E.M.'s Alexandrian Law Review

Focus of Harm

The Chancery's Majority in Entreaty I: Question One considered whether relief in Alexandrian law is available to injured parties outside the borders of Alexandria. Smallfries C., joined by Juniperfig H.C., in pithy order, set down their rule: "Any action which sees the principal portion of its harm located within the borders of Alexandria may be granted relief[.]" This sophisticated and rich principle merits discussion.

Damages are about Order, not Restoration

The Majority held that extending the reach of Alexandrian courts' remedies to injuries occurring entirely in the Outback consists of "claim[ing] territory where no previous Government action supports this claim." The Chancery goes on to qualify, however, that actions originating in the Outback are not "forever and always free from consequences within civilized society." If nothing else, the Majority invokes the language of public law. An action that can give rise to "consequences" from "civilized society" is one that is typically criminal, or, at the very least, imposed by the force of government.

It's fitting, then, that the rule only applies when a harm has been caused principally within our nation's borders. The effect of the rule is not to disincent the causing of harm in general: it's to disincent harm being caused in Alexandria.

In this way the Chancery has decisively weighed-in on the contours of our nation's laws. The purpose of law — both public and private¹ — in the context of the harm principle is to deter. The alternative, that the law is intended to ameliorate wrongs, would have permitted the Chancery to adjudicate even in contractual disputes, between citizens, whose effects occurred entirely in the Outback. This is clearly inconsistent with majority's rule and thus cannot be the law in Alexandria.

In Favour of a Restorative Approach

A reimagined restorative harm principle would not focus on the location of the harm, but on who suffered it. If the injured party is subject to the protection of Alexandrian law, or has consented to contractual protections with a party also subject to our law, then the court's ability to adjudicate should attach regardless of where the harm principally manifested. This principle is likewise purposively consistent with the Constitution’s orientation toward persons and rights.²

The reimagined approach also avoids the (physical, but not legal) arbitrariness of dividing harm across borders. Under the territorial harm principle, what justice is done between the parties by a rule which excludes extra-Alexandrian adjudication? And, though I do not seek to critique what is a necessarily "unrefined and novel" principle, might this rule also prevent parties whose contracts have explicitly selected Alexandria as their litigation forum (but whose effects are otherwise contained in the Outback) from bringing their matter before Alexandrian courts?

It's in this way that a restorative harm principle, focused on whom, rather than where, an injury occurred, might align best with the spirit of our Constitutionally-flavoured common law and protect the freedom to contract.

^{1. The focus of harm rule applies to the court's powers over public and private law: See, e.g., the Majority's reference to theft (a public law offense) and breach of contract (a private law wrong) in the same breath: "An individual raiding an Outback base or stealing materials from another in the Outback likely should not be tried in Alexandria for those acts. However, a contract being violated where the aggrieved party operates their end of the bargain in Alexandria can."}

^{2. I pause to note that I do not intend to argue that the Constitution is binding over private or contract law. Only that, as our system's foundational document, it can be looked to as a purposive interpretive aid for common law principles like the focus of harm.}