capitalism

292 Liability
as unjust and slander, and in A Manifestation (1649), they
explicitly stated their opposition to “Levelling, for which
we suppose is commonly meant an equalling of mens
estates, and taking away the proper right and Title that
every man has to what is his own.” Rather than forerunners
of socialism, the Levellers had a profound influence on
Whig ideology, especially as it took shape in the second
half of the 17th century, and particularly in the works of
John Locke.
See also Contractarianism/Social Contract; English Civil Wars;
Equality; Republicanism, Classical; Whiggism
Further Readings
PKK
Aylmer, Gerald E., ed. The Levellers in the English Revolution.
Ithaca, NY: Cornell University Press, 1975.
Dow, F. D. Radicalism in the English Revolution, 1640–1660.
Oxford: Basil Blackwell, 1985.
Haller, William, ed. Tracts on Liberty in the Puritan Revolution,
1638–1647: Vols. I–III. New York: Columbia University Press,
1934.
Haller, William, and Godfrey Davies, eds. The Leveller Tracts,
1647–1653. New York: Columbia University Press, 1944.
Hampsher-Monk, Iain. “The Political Theory of the Levellers:
Putney, Property and Professor Macpherson.” Political Studies
24 no. 4 (December 1976): 397–422.
Kurrild-Klitgaard, Peter. “Self-ownership and Consent: The
Contractarian Liberalism of Richard Overton.” Journal of
Libertarian Studies 15 no. 1 (Fall 2000): 43–96.
Macpherson, C. B. The Political Theory of Possessive
Individualism: Hobbes to Locke. Oxford: Oxford University
Press, 1962.
Sharp, Andrew, ed. The English Levellers. Cambridge: Cambridge
University Press, 1998.
Watner, Carl. “The Proprietary Theory of Justice in the Libertarian
Tradition.” Journal of Libertarian Studies 6 nos. 3–4
(Summer–Fall 1982): 289–316.
Wolfe, Don M., ed. Leveller Manifestoes of the Puritan Revolution.
New York: Thomas Nelson and Sons, 1944.
LIABILITY
The topic of liability is vast; it includes damages to person,
property, and reputation. The range of issues that arise in a
given case include, at the least, the identification of some
culpable conduct by the defendant, some causal connection
between that conduct and the harm to the injured person,
and some account of whether, and if so how, the
injured party contributed to his own loss or assumed the
risk of that injury.
Structuring a sound set of liability rules is of profound
importance for anyone who believes in both the importance
of individual liberty and the need to provide redress for, or
a deterrence of, force and fraud practiced by other individuals.
Several traditional distinctions, imperfectly realized at
common law, are critical for the implementation of this
scheme. The first of these distinctions is the line between
harms that occur between strangers and those harms that
occur among individuals who stand in some special
relationship with each other (e.g., physician–patient,
host–guest, employer–employee). The key point here is
that, in the former cases, the libertarian desire to protect
both person and property tends to lead toward the adoption
of strict rules of liability that afford the defendant little
breathing room when his actions injure other parties. In its
classical formulation, the principle of strict liability says
that, once the defendant strikes the plaintiff or creates a trap
that causes him injury, he can be held liable even if the
defendant had no intention to cause harm and had exercised
all due care in order to avoid the harm in question. This rule
still allows for defenses vital to a libertarian framework. It
permits the owner of land to escape liability for harm to
trespassing plaintiffs, except, sensibly, if his conduct is
willful and wanton. It also allows for defenses based on the
plaintiff’s misconduct to either eliminate liability (which
was the earlier preference) or to divide it in accordance
with fault, which is the dominant view today.
Many jurisdictions do not afford this high level of
protection, particularly in cases of personal injury, holding
actors responsible for accidental harms only if they have
failed to exercise reasonable care. The differences between
the strict liability and liability based on negligence are not
that critical to the libertarian program because even if they
have profound consequences in a few cases, the vast majority
of actions between strangers entail some negligence in
leading up to the accident, so that the level of legal protection
turns out to be quite high in both systems. In highway
accidents, for example, a party is virtually always negligent
whenever he or she violates the rule of the road, except perhaps
in cases of sudden heart attacks or epileptic fits—
hardly major sources of concern.
The key libertarian concern stems from the reluctance to
impose any duty of rescue for strangers whom a person has
not injured. Although there are strong moral reasons to
assist those in need, the libertarian view, which retains
much vitality in modern case law, is that the concern with
individual autonomy precludes any legal obligation to
behave as a Good Samaritan. The fears here are multiple;
they include the risk that one person will simply be able to
commandeer the ability or resources of another, that omissions
will be found everywhere, and that, for example, a
crowd of people on the beach could all be held liable if no
one of them rescues.
Liability is much more complicated in those cases
where the parties have entered into some kind of consensual
arrangement. In those cases where the agreement is