In 2018, a Boeing aircraft for no apparent reason plunged to the earth killing all on board.  Less than a year later, another Boeing of the same model suffered the same fate.  More than three hundred people died in these crashes.  In each case, the fault was found to be a failure in the computerised mechanisms that resulted in the pilot not being able to over-ride the robot driving or flying the plane. 

Boeing struck  a deal  with regulators and was then prosecuted for fraud for reneging on it.  So they struck another deal – and with no apologies to Groucho Marx. Federal prosecutors gave Boeing the choice last week of entering a guilty plea and paying a fine as part of its sentence or facing a trial on the felony criminal charge of conspiracy to defraud the United States. The families of the victims are outraged by the deal.  The reasons are obvious.  The court will be asked not to approve the settlement.

The origins of our laws come down to us from the forests of Germany that the Romans looked down on – until the Germans sacked  Rome.  In the first lecture in The Common Law, O W Holmes said that Roman law started from the blood feud and all authorities agreed that the German law started in the same way.  The law of criminal and civil wrongs  ‘started from a moral basis, from the thought that someone was to blame’.

Vengeance imports a feeling of blame, and an opinion, however distorted by passion, that a wrong has been done.  (Little Brown  and Co, 1881, 3,37.)

The first object of the law was to deal with vengeance – the vendetta. 

As it happens, more than one hundred years before Holmes published his lectures, the Scots philosopher David Hume had looked at this .  He set out a short extract that ‘contains the history of the criminal jurisprudence of the northern nations for several centuries’.

Hume describes two phases of the emergence of the  ancient Germans from ‘the original state of nature.’  The vendetta remained ‘an indispensable point of honour for every clan’, but –

….the magistrate had acquired a right of interposing in the quarrel, and of accommodating the difference.  He obliged the person maimed or injured, and the relations of one killed to…accept a compensation for the injury, and to drop all further prosecution of revenge….A present of this kind gratified the revenge of the injured family by the loss which the aggressor suffered.  It satisfied their pride by the submission which it expressed.  It diminished the regret for the loss or injury of a kinsman by their acquisition  of new property, and thus general peace was for a moment restored…

Then the intervention by the ruler stepped up a notch.

The magistrate, whose office it was to guard public peace and to suppress private animosities, conceived himself to be injured by every injury done to any of his people; and besides the compensation to the person who suffered, he thought  himself entitled to exact a fine, called the Fridwit, as an atonement for the breach of the peace, and as a reward for the pains which he had taken in accommodating the quarrel.  (A History of England, Liberty Classics, 1983, 174-176).

And this is precisely what we got with the common law of England after 1215 when the writ of trespass alleged a breach of the peace of the king by force of arms – contra pacem regis, vi  et armis.  That allegation was essential to the process on which the English developed so much of their law dealing with civil or criminal wrongs.

We see immediately why the Boeing family victims are outraged by the second proposed Boeing settlement.  They have suffered most grievously. Their reaction starts from a moral basis, from the thought that someone is to blame – a wrong has been done.  What others call vengeance, they call justice.  Their felt needs are as primal as you can get.  If our law cannot accommodate them,  have we gone backwards or, worse, sold out?

People trust airline manufacturers with more than money – they trust the manufacturers with their lives.  Boeing  breached that trust and many people died.

If the court is to find that someone was to blame, it will not be the corporate legal entity, but a real person.  Instead, lawyers for the government and the corporation strike a commercial bargain.  Shareholders will be mulcted for the benefit of the government treasury.  The people responsible will walk away untouched.  And the victims  will not get to see due process of law.

A prime object of that process is to deter others from committing the harmful acts complained of.   There too the law is mocked, but we see it all the time.  It is as if there is one law for rich companies, and another for the rest of us.

But what we do know is that the  sight of one executive behind bars will offer more deterrence than all these cosy club deals done behind firmly closed doors .

Open justice – regulators – criminals.