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| | | The Middle Ages Had It Right | |
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< | Medieval law gets a short shrift. Too often, it is reduced to some primitive, bloody, superstitious, and inherently unjust monstrosity--a dark age of ordeals and inquisitions. Having majored in medieval history, with a particular focus on medieval legal history, such simplistic reductions are tiresome. Monty Python is not an accurate secondary source, and law professors should know better. Especially those who teach tort. | >
> | Medieval law gets a short shrift. Too often, it is reduced to some primitive, bloody, superstitious, and inherently unjust monstrosity--a dark age of ordeals and inquisitions. Having majored in medieval history, such simplistic reductions are tiresome. Monty Python is not an accurate secondary source, and law professors should know better. Especially those who teach tort. | | | If they were more familiar with medieval law, they'd know it captures law at an essential level. It reflects a time when people did not rely exclusively on courts to resolve their grievances. If a court couldn't give a satisfactory resolution, the dispute would be settled in a private manner. Private settlements were not pretty. As such, medieval law possessed great awareness of the limits of its own power, and of the intense need to lay out a law that people would choose to follow. As a basic prerequisite, medieval tort could not leave harms unsatisfied. Its operating principle: strict liability. | | | Somehow, in the smoke and fire of industrialization, American jurisprudence lost sight of an ancient truth. Tort is not about blame, but harm. It is about making injured people whole, as best as the law can approximate. It should not matter if, by all accounts, you built a really safe and professional backyard shooting range. If you fire your gun, and you maim Little Timmy from across the street, it shouldn't be that Little Timmy has to pay out of pocket for a lifetime of corrective surgery, physical therapy, and prosthetic appendages. Yet, that's how negligence works. | |
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< | Theoretically, your almost-effective shooting range excuses you from liability. Because you tried to make it safe, and took a "reasonable" level of precaution, Little Timmy is not able to recover from you. That you can shoot Little Timmy and not be negligent seems to demand a redefinition of negligence. But as it stands, he has to swallow the cost of his injury so you can enjoy your "right" to build a shooting range. He pays a leg, and you get to enjoy your freedom to participate in semi-dangerous behavior with impunity. In essence, our society has decided it's better to shift costs to the random injured individual than to stifle free enterprise with the occasional award of monetary damages. | >
> | Theoretically, your almost-effective shooting range excuses you from liability. Because you tried to make it safe, and took a "reasonable" level of precaution, Little Timmy is not able to recover from you. That you can do harm and not be negligent seems to demand a redefinition of negligence. But as it stands, Little Timmy has to swallow the cost of his injury so you can enjoy your "right" to build a shooting range. He pays a leg, and you get to enjoy your freedom to participate in semi-dangerous behavior with impunity. In essence, our society has decided it's better to shift costs to the random injured individual than to stifle free enterprise with the occasional award of monetary damages. | | | Damage without compensation is a bad way to conduct tort law | | | When legal damages are less than the cost of precautions, companies behave negligently. This isn't a new phenomenon. Example: Eben's story of the Goodyear tire rims. | |
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< | The only real difference is that under strict liability, companies will always be liable for the injuries they cause, and those that get injured will have full recourse under the law for any damage they endure. | >
> | The only real difference is that under strict liability, companies will always be liable for the injuries they cause, and those that get injured will have full recourse under the law for any damage they suffer. | | | Conclusion |
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