Richard Posner’s Collective Punishment is up at The Becker-Posner Blog. The post is about "collective punishment"–with Israel’s actions in Lebanon as the hook. Here’s a taste:
I want to discuss the economics of collective punishment, which is a conventional legal tool that is efficient in many of its applications. An important modern example is the employer’s liability for injuries resulting from acts by its employees within the scope of their duties. The employer may have exercised due care in the selection, training, assigning, monitoring, and disciplining of the employee who caused the accident, but if the employee was at fault and therefore is liable to the victim, the employer is also liable no matter how faultless its behavior. And usually it is the employer that ends up paying the entire judgment in the suit by the victim because the employee is more often that not judgment-proof. The law allows the employer to seek indemnity from the employee for any judgment the employer is required to pay the victim of the employee’s tort, because the employee is the primary wrongdoer. But the judgment-proof problem renders the employer’s right of indemnity of little or no value in most cases.
Lot’s more & Becker too. Read it, of course! Posner is operating within a consequentialist framework, and obviously deontologists will disagree with his fundamental premises. What interests me about his post is the question whether respondeat superior liability for employers actually represents "collective punishment." That raises the further question–what is "collective punishment"? Leading to "what is punishment?" It’s not clear to me that tort liability that makes a victim whole is properly considered "punishment" at all. One thing is absolutely clear–the Israeli actions in Lebanon have no remedial purpose and to that extent they are clearly disanalagous to respondeat superior. Moreover, the relationship between employers and employees is different in kind from the relationship between Hezbollah and Lebanese citizens who are not members or supporters of Hezbollah. Business organizations act through their employees–there is a constituitive relationship. No such relationship exists between Hezbollah and nonmember Lebanese citizens. Business organizations have duties and powers of supervision over and with respect to their employees. Lebanese citizens may have duties to act with respect to Hezbollah, but it is not clear they have powers of action. Certainly, Lebanese children have neither duties nor powers with respect to the actions of Hezbollah.