A man need not, it is true, do this or that act, the term act
implies a choice,--but he must act somehow. Furthermore, the
public generally profits by individual activity. As action cannot
be avoided, and tends to the public good, there is obviously no
policy in throwing the hazard of what is at once desirable and
inevitable upon the actor. [96] The state might conceivably make
itself a mutual insurance company against accidents, and
distribute the burden of its citizens' mishaps among all its
members. There might be a pension for paralytics, and state aid
for those who suffered in person or estate from tempest or wild
beasts. As between individuals it might adopt the mutual
insurance principle pro tanto, and divide damages when both were
in fault, as in the rusticum judicium of the admiralty, or it
might throw all loss upon the actor irrespective of fault. The
state does none of these things, however, and the prevailing view
is that its cumbrous and expensive machinery ought not to be set
in motion unless some clear benefit is to be derived from
disturbing the status quo. State interference is an evil, where
it cannot be shown to be a good. Universal insurance, if desired,
can be better and more cheaply accomplished by private
enterprise. The undertaking to redistribute losses simply on the
ground that they resulted from the defendant's act would not only
be open to these objections, but, as it is hoped the preceding
discussion has shown, to the still graver one of offending the
sense of justice. Unless my act is of a nature to threaten
others, unless under the circumstances a prudent man would have
foreseen the possibility of harm, it is no more justifiable to
make me indemnify my neighbor against the consequences, than to
make me do the same thing if I had fallen upon him in a fit, or
to compel me to insure him against lightning.
I must now recur to the conclusions drawn from innocent
trespasses upon land, and conversions, and the supposed analogy
of those cases to trespasses against the person, lest the law
concerning the latter should be supposed to lie between two
antinomies, each necessitating with equal cogency an opposite
conclusion to the other.
Public-domain text, read in full here on John Shaqi.
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