Democracy, Liberty, and the Modern Species of Man

Final exams looming near in law school land - nay, they are already here! - invariably leads me to wax contemplative upon the themes of man, justice, and the πόλις. And since the examination most lately dispatched was one for a class on the history of American jurisprudence, there’s actually some pragmatic value for me in these musings. Of course, the speculative side of my nature will, through force of habit, charge off in a direction that totally negates whatever slivers of practicality might have existed at the start. Nevertheless, I persist - it entertains me to do so. And it gives me things to write about, so everybody wins.

Something that bothered me back in my first year of law school was tort law. In spite of the best efforts of my professor and the textbook to establish some boundaries and reasonability to the matter, it seems to me that the evolution of tort law has been a process of gradually inverting the common-sense notions of personal responsibility.

First let me explain what is getting inverted. Say that I own a parcel of land, upon which I build an expensive house. Say further that I fill this house with expensive and luxurious amenities. Would I not be justified in wanting to protect this mass of material wealth? So say I build a fence, hidden amongst hedges so that it isn’t aesthetically unpleasant; and say that I post regularly and often on the perimeter of my property that trespassing is not allowed, and that I keep guard dogs to discourage such trespass. Dogs? Oh, yeah, I forgot to mention the half-dozen large Dobermans that roam the grounds.

Okay, so my stuff is now secure, right?

Well, as it turns out, some moron decides to ignore the signs, jump the fence, and try to make it to my house. Predictably, my canine security force corrals him - albeit roughly - and the police take him away to be charged with attempted robbery. Just another dumb criminal who underestimated the seriousness of my security precautions, right?

Oh, yeah, and he’s suing me.

What, you ask? He broke onto my property…what on earth is he entitled to sue about? The fact of the matter is that I’m not actually allowed to use deadly or potentially deadly force to protect my personal assets by default. Realistically, I’m not allowed to use deadly force unless I or another person are at risk.

Why is this, exactly? Because living in a society requires as a matter of course a certain amount of limitations on free will. I may want to eviscerate anyone who tries to break into my home, but society prevents me from doing this because uncontrolled killing is not perceived to be a general good. I can hardly fault the judgment, either.

But there are other sacrifices that autonomy must make in order for the individual to participate in society - and these are regulated far more subtly. Specifically, you as an autonomous individual must respect me as an autonomous individual when I make choices that you disagree with. There are limits to this rule created by overarching moral considerations, but for the general, day-to-day decisions of one’s life, it holds. For example, if you are friends with someone whom I find grating and unequivocally unpleasant, then you may be friends with him and I will choose not to be. You have absolutely no right to try to force me to be friends with him. You might tell me that you think I’m unreasonable, you might tell your friend you think I’m unreasonable, but that’s it. You can’t try to undermine me. It just won’t work - and even if it did, by placing your will over mine you are committing a moral infraction.

Like I said before, this rule has its limits. But that would require a whole new post…and it will come eventually.