You could bring water in from elsewhere and demand compensation for it when you bring the owner to court.
I would say it is the crime: i.e. murder. Both the employer and the hitman are guilty of murder. By my “knew or should have known” standard for liability, the employer of the hitman is liable because (1) his action (hiring the hitman) was a necessary condition for the tort to occur, and (2) he knew it would have that effect. The fact that there’s another agent (the hitman) between his action and the tort in the causal chain makes no difference.
Now, by Clayton’s definition, the employer is not liable for murder, because he’s not the last agent in the causal chain. I don’t see how that standard for liability can ever allow for anything like “conspiracy” or “incitement,” since in those cases we’re always talking about someone who is not the last agent in the causal chain: i.e. someone who conspired with or incited the last person in the causal chain. Though maybe there would be an exception, even by this standard, if the last agent in the causal chain is legally incompetent - Clayton? Such persons are not really agents at all in the relevant sense, and they might be construed as mere tools of the previous agent: e.g. like a gun is a tool.
Nope. The trouble here is that your standard breeds torts via negligence. Consider a simple farmer, let’s say 1930’s era. He goes about his daily life, doesn’t interfere with anybody. One day, he comes across a shack he hadn’t seen before, and inside, a mysterious piece of equipment. Curious, he flips a switch. Terrified, he jumps backward as the machine powers up and begins humming. Unbeknownst to him, he has just powered on a very powerful radio transmitter that is jamming all radio traffic for many miles around, much of which is commercial in nature.
Now, the question is - did he know the extent of the damages that would be set in motion as a result of his otherwise innocuous action? Of course not, he doesn’t even know what electromagnetism is. But this is beside the point. In flipping the switch, he stepped outside of the boundaries of the world of cause-and-effect that he did understand, and which he knew for sure would not lead to damages to others. It’s like the child who says to his parent, “I didn’t mean to”, to which one response is: “but you didn’t mean not to.”
Of course, those who are damaged by the farmer’s switch-flip are going to argue he ought to have known (“everybody knows about radios, and everybody knows if you flip the power switch, something is going to happen, even if they don’t understand exactly what… why else would he have flipped the switch??”) And the farmer will argue that not only did he not know, but he could not have known… by virtue of his simplicity and his isolation from technology. It’s an impossibly contentious standard; it’s useless.
But I don’t understand why we need to consider knowledge at all. Imagine that, instead of judging human beings, we are judging billiard balls. The question of “which billiard ball last struck the pocketed billiard ball” is a purely causal question which can be entirely divorced from questions of knowledge or knowability.
Consider the example I gave of someone who is hurled out of their seat in a car wreck and then bodily slams into a pedestrian, injuring them. Clearly, the cannon-ball individual is not liable for the laws of kinetics… he was bodily hurled as a consequence of the actions of the driver or some other circumstance. He may then justifiably “pass the buck” up the causal chain. But the analysis of the causal chain itself is entirely unaffected by this consideration.
You are implicitly assuming that “unforeseeable consequences” is a valid excuse in passing the buck. Perhaps it is in specific instances, perhaps it’s not. Maybe you’re right that it is a generally valid excuse in all instances. But we can’t know this a priori. What we can know a priori is that causality can be untangled to the degree that reliable information regarding the sequence of events is available. Hence, the key is to establish the chain of causality and then looking for the “last responsible agent”. That framework or “meta-legal” issue stands on its own entirely apart from the issue of the unforeseeability of consequences of actions.
What we can also know, a priori, is that assigning a default position regarding the unforeseeability of consequences - the actor is always liable or, the actor is never liable - favors one side or the other of a dispute, that is, the injured or the injuring. In general, we must favor the injured party not because we are presuming guilt or any such nonsense but because prudence is the best antidote to disputes. Since the reason people come to arbitration is to settle disputes, a corollary of a sincere desire to settle a dispute is the similar desire to have never had the dispute in the first place. If such a desire is sincere, then the injurer ought to be willing to acknowledge a presumptive burden for his lack of prudence… that is, for having been the causal agent in the fact that a dispute even arose in the first place. This is the case regardless of his own subjective feelings regarding how “at fault” he was or how much of a victim of complexity and unforeseeability he was.
Well, let’s say I have a severe peanut allergy. When I’m not looking, Smith - who doesn’t know I have this allergy - puts some peanuts in my dessert. I take a bite and then puff up like a balloon and go to the ER with a very dangerous and expensive situation. Clearly, this is different from Smith shoving the peanuts down my throat even if he did so not knowing I have a peanut allergy. The difference here is you are presuming that Smith knew and intended the substance he introduced to be poisonous. But an objective analysis will neglect all of these unnecessary factors - in every case, Smith is the cause my injury. Thus, he is liable in all of them.
Turning now to why he is liable for causing me harm in the surreptitious poisoning case, imagine that Smith had poured the poison into my drink right before my eyes and informed me that it is a deadly poison, not jokingly. Then I drank it. In this case, I have committed suicide and Smith has done me no harm whatsoever. That last stroke in the causal chain - my arm putting the glass to my lips - is where the liability would lie, if there were any. The contrast, then, is that he may not appeal to his own cleverness (surreptitious introduction of the poison) in order to “pass the buck” as if I had poisoned myself. Surreptitious introduction of the poison is clearly differentiable from introduction of the poison with my knowledge and consent.
Hmm, I see it as a value-free issue. The problem with allowing the hitman to pass responsibility up the chain is that - however satisfying it is in such a clear-cut case where the evil mastermind is reprehensible and we want him to be punished for his evilness - most situations in which the principle of propagating liability is applied are used as a form of indirect legal warfare between business competitors. Gun company A uses a shooting victim shot by one of Gun Company B’s guns to bankrupt Gun Company B. And the reason for being so staunch that the liability does not jump even one link is that that is all that is needed… once liability can jump one link, it can jump any number of links merely by filing a series of lawsuits, a separate for each link in the chain. The history of trust-busting, money laundering and racketeering prosecution in the US is a sobering object-lesson in the dangers of this logic.
What you must realize is that the logic of strict, individual liability is auspicious - yes, only the hitman is liable but every would-be hitman knows he is solely liable for his conduct. This means he rests in the sure knowledge that he will not be able to plea bargain or engage in any form of dilution of the consequences of his crime. This, in turn, means that finding a hitman… is that much more difficult. Have faith in the market!
Clayton -
Yes, if the last individual in the causal chain is incompetent, then he clearly cannot be liable for his own actions and we will have to look for who caused him to act in that way. This is the same as the case for a body propelled out of a crashed car and slamming into a pedestrian, injuring the pedestrian.
Now, also keep in mind that arbitration is always a 2-party process. It is not a general “crime-busting” tool as Statist prosecutors and courts have perverted it to be. Thus, while the hitman may not pass the buck to his employer, and while the victim may not sue the mastermind for murder, there is nothing stopping the hitman from suing the mastermind on the grounds that his predicament has been brought about through some kind of fraud or misrepresentation. (For example, imagine a bounty-hunter hired under a false pretext by a mastermind… the bounty-hunter is presented with fabricated evidence and court records supposedly showing that John Doe is guilty of murder, an outlaw and is free game to be killed.) Also, it is conceivable that the victim could separately sue the mastermind on similar grounds… because he did participate in bringing about the predicament. The key is that the mastermind is simply not guilty of murder.
Clayton -
“Also, it is conceivable that the victim could separately sue the mastermind on similar grounds… because he did participate in bringing about the predicament. The key is that the mastermind is simply not guilty of murder.”
Maybe not guilty of 1st degree murder, but maybe guilty of like 2nd degree murder, something like that. He brought about the conditions required for murder. Like the difference between shooting someone directly, and locking someone in a room for a week unto death.
The fact of the matter is that some dispute are very difficult to resolve. I would say that the contentiousness you see in the case of the farmer results from the nature of the case, not from the standard itself. The standard merely allows this inherently difficult case to be resolve ad hoc by the parties concerned. Of course, one can develop a more rigid standard (such as the “last agent” standard), but rigid standards don’t bend, they break. That is, you gain clarity at the expense of occasional cases where application of the standard yields an injustice. I think cases involving a “butterfly effect” are similar to this farmer case. Suppose I make some tea, this causes a slight change in air temperature in my area, and through some labyrinthine causal chain, this results in a tornado which kills 7 people in Oklahoma. Should I be liable for these deaths? If holding me liable does not strike you as unjust at a very basic level, then, again, I think we’ll just have to agree that we have slightly different normative concepts of liability.
Yes, indeed I am.
The idea of proximate causation is not the same as the idea of liability; the former concerns only objective facts, the latter is inescapably an ethical matter. You can use a standard grounded in objective facts to define liability, but nonetheless the concept of liability itself is not grounded only in objective facts, it always involves an ethical interpretation of those facts. To me, liability is a primitive (in the philosophical sense), it cannot be further analyzed or reduced. In other words, it is intuitive. And, therefore, my goal in producing a formal standard for liability is to produce a rule which, when observed, yields results which match my own concept of liability. This is what we’re all doing, but evidently our concepts of liability differ. Put another way, the universal (legal standard) should be tailed to the particulars (our intuitive/instinctive sense of when liability should and should not be assigned), not the other way round.
Not true, by an objective analysis, you were the proximate cause of your own injury in the cases where you eat the desert yourself. You, as an agent, took an action (eating the desert), which, in the causal chain leading to your injury, was subsequent to Smith’s action of putting peanuts in the desert. By your standard, then, Smith is not liable.
Right, by your standard, there is no tort in this case at all, since you yourself were the last agent in the causal chain. Note that, by your standard, it makes no difference whether Smith informs you about the poison or not. He is not liable in either case, since he is not the last agent in the causal chain.
Yes it is, but not by the “last agent” standard. That is, whether the poison was introduced with your knowledge and consent or not, you (not Smith) are the last agent in the causal chain - right?
Well, that depends entirely on what the parties concerned in any given dispute find to be unforeseeable consequences, what they find that the accused ought to have known. It principle, yes, it can be greatly stretched. In practice, I don’t think that’s much of a risk. In almost all cases, all but the unusual fringe cases which are unfamiliar to people, I think most people will tend to come to basically the same conclusions about what an actor “ought to have known” would be the consequences of his actions.
Right, I agree. Now, why is it that we absolve someone of liability if they are incompetent? What does it mean to be incompetent? It means to be in a condition where one is unable to know the consequences of one’s action, right? Typically, this “condition” is a mental one. That is, one is absolved of liability if the cause of one’s being unable to know the consequences of one’s action is a mental defect. But what if one is unable to know the consequences of one’s actions for some other reason? Suppose one is unable to know the consequences of one’s action because one lacks the knowledge of causality requisite for predicting those consequences. For that matter, is this not a mental defect? Isn’t this exactly the issue with, say, a mentally retarded person? They don’t understand causality well enough to know that, for example, pulling the rigger fires the bullet? In other words, they lack knowledge. How is it different with the farmer pushing a button, when he has no knowledge of the causality in question that would enable him to predict the outcome of his action? I don’t think there is a difference.
I think that the logic of absolving someone of liability on the basis of incompetence is exactly the same as the logic of absolving an otherwise competent person on the grounds that he was unable (due to a lack of knowledge) to predict the consequences of his actions. The only difference is that a person deemed legally incompetent is absolved of liability in general. That is, to say that someone is legally incompetent is to say that they lack the ability to know the consequences of their actions not in a specific case, but in general. Whereas, my standard for liability allows for an otherwise competent person to be absolved for a specific action for the same reasons, but without being considered generally incompetent. In fact, a way of thinking about my standard is that it allows for someone to be absolved of liability on the basis of being temporarily incompetent: i.e. not knowing the consequences of their actions with respect to a particular action on a particular occasion.