An Introduction to the Philosophy of Law Part 3

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 a.s.similated 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 a.s.sumed 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 a.s.sumed 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 a.s.sumed some relation or professed some calling in which an undertaking to that effect was "implied" or had partic.i.p.ated 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 _d.a.m.num 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 _d.a.m.num 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 a.n.a.logy 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 s.h.i.+p, 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 a.n.a.logy 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 s.h.i.+p, the innkeeper and the stable keeper, the inst.i.tutional 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 cla.s.sification of the Inst.i.tutes. Buckland has remarked that in almost all of the liabilities included under quasi-delict in the Inst.i.tutes 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 d.a.m.ni 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 a.n.a.lysis, 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--a.s.sault, battery, imprisonment, trespa.s.s on lands, trespa.s.s on chattels, conversion, deceit, malicious prosecution, slander and libel--developed procedurally through the action of trespa.s.s and the action of trespa.s.s on the case. All of these, except trespa.s.s on lands, trespa.s.s upon possession of chattels and conversion, are cases of intentional injury. Trespa.s.s on lands, trespa.s.s 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 a.s.sault 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 unconst.i.tutional. On that theory, the New York Court of Appeals held workmen's compensation unconst.i.tutional, and a minority of the Supreme Court of the United States recently announced the same proposition.

Because of its implications for const.i.tutional 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 a.n.a.lytical 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.

Suppose that instead of beginning with the individual free will we begin with the wants or claims involved in civilized society--as it has been put, with the jural postulates of civilized society. One such postulate, I think we should agree, is that in civilized society men must be able to a.s.sume that others will do them no intended injury--that others will commit no intentional aggressions upon them.

The savage must move stealthily, avoid the sky-line and go armed. The civilized man a.s.sumes that no one will attack him and so moves among his fellow men openly and unarmed, going about his business in a minute division of labor. Otherwise there could be no division of labor beyond the differentiation of men of fighting age, as we see it in a primitive society. This postulate is at the foundation of civilized society. Everywhere _dolus_ is first dealt with. The system of nominate delicts or nominate torts, both in Roman law and in our law, proceeds on this postulate.

Is it not another such postulate that in civilized society men must be able to a.s.sume that their fellow men, when they act affirmatively, will do so with due care, that is with the care which the ordinary understanding and moral sense of the community exacts, with respect to consequences that may reasonably be antic.i.p.ated? Such a postulate is the basis of delictal _culpa_, using _culpa_ in the narrower sense, and of our doctrine of negligence. In Roman law and at one time in our law attempts were made to develop this postulate contractually. If in a transaction involving good faith--that is an informal legal transaction--one's conduct fell short of action to which the other party was justified by the understanding of upright men in expecting him to adhere, there was contractual _culpa_; there was a violation of a promise implied in the transaction and consequent liability. We borrowed something of this mode of thought from the Romans in our law of bailments and hence think indifferently in terms of tort or contract in that connection, although historically our action for such cases is delictal. In other connections also our law for a time sought to develop this postulate contractually by means of an "implied undertaking to use skill" for which one must answer if his skill fell short of that which the legal standard of affirmative conduct called for under the circ.u.mstances. Also in the Year Books an undertaking implied in certain relations or callings to use the skill or diligence which the relation or calling demanded is often made the basis of liability. But here the basis of liability must be found in a relation. The fiction of an undertaking to use the skill or diligence involved in a relation or calling is a juristic way of saying that one who deals with another in such a relation or with another who professes such a calling is justified in a.s.suming the skill and diligence ordinarily involved therein, so that the law holds those in the relation or engaged in the calling to that standard in order to maintain the general security. In other words another, though closely related, postulate of civilized society is involved.

It is worth a moment's digression to suggest that such things show how little the historical categories of delict and contract represent any essential or inherent need of legal thinking. Austin thought that "the distinction of obligations (or of duties corresponding to rights against persons specifically determined) into obligations which arise from contracts, obligations which arise from injuries, and obligations which arise from incidents which are neither contracts nor injuries,"

was a "necessary distinction," without which a "system of law evolved in a refined community" could not be conceived. This "necessary"

systematic scheme, which must be "a const.i.tuent part" of any imaginable developed legal system, is but the Roman division into obligations _ex contractu_, obligations _ex delicto_ and obligations _ex uariis causarum figuris_, in which the third category is obviously a catch-all. In trying to fit our law into this necessary scheme, we find three types of cases must go in the third: (a) Duties or liabilities attached by law to a relation, (b) duties imposed by law to prevent unjust enrichment, (c) duties involved in an office or calling. In the third of these our Anglo-American procedure allows recovery either _ex delicto_ or _ex contractu_. In the second our law sometimes goes on a property theory of constructive trust. In the first duties are sometimes sanctioned affirmatively by conferring legal powers or negatively by legal non-restraint of natural powers, as in the law of domestic relations, where the wife has a power to pledge the husband's credit for necessaries and the law does not interfere with the parent's administering reasonable "correction" to the child. Are we to say that these dogmatic departures of our law from the Roman scheme are inconceivable or that because of them our law is not matured or was not "evolved in a refined community?" Or are we to say that Austin derived his systematic ideas, not from scientific study of English law, but from scientific study of Roman law in a German university? Are we to say that we cannot "imagine coherently" a system of law which enforces warranties indifferently _ex contractu_ or _ex delicto_ as our law does, or which goes further and applies the contract measure of damage _ex delicto_ as does the law of Ma.s.sachusetts? But enough of this. What we have here is not any necessary distinction. It is rather what Austin calls a "pervading notion," to be found generally in the systematic ideas of developed legal systems by derivation from the Roman books. Roman law may have a contractual conception of obligation _ex delicto_--thinking of the delict as giving rise to a debt--and the common law a delictual conception of liability upon contract--thinking in terms of recovery of damages for the wrong of breaking a promise--without much difference in the ultimate results. The fundamental things are not tort and contract but justifiable a.s.sumptions as to the mode in which one's fellow men will act in civilized society in many different situations of which aggression and undertaking are but two common types.

Returning to our second postulate of due care in affirmative courses of conduct, we may note that in the society of today it is no less fundamental than the postulate of no intentional aggression.

Aggression is the chief if not the only form of anti-social conduct in a primitive society. Indeed, a Greek writer on law and politics of the fifth century B. C. knew of no other subject of legal precepts. But with the development of machinery and consequent increase in human powers of action, the general security comes to be threatened quite as much by the way in which one does things as by what he does.

Carelessness becomes a more frequent and more serious source of danger to the general security than aggression. Hence a set of nominate delicts requiring _dolus_ is supplemented by a theory of _culpa_.

Hence a set of nominate torts, characterized by intentional aggression, is supplemented by liability for negligence, and the latter becomes the more important source of legal liability in practice.

Must we not recognize also a third postulate, namely, that men must be able to a.s.sume that others, who keep things or maintain conditions or employ agencies that are likely to get out of hand or escape and do damage, will restrain them or keep them within proper bounds? Just as we may not go effectively about our several businesses in a society dependent on a minute division of labor if we must constantly be on guard against the aggressions or the want of forethought of our neighbor, so our complex social order based on division of labor may not function effectively if each of us must stay his activities through fear of the breaking loose or getting out of hand of something which his neighbor harbors or maintains. There is danger to the general security not only in what men do and the way in which they do it, but also in what they fail to do in not restraining things they maintain or agencies they employ which may do injury if not kept strictly in hand. The general security is threatened by wilful aggression, by affirmative action without due regard for others in the mode of conducting it, and by harboring and maintaining things and employing agencies likely to escape or to go out of bounds and do damage. Looked at in this way, the ultimate basis of delictal liability is the social interest in the general security. This interest is threatened or infringed in three ways: (1) Intentional aggression, (2) negligent action, (3) failure to restrain potentially dangerous things which one maintains or potentially dangerous agencies which one employs. Accordingly these three are the immediate bases of delictal liability.

Controversial cases of liability without fault involve the third postulate. Systematic writers have found no difficulty in reconciling the law of negligence with the will theory of liability and the doctrine of no liability without fault. Yet they must use the term fault in a strained sense in order to fit our law of negligence with its objective standard of due care, or the Roman cases of liability for _culpa_ judged by the abstract standard, into any theory of moral blameworthiness. The doctrine of liability for fault and for fault only has its roots in the stage of equity and natural law, when the moral and the legal are identified, and means that one shall respond for injuries due to morally blameworthy conduct upon his part. As Ames puts it, "the unmoral standard of acting at one's peril" is replaced by the question, "Was the act blameworthy?" But is an act blameworthy because the actor has a slow reaction time or was born impulsive or is naturally timid or is easily "rattled" and hence in an emergency does not come up to the standard of what a reasonably prudent man would do in such an emergency, as applied _ex post facto_ by twelve average men in the jury box? If our use of "culpable" here were not, as it were, Pickwickian, we should allow the defendant in such cases to show what sort of man nature had made him and to call for individualization with respect to his character and temperament as well as with respect to the circ.u.mstances under which he acted. As the Romanist would say, we should apply a concrete standard of _culpa_. But what the law is really regarding is not his culpable exercise of his will but the danger to the general security if he and his fellows act affirmatively without coming up to the standard imposed to maintain that security.

If he acts, he must measure up to that standard at his peril of answering for injurious consequences. Whenever a case of negligence calls for sharp application of the objective standard, fault is as much a dogmatic fiction as is representation in the liability of the master for the torts of his servant. In each case the exigencies of the will theory lead us to cover up a liability irrespective of fault, imposed to maintain the general security, by a conclusive imputation of fault to one who may be morally blameless. This is no less true of cases where we speak of "negligence _per se_."

Reconciliation of common-law absolute liabilities for the getting out of hand of things likely to escape and do damage with the doctrine of no liability without fault has been sought by means of a fiction of negligence, by p.r.o.nouncing them disappearing historical anomalies, by an economic interpretation that regards them as results of cla.s.s interest distorting the law, and by a theory of _res ipsa loquitur_.

Blackstone resorted to the first of these. "A man is answerable,"

he said, "for not only his own trespa.s.s but for that of his cattle also; for if by his negligent keeping they stray upon the land of another ... this is a trespa.s.s for which the owner must answer in damages." But note that the negligence here is a dogmatic fiction. No proof of negligence is required of the plaintiff, nor may the defendant show that there was in fact no negligence. The negligence is established by the liability, not the liability by the negligence.

In the last century it was usual to refer to absolute liability for trespa.s.sing animals, for injuries by wild animals and for injuries by domestic animals, known to be vicious, as disappearing rudiments of the old liability to make composition. The common American doctrine as to cattle running at large upon uncultivated lands seemed to confirm this. Yet one need but look beneath the surface to see that the English rule was rejected for a time in America, not because it was in conflict with a fundamental principle of no liability without fault, but because it presupposed a settled community, where it was contrary to the general security to turn cattle out to graze, whereas in pioneer American communities of the past vacant lands which were owned and those which were not owned could not be distinguished and the grazing resources of the community were often its most important resources. The common-law rule, without regard to its basis, was for a time inapplicable to local conditions. It is significant that as the conditions that made the rule inapplicable have come to an end the rule has generally re-established itself. In England it is in full vigor so that the owner of trespa.s.sing animals is held for disease communicated by them although he had no knowledge or reason to suppose they were diseased. A rule that can re-establish itself and extend its scope in this way is not moribund. It must have behind it some basis in the securing of social interests. Nor have the attempts of some American courts to narrow common-law liability for injuries by known vicious animals to cases of negligent keeping made much headway. The weight of American authority remains with the common-law rule and in England the Court of Appeal has carried the rule out to the extent of holding the owner notwithstanding the animal was turned loose by the wrongful act of an intermeddling third person. Nor have the predictions that the doctrine of _Rylands_ v. _Fletcher_ would disappear from the law through the courts' smothering it with exceptions--predictions commonly made at the end of the last century--been verified in the event. In 1914 the English courts refused to limit the doctrine to adjacent free-holders and they have since extended it to new situations. Moreover in America, where we had been told it was decisively rejected, it has been applied in the past decade by more than one court. The leading American cases that profess to reject the doctrine did not involve it nor did they involve the postulate of civilized society on which, as I think, it is based. Also the Court of Appeals of New York, the leading exponent of no liability without fault, had theretofore imposed a liability without regard to negligence in the case of blasting.

An ingenious explanation of the doctrine of _Rylands_ v. _Fletcher_ by means of the economic interpretation of legal history demands more notice. We are told that the English courts were manned by landowners or by judges drawn from the land-owning cla.s.s; that the doctrine of _Rylands_ v. _Fletcher_ is a doctrine for landowners and so was not accepted by artisans in the United States. But consider which states applied the rule and which rejected it. It was applied in Ma.s.sachusetts in 1872, in Minnesota in 1872, in Ohio in 1896, in West Virginia in 1911, in Missouri in 1913, in Texas in 1916. It was rejected by New Hamps.h.i.+re in 1873, by New York in 1873, by New Jersey in 1876, by Pennsylvania in 1886, by California in 1895, by Kentucky in 1903, by Indiana in 1911. Is New York a community of artisans but Ma.s.sachusetts a community of landowners? Did the United States begin to change from a country of artisans to one of landowners about the year 1910 so that a drift toward the doctrine began at that time after a steady rejection of it between 1873 and 1896? _Rylands_ v.

_Fletcher_ was decided in 1867 and is connected with the movement Dicey calls collectivism, which, he says, began in 1865. It is a reaction from the notion of liability merely as a corollary of culpability. It restrains the use of land in the interest of the general security. If this view is well taken, if it was an attempt to take account of the social interest in the general security in a crowded country, this may explain the reluctance with which it was received in the United States at first, where pioneer ideas, appropriate to a less crowded agricultural country, lingered at least to the end of the nineteenth century. In the actual American decisions, some follow _Rylands_ v. _Fletcher_ as an authoritative statement of the common law. Other cases go rather on the principle that liability flows from culpability. Agricultural states and industrial states alike divide along these doctrinal lines.

Ma.s.sachusetts and Pennsylvania, both industrial states, are on opposite sides. So are Texas and Kentucky, which are agricultural states. Ma.s.sachusetts and New Jersey, each with an appointive bench, are on opposite sides, and so are Ohio and New York, each with an elective bench. In truth the Ma.s.sachusetts court followed authority.

In New Hamps.h.i.+re Chief Justice Doe was not willing to go on mere authority and decided on the general principle that liability must flow from fault.

Another view is that the doctrine of _Rylands_ v. _Fletcher_ is a crude attempt, when negligence and the doctrine of _res ipsa loquitur_ were none too well understood, to apply the principle of the latter doctrine, and that those doctrines will suffice to reach the actual result. No doubt _res ipsa loquitur_ gives a possible mode of treating cases where one maintains something likely to get out of hand and do injury. For four possible solutions may be found for such cases. One is absolute liability, as in _Rylands_ v. _Fletcher_. Another is to put the burden of proof of due care on the defendant, as French law does in some cases and as is done by some American decisions and some statutes in case of fires set by locomotives. A third is to apply the doctrine of _res ipsa loquitur_. A fourth would be to require the plaintiff to prove negligence, as is done by the Supreme Court of New Jersey where a known vicious animal breaks loose. That the fourth, which is the solution required by the theory of no liability without fault, has found but two courts to uphold it, and that only in the case of vicious domestic animals, is suggestive. _Res ipsa loquitur_ may easily run into a dogmatic fiction, and must do so, if made to achieve the result of the doctrine of _Rylands_ v. _Fletcher_, which does not permit the defendant to go forward with proof, short of _vis maior_ or the unantic.i.p.ated unlawful act of a third person beyond defendant's control. The vitality and persistence of the doctrine against theoretical a.s.sault for more than a generation show that it is more than a historical anomaly or a dogmatic blunder.

Another type of common-law liability without fault, the so-called liability of the carrier as an insurer and the liability of the innkeeper, is relational and depends upon a different postulate.

Nineteenth-century courts in the United States endeavored to hold down the former, restricting it because of its inconsistency with the doctrine of liability as a corollary of fault. But it has proved to have abundant vitality, has been extended by legislation in some states to carriers of pa.s.sengers and has been upheld by recent legislation everywhere.

Two other types of liability, contractual and relational, must receive brief notice. The former has long done valiant service for the will theory. Not only liability arising from legal transactions but liability attached to an office or calling, liability attached to relations and liability to rest.i.tution in case of unjust enrichment have been referred to express or implied undertaking and hence to the will of the person held. But beneath the surface the so-called contract by estoppel, the cases of acceptance of a wrongly transmitted offer, the doctrine that a public utility has no general power of contract as to facilities or rates except to liquidate the terms of its relational duties in certain doubtful cases, and cases of imposition of duties on husband or wife after marriage by change of law, have caused persistent and recurring difficulties and call everywhere for a revision of our ideas. Also the objective theory of contract has undermined the very citadel of the will theory. May we not refer these phenomena, not to the will of the person bound, but to another postulate of civilized society and its corollaries? May we not say that in civilized society men must be able to a.s.sume that those with whom they deal in the general intercourse of society will act in good faith? If so, four corollaries will serve as the bases of four types of liability. For it will follow that they must be able to a.s.sume (a) that their fellow men will make good reasonable expectations created by their promises or other conduct, (b) that they will carry out their undertakings according to the expectation which the moral sentiment of the community attaches thereto, (c) that they will conduct themselves with zeal and fidelity in relations, offices and callings, and (d) that they will restore in specie or by equivalent what comes to them by mistake or unantic.i.p.ated situation whereby they receive what they could not have expected reasonably to receive under such circ.u.mstances. Thus we come back to the idea of good faith, the idea of the cla.s.sical Roman jurists and of the philosophical jurists of the seventeenth century, out of which the will theory was but a metaphysical development. Only we give it a basis in social philosophy where they sought a basis in theories of the nature of transactions or of the nature of man as a moral creature.

Looking back over the whole subject, shall we not explain more phenomena and explain them better by saying that the law enforces the reasonable expectations arising out of conduct, relations and situations, instead of that it proceeds upon willed action and willed action only, enforcing the willed consequences of declared intention, enforcing reparation for willed aggression and enforcing reparation for culpable carrying on of willed conduct? If we explain more and explain it more completely by saying that the ultimate thing in the theory of liability is justifiable reliance under the conditions of civilized society than by saying that it is free will, we shall have done all that we may hope to do by any theory.

V

Property

Economic life of the individual in society, as we know it, involves four claims. One is a claim to the control of certain corporeal things, the natural media on which human existence depends. Another is a claim to freedom of industry and contract as an individual a.s.set, apart from free exercise of one's powers as a phase of personality, since in a highly organized society the general existence may depend to a large extent upon individual labor in specialized occupations, and the power to labor freely at one's chosen occupation may be one's chief a.s.set. Third, there is a claim to promised advantages, to promised performances of pecuniary value by others, since in a complex economic organization with minute division of labor and enterprises extending over long periods, credit more and more replaces corporeal wealth as the medium of exchange and agency of commercial activity.

Fourth, there is a claim to be secured against interference by outsiders with economically advantageous relations with others, whether contractual, social, business, official or domestic. For not only do various relations which have an economic value involve claims against the other party to the relation, which one may demand that the law secure, but they also involve claims against the world at large that these advantageous relations, which form an important part of the substance of the individual, shall not be interfered with. Legal recognition of these individual claims, legal delimitation and securing of individual interests of substance is at the foundation of our economic organization of society. In civilized society men must be able to a.s.sume that they may control, for purposes beneficial to themselves, what they have discovered and appropriated to their own use, what they have created by their own labor and what they have acquired under the existing social and economic order. This is a jural postulate of civilized society as we know it. The law of property in the widest sense, including incorporeal property and the growing doctrines as to protection of economically advantageous relations, gives effect to the social want or demand formulated in this postulate. So also does the law of contract in an economic order based upon credit. A social interest in the security of acquisitions and a social interest in the security of transactions are the forms of the interest in the general security which give the law most to do.

The general safety, peace and order and the general health are secured for the most part by police and administrative agencies. Property and contract, security of acquisitions and security of transactions are the domain in which law is most effective and is chiefly invoked.

Hence property and contract are the two subjects about which philosophy of law has had the most to say.

In the law of liability, both for injuries and for undertakings, philosophical theories have had much influence in shaping the actual law. If they have grown out of attempts to understand and explain existing legal precepts, yet they have furnished a critique by which to judge those precepts, to shape them for the future and to build new ones out of them or upon them. This is much less true of philosophical theories of property. Their role has not been critical or creative but explanatory. They have not shown how to build but have sought to satisfy men with what they had built already. Examination of these theories is an illuminating study of how philosophical theories of law grow out of the facts of time and place as explanations thereof and then are given universal application as necessarily explanatory or determinative of social and legal phenomena for all time and in every place. It has been said that the philosophy of law seeks the permanent or enduring element in the law of the time and place. It would be quite as true to say that it seeks to find in the law of the time and place a permanent or enduring picture of universal law.

It has been said that the individual in civilized society claims to control and to apply to his purposes what he discovers and reduces to his power, what he creates by his labor, physical or mental, and what he acquires under the prevailing social, economic or legal system by exchange, purchase, gift or succession. The first and second of these have always been spoken of as giving a "natural" t.i.tle to property.

Thus the Romans spoke of them as modes of "natural acquisition" by occupation or by specification (making a species, i.e., creation).

Indeed, taking possession of what one discovers is so in accord with a fundamental human instinct that discovery and occupation have stood in the books ever since substantially as the Romans stated them. A striking example of the extent to which this doctrine responds to deep-seated human tendencies is afforded by the customs as to discovery of mineral on the public domain upon which American mining law is founded and the customs of the old whale-fishery as to fast-fish and loose-fish which were recognized and given effect by the courts. But there is a difficulty in the case of creation or specification in that except where the creation is mental only materials must be used, and the materials or tools employed may be another's. Hence Grotius reduced creation by labor to occupation, since if one made from what he discovered, the materials were his by occupation, and if not, the t.i.tle of others to the materials was decisive. This controversy as to the respective claims of him who creates by labor and him who furnishes the materials goes back to the Roman jurists of the cla.s.sical period. The Proculians awarded the thing made to the maker because as such it had not existed previously.

The Sabinians awarded it to the owner of the materials because without materials the new thing could not have been made. In the maturity of Roman law a compromise was made, and various compromises have obtained ever since. In modern times, however, the claim of him who creates has been urged by a long line of writers beginning with Locke and culminating in the socialists. The Romans spoke of what one acquired under the prevailing social, economic or legal system as held by "civil" acquisition and conceived that the principle _suum cuique tribuere_ secured the thing so acquired as being one's own.

Roman jurists recognized that certain things were not subject to acquisition in any of the foregoing ways. Under the influence of the Stoic idea of _naturalis ratio_ they conceived that most things were destined by nature to be controlled by man. Such control expressed their natural purpose. Some things, however, were not destined to be controlled by individuals. Individual control would run counter to their natural purpose. Hence they could not be the subjects of private owners.h.i.+p. Such things were called _res extra commercium_. They might be excluded from the possibility of individual owners.h.i.+p in any of three ways. It might be that from their nature they could only be used, not owned, and from their nature they were adapted to general use. These were _res communes_. Or it might be that they were made for or from their nature they were adapted to public use, that is use for public purposes by public functionaries or by the political community. These were _res publicae_. Again it might be because they had been devoted to religious purposes or consecrated by religious acts inconsistent with private owners.h.i.+p. Such things were _res sanctae_, _res sacrae_ and _res religiosae_. In modern law, as a result of the medieval confusion of the power of the sovereign to regulate the use of things (_imperium_) with owners.h.i.+p (_dominium_) and of the idea of the corporate personality of the state, we have made the second category into property of public corporations. And this has required modern systematic writers to distinguish between those things which cannot be owned at all, such as human beings, things which may be owned by public corporations but may not be transferred, and things which are owned by public corporations in full dominion. We are also tending to limit the idea of discovery and occupation by making _res nullius_ (e.g., wild game) into _res publicae_ and to justify a more stringent regulation of individual use of _res communes_ (e.g., of the use of running water for irrigation or for power) by declaring that they are the property of the state or are "owned by the state in trust for the people." It should be said, however, that while in form our courts and legislatures seem thus to have reduced everything but the air and the high seas to owners.h.i.+p, in fact the so-called state owners.h.i.+p of _res communes_ and _res nullius_ is only a sort of guardians.h.i.+p for social purposes. It is _imperium_, not _dominium_. The state as a corporation does not own a river as it owns the furniture in the state house. It does not own wild game as it owns the cash in the vaults of the treasury. What is meant is that conservation of important social resources requires regulation of the use of _res communes_ to eliminate friction and prevent waste, and requires limitation of the times when, places where and persons by whom _res nullius_ may be acquired in order to prevent their extermination. Our modern way of putting it is only an incident of the nineteenth-century dogma that everything must be owned.

It is not hard to see how the Romans came to the distinction that has obtained in the books ever since. Some things were part of the Roman's _familia_, were used by him upon the public domain which he occupied or were traded by him to those with whom he had legal power of commercial intercourse. He acquired them by discovery, by capture in war, by labor in agriculture or as an artisan, by commercial transactions or by inheritance. For these things private actions lay.

Other things were no part of his or of anyone's household. They were used for political or military or religious purposes or, like rivers, were put to use by everyone without being consumed thereby. As to these, the magisterial rather than the judicial power had to be invoked. They were protected or use of them was regulated and secured by interdicts. One could not acquire them so as to maintain a private action for them. Thus some things could be acquired and conveyed and some could not. In order to be valid, however, according to juristic theory the distinction must lie in the nature of things, and it was generalized accordingly.

In a time when large unoccupied areas were open to settlement and abundant natural resources were waiting to be discovered and developed, a theory of acquisition by discovery and appropriation of _res nullius_, reserving a few things as _res extra commercium_, did not involve serious difficulty. On the other hand, in a crowded world, the theory of _res extra commercium_ comes to seem inconsistent with private property and the theory of discovery and occupation to involve waste of social resources. As to the latter, we may compare the law of mining and of water rights on the public domain, which developed along lines of discovery and reduction to possession under the conditions of 1849 and the federal legislation of 1866 and 1872, with recent legislation proceeding on ideas of conservation of natural resources.

The former requires more consideration. For the argument that excludes some things from private owners.h.i.+p may seem to apply more and more to land and even to movables. Thus Herbert Spencer says, in explaining _res communes_:

"If one individual interferes with the relations of another to the natural media upon which the latter's life depends, he infringes the like liberties of others by which his own are measured."

But if this is true of air and of light and of running water, men will insist upon inquiring why it is not true of land, of articles of food, of tools and implements, of capital and even, it may be, of the luxuries upon which a truly human life depends. Accordingly, how to give a rational account of the so-called natural right of property and how to fix the natural limits of that right became vexed questions of philosophical jurisprudence.

Antiquity was content to maintain the economic and social _status quo_ or at least to idealize it and maintain it in an ideal form. The Middle Ages were content to accept _suum cuique tribuere_ as conclusive. It was enough that acquisition of land and movables and private owners.h.i.+p of them were part of the existing social system.

Upon the downfall of authority, seventeenth-and eighteenth-century jurists sought to put natural reason behind private property as behind all other inst.i.tutions. When Kant had undermined this foundation, the nineteenth-century philosophical jurists sought to deduce property from a fundamental metaphysical datum; the historical jurists sought to record the unfolding of the idea of private property in human experience, thus showing the universal idea; the utilitarian demonstrated private property by his fundamental test and the positivist established its validity and necessity by observation of human inst.i.tutions and their evolution. In other words, here as elsewhere, when eighteenth-century natural law broke down, jurists sought to put new foundations under the old structure of natural rights, just as natural rights had been put as a new foundation to support inst.i.tutions which theretofore had found a sufficient basis in authority.

Theories by which men have sought to give a rational account of private property as a social and legal inst.i.tution may be arranged conveniently in six princ.i.p.al groups, each including many forms. These groups may be called: (1) Natural-law theories, (2) metaphysical theories, (3) historical theories, (4) positive theories, (5) psychological theories and (6) sociological theories.

Of the natural-law theories, some proceed on a conception of principles of natural reason derived from the nature of things, some on conceptions of human nature. The former continue the ideas of the Roman lawyers. They start with a definite principle found as the explanation of a concrete case and make it a universal foundation for a general law of property. As it has been put, they find a postulate of property and derive property therefrom by deduction. Such theories usually start either from the idea of occupation or from the idea of creation through labor. Theories purporting to be based on human nature are of three forms. Some proceed on a conception of natural rights, taken to be qualities of human nature reached by reasoning as to the nature of the abstract man. Others proceed upon the basis of a social contract expressing or guaranteeing the rights derived by reason from the nature of man in the abstract. In recent thinking a third form has arisen which may be called an economic natural law. In this form of theory, a general foundation for property is derived from the economic nature of man or from the nature of man as an economic ent.i.ty. These are modern theories of natural law on an economic instead of an ethical basis.