Front Page Titles (by Subject) ELEVEN: The Humanitarian Idea - The Ideal Element in Law
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ELEVEN: The Humanitarian Idea - Roscoe Pound, The Ideal Element in Law 
The Ideal Element in Law, ed. Stephen Presser (Indianapolis: Liberty Fund 2002).
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The Humanitarian Idea
Legal history shows a continually widening circle of recognized interests and continually more effective means of securing the interests recognized. Two conspicuous examples of recognition and securing of interests theretofore unknown to the law, in the two generations since I was admitted to the bar in 1890, will suffice for illustration. The “right of privacy,” the demand made by the individual that his private, personal affairs shall not be laid bare to the world and be discussed by strangers, a modern demand growing out of the conditions of life and extended means of communication and organized news-gathering agencies in the cities of today, was first urged in 1890.1 It was denied by the highest court of New York in 1902.2 For a time it was recognized indirectly by a theory of infringement of a property interest of breach of the terms of a contract. Sixty years later it could be said: “Modern decisions allow recovery in situations in which it is not possible rationally to use the older cases of recovery, and the interest is now recognized as having an independent existence.”3 Again the claim of the employee in industry to a vested right in his job, as a right to continue in the relation of employer and employee as a relation protected by law not simply a contractual claim during the term of a contract of employment, was not admitted by a majority of the Supreme Court of the United States as late as the second decade of the present century.4 Twenty years later by the National Labor Relations Act5 the interest was recognized and effectively secured and the statute was upheld by a majority of that court.6 The courts now talk about “the fundamental right to work for a living,” not a liberty of, if and as one likes, for whom one likes, if the employer agrees, but a right secured against the employer.7 These examples likewise illustrate how wide extensions in the area of recognized interests may be achieved without impairment of the stability of the legal order and without essential impairment of the system of authoritative body of precepts and technique of applying them (law in the second sense). But new wants and expectations pressing for and getting recognition may affect ideas of the end of the legal order.
As I pointed out in a former lecture, a newer and broader idea of security is indicated for a time when the world has ceased to afford boundless conspicuous opportunities which men only need to be free to seize in order to be assured of satisfaction of their reasonable expectations. Where there are on every side opportunities for freely exerting one’s will in pursuit of what he takes to be the goods of existence, security means an ordered competition of free wills in which acquisitive competitive self-assertion is made to operate with a minimum of friction and waste. Where this ordered struggle for existence does not leave opportunities at hand for every one, where the conquest of physical nature has enormously increased the area of human wants and expectations without corresponding increase in the means of satisfying them, equality ceases to mean equality of opportunity. Security ceases to mean security of freely taking advantage of opportunity. Men assert claims to an equality of satisfaction of wants which liberty of itself cannot afford them. They begin to assert claims to living a full life in the society of the time and according to the standards which liberty of itself cannot give them. When a generation which had been brought up in the nineteenth-century idea of complete liberty as the ideal relation among men began to speak of four fundamental freedoms of which the last two were freedom from want and freedom from fear a new idea was coming in, if not to replace, at least to include liberty as only an item in a larger idea. Instead of picturing men as ideally free to achieve justice we have been coming to think of them as ideally in that relation. Security, then, is security from all that keeps them from an ideal relation and keeps many of them far from finding themselves in it. The ideal of a world in which all can find themselves in that relation I have been calling the humanitarian ideal. The emphasis has gradually been shifting from liberty to humanity; from leaving men free to help themselves as they can, to aiding them by the institutions of civilized society to obtain a maximum satisfaction of their claims or desires or reasonable expectations in civilized society compatible with satisfaction of the whole scheme of such expectations with the minimum of friction and waste.
What this means for law in the second sense is brought out by changes in such fundamental subjects as torts, contracts, and liability which have gone on steadily in the present century and are still going on.
Let us turn first to the law of torts. When it was taken that the end of law was promoting and maintaining liberty, it was held that individual liberty ought not to be retained except to allow like activity of others. The line of adjustment of the free activities of each to the like free activities of all others was taken to be prevention of and reparation for culpable interference with person or property. In this way equality and security could be assured. We may call this the fault theory of liability. But the security thought of was security against menace to safety, health, peace and order, to acquisitions under the prevailing social and economic order, and to the stability of the legal transactions on which the economic order depends. With the coming of a new conception of security new theories of liability began to be urged. The two which seem to be devised for law proceeding along a new humanitarian path8 I am calling the insurance theory and the involuntary Good Samaritan theory. In practice, however, the former is used to justify what is in reality the latter.
Development of the law as to liability to answer for losses or injuries suffered by others has followed the lines indicated in the preceding lectures by the development of ideas as to the end or purpose of law.
When justice was thought of simply in terms of keeping the peace one who had caused injury to another was thought of as having threatened the peace in that he had awakened a desire of the injured person for vengeance which would lead him and his kindred to seek redress by force from the one who had caused injury and his kindred. Thus causing injury to another was a potential source of private war. Hence the beginnings of law endeavored to satisfy the desire of an injured person for vengeance. The injured person is required to accept a composition for his vengeance and is restrained from helping himself. The next step is to enable him to compel payment of the composition; to compel the wrongdoer to buy off his vengeance. The measure of what the injured party might recover was not the extent of the injury done him but the extent of the desire for vengeance awakened by the injury. The idea is not to restore to the injured person what he has lost by the injury but to give him enough to satisfy his feelings of indignation and induce him to desist from private war; and the tariff of compositions is graded on that principle.9 Hence in Anglo-Saxon law the established tariff of compositions provided for fifty percent more recovery where a bruise, even if much less severe, is not covered by the clothes than where one, even if much more severe, is covered by the clothes and so not visible to give rise to embarrassing questions derogatory to the victim’s dignity.10 In the same way the Welsh law distinguished between injuries leaving a conspicuous scar and those where the scar was not conspicuous.11
Gradually the idea of composition gave way to one of reparation. The idea of keeping the peace, as we have seen, was replaced by one of maintaining the social status quo and that required maintenance of individual expectations of ability to assume that others will commit no intentional aggressions upon them. Intentional aggressions are no longer simply threats to the peace. They are breaches of a social order in which men reasonably expect not to be subjected to them. Accordingly, both in Roman law and in Anglo-American common law the law begins with a series of carefully defined named torts by way of aggression upon the person or corporeal property: In Roman law, furtum, rapina, damnum iniuria datum, iniuria;12 in the common law: Assault and battery, false imprisonment, trespass on land, trespass as to chattels, conversion of chattels, malicious prosecution, slander, libel.13 A general principle as a starting point for dealing with new types of intentional aggression was not formulated till the last quarter of the nineteenth century. The now generally admitted proposition that one who intentionally does something on its face injurious to another is liable to repair the resulting damage unless he can establish a liberty or privilege under some public or social interest, was unheard-of when I studied torts in 1889 and was still debated as late as 1916.14
But in a developed civilized society intentional aggression was not the only threat to the general security. With increasingly minute division of labor those whose tasks were but cogs in the machinery of the economic order could not perform them effectively if continually subjected to unreasonable casting upon them of risk of injury by the want of care on the part of others. Roman law provided for culpably caused injuries to person or property. In the common law we came to provide for it by an action for injuries through negligence.
By this time the law as to liability to repair injuries took on a moral aspect. As set forth in a previous lecture, a theory of a universal law of nature which sought to identify law with morals obtained in the classical era of Roman law and in a like era in the law of Continental Europe and in English law in the seventeenth and eighteenth centuries. As men thought then, the basis of liability to repair an injury must be a moral wrong. Liability must follow from culpability. As Ames put it in 1908, contrasting the nineteenth-century law of torts with the older law which had not looked beyond causation of damage, “the ethical standard of reasonable conduct has replaced the unmoral standard of acting at one’s peril.”15 The French Civil Code in 1804 made the idea of fault 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.”16 In other words, liability must be based on an act and it must be a culpable act—culpability, causation and damage were the elements. French law came very near to a logically consistent system of liability for fault and civil liability for fault only throughout the whole of what we should call the law of torts. Except for employer’s liability and an all but absolute liability for damage by animals,17 and in certain cases an imposition of the burden of proof that there had been no fault, there was a thoroughgoing attempt to make delictal liability flow exclusively from culpability. But a generation ago French text writers did not hesitate to say that the attempt had failed and that a new theory must be worked out,18 and the same movement away from the simple theory of liability only for culpable causation of damage went on elsewhere on the Continent. It came to be rejected generally by German and Swiss jurists.19
In Anglo-American law in the last century the doctrine of liability for and only for culpable causation of damage seemed to stand upon the received theory of justice as a maximum of freedom of action consistent with like freedom of action of all others. Free exertion of the will by every one was to be the rule unless the will was exerted culpably. Such was the orthodox doctrine as it was taught me in 1889. But at that time the teacher of the law of torts had much trouble with a number of rules surviving from the medieval liability for mere causation. For example, there was absolute liability for damage done by trespassing cattle.20 There was absolute liability where one maintained wild animals which did damage.21 Also there were old cases where it had been held that one must at his peril restrain things he maintained though there was no nuisance and he was not negligent.22 In England in 1868 this type of liability was extended to a case where one maintained a reservoir on his land and without negligence the water escaped and did damage to a neighbor.23 Also there was the established doctrine of respondeat superior by virtue of which a master or employer was liable without regard to fault for the acts of servants or employees in the scope of their employment. It is true this last doctrine was reconciled with the doctrine of liability only for fault by the fiction of representation, long ago exposed by Mr. Justice Holmes,24 and now given up by the teachers of the law of agency.25 Moreover, teachers of the law of torts and writers on the subject in the later years of the last century regarded the old cases as to animals as historical survivals destined to be given up.26 Strong American courts refused to follow Rylands v. Fletcher,27 text writers agreed in doubting or rejecting its doctrine,28 and in 1894 Sir Frederick Pollock thought he saw a tendency in the English decisions to find subtle distinctions in the facts to take cases out of the rule of that case and prophesied that it would become slowly but surely choked and crippled by exceptions.29 On the contrary, the historical absolute liability of those who maintain dangerous animals and for trespassing animals, supposed to be a disappearing anomaly, has shown unsuspected vitality. The one has been applied to the very verge in England,30 while the other has been applied to collateral consequences of the trespass.31 Moreover, the English courts in the present century have consistently followed Rylands v. Fletcher, applied it to new situations of fact,32 and even in one case went so far as to apply it by analogy to what in America we should call an automobile tourists’ camp where those who came to the camp habitually committed trespasses in the neighborhood amounting to nuisance.33 American courts have more and more adopted and applied the doctrine, and liability without fault is well established on both sides of the water.34
As was pointed out in a prior lecture, the doctrine that liability must flow from fault was so connected with the will theory and the idea of maintaining individual free self-assertion that it came to be regarded as a proposition of natural law. But if instead of beginning with the individual free will we begin with the wants or expectations involved in life in civilized society we come to a very different result. Just as men cannot effectively go about their several businesses in a society dependent upon a minute division of labor if they must constantly be on guard against the aggressions or want of foresight of their neighbors, 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 in what men fail to do, in not restraining things they maintain or agencies they employ which may get out of hand and do damage, quite as much as in what they do and the way in which they do it.
Thus far, the social interest in the general security is behind every step in the development of liability to repair injury. But some recent developments must give the systematic jurist pause. One is a movement to do away with the doctrine of non-liability for the torts of an independent contractor and impose a liability on the owner with whom he contracts although the latter has no control over him.35 Second, there are suggestions of imposing an absolute liability on the maker of a manufactured article put on the market for an injury it causes in the hands of an ultimate purchaser without regard to negligence in producing or marketing it. Third, there are suggestions of extension of the principle and method of the Workmen’s Compensation Law to accidents in transportation by public utilities and also to motor vehicle accidents generally. Fourth, there is persistent suggestion of shifting all loss or damage falling on those not in an economic position to bear them well to some one else in a better economic position. Some of the things argued under the first three heads seem at times to come in the end to or very close to the fourth. But that is juristically so revolutionary that we may well take it, as a general proposition, up first since, if it can hold at all, it can serve for an all-embracing theory of liability.
Shifting of loss according to the economic status of the parties, was suggested in the first draft of the German Civil Code (1887) in a proposed section as follows: “§ 752. One who is not liable. . . for the injury caused by him because there was no intention or negligence on his part shall nevertheless be liable in damages to the extent equity requires this in view of the facts of the case, in particular in view of the property status of the parties provided the person causing the injury is not deprived thereby of means of subsistence.” This part was left out of the final draft (1896, took effect 1900) and the section (§ 829) in the Code finally provided for compensation from the property of a minor tortfeasor, where his parents or guardian were not culpable, determining the equity of the person injured to compensation by his property status. It is noteworthy that under the Nazi regime there was a proposal to enact the rule originally proposed in the draft of 1887.36 The idea of equitable liability (Haftung aus Billigkeit) was argued somewhat in Germany. But it was carried much further in the Soviet Civil Code (1922).
Seeking to lay out a new path for social justice those who drafted the Soviet Civil Code provided for the court a power of “making the wealthy pay where the poor are absolved.”37 The Code reads: “§ 406. In situations where under §§ 403–405,38 the person causing the injury is not under a legal duty to repair, the court may nevertheless compel him to repair the injury, depending upon his property status and that of the person injured.”
“§ 411. In determining the amount of compensation to be awarded for an injury, the court must take into consideration the property status of the party injured and that of the party causing the injury.”
Although workmen’s compensation could be referred to the general security on the idea that holding the employer absolutely liable will impel him to the utmost vigilance and diligence to prevent injury to those in his employ, nevertheless it is in reality a radical departure from the law of the past in that it does not proceed upon maintenance of the general security but rather upon an idea that accidents are inevitable in the course of employment in the industrial society of today and that the burden of this risk should not be borne by the employee. It proceeds upon a humanitarian idea that we all of us ought to bear the risk of injuries which will inevitably fall on some of us in the vicissitudes of civilized life and not leave them to the luckless individual who chances to be hit. It goes beyond the principles of liability thus far considered. Extension of its principle and methods to accidents in the operations of railroads, trolley lines and bus lines,39 and, as others propose, to all motor vehicle accidents, would take a huge domain of litigation out of the law of torts, if not out of the law, by entrusting its administration to administrative agencies rather than to the courts.
How is it with the other recent proposals: That as to the doctrine of the independent contractor and that as to liability of the maker of manufactured articles which, let us say, explode in the hands of a servant of the ultimate purchaser? Do these merely propose extended application of the now recognized principle of liability without fault? May they be referred, as the law of torts as it stands today may be referred to maintenance of the social interest in the general security? It would seem that we must answer these questions in the negative. Can we say that in life in civilized society men must be able to assume that those who employ a contractor over whom they have no control will nonetheless prevent the contractor from independently subjecting others to unreasonable risk of injury? Where there is control over the person or thing causing injury, imposing liability on the one who has control constrains him to vigilance and diligence to exercise that control to prevent injury to others.40 To impose an absolute liability, where there is no control, is to make the person on whom it is imposed an involuntary Good Samaritan. Where one employs an independent contractor to do something which he is himself bound to do, the general security is involved. One cannot be allowed to avoid his duty by employing an independent contractor to do it for him. The social interest in the general security requires, if he does not do it himself, that he do it through some one he can control. If not, he has not done his duty of maintaining the general security and should be held. This exception to the doctrine of the independent contractor is sufficiently within the principle of liability. To extend liability to everything done by an independent contractor will require finding a new principle.
As to the second proposal it will be well to consider the leading case in which it was advanced.41 A bottle of Coca Cola exploded when taken out of the refrigerator by the servant of the ultimate purchaser. It had been put on the market by the manufacturer after, let us say, it had been manufactured with due care and thoroughly inspected to discover hidden defects. There was no proof of the cause of the explosion and nothing in the fragments of the bottle to show it was defective when put on the market. In the actual case the court properly applied the doctrine of res ipsa loquitur. The accident, it appeared, could not have happened if the bottle, charged under high pressure, had been properly made and thoroughly inspected for defects before it was put on the market. The making, filling, and inspecting were under the sole control of the manufacturer. Hence there was a necessary inference of negligence, no other ground of negligence appearing. So far we are proceeding on maintaining the general security.
But one of the state judges of today suggested going further. He said: “. . . I believe that the manufacturer’s negligence should no longer be singled out as the basis of a plaintiff’s right to recover in cases like the present one. In my opinion it should now be recognized that a manufacturer incurs an absolute liability when an article he has placed on the market, knowing that it is to be used without inspection, proves to have a defect that causes injury to human beings. . . . Even if there is no negligence, however, public policy demands that responsibility be fixed wherever it will most effectively reduce the hazards to life and health inherent in defective products that reach the market. It is evident that the manufacturer can anticipate some hazards and guard against the recurrence of others, as the public cannot. Those who suffer injury from defective products are unprepared to meet its consequences. The cost of an injury and the loss of time or health may be an overwhelming misfortune to the person injured, and a needless one, for the risk of injury can be insured by the manufacturer and distributed among the public as a cost of doing business. It is to the public interest to discourage the marketing of products having defects that are a menace to the public. If such products nevertheless find their way into the market it is to the public interest to place the responsibility for whatever injury they may cause upon the manufacturer, who, even if he is not negligent in the manufacture of the product, is responsible for its reaching the market. However intermittently such injuries may occur and however haphazardly they may strike, the risk of their occurrence is a constant risk and a general one. Against such a risk there should be general and constant protection and the manufacturer is best situated to afford such protection.”42
It will have been seen that absolute liability of the manufacturer is rested on three grounds: (1) maintenance of the general security, (2) ability of the manufacturer to pass the loss on to the public in the price of manufactured articles, and (3) that the injured person may not be able to bear the loss and it can best be borne by the manufacturer.
As to the first point, it is a gratuitous assumption that the product which may have gone through many hands from the factory to the ultimate buyer, left the factory in a defective condition which caused the injury. If it did and the product was under the sole control of the manufacturer and the defect could not have existed when the article was put on the market, then the doctrine of res ipsa loquitur would govern as the court rightly decided in the case under discussion. Under the assumption that the explosion was due to the condition of the bottle when it left the bottling works there was logical proof of negligence on the part of one in sole charge of the situation where there was nothing to avoid the inevitable inference.43 The general security is amply provided for in such cases by the law of torts as it stood in the last century.
As to the second point, it raises the question as to the so-called insurance theory of liability, which will be taken up in detail presently.
As to the third ground of proposed imposing of absolute liability upon the manufacturer, it is in effect the proposition behind section 406 of the Soviet Civil Code. It imposes an absolute liability on the basis of the comparative economic status of the parties. As I have been in the habit of putting the matter, it makes the manufacturer an involuntary Good Samaritan. In order to relieve one whose economic status is unequal to bearing the loss it seeks to find some one else who can or who can better sustain it. It should be noted, however, that Soviet administration of justice in effect gave up section 406 of the code as not practicable. The Supreme Court held that in the absence of causation it had no rational sense; that one who did not cause the injury could not be sued.44
All this does not mean, however, that we must wholly reject the proposals as to giving up the independent contractor doctrine, as to extending the principle and methods of the Workmen’s Compensation Act to accidents in transportation and injuries in the operation of motor vehicles, or as to imposing absolute liability upon manufacturers. We are not bound to fight a hard rear-guard action against such extensions such as jurists long fought in vain against a general principle of liability without fault. It must be asked whether we can find a possible basis for them, either a common basis with workmen’s compensation, or one on which some at least may stand independently.
Some argument might be made for resting workmen’s compensation on maintaining the general security if it were not for the way in which we are more and more today removing the bar of contributory negligence over the whole field of liability. One might argue that as a certain number of accidents are certain to occur in all enterprises in which men are employed, it is a reasonable mode of minimizing the risk to impose an absolute liability to repair resulting injury or loss. The conclusive answer to this, however, is that the bar of contributory negligence, by the same reasoning, should stimulate a high degree of vigilance and diligence on the part of the employees to avoid accidents since if they fail in due care for their own safety the risk of injury will fall wholly or largely upon them. Not only in workmen’s compensation but on every side of the law of liability, contributory negligence as a defense has been steadily giving way. We have moved a long way from the doctrine which was much discussed when I studied the law of torts sixty-three years ago, that a plaintiff must, in order to recover, aver and prove that he acted with due prudence and diligence and did not contribute by his own negligence to the injury of which he complains.45 In two generations it became generally established that contributory negligence was an affirmative defense to be pleaded and proved as such. In that time we have seen the scope of that defense greatly narrowed by the doctrine of the last clear chance. We have seen contributory negligence, after allowing it as a bar at first and then gradually limiting its application, finally discarded in the domain of workmen’s compensation, largely eliminated in employer’s liability legislation, and finally, where it still holds on deprived of much efficacy in practice by statutory adoption of a doctrine of comparative negligence or statutory provision for mitigation of damages in proportion to the negligence of the parties.46 As to the practical operation of this last step toward elimination of the common-law bar, experienced observers tell me that under the statutes the wise jury of today, having determined to give the plaintiff $10,000 find he has suffered injury to the extent of $13,500 and then find further that in view of his contributory negligence the recovery should be mitigated in the amount of $3500. Contributory negligence is a disappearing defense.
While workmen’s compensation might have been thought of as standing between the old idea of maintaining the general security and some new idea of liability to repair injury, it has actually broken definitely with that idea. The principle behind it is one growing in the law of torts which may yet come to include the three recently proposed changes considered above and eventually either by legislation or judicial decision much more.
Sooner or later we must consider the effect on law of the rise of the service state, the state which does not limit its activities to maintaining peace and order, upholding the general security, and assuring freedom to take advantage of opportunities for acquisition as they present themselves, but instead seeks to secure to all men directly the fulfillment of their expectations. Its advocates recognize no limits to what the state can do to promote human welfare—to provide for all men fulfillment of their expectations in life in society. Much as we may make fun, as I have been inclined to do, of a broad program of mending all human ills and taking care of all human wants, unless perhaps the welfare hereafter of our immortal souls, it must be admitted that that achievements of science in the past hundred years, and especially in the past fifty years, justify some sanguine faith in the efficacy of effort. A generation which has seen the coming of the motor vehicle, wireless, the radio, television, air transportation to every part of the world at incredible speed, and, above all, has seen physicists divide the indivisible, may well doubt whether the impossible, or what has been held impossible, may not be made possible by planned effort in law.
Today throughout the world the idea of satisfying the wants of men in civilized society is leading to a broad humanitarian conception both of liability in tort and of liability upon contract. Confining ourselves for a moment to the former, there is an idea that the law can be made to secure us all against the losses and injuries incident to life in society in a crowded world so that no one shall find himself deprived by accident or mischance of the expectation of individual conditions of life, political, physical, cultural, social and economic, but shall rather find himself not merely secured in these expectations but restored to the full measure of them when loss or injury or frustration befalls him. I am not arguing for such a political and juristic Utopia. But I submit that it is an ideal, a picture, that men have before them today increasingly, that it is something that is affecting and is bound further to affect the law, and that it calls for serious consideration by jurists.
One way in which this ideal has developed in juristic thought is in what has been called the insurance theory of liability. It is a noble humanitarian conception that the misfortunes of each of us should be borne by all of us. The ills that will inevitably affect some of us in life in civilized society ought to be borne by us all. The common purse should be available to aid the luckless victim of injuries caused culpably by no one, or even caused by no one, or perhaps even caused in whole or in part by the unfortunate victim himself. But in view of the ever multiplying services performed by the service state we shrink from imposing the burden of wholesale reparation of all injuries upon the proceeds of taxation. The insurance theory of liability is an ingenious and plausible evasion of putting the burden upon the public directly, as the humanitarian ideal demands it ought to go. We are told that we are all to insure each, but that this does not mean that all the ills of each are to be repaired directly out of the public purse. By imposing absolute liabilities upon utilities, industries, manufacturers, and then why not upon agricultural producers, who employ workers, we impose it ultimately on the public. The utility in rates for services, the industry by prices for manufactured articles, and the farmer in prices for products, can pass on to all of us the loss we have put upon him temporarily. I have said this is ingenious and plausible. But look into it more deeply in its actual application. As it actually operates in the state of today, is the loss really passed back to us who are in theory ultimately to bear it? In fact in the bureau organization of the service state the proposition as to passing damages for losses incurred by no one’s fault on to the public by way of employer or public utility or industrial enterprise is fallacious. One bureau or commission fixes rates for service. Another fixes rates for public utilities. Another fixes or may be fixing prices. Another has control of wages and hours. A jury or some special administrative agency fixes responsibility and assesses the damages or the amount of accident compensation. Each of these agencies operates independently, subject to no coordinating power. Those that control rates and prices are zealous to keep the cost to the public as low as may be. Those that control the imposition of liability are apt to be zealous to afford the maximum of relief to the injured or to their dependents. With continual pressure upon industry and enterprise to relieve the tax-paying public of the heavy burden that our recent humanitarian programs involve, the practical result is likely to be that the burden is shifted arbitrarily to the most convenient victim. There is little, if any, validity in the proposition that compensation for loss and injury without fault of the utility or enterprise and without regard to the general security is passed on to the public.
Moreover, in the case of industrial enterprises each enterprise is and is compelled by law to be in competition with others. If the burden of loss without fault and for matters out of its control is cast upon it, competition will prevent it from recouping the loss by what it charges for products, since if it raises prices of its products it will lose its business to its competitors. And if we feel that all losses are to be made good to every one, the entrepreneur, who finds his enterprise burdened with ruinous damages without his fault and for what he has no power to prevent, may claim that he too has suffered a serious loss for which our humanitarian principle should afford him relief.
I fear greatly that we are actually, though not in theory, going on some assumed but covered up jural postulate such as this: “In civilized society men are entitled to assume that they will be secured by the state against all loss or injury, even though the result in part or whole of their own fault or improvidence, and to that end that liability to repair all loss or injury will be cast by law upon some one deemed better able to bear it.” This was the idea of section 406 of the Soviet Civil Code. But, as we have seen, that provision proved unworkable on its own ground and there is nothing to lead us to assume that it would work better elsewhere in the world under conditions less favorable to its underlying idea.
It has been suggested that a tendency of juries to render verdicts on the basis of relative economic status and ability to pay is a reason for frank recognition, by expressly imposing absolute liability for all loss or damage, of what has long been the law in action. But apart from the want of sound policy in adding unchecked unrational extensions to unrational action of juries in cases arousing sympathy, unrational jury verdicts whenever carried beyond the bounds of “common right and reason” are subject to correction where an unrational rule of wholesale absolute liability would not be. The deceptive proposition that we are all of us insuring each of us by imposing loss and damage upon some one able to bear it makes for growing acceptance of a general doctrine of absolute liability. It has been proposed to incorporate it in the commercial code under the auspices of the Commissioners on Uniform State Laws and the American Law Institute.47 Also the ground on which a teacher in one of the great American law schools argues for abolition of the doctrine of the independent contractor in the law of agency is that frequently the independent contractor has no means sufficient to be reached on execution. Hence, we are told, losses and injuries are left unrepaired, which must not be.48 In the same spirit a judge of one of the most important American courts intimates that the requirement that one who is required to repair a loss must have caused it is artificial and should be abrogated.49 But note what this may mean. Suppose a man determines to commit suicide but wishes to provide for his dependents. He stands at the street corner waiting for a heavy truck as the chosen agent of self-destruction. When one comes along he throws himself beneath its wheels and is killed. If causation and fault as prerequisites of liability are eliminated must not the transportation company repair the loss to the widow and children? We are not looking squarely at all the facts if we turn to a wholesale establishing of liability without regard to fault or causation or control of the situation in the belief that in so doing we are ourselves taking on the burden of repairing all loss and damage suffered by our fellow men. If leaving the luckless victim of loss or injury not attributable to wrongful causation by any one, or failure of any one to exercise a control which he had over the circumstances of the injury, to bear the risk is not satisfying, yet achieving high humanitarian purposes by the easy method of using the involuntary Good Samaritan as the Greek playwright used the god from the machine is unedifying. There ought to be a better method of making the legal order effective for our humanitarian ideals than that of Robin Hood or that of the pickpocket who went to the charity sermon and was so moved by the preacher’s eloquence that he picked the pockets of every one in reach and put the contents in the plate.
But the idea that the state is to secure men against all loss or injury even though the result of their own fault or improvidence and to that end that burdens should be shifted to others better able to bear them is having consequences beyond the law of torts.
From the Greek philosophers who thought on social control and ethics and recognized stability and predictability of conduct as fundamental in civilized society, the morally binding force of a promise has been taken for a starting point. This appears in our everyday language. We say the upright man is trustworthy and reliable. We may rely on his constancy in business, political, and domestic relations. On the other hand, we say that the unrighteous man is untrustworthy, unreliable, unprincipled. We cannot trust or rely on his constancy or conformity to principle in business or political or family relations. Hence in political and legal philosophy a starting point has been to refer institutions to a basis in promises. The political theory of the founders of the American constitutional democratic polity held that the government derived its just powers from the consent of the governed. They found its basis in a social compact or social contract by which each of us was bound to his fellow men to uphold the order of society and adhere to its institutions and laws.
While morals from as far back as when men began to think and write about moral obligations insisted on good faith in the performance of promises the law long left enforcement to social control through morality and religion. Politically organized society long had its hands full in keeping the peace and maintaining the framework of the social order. But the law of Continental Europe took over from the church enforcement of promises made as legal transactions, and in spite of historical procedural difficulties, which took form in the requirement of “consideration,” Anglo-American law by 1950 had been coming pretty close to this result. Today, however, at the very time when the law had come substantially to the position of morals, that promises as such were to be kept, there was coming to be an increasing breakdown of the strict moral doctrine as to the obligation of a promise and a corresponding relaxation in the law.
A radically different view as to the obligation of a promise begins with orthodox Marxian socialism in the latter part of the nineteenth century. Since law was held to be a result of the division of society into classes and to be nothing more than a device for keeping an exploited class in subjection, Marx taught that it would disappear with the abolition of private property. Although the idea of disappearance of law has been given up, at least until remaking of society through the dictatorship of the proletariat is complete, the law of obligations, or of contracts in the widest sense of that term, which makes up the bulk of the law in the Continental codes and codes elsewhere on their model as well as in the uncodified law of the English-speaking world, finds no place as such in the Soviet codes.
Continental Europe has had a longer experience of the service state than we have had in English-speaking lands. Hence it is instructive to see how the law of contracts has fared in France. Two phenomena in connection with the law of contracts are discussed by French jurists today. One is what Josserand calls “contractual dirigism,”50i.e., making contracts for people instead of leaving contracts to be made by the parties for themselves. The other is a humanitarian idea of rendering a service to debtors or promisors by lifting or shifting burdens or losses so as to put them upon those better able to bear them. The two are closely related. When contracts are made for people by the service state they do not feel any strong moral duty to perform them. If the state makes the contract let the state perform it or compensate the disappointed promisee. Hence we read in the French law books of today about “the principle of favor to the debtor” and Ripert speaks ironically of what he calls “the right not to pay debts.”51
In 1804 the French Civil Code put emphatically the binding force of a contract: “Agreements legally formed take the place of law for those who have made them.”52 In part this represents the idea of the eighteenth-century law of nature. The legal was declaratory of the moral. The moral duty to keep a promise was therefore legal. But it derives also from the will theory of the nineteenth century. The free wills of the parties had made the law for them. The courts could no more change this than any other part of the law. Even the legislator was bound to respect it as to the contracts of the past. This was put in the Constitution of the United States.53 But this idea has been disappearing all over the world. In France it is gone entirely. This was covered up for a time by what Austin would have called spurious interpretation.54 By assuming that the will of the parties had not been fully expressed, courts could discover in contracts terms which were not there and were not in the minds of the parties, and could modify the terms which they found there. French legislation went further and gave the judges power to suspend or rescind contracts and change their conditions.55 The parties no longer make law for themselves by free contract. Partly, the French jurists tell us, a moral idea has been at work here. Contracts might be improvident or changes in the economic situation might affect the value of the promised performance or of the given or promised equivalent. This is akin to an idea we may see at work in the law of legal liability everywhere. It is a humanitarian idea of lifting or shifting burdens and losses so as to put them upon those better able to bear them. It is in line with Article 55a of the Charter of the United Nations, which binds the several members to promote “higher standards of living, full employment and conditions of social progress and development.” But it needs to be kept in balance with some other ends. Belief in the obligatory force of and respect for the given word are going, if not actually gone, in the law of today.
What French writers speak of as the moral or humanitarian doctrine of the disappearance of free contract has been manifesting itself gradually in Anglo-American law and has been gaining for a generation. There is a notable tendency in recent writing everywhere to insist, not as did the nineteenth century that the debtor keep faith strictly in all cases, even though it ruin him and his family, but that the creditor must take a risk also either along with or in some cases instead of the debtor. The Roman practice of giving a debtor in certain relations a benefit or privilege of not being held for the entire amount but only for so much as he could pay for the time being, was rejected by French law in the nineteenth century.56 But recent codes and legislation in Continental Europe have provided a number of restrictions upon the power of a creditor to exact satisfaction,57 which have been likened to the Roman privilege. Later they were referred to an idea of social justice, but they are now generally referred to a general public service of relieving debtors as a function of the state in order to promote the general welfare by freeing men from the burden of poverty.
In the United States homestead and exemption laws began to be enacted more than one hundred years ago58 and have been greatly extended in the present century, chiefly to protect the family and dependents of the debtor, but partly to secure the social interest in the individual life. There is, however, a changed spirit behind these extensions; a spirit of a claim upon society to relieve a man of the burdens he assumed freely, based upon a proposition that so to relieve him is a service to the whole community which the state has been set up to perform. A debtor is by no means always the underdog which high humanitarian thinking postulates. The creditor may be the guardian of orphans or trustee for a widow and the debtor a wealthy speculator who has taken on too much and seeks to shake off an inconvenient load. “Favor to debtors,” as the French put their policy of today, may be a great hardship upon creditors who in particular cases may conceivably make a more meritorious appeal.
How far the humanitarian doctrine is taking us is illustrated by a theory of contract now set forth by some teachers of law. They argue what is called the prediction theory of contract.59 It has not yet been applied to promissory notes. So far as I know, no one as yet has urged as the real text of a promissory note something like this: “Ninety days after date, for value received, I predict that I shall be able and willing to pay to John Doe on order five hundred dollars.” But the bonds and notes of municipalities, public utilities, and industrial corporations under American legislation of today as to reorganization come to something very like this, and there is ample provision for allowing every one to unload his obligations.60
Legislation impairing or doing away with the practical legal means of enforcing promises is now upheld on the basis of a doctrine that power of the legislature to relieve promisors of liability is implied in the sovereignty of the state.61 Such relief is one of the services the state is set up to render. But how does that comport with the limitation on state legislation prescribed in our federal constitution?62
After resumption of grants and revocation of franchises at every turn of political fortune in seventeenth-century England and of colonial legislation and state legislation in the economic depression after the American Revolution interfering with the enforcement of contracts and revoking charters, a prohibition of state legislation impairing the obligation of contracts (contract being used in its older, wider sense of legal transaction63 ) was put in the federal constitution. But that provision of the constitution has now for the largest part at least become a mere preachment; and the spirit that has led to substitution of a preachment for an enforceable constitutional provision has been affecting regard for the upholding of promises on every side. There is no longer a strong feeling of moral duty to perform. When to lack of this feeling is added impairment of the legal duty as well, it undermines a main pillar of the economic order.
For a generation legislation has increasingly limited the power of the creditor to collect, has created more and larger exemptions, and has added much to the once narrowly limited number who may escape through bankruptcy. This, too, has been rested avowedly on the powers of the service state. Statutes authorizing municipalities to “reorganize” their debts are upheld, as courts tell us, by “extending the police power into economic welfare.”64
But the movement to relieve promisors is not confined to legislation. The courts have been doing their share in building a body of doctrine as to frustration. A law teacher now tells us that there is “a real need for a field of human intercourse freed from legal restraint, for a field where men may without liability withdraw assurances they have once given.”65 Certainly the one-time general proposition that courts cannot make contracts over for the parties, that freedom of contract implies the possibility of contracting foolishly, is giving way to a power of the service state to relieve by judicial discretion persons of age, sound mind, and discretion from their contracts, or make their contracts over for them, or make their contracts easier for them. We are now told that even where a contract contains provisions as to the consequences of particular possible frustrations the courts may recognize other frustrations and apply other consequences to them.66 Often the words finally written in a contract after a long negotiation are the result of hard-fought compromises. They are not ideal provisions from either side but are what each is willing to concede in order to reach agreement. After some frustrating event has happened and a party who has suffered damage from non-performance is suing for it, to say that he consented and would have intended to insert a condition which a court conjures up to relieve the promisor is to make a new contract under a fiction of interpretation. This sort of interpretation, which has much vogue in the service state, is said by a judge of our highest American court to be a process of distillation. The meaning is distilled from the words. It might be suggested that distilling is often illicit and the product moonshine.
So much in everyday life depends upon reliance on promises that an everyday dependence will lose its effectiveness if promises are to be performed only when it suits the promisor’s convenience. A promise which imposes no risk on the promisor belongs to the prediction theory. It is not a promise. A promisee expects the promise to be performed even if it hurts. Why relieve only a promisor? Forty years ago sociologists were saying that social control through law having put down force in the relations of men with each other, must now put down cunning.67 But all depends on what is meant by cunning. Are we to say that superior knowledge, diligence, ability to foresee and judgment as to persons and things are to be allowed to have no influence in transactions? Undoubtedly men desire to be equal in all respects. But they also desire to be free. They desire to be allowed to use the qualities with which they were born and those they have developed. Carrying out satisfaction of the desire to be equal to its fullest development would reduce all activity to the lowest level. No one would be allowed to exert himself beyond the capacity of the least efficient. It is not in this way that civilization has been promoted or maintained. Men’s desire to be equal and their desire to be free must be kept in balance. Either carried to the extreme negates the other. But this need not lead us to condemn the humanitarian movement.
It took nearly two centuries of juristic thought to formulate in Kant’s theory of justice what had been started as a new path by the Spanish jurist-theologians. The prophet tells us that he that believeth shall not make haste. The humanitarian juristic thinking of today may well be the forerunner of an ideal of the end of law which shall make for advance in civilization.
[1. ]Warren and Brande, The Right to Privacy (1890) 4 Harvard Law Review 193.
[2. ]Roberson v. New York Folding Box Co., 171 N.Y. 538 (1902).
[3. ]4 American Law Institute, Restatement of the Law of Torts (1949) § 867.
[4. ]Coppage v. Kansas, 236 U.S. 1 (1915).
[5. ]Act of July 5, 1935, 49 Stat. L. 449, 29 U.S.C.A. §§ 151 ff.
[6. ]National Labor Relations Board v. Jones & Laughlin Steel Corp., 301 U.S. 1 (1937).
[7. ]James v. Marinship Corp., 25 Cal. 2d, 721, 731 (1944).
[8. ]I take this term from Mr. Justice Holmes, The Path of the Law, 10 Harvard Law Review 467 (1897).
[9. ]See examples in the oldest Roman law: Gaius, iii, §§ 183–92, iv, §§ 75–78; Twelve Tables, viii, 6, 1, 1 Bruns, Fontes Iuris Romani Antiqui (7 ed. 1909) 30, and in the Salic Law, xiv, 1–3.
[10. ]Laws of Ethelbert, 59–60.
[11. ]Wade-Evans, Welsh Medieval Law (1909) 190–91.
[12. ]Wrongful appropriations of property: theft (as a tort, conversion); robbery (forcible taking from the person), wrongful injury to corporeal property. Injuries to personality: iniuria (injury to the physical person or to honor). Inst. iv, 1, pr. and §§ 1–5; Inst. iv. 2; Inst. iv, 3; Inst. iv, 4.
[13. ]E.g., notice the subjects and order of treatment in Ames, Cases on Torts (1 ed. 1874). Blackstone treats named torts under the actions of trespass and trespass on the case. Commentaries on the Laws of England, vol. 3, Private Wrongs (1768).
[14. ]“That the intentional infliction of injury without justification invariably constitutes a tort may or may not be settled law.” Note, Equitable Relief Against Injurious Falsehoods, 30 Harvard Law Review 172, 174 (1916).
[15. ]Ames, Law and Morals (1908) 22 Harvard Law Review 97, 99.
[16. ]Art. 1382.
[17. ]Arts. 1384–85.
[18. ]2 Baudry-Lacantinerie, Précis de droit civil (1922) §§ 815–47; Demogue, Fault, Risk and Apportionment of Risk in Responsibility (1921) 15 Illinois Law Review 369.
[19. ]1 Cosack, Lehrbuch des bürgerlichen Rechts (8 ed. 1927) §§ 147–48; 5 Egger, Kommentar zum schweizerischen Zivilgesetzbuch (1916) 4–5.
[20. ]Tonawanda R. Co. v. Munger, 5 Denio (N.Y.) 255, 267–68 (1848).
[21. ]Filburn v. Peoples Palace Co., 25 Q.B.D. 258 (1890).
[22. ]See the older cases discussed by Blackburn, J., in Fletcher v. Rylands, L.R. 1 Ex. 265, 280–87 (1866).
[23. ]Rylands v. Fletcher, L.R. 3 H.L. 330 (1868).
[24. ]Holmes, Agency (1891) 4 Harvard Law Review 345, 353–64.
[25. ]Seavey, Studies in Agency (1949) 147 ff.
[26. ]“The doctrine is a stubborn archaism.” Pollock, Torts (8 ed. 1908) 497 note n.
[27. ]Brown v. Collins, 53 N.H. 442 (1873); Losee v. Buchanan, 51 N.Y. 476 (1873); Marshall v. Welwood, 38 N.J. Law, 339 (1876); Pennsylvania Coal Co. v. Sanderson, 113 Pa. St. 126 (1886); Judson v. Giant Powder Co., 107 Cal. 549 (1895).
[28. ]Salmond, Torts (4 ed. 1916) 233, arguing that the doctrine has no application if no one has been negligent; Bigelow, Torts (1889) 271–72, asserting a tendency in England to modify the doctrine; Cooley, Torts (1 ed. 1879) 573, arguing that if construction of a reservoir was done with due care escape of water becomes a question of negligence; Burdick, Torts (2 ed. 1908) 447, that the doctrine is emphatically rejected by most American courts; Bishop, Non-Contract Law (1889) § 839, note 3, “the reasoning so far as it proceeds on grounds other than negligence is. . . not the reasoning of the law.”
[29. ]Pollock, Law of Fraud in British India (1894) 53–54.
[30. ]Baker v. Snell  2 K.B. 352, 355.
[31. ]Thayer v. Purnell  2 K.B. 333.
[32. ]Charing Cross Electricity Supply Co. v. Hydraulic Power Co.  3 K.B. 772, 779, 795; Musgrove v. Pandolis  2 K.B. 43; 32 Halsbury, Laws of England, Hailsham’s ed. 199, 200, notes m and n.
[33. ]Attorney General v. Corke  Ch. 89.
[34. ]Winfield, Text-Book of the Law of Tort (5 ed. 1950) chap. 19; Prosser, Handbook of the Law of Torts (1941) §§ 59–61.
[35. ]Steffen, The Independent Contractor and the Good Life (1935) 2 University of Chicago Law Review 501.
[36. ]Nipperdey et al., Grundfragen der Reform des Schadenersatzrechts (1940).
[37. ]1 Gsovski, Soviet Civil Law (1948) 525.
[38. ]§ 403 lays down the doctrine of the French Civil Code, that one whose culpable act causes injury to another must repair the injury. § 404 provides for liability without regard to fault as to individuals and enterprises whose activities involve increased hazard for persons coming in contact with them unless the defendant can show the injury was due to the act of God or intent or gross contributory negligence of the person injured. § 405 provides that minors under 14 and persons of weak mind under guardianship are not liable for injuries they cause, but the person having the duty of supervision is to be liable. 2 Gsovski, op. cit., 207–9.
[39. ]Report by the Committee to Study Compensation for Automobile Accidents to the Columbia Council for Research in the Social Sciences (1932). See Sherman, Grounds for Opposing the Automobile Accident Insurance Plan, 2 Law and Contemporary Problems (1930) 598.
[40. ]As to the nature and extent of control as affecting liability, see Douglas, Vicarious Liability and Administration of Risk (1929) 38 Yale Law Journal 584.
[41. ]Escola v. Coca Cola Bottling Co., 24 California 2d, 453 (1944).
[42. ]Ibid. 461–62.
[43. ]Kearney v. London Brighton & South Coast R. Co., L.R. 5 Q.B. 411 (1870).
[44. ]1 Gsovski, op. cit. 526–27.
[45. ]Neal v. Gillett, 23 Conn. 437 (1855); Chicago R. Co. v. Levy, 160 Ill. 385 (1896); Planz v. Boston R. Co., 157 Mass. 377 (1892) but changed by Act of 1914, chap. 53; Myning v. Detroit R. Co., 67 Mich. 677 (1888); Curran v. Warren Chemical Mfg. Co., 36 N.Y. 153 (1867) changed by Laws of 1920, chap. 919.
[46. ]Leflar, The Declining Defence of Contributory Negligence (1941) 1 Arkansas Law Review 1.
[47. ]American Law Institute, Uniform Commercial Code, Final Draft, § 2.318 and commentary ¶s 3, 4.
[48. ]Supra note 35.
[49. ]Because under the Federal Safety Appliance Acts negligence and causation are not in issue, since there is a statutory absolute liability attached to the relation of employer and employee, does not justify pronouncing all idea of causation generally an outworn artificiality. O’Donnel v. Elgin J. & E.R. Co., 338 U.S. 384 (1949); Urie v. Thompson, 337 U.S. 163, 166 (1949); Carter v. Atlanta & St. A.B.R. Co., 338 U.S. 430, 437, 438 (1949); Affolder v. N.Y.C. & St. L.R. Co., 339 U.S. 96, 98 (1950).
[50. ]1 Planiol et Ripert, Traité élémentaire de droit civil français, rev. by Ripert (4 ed. 1952) no. 293; 2 id. no. 161.
[51. ]2 ibid. (1952) no. 1302.
[52. ]French Civil Code, art. 1134.
[53. ]“No state shall. . . pass. . . law impairing the obligation of contracts.” Const. U.S. art. I, sec. 10.
[54. ]2 Austin, Jurisprudence (5 ed. 1885) 989–1001.
[55. ]6 Planiol et Ripert, Traité pratique de droit civil français (1934) nos. 391–98.
[56. ]1 Baudry-Lacantinerie, Précis de droit civil (10 ed.) § 529, toned down somewhat in later editions, see 13 ed. § 550; Lavet, La benéfice de la competence (1927).
[57. ]German Civil Code §§ 528–29, 829; German Code of Civil Procedure, § 850.
[58. ]Thompson, Homesteads and Exemptions, §§ 40, 379 (1878).
[59. ]Gardner, An Inquiry into the Principles of the Law of Contracts (1946) 46 Harvard Law Review 1, 4–8.
[60 ]See the chapters added to the Bankruptcy Act within a generation: Chap. 8, Provisions for the Relief of Debtors, § 75 Agricultural Compositions and Extensions, § 77, Reorganization of Railroads; Chap. 9, Readjustment of debts of agencies or instrumentalities, i.e., municipal corporations, great and small; Chap. 10, Corporate Reorganization; Chap. 11, Arrangements (i.e., plans of a debtor “for the settlement, satisfaction, or extension of the time of payment of his unsecured debts”); Chap. 12, Real Property Arrangements; and Chap. 13, Wage Earner’s Plans. The Bankruptcy Act, enacted July 2, 1898, as Amended through December, 1952, with Annotations by Hanna and MacLachlan (5 ed. 1953).
[61. ]Home Building & Loan Assn. v. Blaisdell, 290 U.S. 398 (1934).
[62. ]Supra note 53.
[63. ]Fletcher v. Peck, 6 Cranch 87 (1810)—a grant of land; Trustees of Dartmouth College v. Woodward, 4 Wheaton 518 (1819)—charter of a college.
[64. ]When the idea of liberty was the measure of all things in jurisprudence, “the powers of government inherent in every sovereignty,” spoken of as the police power, were taken to be limited to the promotion of the public health, safety, and morals. From that point of view humanitarian legislation as a service to the public seemed to be an extension of the police power. But it had been seen before that the police power was nothing in reality but the residuum of governmental power after constitutional restrictions. Thayer, Legal Essays (1908) 27.
[65. ]“There has been an increasing liberality in determining what constitutes a justifiable impossibility or frustration of purpose.” 6 Corbin, Contracts (1951). The Restatement of the Law of Contract under the auspices of the American Law Institute (1932) says nothing about frustration. It speaks only of impossibility and failure of consideration. Professor Corbin two decades later devoted a whole chapter of nine sections and thirty-nine pages to the subject.
[66. ]The doctrine of frustration of contract was given legislative sanction in England in the Law Reform Frustrated Contract Act, 1943. It had been said that the doctrine was invented by the courts in order to supplement the defects in actual contracts. Lord Wright in Denny, Mott, and Dickson, Ltd. v. Fraser  A.C. 265, 274.
[67. ]This was a favorite saying of Professor Edward A. Ross.