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
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.
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.
If there are too many instances of people dying in such situations, then the fundamental way to solve that is to prevent such situations from existing. A specter of civil financial liability is but one way of trying to do this, and having judges create common law theories is but one way of assigning that liability. Relying on those methods to the exclusion of others is not a neutral policy choice.
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.
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.
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.
If you cannot understand the law as it applies to you, you cannot possibly be free under that law, because your actions will always be constrained by your uncertainty.
Perfect understanding of every law and its consequence is not possible anyway, because laws are meant to be contextual and interpreted by humans, to allow for exceptions in unusual cases (contrast that with the monumentally stupid idea of "law as code", which, if implemented, would grind us all under the gears).
In vast majority of cases, people don't need more certainty than they have or can trivially get, because variance of outcome is low. E.g. you don't need to know the exact amount of dollars where shoplifting turns from misdemeanor into a felony - it's usually enough to know that you shouldn't do it, and that stealing some bread once to feed your kids will probably not land you in jail for long, but stealing a TV just might. And by "low variance" in outcomes I mean, there's obvious proportionality and continuity; it's not the case that if you steal bread brand A, you get a fine, but if you steal bread brand B, you go straight to supermax, right away.
This is not to deny the ideal, but rather to point out that practical reality is much more mundane than picking apart unique court cases makes one think.
Do you actually think it's ok for freedom to only exist for people who can afford lawyers?
There are other means to gaining power, of course.
I think this is why the thing judges hate the most is people admitting when the law gives them an unfair advantage.
A rule that unjustly benefits someone is fine as long as they don't break kayfabe. Big Brother loves you, that's why you can't install apps on your phone, it's to protect you from harm. The incidental monopolization, censorship and surveillance are all totally unintentional and not really even happening. Oceania has always been at war with Eurasia.
Whereas, declare that you're shamelessly exploiting a loophole? Orange jumpsuit.
There is an action you can take that does two things. One, it makes it marginally more expensive to commit fraud. Two, it makes it significantly more expensive for your existing customers to patronize a competitor. If you do it, which of these things was it your intent to do?
The answer doesn't change based on whether you announce it. You can fully intend to thwart competition without admitting it. And, of course, if the only way you get punished is if you admit it, what you really have is not a law against intending to do it but a law against saying it out loud. Which is poison, because then people knowingly do it without admitting it and you develop a culture where cheating is widespread and rewarded as long as the cheaters combine it with lying.
Whereas if the law is concerned with knowledge but not "intent" then you'd have a law against thwarting competition and it only matters what anyone would expect to be the result rather than your self-proclaimed unverifiable purpose.
But then it's harder to let powerful people get away with things by pretending they didn't intend the thing that everybody knew would be the result. Which is kind of the point.
Having laws that tilt the playing field and then punishing anyone who admits the emperor has no clothes is just censorship. People still figure it out. Only then they get rewarded for knowing about it and not saying anything, which causes the corruption to spread instead of being opposed, until the rot reaches the foundation. And that's what causes "everyone starves, or worse."
Not quite that simple.
If enough people stop believing in the law, the society breaks apart, and you have people shooting each other in the streets trying to loot supermarkets and extend their lives for a week or two, before inevitably dying of starvation.
This is serious stuff. Society and civilization are purely abstract, intersubjective constructs. They exist only as long as enough people believe in them -- but then, it's still not that simple. Actually, they exist if enough people believe that enough other people believe in them.
Money, laws, employment, contracts, corporations, even marriages - are mutually recursive beliefs achieving stability as independent abstractions. But they're not independent - they're vulnerable to breaking if large group of people suddenly start to doubt in them.
Adams and Jefferson wrestled with another question. J said generations shouldn’t be tied to the decisions of their ancestors. Adams said but surely laws are necessary to maintain stability and order and preserve their fragile democracy for future generations.
Idealism is long term thinking.
If you disregard reality, you will never understand the world around you to make change.
If you disregard idealism, you will only ever be able to react. You will end up dragged around by the nose, and pulled towards someone elses ideal that might not be so good for you.
Thinking that power is inviolable is an idealism that benefits existing power. They don’t want you to think of the countless times power has been overthrown, and a more just society has been built on the ruins of one with benefits for only those with power.
But there is whole industry of education, profession, journals, blogs, podcasts and videos trying to teach, interpret and explain the same laws. In the end it is decided by experts who have been practicing law for decades and even almost half of those experts may disagree on the right interpretation but a citizen is expected to always get it right from the start.