It is the duty of the revolution to put an end to compromise, and to put an end to compromise means taking the path of socialist revolution.
-Lenin, Speech On The Agrarian Question November 14 (1917)
Torts is the law of damages. It is the godmother of one of the most popular characters in the legal realm: the greedy, unethical personal injury lawyer. Chasing ambulances from dawn to dusk, ready to turn your scraped knee into a traumatic, devastating injury through all the smoke and mirrors the cold, impersonal legal system provides. Like many mythical figures, it derives from a real phenomenon. I once interviewed at a law firm for a paralegal position where one of the two partners pretty closely resembled this character, at least by what assessment I could make in thirty minutes. He all but asked me how good at lying I was and whether I could “handle” clients. But overall, as the film Hot Coffee aptly demonstrates, personal injury lawyers are not like this stereotype and personal injury cases are rarely if ever as easy to dismiss (though again, there are exceptions: for a laugh, check out the case Van Camp v. McAfoos).
Many tort cases can be skewed to resemble the stereotype because they are about a complex ethical issue: negligence. In the infamous McDonald’s case that Hot Coffee focuses on, it was easy enough to spin the story “This woman spilled coffee on herself, and then blamed it on McDonald’s!” After all it’s there in the language: McDonald’s does nothing in that sentence, whereas the woman spills the coffee and blames McDonald’s. Of course the whole story is a bit more revealing: the McDonald’s coffee put Ms. Liebeck in the hospital for eight days while she underwent skin grafting, followed by two years of medical treatment. And that’s the part of negligence that Hot Coffee largely focuses on: harm. In a country of private healthcare where even minor injuries, let alone major ones, can bankrupt someone, high damages for injuries are rational. The right wing, under the banner of “tort reform,” has sought to put caps on these damages which economically just allows them to avoid the full cost of their externalities. But in this post I want to focus on a different part of negligence: duty.
It is hard to talk about duty without getting philosophical. It is what makes torts more abstract (though just as if not more material) than contracts or criminal law. Sure there is negligence per se, or where the duty and breach conform to the specifications of a law. After all, the duty to obey the law underlies all laws. That form of negligence has more certainty (and anyone who has had the [mis]fortune of hearing me lecture knows that the law is all about authority and certainty). When there is not a statute to point to, the duty generally is what a reasonably prudent person would do in the same or similar circumstances. If you think that’s about as vague as the promises of presidential candidates, you’re not alone. And once you start trying to define what that means it invariably becomes more complicated. Here’s wikipedia’s attempt:
In law, a reasonable person (historically reasonable man) or the man on the Clapham omnibus is a hypothetical person of legal fiction whose is ultimately an anthropomorphic representation of the body care standards crafted by the courts and communicated through case law and jury instructions.
Ignoring the mystery that is “Clapham” for a second, this definition is chock full of ambiguous concepts like omnibus, hypothetical, “legal fiction,” and “anthropomorphic representation.” I feel like the last one is a stretch itself, because this definition is based on “the body care standards crafted by the courts.” And as you are about to see, the motivations behind this crafting is often neither a popular imagining of what those standards are nor a utilitarian set of standards.
We start with a general rule of common law in the United States as expressed in the Restatement (Second) of Torts § 314:
The fact that the actor realizes or should realize that action on his part is necessary for another’s aid or protection does not of itself impose upon him a duty to take such action.
This rule comes from the distinction between malfeasance and non-feasance. Malfeasance is to perpetuate a harm with your action or lack of action, such as serving an elderly woman a cup of coffee that was scalding hot. Non-feasance is to fail to prevent a harm with your action or lack of action. To be more straightforward, the law states that in general you have no duty to be a good Samaritan. You have no duty to help others. You have no duty to intervene when you see exploitation or oppression. Well that’s not entirely true. As practically every judge who rules on these cases feels the need to say, they believe there is a moral duty, just not a fiduciary duty. And of course that moral duty is given all the respect that such things are given throughout the law.
So where does this issue arise? Let’s look at one case, Estate of Cilley v. Lane. Jennifer Lane and Joshua Cilley were that couple that is more on-again off-again than they were dating. But eventually Jennifer got fed up with this and told him that they should just be friends. A few days later she was out drinking with some friends and walked home to call her daughter. Shortly after getting home, Joshua Cilley entered the home and Jennifer told him to leave. Joshua refused and would not let her leave. Then there’s a dispute about whether Joshua brought out a rifle or that Jennifer had a rifle in her home (one of the most Maine legal disputes ever). But regardless of which way it happened, there was a rifle. Jennifer managed to push past Joshua and got outside the home. And right after she heard a shot from inside the house. She turned around and saw Joshua on the floor, saying “This was a mistake, this wasn’t supposed to happen.” Rather than investigate further, she went back to her friends’ home where she told them that Joshua had “pretended to shoot himself.” But she was wrong: one of the friends looked out the window and saw Joshua crawling outside the house. They went over to him and called 911, but it was too late, specifically he arrived at the hospital about ten minutes too late to be resuscitated.
And the Court ruled that Jennifer was not liable despite that it was fairly certain that had she investigated the gunshot and called 911 rather than going to her friends’ that Joshua would have survived. So first off, to clear the air here, I am not going to in anyway argue that Joshua is a sympathetic figure. While we can never know whether it was an accident or not, he was certainly behaving inappropriately based on a patriarchal entitlement to the attention and time of Jennifer. But that being said, we’re also not talking about a case where Joshua was menacing Jennifer. If she had been, we’d expect the sound of a gunshot would have frightened her rather than have her go to her friends and say that he had faked it. That conclusion seems to suggest that she thought he was a loser rather than a threat.
The Court came to its rulings based on that general rule that Jennifer’s non-feasance did not breach any duty she held to Joshua because she did not hold any duty to Joshua. But let’s hypothetically leave that rule aside for a second and treat this as a normal instance of negligence. Would a reasonably prudent person in the same or similar circumstances as Jennifer was in choose to go to her friends’ home rather than investigate the gunshot? While this evaluation can vary, the important thing is that it could be argued that her actions were unreasonable, especially if it was the rifle that she owned rather than one that Joshua brought. And further her decision to not investigate was what is known as the “but-for cause” of the death: but for her not investigating, Joshua would have lived.
But we do not need to get into a full negligence analysis because even if this case would not come out in favor of the Estate, it is clear that the rule summarized in Restatement (Second) of Torts § 314 has an important role in preventing exposure of the contradiction of duty under capitalism. Social duty beyond the law’s dictates is a legal fiction generally wielded by the courts to promote isolation and protect the accumulation of capital. Which is not to say that justice has never been gained in some way through torts law – rather, that torts law is always based in the aims of the state and the corporations it serves rather than a popular conscience or what is just. After all, the purpose of incorporation of companies in the United States is the parsing out of liability. In a Randian free market, the ideal is that the only duty is self-interest. But of course this is paradoxical: obligations outside of self-benefit are common and arguably the main factor in the social bonds that have allowed human beings to cooperate and build the multiplicity of communities that have existed throughout human history. And the damage that is caused by not honoring those obligations is very real and can be depraved and malicious.
My argument is not that the woman in the above case, Jennifer, should be held accountable for negligence. Rather, I’m arguing that the concepts applied in that case, and the sidestepping around non-feasance, create the problematic legal standard that allows so much of the exploitation and oppression under capitalism. The question I want to ask is this: if this is the standard of duty that capitalism upholds (in torts – duties to shareholders and upholding contracts operate in different capacities), what standard of duty should socialists advocate for?
A number of socialist leaders throughout history have advocated different duties, the one most commonly held being a duty to the proletariat and a duty to the revolution. But I want to highlight some other specifications of these duties because I think the praxis here is crucial to avoid the same abstraction of the “reasonably prudent person” standard:
Can you imagine, for one moment, that troops, fully aware of their revolutionary duty and fighting for the people’s interests, would approach Field Headquarters and begin smashing up everything and everyone, without making known their demands, without so much as explaining to the soldiers around why they had come. You must realise, comrades, that that is impossible. A revolutionary army, conscious of what it is about, must make its demands known to those to whom it applies. When the demands were being made, much more was done; care was taken to make it quite clear that resistance meant resisting the people’s will, that this was not a common but a moral crime against the people’s freedom, interests and highest aspirations. A revolutionary army never fires the first shot, and acts in anger only against invaders and tyrants. Had it been otherwise, the word revolution would have lost its meaning.
-Lenin, November 18th, 1917 response to the Vikzhel statement.
Lenin was responding to the less-radical railroad union Vikzhel’s demand to the Bolsheviks to give more power to other “socialists” (they meant social democrats) and to remove Lenin and Trotsky from the government (note: not Stalin. Sorry Stalinists, he just was not that much of an actor in the original revolution as he rewrote history to claim). And of course this is a response to the characterization of the Revolutionary Army under Trotsky, infamous for suppressing counter-revolutionary dissent like Kronstadt, as fighting for the will of the Bolsheviks rather than the people and doing so mercilessly. Leaving aside the whole debate around Kronstadt, I’m sure my opinion on that is not terribly hard to guess, and assuming that Lenin’s statements here are genuine, there are four duties are outlined: (1) the Army’s duty to the revolution and the interest of the people, encompassing all other duties; (2) the duty to make their demands known; (3) the duty to never act with aggression towards their own people, even when enforcing “a moral crime against the people’s freedom, interests, and highest aspirations”; and (4) the implicit duty not on the Revolutionary Army but rather the people themselves to distinguish between constructive disagreement and counterrevolutionary sentiments.
I want to illustrate what I believe is a modern example of failing this duty. To be clear, I do so to hopefully make these comrades realize their errors and realign their praxis with Marxist principles. And I will not divulge any of the internal mechanations I was privy to as a former member myself.
Socialist Alternative is a Trotskyist party in the US known for their successful election of Kshama Sawant to City Council in Seattle, twice, despite massive corporate and liberal opposition. They showed the US Left that electoral interventions under the auspice of a transitional program can be won, and that it is an incredibly valuable achievement I will not be disparaging today. But that very same achievement has been undermined by their failure of revolutionary duty in the endorsement of Bernie Sanders through their #Movement4Bernie campaign. I supported interventions in the Sanders campaign despite my misgivings that it was not nearly as radical as was thought. But not only did they shift to outright endorsement, undermining an insistence on action outside the Democratic Party, they also did so in a way that failed to make their demands known to the proletariat.
They have always known the truth that reactionary Bernie supporters to this day deny: he was never going to win the Democratic primary. Their support of him was always about gaining access to his supporters to try to increase their own presence. Now that the campaign is wrapping up, they’re attempting to petition him to run independently, ostensibly under their party. But let’s be clear: the movement to have Sanders run independently is as fractured as it is ineffectual. Not only has he made it clear that he won’t run, will endorse Hillary Clinton, and will remain in the Democratic Party following the primary, there is not much overlap between the radical Left like SA calling on him to do so and the #BernieOrBust movement which seems largely motivated by either a character or gender-based hatred of Hillary Clinton (please don’t deny this phenomenon, it is fairly well-documented), rather than criticizing her neoliberal policies which Sanders does not have the best record of distinguishing himself from.
Also at play here is the duty of the people. I also subscribe to Trotsky’s idea of a transitional program and the need to meet people where they are rather than jump in advocating for full communism. But Socialist Alternative is not enacting a transitional program and by their own admission have not acted as a vanguard (at least that was the position when I was a member): and this has always been the foundation of their abandonment of the revolutionary duty. Simply put, they have lacked trust in the proletariat, thinking that they can only be won by essentially tricking them with a facade of support for Sanders. Rather than upholding a revolutionary duty, they have shifted to the very same duty expounded capitalism, attempting to act as a “reasonably prudent person in the same or similar circumstances” would act. Rather than distinguishing themselves from the social democratic reformism of Sanders, they have tried to be ambiguously supportive and this has resulted in harmful non-feasance. As Marxists we have to go beyond criticizing malfeasance: non-feasance can be just as dangerous.
To claim a revolutionary duty is not enough to differentiate oneself. We can disagree on how to formulate the duties to the proletariat, the duties as the vanguard, etc. but we must never shirk these duties in the name of being a “reasonably prudent person.”
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