Civil Liability of Government Officers: Property Rights and Official Accountability

Abstract

The law under which government officials operate permits them to inflict injury on others, under prescribed circumstances, in established ways, and in carefully (and sometimes not so carefully) calibrated amounts. Indeed, the law goes further: it sometimes tells the official that a failure to injure-that is, to coerce compliance with a predetermined rule of conduct-is a dereliction of official duty. For although there may be interminable argument over the social goals that justify the state in using force, all but the most extreme libertarians concede some place to governmental, and therefore official, coercion. The legal system's permitting-or requiring-officially inflicted harms need not, however, be viewed as meaning that official harms have a peculiar legal position. At its most general level the law governing civil liability imposes an obligation to repair any negligent or intentional harm inflicted upon another.1 This liability rule obtains unless the harmful action can be justified by appeal to special circumstances.' When harmful action is authorized by the statutes, regulations, customs, and interpretations empowering and instructing officials, such authorization may be viewed as merely one form of justification. Neither the constable who enters blackacre pursuant to a valid warrant nor the buyer who enters pursuant to a contract of sale will be held liable for trespass.