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Strict Liability versus Negligence
Just as natural rights individualism threatened all order and stability by allowing private and subjective appeals to conscience and morality, continental positivism raised the threat of legislative tyranny, of dangerous equalitarian passions, and of attacks on the common law system. Like the writings of James Coolidge Carter, Holmes's lectures on The Common Law were also efforts to find a middle position through the mediating notion of custom. Holmes's focus on the issue of subjective versus objective standards in the law can best be understood as precisely such an effort to split the difference between the unpalatable extremes of natural rights and legislative positivism.
Holmes rejected subjective standards because, being too individualistic and moralistic, they inevitably led to subversion of all certainty and predictability in law. But why then were not legislative rules the most supremely objective standards, dispensing with all need for common law rule-making? Why didn't the rejection of a subjective standard force Holmes into the camp of codification?
Holmes, his biographer informs us, several times "revealed the gravest distrust of [the] presuppositions" of the codification movement. Insisting that "law is not a science, but is essentially empirical," Holmes applauded the reluctance of the common law to put its trust in "any faculty of . . . generalization, however brilliant." 104 It is a particular merit of the common law, he concluded, "that it decides the case first and determines the principle afterwards.""' Besides, Holmes was no democrat. "I loathe the thick-fingered clowns we call the people," he proclaimed in 1862, "-especially as the beasts are represented at political centresvulgar, selfish and base. . . .")06
To put Holmes's dilemma another way, let us turn to his complex views on negligence versus strict liability in the law of torts. Ranking second in significance to his advocacy of objective external standards is Holmes's well-known opposition to strict liability and his defense of a negligence standard.
From at least 1840, the negligence standard had begun to displace strict liability as the norm in English and American tort law. But, as we have seen, there were many important areas, such as common carrier liability and the vicarious liability of masters for the torts of their servants, that remained resistant to the engulfing sweep of negligence liability. Beyond that, strict liability seemed to cor respond to a traditional understanding that a person should compensate for any injury he or she caused. Negligence, by contrast, was the doctrine of an emerging entrepreneurial class that argued that there should be no liability for socially desirable activity that caused injury without carelessness.
After more than a generation of widening victories, the negligence principle was decisively challenged in 1868 in a decision of the English House of Lords in Rylands v. Fletcher.107 Holding that a landowner was liable without regard to negligence when his leaking dam permitted water to flood a neighboring coal mine, the Lords seemed to reassert the traditional presumption of compensation for injuries.
Most American courts immediately resisted this new major barrier to the triumph of the negligence principle. 108 Strict liability, they argued, was an amoral doctrine that imposed liability on a person regardless of whether he or she was blameworthy. Without a requirement of moral fault, they saw, there was no limitation on imposing liability in order to bring about a redistribution of wealth from the active to the inactive or from rich to poor.
But moralism itself had increasingly come under criticism for promoting redistributive tendencies in the law. As we saw earlier, attacks on the institution of punitive damages and on a three-tier classification of negligence were all predicated on the assumption that if juries were permitted to use the tort law in order to punish (and not simply to compensate) for gross negligence, the legal system would easily lend itself to systematic persecution of the rich.
It was in the midst of this intellectual disarray that Holmes wrote The Common Law and took upon himself the heroic task of finding "[s]ome middle point . . . between the horns of [a] dilemma" 109-of defending the negligence principle at the same time as he tried to banish moral fault as a necessary ingredient of negligence.
Holmes joined in the general rejection of strict liability, basing, his objections on two grounds. First, it threatened to bring about arbitrary redistributions of wealth by "undertaking to redistribute losses simply on the ground that they resulted from the defendant's act. . . ." 110
The state might conceivably make itself a mutual insurance company against accidents, and distribute the burden of its citizens' mishaps among all its members. . . . The state does none of these things, however, and the prevailing view is that its cumbrous and expensive machinery ought not to be set in motion unless some clear benefit is to be derived from disturbing the status quo. State interference is an evil,. Where it cannot be shown to be a good."'
In addition, Holmes argued, strict liability was open to a "still graver" objection,"' that "of offending the sense of justice." 113 It was a "coarse and impolitic principle" 114 that failed to "require that people should not be made to pay for accidents which they could not have avoided.""'
Holmes thus required a liability-limiting criterion independent of causation of harm in order to avoid the pernicious implications of strict liability. The obvious choice was an evaluation of the moral quality of the defendant's action. But that evaluation could not be based on subjective, and hence idiosyncratic and unpredictable, assessments of the actor's state of mind. Nor could it be supported directly by considerations of policy, as to do so would deprive common law judges of their claim to be discovering rather than making the law. Holmes's solution to the dilemma was to base liability on the violation of customary norms. Holmes's negligence standard limited liability by imposing it only in cases where harm was caused by deviation from customary standards of reasonableness.
In The Common Law, objective standards are treated as equivalent to customary standards, not as coercive impositions of a sovereign state. Even the view Holmes expressed in The Common Law that law "is legislative in its grounds" 116 did not contradict this customary law perspective, but meant only that law is "at bottom the result of more or less definitely understood views of public policy." 117 A conception of custom, he then believed, could mediate successfully between the subjective individual and the coercive legislature. For Holmes, as for many other contemporary thinkers, custom recor Aed individual and social morality. It avoided the extreme implications both of potentially anarchic individualism and of the threat of tyrannical state power.
In 1881, Holmes did not yet presuppose social engineering by a coercive state. Instead, he saw the evolution of law as "the unconscious result of instinctive preferences and inarticulate convictions."118 By the time Holmes wrote "The Path of the Law" in 1897, however, the power of custom as a mediating category had begun to disintegrate amid social conflict and class struggle.119 Now Holmes was no longer prepared to denounce strict liability for "offending the sense of justice." 120 Instead, he saw conflict between strict liability and negligence as expressing "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. . . ." 121 Custom could no longer provide a cushion of immanent rationality between state and society.
No longer having access, in their own experiences of the world, to a sense of an autonomous realm of custom, legal thinkers in the early twentieth century were caught once more on the horns of the dilemma that Holmes had originally thought he could reconcile. The negligence principle, they began to maintain once more, could be defended only on the grounds that it was unjust to punish a person who was not morally at fault. 122 The move away from a subjective standard of personal fault, they realized, had caused them to abandon the original natural rights justification for negligence. Objectivism had in fact authorized the state to impose liability on a person who was not at fault. The only grou
nd for opposing strict liability, then, was by a return to an individualistic morality.
In an article in the Harvard Law Review in 1909 entitled "Law and Morals," James Barr Ames revived a moralistic attack on strict liability, contrasting it to "a rule of liability based upon moral culpability.""' The rule of strict liability, he argued, exhibited "the unmoral character of the early common law as an instru ment of injustice, as permitting unmeritorious or even culpable plaintiffs to use the machinery of the court as a means of collecting money from blameless defendants." 124 "The law of today, except in certain cases based upon public policy, asks the . . . question, 'Was the act blameworthy?' The ethical standard of reasonable conduct has replaced the unmoral standard of acting at one's peril." 125
Though he confusedly invoked the standard of reasonable conduct, Ames clearly took his stand against strict liability on the grounds that it was immoral to punish "blameless defendants." For he realized that only a standard of personal blameworthiness could provide the necessary foundation for a moralistic attack on strict liability. By excluding personal blameworthiness from his system, Holmes had deprived the defenders of negligence of their most powerful weapon-the tradition of natural rights individualism.
While legal theorists who defended the negligence standard came more and more to justify it in terms of moralistic principles of personal fault, 126 most of the case law, dominated by practical problems of industrial society, had moved in the opposite direction. And proponents of strict liability had begun to see that objectivism had already cleared away the most powerful individualistic objections to strict liability.
"I find it impossible," Nathan Isaacs wrote in the Harvard Law Review of 1918, "to fence off a field of law in which liability is based exclusively on fault. In the first place, even in those cases in which fault is admittedly the basis of liability, it is not the individual fault of the particular culprit, but rather a type of culpable conduct that must be considered."127 He then quoted Holmes on the objective standard. "In other words," he continued, "even within the realm of fault cases, the law cannot stop to take into consideration all of the peculiarities of the individual case to determine whether there is actual fault. It must classify and classify more or less roughly."128 And finally, he concluded, strict liability was precisely "a case of rough classification" of hazardous conduct "as a result of which the innocent must suffer with the guilty." 129
In 1927, Warren Seavey attacked the whole theory of objectivism in the law of negligence. He wrote:
tilt would appear that there is no standardized man; that there is only in part an objective test; that there is no such thing as reasonable or unreasonable conduct except as viewed with reference to certain qualities of the actor-his physical attributes, his intellectual power, probably, if superior, his knowledge and the knowledge he would have acquired had he exercised standard moral and at least average mental qualities at the time of action. . . .130
The only coherent conception of negligence, Seavey saw, was based upon some version of subjectivism. "It is quite true that negligence does not depend upon moral fault," he wrote, acknowledging the orthodox view, but "it is equally true that it does not depend upon fault even in a legal sense. It is not true, however, that there can be an objectively negligent act, unless we create for 'objective' a special meaning to be used only in negligence." 131
Having shown that the only plausible meaning of fault implied an impracticably particularistic subjective test, he moved on to the next step: "Whether it would be better to determine liability without reference to the qualities of the actor is a different question." 132 Under primitive law, strict liability was regarded as "just" 133:
[I]n the age of economic expansion and individualism, it was "just" that the burden of loss should be shifted only where the cause of the harm was a knave or a fool. With a mechanistic philosophy as to human motives and a socialistic view-point as to the function of the state, we may return to the original result of liability for all injurious conduct, or conceivably have an absence of liability for any conduct, with the burden of loss shifted either to groups of persons or to the entire community. The lawyer cannot determine that our rules of liability for negligence are either just or unjust, unless he has first discovered what the community desires (which determines justice for the time and place), and whether the rules are adapted to satisfying those desires (which I assume to be the end of law). 114
The leading legal thinkers of the next generation, in short, rejected Holmes's effort to distinguish strict liability from objectivism, grounding the latter in a noncoercive system of customary law. For those who followed Holmes, there was little choice except between an ever more anachronistic individualism and dangerous varieties of statism and collectivism.
Indeed, by the time he wrote "The Path of the Law," Holmes himself came to accept such a limited choice, and as a result, he abandoned his faith in the common law as a repository of determinate solutions to specific legal questions. Never again would he experience common law adjudication as a process capable of grounding judicial decision-making in anything other than direct policy analysis. Indeed, Holmes anticipated much of Legal Realism when he proclaimed the death knell of legal doctrine: "For the rational study of the law the black-letter man may be the man of the present, but the man of the future is the man of statistics and the master of economics." 135 All of the law is no more than "a concealed, half conscious battle on the question of legislative policy." 136 This profound loss of faith in traditional doctrine ultimately caused Holmes to abandon his youthful determination to unite justice and rationality in the law in favor of the detached olympian skepticism that was to characterize him for the rest of his life. 137
I now wish to illuminate the forces behind this transformation and to explain how it developed, particularly in the years between the publication of "Privilege, Malice and Intent" in 1894 and "The Path of the Law" in 1897.
"The Path of the Law" represents Holmes's full acknowledgment that law is a social creation. His earlier effort in The Common Law to tie law to custom-to turn from an autonomous "logic" to social "experience"-created a picture of law as simply a mirror or reflection of unconsciously evolving social conventions. Law thus continued to be thought of as independent of human will and as not susceptible of being transformed by social engineering.
This picture of law began to unravel for Holmes in "Privilege, Malice and Intent." 138 "The time has gone by when law is only an unconscious embodiment of the common will," he wrote. "It has become a conscious reaction upon itself of organized society knowingly seeking to determine its own destinies." 139 Yet, as we shall see in a moment, Holmes's return to common law modes of thought in "Privilege, Malice and Intent" is an example of how difficult it was to abandon completely traditional sources of legal meaning and to acknowledge fully the demise of the law-politics distinction.
We saw earlier how, from the beginning of his intellectual career, Holmes sought to attack the natural rights basis of law. By the time he wrote The Common Law, he had begun to understand that much of American legal thought was ultimately dependent on natural rights theories of property. Absolute conceptions of property, he realized, were the logical starting point for most orthodox analyses of legal rights and duties. In order to deny natural rights theories, it was therefore necessary that the justification for the institution of property be sought `outside the Bill of Rights or the Declaration of Independence. . . ."140
Holmes's only systematic attack on natural rights thinking is put forth in the chapter on "Possession" in The Common Law. Here he puts at center the age-old legal-philosophical conundrum: "Why is possession protected by the law, when the possessor is not also an owner?" 141
His purpose was to use this example to challenge the natural rights justification for property put forth in German philosophy: "The freedom of the will, Kant said, is the essence of man. It is an end in itself; it is that which needs no further explanation, which is absolutely to be respected, and which it is the ve
ry end and object of all government to realize and affirm." 141
Since the will of the owner justified the right to property in Kantian thought, the fact that most legal systems, including the German, often recognized a mere possessory interest against ownership seemed to contradict the principle of freedom of the will. Even a leading Kantian jurist, Holmes reported with some satisfaction, "says . . . that this is a sacrifice of principle to convenience.""' Holmes's conclusion is that the natural right of the owner in this case is sacrificed to the utilitarian goals of stability and predictability. "I cannot see what is left of a [natural rights] principle which avows itself inconsistent with convenience and the actual course of legislation." 144 A justification must then be found in social utility, "outside" the natural rights philosophy of "the Bill of Rights or the Declaration of Independence. . . ." 145
After attacking the natural rights framework of post-revolutionary American law, Holmes sought to reverse the relationship between rights and duties that had emerged from that framework. "Let us begin afresh. Legal duties are logically antecedent to legal rights. . . . Legal duties then come before legal rights." 146 Legal duties, Holmes had emphasized earlier, were not derived from a set of prepolitical rights. They were social constructs from which rights themselves were often derived and thus defined. Now Holmes went still further and insisted that the role of duty was "to limit freedom of action or choice on the part of a greater or less number of persons in certain specified ways." 147 "[A] right corresponding to [a] burden, is not a necessary or universal correlative,""' Holmes concluded. In other words, the law had often imposed duties and restricted freedom without creating any correlative rights. Here one can find the original inspiration for Hohfeld's great 1913 article challenging the natural rights foundation of American law. 149
Holmes began his attack on absolute property rights in The Common Law with the original and fertile recognition that they stood in conflict with the premises of a competitive market economy. "The absolute protection of property," he wrote, "however natural to a primitive community more occupied in production than in exchange, is hardly consistent with the requirements of modern business." 150