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TORTS—TRESPASS AND NEGLIGENCE

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Oliver Wendell Holmes, Jr.

The object of the this Lecture is to discover whether there is any common ground at the bottom of all liability in tort, and if so, what that ground is. Supposing the attempt to succeed, it will reveal the general principle of civil liability at common law. The liabilities incurred by way of contract are more or less expressly fixed by the agreement of the parties concerned, but those arising from a tort are independent of any previous consent of the wrong-doer to bear the loss occasioned by his act. If A fails to pay a certain sum on a certain day, or to deliver a lecture on a certain night, after having made a binding promise to do so, the damages which he has to pay are recovered in accordance with his consent that some or all of the harms which may be caused by his failure shall fall upon him. But when A assaults or slanders his neighbor, or converts his neighbor’s property, he does a harm which he has never consented to bear, and if the law makes him pay for it, the reason for doing so must be found in some general view of the conduct which every one may fairly expect and demand from every other, whether that other has agreed to it or not.

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The Five Ages of the Bench and Bar of England: John Maxcy Zane

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The Five Ages of the Bench and Bar of England

by

John Maxcy Zane[March 26, 1863 – December 6, 1937]

From: The Story of Law [1927]

It is a singular fact that but two races in the history of the world have shown what may be called a genius for law. The systems of jurisprudence, which owe their development to those two races, the Roman and the Norman, now occupy the whole of the civilized world. Our common law is peculiarly the work of the Norman element of the English people. There is no English law, nor English lawyer, before the Norman Conquest. Just as the Saxons with their crude weapons and bull-hide shields broke before the Norman knights at Senlac, so their barbarous system of wer, wite, and bot, their ridiculous ordeals in the criminal law, their haphazard judicial tribunals, and their methods of proof, which had no connection with any rational theory of evidence, were certain to yield to the Norman organization, its love of order and of records, its royal inquisition for establishing facts, its King’s Court to give uniformity to the law. The Norman Conquest was more than a change of dynasty. It produced a revolution in jurisprudence.

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Jurisprudence as the Science of Civil Law

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John William Salmond( 1862 – 1924)

In a generic and primary sense jurisprudence includes the entire body of legal doctrine. It is jurisprudeiitia—the knowledge of law—and in this sense all law books are books of jurisprudence. By law in this connection is meant exclusively the civil law, the law of the land, as opposed to those other bodies of rules to which the name of law has been extended by analogy. If we use the term “ science ” in its widest permissible sense, as including the systematised knowledge of any subject of intellectual inquiry, we may define jurisprudence as the science of civil law.

Of jurisprudence in this sense there are three kinds— namely, (1) legal exposition, (2) legal history, and (3) the science of legislation. The purpose of the first is to set forth the contents of an actual legal system as existing at any time, whether past or present. The purpose of the second is to set forth the historical process whereby any legal system came to be what it is or was. The purpose of the third is to set forth the law, not as it is or has been, but as it ought to be. It deals not with the past or present of any legal system, but with its ideal future, and with the purposes for which it exists. The complete scientific treatment of any body of law involves the adoption of each of these three methods. The law must be dealt with systematically or dogmatically in respect of its contents, historically in respect of the process of its development, anil critically in respect of its conformity with justice anil the public interest. The first of these methods is that of expository or systematic jurisprudence; the second is that of legal history; while the third pertains to that branch of legal science which, for want of a better name, is commonly termed the science of legislation.

Jurisprudence or the theory of law (1902)

 

Classification of Legal rules: Sir Henry Sumner Maine

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CLASSIFICATIONS OF LEGAL RULES

Almost the first thing which is learnt by the student of Roman law is, that the classical jurists of Rome divided the whole body of legal rules into the Law of Persons, the Law of Things, and the Law of Actions. Although, however, his studies, as law is now taught amongst us, may soon introduce him to some vehement disputes as to the meaning of this classification, he may belong in becoming alive to the extent and importance of the literature to which it has given birth. It would seem, in fact, that in the seventeenth century, which was a great juridical era, theories of legal classification took very much the place of those theories of law reform which so occupied the minds of the last generation of Englishmen. The continuous activity of legislatures is an altogether modern phenomenon; and, before it began, an intellect of the type of Bentham’s, instead of speculating on the possibility of transforming the law into conformity with the greatest happiness of the greatest number, or with any other principle, speculated rather [363] on the possibility of rearranging it in new and more philosophical order. The improvement in view was thus rather a reform of law-books than a reform of law. The most extreme example of such theories is, perhaps, to be found in the attempt of Domat to distribute all law under its two ‘great commandments’ as set forth in the twenty-second chapter of St. Matthew’s Gospel—love to God and love to one’s neighbour. But on the whole, the arrangement in which the compilers of Justinian’s ‘Institutes’ followed Gaius, distributing law in Law of Persons, Law of Things, and Law of Actions, became the point of departure for theories of legal classification. Its history has been not unlike that of several equally famous propositions. After long neglect, it came to be regarded as an expression of absolute truth, and an essential and fundamental distinction was assumed to exist between the three great departments into which the Romans divided law. English jurisprudence was, no doubt, very little affected by this assumption, but English lawyers occasionally come across the inferences from it when they have to deal with Private International law, or, in other words, with the conditions upon which one community will recognise and apply a portion of the jurisprudence of another. At a later date, certain difficulties were observed in the rigorous application of the Roman doctrine, and much ingenuity was expended in removing them or explaining them away. Finally, it was pronounced to be theoretically untenable, and only deserving of being retained on account of its historical importance. According to the general agreement of modern writers on jurisprudence, the Roman distribution of law into Law of Persons, Law of Things, and Law of Actions must be regarded as now exploded.

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The Doctrine of Punishment: John Stuart Mill

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The Doctrine of Punishment

I. After offences, comes the consideration of the punishment to be annexed to them. This is a subject of considerable detail; it has been, however, so fully and admirably treated by Mr. Bentham, that only some of the more general considerations, necessary to mark out the place and importance of the topic, need here to be introduced.

When a right has been infringed, there are two things, it is evident, which ought to be done: The injury which has been sustained by the individual ought to be repaired: And means ought to be taken to prevent the occurrence of a like evil in future.

The doctrine of Satisfaction is not at all difficult, as far as regards the regulating principles; the complication is all in the detail. The greater number of injuries are those which concern property. A pecuniary value can generally be set upon injuries of this sort; though it is not very easy to determine the pretium affectionis, a matter of considerable importance, which the English law, so much made up of clumsiness in one part, and false refinement in another, wholly overlooks. For injuries to the person, also, it is most frequently in the pecuniary shape alone that any compensation can be made. In making these estimates, some general marks are all that can be conveniently defined by the law, and a considerable discretion must be left to the judge. Indeed, the question of damages is always a question of fact, which must be determined by the evidence adduced in each instance.

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The Expansion of Civilisation: Gustave de Molinari

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The Expansion of Civilisation

The nations of the civilised world began to seek means of expansion during the fifteenth century, and the process has never been more active than at the present time. The white man has subjugated the greater part of the globe. America and Australia are occupied, Africa is in process of partition, and the greater part of Asia is already in a state of dependence. Thanks to the overwhelming power of their armaments and capital, the white races meet with little real opposition, and may style themselves masters of the world.

Yet the white man’s methods of conquest and domination differ in few essentials from those of the barbarian who once invaded civilisation. The barbarian massacred and pillaged, and only when pillage ceased to be as remunerative as heretofore, did he turn to a permanent occupation of conquered territories and a regular exploitation of subject populations. When civilisation became the stronger power it used the same methods upon the barbarian and other backward races. Spain and Portugal led, and their rivals and successors—Holland, England, France—have been content to follow. With the fewest possible exceptions colonial systems, resulting from extra-European conquest and discovery, were devised for the sole purpose of exploiting foreign lands for the exclusive benefit of the political and military oligarchies ruling the homeland, or commercial and industrial corporations to which, in return for a monetary consideration, those oligarchies were content to cede the right of colonial trade, and the monopoly of importing colonial produce. The insatiable cupidity and bloody cruelty of the Spanish conquistadors has become a byword of history. Their advent in the West Indies, Mexico, and Peru, was marked by an orgy of massacre and pillage, and nothing but exhaustion of the gold, silver, and other movable treasures of those countries, turned the thoughts of these men towards partitioning the land, and exploiting the mineral and other resources of the country, not excepting the human cattle—their inhabitants. The vast colonial territories of Spain afforded ample scope for a fruitful activity on the part of its governing classes, soldiers, civil officials, holders of concessions, who exploited their lands by Indian labour, and later—when the native had perished under the lash—by the labour of imported African slaves. A few industrial and commercial monopolists secured rapid fortune by their control of colonial markets, but the Spanish nation obtained no return for the enormous expense of maintaining its empire. Desirously coveted by the oligarchical governors of other States, these colonies required a costly garrison and navy, and were an incessant cause of war. Those wars necessitated increased taxation, harassed industry at home, multiplied the numbers of the unemployed, and reduced the masses to a state of covetousness and misery. By its temporary enrichment of a few families, and their enrichment was only temporary since general impoverishment of the nation soon overwhelmed them with the rest, the vicious colonial system of Spain was the chief cause of that country’s ruin.

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Business Propaganda: Ludwig von Mises

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Business Propaganda

The consumer is not omniscient. He does not know where he can obtain at the cheapest price what he is looking for. Very often he does not even know what kind of commodity or service is suitable to remove most efficaciously the particular uneasiness he wants to remove. At best he is familiar with the market conditions of the immediate past and arranges his plans on the basis of this information. To convey to him information about the actual state of the market is the task of business propaganda.

Business propaganda must be obtrusive and blatant. It is its aim to attract the attention of slow people, to rouse latent wishes, to entice men to substitute innovation for inert clinging to traditional routine. In order to succeed, advertising must be adjusted to the mentality of the people courted. It must suit their tastes and speak their idiom. Advertising is shrill, noisy, coarse, puffing, because the public does not react to dignified allusions. It is the bad taste of the public that forces the advertisers to display bad taste in their publicity campaigns. The art of advertising has evolved into a branch of applied psychology, a sister discipline of pedagogy.

Like all things designed to suit the taste of the masses, advertising is repellent to people of delicate feeling. This abhorrence influences the appraisal of business propaganda. Advertising and all other methods of business propaganda are condemned as one of the most outrageous outgrowths of unlimited competition. It should be forbidden. The consumers should be instructed by impartial experts; the public schools, the “nonpartisan” press, and cooperatives should perform this task.

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The Paradox of “Being Governed”: James M. Buchanan

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Americans are dissatisfied with the status quo. This is more than mere assertion and more than reference to the discontented of all ages. There is a difference between the attitude of citizens toward the institutions of their society in the 1970s and the attitude that existed before 1960. Faith in the “American dream” has largely disappeared, and restoration does not seem in the offing. Who could have predicted that major American cities would prove so reluctant to host a celebration of the bicentennial of nationhood?

Some of the slogans of the 1960s can be meaningfully interpreted. The “participatory democracy” of the New Left took form in 1972, both in George Wallace’s “send them a message” and in George McGovern’s reforms of Democratic party structure. But paradox appears when we look at the results. The Wallace message is interesting primarily because it did not get through. Citizens’ clamor for tax relief was translated into tax reform which, again translated, turned into proposals for increasing tax revenues. The budding “taxpayer revolution” of the late 1960s and early 1970s all but disappeared. The McGovern “democratization” of party structure amounted to near-destruction and was shelved quickly after 1972.

Dissatisfaction with the institutional structure, and most notably with the observed performance of government at all levels, remains widespread, but there is no effective means through which this shared attitude can be translated into positive results. Reactions against the excesses of bureaucracy provide the source for bureaucratic expansion. Frustrations with the status quo are noted by politicians and by actual and would-be self-serving “public servants.” Proposals come forward for resolving “social problems,” almost on an assembly-line schedule, proposals that necessarily require expansion rather than contraction in elements of structure that generate the evils. The infinite regress involved in what has been called the “public utility attitude” goes on. If something is wrong, have government regulate it. If the regulators fail, regulate them, and so on down the line. In part this is the inevitable result of public failure to understand the simple principle of laissez-faire, the principle that results which emerge from the interactions of persons left alone may be, and often are, superior to those results that emerge from overt political interference.1 There has been a loss of wisdom in this respect, a loss from eighteenth-century levels, and the message of Adam Smith requires reiteration with each generation. (Modern economics must stand condemned in its failure to accomplish this simple task, the performance of which is, at base, the discipline’s primary reason for claiming public support.)

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The origin of Sub poena

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Petitions

Just as the bill or petition was originally a prayer for administrative intervention, so the next step in the process, the sub poena, was also drawn from administrative origins. This threat of a penalty had been used by the government to stimulate the activity of officials as early as 1232; even the common law courts occasionally used a sub poena clause; in 1302 Justice Berrewyk ordered a party to bring an infant before the court “under the pain of one hundred pounds”.

In the middle of the fourteenth century the Council produced an effective writ by adding the clause of sub poena to the somewhat older writ of certis de causis, which was in effect a simple summons to appear before the Council “for certain reasons”. Quibusdam certis de causis is at least as old as 1346, and closely resembles the summons sent to a peer on the calling of a parliament. The great objection which common lawyers made to writs in this form was their failure to mention the cause of the summons. It was a principle of the common law that a party should not be brought into court without due notice of the matters which he would have to answer, and there is no doubt that the sub poena gave no such warning. Protests in parliament became frequent.

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The difficulty of defining “freedom”: Bruno Leoni

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Abraham Lincoln, in a speech at Baltimore in 1864, recognized both the difficulty of defining “freedom” and the fact that the Civil War between the North and the South was based, in a way, on a misunderstanding related to that word. “The world,” he said, “has never had a good definition of the word “liberty.” . . . In using the same word, we do not mean the same thing.”

In fact, it is not easy to define “freedom” or to be aware completely of what we are doing when we define it. If we want to define “freedom,” we must first decide the purpose of our definition. A “realistic” approach removes the preliminary problem: “freedom” is something that is simply “there,” and the only question is to find the proper words to describe it.

An example of a “realistic” definition of freedom is that given by Lord Acton at the beginning of his History of Freedom: “By liberty I mean assurance that every man shall be protected in doing what he believes to be his duty against the influence of authority and majorities, custom and opinion.” Many critics would say that there is no reason to call “freedom” only the assurance that every man shall be protected in doing what he believes to be his duty, and not, for example, his right or his pleasure; nor is there any reason to say that this protection ought to be assured only against majorities or authority, and not against minorities and individual citizens.

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