Page:The Green Bag (1889–1914), Volume 18.pdf/86

 THEORY AND DOCTRINE OF TORT case in English history, and may be the case hereafter in America. Bearing in mind this conflict of forces and their resultant, and remembering the personal factor in the judge, what determines the judge, or is sup posed to determine him, in deciding the point of right is found in a general concep tion which may be put thus: Legal right broadly is what the dominant force in society, deflected more or less by opposition, requires or authorizes; in other words, what it wills. As the term has been understood under conditions of equality, that is, as the courts under such conditions ap pear, in theory, to have taken it, it is based on the idea that, subject to existing rules of law and procedure, and the personal factor in the lawgiver, men should be free to live and to have, and to carry out their reason able purposes in any reasonable way they will, or shortly, on the idea of freedom to do whatever is reasonable. And taking the word "reasonable" as meaning what the dominant force in society can, in the con flict of forces, maintain as expedient and desirable, which must be its meaning in law, the same idea of legal right must hold of inequality, or whatever force becomes dominant in the State. The difference will be found only in the application of the idea to concrete cases; freedom to do what is reasonable must obviously have narrower play under inequality than under equality, but that is all. In either case, on the idea of freedom to do whatever is reasonable rests, in theory, the whole law of rights, natural, judicial, and legislative; "in theory," but the practice has not always agreed with theory, for the law contains many anomalies, the survivals of spent forces in society, which are still more or less in operation, and these survivals, or anomalies, restrict free dom as it would not otherwise be restricted.1 1 On that subject, see Lecture IV, of Central ization and the Law. The Benthamites fell into deadlock in regard to freedom. They held that a man should be permitted to do whatever he pleased if he did not violate the law. But to

The dominant force in society differing at different times, it follows that the law of one period should not be taken as the guide for another, except in so far as, notwith standing the change, the conditions of so ciety remain for the particular purpose the same, or except in so far as the change may not have affected particular branches of the law. The subject of torts is largely, but not entirely, an example of the exception. The dominant force in society, whatever it may be, has, and probably will have, no quarrel in general with the law of torts, as a law of damages, as it has been laid down in •the past to our own day. The law of this subject appears to be suited to most condi tions and changes; not necessarily, but as a matter of indifference, as not worth the trouble of making over.1 The result is that in dealing with the law of torts we need not, apart from the newer phases of combina tion, much concern ourselves with social changes, however great. Nothing short of a general upheaval and reconstruction of the law from the foundation is likely to disturb, in any substantial way, the present structure which we call the law of torts, as a law of damages. As a matter of fact, the greater part, in point of bulk, of the American law of torts, was worked out during the nineteenth cen tury under conditions of practical equality, so far as the white race was concerned. What the law would have been had in equality (in the North as well as in the South) or some other antagonistic social order pre vailed, no one can tell; but it is probable enter into contract, especially in combination, is so far to give up freedom. The word "reason able," adopted by the courts, avoids the dead lock. 1 And so it is not a matter of abstract principles or principles which are per se of an eternal nature. The law of torts, as we have it, does not much bar the way of social changes; so let it stand. That must be the attitude towards it of any dominating force. The limitations of logic, though still real, are, therefore, probably less in the law of torts than in most other branches of the law.