Bronx wrote on 10 February at 10:27 UTC, currently
#63
that
Originally Posted by Bronx
Prosecuting pilots and sending them to jail for negligence does NOTHING to improve aviation safety... [instead, it] does HARM to aviation safety
Although, as should be evident from my subsequent comments in interchange with FL, I agree with many of the statements he made, I don't agree with the general argument he proposed, which I summarised in
Post #67
as
Originally Posted by PBL
professional pilots should be exempt from prosecution for negligence because professional pilots are never negligent
to which Bronx replied in
Post #69 that
Originally Posted by Bronx
I didn't say any such thing.
and FL included as an example of
Originally Posted by Flying Lawyer
distorting opponents’ arguments and attributing to opponents arguments they didn’t advance
in
Post #75, as he made clear in
Post #80
Indeed Bronx didn't advance the argument explicitly, but I think he was committed to such a view as a consequence of what he did say. Since I agree with much else of what he said, I hold it worthwhile to revisit and clarify this point, because I think it involves a potential misunderstanding of or equivocation concerning some important concepts.
Another statement crucial for the argument is
Originally Posted by Bronx
IMHO you can have an accident investigation in which people can cooperate fully with the investigators without the risk of being prosecuted so that they and others can learn from any mistakes made OR a criminal investigation in which they can say nothing and so the chances are nothing will be learnt from it.
That is a dichotomy which we should care about, because I read it as saying "
you can have an accident investigation ........ OR a criminal investigation ....... but not both"; the elided conditions are such as to preclude both.
Let us take it as desirable that one should always have an accident investigation which is enabled to find out as fully and completely as possible what went on and why. Bronx is arguing you should not have as well a judicial investigation with a view to determining if an offence has been committed, because that will inevitably hinder the causal accident investigation.
Now, negligence is a concept which applies to a sequence of behavior or a state of mind, and it is a disapprobation. A non-evaluative description would use words such as "error", "inattention", "omission" "misperception", "nonperception", and so on, as usual. But when one says "negligent" one is no longer merely describing but evaluating. That is, you are comparing this behavior with other types of behavior or construed or idealised behavior and finding it wanting in some respect. Now, this is the domain of the law. I think it is fair to say that the Anglo common law started as a series of communal evaluations of situation and behavior with a view to norming them in some way. So it is not surprising to find "negligence" as a fundamental legal concept.
The word itself is, according to Webster, Middle English, of Anglo-French and Latin origin, and is explained there as "marked by or given to neglect especially habitually or culpably" or "failing to exercise the care expected of a reasonably prudent person in like circumstances". This second clarification obviously comes from the law. The first clarification says "especially habitually or culpably". When we are looking at accidents, we are not looking at habitual behavior but at particular behavior, so it would be the "culpably" part that concerns us. And of course culpability is also a concept primarily of law.
What I want to say is that negligence is fundamentally a legal concept, and it derives other everyday uses from this fundamental meaning. I cite the Webster clarification to support this view. I don't believe dictionaries "define" words; I think only use does that. Good dictionaries indicate to us the use, and I think Webster indicates that use is inextricably bound with common law.
Now, since Bronx is advocating, exceptionlessly, full and effective causal accident investigations, by his dichotomy he is committed, exceptionlessly, to not prosecuting pilots for negligence. Exceptionlessly not doing something means never doing it: he is committed to never prosecuting pilots for negligence.
Now, a prosecution is a procedure to characterise certain specific behavior. If the characterisation is primarily legal, such as it is with the concept of negligence, then how you determine whether behavior is negligent or not is through a prosecution. You determine whether certain behavior fits characterisations such as gross negligence manslaughter or recklessness manslaughter, not through discussion on the street corner as you might do if you were trying to determine whether something is red or not or old or not, but through a prosecution. And if you never prosecute anyone for, say, recklessness manslaughter, then the concept does not apply. It makes no sense to say that there is a legal concept such as X but we never attempt to determine whether X is ever instantiated. You say: the concept of X does not apply.
When a soldier kills an enemy soldier, heshe does not commit murder. Soldiers *can* commit murder while fighting (and do, and are prosecuted for it), but it ain't murder when you kill the enemy in a fight. Similarly, when the police chase another car at 90 kph through a 50 kph zone, the police are not speeding; the car they are chasing is. The police are driving faster than the speed limit, maybe even driving faster than would be safe, but they are not speeding. "Speeding" is an evaluative concept; "murder" is an evaluative concept; when you say that you never try to determine whether the concept applies to a particular class of cases, and the concept has no validity outside such a determination, then the concept simply does not apply to that class of cases.
So it is with negligence. It is primarily a term with legal meaning. If you decide that you will never determine whether the concept of negligence applies to pilot behavior in accidents, then you are thereby saying that the concept of negligence does not apply to pilot behavior in accidents. And another, shorter, way of saying that the concept of negligence does not apply to pilot behavior in accidents is that pilot behavior in these circumstances is not negligent. And if this is to be exceptionlessly the case, then it is appropriate to express this condition as: pilot behavior is never negligent. Which I did.
I hope that makes it clearer both what I said and why I said it, and also that I do not take it as a distortion of Bronx's argument but rather as a consequence of it. What Bronx said commits him to the view that pilot behavior in accidents is never negligent. If anyone does not like that conclusion, which I don't, then a rethink of the premises of the argument is in order. It appears from Bronx's reaction that he doesn't like that conclusion either. If so, then he has to modify some of his earlier assertions to escape it.
This is an example of why I think this whole topic is subtle.
PBL