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Capability Ethos and the Law of Accidents

Where does tort law fit in as part of a country’s intellectual history? Does the law of accidents exert an influence upon a country’s basic belief system? The idea of restitution and recompense for negligently caused harm fits well into a universal-rights based belief system, one that protects and celebrates individual rights, one that sets boundaries beyond which others may not trespass. Tort law guards against the encroachment by others, providing a means of redress and reparation.

“A recent writer (Benjamin N. Nelson) has observed that “a society founded on sheer egoism…will undergo atomization, anomic loss of a sense of belonging.” It then leads to totalitarianism by reaction, modern totalitarianism being an effort to substitute for “subtle and satisfying forms of organic solidarity” by “imposing the yoke of mechanism.” In other words, a natural community being absent there is flight from the intolerable rootlessness and anonymity of modern urban life, towards some kind of statism. The case for the conservatives of nineteenth-century France must rest on some such point as this, and it would seem to be one of enduring pertinence.”1

Many believe this to be almost a law of nature––power’s reaction and response. Law, with its cross-hatched network of power shifts and reversals, behaves somewhat similarly. “Imposing the yoke of mechanism”––too often this is hidden from view, occurring deceptively, invisibly. Tort law’s underlying idea is that which is rarely recognized––its method, its counterweight, provides a means to break free from “the yoke.” This explains why individual rights should be guarded, not abolished––and why rights theory has its place within the history of ideas.

“A government that claims to be committed to no principles and to judge every problem on its merits usually finds itself having to observe principles not of its own choosing and being led into action that it had never contemplated. A phenomenon which is now familiar to us is that of governments which start out with the proud claim that they will deliberately control all affairs and soon find themselves beset at each step by the necessities created by their former actions. It is since governments have come to regard themselves as omnipotent that we now hear so much about the necessity or inevitability of their doing this or that which they know to be unwise.”2

Hayek is describing the same phenomenon, but in different terms. “Totalitarianism by reaction”–-freedom-restricting efforts to improve matters typically end up making things worse. We see this in a variety of contexts. Viewed more broadly, therefore, the law of accidents plays an indispensable role, far more consequential than is commonly recognized. You’re not suggesting that state and federal tort cases somehow influence the structure of a society? That’s exactly what’s being suggested. That seems a bit of a stretch. How?

Accountability and transparency represent only the surface of things. We’ll need a new term to describe what’s at stake. We’ll call it “capability ethos.” Webster defines “capability” as “the quality or state of being capable” and (its secondary definition) “a feature or faculty capable of development: potentiality.” Webster defines “ethos” as “the distinguishing character, sentiment, moral nature, or guiding belief of a person, group, or institution.” Capability ethos is that which drives a flourishing society––its citizens know the society they live in empowers them to be both “capable” and “capable of development.” At its most basic level, tort law protects (and enlarges) this fragile space. It may seem a small matter until it’s been taken away––then, its absence can be seen to affect the very essence of things.

1 Roland N. Stromberg, An Intellectual History of Modern Europe, Pg. 248 (1975 Prentice-Hall, Inc.)
2 F.A.Hayek, The Constitution of Liberty, Pg. 111 (1960 The University of Chicago Gateway Edition).

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