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William Wray is a 3L at Roger Williams Law. He attended Georgetown University and Brown University for undergraduate, graduating in 2010 with a degree in Middle East Studies. Throughout high school and college he was involved in Mock Trial, which kindled his interest in litigation. At Brown he...

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When you're holding a screwdriver...

Posted by William Wray on 10/05/2010 at 07:32 PM

Today in torts class we discussed the conditions under which the law states that an individual has an affirmative duty to act. Generally speaking, we don't have a legal duty to act to help one another.


To illustrate this, Professor Logan described the hypothetical scenario in which someone knocks on your door and informs you that by donating a mere $1, you can save a starving child's life, guaranteed. He also described a situation in which a lone bystander to a car accident simply walks by without helping the afflicted or calling for those who can. In both situations, there is no legal duty to act, despite the almost negligible cost to one human being of saving another.


To illustrate the logic behind this somewhat counterintuitive notion, he briefly sketched out libertarianism. When it comes to torts, libertarians typically shy away from affirmative duties to help one another, unless the parties have entered into some sort of contractual or impliedly-contractual arrangement whereby the parties agree to assume certain responsibilities for one another. Beyond that, an individual is free to callously leave any number of kittens hanging tenuously over blenders, etc., provided they didn't put the kitten there in the first place.




Many of the students were understandably left with something of a sour taste in their mouth. Not that Professor Logan's lecture was one-sided: he covered the moral hazard argument, the economic argument, and pragmatic problems, all of which favor the libertarian conception of no-harm-but-no-duty.* It was a solid rebuttal to at least the first wave of moral revulsion that greets seemingly Darwinist libertarian logic, especially given that the Socratic method - Professor Logan's teaching style - is only as good as its Platos.


 Plato. He wasn't in class, but does kind of resemble Dean Logan.

There was one point in the discussion at which I diverged from Professor Logan's opinion; he stated that the opposite of libertarianism is communitarianism. Communitarianism is the idea that one needs to “...balance individual rights and interests with that of the community as a whole, and argues that individual people (or citizens) are shaped by the cultures and values of their communities.”


Libertarians certainly deny most forms of legal communitarianism, especially nationalist legal communitarianism. But the vast majority of libertarians believe that individual rights and interests must be balanced against that of the community as a whole. The only difference between a legal communitarian and a libertarian is 1) who or what should be doing the balancing, and 2) what constitutes a community. This isn't merely playing with semantics.


Lawmakers and proponents of big government tend to see law and government as the ultimate tool for shaping society. This is not unrelated to the fact that practitioners of a given field tend to view the whole world through the lens of their practice.


Put more simply, when you're holding a screwdriver, everything looks like a screw. When you're dealing with lawmakers, this poses quite a problem. Unlike the unqualified handyman from the screwdriver aphorism, whose misadventures will merely deface the drywall, lawmakers have the power to screw just about everything.


 Nothing to do with this post, but people like pictures.

So a law student may see injustice, and want to fix it with laws: “Why don't we set out an affirmative duty to act in these cases? Apart from selfish cynicism masquerading as logical arguments about moral hazards, why don't we have welfare, and socialized health care, and moral laws?”


This is a good question, and a reason that many people look askance at libertarianism; it just sounds and feels wrong. People do have a duty to help one another; we are a community. Coercing the few Scrooges into helping everyone will be to society's benefit. Right?


Libertarians don't see law and the government as effective tools for achieving a just society; all the “...cumbrous and expensive machinery of the state...” can do is enforce a baseline rule of 'do no harm.' Social justice, the equitable distribution of wealth and moral development are present only in the rarefied heights of voluntary, cooperative human endeavors. Social justice has never been the necessary byproduct of a rigid set of laws, no matter how lofty the language therein. A man or woman's better nature cannot be wrung from him or her.

This isn't merely a convenient delusion. “People who reject the idea that "government has a responsibility to reduce income inequality" give an average of four times more than people who accept that proposition.” Yes, the study was corrected for income.

When you were a kid, were you grounded every time you did something wrong? Or did your parents have other, nuanced ways of shaping your behavior?


Libertarians see the law (civil law and criminal law) and government as only two tools that society has in a large toolbox to build a more perfect society. Other tools include things like community, civil society, or market mechanisms. Each tool has its specific uses: the market is good for economic activities, civil society is good for , the law and government are good for the enforcement of certain basic laws, and the community is good for enforcing moral norms.


But is a country of 300 million+ really a community? Some traits that communities typically have in common are, inter alia, “...intent, belief, resources, preferences, needs... and risks, affecting the identity of the participants and their degree of cohesiveness.” (Wikipedia, obviously) Do you think if you randomly picked one American, that he would have a lot of those traits in common with another randomly picked American besides what's on TV and what name you write on your checks come April? Or might he have more in common with a randomly picked European, Canadian, or South American?


A country as large as ours cannot be a community, it's a patchwork of smaller communities. French author and historian de Tocqueville called this "civil society." This civil society functions independently from the state and performs many of the functions that liberals would have the state subsume.


The libertarian argument is that people don't act responsibly because they're part of the 'American community,' they act responsibly because they are part of a town's community, or a law school community, or a community of social peers, or a religious group, or a charitable group or a business. THOSE communities are the ones that provide moral pressure on individuals to not only not break the law, but do good for everyone, not just those within the community.


Why not force income redistribution and legislate affirmative duties to act if they would simply be redundant? Because when you take a screwdriver to a piece of furniture that needs to be painted, you can really only do harm. Three reasons include:


First, it's the moral equivalent of the exclusionary effect cum Peltzman effect. People assume that because there's a body of law and a government that purports to achieve society's goal, by conforming with these laws and paying taxes, they have satisfied their duty and owe nothing more to society. “I voted Democrat... I did my good deed for the next two years.”


Second is the whole slew of economic efficiency and moral hazard arguments. These are primarily economic arguments; this is where libertarianism gets the sociopathic rap.


Third is the philosophical argument that a good compelled is no good at all.


So are libertarians all pure individualists? No, at least not necessarily. They are communitarians who disagree with the usefulness of imposing the law into interpersonal interactions, and believe that the principles of communitarianism are best enforced by communities, not governments.


*In the scenario where someone knocks on your door and asks for one dollar to save a life, the moral hazard is something like: well, if people knew that you were going to bail them out, they wouldn't protect themselves. And the economic argument addressed was that if those rich bastards know they have to surrender their goods, they'll never work to acquire them in the first place. Practical problems include things like knowing where to stop when assigning liability.