Nathan Oman, ‘A Theory of Civil Liability’

… The law does not suppress private aggression. Rather, law limits and channels it. Why would this be so? This Article argues civil liability responds to problems created by the very success of the modern state in suppressing private aggression. In particular, that success creates two problems. First, people who are invulnerable to retaliation face fewer costs to misbehavior. It is easier for them to renege on their agreements and engage in misbehavior toward others without fear of retaliation. Admittedly, one might solve such problems by further expanding the punishments meted out by the government. Civil liability, however, represents another solution, namely the careful relaxing of the protection provided by the modern state. We allow plaintiffs to act against defendants in tightly controlled circumstances and within tightly circumscribed limits. In so doing, we render agents vulnerable to one another and thus encourage peaceful cooperation. The second problem is that the very success of the modern state in suppressing wrong-doing tends to render victims, especially law-abiding victims, passive in the face of wrongs. There is value, however, in letting victims be active in the face of those that harm them. By allowing them to be actors in their own stories—rather than passive spectators — we let them hold those that have harmed them responsible …

Nathan B Oman, A THEORY OF CIVIL LIABILITY. George Mason Law Review. Vol. 21:2, 381 (Winter 2014).

First posted 2014-01-08 21:03:54

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