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
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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:
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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)