The fourth part of our survey of libertarian law and legal systems will explore causative events of legal liability arising from wrongs – that is a breach of some obligation owed by one legal person to another without the necessity of a pre-existing relationship such as a contract.

There are two issues that demarcate the approach of a libertarian legal system towards wrongs as opposed to that of a contemporary legal system. First is the definition of a wrong and second is the standard of liability – that is, at which point the defendant becomes legally liable for a wrong.

Libertarian Definition of a “Wrong”

In contemporary legal systems, a wrong is some sort of act on the part of an individual that is viewed as being subject to legal sanction. Unfortunately, we have to start off with such a vague tautology as, looking at the variety of acts that are subject to legal regulation, this is about as precise as we can get. In many cases, of course, the wrong will be some form of harm caused by one individual to another which serves as the causative event to generate a legal response. “Harm” is very broadly defined and can include violent and physical inflictions such as murder and serious bodily injury, or damage and destruction to property, all the way to more ethereal harms that may include nothing more than speaking one’s mind such as “defamation” and causing “offence”. However, events currently classified as legal wrongs needn’t have a victim at all and the act may either be wholly unilateral or take place between consenting individuals. As an example of the former we can cite nearly all offences related to drug possession and dealing, and of the latter the criminalisation of certain sexual practices owing either to their nature or to the age of one of the participants. Basically, it is no exaggeration to admit that a wrong, legally defined, in our contemporary, statist legal systems means nothing more than some act that the ruling government or legislature doesn’t like and wishes to outlaw, to the extent that even quite innocuous behaviour may find itself being subjected not only to legal regulation but to criminal sanction.

As we outlined in part one, no legal liability is generated in a libertarian legal order unless the wrong, or the “harm”, consists of a physical invasion of the person or property of another – in other words, only those actions that violate the non-aggression principle are subject to legal regulation. Actions falling short of this violation are left untouched by the law and however unpleasant, unkind or distressing these may be one cannot use the force of law (i.e. legitimate physical force) to repel them1. A fortiori, there can be no legal wrong where the act involved has no victim, no other individual whose person or property has been invaded. Anything you do with your own person and property is no business of the law’s, however immoral or repugnant it might otherwise be.

There are certain wrongs that would appear to cause great harm (or have the potential to do so) but do not appear to be invading anyone else’s property. We can cite littering, driving under the influence of alcohol or drugs, and shouting “fire” in a crowded space as examples. The victimless aspect of these acts, however, is caused by the fact that they take place on public property that is owned by no identifiable individual. In a libertarian world however, where all property is privately owned, the property owner would demand standards of conduct (i.e. through contract if you are, for example, paying to drive on a road) and breaches of these standards would then be invasions of the property that could be subject to legal sanction. Indeed, as we saw in part three, contract is a method of preventing and apportioning responsibility for aggression where there is a pre-existing relationship between the parties.

Once again we will not attempt to justify here the basis of self-ownership and private property upon which legal regulation in a libertarian world rests; rather we will merely assume it to be true and examine its consequences for a legal order.

Standard of Liability

The determination of the standard of liability – the extent to which a defendant would be held legally liable for his actions – is a difficult question. The simplest approach is to view all physical incursions into the person and property of another individual as existing on a scale – the least violent or aggressive actions on one end with the most – such as murder and rape – on the other. Defendants would simply be liable according to the level of harm that they caused. If you cause a bruise, you are liable for a bruise. If you kill someone you are liable for a death. However, such a simple classification overlooks the fact that the same outcome to the victim – death, for example – can result from a variety of incidents for which the defendant may be responsible. It may be anything from a deliberately and coldly calculated murder perpetrated by an evil and inhuman serial killer all the way down to an unfortunate accident that the defendant, while responsible, regrets bitterly and would never have dreamed of doing. Such accidents can result from not only the most innocuous of behaviour but also from an innocent moment of absent-mindedness, a weakness which is extant in all humans. It is not likely that libertarian legal systems will categorise these two defendants in the same way. The first person is clearly a murderer whereas to apply this label to the second person would appear absurd. To subject these two individuals to the same standard of liability would not only be unjust but would also cause the legal system to fail to distinguish between those individuals who are (or otherwise have been) a deliberately engineered threat to other individuals from those who are not.

One solution to this problem is to recognise the difference at the remedy stage, so that once liability is established then the remedy can vary appropriate to the individual act of aggression2. Clearly this would be logical when considering the degree of aggression caused – a person who caused a scratch wouldn’t be liable for the same degree of compensation (or whatever remedy) as a person who caused a death. Yet when the outcome to the victim is the same – death, for instance – but the methods or motives of the defendant have been different, such an approach causes the confused situation where you have different responses to the same causative event. We do not, in our contemporary legal systems, label those who cause accidents “murderers” and then simply apply a lesser standard of remedy. Rather the murderers and the manslaughterers incur liability on different grounds from those as those who caused accidents; different remedies then flow from the differing grounds of liability. In part one, we stated that the purpose of legal rules and norms is to broadcast, publically, the rights and obligations of each and every person so that conflicts can be avoided, or otherwise resolved. As “consumers” of the legal system, people will seek the services of jurisdictions where these demarcations are at their most clear so that they can carry on with their lives free from the aggression of others and free from aggressing against anyone else. In a similar vein people are likely to require the legal system to accurately and specifically categorise those who do or at one time did pose a deliberately engineered threat to the person and property of others and those who do not. A prospective employer, for instance, might wish to think twice before hiring you if you deliberately killed someone, whereas if you were the unfortunate cause of a road traffic accident in which a person died then he may have some interest in knowing this but it may not make much difference to your chances of employment. Labelling all of those who cause death “murderers” (or just “tortfeasors”) would banish the benefits to be gained from this categorisation. One objection to this might be that such a classification is very broad and there will be more detailed considerations to be accounted for within each category – within the category of murderers, for example, will be cold blooded and unrepentant serial killers as well as those who acted in moments of passion and bitterly regret what they did. Shouldn’t these possibilities be recognised too? The answer to this is that the law is qualified only to investigate what you have done and not what you might do; it is the purpose of the law to state that you deliberately murdered someone or that you caused an accident. The law cannot say that you might go on to commit murder or cause an accident in the future. There will be extra-legal standards that might determine if a convicted murderer is still a threat to the public. A prospective employer might, for example, require a psychological test or some sort of guarantee from a sponsor or insurer before they hire the convicted individual. However, based upon the approach of our contemporary legal systems and the likely requirements of those seeking justice, there is an arguable case that a libertarian legal system would still categorise the past acts of aggressors into crimes and torts, with the individuals classified as criminals and tortfeasors respectively, if anything because this is what people, the “consumers” of justice, are used to. We must, however, remind ourselves that these are only suggestions as to how a libertarian legal system might operate. Everything we are stating here is only a speculation or projection of how jurisdictions might respond to the considerations they face in a libertarian way. There is absolutely no reason to suggest that some other way would not be more appropriate or would not be more likely to emerge in a libertarian society. Anyhow, the upshot of all of this is that there is likely to be something more, some second aspect in addition to the simple results of the act of the defendant in order to determine the standard of that defendant’s liability.

This second element appears to be the mindset of the individual defendant – what was in his mind at the time that the act of aggression occurred. Did he intend to cause the act of aggression? Did he intend the act of aggression and ended up committing a larger act of aggression (murder in the course of a felony; or simply causing more damage than intended such as death during an assault); or was it simply an accident caused by negligence or absent-mindedness? The broad classification of wrongs by our contemporary legal systems into criminal liability (crimes) and civil liability (torts) more or less reflects this. Crimes normally require a standard of criminal intent (“mens rea”), a higher standard of proof (beyond a reasonable doubt) and what is viewed as a harsher remedy – usually imprisonment, but also, in some jurisdictions, capital or corporal punishment for those at the more serious end of the scale, and fines for those at the less serious. Civil wrongs, or torts, require no such intent, have a lower standard of proof (balance of probabilities) and the remedy is normally restricted to payment of compensation. By the far the most dominant area of civil liability in English law today is the tort of negligence, negligence being a mindset far below deliberate intent to cause aggression.

While this goes some way to resolving our problem the risk now incurred is that of deferring too much to the conduct of the defendant and not to the actual harm that was caused to the victim – that legal systems will only consider how the defendant behaved and hold him responsible accordingly. Certain, limited circumstances such as duress or automation (to the extent that the defendant could not choose his action) may serve to partially or completely absolve the defendant from any liability. That aside, however, while the specific content of the freely chosen behaviour of soundly sane adults should certainly determine the extent of liability, it should not absolve such a person from any liability whatsoever. While it might seem “unfair” to hold someone liable for an unintended, remote or unlikely consequence of his action, it is equally “unfair” to leave the victim, who had no involvement at all – either intentional or accidental – in bringing about the state of affairs, to bear his injury or loss uncompensated.

All of this we will now explore in more detail by proposing a likely approach of a libertarian legal system to the question of liability, an approach that we suggest will consist of three stages:

  • Can liability be established? In other words, did the defendant initiate an action that was the cause of the physical invasion of the person or property of another?
  • If so, what is the extent of the liability? In other words, what was the result of the invasion to the victim?
  • What is the nature of liability? I.e., did the defendant actively intend the aggressive behaviour or was it a mere accident?

Establishing Liability

It is submitted that the establishment of liability in a libertarian legal system is likely to rest squarely on the simple occurrence of aggression – whether the person or property of one individual initiated an action that caused the physical interference with the person or property of another individual. Once the fact of aggression is established the question of law of whether the defendant is liable will always be in the affirmative. In other words, liability is strict and is restricted solely to the question of whose actions initiated an invasion, physically, of the person or property of another.

The courts will have to determine precisely which actions are and are not aggressive. As we mentioned in part one there are plenty of innocuous physical actions – light beams, radio waves, sound waves, even fumes and odours – which, under a certain level of intensity would not ordinarily be categorised as invasive or aggressive. It must be remembered that physical invasions only give rise to social rules so long as they create a conflict and conflicts exist only in the minds of the participating individuals. They are not determined by a scientific analysis of colliding matter3. People could invade and physically interfere with each other as much as they liked if they had no problem with it. It is only because such an interference prevents one of the parties from pursuing the fulfilment of his ends that rights exist come into being and their enforcement is sought. The test in more difficult or threshold cases, therefore, is likely to be whether the invasive action prevented the plaintiff from pursuing his ends with the property that was subject to the invasion. The court may need to interpret the actions of the victim in regard to the invasion to determine this. Did he, for example, have to interrupt his operations? Did he appeal to the defendant for a cessation of the aggressive act? The courts are likely develop rules in order to accomplish this. They may, say, for example, that after a certain period of time a person carrying out a physically invasive act without any complaint gains an easement title and is permitted to continue the act. Nevertheless the courts would have to look at all the facts in each case in order to determine whether the plaintiff’s action is genuine and it is not likely that any one particular factor will override all others in every single case.

Assuming that there is an actionable physical act of invasion the initiation of the act must be implemented by an intervening act of will of another legal person. Acts initiated solely by the laws of physics are not aggressive actions but merely the acts of nature. While in most cases the intervention of will is likely to be contemporaneous with the act of aggression – A punches B; C stabs D, and so on – there is no requirement for it to be so. I may accidentally leave the hand brake off on my car and half an hour later the car rolls into someone; I may build a house that many years later collapses and falls onto another person. All ownership derives from acts of deliberate, physical acts of homesteading which transform an object from one good into another – in other words, the condition of owned goods is always the result of the intervention of will. Prima facie, therefore, the owner of a good is liable for its physical invasion of another person or the latter’s property. However, where there is a further intervention of will by another individual then it is this latter individual who becomes liable. For example, A uses B’s knife to stab C. Neither A nor anything that belongs to him may ever actually touch C but it was the intervention of his will, beginning with his own body, that initiated the act of aggression, not that of B. B’s knife was merely the intermediate tool that was used to fulfil the act and simply because B owned the knife does not mean that he should be liable for the stabbing, barring some special circumstance4. In cases where someone stabs you with your own knife then the aggression has already began when the person assumes physical control of your knife.

This brings us to the matter of causation and the question of whether or not the willful initiation of an act by the defendant caused a physical invasion of the person or property of another. The concept of causation in the law is a thoroughly confused and problematic area in contemporary legal systems. Courts leap into examining causation from the point of view of the harm that resulted to the victim and whether some act, omission, or whatever of the defendant was the cause of the actual harm that resulted; the question of what it is about the defendant and what he actually did is ignored. Possessing no rationale as to what should generate legal liability, their factual analyses of cause in the first instance holds everything to be an operative cause of what followed. If we are talking about injuries from a car accident, then there are a variety of causes – the fact that the victim was driving on the road at the time; the building of the road in the first place; the weather; the light at the time of day. Factually speaking the creation of the Earth is a cause of all accidents. They therefore have to apply various other mechanisms, such as “proximate cause” or “remoteness of damage” in order to narrow to the “relevant” cause and the extent of the damage for which the defendant will be liable. Needless to say vague and malleable concepts such as what is “reasonable” to hold the defendant liable for wade into the fray, particularly when we consider situations where the loss or injury caused to the victim is grossly disproportionate to the initiating action. In other words, like a butterfly flapping its wings and causing a hurricane, the damage resulting is more widespread or remote than would normally be the case, sometimes by setting off a chain of events – poking someone and inducing a fatal heart attack; causing a spark that initiates a widespread fire; knocking over an object that falls into a wall, that collapses onto a crowd; and so on. Is it not unfair to hold someone liable for the full extent of the damage when that damage has been completely out of proportion to anything imaginable when you consider the original act? Legal concepts such as “remoteness of damage” serve, in some cases, to limit your liability for remote but quite serious damage that initiates with your action so that the victim is left uncompensated. This approach of contemporary legal systems towards causation, through a mixture of factual and policy applications, therefore results in everything and then, suddenly, nothing being blamed for the damage to the victim.

Our suggestion here is that the correct approach to the question of a causal connection between the wilful act of defendant and the physical invasion of the victim should be considered first, leaving the question of the effects of the physical invasion (the resulting harm) to be considered in the second stage. Overall, this makes it much clearer to connect the will of the defendant to the resulting harm.

Strictly speaking, when considering causation, we must recognise that there is no such thing as a watertight “factual” analysis of what caused what. Factual determinations of causation result only from controlled experiments where we have the ability to repeat the situation and hold all variables that are not under consideration constant. Hence, by altering the input of the variable being tested, we can reasonably conclude that any change in output is caused by the alteration of that input. Such a method is not possible when examining the facts of legal cases. The aggressive act has happened and the victim is left with the harm. We do not have the luxury of undoing it, recreating the situation and seeing what results if we vary a single factor of input. All enquiries of causation, therefore, require hypothetical projections of what would have resulted had the circumstances varied. We have already seen, however, that courts have to make objective legal determinations from untestable evidence when determining the intentions of the parties and whether behaviour was aggressive. Just as intention is a fundamental category of human action to which we can all relate, so too is the notion of cause, for all actions are made with the knowledge or belief that an action will cause a particular effect. Courts will have to use this understanding to make objective determinations as to which actions result in which events to the satisfaction of the required standard of proof.

The likely libertarian approach will make this relatively straightforward. What we are interested in is the wilful intervention of the defendant. As all such interventions result in concrete, physical action emanating from the defendant’s body, the question is merely one of tracing the physical outcome from the defendant’s body to the person or property of the victim. All cases can be classified into broadly three categories:

  • The body of A physically invades the person or property of B – e.g. A hits B;
  • The body of A physically moves an object that invades the person or property of B – e.g. A shoots a gun at B; A uses a knife to stab B;
  • The body of A places an object in a position which later invades the person or property of B – e.g. A leaves the hand brake off on his car; the car rolls into the person or property of B5.

By starting from the position of the act of the defendant – the only act in which we are interested in in order to generate liability – and seeing if it arrives at the result of physical invasion of the victim then the enquiry of causation is greatly simplified. In categories one and two this will be straightforward as the motion of the defendant’s body directly and contemporaneously results in physical invasion of the victim. The third category, however, is more problematic as it may require the further intervention of acts of nature in order to complete the physical invasion. Gravity may largely determine where my car goes if I leave its hand brake off; the flow of the river will carry my boat downstream if its moorings snap; a chemical reaction may cause an object created by me to explode under the right circumstances. At the very least the courts are unlikely to hold that such interventions of the laws of physics have any bearing upon the defendant’s liability where they are part of the natural and expected course of events. A car left with the hand brake off can be expected to roll down hill; a boat with a snapped mooring can be expected to be carried downstream. Where the intervention of nature is extreme or unexpected – e.g., a lightning strike blows up of part of my house and the debris strikes a passer by – the courts may or may not hold the owner of the house liable. If they do, however, there is always the likelihood that the defendant’s insurer will cover the cost of compensation to the victim, something we shall explore in more detail later. Completely new acts of intervention by a third party may result in either the defendant being absolved from liability completely – i.e. his act did not result in the physical invasion of the victim – or he may have to share liability with the third party, depending upon the circumstances. For example, a third party picking up my knife and using it to stab someone would not cause me to incur liability; however, if my boat snapped from its moorings and then a third party pushed it into the path of another boat the courts may find both parties liable for the aggressive act to the owner of the latter boat.

As we indicated, once the fact of aggression is established then liability is applied strictly. The effect of this approach is to hold an individual person wholly responsible for the voluntary actions of his body and those of his property. In other words, in each and every person’s action the risk that the said action may result in the invasion or aggression of another is borne by the initiator of the action. It is therefore the responsibility for each and every individual to ensure that his actions do not result in physical invasion. In most this cases this will be straightforward to accomplish. We generally have a high degree of control over whether our actions will in fact invade another individual. If I walk down the street it is not difficult to avoid bumping into other people; if I drive my car I don’t have to break into a sweat to avoid ramming it into other cars. We can usually go about our daily lives without even having to consciously avoid physical invasion of other people. As each person possesses this degree of control we know from economics that placing the responsibility of aggression on its initiator will result in lower acts of aggression as people seek to avoid its cost. There will simply be fewer acts of aggression with which the courts have to deal. The difficult question, however, arises from situations where aggression results from actions which are innocuous, accidental, arise from innocent and typical moments of absent-mindedness, or simply, from the point of view of the initiator, amount to little more than going about his daily life; for example, knocking over your cup of coffee and scalding someone; or a moment of distraction that causes you to run over a pedestrian; kicking a football that accidentally goes astray. The precise context of such occurrences may also matter. In emergencies we are much more likely to rush and to avoid taking care of our actions because there is a pressing need at stake. In all of these cases does it not seem unfair to hold the defendant liable for something that was initiated out of a moment of human weakness, common to us all, and/or out of simple common behaviour which, but for the invasion of the victim’s property, would have been allowable? And is it not unfair to hold someone liable for his actions when he is, with all good intention, responding to a pressing need such as in an emergency?

Contemporary legal systems have developed mechanisms and doctrines to attempt to tackle this problem. In the English tort of negligence, for example, one of these is the so-called “duty of care” which attempts to narrow the field of actions where negligence gives rise to liability. In other words, there will be some situations in which you can be as negligent as you want yet you will not be held liable as you are said to owe no “duty of care”. Indeed even negligence itself is a vague and arbitrary concept, permitting the courts to consider practically every aspect of the situation while possessing no rationale as to which should be given weight in order to determine whether the defendant was, in fact, negligent. The problem with all of this is that however innocent or well-intentioned your actions, the victim – the one person who definitely did not have any input at all into the action – is still left standing with the loss. With the acquittal of the defendant forgotten is the man with the broken leg, the widow with a dead husband, or the child that is paralysed. To absolve the defendant does not make these losses disappear; rather it simply shifts them from the defendant to the plaintiff. In spite (or perhaps because) of some of the complex formulae and procedures that have developed in some of the case law, legal mechanisms such as the duty of care appear to be based little more on questions of whether the defendant behaved “reasonably” in his conduct or whether it is “reasonable” for him to be held liable for the full extent of the damage caused by his initial act. They therefore amount to little more than political vehicles as to who should bear the risk of loss from invasive actions that you initiate. The more restricted the liability upon you, the aggressor, the more the burden of risk shifts to the victim (or potential victims). Rather than watching whether our own actions will initiate aggression we will forever be on the lookout to protect ourselves from everyone else’s.

While it might seem unfair to hold a defendant liable for his “reasonable” behaviour, the fact of the matter is that we all bear the risk of initiating aggression through our innocuous actions or “reasonable” actions. Life is inherently risky and the risk of invading the person and property of others is a risk inherent in the existence of society, just as we bear the risk of falling ill or having our house burned down by fire. The libertarian does not expect legal methods – violence and force – to solve problems such as hunger, illness etc. and nor should it be used to mitigate risk. Rather we believe in the free market to do these things. Where it is no longer possible to reduce your personal involvement in order to mitigate risk the insurance industry steps in to pool risk across many individuals. Thus, in the unlikely and unfortunate event that you cause an aggressive action, you may be protected from having to compensate the victim by your insurance provider. But a libertarian legal system will not absolve you from the fact of liability simply based upon the reasonableness or normalcy of your conduct. This is highlighted more starkly in the situation where a person is put in the position of having to damage at least some property. For example, let’s say a car is hurtling towards you and you have to deflect it into either property A or property B. Property A costs £500 to repair, property B £300. If you own both properties then your “reasonable” behaviour would be to deflect the car into the property which was cheapest for you to repair – property B. You would then have to fork out for the repairs. If, however, property B was owned by someone else then your choice is now between damaging your own property A at a cost of £500 or damaging property B and having to provide compensation to the owner at the cost of £300. Again, your “reasonable” behaviour would be to save property A and damage property B. In both situations your behaviour is reasonable but it would be absurd to suggest that in the second scenario you should not have to pay simply because the damaged property is owned by someone else.

Finally, it should be clear that where the physical invasion is by ownerless property or caused solely by the laws of physics then the invasion should be regarded as an act of nature and the victim will have to bear the full cost, or otherwise make insurance provisions in order to do so.

The Extent of Liability

Once the fact of physical aggression or invasion is established, the second question concerns the extent of the liability incurred. In other words, what harm or loss to the victim did the act of aggression cause? The defendant is to be held fully liable for the loss that his aggression caused. Once more the effect of this is to hold an individual person wholly responsible for not only the voluntary actions of his body and those of his property but also for their effects. In other words, just as you bear the risk of invading others through your actions, so too do you bear the risk of what results from that invasion. Again, just as the fact of aggression itself is, for the most, part, easily controllable, so too will any harm that is caused likely to be in proportion to the extent of the action. If I bump into someone accidentally he may come away with a slight bruise or nothing at all; if, on the other hand, I punch him in the face he is likely to end up with a broken jaw; and if I stab him twelve times he is likely to die. Normally, therefore, each individual can control not only his actions in order to prevent aggression in the first place but also the precise level of harm that his actions will cause. As we mentioned earlier, problems arise when your actions – invasive as they may be – produce outcomes that appear disproportionately severe compared to the action itself. This includes situations where the victim has an unusual or peculiar sensitivity to invasive actions – such as a weak heart that could be arrested by the most innocuous of aggressive acts. Is it not unfair to hold the defendant liable for such wild and unforeseeable harm that result from his act?

Yet precisely the same arguments that apply to question of liability in the first place apply also to its extent. However remote, unlikely or unforeseeable the results of your actions simply dismissing them does not make the losses disappear but merely shifts their burden to the victim, the one person who had no involvement. While it is within the economic interests of potential victims to protect themselves from the effects of aggression – particularly if they possess an unusual sensitivity – there can be no legal compulsion for them to do so and defendants should take their victims as they find them, warts and all6. Once again, therefore, every single person bears the risk of causing widespread damage even though his actions may demonstrate no or a miniscule degree of fault in relation to that damage. Where it is no longer possible for the defendant to mitigate the risk of causing widespread damage through controlling his personal conduct then he can contract with an insurance provider to spread this risk across many potential tortfeasors – just as he can so contract to spread the risk of aggressive behaviour in the first place.

Once again the question of causation arises and it is here that we consider the second part of this area. Having established that the act of the defendant caused a physical invasion to the victim’s person or property we then have to establish whether the invasive act caused the loss or damage to the victim. In most cases this will be extremely clear as the invasive act will be intimately and undeniably bound with the loss or damage in the same physical space. A shoots B and B bleeds to death; A’s car rams into B’s house and the house collapses, etc. In certain questionable cases it may be necessary for the courts to develop standards – for example, expert medical testimony from three independent sources – that will be sufficient in order to determine cause. The difficult area is likely to be in situations where there are multiple, independent causes sufficient to result in the damage and it is otherwise impossible to tell precisely which was the actual cause. For example, two shooters independently fire their guns at an individual and two bullet’s lodge in the victim’s body and he dies. Either bullet was sufficient to cause the death of the victim but it is not know which one. In the Fairchild case7 five employers of the victim exposed him to asbestos at various stages of his career; only one asbestos fibre was required to cause the illness that subsequently resulted in the victim’s death but it was impossible to determine precisely which fibre he inhaled was the cause. What should the courts do in these cases? It is likely that the courts will hold all of the sufficient causes proportionately liable, the exact proportions to be determined by the individual cases (such was the outcome in Fairchild). All tortfeasors will therefore share the burden of compensation at the remedy stage. Where one of the sufficient causes was an act of nature then the total compensation recoverable by the victim will be reduced accordingly. One limitation for the victim, however, is that liability between the defendants should be several and not joint unless the independent causes were actively co-operating. In the Fairchild cases, therefore, if one of the defendants was no longer alive or recovery was otherwise unavailable then the plaintiff could not recover that defendant’s portion from the other defendants. Victims always bear the risk that their tortfeasor may no longer be able to furnish a remedy for the harm done; this applies in cases of multiple independent as well as single tortfeasors. The contrary would hold that, if four of the Fairchild defendants were no longer alive yet one was then the victim would be able to burden that defendant with the entirety of the loss in spite of the fact that causation of the harm by that single defendant has not been established to the relevant standard of proof. This was the outcome of Barker v Corus8, which was, unfortunately, reversed by legislation, at least to the extent that it applies to asbestos. What we have suggested here is an equitable compromise between three factors:

  • Physical aggression being sufficient to generate liability;
  • The harm done to the plaintiff through no fault of his own;
  • The lack of a strict, causal relationship to the satisfaction of the required standard of proof between those two factors.

If, however, two tortfeasors are actively co-operating then it is likely that the courts will find their liability to be joint and each is liable for the whole. The contrary would permit the deliberate scattering of liability. For example, one could hire tens of shooters to kill a person at the same time (increasing the likelihood of death) yet burdening the plaintiff with the cost of apprehending and trying all of them in order to gain his full remedy.

Nature of Liablity

Having established the fact of liability and its extent, the third consideration for the court will be to determine the nature of the liability. This centres entirely on the intention of the defendant to commit the act of aggression and the classification of that act into a crime or a tort. It is likely that this categorisation will be extremely broad will not have to enter detailed examinations of various modes of mind. Rather the sole enquiry is whether the act of aggression was deliberate and intended or was accidental. If it was deliberate than the act was criminal; if it was accidental then the act is tortious or the equivalent of “civil” liability in our contemporary legal systems.

Intention does not necessarily require the motive of causing the specific act of aggression. One might wish to blow up a plane in order to fake an insurance claim. The fact that killing everyone on board was not the purpose of your act would not absolve you from liability for murder as those deaths were the natural consequence of causing the explosion. At the opposite end of the scale some extreme degrees of recklessness may be sufficient to establish criminal intent even though the aggressive act was not sought deliberately by the defendant.

A further likely consideration is whether the actual resulting harm (in addition to the aggression in the first place) was also intended by the defendant. A shoots B and B dies; C pokes D and D dies. Both A and C intended an act of aggression and are both criminally liable but it would be extreme to suggest that C – who probably intended no or little harm at all – should be classified as a murderer just like A. It is likely, therefore, that the court will recognise gradations of liability according to intention of outcome, such as degrees of murder.

The upshot of all of this is that, at the remedial stage, a tortfeasor is likely to have to furnish compensation only and can then go about his life unmolested. A criminal, however, having been identified as a deliberate threat to the person or property of others, is likely to face further sanction, punishment, or rehabilitation before his reintegration into the community. Such considerations are beyond the scope of what we can examine here.

By retaining this classification we do not, in any way, mean to state that “crimes” are offences against the public or against the state, and at no point does the state replace the victim in the prosecutorial process. We are merely suggesting that those who seek justice are likely to demand this distinction between wilful criminal conduct on the one hand and accidental behaviour on the other.

Self-Defence

Under libertarian theory, self-defence is the physical response to an invasive act in order to render that invasive act inert; the physical nature of the response – i.e. violence – is therefore legitimised. How are libertarian legal systems likely to handle this concept?

Let us say that A is the individual invoking self-defence and B is the person alleged to be carrying out an act of aggression against A. In order for self-defence to be validated, there must be an actual, objectively identified initiation of an act of aggression perpetrated by B. The mere possibility or even probability of an act of aggression does not suffice. A’s misinterpretation of B’s behaviour also would not suffice. If B raises his arm to brush his hair and A, expecting an imminent strike, shoots B then however reasonable or in good faith A’s misinterpretation of B’s behaviour he would not be allowed to invoke self-defence and A would be held fully liable as an aggressor. If this should be doubted, then consider the position of B; if he is raising his hand to comb his hair and A shoots him would he (B) be entitled to defend himself from this act and shoot A back? If the answer is yes then A is the aggressor and not the defender. If, on the other hand, B pulled back his fist at A in order to punch him and A shoots him to stop him then B would be the aggressor and A the defender.

The act of aggression must have been initiated – in other words, it must be in the process of occurring. While the physical intervention does not yet have to have occurred, its occurrence must be the imminent result of that which has already occurred. I raise my gun at you ready to shoot would warrant an intervention of self-defence, even though I have not yet shot. Fully anticipatory acts of “defence” – i.e. shooting someone before he has a chance to initiate an act of aggression against you – are not warranted. While someone may be very concerned at the presence of a peculiar or sinister individual the lawful response to this is to prepare oneself for an act of defence in the event that an act of aggression is, in fact, initiated. This could include installing extra security devices on one’s property or carrying a personal firearm.

What is the permissible extent of the defensive act? Once again, in our contemporary legal systems, “reasonableness” rules the roost with “reasonable force” being the seemingly operative phrase. However, at least in situations where the aggression is sudden and surprising victims do not have the time to judge the extent of the aggressive act and precisely which response is proportionate. Indeed, any such act – a robbery, a car hurtling towards you, a raised fist – whether deliberate or accidental may either result in the death of the victim or escalate to do so. It is submitted, therefore, that the correct approach is likely to be that any act that the victim deems necessary to bring the invasive act to a close will be a permissible act of self-defence. This may involve killing the invading person or destroying the invading object. What is not permitted is for the act of defence to harm innocent bystanders or for it to continue once the aggressive act has been rendered inert. So someone could not, for example, fire indiscriminately into a crowd in order to stop a robber from running away, nor could one, having shot an intruder, proceed to take an axe and hack him to pieces. These would all be fresh acts of aggression and would themselves be liable to legal sanction.

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1This does not mean to say, of course, that extra­-legal methods cannot be used to discourage “harmful” actions that fall short of a physical invasion.

2This appears to be Rothbard’s approach – see Murray N Rothbard, Law, Property Rights, and Air Pollution, Cato Journal 2, no. 1 (Spring 1982): 55-99, reprinted in Economic Controversies, pp. 367-418, at pp. 409-12; also, The Ethics of Liberty, p. 144.

3Indeed, one of the criticisms of the non-aggression principle – that it would outlaw practically all behaviour that results in innocuous invasions – is based upon this misunderstanding.

4Even if this wasn’t the case though, and if we could, theoretically, hold B liable so that C should sue B and B should sue A we must bear in mind that not only is the purpose of the justice system to enforce rights and obligations with clarity but that also the “production” of justice is itself a costly affair that consumes resources. It is likely therefore that a libertarian system will always take the shortest route and permit C to sue A directly, with B dropping out of the picture (unless B wishes to sue A for the theft of the knife). The same considerations would occur with accidents that involve a chain of property ownership – A bumps into B which causes B to bump into C which causes C to bump into D. D is likely to be able to sue A directly.

5cf. Richard A Epstein, A Theory of Strict Liability, Journal of Legal Studies 2 (January 1973)151-204.

6Some cases have been decided by whether the cost of preventing the invasion is higher for the defendant or for the victim, with the person bearing the lowest expense liable. For example, does a person have an obligation to “fence-in” his cattle to prevent it from wandering onto the property of another or does the latter have the obligation to fence them out? Where the pasturing of livestock was carried out intensively it was cheaper for the owner to fence in than it was for the third party to fence out and the owner was held to be liable. However, where it was extensive then it was less expensive for the third party to fence the animals out and he was held liable for the resulting loss caused by the invasion of the animals. Apart from requiring invalid interpersonal utility comparisons, this approach overlooks the fact that parties arrange their affairs with regards to all of the economic circumstances that they face, including the possibility of having to compensate a victim or litigate a case. For example, a farmer will fence in his cattle if the cost of doing so is less than that of providing compensation to a violated third party; a third party will fence out if the cost of doing so is less than that of litigating a case of invasion. Factored into this will be the likelihood of invasion in the first place and the non-monetary costs – time, for example – that would be involved. It is not the business of libertarian courts to either assess or correct the economic choices of the parties before them – rather they should apply the law according to libertarian principles so that these choices can be made with certainty in the first place.

7Fairchild v Glenhaven Funeral Services Ltd. [2002] UKHL 22

8[2006] UKHL 20

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