Scholars of Tort Law

James Goudkamp, Donal Nolan, James Goudkamp, Donal Nolan

• Publisher: Hart Publishing
• Year: 2019
• ISBN:
  9781509910588
• Edition: 1
• Topic: Law
• Subtopic: Tort Law
• Index: Law

The publication of Scholars of Tort Law marks the beginning of a long overdue rebalancing of private law scholarship. Instead of concentrating on judicial decisions and academic commentary only for what that commentary says about judicial decisions, the book explores the contributions of scholars of tort law in their own right. The work of a selection of leading scholars of tort law from across the common law world, ranging from Thomas Cooley (1824–1898) to Patrick Atiyah (1931–2018), is addressed by eminent current scholars in the field. The focus of the contributions is on the nature of the work produced by each of the scholars in question, important influences on their work, and the influence which that work in turn had on thinking about tort law. The process of subjecting tort law scholarship to sustained analysis provides new insights into the intellectual development of tort law and reveals the important role played by scholars in that development. By focusing on the work of influential tort scholars, the book serves to emphasise the importance of legal scholarship to the development of the common law more generally.

1

Pioneers, Consolidators and Iconoclasts: The Story of Tort Scholarship

JAMES GOUDKAMP AND DONAL NOLAN

I.INTRODUCTION

Common law scholarship is overwhelmingly focused on judicial decisions, with the result that the writings of even highly influential legal scholars have, by comparison, rarely been the subjects of scrutiny in their own right. This represents a serious gap in our understanding of the common law and its development. The purpose of the current volume is to begin the process of redressing this imbalance, by considering the role played by leading scholars of tort law from across the common law world in the development of the subject.¹ The focus of the contributions is on the nature of the work produced by each of the scholars in question, important influences on them and the influence which they in turn had on thinking about tort law.

The process of subjecting tort law scholarship to sustained analysis provides new insights into the intellectual development of tort law and reveals the central role played by scholars in this regard. The book also serves to emphasise the importance of legal scholarship to the development of the common law more generally. As Patrick Atiyah – one of the scholars whose work is considered in this collection – wrote in 1987:

[L]egal theory, and the work of academics, has in truth played a much larger role in the development of our law than has generally been acknowledged, and … a great many fields of our law have been profoundly influenced by academic writing and theory … [T]here is a more general case for thinking that legal writing, and particularly academic writing, is in the long perspective of history, an important part of the law itself … [I]t seems certain that we have greatly underestimated the influence of academics on the development of the law in the past.²

Furthermore, as Susan Bartie has argued,³ the study of our predecessors is of considerable potential benefit to the enterprise of legal scholarship itself. As well as contextualising earlier work of relevance to present controversies, studies of past scholars can serve as a challenge to current notions of academic standing, and ‘may sow the seeds of a stronger intellectual tradition’ by encouraging ‘scholars to recognise their potential and the possibilities that this engenders’.⁴

Several preliminary observations are in order. One is that the collection is limited to the common law world.⁵ In the tort context, it will be seen that the intellectual connections within that world are strong. Beyond it, they inevitably weaken. Those weaker connections are important, and much studied by comparative lawyers, but our enterprise is deliberately a different one from theirs.⁶ Another point is that we included in the project only scholars who were deceased or, if alive, no longer research active.⁷ While the echoes of the former English convention against judicial citation of living scholars are unfortunate, we proceeded in this way because we considered it important that the contribution of each scholar be assessed in the light of the entirety of his work. Finally, these limitations resulted in a lack of diversity in the scholars under scrutiny, to which the possessive pronoun used in the previous sentence attests. It should be emphasised that once the decision was made to restrict the field in these ways, the lack of diversity was inevitable. We were therefore faced with the options of abandoning the endeavour, or producing a volume that would highlight the extent to which common law tort scholarship was, until recent decades, almost entirely the preserve of men. While we stand by the choice we made between those alternatives, we recognise that others may take a different view. In any event, we regret the absence of women’s voices in the story that is told in this book.

Opinions may also differ on our choice of scholars. We should start by making it clear that we did not unilaterally decide which scholars should be discussed; that decision was made in close consultation with the contributors. And while we would readily accept that in some instances the reputation and influence of a scholar essentially compelled his inclusion, in other instances a case could of course be made for X rather than Y and so on. We make two points in anticipation of such objections. One is that it seemed important to us that our contributors be given the freedom to write about the scholar (or, in one case, scholars) in whom they themselves were interested. And the other is that, since there is no objective criterion by which the importance of a legal scholar can be measured, such objections can always be put forward, no matter which choices have been made. We are in any case satisfied that the selection of scholars studied in this volume is effective in demonstrating the influences that tort scholars had on their discipline and on each other, especially when supplemented by previous work on the intellectual history of the subject that has highlighted the contributions of some – though by no means all – of the more significant tort scholars not considered here.⁸

One other important preliminary point that we wish to make about this project is that when assessing and analysing past scholarly work in a particular field it is of course difficult, if not impossible, to set aside one’s own views on the area in question. It was therefore inevitable that our contributors – all of them scholars of contemporary tort law – would be tempted to use their discussion of past scholarship to fight the intellectual battles of the present. We leave it to the reader to decide to what extent they succeeded in resisting that temptation (or, indeed, whether they sought to resist it at all). Nevertheless, we wish to emphasise at the outset the supreme importance of avoiding anachronism, and of evaluating the contributions of the scholars under consideration in the light of the existing tort scholarship in their day, and the intellectual culture in which they worked. It hardly needs to be said that a perception or understanding which may seem obvious to us now would not always have seemed so. And it follows that in assessing the contributions of our predecessors a degree of humility is appropriate, not least in the hope that those who follow us will in turn prove merciful when faced with the missteps and mistakes of our own era.

The discussion that follows in this overview chapter divides the scholars considered in this volume into three categories: pioneers (Cooley, Holmes and Pollock); consolidators (Salmond, Bohlen, Winfield, Prosser and Fleming) and iconoclasts (Green, James, Atiyah and Weir). Any such taxonomy is naturally problematic, and we employ it – and its constituent categories – only in the loosest of senses, and with appropriate circumspection. We also recognise that while, in our view at least, some of the scholars fit relatively easily into one or other of these categories (say, Prosser and Green), in other cases the classification of a scholar is less obvious (say, Salmond and Fleming). Nevertheless, we hope to show that the threefold taxonomy is revealing, and that it can be used to identify commonalities between the scholars within each category, and recurrent distinctions between the different categories of scholar. Furthermore, in the final part of the chapter, we supplement the discussion of the three categories of scholar with some thematic observations about tort scholarship more generally.

The framing of our discussion by reference to three categories of scholar gives rise to a difficulty that should be acknowledged at the outset. This is that, although naturally the pioneers came first, the other two categories are not chronologically distinct, with the result that consolidators were influenced by iconoclasts and vice versa. It follows that while we discuss the scholars in each category in date of birth order (the criterion used to order the other chapters in the volume), in some cases the treatment of a particular scholar must inevitably anticipate material in a later part of the chapter.

II.PIONEERS

A.The Origins of the Subject

The scope of this volume rests on an important distinction between the study of causes of action, cases and so on that are now treated as part of tort law, and ‘tort law’ as a subject of study in its own right. This is because we consciously chose to limit the project to consideration of scholars of tort law as a subject, and not to include in it writers whose work pre-dated the recognition of tort as a distinct legal category. (That is why there is no chapter in this book on, for example, Bracton, nor on Blackstone.) And it raises the question of when ‘tort law’ as such was first the subject of scholarly attention.⁹

Happily, there is a general consensus that the recognition of tort as a distinct legal category dates back to the second half of the nineteenth century.¹⁰ Indeed the evidence to this effect is overwhelming. The first significant¹¹ English-language work on the subject was published in 1859 by the American Francis Hilliard,¹² and this was followed a year later by Thomas Addison’s Treatise on the Law of Torts in England.¹³ Other American treatises followed Hilliard’s, and the first case book on the subject was published in 1874.¹⁴ A flurry of books on tort were also published in England towards the close of the nineteenth century.¹⁵ The subject’s arrival was also proclaimed by the curricula of the universities: the first torts class was taught at Harvard in 1870, and tort made its first appearance as an examination paper in Cambridge in 1890, and in Oxford in 1905.

Nor is the explanation for the timing of tort’s recognition as a distinct category in common law systems hard to find. The forms of action ‘had militated against abstraction to principle’,¹⁶ and their demise ‘cleared the way for more systematic exposition and analysis of decisional law with, at most, only subsidiary reference to the process and procedures that produced it’.¹⁷ In England, the final nail in the coffin of the formulary system was the Judicature Act 1875, but that legislation marked the culmination of a long process of decline...