All Commentary
Friday, November 1, 1985

Declarative Law

Joseph Fulda is Assistant Professor of Computer Science at Hofstra University.

The law is imperative, it commands. Criminal law is a series of “Thou shalt nots.” Regulatory law, a relatively new area of statutory endeavor though it has ancient roots, is a series of “Thou shalt nots” and “Thou shalts.” Regulatory law of this sort often infringes the natural rights of the parties, often presumes guilt in those regulated and requires them to prove themselves innocent, and often has perverse results, even results opposite from those intended. In short, and as people of all political persuasions are coming to realize, regulation is not the answer.

In this essay I wish to develop an alternative to the imperative law which proscribes and prescribes. The alternative would be declarative law, law which describes. Such a law would not conflict with libertarian values. It would not mandate prior restraint nor would it presume guilt. Most likely, the practical results would be better than those of imperative law.

Basic civil law, both the common law and the statutory law, has the primary function of describing the responsibilities that one man bears another. This function of the law comes from the basic Western tradition that the two senses of the word “responsible” are indissolubly linked; that is, if a man is responsible for an act in that he performed it, he is responsible for that act in that he is liable for its consequences. This relation between the two senses of the word “responsible” can also be seen in Western religion which maintains a clear connection between virtue and reward, vice and punishment. And it can be seen in the market system where success is related to consumer satisfaction and failure is related to consumer dissatisfaction.

The Issue of Negligence

One of the ways, perhaps the principal way, in which civil law describes our respective responsibilities to family members, friends, and business associates is through the law of negligence. Negligence is “the failure to exercise that degree of care which, under the circumstances, the law requires for the protection of those interests of other persons which may be injuriously affected by the want of such care” (American College Dictionary). In other words, negligence is the “failure to exercise the care that a prudent person usually exercises (Merriam- Webster).” Indeed in the law we are most often compelled to consider what “the ordinary, prudent man of average intelligence” would do and to use this fictional man as the basis for deciding whether particular persons party to a dispute have met their respective responsibilities.

New Jersey, which finds hosts who serve alcohol liable for the consequences of their guests’ driving while intoxicated, has, in essence, experimented with the idea of declarative law. Unfortunately, however, the two senses of “responsibility” are not linked, since it is not the driver who is held responsible for the actions for which he is certainly, in the other sense of the word, responsible.

I should like to give two examples where existing imperative law might well be replaced by declarative law. The first is the New York State law requiring seat-belt use for all front seat passengers under penalty of a fifty dollar fine. Instead of a directive ordering drivers to take this precaution, a simple statement that they are liable to a civil suit in negligence and criminal charges for manslaughter would suffice. In making such a declaration the legislature would be doing no more than defining “prudence” and “ordinary care” in the light of the many studies showing the life-saving benefits of seat-belt use. As knowledge advances, what is prudent, ordinary, and reasonable will change. It is within the scope of the legislative mandate to describe interpersonal responsibilities to redefine these terms as needed. Naturally, to a libertarian, there is no room for legislation—imperative or declarative—requiring seat-belt use for the driver himself. The law exists to protect man from the folly of his fellow man, not from his own folly.

The second example is the New York City ordinance requiring landlords to install smoke detectors in all apartments at a maximum charge to tenants of ten dollars. Instead of this directive, we would prefer a declaration that given this new, inexpensive technology, its absence in the case of fire is negligent and opens the landlord up not only to civil suit but again to charges of manslaughter. There may be some apartment buildings in the poorer sections of town where tenants must choose between food now or protection from fire in the future. In that case nothing prevents the tenants and landlord from negotiating a waiver of responsibility-much like the waivers that are often signed prior to a medical operation consenting to limit liability.

The advocate of regulation, hearing what we have proposed, will no doubt object that there is no prior restraint, that the remedies discussed, civil or criminal, exist only after the fact, when it is too late. Regulation, in contrast, is intended to be preventive. The answer, of course, to this objection is that while the state imposes no prior restraint, the market certainly does.

Importance of the Insurance Protection

In a society based on declarative law, the need for liability insurance would be high and the insurance industry would surely develop schemes to protect their interests. Inspections by private insurance companies with millions of dollars at stake and whose inspectors may well have their jobs on the line will surely be more thorough than those done by disinterested bureaucrats working for indifferent agencies. Likewise, the expensive and cumbersome legal process of proving negligence when an insured company causes injury through imprudence is now gladly undertaken by the insurance company. Furthermore, premiums for such insurance will be determined on the basis of both the company’s record and inspections. A company with substantially higher premiums than its competitors, and that includes companies insured on the basis of statistics without inspections, will soon find its prices noncompetitive and its customers switching loyalties. Likewise, a company without insurance at all is likely to be boycotted by most consumers: the existence of insured firms and consumers seeking security insures this. After all, companies who are insured have every incentive to advertise this fact.

It must be admitted, however, that on the free market consumers who wish to bear the risk of dealing with uninsured companies—and in New York City consumers do this every time they choose a “gypsy” cab over a regulated, heavily insured “yellow” cab—either to save money or for convenience are free to do so. The claim we make is that the market adequately prevents and retaliates for harm done us by others, not that it prevents us from harming ourselves.

The Imperative for Freedom

Besides liability insurance, insurance against extraordinary losses in business due to imprudence and any number of other insurance schemes might be contracted into. Neither I nor anyone can know just how the insurance market would deal with product safety, economic security, employee safety, and the like. But one can rest assured that under a regime of declarative law, the ex post penalties of the market and the law would be transmuted into preventive measures by all manner of individual and group schemes. If one could know just how, the imperative for freedom would be a merely moral concern. Since one cannot mimic the actions and decisions and interplay of millions of freely acting individuals, the imperative for freedom is a practical concern as well.