what the analytical jurists have called a right _in personam_ is an
exotic in our law in that sense. Moreover the relation is not the
significant thing for systematic purposes, as is shown by civilian
tendencies in the phrases "active obligation" and "passive obligation"
to extend the term from the relation to the capacity or claim to exact
and duty to answer to the exaction. The phrase "right _in personam_"
and its co-phrase "right _in rem_" are so misleading in their
implications, as any teacher soon learns, that we may leave them to
the textbooks of analytical jurisprudence. In this lecture, I shall
use the simple word "liability" for the situation whereby one may
exact legally and the other is legally subjected to the exaction.
Using the word in that sense, I shall inquire into the philosophical
basis of liability and the system of the law on that subject as
related to that basis. Yellowplush said of spelling that every
gentleman was entitled to his own. We have no authoritative
institutional book of Anglo-American law, enacted by sovereign
authority, and hence every teacher of law is entitled to his own
terminology.
So far as the beginnings of law had theories, the first theory of
liability was in terms of a duty to buy off the vengeance of him to
whom an injury had been done whether by oneself or by something in
one's power. The idea is put strikingly in the Anglo-Saxon legal
proverb, "Buy spear from side or bear it," that is, buy off the feud
or fight it out. One who does an injury or stands between an injured
person and his vengeance, by protecting a kinsman, a child or a
domestic animal that has wrought an injury, must compound for the
injury or bear the vengeance of the injured. As the social interest in
peace and order--the general security in its lowest terms--comes to be
secured more effectively by regulation and ultimate putting down of
the feud as a remedy, payment of composition becomes a duty rather
than a privilege, or in the case of injuries by persons or things in
one's power a duty alternative to a duty of surrendering the offending
child or animal. The next step is to measure the composition not in
terms of the vengeance to be bought off but in terms of the injury. A
final step is to put it in terms of reparation. These steps are taken
haltingly and merge into one another, so that we may hear of a
"penalty of reparation." But the result is to turn composition for
vengeance into reparation for injury. Thus recovery of a sum of money
by way of penalty for a delict is the historical starting point of
liability.
One's neighbor whom one had injured or who had been injured by those
whom one harbored was not the only personality that might desire
vengeance in a primitive society. One might affront the gods, and by
one's impiety in so doing might imperil the general security, since
the angered gods were not unlikely to hit out indiscriminately and to
cast pestilence or hurl lightning upon just and unjust alike in the
community which harbored the impious wrongdoer. Hence if, in making a
promise, one called the gods to witness it was needful that
politically organized society, taking over a field of social control
exercised by the priesthood, give a legal remedy to the promisee lest
he invoke the aid of the gods and jeopardize the general security.
Again in making a promise one might call the people or the
neighborhood to witness and might affront them by calling them to
witness in vain. Here, too, the peace was threatened and politically
organized society might give a remedy to the promisee, lest he invoke
the help of his fellow citizens or his neighbors. A common case might
be one where a composition was promised in this way for an injury not
included in the detailed tariff of compositions that is the staple of
ancient "codes." Another common case was where one who held another's
property for some temporary purpose promised to return it. Such a case
is lending; for before the days of coined money, the difference
between lending a horse to go to the next town and lending ten sheep
to enable the borrower to pay a composition is not perceptible. Thus
another starting point of liability is recovery of a thing certain, or
what was originally the same, a sum certain, promised in such wise as
to endanger the general security if the promise is not carried out. In
Roman law, the condiction, which is the type of actions _in personam_,
and thus the starting point historically of rights _in personam_ and
of theories of obligation, was at first a recovery of a thing certain
or a sum certain due upon a promise of this sort. In juristic terms,
the central idea of the beginnings of liability is duty to make
composition for or otherwise avert wrath arising from the affronted
dignity of some personality desirous of vengeance, whether an injured
individual, a god or a politically organized society. Greek law and
Roman law give the name of "insult" to legally cognizable injury to
personality. Insult to a neighbor by injury to him or to one of his
household, insult to the gods by impious breach of the promise they
had witnessed, insult to the people by wanton disregard of the
undertaking solemnly made in their presence, threatened the peace and
order of society and called for legal remedy.
Lawyers begin to generalize and to frame conscious theories in the
later part of the stage of the strict law. At first these theories are
analytical rather than philosophical. The attempt is to frame general
formulas by which the rigid rules of the strict law may be reconciled
where they overlap or conflict or may be distinguished in their
application where such overlapping or conflict threatens. By this
time, the crude beginnings of liability in a duty to compound for
insult or affront to man or gods or people, lest they be moved to
vengeance, has developed into liability to answer for injuries caused
by oneself or done by those persons or those things in one's power,
and liability for certain promises made in solemn form. Thus the basis
of liability has become twofold. It rests on the one hand upon duty to
repair injury. It rests on the other hand upon duty to carry out
formal undertakings. It is enough for this stage of legal development
that all cases of liability may be referred to these two types and
that useful distinctions may be reached therefrom. Consideration of
why one should be held to repair injury, and why he should be held to
formal undertakings, belongs to a later stage.
Juristic theory, beginning in the transition from the strict law to
the stage of equity or natural law, becomes a force in the latter
stage. As the relations with which the law must deal become more
numerous and the situations calling for legal treatment become more
complicated, it is no longer possible to have a simple, definite,
detailed rule for every sort of case that can come before a tribunal,
nor a fixed, absolute form for every legal transaction. Hence, under
the leadership of philosophical jurists, men turn to logical
development of the "nature" or ideal form of situations and to ethical
ideas of what "good faith" or "good conscience" demands in particular
relations or transactions. The strict law, relying on rule and form,
took no account of intention as such. The words took effect quite
independently of the thought behind them. But as lawyers began to
reflect and to teach something more than a class or professional
tradition, as they began to be influenced by philosophy to give over
purely mechanical methods and to measure things by reason rather than
by arbitrary will, emphasis shifted from form to substance; from the
letter to the spirit and intent. The statute was thought of as but the
lawmaker's formulation of a principle of natural law. It was not the
_uerba_ that were efficacious, as in the strict law, which had
inherited the primitive faith in the power of words and thought of the
legal formula as if it were a formula of incantation possessing
inherent magical force. It was the _ratio iuris_, which transcended
words and formulas. So also the traditional rule was not a magic
formula discovered by our fathers. It was a customary expression of a
principle of natural law. Likewise the formal transaction was not a
bit of private magic employed to conjure up legal liability. It was
the clothing in legally recognized vestments of an intention to do
what reason and good faith demand in a given situation. When form and
intention concurred the promisor must answer for what he undertook.
When the form used did not express or went beyond the intention or was
the product of an apparent but not a real intention, the promisee was
not to be enriched unjustly at the promisor's expense on the sole
basis of the form. Moreover the duty was to be one of doing what good
faith demanded, not one of doing literally and exactly what the letter
of the undertaking called for. And although there was no express
undertaking, there might be duties implied in the relation or
situation or transaction, viewed as one of good faith, and one might
be held to a standard of action because an upright and diligent man,
who was his own master, would so act. Such is the mode of thinking in
the classical period of the Roman law and it is closely paralleled by
an independent development of juristic thought in the rise of equity
and the absorption of the law merchant in our law.
It was easy to fit the two categories, delict and formal undertaking,
which had come down from the strict law, into the new mode of thought.
The typical delict required _dolus_--intentional aggression upon the
personality or the substance of another. Indeed Aquilian _culpa_, in
which the fault did not extend to intentional aggression, is a
juristic equitable development. Hence when the legal was identified
with the moral, and such identification is a prime characteristic of
this stage, the significant thing in delict seemed to be the moral
duty to repair an injury caused by wilful aggression. The legal
precept was _alienum non laedere_. Also the duty to perform an
intentional undertaking seemed to rest on the inherent moral quality
of a promise that made it intrinsically binding on an upright man. The
legal precept was _suum cuique tribuere_. Thus liability seemed to
flow from intentional action--whether in the form of aggression or in
the form of agreement. The "natural" sources of liability were delict
and contract. Everything else was assimilated to one or the other of
them. Liability without fault was quasi-delictal. Liability imposed by
good faith to prevent unjust enrichment was quasi-contractual. The
central idea had become one of the demands of good faith in view of
intentional action.
In the nineteenth century the conception of liability as resting on
intention was put in metaphysical rather than ethical form. Law was
a realization of the idea of liberty, and existed to bring about the
widest possible individual liberty. Liberty was the free will in
action. Hence it was the business of the legal order to give the
widest effect to the declared will and to impose no duties except in
order to effectuate the will or to reconcile the will of one with the
will of others by a universal law. What had been a positive, creative
theory of developing liability on the basis of intention, became a
negative, restraining, one might say pruning, theory of no liability
except on the basis of intention. Liability could flow only from
culpable conduct or from assumed duties. The abstract individual will
was the central point in the theory of liability. If one was not
actually culpable and yet established legal precepts which were not to
be denied held him answerable, it was because he was "deemed"
culpable, the historical legal liability being the proof of
culpability. If he had not actually assumed a duty, and yet
established legal precepts which were not to be denied held him to
answer for it, this must be because he had assumed some relation or
professed some calling in which an undertaking to that effect was
"implied" or had participated in some situation in which it was
"implied,"--the implication being a deduction from the liability. The
bases of liability were culpable conduct and legal transaction, and
these came down to an ultimate basis in will. The fundamental
conception in legal liability was the conception of an act--of a
manifestation of the will in the external world.
Roman law and English law begin with a set of what might be called
nominate delicts or nominate torts. In Roman law there were _furtum_
(conversion), _rapina_ (forcible conversion) and _iniuria_ (wilful
aggression upon personality). All these involved _dolus_, i.e.
intentional aggression. The _lex Aquilia_ added _damnum iniuria datum_
(wrongful injury to property). Later there were added what might be
called the equitable delicts of _dolus_ (fraud) and _metus_ (duress).
Here also there was wilful aggression, and the delict of _dolus_ gets
its name from the intentional misleading that characterizes it in
Roman law as it does deceit in English law. In _damnum iniuria datum_,
a wider conception of fault, as distinguished from intentional
aggression, grew up by juristic development, and Aquilian _culpa_,
that is, a fault causing injury to property and therefore actionable
on the analogy of the _lex Aquilia_, furnished the model for the
modern law. All these may be fitted to the will theory and modern
systematic writers regularly do so. But noxal liability for injury
done by a child or slave or domestic animal did not fit it, nor did
the liability of a master of a ship, an innkeeper or a stable keeper
to respond without regard to fault. Liability for injury done by child
or slave or domestic animal was enforced in a noxal action on the
analogy of the action which lay for the same injury if done by the
defendant in person. Hence procedurally it seemed liability for a
delict involving intentional aggression, and it was possible to say
that there was fault in not restraining the agency that did the
injury, although no fault had to be shown nor could absence of fault
be shown as a defence. There was fault because there was liability,
for all liability grew out of fault. Such treadings on the tail of its
own argument are very common in legal reasoning. Likewise in the case
of the absolute liability of the master of a ship, the innkeeper and
the stable keeper, the institutional writers could say that they were
at fault in not having proper servants, although here also fault need
not be established by proof nor could want of fault be made a defence.
As procedurally these liabilities arose in actions on the facts of
particular cases, the jurists at first lumped them with many other
forms of liability, which were not in fact dependent on intention and
were enforced in actions _in factum_, as obligations arising from the
special facts of cases (_obligationes ex uariis causarum figuris_).
Later they were called quasi-delictual obligations and they are so
designated in the fourfold classification of the Institutes. Buckland
has remarked that in almost all of the liabilities included under
quasi-delict in the Institutes there is liability at one's peril for
the act of another, especially for one's servant, as in the noxal
actions, the _actio de deiectis et diffusis_ (for things thrown or
poured from buildings upon a way) and the _actio de recepto_ against
an innkeeper. In other words, in these cases one was held without
regard to fault for injuries incidental to the conduct of certain
enterprises or callings and for failure to restrain potentially
injurious agencies which one maintained.
Modern law has given up both the nominate delicts and quasi-delict, as
things of any significance. The French civil code made the idea of
Aquilian _culpa_ into a general theory of delictal liability, saying,
"Every act of man which causes damage to another obliges him through
whose fault it happened to make reparation." In other words, liability
is to be based on an act, and it must be a culpable act. Act,
culpability, causation, damage, were the elements. This simple theory
of liability for culpable causation of damage was accepted universally
by civilians until late in the nineteenth century and is still
orthodox. Taken up by text writers on torts in the last half of that
century, it had much influence in Anglo-American law. But along with
this generalization the French code preserved a liability without
fault, developed out of the noxal actions, whereby parents and
teachers may be held for injuries by minors under their charge,
masters for injuries by their apprentices, employers for injuries by
employees and those in charge of animals for injuries by such animals.
Also it provided an absolute liability for injury by a _res ruinosa_,
developed out of the Roman _cautio damni infecti_. In the case of
parents, teachers and masters of apprentices, there is only a
presumption of fault. They may escape by showing affirmatively that
they were without fault and that what happened could not have been
prevented by diligence on their part. In the case of employers no
excuse is admitted. The liability is absolute. In the case of
animals, fault of the victim, inevitable accident and _vis maior_ may
be shown affirmatively by way of defence. In the case of a _res
ruinosa_ there is no presumption of fault. But if the structure fell
or did injury because of a defect of construction or want of repair,
the owner is liable absolutely and may not show that he had no notice
of the defect and no reason to suspect it, or that it was not in his
power to prevent the structure from falling.
Thus it will be seen that French law came very near to a logically
consistent scheme of liability for fault, and civil liability for
fault only, throughout the whole delictal field. Employer's liability
remained absolute, and liability for animals but little short of
absolute. For the rest there was in certain cases an imposition of the
burden of proof that there had been no fault, leaving the ultimate
liability to rest upon a presumed fault, if want of fault was not
established. None the less this, the most thoroughgoing attempt to
make delictal liability flow exclusively from culpability--to make it
a corollary of fault and of fault only--fell short of complete
attainment of its aim. Recent French authors do not hesitate to say
that the attempt must be given over and that a new theory of civil
delictal liability must be worked out. Meanwhile the same movement
away from the simple theory of delictal liability for culpable
causation of damage had taken place elsewhere on the Continent.
Binding had subjected the _culpa-prinzip_ to thorough analysis, and
following him it had come to be rejected generally by recent German
and Swiss jurists.
In the common law, as has been said, we begin likewise with a set of
nominate torts--assault, battery, imprisonment, trespass on lands,
trespass on chattels, conversion, deceit, malicious prosecution,
slander and libel--developed procedurally through the action of
trespass and the action of trespass on the case. All of these, except
trespass on lands, trespass upon possession of chattels and
conversion, are cases of intentional injury. Trespass on lands,
trespass on chattels and conversion involve more than the general
security and must be considered in connection with ideas of property.
The social interest in security of acquisitions demands that we be
able to rely on others keeping off of our lands and not molesting our
chattels; that they find out for themselves and at their own risk
where they are or with whose chattels they are meddling. But even here
there must be an act. If there is no act, there is no liability. To
these nominate torts, each with its own special rules, coming down
from the strict law, we added a new ground of liability, namely,
negligence, going on a principle, not of duty to answer for
aggression, but of duty to answer for injuries resulting from falling
short of a legal standard of conduct governing affirmative courses of
action. Some, indeed, sought to give us a "tort of negligence" as a
nominate tort. But it was soon recognized that in negligence we have a
principle of liability dependent upon a standard, not a tort to be
ranged alongside of assault or imprisonment. Later, with the rise of
doctrines as to injury to advantageous relations and the failure of
negligence to account for all unintended harms of which the law
actually was taking note, we developed an indefinite number of
innominate torts. Today with the obsolescence of procedural
difficulties, there is no reason why we should not generalize, as the
civil law did at the beginning of the last century; and such a
generalization was attempted in the last third of the nineteenth
century. It became orthodox common law that liability was a corollary
of fault. So far as established common-law rules imposed a liability
without fault, they were said to be historical exceptions, and some of
our courts, under the influence of this theory, were willing to go a
long way in abrogating them. Liability, without regard to fault, for
the acts of servants and employees was reconciled with this theory by
the fiction of representation, exposed long ago by Mr. Justice Holmes
and later by Dr. Baty. Finally it came to be thought that no liability
without fault was not merely common law but was natural law and that
any legislative imposition of such liability was arbitrary and
unreasonable in itself and hence unconstitutional. On that theory,
the New York Court of Appeals held workmen's compensation
unconstitutional, and a minority of the Supreme Court of the United
States recently announced the same proposition.
Because of its implications for constitutional law, in view of the
increasing frequency of legislation imposing responsibility at one's
peril in certain enterprises, in the case of certain dangerous
agencies and in situations where it is felt that the loss should be
borne by all of us rather than by the luckless individual who chances
to be hurt, the basis of tort liability has become a question of
moment beyond the immediate law of torts. It is a practical question
of the first importance, as well as a theoretical question of
interest, whether we are to generalize our whole system of tort
liability by means of one principle of liability for fault and for
fault only, as the French sought to do and as we later sought to do
largely under their influence, or, on the other hand, are to admit
another source of delictal liability alongside of fault, as the French
law does in fact and is coming to do in theory, and as our law has
always done in fact. For in our law as it stands one may perceive
readily three types of delictual liability: (1) Liability for
intentional harm, (2) liability for unintentional culpable harm, (3)
liability in certain cases for unintended non-culpable harm. The first
two comport with the doctrine of no liability without fault. The third
cannot be fitted thereto. We must either brand cases of the third type
as historical anomalies, of which we are gradually to rid ourselves,
or else revise our notions of tort liability. Let us remember that the
nineteenth century was well advanced before we understood the subject
of negligence and that before we had convinced ourselves that no
liability without fault was orthodox common law, the highest court of
England had given absolute liability a new field by the decision in
_Rylands_ v. _Fletcher_. We are not questioning a long-established
dogma in Anglo-American administration of justice, therefore, when we
ask whether the orthodox theory of the last generation is adequate as
an analytical statement of the law that is, or as a philosophical
theory of the law that ought to be. My own belief is that it is
neither.