The Copenhagen Trap

14 min read Original article ↗

How legal systems made passivity the only safe strategy

I. The Paradox

A company discovers a potential safety flaw in its product. It commissions a voluntary audit. The audit misses something. A customer is injured. The company is now liable for negligent audit—liability it would not have faced had it never looked. The lesson: don't look.

A physician considers withdrawing life support from a brain-dead patient. Withdrawing feels like killing—an action. Not starting support in the first place would have been omission. Same outcome, different liability exposure. The lesson: never start what you can't continue.

A regulator considers approving an experimental drug. If approved and someone dies: scandal, hearings, career destruction. If delayed and people die waiting: no attribution, no scandal, invisible deaths. The lesson: delay is always safer.

This is the Copenhagen Trap—named after the "Copenhagen Interpretation of Ethics" (Jai Dhyani, 2015): like observing a particle collapses its wavefunction in quantum mechanics, interacting with a problem makes you responsible for it. Ignore the problem, retain immunity.

The trap operates wherever action creates liability but inaction doesn't. It manifests as tort liability in the Anglosphere, as self-defense restrictions in Nordic countries, as institutional paralysis everywhere it takes root. This essay traces how the asymmetry became encoded into legal and social architecture, and why it now functions as a selection mechanism against agency itself.

II. The Ancient Baseline

The action/inaction asymmetry is ancient—Roman law struggled to assign causation to non-events. But it was held in check by countervailing forces: honor cultures punished inaction as social death, feudal obligations created webs of positive duties, canon law held omission sinful, noblesse oblige made passivity shameful. The asymmetry existed in embryonic form, but passivity was costly.

III. The Common Law Crystallization

English Common Law hardened the asymmetry into rigid doctrine.

The key case: Hurley v. Eddingfield (1901). A physician refused to travel to treat a dying patient, despite being the family doctor and the only available aid. The court held: no liability. The ruling underscored the common law's commitment to individual liberty—the law forbids you from hurting your neighbor, but does not force you to be his savior.

This became the "no duty to rescue" rule. The logic: negative rights (not to be killed) are stringent; positive rights (to be saved) are optional. The non-rescuer doesn't cause the death; the drowning water does.

Good Samaritan laws exist in most US states—but they provide immunity for rescuers, not a duty to rescue. They reduce the penalty for helping without creating any penalty for not helping. The asymmetry remains.

IV. Why It Feels Like Moral Truth

The Utilitarians challenged this. Bentham and Mill introduced a consequentialist framework where outcomes matter regardless of method. If morality is determined by consequences, then failing to prevent a death is mathematically equivalent to causing a death, provided the cost to the agent is low. Mill wrote explicitly: "A person may cause evil to others not only by his actions but by his inaction, and in either case he is justly accountable."

But the Deontological backlash reasserted the asymmetry. For the Kantian, the moral quality of an agent is determined by adherence to rules—primarily negative prohibitions. The consequences of inaction are tragic, but they are not violations of the moral law in the same way as active harm. Requiring men to be "good" (positive duty) is religion; requiring them not to be "bad" (negative duty) is law.

The Trolley Problem (Foot 1967, Thomson 1985) formalized the intuition: pulling the lever to divert the trolley (action) feels viscerally different from standing by while five die (inaction), even with identical body counts. Philosophy tutored by law; law reinforced by philosophy. A feedback loop that made the asymmetry feel like moral truth rather than contingent legal convention.

V. The Institutional Encoding

The 20th century embedded the asymmetry into the DNA of bureaucratic institutions. What began as a legal doctrine became an operating system.

Medical Ethics: The Withdrawal Trap

Withholding life support (not starting it) is omission—the disease kills, not the doctor. Withdrawing life support (stopping it) is action—the doctor kills. Same outcome, radically different liability. Physicians are measurably less likely to withdraw than to withhold. Result: overtreatment, prolonged dying, because stopping feels like killing.

Corporate Liability: Willful Blindness as Strategy

Under Restatement (Second) of Torts § 324A, voluntarily undertaking a safety audit creates a duty of care. Negligent audit = liability you wouldn't have faced without looking. A poor compliance program is worse than no compliance program. The rational strategy: don't look for problems you'll be blamed for not fixing.

Regulatory Paralysis: The Invisible Graveyard

Approve a drug that kills one person: scandal, hearings, career destruction. Delay a drug and a thousand people die waiting: invisible deaths, no attribution, no story. Commission Errors are punished; Omission Errors are invisible. The FDA's structure makes delay the only safe choice. The people who died waiting have no lobby.

Self-Defense: The Imminence Trap

The "imminence" requirement forces defenders to absorb the first blow before acting. Strike preemptively against a certain threat and you're the aggressor. Wait until you're actually being attacked and maybe you can defend yourself—if you survive long enough to exercise the right. (See Section X for country comparisons, and The Thermodynamics of Power for the full treatment.)

VI. The Liability Singularity

As systems become more complex, interconnectivity increases. In a complex system, any action has side effects. If liability attaches to any negative side effect, and all actions have side effects, then:

P(Liability | Action) → 1

When the probability of liability approaches certainty for any action, rational actors stop acting. Agency approaches zero. Call this the Liability Singularity—the heat death of agency.

This is not hypothetical. It is the lived experience of anyone who has worked in a modern institution. The question is never "what should we do?" but "what can we do without creating liability?" The answer, increasingly, is nothing.

VII. The Internet Weaponization

Social media didn't create the asymmetry—it amplified it. Every interaction is now observed by billions of potential critics. The Copenhagen dynamic scales: interact and become responsible; ignore and retain immunity.

The mechanics:

  1. Interaction implies liability: Help a homeless person imperfectly → criticized for the imperfection
  2. Profit implies guilt: Sell cheap water in a drought → "profiteer," "monster"
  3. Ignorance implies innocence: Ignore the problem entirely → zero criticism

Case studies:

Kabul, 2021. Private contractors offered evacuation flights at high prices. They were labeled "profiteers" and "monsters." The action (providing a flight at a price) was strictly better than no flight at any price. Yet the actors who saved lives for profit were vilified; those who offered nothing faced no criticism. The profiteer is hated more than the bystander who lets people die for free.

Newark, 2010. Zuckerberg donated $100 million to Newark schools. A decade later: years of scrutiny over consultant fees, governance failures, conditions attached. Other tech billionaires who donated nothing to education? No scrutiny. No responsibility for Newark's continued problems. The donor becomes responsible for the school system; the non-donor remains innocent.

The pattern: marginal improvement is punished more harshly than total neglect.

VIII. The Nuclear Proof

The Copenhagen Trap explains one of the great paradoxes of modern energy policy.

Coal kills millions through particulate matter, respiratory disease, and climate effects. These deaths are statistical, diffuse, invisible. No single death can be attributed to a specific decision. No one is liable.

Nuclear risks meltdown. Meltdowns are concentrated, visible, events. They generate headlines. They create liability. Someone approved the plant. Someone is responsible.

The result: we burn coal instead of splitting atoms. We prefer statistical death (millions of invisible casualties) over liable risk (possible visible casualties). The decision-maker who approves nuclear and faces a meltdown is destroyed. The decision-maker who continues coal and presides over diffuse death is safe.

This is not irrational given the incentive structure. It is perfectly rational given the asymmetry. The asymmetry is what's irrational—but no individual actor can change it.

IX. The Selection Effect

The Copenhagen Trap doesn't just affect decisions. It affects who makes decisions. This is not about individual choices. It is about civilizational selection pressure.

The Ombudsmen vs. Operators problem:

People who actually fix things—operators—accumulate "liability mud." They've made decisions. Some decisions had negative side effects. Their record includes visible failures, even if the failures were necessary costs of larger successes.

People who manage process without touching outcomes—ombudsmen—have clean hands. They've never approved anything that failed, because they've never approved anything. They've never been blamed for a negative side effect, because they've never caused a side effect.

As the liability environment intensifies, ombudsmen rise and operators are filtered out. The people who reach the top of regulatory agencies, HR departments, and legal teams are disproportionately those who have never taken a consequential action. They are selected for not having done anything.

Result: we are ruled by the Unstained Incompetent. The system selects for people whose primary skill is avoiding decisions. These are not the people who will reform the system. They are the people the system was designed to produce.

The Psychological Relief Function

Why do people accept this? Because agency is terrifying.

The Copenhagen Trap is a relief. It tells the risk-averse: "You don't have to act. In fact, it is moral not to act. You are being 'responsible' by ignoring the drowning man, because you aren't trained. You are being 'prudent' by not intervening, because you might make it worse."

The Trap transforms passivity into virtue—the comforting assurance that doing nothing is the ethical choice.

X. The Geography of the Trap

The bystander rescue asymmetry is not a human universal—it is a Common Law peculiarity. Continental Civil Law systems take the opposite approach:

The Civil Law tradition, rooted in concepts of solidarité sociale, treats the failure to help as a crime against the social fabric. The Common Law tradition, rooted in negative liberty and the misfeasance/nonfeasance distinction, protects the right to do nothing. For bystander rescue, this is a clear Common Law vs. Civil Law split—but the trap manifests differently in different legal domains.

The Peng Yu Case (China, 2006) demonstrates the trap's social effects. A man helped an elderly woman who had fallen. She sued him. The court ruled against him, reasoning that "according to common sense," no one would help a stranger unless they felt guilty. The ruling sparked national outrage and created a chilling effect: a decade of bystanders refusing to help accident victims, captured in viral videos of injured people ignored on sidewalks. China finally passed Good Samaritan laws in 2017—eleven years later—to undo the damage.

When helping implies guilt, no one helps. Social trust collapses.

The Self-Defense Trap: A Different Domain

Duty-to-rescue laws address one manifestation of the Copenhagen Trap. But the trap can manifest in a completely different domain: self-defense law. Here the pattern cuts across the Common Law / Civil Law divide entirely.

Nordic countries (Finland, Sweden): Legal advice: "always run away and call the police." Using a knife against multiple unarmed attackers will almost certainly result in prosecution for excessive defense. Carrying weapons for self-defense is illegal. Defending others with "disproportionate" force? Same prosecution. The law tells you: call for help, but don't provide it effectively.

France: The "Bijoutier de Nice" case (2013). A 67-year-old jeweler was robbed. As the robbers fled on a scooter, he followed them outside, knelt, and shot one in the back. Self-defense was rejected—the threat had ended when they fled. He was convicted of "voluntary violence with weapon resulting in death" and sentenced to 5 years fully suspended. The public outcry was immense (1.5 million Facebook supporters), but the law was clear: once the threat retreats, defensive action becomes aggression.

United Kingdom: Common Law, but with the same pathology. Duty to retreat, near-total gun prohibition, and regular prosecution of homeowners who defend against burglars. Tony Martin (1999) shot two burglars in his isolated Norfolk farmhouse after years of repeated break-ins; he was convicted of murder (reduced to manslaughter on appeal) and served three years in prison. The surviving burglar later sued Martin for damages. The message: even in your own home, after repeated victimization, passivity is legally safer than defense.

Contrast with Germany and Poland: Both Civil Law—but with robust self-defense. German law holds that "Right need not yield to Wrong" (Das Recht braucht dem Unrecht nicht zu weichen)—no duty to retreat, and defense of property as well as person is explicitly protected. Poland is similarly defense-friendly: all knives are legal to carry (not classified as weapons), there is no duty to retreat, and the law recognizes that defenders under psychological stress may exceed strict proportionality without criminal liability.

The pattern: the Copenhagen Trap is not simply "Common Law vs. Civil Law." It is a syndrome that can manifest in different legal domains. A jurisdiction may reject the trap for bystander rescue (mandating help) while embracing it for self-defense (criminalizing defensive action). The Nordic countries are perhaps the purest expression: you are legally required to help strangers, but legally forbidden from helping yourself with effective force. The trap operates wherever the law makes passivity safer than action.

XI. The Thermodynamic Frame

Entropy increases in closed systems. Fighting entropy requires work—coordinated action against the gradient.

A legal and social system that penalizes action and rewards inaction is a system that penalizes the fight against entropy. It makes the thermodynamically expensive choice (coordinated action, building, defending, creating) also the legally and socially expensive choice.

The result is predictable: the system stops fighting entropy. Institutions decay. Infrastructure crumbles. Problems compound. The civilization that adopts this architecture becomes incapable of preemptive defense (must wait for imminent attack), rapid innovation (must prove safety before acting), crisis response (acting creates liability, inaction doesn't), and altruism (helping creates liability, ignoring doesn't). These are not hypothetical future failures. They are the present condition of most Western institutions—whether through tort liability (US institutional paralysis), self-defense restrictions (UK, Nordic countries, France), or both.

The action/inaction asymmetry is the mechanical linkage that converts safetyism into institutional reality.

XII. Why It Won't Fix Itself

The Copenhagen Trap is not a bug. It is a feature of a civilization that has chosen comfort over agency, safety over adaptation, clean hands over effective action.

It is the legal expression of a deeper axiological shift: a system that uses its own abundance to fund the mechanisms of its paralysis. When survival was hard, inaction was punished by reality. When survival became easy, inaction became safe—and the law followed.

The Trap is self-reinforcing. The people it selects—ombudsmen, the Unstained Incompetent—are exactly the people who will never reform it. They owe their positions to it. Reforming it would require action, which would create liability. The architecture selects against reformers. Anyone with the agency to change the system has already been filtered out by the system.

A civilization that cannot act cannot survive. Most of the West—Anglosphere and Nordic Europe alike, through different mechanisms—has built an elaborate architecture ensuring that the only safe strategy is passivity. (Germany and Poland are partial exceptions, retaining both duty-to-rescue and robust self-defense rights.) The architecture produces the leaders it deserves: people who have mastered the art of not deciding, not acting, not touching.

The Unstained Incompetent inherit the earth. Until the earth is inherited by someone else.

This essay draws from Aliveness: Principles of Telic Systems, a physics-based framework for understanding what sustains organized complexity over deep time—from cells to civilizations to artificial intelligence.

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Acknowledgements: Thanks to Hacker News commenters for corrections on geographic scope and duty-to-rescue laws. The essay has been revised to show the Copenhagen Trap as a syndrome cutting across legal traditions: tort liability (US), self-defense restrictions (UK, Nordic, France), or both. Germany and Poland escape in both domains.