An Introduction to the Philosophy of LawPound, Roscoe
Philosophy
An Introduction to the Philosophy of Law
Pound, Roscoe
Law -- Philosophy
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
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