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PREFACE

THE field of Torts (as none will doubt) stands in special need of a more exact and scientific treatment. The future should see an improvement in method. But it must begin with the present generation of students. By way of Preface, then, let a few Wishes here be recorded for their reflection. If the suggestions should seem radical, they can at least not be thought crude; for they proceed from a twenty years' study of the subject.

I. The first Wish is that we might proscribe, expel, and banish the obnoxious term "Torts," as the title of the subject. Never did a Name so obstruct a true understanding of the Thing. To such a plight has it brought us that a favorite mode of defining a Tort is to declare merely that it is not a Contract. As if a man were to define Chemistry by pointing out that it is not Physics nor Mathematics! No half-way measures will do; the name must go.

Names enough could be found. Let us agree for the moment on "General Rights."

II. A second Wish would be that we might take courage to break away from the traditional analysis of General Rights. Tradition tries (but it is futile) to group under each separate kind of harm or damage (Battery, Nuisance, Libel, etc.) all the rules of law applicable to that harm or damage. Thus the body of the law is divided (as it were) into perpendicular sections. But its true cleavage is into cross-sections, the Damage element, the Causation element, and the Excuse element. This is equally simple, and much more scientific and practical. Take for example the doctrine of Acting at Peril (or Negligence per se). It is commonly regarded as applying to trespasses to the person, to land, and to chattels. But as it may also be applied to defamation, to nuisance, and to infringement of copyright and patent, why not study all the instances in common? So too with Contributory Fault as an excuse; since it may be invoked not only for trespasses, but for injuries to domestic relations, to fair trade, and elsewhere, why not study all its bearings together? In natural science it is a truism that no law can be deduced from phenomena until all available instances have been collated and compared. Why does not this hold good for legal phenomena?

III. A third Wish would be that History, in the study of the law, may be given a treatment not purely logical, but also biological. The

logical (or internal) history of a rule is found by tracing in each successive decision or statute the steps which have brought the rule down into its form of today. The biological (or external) growth is seen by comparing the outward circumstances, beliefs, and motives amid which it began, and then those amid which it has persisted or changed. The former aspect is necessary, and has dominated; but the other needs emphasis now. "Other tools," said Mr. Justice Holmes, in The Common Law, "are needed besides logic; for the life of the law has not been logic; it has been experience. The felt necessities of the time, the prevalent moral and political theories, — intuitions of public policy, -even the prejudices which judges share with their fellow-men, have had a good deal more to do than the syllogism in determining the rules by which men should be governed."

As a simple example, take the law of Death by Wrongful Act. A hundred years ago the "appeal" of homicide had become impracticable, yet a genuine civil action was neither recognized nor much needed. But the rapid extension of life-menacing machinery in the early 1800's soon created both the need and the action. A more complex example is seen in the rules of Privilege for the criticism of political officials. They have all taken shape in the last hundred and fifty years, amidst new conditions of politics, journalism, and the platform; Burke, in his "Alarm Bell" speech, and Lord Mansfield, in his John Wilkes opinion, on the one hand, and (let us say) Mr. Justice Burch, in his masterly modern opinion in Coleman v. McLennan, on the other hand, typify the two stages of thought. The internal history of these rules (which may be traced through Baker v. Bolton, Carr v. Hood, and the other cases) is one thing; but we must also seek to discover the surrounding conditions and motives which bred the changes. It is this aspect of History which now needs emphasis in our method. IV. Last, and most of all, the Wish would be to see this subject studied with an unremitting outlook for its Philosophy. Every institute and principle of law has a philosophy, as every object in the In the quest for the

sunlight has its attendant inseparable shadow. rule we must insist on including its reasons, and on lifting them out into the open. That human death may or may not be the subject of an action, that truth is or is not a defence for the libeller, — that a judge is privileged absolutely or only qualifiedly, that a secondary boycott is or is not justifiable, — all these rules and principles rest on reasons of some sort. They may be reasons of ethics, or of politics, or of economics, or perhaps of public health, or of a dozen other sorts. They may be found in experience or in dogma. But they are given to us independently of the rule of law itself. The rule of law is to be tested by the philosophy of the subject. In these days, when a restatement of the entire body of our law is impending, we must be students of reasons as well as of rules. And the conservative needs this quite as much as the reformer. He who is not ready to give reasons

for the faith that is in him can not expect to hold his own against the demagogue and the crude innovator.

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Perhaps this appeal for philosophy will be thought nothing novel. But what is novel in the present volume is the attempt (in the topics of Part III, where the need is greatest) to set forth the philosophy from non-legal sources. Already, to be sure, there exists in the judicial opinions plenty of legal philosophizing. That feature is one of the jewels of our legal system. But we have hitherto been blind (in our study-books, at least) to the mass of material lying outside of those technical sources. This book makes the attempt to extend our vision. And why not? A rule of law and especially any rule of General Rights is a rule of life. It is founded on the dogmas and experiences of life; and life's dogmas and experiences are recorded in a vastly wider library than the covers of law-books comprise. Take, for instance, the law of arrest on suspicion. There, in the law-books, is the rule; but is all the philosophy of it there? Are not the histories full of the political convulsions that have attended that procedure? Is not the rule itself little more than the title-page to many long chapters of intense controversy and keen philosophizing? And today, in estimating the respect due to the rule, can it be studied without consulting those chapters of lay literature? Take again the very pressing problem of the boycott and the strike. Can their rules of law ever be consistently formulated without a philosophy which takes into account, not merely the ethics of human struggle, but also the postulates of economic science as to industrial competition? And there are scores of like instances.

The upshot is that the Philosophy of the principles of General Rights is to be found quite as much without as within the pages of the law reports. Not that we can hope to lift into the pages of a Case-Book adequate materials for that philosophy. We can provide no more than enough to suggest and remind and stimulate. But can we not do at least that much? This book is dedicated to the attempt.

Perhaps, then, it may not seem odd to find here, assorted 'twixt the annals of Doe v. Roe, some pages of De Tocqueville's "Democracy and Spencer's "Justice," of Milton's "Areopagitica" and Benjamin Franklin's "Letters," of Balzac and Thackeray, of Francis Lieber and Dr. Johnson. Their service is performed if they help to convince the student of law that he must extend his outlook, that he must not be content with the philosophy purveyed by the judges, and that the chronicles of all literature and science must be consulted for the philosophy of these Rights. For no body of law ramifies so widely and deeply into the notable themes of all history, all politics, all economics, all ethics, and all literature of life.

Northwestern University Law School
CHICAGO, September 1, 1911.

J. H. W.

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