When Does the Law Not Apply? | Jon Hanson | Big Think

When Does the Law Not Apply?

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As Jon Hanson’s pioneering project on “situationalism” reveals, humans think and operate in ways that don’t fit within our legal framework all the time, as the context in which an act is committed may be more powerful than our minds can know.

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Jon Hanson:

Jon Hanson is the Alfred Smart Professor of Law at Harvard Law School. He is the Director and co-creator of The Project on Law and Mind Sciences at Harvard Law School and co-creator of, and contributor to, The Situationist blog, which is a forum for identifying, examining, discussing, and debating, the effect of situational forces — that is, non-salient factors around and within us — on law, policy, politics, and legal theory, and on our social, political, and economic institutions.

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TRANSCRIPT:

Question: What are some of the changes that the legal system should be making?

Jon Hanson: Well it’s a difficult challenge to figure out now what to do with this information from the Mind Sciences. My prediction is that legal theory is going to be, legal theorists in the law are going to be focused on this and struggling with this and entangled in these difficult questions going forward for who knows how long. One of the things to be aware of is that in every area of law there exists a place where the law and legal decision makers recognize the power of situation and when they do the law changes. The outcome of the law changes.

So I teach Tort Law for example, and we are in Tort Law very prone to say that people assume the risk, that they made choices, and therefore they should bear the consequences. And we are also inclined not to allow there to be liability where we think the parties could have contract so we say look if you use someone else’s stuff and you could have gained consent and you didn’t you’re going to have to pay. We may have to put you in jail. We call this sort of Property Rule Protection. Well there are times when we say that doesn’t apply, that the situation actually played a role that doesn’t typically play a role and so now we’re going to adjust the law. An example, a famous example in Tort Law is the case of a family out on a boat on a lake and a sudden storm comes up and now this family is stuck in the middle of the lake and they need to get somewhere for safety, they see a dock and they approach the dock, they try to get on it and they are pushed off right. And now as a consequence of the person on the dock pushing them off, something that the person is generally entitled to do because it’s their property, so Property Rule Protection, the boat slams against the shore, it’s damaged, and some of the people are injured. So, that’s at least a variation of an actual case.

Tort Law recognizes that in those situations where a storm comes up and people are looking to protect their lives that it’s not exactly their disposition that’s leading them, it’s more their situation. Tort Law says then that your permitted to use someone else’s dock and that if they do try to push you off heir going to have to compensate you for the consequences. So there’s an example of where the law is adjusted to take situation into account. I could take you through every area of law, I won’t. In part because I don’t know them all but if I did I would take you through all of them and show you that in every area of law there’s a place where situation comes in. And so the law has already struggled with this it’s just picked a particular sort of dividing line. So in Contract Law we say if someone puts a gun to your head and says you’re money or you’re life and you give your wallet, that’s not an enforceable contract, it wasn’t your disposition that allowed you to do it, it was your situation and so we change the law to reflect it. I think one general way in which the law is going to have to deal with this is its going to have to slide, slide the sort of the dividing point between when situation matters and when disposition matters. And that’s going to be difficult because there is some simplicity and there’s something affirming about the idea that if something bad happens to someone it’s because they chose it.

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