APPENDIX A A SUMMARY OF THE PRINCIPLES OF TORTS INTRODUCTION: ANALYSIS OF LEGAL RELATIONS IN GENERAL § 1. Nature of Law. Human relations of conduct, in respect to any force compelling, sanctioning, or protecting them, are either ethical, social, or legal. For ethical relations, the sanctioning force is the personal moral sense; e. g. the pressure of conscience may compel A to refuse liquor to an intemperate man. For social relations, the sanctioning force is the potential action of some portion of the community (trade, industry, clubs, neighbors, fraternities, etc.) as feared, admired, or respected by the individual; e. g. the felt pressure of public sentiment may compel A to refuse to lease a store to a liquor-seller. For legal relations, the sanctioning force is the State's potential exercise of its united organized power, acting through its political organs; e. g. the pressure, actual or potential, of the officers of the State may compel A, in favor of B's family, not to sell liquor to B if intemperate. § 2. In all of these relations of conduct, the enforcement may be conceived of as variable and arbitrary, from act to act (e. g. a political despot may order A to go free, and B to go to prison, both having done the same act; or a social queen may capriciously refuse A's invitation and accept B's, in identical circumstances); or as uniform and regular. The latter concep tion is Law. Law is the quality of being uniform and regular in a series of events, whether in human or in external nature. There may therefore be cosmic law, moral law, social law, and jural law. The last is here involved. Jural law is a rule expressing the relations of human conduct conceived as subject to realization by State force. §3. Kinds of Science of Law. The science of Law as a whole may be termed Nomology. The science may be classified according to the different activities which deal with the fact of law. These are four: Law may be conceived of as (1) A thing to be ascertained as a fact of human conduct; this branch to be termed Nomo-scopy. (2) A thing to be questioned and debated as a rule which by some standard might be different from what it is; this branch to be termed Nomo-critics. (3) A thing to be taught as a subject of education; this to be termed Nomodidactics. (4) A thing to be made and enforced by the State organs; this to be termed Nomo-practics. 1. Nomo-scopy has three branches of activity: (a) It may concern itself with ascertaining the sources in which the existing law is to be found, statutes, de 1 This Summary is intended mainly to serve as a juristic analysis of the subject, not as a complete statement of the law; hence, detailed rules not represented in the Case-Book are omitted, and modifications which might make the Summary more precise are sometimes ignored. The Case-Book citations in the foot-notes are those which bear on the topic of the text; the decisions in the cases do not always accord with the statement in the text. Brackets [] are used in the text to indicate that States differ in their rule on that topic. cisions, customs, decrees, etc.; this to one time; thus the legislator may have be termed Nomo-statics. (b) It may concern itself with the former condition, history, and development of a rule of law; this to be termed Nomo-genetics. (c) It may concern itself with the relation between law and other facts and their sciences; this to be termed Nomo-physics. to consider Nomo-thetics or Nomosophy, just as any citizen may; the judge may make use of Nomo-scopy; and the teacher and the student may use all. § 4. Analysis of a Legal Relation. (1) A legal relation (ante, § 2) may be termed a Nexus. The converse fact, i. e. that the State force will not inter 2. Nomo-critics has two branches of fere to compel or protect the parties, activity: (a) It may take a standard of logic, analyze the rules of law, and examine their consistency as a system; this to be termed Nomo-theorics. (b) It may, by a standard of ethics (whether divine, moral, or social) or of economics, or of politics, or of any auxiliary science, or of any practical policy of a composite nature, examine the conformity of a rule of law to this standard; this to be termed Nomosophy. 3. Nomo-didactics has a single branch only. 4. Nomo-practics has three branches of activity: (a) It may be considered as a rule requiring to be particularized and applied in specific controversies and realized in concrete instances, thus giving rise to the judicial function, including the advocates and other court officers; this to be termed Nomodikastics. is a non-Nexus. Theoretically, to define the nexus is to state the law sufficiently; practically, the organs of the law are constantly stating also a nonNexus, i. e. that the State force will not interfere. (2) A Nexus has two elements: the Persons, and the Interest.1 The Persons to a Nexus are two. From the side of the person by whom State force is demandable, the nexus is termed a Right. From the side of the person against whom it is demandable, the nexus is termed a Burden, Duty, Obligation, or Liability. The former person is termed Obligee, the latter Obligor. § 5. Interests, Rights, and Wrongs. (1) The fact of human condition which the State force aims to protect (or, cause to be realized) is termed the Interest (or Subject); e. g. the obligee's personal freedom of motion from restraint by the obligor, or his glass window's state of unbrokenness at the obligor's hands, is the Interest of his Right or nexus. Every nexus is defined usually by stating the Interest, (b) It may be considered as a rule requiring to be made by some form of expression of the State's will, thus giv-in so far as the persons to it are the same ing rise to the legislative function and its methods; this to be termed Nomothetics. (c) It may be considered as a rule of action for various officers having duties under it, thus giving rise to the executive function; this to be termed Nomodrastics. Though these sciences are theoretically distinct, the content of two or more of them may in actual life be needed or used by the same person at as in other nexus. (2) An event infringing upon the Interest, i. e. a state of facts varying from the fact protected by law, is termed a Breach (in Torts, a Damage or Harm); e. g. in a contract-nexus that a ship shall deliver a cargo, the delivery is the Interest, the non-delivery is a Breach; in a tort-nexus that the body shall remain sound, the body's soundness is the Interest, a wound is a Breach or Harm. 1 There is, in Nomo-sophy, a third element, the Object, i. e. the ultimate purpose sought to be attained by the Nexus; e. g. human life is the Object sought to be safeguarded by the right to corporal integrity; but it is not a part of the Nexus as a fact in law. Since law is, in many systems, (3) The Primary nexus continues developed by judicial decisions ren- throughout, although it may continudered only as specific controversies ally give rise to new operations of the arise, and not by abstract prior definition, and since the protection of the Auxiliary nexus (or, causes of action). Interest is thus given from time to (4) The Auxiliary nexus may be time by declaring specific Harms to be either Preventive or Redressive. (a) violations of the nexus, the definition A Preventive nexus protects by authorof the Interest is in such systems often izing a specific conduct before a breach to be found only by comparing and of the Primary nexus; e. g. a bond to synthesizing the various events which keep the peace, as preventive of an have been declared Harms. This will assault; or an injunction to remove not be true of such nexus as are defined, dynamite, as preventive of the destrucin their Interest, by the will of the parties, e. g., contracts. But it is true tion of a house. (b) A Redressive nexus in general of Torts, i. e., the Interest may be either Restorative or Compenof the nexus (right) is defined by stating satory. A Restorative nexus protects the various kinds of harm or wrong by prescribing the exact renewal of the (Torts). In Torts, therefore, it is state of facts disturbed by the breach; commonly difficult to find in the e. g. a replevin of a wagon disseised.. judicial rulings a plain comprehensive A Compensatory nexus protects by prestatement of the whole Interest pro-scribing the substitution of an equivatected by the nexus; the specific Harm being only one concrete form of violent state of facts; e. g. the payment of lation of the nexus. the money-value of a wagon disseised. § 6. Primary and Auxiliary Rights. Every Nexus, with reference to its Interest, is bi-partite; i. e. there a Primary nexus (Capital, Component, or Institutive), and an Auxiliary nexus (Ancillary, Supplementary, Executory, or Remedial). (1) The Primary nexus defines the Interest regarded as a fact to be secured and kept unimpaired by the law. But as obligors do in actual life not always fulfil the nexus, and breaches or harms are constantly done, the law must define a secondary state of facts which is to be secured and enforced in furthering its protection. If the Primary nexus, as ideally conceived, were invariably fulfilled, no Auxiliary one would be needed; in practice, the Auxiliary one is used in that small proportion of cases which give rise to legal measures; e. g. millions of horses are owned under the property-nexus, and only a few thousands are stolen or disseised so as to need the protection of the Auxiliary In Torts, the auxiliary nexus are in books seldom treated in connection with the Primary nexus; because hisin connection with the law of procedure, torically the law of them was developed in both common law and equity courts. But, in principle, the Auxiliary nexus are distinct from the rules of procedure; e. g., the Auxiliary nexus may prescribe that the owner of a wagon disseised is entitled to its restoration but the method of enforcing this and not merely to a money value; nexus - by replevin or otherwise is a matter of procedure only. (5) The term "forms of action" is used traditionally in a shifting sense. Sometimes it signifies the name of the kind of auxiliary or remedial right; sometimes the name of the kind of harm against which the primary right gives protection; and always it also signifies a specific formula of procedure. Since historically the formulas of procedure were regarded as inseparable from the substantive right, but since in modern legal science the fallacy of this has become repudiated, the names for these "forms of action" will be found sometimes not to fit precisely the scientific analysis. Hence, under some of the ensuing Rights, the same right will sometimes be found to include different forms of action, and, conversely, the same form of action will 1 2 find a place partly under one Right | kinds of lies alone, even though no and partly under another. business patronage is impaired. The main classes of "forms of ac- Whether such a Prophylactic nexus is tion" affecting Torts are those of Tres- granted depends on the needs of such pass and Trespass on the Case. The stringent protection of the intrinsic dominant test of this distinction is Interest as shown by experience." that of harms caused directly and harms § 8. Classification of Legal Relacaused indirectly; but another one, tions. 1. The nexus of which law is occasionally recognized, is that of made up are either between an individharms caused intentionally and harmsual person and the State, or between caused unintentionally. The distinc- one individual and another. The fortion between Trespass and Case is no mer group is termed Public law (inlonger of practical importance in pres- cluding Criminal law); the latter, ent-day law; except that in some in- Private law. stances the Case form of action recognized no Prophylactic right (§ 7), i. e. "nominal" damage is not protected against, and that in some instances from the point of view of either the the Trespass form of action applied the rule for damage proximate per se (post, §§ 183, 192) while the Case form of action did not.5 § 7. Prophylactic Rights. Some Primary nexus, in respect to the Interest protected, may have an appurtenant Prophylactic nexus; i. e. the Interest may be further protected by protecting a state of facts which is intrinsically not an Interest worth protecting, but serves as an outpost or safeguard for the Intrinsic Interest, where proof of damage to it would be difficult or impossible. E. g. the Intrinsic Interest protected by the nexus of corporal integrity is the body's freedom from pain or wound; but a Prophylactic nexus protects further against even a touching, which does no corporal harm, and thus relieves the obligee from proving the amount of harm, and keeps the obligor at a safe distance. So, also, an Intrinsic Interest protected by the nexus of social relations is one's business patronage unimpaired by lies; but a Prophylactic nexus protects further against certain 2. The nexus of Private law may be first subdivided according to the nature of one of the elements of a nexus; i. e. Interest (Subject), or the Obligee, or the Obligor. The classification which best harmonizes those parts of our law related in logic and in policy takes the last point of view. Nexus (legal relations of right and liability) are grouped according as the liability is placed upon the Obligor without an act of his will or assent, or with it. The former are termed (A) Irrecusable nexus (nonrefusable); the latter, (B) Recusable. An essential principle is to abandon any notion of classifying nexus (rights) into Rights to Things and Rights to or against Persons, as do some systems of law. A right (nexus) cannot ever be a relation to a thing. A thingright is merely the fact that A can keep B or other persons away from the thing under certain circumstances. In a desert island occupied by one man there can be no right at all; but there could be, if a right were a person's relation to a thing. If A's thingright were A's relation to a thing, then A's right of corporal integrity wou' be its relation to life or to the body, and so on. These and all other things are the Interest (or subject) of the 1 Scott v. Shepherd, No. 10; Sir W. Blackstone, No. 12. 2 Covell v. Laming, No. 11. Statutes, Nos. 16, 17, 18. Ashby v. White, No. 19, and ensuing cases. Hays v. Cohoes Co., No. 510; Wilson v. Powder Co., No. 511. • Ashby v. White, No. 19; Webb v. Mfg. Co., No. 20; Paul v. Slason, No. 21. 7 This mode of classification is suited only for later subdivisions. 8 E. g. a right "in rem" is one which extends against all persons in the State; a right "in personam" extends against only one person or a specific class. This is a common classification. |