The Threat That Tort Law Poses to Freedom The Wall Street Journal Europe, November 4, 2003 I'm grateful to Philip K. Howard for his article "When Judges Won't Judge" (op-ed page, Oct. 23).
I think that the responsibility for the "lawsuit culture" is to a great extent
attributable to the legal theories of "strict liability" or "liability without
fault" as a basis for tort law.
The culture that generated these theories assumes that it's not possible (or
would be unjust) to exclude liability if there was no "wrongdoing" ("delictum,"
or "quasi delictum") on the side of the defendant that allegedly caused the "accident."
Therefore the subject who "acted" (and by acting generated the risk for consumers),
i.e., the "entrepreneur," should "by definition" be always responsible ("enterprise
liability").
In the example referred in the article, the county's "omission" not to close
a public park because irresponsible people were diving in waters where diving
was forbidden clearly is not a "wrongdoing."
Ancient authorities (starting from St. Thomas Aquinas) taught us that the issue
to be resolved is not "what happened," but what ought to have been done or omitted
under the circumstances of the case. Only if an action or omission was bad, i.e.,
in breach of a rule of conduct, should damages be awarded for the direct consequences
of that action or omission. Additionally, it was taught that damages to be awarded
should always be the minimum to re-establish an "equilibrium," not a "punitive"
sanction ("restituere simplum quod iniuste ablatum est").
"Even a dog," American jurist Oliver Wendell Holmes said, "distinguishes between
being stumbled over and being kicked"; despite this, at its primordial stages,
human kind has often adopted liability without fault: "If [a man] drowned in a
well, the well was to be filled up . . . if a man falls from a ship and is drowned,
the motion of the ship must be taken to cause the death, and the ship is forfeited."
These primordial rules have been superseded by the philosophy of freedom and
of personal responsibility, where there is no room for liability unless there
is a wrongdoing ("losses lie where they fall . . . unless they are directly caused
by a wrongdoing"), a "reproachable" conduct: this philosophy is one of the decisive
factors of the development of the marketplace and of the "wealth of nations."
Notwithstanding, "the notion that a man is answerable for all the consequences
of his acts, or, in other words, that he acts at his peril always, and wholly
irrespective of the state of consciousness upon the matter . . . will be found
to have been a far more popular opinion" (Holmes again).
The teaching of the masters of freedom (against the dangerous "popular opinion")
has been completely disregarded nowadays. It is commonly accepted that manufacturers
should be liable anyhow, because it is easy for them to insure against the risk
of "causing" damages, because it is unjust that they profit if they generate "damages"
and the like. Moreover, "punitive" damages have become a common practice and "damage"
is anything that appears "politically incorrect."
In my opinion, "liability without fault" and "without limit" in tort law is a
great danger for the future of freedom (a sort of "socialism" in the law not less
dangerous than socialism in economics). I really do hope that the issue is understood
and addressed as soon as possible by all believers in freedom.
Stefano de Bosio
Milan | 
