Suppose I hire someone to make a website for me. He says it will take two weeks. During those two weeks he says everything is fine. At the end he says sorry, he was very busy, and actually he has barely worked on it, and I'd better hire someone else.
He has materially harmed me. He wasted my time. Now my website launch is delayed. So I sue him for damages for the wasted time (never mind that he said he'd make me a website and didn't, so owes me a website, which is a separate issue). Our contract was short and did not mention this outcome or any circumstances under which he would owe me money. Should the law be on my side, or not?
One perspective is that contracts come first, and people are free to live their lives however they want as long as they don't violate a law or a contract. What he did sucks, but such things happen, and I should just find someone else and forget about him. He has a right to spend his time as he chooses unless there is a clear and incontestable reason to the contrary. What he did may have been a mistake, it may have been bad of him, but in America people have freedom; that means they can live badly and make mistakes as long as they don't violate our minimally-intrusive laws.
Another perspective is that people have reasonable expectations in life and it's wrong to violate them. Our society works a certain way, and if you want to change that or go against it then you are the one asking for special treatment and you are the one with the burden to make sure your change does not hurt anyone. In this way of thinking, the contractor has violated his duty to me, and violated my reasonable expectation that the project would be completed. Of course projects sometimes miss deadlines, but he didn't even come close to meeting the deadline. Freedom is good, but it doesn't include the freedom to not to make a good faith effort to meet one's obligations.
I believe that neither of these perspectives is clearly better than the other, as written. People who insist on one, and do not respect the other, are ideologues. Both perspectives make some apparently reasonable points.
I'd now like to offer a third perspective which I think is superior:
The law must be clear so that everyone knows what they must do to follow it. It would be unjust if a reasonable person, who made a good faith effort to follow the law, ended up a criminal. Mistakes happen, as does bad luck, so it may happen sometimes, but it should be a very rare event, and the legal system should have strong safeguards to avoid it. For this reason, we must allow that some bad things will happen with no punishment. The law needs to not only stay out of any grey areas but allow a significant margin for error and only convict people who go well beyond any grey areas into deep black. For this reason, it would be bad for a man to become a criminal by disappointing another man.
People are different and have diverse lifestyles. When the law favors some lifestyles that stifles diversity. Perhaps my conception of what is material harm is mistaken. Perhaps he made a good faith effort as best he knows how to, and he has a different way of making efforts to do things than I do. It would be bad if everyone was under pressure to have the same style of thinking, and same opinions about a wide variety of things, or else they risk becoming a criminal.
It's bad for the law to be intrusive into peoples' private laws, or for it to encourage people to invade each other's privacy. How do I know he did me wrong? Maybe he made a very strong effort to complete the project, but his mother ended up in hospital, then his computer was stolen, and then his car broke down. Or maybe something else happen, somewhat milder, but sufficient to keep him busy. Should I find out the details of his life for the last two weeks and judge his methods of prioritizing and time management? Should bad time management even be a crime?
Did he know the project was urgent? Did he have any reason to expect I would be harmed if it was late? Did I tell him? If so, how clearly? Doesn't everyone say they want their projects done fast? How would he know I wasn't exaggerating? Should he be a criminal depending on exactly how clearly I stated the urgency of the project? Should it be possible to become a criminal over miscommunication? How much of an effort should he have had to make to be certain he understood how urgent the project was or wasn't? It's just a two week project, couldn't he reasonably expect the project to be a little relaxed? Did he ever communicate to me his relaxed attitude in any way? If he did, would that make him not guilty? I don't think these questions should be answered. If the law cares for all these details then it's too hard to follow it, and it's too intrusive into the minute details of our behavior. The law should never tell people the details of how to live their life; it should be tolerant of diverse lifestyles.
I am claiming my business is harmed. But my business is my responsibility, not his. He never agreed to take on the risks inherent in starting a new website business. If I wanted him to take on some of the business risk associated with my site launching late, I should have asked him to, put it on the contract, and paid extra. Imagine if Electronic Arts sued some of its employees for millions of dollars because they were responsible for a product being delayed two weeks, but the advertising for the product had already run. Perhaps the delay the employees caused really did harm the company for millions of dollars, but they are just employees, that isn't their problem, they didn't ever agree to take on that much risk. In a free and rational society, it's important that people don't take on obligations by accident. Obligations and risks need to go to to the people who consent to have them.
The theme here is to encourage the growth of knowledge by allowing for people to make mistakes and live varied lifestyles. Having a large scope of legal behaviors, greatly exceeding what most people consider good behavior, allows for the possibility that somewhere in those possible deviations is an improvement, and does not punish people who try to find it. This is the perspective of the open society where errors are, as much as possible, nonviolently corrected by thought and persuasion, not suppressed by the police.
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