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Ethical analysis of law. Legal liability for risk and harm generating activities

6 important questions on Ethical analysis of law. Legal liability for risk and harm generating activities

Laws as solutions to PD situations

•A law can be a solution to a PD situation (as defined above) if that law is accepted by all who are subjected to the law, for the reason that all consider themselves better off with that law than without it.•That law might include sanctions for violations, as all might agree that these sanctions are necessary for the law’s enforcement.
•Such sanctions are then voluntary in the sense that, if someone violated that law, he/she would have given his/her prior consent to being met with the sanction.

Two types of failures

1.“Government failure”The negotiators (e.g. politicians) may be unable to agree on laws that would bring society from the South-East into the North-West box, not because some would be made worse off, but purely because of the problems inherent in negotiation.

2.“Unjust initial situation”Some of the negotiating parties may believe that the situation that they are in is an injustice, e.g. because their historical contribution to the pollution is much smaller than that of others. pan>

Which ethical (and legal) principles should hold between people prior to any contract between them?

The principles of restricted liberty and reciprocity are both necessary and sufficient conditions for peaceful coexistence.

There are only two ways in which it can be ascertained that other people are not harmed by an activity:

Either there are no (actual or possible) consequences for others.

Or there are such (actual or possible) consequences, but those who are subjected to those consequences have given their informed consent to the activity (and to the conditions under which it is performed).

So why should actors be liable for risk generating activities that have not been consented to by those who experience the (possible) consequences?

1.Because it is ethically fair (see the preceding argument).

2.Because it is required for responsible and effective risk assessment and risk management practices.

A possible future of legal liability

Return to historical (pre-industrial revolution) standards of legal liability: ØLess conditional liability. ØLess limited liability (including banning all corporations with limited liability). ØMore requirements regarding “evidence of financial responsibility” of actors.