An Introduction to the Philosophy of Law, Roscoe Pound [beach read book txt] 📗

its satisfactory operation require us to leave a wide margin of discretion in application, as in the standard of the reasonable man in our law of negligence and the standard of the upright and diligent head of a family applied by the Roman law, and especially by the modern Roman law, to so many questions of fault, where the question is really one of good faith. All attempts to cut down this margin have proved futile. May we not conclude that in the part of the law which has to do immediately with conduct complete justice is not to be attained by the mechanical application of fixed rules? Is it not clear that in this part of the administration of justice the trained intuition and disciplined judgment of the judge must be our assurance that causes will be decided on principles of reason and not according to the chance dictates of caprice, and that a due balance will be maintained between the general security and the individual human life?

Philosophically the apportionment of the field between rule and discretion which is suggested by the use of rules and of standards respectively in modern law has its basis in the respective fields of intelligence and intuition. Bergson tells us that the former is more adapted to the inorganic, the latter more to life. Likewise rules, where we proceed mechanically, are more adapted to property and to business transactions, and standards; where we proceed upon intuitions, are more adapted to human conduct and to the conduct of enterprises. According to him, intelligence is characterized by "its power of grasping the general element in a situation and relating it to past situations," and this power involves loss of "that perfect mastery of a special situation in which instinct rules." In the law of property and in the law of commercial transactions it is precisely this general element and its relation to past situations that is decisive. The rule, mechanically applied, works by repetition and precludes individuality in results, which would threaten the security of acquisitions and the security of transactions. On the other hand, in the handmade, as distinguished from the machine-made product, the specialized skill of the workman gives us something infinitely more subtle than can be expressed in rules. In law some situations call for the product of hands, not of machines, for they involve not repetition, where the general elements are significant, but unique events, in which the special circumstances are significant. Every promissory note is like every other. Every fee simple is like every other. Every distribution of assets repeats the conditions that have recurred since the Statute of Distributions. But no two cases of negligence have been alike or ever will be alike. Where the call is for individuality in the product of the legal mill, we resort to standards. And the sacrifice of certainty in so doing is more apparent than actual. For the certainty attained by mechanical application of fixed rules to human conduct has always been illusory.

IV Liability

A systematist who would fit the living body of the law to his logical analytical scheme must proceed after the manner of Procrustes. Indeed, this is true of all science. In life phenomena are unique. The biologist of today sometimes doubts whether there are species and disclaims higher groups as more than conveniences of study. "Dividing lines," said a great American naturalist, "do not occur in nature except as accidents." Organization and system are logical constructions of the expounder rather than in the external world expounded. They are the means whereby we make our experience of that world intelligible and available. It is with no illusion, therefore, that I am leading you to a juristic ultima Thule that I essay a bit of systematic legal science on a philosophical basis. Even if it never attains a final system in which the law shall stand fast forever, the continual juristic search for the more inclusive order, the continual juristic struggle for a simpler system that will better order and better reconcile the phenomena of the actual administration of justice, is no vain quest. Attempts to understand and to expound legal phenomena lead to generalizations which profoundly affect those phenomena, and criticism of those generalizations, in the light of the phenomena they seek to explain and to which they give rise, enables us to replace them or modify them or supplement them and thus to keep the law a growing instrument for achieving expanding human desires.

One of the stock questions of the science of law is the nature and system and philosophical basis of situations in which one may exact from another that he "give or do or furnish something" (to use the Roman formula) for the advantage of the former. The classical Roman lawyer, thinking in terms of natural law, spoke of a bond or relation of right and law between them whereby the one might justly and legally exact and the other was bound in justice and law to perform. In modern times, thinking, whether he knows it or not, in terms of natural rights and by derivation of legal rights, the analytical jurist speaks of rights in personam. The Anglo-American lawyer, thinking in terms of procedure, speaks of contracts and torts, using the former term in a wide sense. If pressed, he may refer certain enforceable claims to exact and duties of answering to the exaction to a Romanist category of quasi-contract, satisfied to say "quasi" because on analysis they do not comport with his theory of contract, and to say "contract" because procedurally they are enforced ex contractu. Pressed further, he may be willing to add "quasi tort" for cases of common-law liability without fault and workmen's compensation—"quasi" because there is no fault, "tort" because procedurally the liability is given effect ex delicto. But cases of duties enforceable either ex contractu or ex delicto at the option of the pleader and cases where the most astute pleader is hard pushed to choose have driven us to seek something better.

Obligation, the Roman term, meaning the relation of the parties to 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