Justice as it Appears in the Main Fields of Law (Part Two), Civil Law

Philosophos: Let’s move on to civil law. As far as intentional injuries are concerned it seems pretty clear that any injury to property or body that you cause you should be held responsible for. The tricky area is unintentional injuries. Briefly list and describe the basic systems of liability for unintentional injury.

Nomodiphas: On the one extreme there is strict/absolute liability. Under this scheme you are completely responsible for any injury that occurs on your property or by means of your property. This is one extreme. In the middle there is a negligent standard. You have to have some fault—you have to have failed to take ordinary care in order to be held liable. Finally, on the other end of the spectrum, there is no liability. In this the market is relied upon to solve problems. For example, if you run a dangerous business or make dangerous products people won’t buy your products and the market will correct the problem by running your out of business.

Philosophos: What do you take to be the best system?

Nomodiphas: Absolute or strict liability seems to be unjust. If I drunkly wonder into my neighbor’s yard and fall down, due to no fault of his, he should not be liable for my injury. You see strict liability fails to take into account contributory negligence. Even if I am acting inappropriately and cause my own injury another is held responsible for my injury simply because it occurred on their land. This scheme makes the owner of any property I enter an insurer of my well being.

Further this scheme raises prices. Think of how expensive cars would be if we had a strict liability standard! The manufacturers would be responsible for every accident, even those caused by misuse or recklessness. They would pass these costs unto consumer, which would make cars and many other products unaffordable.

The market is a good option if you have sophisticated costumers. If a business is reckless and the consumers have information, they will choose the better, safer product. The problem with this is that many people lack information and many injuries occur from one time transactions or with non-market participants (like neighbors). The market offers no recourse for these injuries.

Negligence seems to me to be the best system. It requires people to take ordinary care and prevent dangerous situations, but it prevents them from being held responsible for every injury that may occur on their property or from their products.

Philosophos: Again you have reached the Biblical conclusion. In Exodus Chapter 21 Moses lists the guidelines for civil law. He wrote that if an ox gores a man or woman to death, the owner is to go unpunished. He is not to be held responsible for all injuries that occur from his property (this is a rejection of a strict liability standard). However if the ox had a habit of goring and the owner did nothing about it, the owner is to be put to death (a rejection of the market solution, there is to be some state sponsored repercussion). This is a negligence standard. The owner has a duty to take proper care. If he has a dangerous animal and knows about it, he must protect people from it for he will be held responsible for the animal’s behavior. In this case the owner can foresee the animal harming someone so he is liable for any harm the animal causes. If however there is no notice of the animal’s violence, the owner has no duty to take extra care and he is therefore not liable for the animal’s harm, for he has no way to foresee it and prevent it. The same goes if a man negligently hurts another’s property. If a man digs a pit, but fails to cover it, he is responsible for the loss if a neighbor’s animal falls into it. The negligence standard does not punish people for any injury, but rather requires that they simply take proper care. Proper care will in turn prevent most injuries.