第5章

This mode of thinking is entirely natural.The training of lawyers is a training in logic.The processes of analogy, discrimination, and deduction are those in which they are most at home.The language of judicial decision is mainly the language of logic.And the logical method and form flatter that longing for certainty and for repose which is in every human mind.But certainty generally is illusion, and repose is not the destiny of man.Behind the logical form lies a judgment as to the relative worth and importance of competing legislative grounds, often an inarticulate and unconscious judgment, it is true, and yet the very root and nerve of the whole proceeding.You can give any conclusion a logical form.You always can imply a condition in a contract.But why do you imply it? It is because of some belief as to the practice of the community or of a class, or because of some opinion as to policy, or, in short, because of some attitude of yours upon a matter not capable of exact quantitative measurement, and therefore not capable of founding exact logical conclusions.Such matters really are battle grounds where the means do not exist for the determinations that shall be good for all time, and where the decision can do no more than embody the preference of a given body in a given time and place.We do not realize how large a part of our law is open to reconsideration upon a slight change in the habit of the public mind.No concrete proposition is self evident, no matter how ready we may be to accept it, not even Mr.Herbert Spencer's "Every man has a right to do what he wills, provided he interferes not with a like right on the part of his neighbors."Why is a false and injurious statement privileged, if it is made honestly in giving information about a servant? It is because it has been thought more important that information should be given freely, than that a man should be protected from what under other circumstances would be an actionable wrong.Why is a man at liberty to set up a business which he knows will ruin his neighborhood? It is because the public good is supposed to be best subserved by free competition.

Obviously such judgments of relative importance may vary in different times and places.Why does a judge instruct a jury that an employer is not liable to an employee for an injury received in the course of his employment unless he is negligent, and why do the jury generally find for the plaintiff if the case is allowed to go to them? It is because the traditional policy of our law is to confine liability to cases where a prudent man might have foreseen the injury, or at least the danger, while the inclination of a very large part of the community is to make certain classes of persons insure the safety of those with whom they deal.Since the last words were written, I have seen the requirement of such insurance put forth as part of the programme of one of the best known labor organizations.There is a concealed, half conscious battle on the question of legislative policy, and if any one thinks that it can be settled deductively, or once for all, I only can say that I think he is theoretically wrong, and that I am certain that his conclusion will not be accepted in practice semper ubique et ab omnibus.

Indeed, I think that even now our theory upon this matter is open to reconsideration, although I am not prepared to say how I should decide if a reconsideration were proposed.Our law of torts comes from the old days of isolated, ungeneralized wrongs, assaults, slanders, and the like, where the damages might be taken to lie where they fell by legal judgment.But the torts with which our courts are kept busy today are mainly the incidents of certain well known businesses.They are injuries to person or property by railroads, factories, and the like.

The liability for them is estimated, and sooner or later goes into the price paid by the public.The public really pays the damages, and the question of liability, if pressed far enough, is really a question how far it is desirable that the public should insure the safety of one whose work it uses.It might be said that in such cases the chance of a jury finding for the defendant is merely a chance, once in a while rather arbitrarily interrupting the regular course of recovery, most likely in the case of an unusually conscientious plaintiff, and therefore better done away with.On the other hand, the economic value even of a life to the community can be estimated, and no recovery, it may be said, ought to go beyond that amount.It is conceivable that some day in certain cases we may find ourselves imitating, on a higher plane, the tariff for life and limb which we see in the Leges Barbarorum.