Comment by robkop
5 hours ago
Occam's Razor - this complexity arises from the human nature to try and build consistent abstractions over complex situations. It's exactly what we do in software too. To an outsider it's going to look nonsensical.
I want to share a thought experiment with you - atop an ancient Roman legal case I recall from Gregory Aldrete - The Barbershop Murder.
Suppose a man sends his slave to a barbershop to get a shave. The barbershop is adjacent to an athletic field where two men are throwing a ball back and forth. One throws the ball badly, the other fails to catch it, and the ball flies into the barbershop, hits the barber's hand mid-shave, and cuts the slave's throat-killing him.
The legal question is posed: Who is liable under Roman law?
- Athlete 1 who threw the ball badly
- Athlete 2 who failed to catch it
- The barber who actually cut the throat
- The slave's owner for sending his slave to a barbershop next to a playing field
- The Roman state for zoning a barbershop adjacent to an athletic field
Q: What legal abstractions are required to apply consistent remedies to this case amongst others?
Opinion: You'd need a theory of negligence. A definition of proximate cause. Standards for foreseeability. Rules about contributory fault. A framework for when the state bears regulatory responsibility. Each of those needs edge cases handled, and those edge cases need to be consistent with rulings in other domains.
Now watch these edge cases compound, before long you've got something that looks absurdly complex. But it's actually just a hacky minimum viable solution to the problem space. That doesn't make it fair that citizens bear the burden of navigating it - but the alternative is inequal application of the law
> The legal question is posed: Who is liable under Roman law?
My question is why does anybody have to be liable at all? Most normal people would consider this just to be a freak accident.
Sure, there's learning points that can be taken from it to prevent similar incidents - e.g. erecting a fetch around the field (why didn't you suggest that the field owner be liable) as it can be reasonably foreseen the situation of a ball escaping and being a nuisance to someone else (maybe it just startles someone on the road, maybe it causes a car crash, whatever), or legislating bars or plastic film on the barber's window, etc.
But here nobody seemed to act in any way negligently, nor was there any law or guidance that they failed to follow. It was just the result of lots of normal things happening that normally have no negative consequences and it's so unlikely to happen again that there's nothing useful to be gained by trying to put the blame on someone. It was just an accident.
> My question is why does anybody have to be liable at all?
This question mistakes what civil law is doing. A more accurate framing would be, “why does anybody have to bear the loss?”. But of course, somebody must. So the task of civil law here is to determine who. Certain policy choices will align better or worse with a sense of fairness, better or worse with incentives that could reduce future losses, etc.
That's such a strange interpretation that disagrees with my intuition.
If the Yankees hit a practice ball out of their stadium and into my house, causing bodily harm to a loved one, I wouldn't be satisfied with any of the reasoning in your comment.
More generally, people are allowed to take on risk as per their own appetite, but legal liability allows risk-hungry individuals to be incentive-aligned with everyone else.
I don't actually find it a particularly strange interpretation.
Here's another lens:
I install cabinets in your kitchen. Your loved one trips, hits the cabinets, breaks their neck and dies.
Should I be liable in this case as well? I did a thing that was involved in harming your loved one... if the cabinet hadn't been there, they might not have died.
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In both cases, it's pretty clear that there's no intent to harm your loved one. At best you're arguing that it was "foreseeable" that hitting a baseball might harm someone, and that it wasn't "foreseeable" that installing cabinets would harm someone.
But clearly that's ALSO wrong, because we know people have been hurt hitting cabinets before.
So clarify how you'd assign blame in this case, and why it's different from the baseball case?
Basically - your stance is that risk is always a decision someone has made, but I find disagrees with my intuition. Risk is an inherent part of life.
> nobody seemed to act in any way negligently
The whole point is that there's a legal system that allows a plaintiff to make an argument that there was negligence at play, and OP outlined a logical list of examples of how it could be argued up to the government itself being negligent for zoning. It's the job of the legal system to remove the ambiguity of "seemed", particularly in the context of tort and compensation.
This example just happens to be less obvious than a construction company building a house or bridge that collapses and kills people, and most cases in front of a court are equally ambiguous.