetrical …. However, in punishing a mere tortfeasor, the punishment is fully intentionally, but the negligent action being punished is only “partially” intentional. Therefore punishing a tortfeasor can be disproportionate; it would be symmetrical only if the punishment were also “partially” intentional. But punishment cannot be partially intentional; therefore, the damages inflicted (or extracted) have to be reduced to make the punishment more proportionate.
If this analysis is right, the “strict liability” approach that would treat the damages from murder the same as for manslaughter is wrong…
If you kill someone out of negligence, it’s not 100% intentional; but retaliation necessarily is. So killing the tortfeasor is disproportionate. For example say you did something that had a 10% chance of killing the victim. So the punishment is 100% certain, so the severity of punishment has to itself be reduced by 90% to make it balance out. So you have a right to (say) chop off someone’s arm. Then you use that as a bargaining chip (or model) to get damages from that, which would be (say) 10% of the standard wergeld.
For the most part, I think Kinsella is right and Rothbard wrong. Although, I think the justice seeker is not allowed to chop off the tortfeasers arm, but only allowed to force them to play some sort of solo russian roulette, were the odds are equal to the risk the tortfeasor took with the victim’s life.
Overall, Kinsella applies a much more axiomatic deductive and praxeological approach than Rothbard to this issue.
You are not arguing for a strict liability standard. Strict liability is, by definition, liability without fault. You are confusing fault with causation.
Imagine a scenario in which I am a manufacturer of sunblock. I do everything correctly and reasonably (in other words, I am not negligent), but somehow one of my bottles gets contaminated, and someone gets cancer. Under a strict liability system, assuming the victim can prove that her cancer was caused by my sunblock, I am liable, whether or not the contamination was my fault. I caused her cancer, and that is all that matters.
Under a fault system, the victim would have to show that I had a duty to her to take a certain level of care in making my sunblock and that I failed to live up to that standard. In the American system, the typical standard is one of negligence, which would require the plaintiff to show that I acting more poorly than a reasonable person in the same position would have. Therefore, I can cause the victim’s injury, but if I acted reasonably, it was not my fault, and I am not liable. Eugene’s car accident example works the same way.
My argument was that there is no distinction between fault and causation. The only way to not be at fault as a sunblock manufacturer is to not produce faulty sunblock. If the sunblock turns out to be contaminated, it was the manufacturers fault. Unless, of course, someone contaminated it on the way to the store or something that the manufacturer didn’t cause. But if something is caused by A, it’s always his fault. There’s no such thing as causation without fault. There are really only three possibilities: You didn’t cause something so it’s not your fault. You caused something so it is your fault. And, you caused something but had such a small part in it that we don’t consider it your fault. That is up to the courts.
That is a fine definition of fault, though it is slightly confusing in that it is not the definition used by American law. In that context, there is causation without fault; in fact, it is quite common.