Clayton, you ignore implict contract here. When you go to the doctor you expect to get treatment. When you shake hands with a person you expect him not to have tuberculosis.
If you shake hands with an unbathed, homeless person do you have the same expectations? When does expectation = consent or agreement?
You know there is inherent risk shaking someones hand. Before you shake someones hand you have already decided it is safe based on your own observations or perceptions.
When you accept a doctor's diagnosis you have already decided the doctor's opinion is valid based on your own observations or perceptons.
Everyone has an expectation not to be harmed yet people are harmed. The NAP as a principle draws no distinction between accidental versus intentional aggression. Aggression, regardless of the type, is deemed wrong or immoral. There is no such thing as an "accident" in a world of intentionally acting entities. Language and semantics do not automatically provide clarity. There is the concept of action and the concept of aggression which is action that results in harm, a specific type of action. If aggression is merely a type of action it ought not be expressed in language as a separate concept. An analogy to me would be +1 or -1. Aggression is a descriptor equivelent to the plus or minus sign and action is equivelent to the number one. The evidence action is aggressive is harm and the evidence of harm is injury or damage.
It is easy to reach consensus when aggressive action is clearly defined:
Thou ought not steal.
Thou ought not murder.
Things are not always made clear by lack of language structure or convention separating concepts. Stealing is a type of aggressive action and aggressive action is a type of action. This thread suggests:
Thou ought not trasmit.
All trasmissions are not claimed to harm.
The real issue of this thread and others like it ought not be achieving consensus on whether transmission causes harm. The issue is how ought reasoning people strive to settle controversy when 1) harm has been claimed, and 2) the alleged action(s) resulting in harm are not always aggressive.
If harm is evidenced by action that has resulted in injury or damage it is good for such controversies to be remedied so that people may live in peace as brothers or sisters in society. Resolution by a jury of piers embodies resolving controversy so that people may live in peace. If you can articulate to a group of my piers that 1) you suffered harm , and 2) I shouold be liable then I ought to be able to accept judgment because they are after all my piers not yours.
I am not a fan of the state perverted jury system but I presently find it difficult to fault a the concept of trial by a jury of your piers. Unfortunately in the state perverted jury system one must consider...
Would your jury actually consist of piers?
Maybe someday logic and reasoning will evolve in controversy and remedy to obselete the concept of trial by a jury of piers but until that happens I see no good reason to not agitate for improving upon a trial by jury system many people already believe in. I would first agitate for letting piers actually be piers. If you are a liberal I will articulate my controversy before your liberal piers. If you are a conservative I will articulate my controversy before your conservative piers. If you are a racist I will articulate my controversy before your racist piers. If you are a statist I will articulate my controversy before your statist piers. If you are a carrier of H1N1 then I will articulate my controversy before your H1N1 carrying piers.
Let the implicit contract be:
I expect if I articulate my controversy before your piers that you will accept the judgement of your piers.
I expect that if your piers perceive harm has resulted from your actions, you will remedy it.
Clayton, so are you saying there are no implicit contracts, that contracts can only be explicit?
@Eugene: No, I'm saying that just saying "implicit contract!" is a cheap and easy shortcut to avoid dealing with the actual issue at hand. Implicit contracts do exist under very specific circumstances. Leaving a restaurant after ordering food - but not paying - is the canonical example. It is not the same everywhere in the world... in different places, possession of the food is proof of payment (or outright theft) - no vendor would be crazy enough to hand you food until you've paid. That's because there's no concept of an implicit contract regarding payment for food in those places. Even McDonald's won't give you the food until you've paid (I am guessing this probably has to do with the costs of enforcement versus the average meal price).
So, establishing that implicit contracts/agreements actually exist is non-trivial. I'm not sure what the condtions of a legal test for the existence of implicit contracts would be but it's certainly more than just random say-so.
But why the restaurant case is different from the TB case? The first case merely involves small monetary exchange, but the second case involves life and death.
@Eugene: It seems to me the more important question is why the difference between restaurant in location A and restaurant in location B? In both cases, exactly the same exchange is occurring (money for food), yet legally they are not treated the same.
That depends on the conventions in those places, and that makes sense. But conventions are not based only on previous settlements but also on the sense of justice of the participants, and the ability of arbitrators to abstract away specific cases into common rules and explain the reasoning for that abstraction.
The basis for my sense of justice is usually an eye for an eye rule, or in legal terms - estoppel. So if someone walked past me, or shakes my hand, knowing full well that by doing so I'll catch his deadly disease, then I have the right to do the same to him. What such retaliation would be? I'm not sure.
Wed. 12/04/11 16:39 EDT.post #131 Clayton:@MMMark: But that is really beside the point of the question. Assuming AIDs is what it is said to be, ...Yes, you're right. I threw that in as an "aside," a topic you might enjoy exploring, if you already haven't. Clayton:... is someone culpable for (knowingly) spreading it? I think the answer is pretty clearly no unless they restrained or otherwise coerced the victim into the circumstances in which he or she was infected.Correct me if I'm wrong, but the issue of "(knowingly) spreading it" is still irrelevant to the question of culpability. It is the restraint and aggression that inculpates; infection and other subsequent damage is relevant only to the calculation of punishment or restitution, once aggression has been committed.
Clayton:@MMMark: But that is really beside the point of the question. Assuming AIDs is what it is said to be, ...
Clayton:... is someone culpable for (knowingly) spreading it? I think the answer is pretty clearly no unless they restrained or otherwise coerced the victim into the circumstances in which he or she was infected.
Edit: corrected a typo.
damage is relevant only to the calculation of punishment or restitution, once aggression has be committed.
Perhaps but I think that we really can't answer questions like this until there is more of a free market in law. If I restrain you and don't beat you up, that's not as bad as restraining you and beating you up. The beating is an additional tort to the restraint. It seems to me the same argument could be made for restraining and then infecting someone with any kind of infectious disease - the act of infecting is its own tort.
Wed. 12/04/11 17:39 EDT.post #133 Clayton:If I restrain you and don't beat you up, that's not as bad as restraining you and beating you up. The beating is an additional tort to the restraint. It seems to me the same argument could be made for restraining and then infecting someone with any kind of infectious disease - ...I'm with you up until here, but then... Clayton:... the act of infecting is its own tort.Now I ask you to clarify. Here, you seem to agree with Eugene (whereas before you disagreed): That "the act of infecting is its own tort," meaning (at least, the way I read it), that, absent any restraining, the act of infecting is, ipso facto, aggression.tort
Clayton:If I restrain you and don't beat you up, that's not as bad as restraining you and beating you up. The beating is an additional tort to the restraint. It seems to me the same argument could be made for restraining and then infecting someone with any kind of infectious disease - ...
Clayton:... the act of infecting is its own tort.
noun Law.a wrongful act, not including a breach of contract or trust, that results in injury to another's person, property, reputation, or the like, and for which the injured party is entitled to compensation.
@MMMark: No, the act of infecting in itself is not aggression but doing anything to someone that they don't want you to do is. For example, sexually touching someone is not aggression. Restraining them and then sexually touching them and it's a separate tort above and beyond simply restraining them.
My usage of the word "tort" is not in the formal, legal sense - I'm using it roughly synonymously with "injury".
Wed. 12/04/11 18:24 EDT.post #134 Clayton:No, the act of infecting in itself is not aggression ...Okay, that's clear, and I agree. Clayton:... but doing anything to someone that they don't want you to do is.That's a bit unclear. What does "doing anything ... they don't want you to do" mean? If A infects B, not by restraint, but by consensual sex, then, according to you, "the act of infecting in itself is not aggression". But, if B didn't want to be infected by A (a pretty safe assumption), then (according to you), it is aggression.The way I'm reading this, your message is ambiguous.
Clayton:No, the act of infecting in itself is not aggression ...
Clayton:... but doing anything to someone that they don't want you to do is.
@Mark: By "does not want" I mean as evidenced by the requirement that they be imprisoned or restrained. If Alice and Bob have sex, and Bob did not have to restrain or threaten Alice, then it makes no sense if Alice later claims that she really didn't want to have sex. She might have been having second thoughts during the act or she may have come to regret it afterwards but she can't say that she was forced to do something she didn't want to do because she simply wasn't forced.
In the case of being infected with an STD, clearly no one wants that but that is not really the question. The question is whether the parties wanted to have sex. If they did, then there was no tort. If one of them did not (as evidenced by having been coerced through physical violence, restraint or threats thereof or other kinds of threats), then not only did rape occur (forcible sex) but any other consequences of the rape (such as STD infection or pregnancy) are also tortious events.
Wed. 12/04/11 19:08 EDT.post #136All clear. Thanks, Clayton.
""""""""Thurs. 10/03/25 12:59 EDT .post #36 Assuming we absolutely know and can prove: 1. H1N1 exists AND 2. H1N1 is communicable AND 3. H1N1 "causes" death AND 4. person B died from H1N1 AND 5. it "came from" person A, then at what point does person A's behavior become "criminal"? As an extreme example, let's suppose person A was just sitting on his porch, breathing, and a lone H1N1 virus escaped his nostrils, was carried by the wind into a passing car and inhaled by that car's driver, person B, who consequently got sick and died, and we had some way of objectively establishing all of this. Would person A's behavior be "criminal"?""""""
Not all criminals get caught. Still a criminal. Damn hard to prove though,