Seeing Tort Law From the Internal Point of View: Holmes and Hart on Legal Duties

Fordham Law Review, Dec 2006

By John C.P. Goldberg and Benjamin C. Zipursky, Published on 01/01/06

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Seeing Tort Law From the Internal Point of View: Holmes and Hart on Legal Duties

Seeing Tort Law From the Internal Point of View: Holmes and Hart on Legal Duties John C.P. Goldberg 0 1 Benjamin C. Zipursky 0 1 0 Thi s Article is brought to you for free and open access by FLASH: The F ordham Law Archive of Scholarship and History. It has been accepted for inclusion in Fordham Law Review by an authorized editor of FLASH: The F ordham Law Archive of Scholarship and History. For more information , please contact 1 John C.P. Goldberg and Benjamin C. Zipursky, Seeing Tort Law From the Internal Point of View: Holmes and Hart on Legal Duties , 75 Fordham L. Rev. 1563 (2006). Available at: - understanding, tort is a collection of "dos" and "don'ts": It mandates how we are obligated to act with regard to the interests of others and provides persons who are victimized by breaches of these obligations with the ability to obtain satisfaction, through law, for having been mistreated. Although guidance-rule conceptions of tort lend themselves naturally to certain rights-based accounts of tort law, they are not limited to such accounts. For example, a "post-Chicago-School" economist who takes social norms seriously can adopt a guidance-rule conception of tort law that nonetheless maintains that efficient deterrence is the ultimate justification for having such rules. 4 In elaborating this divide within the world of tort scholarship, this essay develops three main points. First, it argues that, as represented by the groundbreaking work of Holmes, 5 liability-rule, duty-skeptical accounts of tort tend to be fueled by an understandable but nonetheless excessive reaction to a naively moralistic version of what it means for tort law to be a law of genuine duties. Second, it argues that, overwhelmingly, modem mainstream American tort scholarship is "Holmesian" in embracing duty skepticism and the implications of that skepticism. Third, it claims that H.L.A. Hart's celebrated critique of Holmes's jurisprudential deconstruction of legal duties-particularly Hart's account of the "internal aspect" of rules-provides a duty-accepting jurisprudence that is more satisfactory than its duty-skeptical counterparts, yet still sensitive to skeptics' legitimate worries about naive accounts of legal duties. 6 In short, Hart's critique of Holmes and his resuscitation of the notion of legal obligation undercuts much of the impetus for duty skepticism in tort, and conversely provides a basis for duty-accepting, guidance-rule theories of tort. I. HOLMES'S GAMBIT: REDEFINING DUTY AND REINVENTING TORT LAW A. Setting the Stage Holmes is justly famous for being among the first to construct a theory of tort law that self-consciously attempts to account for the central place in modem tort law of accidents causing physical injury. 7 He is equally 2006] famous for articulating a vigorously amoralistic conception of law personified by the figure of the "bad man."' 8 That Holmes jointly pursued these two projects (among others) is a testament to his intellectual ambition and virtuosity, for the received thinking about law generally, and tort law in particular, was inhospitable to his theoretical ambitions. First, tort and its historical antecedents were (as tort still is) rife with concepts that link it to notions of morality. The medieval progenitor of tort-the older notion of a "trespass"-linked tort to biblical notions of sin and transgression. 9 Later writers including John Locke and William Blackstone had categorized actions brought under these writs as comprising the category of "private wrongs."10 A doctor who provided incompetent medical services to his patient, in the process causing her harm, is a doctor who, under the law of the writ system, had committed against his patient the private wrong of malpractice. Second, the trespass or tort actions of Holmes's day purported to be (as tort actions still purport to be) fundamentally about obligatory conduct. As the malpractice example suggests, tort verdicts, judgments, and opinions have long contained (and continue to contain) words and phrases that, when taken at face value, offer prescriptions as to how one must conduct oneself in relation to certain facets of others' well-being. These facets of individual well-being were linked by pre-Holmesian writers to core individual rights, such as the right to bodily integrity, the right to liberty, the right to own property, and the right to one's good name. I I Thus, a trespass action for battery was described as vindicating the right to bodily integrity by proscribing a purposeful touching of one by another, at least absent indicia of permission. Likewise, cases that would today fall under the heading of negligence instructed that one must act with reasonable care for the physical well-being of certain others. Defamation cases specified that a person must not publish statements about another of a sort that tends to injure another's good name. Nuisance cases indicated that one is ordinarily obligated not to use one's own proper (...truncated)


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John C.P. Goldberg, Benjamin C. Zipursky. Seeing Tort Law From the Internal Point of View: Holmes and Hart on Legal Duties, Fordham Law Review, 2006, Volume 75, Issue 3,