No time to clean this one up at present, so here it is mostly raw—
Now, the topic of Willful Negligence.I looked at “The Libertarian Approach to Negligence, Tort, and Strict Liability: Wergeld and Partial Wergeld”. I understand the idea of a “spectrum between non-action or mere behavior”.Where I get jumbled up, is on the combined topics of “willful negligence” and “action”. Example:Joe is lounging in his easy chair holding his known-to-be-vicious dog on a leash. He falls asleep; dog gets out of the house and kills a child. Whatever other details we wish to add (front door open, etc) should show Joe as extremely willfully negligent. Even stipulate Joe shows no remorse, indeed, objects to any estoppel argument.
By any intuitive sense, he should have known better and been more careful.Here’s where I get tripped up. Joe took no praxeological action. Indeed, he was fully passive, literally not moving, let alone taking intentional action. Yet, here is a case where pure inaction led to a serious tort.
- The Non-Aggression Principle as a Limit on Action, Not on Property Rights, StephanKinsella.com (Jan. 22, 2010)
- IP and Aggression as Limits on Property Rights: How They Differ, StephanKinsella.com (Jan. 22, 2010)
I am not trying to armchair theorize. Rather I really want to best understand the underpinnings (if any) that libertarian legal theory may provide for willful negligence.
My best random thoughts on it:– It is outside the NAP, as there is no action on Joe’s part, thus no intent, no aggression.– It’s an “accident” in the colloquial sense.
– But it is also a series of real-world events for which his negligence played a highly significant causal role (at least cause-in-fact), culminating in a (admittedly unintended) death.– Yet his extreme willful negligence seems just shy of intent.
It does seem that the area of negligence needs work.
I had initial thoughts about the dog example, thinking that, as his property, he is responsible for its harm to others. But even in the book you make clear that ownership is not an ingredient to the issue, especially if the object used in aggression was stolen from another.
And anyway, negligence excludes intent which is why it’s outside the whole matter of aggression.
Using a pet dog to achieve the ends of companionship and protection, is an instance of the general act of utilizing a means (resource) to achieve an end. In this case, it strikes me that the initial acquisition of the dog is a starting action whose intended end extends thru the whole time he possesses the pet. During that entire time, the possibility exists the dog could harm others (the known nature of the animal, a risk inherent to this particular scarce resource). Insofar as Joe is “on-goingly” employing this means to his ongoing ends, I wonder if we can view the resource as a property of Joe. If so, and that resource causes unintended harm, the most proximate causal agent is he who was employing the means. This may be a clue where responsibility could be assigned in a legal sense.
The reasoning may be easier to work through if this wasn’t a pet, and instead Joe kept explosives lying around, and these went off unintentionally.
KINSELLA:
It does seem that the area of negligence needs work.
I had initial thoughts about the dog example, thinking that, as his property, he is responsible for its harm to others. But even in the book you make clear that ownership is not an ingredient to the issue, especially if the object used in aggression was stolen from another.
And anyway, negligence excludes intent which is why it’s outside the whole matter of aggression.
Using a pet dog to achieve the ends of companionship and protection, is an instance of the general act of utilizing a means (resource) to achieve an end.
In this case, it strikes me that the initial acquisition of the dog is a starting action whose intended end extends thru the whole time he possesses the pet. During that entire time, the possibility exists the dog could harm others (the known nature of the animal, a risk inherent to this particular scarce resource).
Insofar as Joe is “on-goingly” employing this means to his ongoing ends, I wonder if we can view the resource as a property of Joe.
If so, and that resource causes unintended harm, the most proximate causal agent is he who was employing the means.
This may be a clue where responsibility could be assigned in a legal sense.
The reasoning may be easier to work through if this wasn’t a pet, and instead Joe kept explosives lying around, and these went off unintentionally.
I see some merit in both sides.
If the dog was released by the action of a person other than the owner, that other person could be liable. If they were ignorant of the dangerous nature of the dog, that is similar to a case where an ignorant person tries to do something beneficial (switch a trolley bound to kill someone?) but ends up making things worse by mistake.
But someone has to be liable, don’t they? If the dog gets loose and kills someone, either the owner’s precaution of leashing the dog was inadequate, or we have to say the victim was liable for taking inadequate precautions.
A dog is not a moral agent or a legal agent, subject to legal penalties. (I suppose it could receive a death sentence, but it won’t be asked to serve jail time or pay restitution.) By fostering the dog, the owner accepts some degree of responsibility for what the dog does, as if the dog was his agent.
So it is not possible for the owner to be completely passive. He acts to take precautions created by his choice of owning the dog, and he acts by delegating the dog to act for him. If he does not act to take precautions but was aware of the danger, he ought to be held liable.
But then, what if someone else releases the dog? If they knew and intended to create a danger, the releaser would be liable. If they were ignorant of the vicious character of the dog, maybe not. If they had the owner’s permission to access the place where the dog was, but had not been sufficiently warned about the potential danger, the owner is back on the hook.