Thursday, August 28, 2014

Chapter 3 (Law Articulated by the Courts--Common Law): From "Elements of Law" to "Introduction to the Law and Legal System of the United States"--Building an Introductory Course to the Legal Curriculum for the 21st Century

(Pix (c) Larry Catá Backer 2014)

Since 2010, I have been posting on the development of a new course I have been developing for our first year law school students, "Elements of Law." The course originally had a quite modest objective--to introduce law students to legal research and reasoning through case law, statutory interpretation, and legal history, processes, and institutions. I chose to broaden its objectives within these specific parameters and development a framing and concepts course that would provide a deep foundation to law students on the legal system they were undertaking to study.
Grounded in the principles of the sociology of law, the course has morphed into an effort to introduce students to law as a self-referencing system with its own particular structures, premises, constraints and language, with its own logic and taboos and its own means of understanding the world. That systemicity (cf. Peter Checkland, Systems Thinking, Systems Practice, Chichester : John Wiley and Sons Ltd, 1999) is then a critical element in the way in which the legal system (in this case of the United States) interacts with the world, both as a legal and as a socio-economic-political actor. The course has also expanded from its original narrow and technical focus, to a broader focus on principles and the use of language and logic to build and operate a system of law. That broadening has made it possible to offer the course not just to first year law students, but also to graduate students in the social sciences and in international affairs, as a grounding in the legal systems that are important in their respective fields.

This post produces some of the materials I will be presenting to the class. I offer these materials in hopes that they may prove of use and that you might share comments, perspectives and suggestions as I develop those materials on this site. Thanks.

This post includes a draft of Chapter 3 (Law Articulated by the Courts--Common Law).

Chapter 3

Law Articulated by Courts: The Common Law

I. Introduction.

            Chapter 1 posed the question—What is law?  The answer ought to have proven more elusive than a student might first consider.  In addition, the student ought to have begun to understand that the question subsumed another question, more far more important to the everyday lives of lawyers in the United States: how do the forms adopted for law affect its character? The substance and form of law adopted is important, because these prove the borders of the lawyer’s field.  By substance, we will mean its substantive elements and its procedural mechanics. By form, we will mean the institutions through which law can be authoritatively made. These definitions suggest those areas of effort where the work of the lawyer is authoritative and draws a line between that and other fields where the lawyer does not speak with authority. It also suggests what sorts of commands that can compel obedience and the institutions that can serve as the compelling force. In its simplest form these definitions and border-drawing exercises determine extent of the law determines the borders of the sorts of undertakings to which a lawyer will be asked to provide services for clients.  Lawyers (courts and legislators as well for that matter), for example, do not give theological advice and ought not to give authoritative pronouncements on economics or aesthetics.

            This chapter is the first of several that introduce students to the four most common forms of law in the United States and the institutions that produces each and the remedial mechanisms available through invocation of each.  This chapter and the one that follows considers law articulated and imposed by courts in the context of resolution of disputes between litigants. This chapter considers its most important substantive form—corresponding roughly to what remains of the common law.  Chapter 4 then treats the important contributions of equity to the law administered by courts. Chapter 5 will introduce students to the law articulated by the legislature, what most people outside the United States have commonly come to understand as the only authoritative source of “law”.  Chapter 6 will then introduce students to the law articulated by regulatory agencies, the increasingly important set of “rules” promulgated by agencies on the basis of power delegated to them by the legislature through statutory “law.” Finally, Chapter 7 moves away from the state and its formal structures of governance through law to introduce students to new and quite dynamic areas of governance produced by non-state actors, and the ways in which public and private actors can manage behaviors without resorting to the traditional forms of law. Each of these forms of law has its own distinctive character, form, and properties.  Each is produced in different ways and is applied differently by different organs of government. 

II. Chapter Readings

·      Arthur R. Hogue, Origins of the Common Law (Indianapolis, Liberty Fund 1986 (1966))
·      Oliver Wendell Holmes, The Common Law (Original Publication Boston: Little, Brown & Co., 1881) Ch. 1, pp. 1-39


Arthur R. Hogue,
Origins of the Common Law
(Indianapolis, Liberty Fund 1986 (1966))

READ pp.  3-29; 185-215


By Oliver Wendell Holmes, Jr.
(Original Publication Boston: Little, Brown & Co., 1881)
PP. 1-38 (original pagination in brackets; footnotes do not follow original).


[1] The object of this book is to present a general view of the Common Law. To accomplish the task, other tools are needed besides logic. It is something to show that the consistency of a system requires a particular result, but it is not all. The life of the law has not been logic: it has been experience. The felt necessities of the time, the prevalent moral and political theories, intuitions of public policy, avowed or unconscious, even the prejudices which judges share with their fellow-men, have had a good deal more to do than the syllogism in determining the rules by which men should be governed. The law embodies the story of a nation's development through many centuries, and it cannot be dealt with as if it contained only the axioms and corollaries of a book of mathematics. In order to know what it is, we must know what it has been, and what it tends to become. We must alternately consult history and existing theories of legislation. But the most difficult labor will be to understand the combination of the two into new products at every stage. The substance of the law at any given time pretty nearly [2] corresponds, so far as it goes, with what is then understood to be convenient; but its form and machinery, and the degree to which it is able to work out desired results, depend very much upon its past.

In Massachusetts today, while, on the one hand, there are a great many rules which are quite sufficiently accounted for by their manifest good sense, on the other, there are some which can only be understood by reference to the infancy of procedure among the German tribes, or to the social condition of Rome under the Decemvirs.[1]

I shall use the history of our law so far as it is necessary to explain a conception or to interpret a rule, but no further. In doing so there are two errors equally to be avoided both by writer and reader. One is that of supposing, because an idea seems very familiar and natural to us, that it has always been so. Many things which we take for granted have had to be laboriously fought out or thought out in past times. The other mistake is the opposite one of asking too much of history. We start with man full grown. It may be assumed that the earliest barbarian whose practices are to be considered, had a good many of the same feelings and passions as ourselves.

The first subject to be discussed is the general theory of liability civil and criminal. The Common Law has changed a good deal since the beginning of our series of reports, and the search after a theory which may now be said to prevail is very much a study of tendencies. I believe that it will be instructive to go back to the early forms of liability, and to start from them.

It is commonly known that the early forms of legal procedure were grounded in vengeance. Modern writers [3] have thought that the Roman law started from the blood feud, and all the authorities agree that the German law begun in that way. The feud led to the composition, at first optional, then compulsory, by which the feud was bought off. The gradual encroachment of the composition may be traced in the Anglo-Saxon laws,[2]  and the feud was pretty well broken up, though not extinguished, by the time of William the Conqueror. The killings and house-burnings of an earlier day became the appeals of mayhem and arson. The appeals de pace et plagis and of mayhem became, or rather were in substance, the action of trespass which is still familiar to lawyers.[3] But as the compensation recovered in the appeal was the alternative of vengeance, we might expect to find its scope limited to the scope of vengeance. Vengeance imports a feeling of blame, and an opinion, however distorted by passion, that a wrong has been done. It can hardly go very far beyond the case of a harm intentionally inflicted: even a dog distinguishes between being stumbled over and being kicked.

Whether for this cause or another, the early English appeals for personal violence seem to have been confined to intentional wrongs. Glanvill[4] mentions melees, blows, and wounds,—all forms of intentional violence. In the fuller description of such appeals given by Bracton[5]  it is made quite clear that they were based on intentional assaults. The appeal de pace et plagis laid an intentional assault, described the nature of the arms used, and the length and depth of the wound. The appellor also had [4] to show that he immediately raised the hue and cry. So when Bracton speaks of the lesser offences, which were not sued by way of appeal, he instances only intentional wrongs, such as blows with the fist, flogging, wounding, insults, and so forth.[6] The cause of action in the cases of trespass reported in the earlier Year Books and in the Abbreviatio Plaeitorum is always an intentional wrong. It was only at a later day, and after argument, that trespass was extended so as to embrace harms which were foreseen, but which were not the intended consequence of the defendant's act.[7] Thence again it extended to unforeseen injuries.[8]

It will be seen that this order of development is not quite consistent with an opinion which has been held, that it was a characteristic of early law not to penetrate beyond the external visible fact, the damnum corpore corpori datum. It has been thought that an inquiry into the internal condition of the defendant, his culpability or innocence, implies a refinement of juridical conception equally foreign to Rome before the Lex Aquilia, and to England when trespass took its shape. I do not know any very satisfactory evidence that a man was generally held liable either in Rome[9] or England for the accidental consequences even of his own act. But whatever may have been the early law, the foregoing account shows the starting-point of the system with which we have to deal. Our system of private liability for the consequences of a man's own acts, that is, for his trespasses, started from the notion of actual intent and actual personal culpability.

The original principles of liability for harm inflicted by [5] another person or thing have been less carefully considered hitherto than those which governed trespass, and I shall therefore devote the rest of this Lecture to discussing them. I shall try to show that this liability also had its root in the passion of revenge, and to point out the changes by which it reached its present form. But I shall not confine myself strictly to what is needful for that purpose, because it is not only most interesting to trace the transformation throughout its whole extent, but the story will also afford an instructive example of the mode in which the law has grown, without a break, from barbarism to civilization. Furthermore, it will throw much light upon some important and peculiar doctrines which cannot be returned to later.

A very common phenomenon, and one very familiar to the student of history, is this. The customs, beliefs, or needs of a primitive time establish a rule or a formula. In the course of centuries the custom, belief, or necessity disappears, but the rule remains. The reason which gave rise to the rule has been forgotten, and ingenious minds set themselves to inquire how it is to be accounted for. Some ground of policy is thought of, which seems to explain it and to reconcile it with the present state of things; and then the rule adapts itself to the new reasons which have been found for it, and enters on a new career. The old form receives a new content, and in time even the form modifies itself to fit the meaning which it has received. The subject under consideration illustrates this course of events very clearly.

I will begin by taking a medley of examples embodying as many distinct rules, each with its plausible and seemingly sufficient ground of policy to explain it.

[6] A man has an animal of known ferocious habits, which escapes and does his neighbor damage. He can prove that the animal escaped through no negligence of his, but still he is held liable. Why? It is, says the analytical jurist, because, although he was not negligent at the moment of escape, he was guilty of remote heedlessness, or negligence, or fault, in having such a creature at all. And one by whose fault damage is done ought to pay for it.

A baker's man, while driving his master's cart to deliver hot rolls of a morning, runs another man down. The master has to pay for it. And when he has asked why he should have to pay for the wrongful act of an independent and responsible being, he has been answered from the time of Ulpian to that of Austin, that it is because he was to blame for employing an improper person. If he answers, that he used the greatest possible care in choosing his driver, he is told that that is no excuse; and then perhaps the reason is shifted, and it is said that there ought to be a remedy against some one who can pay the damages, or that such wrongful acts as by ordinary human laws are likely to happen in the course of the service are imputable to the service.

Next, take a case where a limit has been set to liability which had previously been unlimited. In 1851, Congress passed a law, which is still in force, and by which the owners of ships in all the more common cases of maritime loss can surrender the vessel and her freight then pending to the losers; and it is provided that, thereupon, further proceedings against the owners shall cease. The legislators to whom we owe this act argued that, if a merchant embark a portion of his property upon a hazardous venture, it is reasonable that his stake should be confined to what [7] he puts at risk,—a principle similar to that on which corporations have been so largely created in America during the last fifty years.

It has been a rule of criminal pleading in England down into the present century, that an indictment for homicide must set forth the value of the instrument causing the death, in order that the king or his grantee might claim forfeiture of the deodand,[10] "as an accursed thing," in the language of Blackstone.

I might go on multiplying examples; but these are enough to show the remoteness of the points to be brought together.—As a first step towards a generalization, it will be necessary to consider what is to be found in ancient and independent systems of law.

There is a well-known passage in Exodus,[11] which we shall have to remember later: "If an ox gore a man or a woman, that they die: then the ox shall be surely stoned, and his flesh shall not be eaten; but the owner of the ox shall be quit." When we turn from the Jews to the Greeks, we find the principle of the passage just quoted erected into a system. Plutarch, in his Solon, tells us that a dog that had bitten a man was to be delivered up bound to a log four cubits long. Plato made elaborate provisions in his Laws for many such cases. If a slave killed a man, he was to be given up to the relatives of the deceased.[12]  If he wounded a man, he was to be given up to the injured party to use him as he pleased.[13] So if he did damage to which the injured party did not contribute as a joint cause. In either case, if the owner [8] failed to surrender the slave, he was bound to make good the loss.[14] If a beast killed a man, it was to be slain and cast beyond the borders. If an inanimate thing caused death, it was to be cast beyond the borders in like manner, and expiation was to be made.[15] Nor was all this an ideal creation of merely imagined law, for it was said in one of the speeches of Aeschines, that "we banish beyond our borders stocks and stones and steel, voiceless and mindless things, if they chance to kill a man; and if a man commits suicide, bury the hand that struck the blow afar from its body." This is mentioned quite as an every-day matter, evidently without thinking it at all extraordinary, only to point an antithesis to the honors heaped upon Demosthenes.[16] As late as the second century after Christ the traveller Pausanias observed with some surprise that they still sat in judgment on inanimate things in the Prytaneum.[17]  Plutarch attributes the institution to Draco.[18]

In the Roman law we find the similar principles of the noxoe deditio gradually leading to further results. The Twelve Tables (451 B.C.) provided that, if an animal had done damage, either the animal was to be surrendered or the damage paid for.[19] /6/ We learn from Gains that the same rule was applied to the torts of children or slaves,[20] and there is some trace of it with regard to inanimate things.

The Roman lawyers, not looking beyond their own [9] system or their own time, drew on their wits for an explanation which would show that the law as they found it was reasonable. Gaius said that it was unjust that the fault of children or slaves should be a source of loss to their parents or owners beyond their own bodies, and Ulpian reasoned that a fortiori this was true of things devoid of life, and therefore incapable of fault.[21] This way of approaching the question seems to deal with the right of surrender as if it were a limitation of a liability incurred by a parent or owner, which would naturally and in the first instance be unlimited. But if that is what was meant, it puts the cart before the horse. The right of surrender was not introduced as a limitation of liability, but, in Rome and Greece alike, payment was introduced as the alternative of a failure to surrender.

The action was not based, as it would be nowadays, on the fault of the parent or owner. If it had been, it would always have been brought against the person who had control of the slave or animal at the time it did the harm complained of, and who, if any one, was to blame for not preventing the injury. So far from this being the course, the person to be sued was the owner at the time of suing. The action followed the guilty thing into whosesoever hands it came.[22] And in curious contrast with the principle as inverted to meet still more modern views of public policy, if the animal was of a wild nature, that is, in the very case of the most ferocious animals, the owner ceased to be liable the moment it escaped, because at that moment he ceased to be owner.[23]  There [10] seems to have been no other or more extensive liability by the old law, even where a slave was guilty with his master's knowledge, unless perhaps he was a mere tool in his master's hands.[24] Gains and Ulpian showed an inclination to cut the noxoe deditio down to a privilege of the owner in case of misdeeds committed without his knowledge; but Ulpian is obliged to admit, that by the ancient law, according to Celsus, the action was noxal where a slave was guilty even with the privity of his master.[25]

All this shows very clearly that the liability of the owner was merely a way of getting at the slave or animal which was the immediate cause of offence. In other words, vengeance on the immediate offender was the object of the Greek and early Roman process, not indemnity from the master or owner. The liability of the owner was simply a liability of the offending thing. In the primitive customs of Greece it was enforced by a judicial process expressly directed against the object, animate or inanimate. The Roman Twelve Tables made the owner, instead of the thing itself, the defendant, but did not in any way change the ground of liability, or affect its limit. The change was simply a device to allow the owner to protect his interest.[26]

But it may be asked how inanimate objects came to be [11] pursued in this way, if the object of the procedure was to gratify the passion of revenge. Learned men have been ready to find a reason in the personification of inanimate nature common to savages and children, and there is much to confirm this view. Without such a personification, anger towards lifeless things would have been transitory, at most. It is noticeable that the commonest example in the most primitive customs and laws is that of a tree which falls upon a man, or from which he falls and is killed. We can conceive with comparative ease how a tree might have been put on the same footing with animals. It certainly was treated like them, and was delivered to the relatives, or chopped to pieces for the gratification of a real or simulated passion.[27]

In the Athenian process there is also, no doubt, to be traced a different thought. Expiation is one of the ends most insisted on by Plato, and appears to have been the purpose of the procedure mentioned by Aeschines. Some passages in the Roman historians which will be mentioned again seem to point in the same direction.[28]

Another peculiarity to be noticed is, that the liability seems to have been regarded as attached to the body doing the damage, in an almost physical sense. An untrained intelligence only imperfectly performs the analysis by which jurists carry responsibility back to the beginning of a chain of causation. The hatred for anything giving us pain, which wreaks itself on the manifest cause, and which leads even civilized man to kick a door when it pinches his finger, is embodied in the noxoe deditio and [12] other kindred doctrines of early Roman law. There is a defective passage in Gaius, which seems to say that liability may sometimes be escaped by giving up even the dead body of the offender.[29]  So Livy relates that, Brutulus Papins having caused a breach of truce with the Romans, the Samnites determined to surrender him, and that, upon his avoiding disgrace and punishment by suicide, they sent his lifeless body. It is noticeable that the surrender seems to be regarded as the natural expiation for the breach of treaty,[30] and that it is equally a matter of course to send the body when the wrong-doer has perished.[31]

The most curious examples of this sort occur in the region of what we should now call contract. Livy again furnishes an example, if, indeed, the last is not one. The Roman Consul Postumius concluded the disgraceful peace of the Caudine Forks (per sponsionem, as Livy says, denying the common story that it was per feedus), and he was sent to Rome to obtain the sanction of the people. When there however, he proposed that the persons who had made the [13] contract, including himself, should be given up in satisfaction of it. For, he said, the Roman people not having sanctioned the agreement, who is so ignorant of the jus fetialium as not to know that they are released from obligation by surrendering us? The formula of surrender seems to bring the case within the noxoe deditio.[32] Cicero narrates a similar surrender of Mancinus by the pater-patratus to the Numantines, who, however, like the Samnites in the former case, refused to receive him.[33]

It might be asked what analogy could have been found between a breach of contract and those wrongs which excite the desire for vengeance. But it must be remembered that the distinction between tort and breaches of contract, and especially between the remedies for the two, is not found ready made. It is conceivable that a procedure adapted to redress for violence was extended to other cases as they arose. Slaves were surrendered for theft as well as [14] for assault;[34] and it is said that a debtor who did not pay his debts, or a seller who failed to deliver an article for which he had been paid, was dealt with on the same footing as a thief.[35] This line of thought, together with the quasi material conception of legal obligations as binding the offending body, which has been noticed, would perhaps explain the well-known law of the Twelve Tables as to insolvent debtors. According to that law, if a man was indebted to several creditors and insolvent, after certain formalities they might cut up his body and divide it among them. If there was a single creditor, he might put his debtor to death or sell him as a slave.[36]

If no other right were given but to reduce a debtor to slavery, the law might be taken to look only to compensation, and to be modelled on the natural working of self-redress.[37] The principle of our own law, that taking a man's body on execution satisfies the debt, although he is not detained an hour, seems to be explained in that way. But the right to put to death looks like vengeance, and the division of the body shows that the debt was conceived very literally to inhere in or bind the body with a vinculum juris.

Whatever may be the true explanation of surrender in connection with contracts, for the present purpose we need not go further than the common case of noxoe deditio for wrongs. Neither is the seeming adhesion of liability to the very body which did the harm of the first importance. [15] The Roman law dealt mainly with living creatures,—with animals and slaves. If a man was run over, it did not surrender the wagon which crushed him, but the ox which drew the wagon.[38] At this stage the notion is easy to understand. The desire for vengeance may be felt as strongly against a slave as against a freeman, and it is not without example nowadays that a like passion should be felt against an animal. The surrender of the slave or beast empowered the injured party to do his will upon them. Payment by the owner was merely a privilege in case he wanted to buy the vengeance off.

It will readily be imagined that such a system as has been described could not last when civilization had advanced to any considerable height. What had been the privilege of buying off vengeance by agreement, of paying the damage instead of surrendering the body of the offender, no doubt became a general custom. The Aquilian law, passed about a couple of centuries later than the date of the Twelve Tables, enlarged the sphere of compensation for bodily injuries. Interpretation enlarged the Aquilian law. Masters became personally liable for certain wrongs committed by their slaves with their knowledge, where previously they were only bound to surrender the slave.[39] If a pack-mule threw off his burden upon a passer-by because he had been improperly overloaded, or a dog which might have been restrained escaped from his master and bit any one, the old noxal action, as it was called, gave way to an action under the new law to enforce a general personal liability.[40]  Still later, ship-owners and innkeepers were made liable [16] as if they were wrong-doers for wrongs committed by those in their employ on board ship or in the tavern, although of course committed without their knowledge. The true reason for this exceptional responsibility was the exceptional confidence which was necessarily reposed in carriers and innkeepers.[41] But some of the jurists, who regarded the surrender of children and slaves as a privilege intended to limit liability, explained this new liability on the ground that the innkeeper or ship-owner was to a certain degree guilty of negligence in having employed the services of bad men.[42] This was the first instance of a master being made unconditionally liable for the wrongs of his servant. The reason given for it was of general application, and the principle expanded to the scope of the reason.

The law as to ship-owners and innkeepers introduced another and more startling innovation. It made them responsible when those whom they employed were free, as well as when they were slaves.[43] /3/ For the first time one man was made answerable for the wrongs of another who was also answerable himself, and who had a standing before the law. This was a great change from the bare permission to ransom one's slave as a privilege. But here we have the history of the whole modern doctrine of master and servant, and principal and agent. All servants are now as free and as liable to a suit as their masters. Yet the principle introduced on special grounds in a special case, when servants were slaves, is now the general law of this country and England, and under it men daily have to pay large sums for other people's acts, in which they had no part and [17] for which they are in no sense to blame. And to this day the reason offered by the Roman jurists for an exceptional rule is made to justify this universal and unlimited responsibility.[44]

So much for one of the parents of our common law. Now let us turn for a moment to the Teutonic side. The Salic Law embodies usages which in all probability are of too early a date to have been influenced either by Rome or the Old Testament. The thirty-sixth chapter of the ancient text provides that, if a man is killed by a domestic animal, the owner of the animal shall pay half the composition (which he would have had to pay to buy off the blood feud had he killed the man himself), and for the other half give up the beast to the complainant.[45] So, by chapter thirty-five, if a slave killed a freeman, he was to be surrendered for one half of the composition to the relatives of the slain man, and the master was to pay the other half. But according to the gloss, if the slave or his master had been maltreated by the slain man or his relatives, the master had only to surrender the slave.[46] It is interesting to notice that those Northern sources which Wilda takes to represent a more primitive stage of German law confine liability for animals to surrender alone.[47]  There is also a trace of the master's having been able to free himself in some cases, at a later date, by showing that the slave was no longer in [18] his possession.[48]  There are later provisions making a master liable for the wrongs committed by his slave by his command.[49]  In the laws adapted by the Thuringians from the earlier sources, it is provided in terms that the master is to pay for all damage done by his slaves.[50]

In short, so far as I am able to trace the order of development in the customs of the German tribes, it seems to have been entirely similar to that which we have already followed in the growth of Roman law. The earlier liability for slaves and animals was mainly confined to surrender; the later became personal, as at Rome.

The reader may begin to ask for the proof that all this has any bearing on our law of today. So far as concerns the influence of the Roman law upon our own, especially the Roman law of master and servant, the evidence of it is to be found in every book which has been written for the last five hundred years. It has been stated already that we still repeat the reasoning of the Roman lawyers, empty as it is, to the present day. It will be seen directly whether the German folk-laws can also be followed into England.

In the Kentish laws of Hlothhaere and Eadrie (A.D. 680) [19] it is said, "If any one's slave slay a freeman, whoever it be, let the owner pay with a hundred shillings, give up the slayer," &c.[51] There are several other similar provisions. In the nearly contemporaneous laws of Ine, the surrender and payment are simple alternatives. "If a Wessex slave slay an Englishman, then shall he who owns him deliver him up to the lord and the kindred, or give sixty shillings for his life."[52] Alfred's laws (A.D. 871-901) have a like provision as to cattle. "If a neat wound a man, let the neat be delivered up or compounded for."[53]  And Alfred, although two hundred years later than the first English lawgivers who have been quoted, seems to have gone back to more primitive notions than we find before his time. For the same principle is extended to the case of a tree by which a man is killed. "If, at their common work, one man slay another unwilfully, let the tree be given to the kindred, and let them have it off the land within thirty nights. Or let him take possession of it who owns the wood."[54]

It is not inapposite to compare what Mr. Tylor has mentioned concerning the rude Kukis of Southern Asia. "If a tiger killed a Kuki, his family were in disgrace till they had retaliated by killing and eating this tiger, or another; but further, if a man was killed by a fall from a tree, his relatives would take their revenge by cutting the tree down, and scattering it in chips."[55]

To return to the English, the later laws, from about a hundred years after Alfred down to the collection known as the laws of Henry I, compiled long after the Conquest, [20] increase the lord's liability for his household, and make him surety for his men's good conduct. If they incur a fine to the king and run away, the lord has to pay it unless he can clear himself of complicity. But I cannot say that I find until a later period the unlimited liability of master for servant which was worked out on the Continent, both by the German tribes and at Rome. Whether the principle when established was an indigenous growth, or whether the last step was taken under the influence of the Roman law, of which Bracton made great use, I cannot say. It is enough that the soil was ready for it, and that it took root at an early day.[56] This is all that need be said here with regard to the liability of a master for the misdeeds of his servants.

It is next to be shown what became of the principle as applied to animals. Nowadays a man is bound at his peril to keep his cattle from trespassing, and he is liable for damage done by his dog or by any fierce animal, if he has notice of a tendency in the brute to do the harm complained of. The question is whether any connection can be established between these very sensible and intelligible rules of modern law and the surrender directed by King Alfred.

Let us turn to one of the old books of the Scotch law, where the old principle still appears in full force and is stated with its reasons as then understood, [57]

"Gif ane wylde or head-strang horse, carries ane man [21] against his will over an craig, or heuch, or to the water, and the man happin to drowne, the horse sall perteine to the king as escheit.

"Bot it is otherwise of ane tame and dantoned horse; gif any man fulishlie rides, and be sharp spurres compelles his horse to take the water, and the man drownes, the horse sould not be escheit, for that comes be the mans fault or trespasse, and not of the horse, and the man has receaved his punishment, in sa farre as he is perished and dead; and the horse quha did na fault, sould not be escheit.

"The like reason is of all other beastes, quhilk slayes anie man, [it is added in a later work, "of the quhilk slaughter they haue gilt,"] for all these beasts sould be escheit."[58]

"The Forme and Maner of Baron Courts" continues as follows:—

"It is to witt, that this question is asked in the law, Gif ane lord hes ane milne, and any man fall in the damne, and be borne down with the water quhill he comes to the quheill, and there be slaine to death with the quheill; quhither aught the milne to be eseheir or not? The law sayes thereto nay, and be this reason, For it is ane dead thing, and ane dead thing may do na fellony, nor be made escheit throw their gilt. Swa the milne in this case is not culpable, and in the law it is lawfull to the lord of the land to haue ane mylne on his awin water quhere best likes him."[59]

The reader will see in this passage, as has been remarked already of the Roman law, that a distinction is taken between things which are capable of guilt and those which [22] are not,—between living and dead things; but he will also see that no difficulty was felt in treating animals as guilty.

Take next an early passage of the English law, a report of what was laid down by one of the English judges. In 1333 it was stated for law, that, "if my dog kills your sheep, and I, freshly after the fact, tender you the dog, you are without recovery against me."[60] More than three centuries later, in 1676, it was said by Twisden, J. that, "if one hath kept a tame fox, which gets loose and grows wild, he that hath kept him before shall not answer for the damage the fox doth after he hath lost him, and he hath resumed his wild nature."[61] It is at least doubtful whether that sentence ever would have been written but for the lingering influence of the notion that the ground of the owner's liability was his ownership of the offending: thing and his failure to surrender it. When the fox escaped, by another principle of law the ownership was at an end. In fact, that very consideration was seriously pressed in England as late as 1846, with regard to a monkey which escaped and bit the plaintiff,[62] So it seems to be a reasonable conjecture, that it was this way of thinking which led Lord Holt, near the beginning of the last century, to intimate that one ground on which a man is bound at his peril to restrain cattle from trespassing is that he has valuable property in such animals, whereas he has not dogs, for which his responsibility is less.[63]  To this day, in fact, cautious judges state the law as to cattle to be, that, "if I am the owner of an animal in which by law the [23] right of property can exist, I am bound to take care that it does not stray into the land of my neighbor."[64]

I do not mean that our modern law on this subject is only a survival, and that the only change from primitive notions was to substitute the owner for the offending animal. For although it is probable that the early law was one of the causes which led to the modern doctrine, there has been too much good sense in every stage of our law to adopt any such sweeping consequences as would follow from the wholesale transfer of liability supposed. An owner is not bound at his peril to keep his cattle from harming his neighbor's person.[65] And in some of the earliest instances of personal liability, even for trespass on a neighbor's land, the ground seems to have been the owner's negligence.[66]

It is the nature of those animals which the common law recognizes as the subject of ownership to stray, and when straying to do damage by trampling down and eating crops. At the same time it is usual and easy to restrain them. On the other hand, a dog, which is not the subject of property, does no harm by simply crossing the land of others than its owner. Hence to this extent the new law might have followed the old. The right of property in the [24] offending animal, which was the ancient ground of responsibility, might have been adopted safely enough as the test of a liability based on the fault of the owner. But the responsibility for damage of a kind not to be expected from such animals is determined on grounds of policy comparatively little disturbed by tradition. The development of personal liability for fierce wild animals at Rome has been explained. Our law seems to have followed the Roman.

We will now follow the history of that branch of the primitive notion which was least likely to survive,—the liability of inanimate things.

It will be remembered that King Alfred ordained the surrender of a tree, but that the later Scotch law refused it because a dead thing could not have guilt. It will be remembered, also, that the animals which the Scotch law forfeited were escheat to the king. The same thing has remained true in England until well into this century, with regard even to inanimate objects. As long ago as Bracton,[67] in case a man was slain, the coroner was to value the object causing the death, and that was to be forfeited sa deodand "pro rege." It was to be given to God, that is to say to the Church, for the king, to be expended for the good of his soul. A man's death had ceased to be the private affair of his friends as in the time of the barbarian folk-laws. The king, who furnished the court, now sued for the penalty. He supplanted the family in the claim on the guilty thing, and the Church supplanted him.

In Edward the First's time some of the cases remind of the barbarian laws at their rudest stage. If a man fell from a tree, the tree was deodand.[68] If he drowned in a [25] well, the well was to be filled up.[69] It did not matter that the forfeited instrument belonged to an innocent person. "Where a man killeth another with the sword of John at Stile, the sword shall be forfeit as deodand, and yet no default is in the owner."[70] That is from a book written in the reign of Henry VIII., about 1530. And it has been repeated from Queen Elizabeth's time[71]  to within one hundred years,[72] that if my horse strikes a man, and afterwards I sell my horse, and after that the man dies, the horse shall be forfeited. Hence it is, that, in all indictments for homicide, until very lately it has been necessary to state the instrument causing the death and its value, as that the stroke was given by a certain penknife, value sixpence, so as to secure the forfeiture. It is said that a steam-engine has been forfeited in this way.

I now come to what I regard as the most remarkable transformation of this principle, and one which is a most important factor in our law as it is today. I must for the moment leave the common law and take up the doctrines of the Admiralty. In the early books which have just been referred to, and long afterwards, the fact of motion is adverted to as of much importance. A maxim of Henry Spigurnel, a judge in the time of Edward I., is reported, that "where a man is killed by a cart, or by the fall of a house, or in other like manner, and the thing in motion is the cause of the death, it shall be deodand."[73] So it was [26] said in the next reign that "oinne illud quod mover cum eo quod occidit homines deodandum domino Regi erit, vel feodo clerici."[74]  The reader sees how motion gives life to the object forfeited.

The most striking example of this sort is a ship. And accordingly the old books say that, if a man falls from a ship and is drowned, the motion of the ship must be taken to cause the death, and the ship is forfeited,—provided, however, that this happens in fresh water.[75] For if the death took place on the high seas, that was outside the ordinary jurisdiction. This proviso has been supposed to mean that ships at sea were not forfeited;[76] but there is a long series of petitions to the king in Parliament that such forfeitures may be done away with, which tell a different story.[77]  The truth seems to be that the forfeiture took place, but in a different court. A manuscript of the reign of Henry VI., only recently printed, discloses the fact that, if a man was killed or drowned at sea by the motion of the ship, the vessel was forfeited to the admiral upon a proceeding in the admiral's court, and subject to release by favor of the admiral or the king.[78]

A ship is the most living of inanimate things. Servants sometimes say "she" of a clock, but every one gives a gender to vessels. And we need not be surprised, therefore, to find a mode of dealing which has shown such extraordinary vitality in the criminal law applied with even more striking thoroughness in the Admiralty. It is only by supposing [27] the ship to have been treated as if endowed with personality, that the arbitrary seeming peculiarities of the maritime law can be made intelligible, and on that supposition they at once become consistent and logical.

By way of seeing what those peculiarities are, take first a case of collision at sea. A collision takes place between two vessels, the Ticonderoga and the Melampus, through the fault of the Ticonderoga alone. That ship is under a lease at the time, the lessee has his own master in charge, and the owner of the vessel has no manner of control over it. The owner, therefore, is not to blame, and he cannot even be charged on the ground that the damage was done by his servants. He is free from personal liability on elementary principles. Yet it is perfectly settled that there is a lien on his vessel for the amount of the damage done,[79] and this means that that vessel may be arrested and sold to pay the loss in any admiralty court whose process will reach her. If a livery-stable keeper lets a horse and wagon to a customer, who runs a man down by careless driving, no one would think of claiming a right to seize the horse and wagon. It would be seen that the only property which could be sold to pay for a wrong was the property of the wrong-doer.

But, again, suppose that the vessel, instead of being under lease, is in charge of a pilot whose employment is made compulsory by the laws of the port which she is just entering. The Supreme Court of the United States holds the ship liable in this instance also.[80] The English courts would probably have decided otherwise, and the matter is settled in England by legislation. But there the court of appeal, the Privy Council, has been largely composed of common-law [28]lawyers, and it has shown a marked tendency to assimilate common-law doctrine. At common law one who could not impose a personal liability on the owner could not bind a particular chattel to answer for a wrong of which it had been the instrument. But our Supreme Court has long recognized that a person may bind a ship, when he could not bind the owners personally, because he was not the agent.

It may be admitted that, if this doctrine were not supported by an appearance of good sense, it would not have survived. The ship is the only security available in dealing with foreigners, and rather than send one's own citizens to search for a remedy abroad in strange courts, it is easy to seize the vessel and satisfy the claim at home, leaving the foreign owners to get their indemnity as they may be able. I dare say some such thought has helped to keep the practice alive, but I believe the true historic foundation is elsewhere. The ship no doubt, like a sword,[81] would have been forfeited for causing death, in whosesoever hands it might have been. So, if the master and mariners of a ship, furnished with letters of reprisal, committed piracy against a friend of the king, the owner lost his ship by the admiralty law, although the crime was committed without his knowledge or assent.[82] It seems most likely that the principle by which the ship was forfeited to the king for causing death, or for piracy, was the same as that by which it was bound to private sufferers for other damage, in whose hands soever it might have been when it did the harm.

If we should say to an uneducated man today, "She did it and she ought to pay for it," it may be doubted [29] whether he would see the fallacy, or be ready to explain that the ship was only property, and that to say, "The ship has to pay for it,"[83] was simply a dramatic way of saying that somebody's property was to be sold, and the proceeds applied to pay for a wrong committed by somebody else.

It would seem that a similar form of words has been enough to satisfy the minds of great lawyers. The following is a passage from a judgment by Chief Justice Marshall, which is quoted with approval by Judge Story in giving the opinion of the Supreme Court of the United States: "This is not a proceeding against the owner; it is a proceeding against the vessel for an offence committed by the vessel; which is not the less an offence, and does not the less subject her to forfeiture, because it was committed without the authority and against the will of the owner. It is true that inanimate matter can commit no offence. But this body is animated and put in action by the crew, who are guided by the master. The vessel acts and speaks by the master. She reports herself by the master. It is, therefore, not unreasonable that the vessel should be affected by this report." And again Judge Story quotes from another case: "The thing is here primarily considered as the offender, or rather the offence is primarily attached to the thing."[84]

In other words, those great judges, although of course aware that a ship is no more alive than a mill-wheel, thought that not only the law did in fact deal with it as if it were alive, but that it was reasonable that the law should do so. The reader will observe that they do not say simply that it is reasonable on grounds of policy to [30] sacrifice justice to the owner to security for somebody else but that it is reasonable to deal with the vessel as an offending thing. Whatever the hidden ground of policy may be, their thought still clothes itself in personifying language.

Let us now go on to follow the peculiarities of the maritime law in other directions. For the cases which have been stated are only parts of a larger whole.

By the maritime law of the Middle Ages the ship was not only the source, but the limit, of liability.[85] The rule already prevailed, which has been borrowed and adopted by the English statutes and by our own act of Congress of 1851, according to which the owner is discharged from responsibility for wrongful acts of a master appointed by himself upon surrendering his interest in the vessel and the freight which she had earned. By the doctrines of agency he would be personally liable for the whole damage. If the origin of the system of limited liability which is believed to be so essential to modern commerce is to be attributed to those considerations of public policy on which it would now be sustained, that system has nothing to do with the law of collision. But if the limit of liability here stands on the same ground as the noxoe deditio, confirms the explanation already given of the liability of the ship for wrongs done by it while out of the owner's hands, and conversely existence of that liability confirms the argument here.

Let us now take another rule, for which, as usual, there is a plausible explanation of policy. Freight, it is said, the mother of wages; for, we are told, "if the ship perished, [31] if the mariners were to have their wages in such cases, they would not use their endeavors, nor hazard their lives, for the safety of the ship."[86] The best commentary on this reasoning is, that the law has recently been changed by statute. But even by the old law there was an exception inconsistent with the supposed reason. In case of shipwreck, which was the usual case of a failure to earn freight, so long as any portion of the ship was saved, the lien of the mariners remained. I suppose it would have been said, because it was sound policy to encourage them to save all they could. If we consider that the sailors were regarded as employed by the ship, we shall understand very readily both the rule and the exception. "The ship is the debtor," as was said in arguing a case decided in the time of William III.[87] If the debtor perished, there was an end of the matter. If a part came ashore, that might be proceeded against.

Even the rule in its modern form, that freight is the mother of wages, is shown by the explanation commonly given to have reference to the question whether the ship is lost or arrive safe. In the most ancient source of the maritime law now extant, which has anything about the matter, so far as I have been able to discover, the statement is that the mariners will lose their wages when the ship is lost.[88] In like manner, in what is said by its English [32] editor, Sir Travers Twiss, to be the oldest part of the Consulate of the Sea,[89] we read that "whoever the freighter may be who runs away or dies, the ship is bound to pay: the mariners."[90] I think we may assume that the vessel was bound by the contract with the sailors, much in the same way as it was by the wrongs for which it was answerable, just as the debtor's body was answerable for his debts, as well as for his crimes, under the ancient law of Rome.

The same thing is true of other maritime dealings with the vessel, whether by way of contract or otherwise. If salvage service is rendered to a vessel, the admiralty court will hold the vessel, although it has been doubted whether an action of contract would lie, if the owners were sued at law.[91] So the ship is bound by the master's contract to carry cargo, just as in case of collision, although she was under lease at the time. In such cases, also, according to our Supreme Court, the master may bind the vessel when he cannot bind the general owners.[92] "By custom the ship is bound to the merchandise, and the merchandise to the ship."[93] "By the maritime law every contract of the master implies an hypothecation."[94] It might be urged, no doubt, with force, that, so far as the usual maritime contracts are concerned, the dealing must be on the security of the ship or merchandise in many cases, and therefore [33] that it is policy to give this security in all cases; that the risk to which it subjects ship-owners is calculable, and that they must take it into account when they let their vessels. Again, in many cases, when a party asserts a maritime lien by way of contract, he has improved the condition of the thing upon which the lien is claimed, and this has been recognized as a ground for such a lien in some systems.[95] But this is not true universally, nor in the most important cases. It must be left to the reader to decide whether ground has not been shown for believing that the same metaphysical confusion which naturally arose as to the ship's wrongful acts, affected the way of thinking as to her contracts. The whole manner of dealing with vessels obviously took the form which prevailed in the eases first mentioned. Pardessus, a high authority, says that the lien for freight prevails even against the owner of stolen goods, "as the master deals less with the person than the thing."[96] So it was said in the argument of a famous English case, that "the ship is instead of the owner, and therefore is answerable."[97] In many cases of contract, as well as tort, the vessel was not only the security for the debt, but the limit of the owner's liability.

The principles of the admiralty are embodied in its form of procedure. A suit may be brought there against a vessel by name, any person interested in it being at liberty to come in and defend, but the suit, if successful, ending in a sale of the vessel and a payment of the plaintiff's claim out of the proceeds. As long ago as the time of James I. it was said that "the libel ought to be only [34] against the ship and goods, and not against the party."[98] And authority for the statement was cited from the reign of Henry VI., the same reign when, as we have seen, the Admiral claimed a forfeiture of ships for causing death. I am bound to say, however, that I cannot find such an authority of that date.

We have now followed the development of the chief forms of liability in modern law for anything other than the immediate and manifest consequences of a man's own acts. We have seen the parallel course of events in the two parents,—the Roman law and the German customs, and in the offspring of those two on English soil with regard to servants, animals, and inanimate things. We have seen a single germ multiplying and branching into products as different from each other as the flower from the root. It hardly remains to ask what that germ was. We have seen that it was the desire of retaliation against the offending thing itself. Undoubtedly, it might be argued that many of the rules stated were derived from a seizure of the offending thing as security for reparation, at first, perhaps, outside the law.[99] That explanation, as well as the one offered here; would show that modern views of responsibility had not yet been attained, as the owner of the thing might very well not have been the person in fault. But such has not been the view of those most competent to judge. A consideration of the earliest instances will show, as might have been expected, that vengeance, not compensation, and vengeance on the offending thing, was the original object. The ox in Exodus was to be stoned. The axe in the Athenian law was to be banished. The tree, in Mr. Tylor's instance, was to be chopped to pieces. The [35] slave under all the systems was to be surrendered to the relatives of the slain man, that they might do with him what they liked.[100] The deodand was an accursed thing. The original limitation of liability to surrender, when the owner was before the court, could not be accounted for if it was his liability, and not that of his property, which was in question. Even where, as in some of the cases, expiation seems to be intended rather than vengeance, the object is equally remote from an extrajudicial distress.

The foregoing history, apart from the purposes for which it has been given, well illustrates the paradox of form and substance in the development of law. In form its growth is logical. The official theory is that each new decision follows syllogistically from existing precedents. But just as the clavicle in the cat only tells of the existence of some earlier creature to which a collar-bone was useful, precedents survive in the law long after the use they once served is at an end and the reason for them has been forgotten. The result of following them must often be failure and confusion from the merely logical point of view.

On the other hand, in substance the growth of the law is legislative. And this in a deeper sense than that what the courts declare to have always been the law is in fact new. It is legislative in its grounds. The very considerations which judges most rarely mention, and always with an apology, are the secret root from which the law draws all the juices of life. I mean, of course, considerations of what is expedient for the community concerned. Every important principle which is developed by litigation is in fact and at bottom the result of more or less definitely understood views of public policy; most generally, to be sure, [36] under our practice and traditions, the unconscious result of instinctive preferences and inarticulate convictions, but none the less traceable to views of public policy in the last analysis. And as the law is administered by able and experienced men, who know too much to sacrifice good sense to a syllogism, it will be found that, when ancient rules maintain themselves in the way that has been and will be shown in this book, new reasons more fitted to the time have been found for them, and that they gradually receive a new content, and at last a new form, from the grounds to which they have been transplanted.

But hitherto this process has been largely unconscious. It is important, on that account, to bring to mind what the actual course of events has been. If it were only to insist on a more conscious recognition of the legislative function of the courts, as just explained, it would be useful, as we shall see more clearly further on.[101]

What has been said will explain the failure of all theories which consider the law only from its formal side; whether they attempt to deduce the corpus from a priori postulates, or fall into the humbler error of supposing the science of the law to reside in the elegantia juris, or logical cohesion of part with part. The truth is, that the law always approaching, and never reaching, consistency. It is forever adopting new principles from life at one end, and it always retains old ones from history at the other, which have not yet been absorbed or sloughed off. It will become entirely consistent only when it ceases to grow.

The study upon which we have been engaged is necessary both for the knowledge and for the revision of the law. [37] However much we may codify the law into a series of seemingly self-sufficient propositions, those propositions will be but a phase in a continuous growth. To understand their scope fully, to know how they will be dealt with by judges trained in the past which the law embodies, we must ourselves know something of that past. The history of what the law has been is necessary to the knowledge of what the law is.

Again, the process which I have described has involved the attempt to follow precedents, as well as to give a good reason for them. When we find that in large and important branches of the law the various grounds of policy on which the various rules have been justified are later inventions to account for what are in fact survivals from more primitive times, we have a right to reconsider the popular reasons, and, taking a broader view of the field, to decide anew whether those reasons are satisfactory. They may be, notwithstanding the manner of their appearance. If truth were not often suggested by error, if old implements could not be adjusted to new uses, human progress would be slow. But scrutiny and revision are justified.

But none of the foregoing considerations, nor the purpose of showing the materials for anthropology contained in the history of the law, are the immediate object here. My aim and purpose have been to show that the various forms of liability known to modern law spring from the common ground of revenge. In the sphere of contract the fact will hardly be material outside the cases which have been stated in this Lecture. But in the criminal law and the law of torts it is of the first importance. It shows that they have started from a moral basis, from the thought that some one was to blame.

[38] It remains to be proved that, while the terminology of morals is still retained, and while the law does still and always, in a certain sense, measure legal liability by moral standards, it nevertheless, by the very necessity of its nature, is continually transmuting those moral standards into external or objective ones, from which the actual guilt of the party concerned is wholly eliminated.



1. Is it possible to reconcile the Institute’s notion of justice, with the concept of the basis for Common Law in Holmes?   If so, might you agree with Holmes that the foundation of justice in the common law is vengeance?

2.  To what extent is the state and the legislature relevant to the common law system in Home’s conception? 

3.  The Institutes speaks to authority as a foundational element for the expression of law.  What is the source of the authority for the expression of Common Law?  


III. Law Articulated by Courts: The Common Law

            In our last chapter we used Justinian’s Institutes to identify the object of our exploration, law, and the structures created to conceive, build and implement law through collaborations by a variety of distinct actors. We then used the problem of jury nullification to bring the ancient insights of the Institutes back to contemporary times and the context of the United States. The Institutes provided a useful basis for structuring our understanding of the question of law in ways that reflect much that is still current as the foundation of law systems in the West. Several themes were identified that will follow students throughout the course. First there is the connection between law and justice that sits at the center of much Western jurisprudence. Law is understood as the manifestation of justice. But justice is understood in two distinct aspects―as principles of form and as contextualized substance. The initial core formal principles of justice remain central to Western law: accessibility (no secret law) and predictability (the rules must be applied in the same way to the same set of circumstances and actors). The substantive component of justice (manifested as law) is harder to define. We start with the general notion of giving everyone their due. But that principle is meaningless without context. The content of law, its substance, comes from outside of law itself. You have to look for the particulars of law elsewhere. And the Institutes provide a structure for deriving the substance of law with a quite certain (but variable) context―first the state and its government and then a set of three principle sources of law that describe both the place and content of substantive law rules.

            The three sources recognized as providing law its substance are natural law, the law of nations and the civil law of the state. Each remains a powerful source of legal substance, that is of determining the meaning of giving everyone their due. The law of nature provides an immutable set of substantive rules derived from our interpretation of the natural order of things (scientific observation) and also derived from our sense of the divine order of things (religion/morals/ethics). These sometimes come into conflict with each other in modern times and are of the conflicts are of the essence to modern American (and especially constitutional) law. The sources of both the law of nations and the civil law of a state can be found first in the customs and traditions of states and the people respectively. In this sense we come to understand law first as passive in the sense that it reflects the behaviors of the people it is meant to regulate. But in both cases law can be understood in a positivist and instrumental sense. Bound up ion the idea of the law of nations and that of states is the idea of consent. Law may be derived from custom but it achieves its legitimacy only when it is adopted into one of a number of identified forms (statute, administrative regulation, customary law etc.) through the organs of the state to which the people have delegated authority or by direct action of the people. Thus the ultimate substance of law in a legitimately organized legal community―they are a set of rules reflecting the practices and desires of the people who consent to be bound thereby.

            To understand how this works, consider a central element of the first year course in criminal law―killing. Adopting the Institute’s approach, how might one give content to a law of “killing.”  We understand at the outset three constraining elements, grounded in the purpose of law as a manifestation of justice: it must be accessible (available and understandable), it must be predictable (applied more or less uniformly to similar sets of facts), and it must “give every man his due.” Giving every man his due is derived from a matrix of factors that are process and substance based. The process elements include the form which our rules of killing will take (statutes, regulation, constitutional law, treaty, court rule, etc.) and thus the way it will be adopted. That, in turn, is a function of the source of the content of the rule. For that one has to determine the extent to which any rules of killing are framed by substantive rules derived from the law of nature, the law of nations and civil law.

            We start with the law of nature precisely because tends to set the foundation for discussion against which the transnational and local customs and desires of individuals represent an acceptable deviation. If we think of the law of nations as grounded in science (reason), we quickly come to the conclusion that “nature” is indifferent to killing, or that, indeed, killing is an efficient basis for establishing and disciplining social order in pack communities. But if we think of the law of nature as grounded in divine principles (extrinsic and superior to the natural order) then religion, with its morals and ethics (faith) provides an immutable foundation that insists on a hierarchy of killing that may provide a basis for rules regulating the killing of individuals. And in the West, of course, religion does serve that purpose, of adding substantive content to our notion of justice manifested in law. Religion in the West makes creates a complex system for distinguishing between a large variety of killing, which produces a continuum ranging from almost absolute condemnation (murder, a particular subset of killing) to protection of the self (justifiable killing). It also distinguishes between the consequences of institutional killing (killing at the behest of the state) and killing for individual or personal reasons (murder mostly). Now a society is ready to create substantive rules for the regulation of killing by its public bodies and natural or juridical persons. Here the law of nations and the civil law play an important role. Each can suggest the framework within which the potentially complex distinctions among different forms of killing may be permitted, excused or condemned. For that purpose the customs and traditions of a locality may play an important role (e.g., heat of passion killing, reckless killing, etc.). In most jurisdictions, following natural law frameworks, some forms of killing may be prohibited even where otherwise permitted (the state may be prohibited, for example, form killing any person in the absence of a hearing and the preferring of a high standard of evidence against the accused). But these standards may vary and the extent to which they may be waived will vary according to the local customs and traditions of the people who will be bound by these rules. Increasingly, the law of nations, now understood more narrowly as the expression of international standards through law among states (treaties and conventions) may serve as a disciplining framework on local custom (minimum global standards), or it may suggest goals. Most of this will be made accessible through statutes, administrative regulations (rules of procedure and evidence), subject to constitutional limitations and the constraints of treaties on local practice. That aggregate then represents “every person’s due” with respect to killing in any jurisdiction. Thus, when a student confronts the criminal law of killing in any jurisdiction, she intuits but is rarely conscious of the complex interactions that produce each criminal statute and that connect each of them to the wider web of rules within which it is understood, interpreted and implemented by police, prosecutors, defense council, international organizations and civil society actors. Yet this knowledge is critical when seeking to apply the law, extend it, oppose it or change it before courts, legislatures or international tribunals. This also helps explain why the law regulating killing is so distinct yet not altogether dissimilar in New York, Pennsylvania, France, and Russia.

            This chapter builds on this foundation by beginning to explore in more detail the modern sources of law that serve as the foundation of the legal system of the United States. These sources are central to your studies in the conventional first year curriculum. For this class we look at the last of the traditional sources identified in the Institutes―customary law. That source in the United States is known as “common law.” To understand U.S.: common law, however, it is necessary to understand exactly what is was that was received from the colonial power from which much of our law is derived―the United Kingdom. To that end I have suggested two readings. The object to help understand the fundamental character of modern U.S. common law by exploring in its origins the premises and structures that help define how one approaches this source of law. In other words, I hope to introduce the students to the reasons why common law (judge made law) has its current character and the basic approach courts use to interpret and apply common law. As we will discover, this approach may be, in some respects, substantially different from approaches to the interpretation of other forms of law (statutes, regulations, etc.) precisely because the character of this type of law is different from the others. In this case I hope to suggest the structural basis of judicial conservatism at the heart of common law (and in the process also suggest why the current arguments about unaccountable and uncontrolled judges are completely incompatible with the legitimate core essence and structure of common law).

            The first of the readings,[102]  describe the origins of what became common law in the United Kingdom roughly to the time it was transposed to England’s colonies in the Americas. While English common law after the 18th century is of some interest, its culture and structures through the early 18th century, and the great debates around its relationship with the structures of government, has proven the most influential on the development of the common law’s U.S. cousins. Our tort and contract law (the latter to the extent it has survived the codification movements that brought us the Uniform Commercial Code) are to a great extent the contemporary reflection of an ancient system with origins in customary law (recall the Institutes here on custom, Bk I Tit. II. 12). It is important, then, to spend a brief moment on the historical foundations of common law, because those origins continue to have significant consequences for the culture of law (and thus the operation of the legal system) of the United States.  It is important as well for another reason//it provides a foundational insight into the construction of the American Common Law system as one grounded on the close connection between sources of law (in this case custom and the practices of the people) and the institutional means developed to implement or apply law (the royal courts).  It is that connection, often overlooked, that gives the Anglo-American common law its very specific character and suggests the structure of its cultural patterns.

            We start with the simple definition of common law: “the body of rules prescribing social conduct and justiciable in the royal courts of England.” (p. 5). That definition is both simple and revealing. Let me suggest a number of useful insights for the first year law student (from Hogue 188-195): (1) common law was a generalized set of social rules but developed in competition with other rules, laws and customs; (2) the effectiveness of common law was grounded in the willingness of the Crown courts to accept and enforce it, that is, common law was transformed form custom to enforceable rule only through its reception and memorialization as writ; (3) once memorialized as writ the development of the common law principles was undertaken by the courts through their accumulated interpretation and application of writs, that is it lost a direct connection to the body of custom form which it may have arisen; (4) the attenuated connection between common law and the people (as source of custom) was retained through the use of the jury which determined facts necessary for decision (the jury, in this sense, can be seen as the interposition of popular power within the system of governmentally applied law derived from popular custom, a premise that is highly contested today in the forms of jury “nullification” and the move toward judicial fact finding); and (5) common law is grounded in the premise that law is superior to government in the sense that government might empower individuals to act but law constrains their actions (the meaning and effectiveness of this premise is both highly contested and has changed dramatically over the last 1000 years; it is a subject at the core of your constitutional law class and central to the ideology of the “rule of law”).

            Taken together these suggest the unique character of common law, for which its medieval origins are important to remember. The Hogue readings suggest the centrality of the premises of medieval English legal thought in developing the common law, and, as well, its diminished through still powerful influence on “common law thinking” in the 21st century. That latter point is important as a core element of what it means to “think like a lawyer” as those terms are sometimes bandied about in law schools. The first premise is the most critical―law for medieval minds was not something that was created, it was derived from ancient customs and traditions. “In the Middle Ages there was the notion of permanence in the law imparted by its connection with immemorial custom. Law was not “made”, according to the medieval view; it was “declared” by those familiar with the customs of certain territories.” (Hogue, 9-10). Decisions, then, could articulate and apply these traditions, and courts could regularize and institutionalize these traditions through intermeshed decisions, but they could not create law. The Crown chancery could choose which of these ancient customs its courts could name and enforce; and the courts could entertain these writs. Juries could be used as a check on the administrative apparatus to ensure a continuous connection with custom and tradition as understood contemporaneously, at least as to fact. But the “law” remained something distinct and apart from the state and through the state could act on it, and increasingly so from the end of the medieval period in the West, it could not, until recently, presume to deem itself the “owner” of law. As a consequence, the presumptions of the common law and its substantive mechanics built into decision bound by stare decisis and the role of juries, produced an inherently cautious and conservative character in courts. Courts remained powerful as the space within which a law detached from the state could be defended, even against the will of powerful state agents―and thus rule of law in its organizational sense. The common law is designed to be conservative, to move only at the pace society moves. But it is not designed as a tomb to a particular place and time; common law can move, albeit slowly and in spurts to reflect, not to manage, the tastes and behaviors of the subject population. That helps explain, for example, the reticence of judges to push the law and also the controversy, going to the legitimacy of the judicial office when judges appear to seek to use law instrumentally (as an instrument of social, economic, religious or political policy or tastes). That also helps explain the role of courts in opposing government officials who exercise power beyond their jurisdiction or authority, which is also limited by law.

            The writ itself suggests both the critical role played by the institutions of government in the recognition and enforcement of custom recognized as enforceable by the state before its courts. It also suggests the way in which process and substance elements of law can sometimes intertwine in complex ways. Writs both initiated a legal action and gave notice of its scope and object―it took the form of an order from the Crown under the Great Seal, addressed to the shire-reeve (the modern constabulary) in the county in which the action arose or where the defendant could be found, commanding the defendant to appear and answer the complaint. (Hogue, 12). The description of the premises inherent in a simple form writ (pp. 7 et seq.) illustrate this. Built into the concept of writ were the notions that (1) actions had to be initiated by an aggrieved party (not the state or other actor); (2) the state is involved to aid the litigant in “getting his due” as described in the writ itself; (3) notice of the wrong plays a central part of the request (the fundamental character of notice in pleadings is an early product of the development of writ practice, though it took a long time and many turns to reach modern form); (4) the defendant plays a critical role in the determination by being provided with a power to contest the allegations of the writ; (5) courts were the final determinants of the applicability of a writ, if the writ did not fit the facts the court was free to quash the writ and dismiss the case (modern rules FRCP 12 echo this); (6) the court reserves to itself the power to determine the resolution of disputes, but that power must be exercised only by applying the customs and expectations bound up in the concepts on which the writ is based (notions of judicial construction of reliance of past decisions and a basic conservatism in approach to decision making tend to mark the culture of legitimacy reinforcing judicial decision making, notwithstanding politically motivated suggestions to the contrary by public intellectuals in the late 20th century); and (7) once a cause is accepted for determination the state will use its power to enforce the judgment of the court through its police power.

            The customary law based system of common law grew with the sophistication of society and popular acceptance of the law courts as a means of resolving private disputes based on acceptable substantive standards of conduct recognized by the courts through writs and applied by them in ways that satisfied litigants of its fidelity to these standards. But what is most interesting is that the common law was not a system of customary law as much as a means by which customary law could be recognized and subsumed within the systems of rights protection developed by the courts. It is that “uploading” of custom into the judicial apparatus of the state, and the state’s willingness to enforce the decisions of judges that mark the common law as something other than customary law in the loosest sense. Once recognized in writ, custom lost its direct connection to its origins and became the object of development by the courts (in fidelity to the expectations of litigants).

            The system of common law as developed in England during the late middle ages had the potential to continue to grow.  It would have only been limited by the imagination of the chancery to develop appropriate writs that might be recognized by the courts.  Yet, ironically, the increasing sophistication and power of the system had an opposite effect, and fairly early in its development.[103]  First, the substantive norms—the customary law—recognized through the writs, became captive to the writs.  As a consequence, the extent of a right was increasingly defined by the characteristics of the writ within which a cause of action could be pursued.  And second, the chancery began to stop developing new writs. The writ system became rigid.  However, while no further writs were developed, the courts increasingly expanded and changed the forms of action that might be recognized under a writ to reach new situations.[104]  While this permitted the constant growth and development of common law in line with the needs of litigants and the social, economic and technological changes, it required a fidelity both to the procedural practices of an increasingly historical writ system, and left substantial areas of legal rights beyond the reach of the common law and its courts.  Into that void would spring the practices of equity, both as a set of substantive norms and as an approach to process and remedies, a subject we take up in the next chapter.  

            By the time of the rise of the great U.S jurisprudential movements of the late 19th and early 20th centuries, then, common law had become a nexus point for three large clusters of “meanings”.  The first was the most ancient—it defined the historical common law system of writs, forms of action giving rise to substantive claims among private litigants to be heard by courts. Second, common law had also come to mean the work of the courts themselves—that is the practices of legal development through precedent and the organic elaboration of law through the aggregate application of law by courts that represented the collective wisdom of the judges as a class.[105] This authoritative source of law was distinct from law produced by administrative agencies (regulation) or legislatures (statute). Thirdly, common law was used as a generic term, to distinguish the family of law systems with origins in England from those of continental Europe (civil law systems). In this third sense, the term common law acquired a cultural or sociological sense as a way of approaching law and governance that was differentiable from those of other states. It is in these senses that the maturing U.S. system began its own self-referencing dialogue about its system in the late 19th century, a dialogue that continues today.
            This brings us to Justice Holmes and his Common Law, a book now much more famous for the quotes extracted than perhaps for the collected wisdom available through sustained study.  The Common Law of the United States, of course, is now much different, and substantially less prominent, than it was over a century ago when the Common Law was published. Yet, while the discussion of the state of the Common Law may be much changed in the United States, its basic intuitions about the nature and character of that form of law making, and its internal logic, is still powerfully relevant.  More importantly, it provides the student with a bridge.  On one side are the conceptual foundations of U.S. Common Law as a complex aggregation of customary and traditional norms and their application, refinement and development by the courts within the institutional constraints of that mechanism for law making through private dispute resolution.  On the other are the remaining substantive fields of law that retain its source in strands the old Common Law transported to the American colonies, and the methodological approaches of the common law (common law reasoning) that can be applied to the interpretation and application of virtually all forms of governance in the United States. It is in this sense that one can understand, perhaps in a clearer light, the famous quotation from the beginning of the Common Law—“The life of the law has not been logic, it has been experience.” That combination, what Holmes identifies as history and existing theories of legislation, that produces the cultural foundation to the legal system of the United States and its legal ideology.[106]

            Holmes- object, of course, is to provide, examples of what he means by his view of the Common law as a living system, both responsive to contemporary problems but deeply traditional in approach, and grounded in a slow development almost completely dependent on the intimate interaction of court and litigant. He reminds us of the importance of that balance between history and contemporary desire[107] To that end he focuses on the development of a general theory of liability in civil and criminal law.   He moves from theory of vengeance in Roman and German law from feud (violence) to compensation, to distinctions between intentional and other wrongs. within the writ of trespass.[108]  That same foundation—of revenge, Holmes argues is the source of liability for harm inflicted by another. It is in that effort that Holmes exposes both the dynamism and fidelity to history that marks the operational constraints of common law culture.[109]

            Holmes brings home the point with several examples—the liability of owners for the acts of their animals, and the other the liability of employers for the wrongs of their employees, limits of liability, and the forfeiture of instruments used to commit a criminal act—drawn from Roman law principles eventually incorporated into the common law. In each of these cases, Holmes suggests, the object was vengeance against the instrument of harm, but the means to that vengeance lay through its owner or master.  That vengeance was possible against inanimate object or animals was possible according to their belief system, or in the case of the Greeks to achieve the ends of expiation against the body of the thing that caused the damage.[110] Over time, Holmes suggests that the original belief supporting these rules—vengeance—receded even as the privilege of buying off vengeance by agreement, or of paying damages, became a general custom, even as the beliefs that gave rise to the custom receded into history.[111]   This arrangement—of compensation for wrongs committed by things or slaves under the control of another, was eventually extended to liability as well for the damages caused by employees.  Thus “the principle introduced on special grounds in a special case, when servants were slaves, is now the general law of this country and England, and under it men daily have to pay large sums for other people’s acts.”[112] The same development, Holmes argued, applied to law derived from German customary law.  Payment for damages caused by an animal was made to pay off a blood feud.

            Holmes than asks the questions that most students might be tempted to ask, if they had the nerve—who cares?[113] First, Holmes notes that the influence of Roman law on the development of English and U.S. law is well proven.  But more importantly, for the socio-legal argument he is making, “we still repeat the reasoning of the Roman lawyers, empty as it is, to the present day.”[114] But the law is now put to distinct purpose. The same applies to the transformation of the ancient custom of deodand—the expiation of animate and inanimate objects that might have been the instruments of a wrong against another.[115] The principle was then applied and transformed in Admiralty,[116] where the notion of giving up the object causing the injury “was simply a dramatic way of saying that somebody’s property was to be sold, and the proceeds applied to pay for a wrong committed by someone else.”[117] But that dramatic metaphor became the basis of U.S. law as well.[118]

            Having followed the application of ancient principles, from vengeance to paying off vengeance to the development of damages, and from the surrender of an offending object to the concept of limited liability (in maritime law), with regard to servants, animals and inanimate objects, to English and U.S. common law, Holmes argues that modern justification (grounded in principles of responsibility and fault) are substantially different from the germinal reasons supporting the rules—retaliation against the thing itself.[119] It was offered to illustrate the “paradox of form and substance in the development of law.”[120]  The form of its growth and development is logical, each new decision following “syllogistically from existing precedents.”[121] But formal logical development might well mask functional incoherence.[122]  Its substance, though, Holmes asserts, is legislative.  This is more than the courts using the cover of precedent to break new ground. He means something deeper: “I mean, of course, consideration o what is expedient for the community concerned.”[123]  The cases serve as a means of applying public policy against the constraints of precedent to arrive at new content for old law applied to suit the times.[124]  The common law, then, for Holmes, is not a formally logical and coherent whole, but a constantly changing work in progress that is constrained by its past but always being reworked to make sense in the present.[125]  The truth is, that the law always approaching, and never reaching, consistency. It is forever adopting new principles from life at one end, and it always retains old ones from history at the other, which have not yet been absorbed or sloughed off. It will become entirely consistent only when it ceases to grow.[126] And the judge stands at the center of that process.[127]

            Holmes’s perspectives on the character (and culture) of Common Law in the United States became quite influential.  It is a heroic view of law.[128]  It is heroic in the sense that it tends to personify law in the person of the judge, and law construction in the singularity of the court.  Yet this view, which privileges the individual and individual discretion, ignore, perhaps overmuch, the effect of the embedding of this individual and this court within a complex institution that is the judicial power, and which is further embedded in the apparatus of government.  Consider the institutional context in which an individual judge operates. A single trial court judge operates as an individual and autonomous actor.  She has the authority to hear the arguments of the litigants, and subject to the power of a jury to find facts (discussed in Chapter 1), to decide how or whether the law will apply in a particular way that favors one or the other of the litigants.  That decision itself will both decide the conflict and advance the development of the law. But the scope within which she can make that decision authoritatively is itself quite constrained. She is ordinarily bound to apply the reasoning and rules of prior cases, and is required to apply the holding of courts higher on the hierarchy (appeals court and the supreme court of her judicial system). Assume that a judge does not agree with the law produced by the body of judges over time to which she is bound or which represent persuasive authority.  Assume further that this judicial application has been fairly consistent.  She renders a judgment that seeks to make new law, applying law to facts quite differently from past cases, or affirmatively rejecting the logic and holdings of other cases, or affirmatively creating new bases for liability (or defenses to liability).

            Here is the heroic judge.  But she likely to enjoy that role only exceptionally or only for a brief moment, for the individual judge is subject to a set of institutional disciplinary mechanisms that provide powerful means of avoiding this sort of heroic judicial individualism. Cases can be appealed to a higher court, which is likely to apply the received aggregate wisdom of the judiciary (contained in prior decisions).  Judges hearing similar cases may reject the “rogue” judge’s resolution  and refuse to apply it.  Legislatures may override the determination and enact statutes to require a distinct and different result.  The weight of the aggregate past  decisions of courts will weigh heavily on any judge seeking to bend the law to her own purposes, views, morals, or instrumental program.  Even a Supreme Court that produces an aberrational result will eventually be forced to confront and bend its heroic individualism to the popular will, and it may find that its holding will be interpreted by lower courts in ways that eventually bring it back closer to the institutional mainstream.  This is not to suggest that cases do not provide an element of dynamism and movement in law.  Instead, it is meant to suggest that the process is likely to proceed slowly and is likely to follow changes in social expectations rather than to lead them. . . . in most cases. As such, what may appear to be legislative in character is, from an institutional perspective still quite  recognizable as judicial in practice precisely because, unlike a legislature, a judge is deeply enmeshed within the system she applies.[129]  

            And thus the institutional embeddedness of the judge within a network of other judges in real time, and all of the judges that preceded them, who act through their opinions and actions, mark the contradiction between important strands of jurisprudential theory.  That contradiction pits a focus on the individual (itself premised on Western cultural assumptions) with the reality of aggregate and abstracted institutional action that marks the work of the judge and which necessarily amalgamates both tendencies toward conceptualism and normativity in law as system.  The courts, then, represent both technique and technicity.[130]  Courts are constrained to act within the rules for resolving disputes, and for applying law to that resolution that themselves constitute the collective action of the community of judges within the political society in which the court operates. But that action must represent a specific application appropriate to the specific dispute that is the subject of the judicial action. This is not to suggest the importance of the insights about the individual judge and her relationship with law and litigant, and the consequences of where within the cultural, political, religious and economic networks she is situated.  Nor does the institutional constraints meant to suggest that courts are caught in an ossified and self/referencing system that merely repeats and amplifies. But it does suggest the institutional structures that provide the conservative basis of the system itself, and the difficulties of any movement that significantly rejects either accepted premises and the trajectory of movement among the aggregate of institutional actors we call the courts.

            For all that, Holmes’ quite valuable insights have contributed to any number of academic schools of thinking about Common Law specifically and U.S. law in general that have delighted generations of law school students for more than a century. These include the modern schools of “realism”, of critical legal studies, of socio-legal studies and the like.[131] At one of the poles of the debate that insights like those of Holmes spawned are those academics, politicians and judges who, taking Holmes literally, recoiled from the idea of judges assuming a legislative role in their decision making and seeking to substantially limit the power of judges (unelected legislators) and to curb the scope of their decision making when engaging in the resolution of disputes.[132]  At the other stand that cluster of academics, politicians and others, who view the legislative enterprise of the common law as necessarily instrumental and which must then be turned to the managing of behaviors for the active control of social, political, ethical and moral norms in through and beyond courts.[133] Gary Minda has described these poles, the “two dominant professional representational practices of modern jurisprudence [as] conceptual and normative.”[134] Conceptualists “attempt to identify legal norms within the self-contained logical systems of law and legal reasoning.”[135]  They tend to be formalists. On the other hand, normativists, “understand law’s autonomy to be shaped by an autonomous culture and homogeneous society.”[136] They tend to be instrumentalists,[137] privileging function (or objective) over form. Both continue to play vibrant roles in the conceptualization of the U.S. legal system.  In so doing they define a space that is contradictory essentially irreconcilably contradictory.  That produces both dynamism and a constant state of instability in the core assumptions of what the U.S. legal system is and how it ought to operate. This is both the great weakness and the great strength of that system, but one that takes some getting used to.

            And thus we can now appreciate Common law as normative system of law, as a complex relationship between legal norms and the institution developed to apply and develop these norms, and as the basis for developing a notion of law that is, in some sense autonomous of the legislative apparatus of the state.  Common law, in this sense, institutionalizes custom, provides a space for its management by the state, but retains its autonomy from the government that administers it.[138] That management produced not merely systems of behavior rules, but also, in this case, shaped the character of remedies—linking common law actions to the remedy of damages (of monetary compensation to make the wronged party whole). But common law is also a cultural product, one that suggests a method for the production of law and for the protection of its relevance for the community against which it is applied to resolve disputes.  We now see if the students can apply the insights of these socio-legal concepts to the business of discerning common law in the United States today. To that end, we move from this more theoretical discussion to a concrete application of theory to the contemporary business of the Common Law in the United States today.

IV. Problem

            We have been introduced to the history and cultural framework of the common law.  It is one that is built on a symbiotic relationship between the institution of the court and the customary rules of society—the mechanism developed for the resolution of disputes among private parties invokes both state power and the autonomy of law from the state (custom) on which to build its substance. We have come to note the inherent conservatism of this intermeshing of institutional mechanism and substantive rule system. Judges are restrained in their ambition to shape the law by the willingness of parties to bring disputes before the courts.  At the same time, judicial authority is at its strongest when it bases its determination of a dispute on the prior resolution of similar disputes in similar courts (and thus conforms to the foundational principles of certainty and predictability). And judicial authority over the substance, constrained by prior applications of law and the expectations it produces, then is most effectively deployed by replicating past results, rather than by using cases before them to mold law instrumentally. It is when courts seek to do the latter that their legitimacy appears to be at lowest ebb, at least within the structures of common law culture.[139]

            This cultural dimension of the common law has a profound effect on the way that U.S,. lawyers are socialized into the practice of law.  That was made clear enough by the excerpt from Justice Holmes’ famous work of the late 19th century discussed above.  But it is manifested in the everyday work of the lawyer as well.  The problem that follows introduces the student to the lawyer’s role as an actor in common law systems.  The object is not for the student necessarily to get the law right, but instead to learn the mechanics of working through the task of determining what the law is when it involves the common law.

Problem: Assault and Battery in Pennsylvania:

You are a young associate at a small firm in Pittsburgh, Pennsylvania.  One of the firm’s partners has called you to her office.  She will be meeting with a potential new client the next day, and she believes the client needs counseling on the law of assault and battery in Pennsylvania. She hands you the cases set out below and instructs you to prepare a very short memorandum describing the law of assault and battery, and the defenses that may be interposed, for her meeting.


Benjamin A. HERR,
Paul BOOTEN, et al.
398 Pa. Super. 166, 580 A.2d 1115
Argued May 8, 1990. | Filed Sept. 25, 1990.


This appeal is based upon the sad and tragic death of a very young man, Eric B. Herr. At the time of his death, Eric was a college student at the West Chester University. Eric was born on January 17, 1963. On January 17, 1984, Eric’s college roommates entered his bedroom and discovered that Eric had died during the night. The cause of his death was acute ethanol poisoning. A subsequent autopsy revealed Eric’s blood alcohol content to be .64% at the time of the autopsy.[140]1

This litigation was commenced in March of 1986 by Eric’s parents in their own right, and by Eric’s father, Benjamin A. Herr, as Administrator of the Estate of Eric B. Herr. The defendants include Eric’s college roommates: Paul Booten, John Raymer, and Robb Aspril, Jr. The fourth defendant, Alex Orolyn, did not reside with Eric at college but he was a college acquaintance.

It is undisputed that in the afternoon of January 16, 1984, Eric and his three roommates decided to buy beer to celebrate Eric’s impending twenty-first birthday. All four of the young men contributed money toward the purchase of the beer. Defendant Raymer drove Eric to a beer distributorship where several cases of beer were purchased. The roommates began drinking the beer in their apartment in the late afternoon of January 16, 1984. Later in the evening, defendant Orolyn arrived. Eric, along with Orolyn and Raymer, then left the apartment and attended a party at a fellow student’s house where they consumed more beer. They later left this party to stop at Orolyn’s apartment in order to obtain a nearly full bottle of Jack Daniels whiskey which Orolyn gave to Eric as a birthday present. When the group returned to Eric’s apartment, which he shared with Booten, Raymer, and Aspril, other people had arrived to celebrate Eric’s birthday. That evening, Eric Herr consumed most of the bottle of whiskey himself, apparently in two sustained gulps. It appears to be undisputed that the first gulp occurred before midnight.

The present action is based in tort. It is claimed that the defendants committed the intentional tort of battery by providing alcohol to Eric. Secondly, it is claimed that the defendants were negligent in providing Eric with alcohol, challenging or encouraging him to drink the alcohol, and then failing to render care when his physical condition became serious. The trial court entered summary judgment in favor of the defendants, concluding that no cause of action for battery or negligence had been set forth as a matter of law. We affirm in part and reverse in part.

* * * * * *

We agree with the trial court’s conclusion that no cause of action can be established for battery in the present case, even when the evidence is viewed in the light most favorable to the non-moving party. “As traditionally stated, the elements of the tort of battery are ‘a harmful or offensive contact with a person, resulting from an act intended to cause the plaintiff or a third person to suffer such a contact, or apprehension that such a contact is imminent.’ Prosser & Keeton, Law of Torts, at 39 (5th ed. 1984).” Levenson v. Souser, 384 Pa.Super. 132, 146, 557 A.2d 1081, 1088 (1989). There was no “harmful contact” or “offensive touching” with the body of Eric Herr so as to give rise to a cause of action for battery in the present case. We are unwilling to view the supplying of an alcoholic beverage to a person as an act intending to cause “offensive or harmful bodily contact.”

“A bodily contact is offensive if it offends a reasonable sense of personal dignity.” Restatement (Second) of Torts § 19 (emphasis added). Implicit in the tort of battery is the recognition that an individual has a right to be free from unwanted and offensive or harmful intrusions upon his own body. The tort of battery has traditionally been employed to redress this precise grievance. The essence of the tort “consists in the offense to the dignity involved in the unpermitted and intentional invasion of the inviolability of [the plaintiff’s] person....” See RESTATEMENT (Second) OF TORTS § 18, Comment c. Thus, the Restatement recognizes that an intrusion upon the plaintiff’s physical or personal dignity does occur where the defendant “throws a substance, such as water, upon the [plaintiff] or if [the defendant] sets a dog upon him” even though the defendant and the plaintiff have not physically touched each other. Id. Additionally, “if the actor daubs with filth a towel which he expects another to use in wiping his face with the expectation that the other will smear his face with it and the other does so, the actor is liable as fully as though he had directly thrown the filth in the other’s face or had otherwise smeared his face with it.” Id. Although the supplying of alcohol to a person may be improper or contrary to the law because the person is a minor or, perhaps, because he is already visibly intoxicated, it is not an act which impinges upon that individual’s sense of physical dignity or inviolability. Such an expansion of the traditional notion of battery has never been sanctioned by the courts of this Commonwealth. Consequently, we affirm the entry of summary judgment in favor of the defendants as to the battery cause of action.

* * * * * *

Affirmed in part and reversed in part; remanded for further proceedings consistent with this Opinion. Jurisdiction is relinquished.


COHEN et al.
166 Pa.Super. 206, 70 A.2d 419 (Jan. 12, 1950)
(Superior Court of Pennsylvania).

RHODES, President Judge.

These appeals are by plaintiffs from judgment entered on a directed verdict in favor of defendant. In an action of trespass minor plaintiff and her parents sought to recover damages for assault and battery and false imprisonment allegedly committed on the minor plaintiff by defendant’s employees in its department store. At the conclusion of the testimony the trial judge gave binding instructions for defendant. Plaintiffs’ motions for new trial were refused.

It is our opinion that the case is not one in which it was proper to give binding instructions, and that a new trial must be granted. A review of the testimony presented at the trial shows that the essential facts which formed the basis of plaintiff’s action were in controversy. The minor plaintiff, then eleven years of age, testified that, following her music lesson on the afternoon of January 10, 1948, she visited defendant’s department  store and went to the book department. In one hand she carried a brief case, and in the other a box of pop corn. While looking at some books she placed the box of pop corn in her brief case. Thereafter, she left the book department and entered the ladies’ rest room. She took no books with her. While washing her hands she held the brief case between her legs. Thereupon a lady (later identified as one of defendant’s employees) went up to minor plaintiff and asked her where the books were which she had taken from the counter. Upon minor plaintiff’s denying that she had taken any books, the employee grabbed the brief case from minor plaintiff and opened it. At this point two women customers in the rest room told defendant’s employee not to disturb the child. As minor plaintiff attempted to leave the rest room, defendant’s employee grabbed her by the arm. The employee then took the minor plaintiff by the hand, and with the two other women went upstairs to the office of defendant’s protection manager. When it was ascertained that minor plaintiff had not taken any books she was escorted from the store to the subway and sent home. Both minor plaintiff and her mother testified that minor plaintiff became nervous, ill, and upset as a result of the occurrence, and that she remained in this condition for some time thereafter.

The oral testimony introduced by defendant, although corroborating the story of minor plaintiff in some respects, was in conflict on several matters. Defendant’s employee, Mrs. Ann Keenan, a store detective, testified that she watched minor plaintiff while the latter was looking at several books in the book department; that minor plaintiff later placed these books on a ledge between the book department and the rest room; that she did not see minor plaintiff put any books in her brief case or take any books; that she never accused minor plaintiff of taking books. Mrs. Keenan testified that her *209 only object was to have minor plaintiff replace the books that she had moved to the shelf; that for this purpose she approached minor plaintiff in the rest room; and that she was about to ask minor plaintiff to replace the books when she started to scream. At this time the two women customers intervened on behalf of the minor plaintiff, and temporarily restrained Mrs. Keenan. The three women and minor plaintiff then went to the office of the protection manager on the fifth floor. Defendant’s protection manager testified that he did not accuse minor plaintiff of stealing, and that his only instructions to Mrs. Keenan were to break up the practice of customers’ taking books from the department and reading them in the ladies’ rest room.

Plaintiffs made out a prima facie case of (1) assault and battery, and (2) false imprisonment. Assault is an intentional attempt by force to do an injury to the person of another, and a battery is committed whenever the violence menaced in an assault is actually done, though in ever so small a degree, upon the person. Butler v. Stockdale, 19 Pa.Super. 98, 107. To constitute the injury of false imprisonment the two requisites are (1) the detention of the person, and (2) the unlawfulness of such detention. Lentz v. Raum, 59 Pa.Super. 260, 262. Plaintiffs’ evidence, if believed, showed an unlawful laying hold of the minor plaintiff, and her detention, without probable cause. Minor plaintiff testified she was grabbed by defendant’s employee, held, and falsely accused of taking books from the book department.

The court below, in its opinion refusing to grant plaintiffs a new trial, erroneously held that there was no conflict in the evidence and no disputed questions of fact, and that it should declare the existence of probable cause for the detention as a matter of law. It is true that the question of probable cause for the arrest, or, *210 as in this case, the detention, is ultimately one of law for the court, and upon this point there is no difference, in principle, between an action for false imprisonment and one for malicious prosecution. Samuel v. Blackwell, 76 Pa.Super. 540, 545. Recent decisions of the appellate courts in this state make it clear that, in actions for malicious prosecution, the question of probable cause is one of law for the court. Simpson v. Montgomery Ward & Company, 354 Pa. 87, 46 A.2d 674; Simpson v. Montgomery Ward & Company, 162 Pa.Super. 371, 57 A.2d 571; Simpson v. Montgomery Ward & Company, 165 Pa.Super. 408, 68 A.2d 442. If there is a conflict in the testimony as to what the circumstances were leading up to the arrest, detention, or prosecution, then the court must submit the factual questions to the jury for determination. Simpson v. Montgomery Ward & Company, supra, 354 Pa. 87, 95, 96, 97, 46 A.2d 674; McCarthy v. DeArmit, 99 Pa. 63; Samuel v. Blackwell, supra, 76 Pa.Super. 540; Lentz v. Raum, supra, 59 Pa.Super. 260. Factual questions may be submitted in the several ways set forth by Mr. Chief Justice MAXEY, in Simpson v. Montgomery Ward & Company, supra, 354 Pa. 87, 96, 97, 46 A.2d 674. It is only where the facts are not in dispute and those facts, and the reasonable inferences therefrom, amount to probable cause, that a trial judge may **422 direct a verdict for the defendant. Hubert v. Alta Life Ins. Co., 130 Pa.Super. 277, 279, 196 A. 513; Simpson v. Montgomery Ward & Company, supra, 162 Pa.Super. 371, 380, 57 A.2d 571.

There are, of course, fundamental differences between actions for malicious prosecution and those for false imprisonment, Lentz v. Raum, supra, 59 Pa.Super. 260, 262, but the question of probable cause in an action for false imprisonment should not be more *211 complicated than in an action for malicious prosecution. The case was for the jury under proper instructions, and the trial judge erred in directing a verdict for defendant. Cf. Tyler v. Philadelphia Ritz-Carlton Company, 73 Pa.Super. 427; Patton v. Vucinic, 109 Pa.Super. 530, 167 A. 450.

The judgment is reversed, and a new trial awarded.


Anthony GIEDA, et al.
No. 3:08cv1634.
649 F.Supp.2d 368 (M.D. Pa., Aug. 13, 2009)

JAMES M. MUNLEY, District Judge

* * * *


This case arises from the September 4, 2006 transport of plaintiff by Scranton, Pennsylvania police and ambulance to the Community Medical Center in that city. (Complaint (hereinafter “Complt.”) (Doc. 1) at ¶ 28). According to the plaintiff’s complaint, he was transported by Network Ambulance to the hospital and by Scranton Police Car # 18 after authorities believed he was having seizures or medical convulsions while in custody at the Scranton Police Station. (Id.). Plaintiff alleges that officers believed he was faking and did not have an emergency problem requiring medical treatment. (Id.). The plaintiff was not subject to any search warrant or other court order. (Id. at ¶ 29).

When plaintiff arrived at the hospital, hospital personnel, including Defendants Vincent Pollino, MD, Diane Chindemi, RN, Lt. Joseph Smurl, and Police Officer Anthony Gieda all sought to have blood drawn from plaintiff’s body. (Id. at ¶ 30). Plaintiff, who was conscious, refused this medical treatment and expressed to hospital staff his desire not to be treated to hospital staff. (Id. at ¶ 31). Despite these protests, hospital staff and the Scranton Police restrained the plaintiff, forcibly holding him down while his protests against the unwanted treatment continued. (Id. at ¶ 32). Defendants Gieda and Pollino then held plaintiff down as they and other hospital personnel applied four-point leather restraints to his arms and legs and tied him across the chest to an emergency room gurney. (Id. at ¶ 33). As plaintiff continued to put up physical and verbal resistance, an individual removed blood from his body. (Id. at ¶ 34). During a preliminary hearing in plaintiff’s criminal matter, Defendant Gieda admitted that no court order or search warrant compelled plaintiff to submit to this testing. (Id. at ¶ 35). Officer Gieda also admitted that plaintiff never consented to the treatment. (Id.). Plaintiff alleges that defendants Gieda, Smurl and other CMC staff caused bruises and other injuries through their efforts to restrain him. (Id. at ¶ 38). Such restraint also caused plaintiff severe emotional distress. (Id.). Plaintiff alleges that Defendant Jane Doe, a phlebotomist employed by CMC exacerbated the assault and battery on the plaintiff by drawing blood while other defendants held him down. (Id. at ¶ 41). CMC, Defendant Chindemi and Defendant Pollino then provided plaintiff’s test results to Defendant Gieda without court order or plaintiff’s consent, violating his privacy rights. (Id. at ¶ 42).

Plaintiff further alleges that defendants, recognizing they had violated his rights, conspired to justify their behavior by bringing false disorderly conduct charges against him. (Id. at ¶ 43). As a result of these charges, plaintiff faced up to one year in jail and a $2,500 fine. (Id.). Plaintiff avers that this arrest lacked probable cause and was unjustified. (Id. at ¶ 44). The charges forced plaintiff to retain an attorney. (Id. at ¶ 46). He was also required to attend a preliminary hearing, pre-trial conference, and habeas corpus hearing. (Id. at ¶ 47). A judge in the Lackawanna County, Pennsylvania Court of Common Pleas eventually dismissed the charges against plaintiff. (Id. at ¶ 59).

Plaintiff filed his complaint in this court on September 2, 2008. The complaint contains sixteen counts. Count I names Defendants Gieda, Scranton Police Chief David Elliot, the City of Scranton and the Scranton Police Department on charges that defendants violated plaintiff’s constitutional right to be free of excessive force and unlawful search and seizure. Count II raises a claim for intentional infliction of emotional distress against Officer Gieda, Chief Elliot, the City of Scranton, The Scranton Police Department, Diane Chindemi, Jane Doe, Vincent Pollino, Lt. Joseph Smurl, the CMC and the Community Medical Center Healthcare System. Count III is a claim for assault against the same defendants. Count IV alleges battery against those defendants. Count V is a claim for malicious prosecution and abuse of process against Defendants Gieda, Elliot, City of Scranton and the Scranton Police Department. Count VI raises a claim of negligent infliction of emotional distress against all of the defendants. Count VII alleges false arrest against Defendants Gieda, Elliot, the City of Scranton, The Scranton Police Department, Smurl, CMC and Community Medical Center Healthcare System. Count VIII is a false imprisonment claim against all of the defendants. Count IX charges all of the defendants with invasion of privacy through the disclosure of confidential medical information. Count X alleges that Defendants Gieda, Elliott, the City of Scranton and the Scranton Police Department invaded plaintiff’s privacy by casting him in a false light. Count XI, raised against the City and the Police Department, contends that plaintiff’s injuries were caused by an official policy and/or practice of the city. Count XII avers that Defendants CMC and CMC Health System committed corporate negligence in allowing plaintiff’s injuries to occur. Count XIII alleges vicarious liability against those same defendants. Count XIV claims that Defendants Chindemi, Doe, Pollino, CMC Healthcare System and CMC failed to obtain informed consent from plaintiff before treating him. Count XV asserts that the city defendants violated plaintiff’s rights under the Pennsylvania Constitution. Count XVI alleges a civil conspiracy among all the defendants to violate plaintiff’s rights.

After being served with the complaint, Defendants Community Medical Center, Community Medical Center Healthcare System, Joseph Smurl, Diane Chindemi and Jane Doe filed the instant motion to dismiss. The parties then briefed the issue, bringing the case to its present posture.

* * * * * *


Defendants raise several grounds for dismissing different counts of the complaint. The court will address each in turn.

* * * * * *

B. Counts III, IV and XIV

Defendants seek dismissal of plaintiff’s claims against them for assault, battery and lack of informed consent. Defendants contend that a lack of informed consent claim may only be brought against a surgeon performing a procedure, and may not be brought when the offending action is drawing blood. Since the informed consent claim is raised against a phlebotomist for drawing blood, the claim is unavailable to plaintiff. Since plaintiff’s only battery *375 claim against Jane Doe, the phlebotomist, is that she drew blood without plaintiff’s consent, she cannot be liable for battery either. In terms of assault, defendants contend that plaintiff is not clear which of the moving defendants was involved in the assault, and that Defendant Doe cannot be liable for assault for drawing blood.

In his reply brief, plaintiff agrees that his claims in Count XIV for lack of informed consent against Community Medical Center and Community Health Care System, as well as Defendants Chindemi and Doe, should be dismissed. The court will therefore grant the defendants’ motion on this point.

Defendants claim that plaintiff’s inability to bring informed consent claims against them forecloses plaintiff’s claims for assault and battery against them as well. Contrary to the defendants’ claim, Pennsylvania courts have found a difference between an informed consent sounding in negligence and a battery claim based on medical treatment. “In an informed consent claim grounded in negligence, the matter of permission goes to the scope of the contract between physician and patient, and the primary inquiry is whether the injury suffered was within the known risks of which the patient was informed, or whether the information, particularly as to alternative procedures, was complete.” Montgomery v. Bazaz–Sehgal, 742 A.2d 1125, 1130 (Pa.Super.Ct.1999). By contrast, “[i]mplicit in the tort of battery is the recognition that an individual has a right to be free from unwanted and offensive or harmful intrusions on his own body.” Id. Thus, “in a battery claim ... there need be no physical injury, but only some contact; the matter of permission goes to the quality of the contact, and consent to being so touched is a defense.” Id. As such, “[a]n actor is subject to liability to another for battery if he acts intending to cause a harmful or offensive contact with the person of the other or a third person, or an imminent apprehension of such a contact, and an offensive contact with the person of the other directly or indirectly results.” Id. (quoting Restatement (Second) of Torts § 18(1)(a)(b)).

Plaintiff’s claim is that the medical defendants insisted that he submit to a blood draw, even though he repeatedly and vociferously expressed to them his desire not to be touched. Despite this expressed desire, defendants tied him to a gurney and forced him to submit to the treatment. Plaintiff has therefore stated a claim that defendants, including Doe, intentionally caused a harmful or offensive contact with him. While defendants could offer a defense related to their intent or to the needs of medical treatment, at this point in the litigation the court concludes that plaintiff’s claims are sufficient to survive a motion to dismiss the battery claim.

 “‘Assault is an intentional attempt by force to do an injury to the person of another, and a battery is committed whenever the violence menaced in an assault is actually done, though in ever so small a degree, upon the person.’” Renk v. City of Pittsburgh, 537 Pa. 68, 641 A.2d 289, 293 (1994) (quoting Cohen v. Lit Brothers, 166 Pa.Super. 206, 70 A.2d 419, 421 (1950)). “An assault requires both the actor’s intent to place the individual in imminent apprehension of harmful or offensive contact and the individual actual imminent apprehension.” Glass v. City of Philadelphia, 455 F.Supp.2d 302, 365–66 (E.D.Pa.2006). Here, plaintiff alleges that the individual defendants attempted to hold him down and coerce medical treatment he was attempting to resist. Those allegations, if established, would demonstrate that defendants, including Defendant Doe, intentionally placed plaintiff in imminent apprehension of harmful contact, and the court will deny the motion to dismiss on this point.

Defendants also argue that plaintiff has not pled his claim with sufficient specificity to establish the roles of the individual moving defendants in the offending conduct. The court will deny the motion on these grounds as well. This case is at the pleading stage, and plaintiff has alleged specifically that the moving defendants participated in an effort to force him to submit to medical treatment. Discovery will reveal the precise roles of all involved and establish whether plaintiff can provide sufficient evidence of each individual’s role.

* * * * * *


For the reasons stated above the court will grant the motion in part and deny it in part. An appropriate order follows.

AND NOW, to wit, this 13th day of August 2009, Defendants Diane Chindemi, Jane Doe, Lt. Joseph Smurl, Community Medical Center Health Care System and Community Medical System’s motion to dismiss (Doc. 18) is hereby GRANTED IN PART and DENIED in part, as follows:
1) Plaintiff’s claim for lack of informed consent in Count XIV is hereby DISMISSED;
2) All of plaintiff’s claims against the moving defendants for invasion of privacy are hereby DISMISSED;
3) Plaintiff’s claims for corporate negligence stemming from his informed consent claims are hereby DISMISSED; and
4) The motion is DENIED in all other respects.


William SORGE
UNEMPLOYMENT COMPENSATION BOARD OF REVIEW of the Commonwealth of Pennsylvania.
29 Pa.Cmwlth. 282 370 A.2d 818 (March 16, 1977)
Commonwealth Court of Pennsylvania.

BLATT, Judge.

William J. Sorge (claimant) appeals to this Court from an order of the Unemployment Compensation Board of Review (Board) which affirmed the referre’s denial of unemployment compensation benefits. Sorge was disqualified from benefits for willful misconduct pursuant to Section 402(e) of the Unemployment Compensation Law.[141]

The claimant was discharged from employment as a receiver with David Kahn, Inc. after an altercation with his supervisor. It is undisputed, and the referee specifically found, that Sorge ‘grabbed the supervisor by the throat with his hands.’ Sorge argues, however, that his actions were justified because they were provoked by accusations of the supervisor regarding Sorge’s performance of his duties and because the supervisor had raised his hands to strike the claimant first.

In reviewing an unemployment compensation case, this Court is confined to a determination as to whether or not the findings of the compensation authorities are supported by substantial evidence and to questions of law, including the question of whether or not an employe’s actions constitute willful misconduct. Sturniolo v. Unemployment Compensation Board of Review, 19 Pa.Cmwlth. 475, 338 A.2d 794 (1975). And, in a willful misconduct case, the burden is upon the employer to prove that an employe deliberately violated the employer’s rules or standards of behavior which the employer has a right to expect. Unemployment Compensation Board of Review v. Grossman, 22 Pa.Cmwlth. 550, 349 A.2d 779 (1976).

The record in this case contains contradictory testimony with regard to the supervisor’s actions during the argument, although the claimant testified that the supervisor had struck him first. The Board determined, however, that Sorge ‘resented the critical remarks made by his supervisor and he grabbed the supervisor by the throat with his hands.’ It apparently did not consider the testimony of Sorge to the contrary to be credible. The Board, of course, is the ultimate fact finder, and is empowered to resolve conflicts in the evidence and to determine the credibility of witnesses. Unemployment Compensation Board of Review v. Wright, 21 Pa.Cmwlth. 637, 347 A.2d 328 (1975). We can find no reason to disturb the Board’s finding here.

Moreover, the law is clear that language, however abusive, does not justify an assault and battery. Beville v. Unemployment Compensation Board of Review, 15 Pa.Cmwlth. 371, 327 A.2d 197 (1974); Thorne Unemployment Compensation Case, 167 Pa.Super. 572, 76 A.2d 485 (1950). Physical attacks are clearly in disregard of the most basic standards of behavior which any employer may reasonable expect. Unemployment Compensation Board of Review v. Vojtas, 23 Pa.Cmwlth. 431, 351 A.2d 700 (1976).

The employer here has met his burden of proving willful misconduct and we, therefore, will affirm the decision of the Board which denied benefits to this claimant.

AND, NOW, this 16th day of March, 1977, the order of the Unemployment Compensation Board of Review is hereby affirmed.


104 Pa.Super. 167, 158 A. 309 (Jan. 28, 1932).


The plaintiff recovered a verdict of $2,500 as damages for injuries sustained as a result of the defendant striking him with his fist on the nose. The defendant admits striking the plaintiff, but he contends the plaintiff was the aggressor and struck him the first blow, and that he was acting in self-defense.

The appellant argues that the charge of the court was inaccurate as to the duty of the defendant to retreat, if the plaintiff was the aggressor. The trial judge laid down correct principles of law respecting the duty, in certain circumstances, of one who is attacked, which were not properly applicable to the facts in this case. They related to the well-recognized rule that, while a man may inflict grievous bodily harm or kill another in self-defense, he may not do so if he has other probable means of escape. Logue v. Com., 38 Pa. 265, 80 Am. Dec. 481; Commonwealth v. Ware, 137 Pa. 465, 20 A. 806. These citations are criminal cases, but the law governing the right of self-defense in civil cases is much the same. 5 C. J. 635. There was no attempt to apply that rule to the present facts, and we are satisfied the jury was not misled when the charge, as a whole, is considered. It has been held many times that it is unfair to refer to detached excerpts, where the charge, in its entirety, lays down the correct principles and presents the issues of fact fully to the jury. Murphy v. Dyer, 223 Pa. 18, 22, 72 A. 276; Commonwealth v. Szachewicz, 303 Pa. 410, 416, 154 A. 483. This is especially true when counsel is given an opportunity to request corrections. Cook v. Donaldson, 296 Pa. 389, 393, 145 A. 920.

The trial judge, in his instructions to the jury, said: “This case is very simple in a way, because all that you are called upon to do is to determine whether the plaintiff has given you the facts as they occurred, or whether the defense. If the plaintiff, then he is undoubtedly entitled to a verdict at your hands. If the defendant, then the plaintiff is not entitled to a verdict and your verdict ought simply to be a verdict for the defendant. * * * If the plaintiff struck the first blow, as the defense says he did, then the defendant ought to have the verdict. If the defendant struck the only blow as plaintiff says he did, then the plaintiff is entitled to a verdict.” That was a clear and fair statement of the issues involved, which could not have been misunderstood by the jury. After the charge, counsel were asked if additional instructions were desired. The attorney for the appellant said: “Only this, your Honor. Self defense, I take it, is such defense as seems reasonable to the defendant under the circumstances.” The judge again told the jury that, if the testimony of the defendant was adopted, that he was struck by the plaintiff when he was close by him, then the blow which the defendant struck was an act in self-defense. Thereupon the appellant’s counsel said, “That covers it.”

Taking the instructions as a whole, we find no such a material misdirection as would warrant a reversal on that ground.

It is contended further on the part of the appellant that the charge respecting the damages materially prejudiced the defendant. The statement of question involved asks us to decide only whether the court erred in its instructions respecting the duty of a person to retreat when attacked, to which the scope of this appeal is confined. Morrow-Smith Co. v. Cleveland Traction Co., 296 Pa. 377, 145 A. 915. . . . .

A careful review of the entire record fails to disclose any just reason for interfering with the verdict.

Judgment affirmed.


COMMONWEALTH of Pennsylvania
Charles ZUBIK et al.
194 Pa.Super. 248, 166 A.2d 666 (Dec. 14, 1960)
Superior Court of Pennsylvania.


These appeals are from judgments of sentence imposed after verdicts of guilty were returned by a jury on an indictment charging appellants with simple assault and battery upon William Nogach. The case was tried as a cross-action with two cases against Nogach, one charging him with simple assault and battery upon appellant, Virginia Drambel, and the other with aggravated assault and battery upon the other appellant, Charles Zubik. Verdicts of not guilty were returned in the cases against Nogach.

All of the cases resulted from two incidents which occurred by May 25, 1959, when Nogach, a photographer for Television Station KDKA, attempted to photograph the serving of eviction notices upon Zubik by the Police of the City of Pittsburgh. It appears reasonably clear that the incidents occurred on property of Zubik. The first incident is described by Zubik as an unprovoked assault upon him by Nogach, merely because he told Nogach, ‘Mr. Nogach, I don’t want [you] to take any pictures here, that’s my property, and I want you not to take any pictures, I want you to leave.’ The police had not arrived when this is alleged to have occurred. Nogach denied striking Zubik and testified that he was complying with the request to leave and was walking off the property in company with Zubik when the police arrived.

Zubik did not describe the second incident, which occurred about two minutes after the first, but he contended that he was ‘all in, sick.’ It was described by appellant Drambel as follows: ‘Q. Tell us when that occurred? A. Well, whenever the four men came, my dad was up against the car, there, we walked over toward them, we thought they were the ones they sent down, and here, they said, ‘Mr. Zubik, we have eviction notices for you.’ So, they handed my dad the eviction notices, and Mr. Nogach started to take pictures, and I told him we didn’t want pictures, and I reached up, I told the policeman we wanted the film, and we didn’t want pictures on our own property there. So, he must have got scared, I guess he thought I was going to hurt him or something, I mean, so he went and pushed me up against the car and bruised my hand, and then my dad came over to help me and that was the end of that.’

Appellants submitted certain points upon which they requested the Court, Hon. J. Frank Graff, specially presiding, to charge the jury. These points were all affirmed but with some qualifying statements. It is only these qualifying statements, which are alleged to be prejudicial and fundamental errors, that are the basis of these appeals. No specific exceptions were taken to the affirmance of the points as qualified.

Appellants argue that they were entitled to have the jury determine whether their actions were not privileged since they were merely evicting a trespasser from their property after he had refused to leave on notice, and that the qualification placed upon the points of law submitted by them withheld this issue from the jury.

The argument is untenable. A reading of the record gives no indication that appellants at any time were trying to eject Nogach from their property by physical means. Throughout the entire record their intention to prevent him from taking pictures and to secure the film from his camera after he had taken pictures is clearly shown. Neither appellant asserted any assault or the use of any force, reasonable or otherwise, upon Nogach for any purpose, but on the contrary both testified to the fact that Nogach made unprovoked attacks upon them.

Nevertheless, appellants had the benefit of their points. The court affirmed each of them as basic principles of law, clearly telling the jury that a person has the right to eject trespassers upon his property and may use reasonable force in doing so. The points as submitted by appellants did not mention the amount of force permitted. Consequently, the qualifying instructions were necessary under any circumstances. Nor do we think that the effect of those statements was to remove the issue from the jury’s consideration if it viewed the evidence differently from the court. In each instance Judge Graff said, ‘[A]s I understand the position of Zubik, he wasn’t using any force at all, * * *’ but he instructed the jury fully that it was its right to decide the facts and determine who was the aggressor.

As we view the evidence, the appellants received more consideration by the affirmance of their points, even with the qualification of which they complain, than they were entitled. Although the right to defend one’s property by the eviction of trespassers upon it exists, there is no duty or obligation upon the court to charge upon such a principle when there is no evidence to support it, or the right is not asserted. Such right constitutes an affirmative defense and, when not relied upon, it constitutes no part of the case. Lebanon Mutual Insurance Company v. Losch, 109 Pa. 100; Hieskell v. Farmers’ and Mechanics’ National Bank, 89 Pa. 155.

Further, if appellants felt the qualifications to their points were improper, they had ample opportunity to request correction or more specific instructions. They declined to do so and apparently felt that the correct explanation of the law had been given to the jury. Having been given the opportunity to bring to the attention of the court any defects or inadequacies which they felt were contained in the charge, the parties now have no right to complain. Marshall v. Erie Taxicab Company, 340 Pa. 241, 15 A.2d 925.

Judgments of sentence affirmed, and it is ordered that appellants appear in the court below at such time as they may be there called, and that they be by that court committed until they have complied with their sentences or any part thereof which have not been performed at the time the order of supersedeas was entered.


The object of this exercise is to provide students with some practice in the art of identifying the law where there is no statute or authoritative command.  In the process it is meant to deepen the understanding of the cultural framework within lawmaking in the common law is effectuated—a conservative process of multiple iterations in which the relationship between formulation of a rule and its application produce a stable yet continuously developing complex of instructions that together produce the law of the relationships sought to be managed through common law.  This is discernable even in the context of a simple intentional tort—which includes the development of a statement of the elements that constitute assault and battery and the consideration of a range of possible defenses to such a claim, modified through application in particular contexts.  And the exercise only touched on the most basic elements of the law of assault and battery in one jurisdiction.  There are additional wrinkles that one might explore in law school courses—medical consent, assault and battery in the context of policing, and in prison.  None of this touches on the other substantial area of assault and battery law—not common law, but the statutory law of criminal assault and battery.  

[1] [Editor’s Note: the decemvirs (Decemviri Legibus Scribundis Consulari Imperio) were magistrates of the early Roman Republic responsible for the writing of the Twelve Tables (Lex Duodecim Tabularum) the foundational law of the Roman Republic.]
[2] E.g. Ine, c. 74; Alfred, c. 42; Ethelred, IV. 4, Section 1.
[3] Bract., fol. 144, 145; Fleta, I. c. 40, 41; Co. Lit. 126b; Hawkins, P.C., Bk. 2, ch. 23, Section 15.
[4] Lib. I. c. 2, ad fin.
[5] Bract., fol. 144a, "assulto praemeditato."
[6] Fol. 155; cf. 103b.
[7] Y.B. 6 Ed. IV. 7, pl. 18.
[8] Ibid., and 21 H. VII. 27, pl. 5.
[9] D. 47. 9. 9.
[10] [Editor’s note: a deodand was a thing forfeited to the state because it was an instrument that caused the death of an individual.  Sometimes such an object was then consecrated for pious use as a sort of expiation.  It was abolished in the United Kingdom in the 8140s and in modern form has been cited as the predecessor of modern civil forfeiture rules.  See, e.g.,  Jacob Finkelstein, Jacob J. (1973). "The Goring Ox: some historical perspectives on deodands, forfeitures, wrongful death and the western notion of sovereignty," Temp. L. Q. 46: 169 (1973).]
[11] xxi. 28.
[12] θ, ix. Jowett's Tr., Bk. IX. p. 437; Bohn's Tr., pp. 378, 379.
[13] [theta], xv., Jowett, 449; Bohn, 397.
[14] [iota alpha], xiv., Jowett, 509; Bohn, 495.
[15] [theta], xii., Jowett, 443, 444; Bohn, 388.
[16] [Greek words]. 244, 245.
[17] I.28(11).
[18] Solon.
[19] "Si quadrupes pauperiem fecisse dicetur actio ex lege duodecim tabularum descendit; quae lex voluit, aut dari [id] quod nocuit, id ist, id animal, quod noxiam commisit; aut estimationem noxiae offerre." D. 9. 1. 1, pr.; Just. Inst. 4. 9; XII Tab., VIII. 6.
[20] Gaii Inst. IV. Sections 75, 76; D. 9. 4. 2, Section 1. "Si servus furtum faxit noxiam ve noxit." XII Tab., XII.2. Cf. Just. Inst. 4.8, Section 7.
[21] D. 39. 2. 7, Sections 1, 2; Gaii Inst. IV. Section 75.
[22] "Noxa caput sequitur." D. 9. 1. 1, Section 12; Inst. 4.8, Section 5.
[23] "Quia desinit dominus esse ubi fera evasit." D. 9. 1. 1, Section 10; Inst. 4. 9, pr. Compare May v. Burdett, 9 Q.B.101, 113.
[24] D. 19. 5. 14, Section 3; Plin. Nat. Hist., XVIII. 3.
[25] "In lege antiqua si servus sciente domino furtum fecit, vel aliam noxiam commisit, servi nomine actio est noxalis, nec dominus suo nomine tenetur." D. 9. 4. 2.
[26] Gaius, Inst. IV. Section 77, says that a noxal action may change to a direct, and conversely, a direct action to a noxal. If a paterfamilias commits a tort, and then is adopted or becomes a slave, a noxal action now lies against his master in place of the direct one against himself as the wrong-doer. Just. Inst. 4. 8, Section 5
[27] LL. Alfred, c. 13; 1 Tylor, Primitive Culture, Am. ed., p. 285 et seq.; Bain, Mental and Moral Science, Bk. III. ch. 8, p. 261.
[28] Florus, Epitome, II. 18. Cf. Livy, IX 1, 8, VIII. 39; Zonaras, VII. 26, ed. Niebuhr, vol. 43, pp. 98, 99.
[29] Gaii Inst. IV. Section 81. I give the reading of Huschke: "Licere enim etiam, si fato is fuerit mortuus, mortuum dare; nam quamquam diximus, non etiam permissum reis esse, et mortuos homines dedere, tamen et si quis eum dederit, qui fato suo vita excesserit, aeque liberatur." Ulpian's statement, in D. 9. 1. 1, Section 13, that the action is gone if the animal dies ante litem contestatam, is directed only to the point that liability is founded on possession of the thing.
[30] "Bello contra foedus suscepto."
[31] Livy, VIII. 39: "Vir...haud dubie proximarum induciarum ruptor. De eo coacti referre praetores decretum fecerunt 'Ut Brutulus Papius Romanis dederetur."...Fetiales Romam, ut censuerunt, missi, et corpus Brutuli exanime: ipse morte voluntaria ignominiae se ac supplicio subtraxit. Placuit cum corpore bona quoque ejus dedi." Cf. Zonaras, VII. 26, ed. Niebuhr, vol. 43, p. 97: [Greek characters]. See further Livy, V. 36, "postulatumque ut pro jure gentium violato Fabii dederentur," and Ib. I. 32.
[32] Livy, IX. 5, 8, 9, 10. "Nam quod deditione nostra negant exsolvi religione populum, id istos magis ne dedantur, quam quia ita se res habeat, dicere, quis adeo juris fetialium expers est, qui ignoret?" The formula of surrender was as follows: "Quandoque hisce homines injussu populi Romani Quiritium foedus ictum iri spoponderunt, atque ob eam rem noxam nocuerunt; ob eam rem, quo populus Romanus scelere impio sit solutus, hosce homines vobis dedo." Cf. Zonaras, VII. 26, ed. Niebuhr, vol. 43, pp. 98, 99.
[33] De Orator. I. 40, and elsewhere. It is to be noticed that Florus, in his account, says deditione Mancini expiavit. Epitome, II. 18. It has already been observed that the cases mentioned by Livy seem to suggest that the object of the surrender was expiation, as much as they do that it was satisfaction of a contract. Zonaras says, Postumius and Calvinus [Greek characters]. (VII. 26, ed. Niebuhr, Vol. 43, pp. 98, 99.) Cf. ib. p. 97. Compare Serv. ad Virg. Eclog. IV. 43: "In legibus Numae cautum est, ut si quis imprudens occidisset hominem pro capite occisi et natis [agnatis? Huschke] ejus in concione offerret arietem." Id. Geor. III. 387, and Festus, Subici, Subigere. But cf. Wordsworth's Fragments and Specimens of Early Latin, note to XII Tab., XII. 2, p. 538.
[34] D. 9. 4. 2
[35] Tissot, Droit Penal, 615; 1 Ihering, Geist d. Roem. R., Section 14; 4 id. Section 63.
[36] Aul. Gell. Noctes Attici, 20. 1; Quintil. Inst. Orat. 3. 6. 84; Tertull. Apol., c. 4.
[37] Cf. Varro, De Lingua Latina, VI.: "Liber, qui suas operas in servitute pro pecunia, quam debeat, dum solveret Nexus vocatur."
[38] D. 9. 1. 1, Section 9 But cf. 1 Hale, P.C. 420.
[39] D. 9. 4. 2, Section 1.
[40] D. 9. 1. 1, Sections 4, 5.
[41] D. 4. 9. 1, Section 1; ib. 7, Section 4.
[42] Gaius in D. 44. 7. 5, Section 6; Just. Inst. 4. 5, Section 3
[43] D. 4. 9. 7, pr.
[44] See Austin, Jurisp. (3d ed.) 513; Doctor and Student, Dial. 2, ch. 42
[45] Cf. L. Burgund. XVIII.; L. Rip. XLVI. (al. 48)
[46] See the word Lege, Merkel, Lex Salica, p. 103. Cf. Wilda, Strafrecht der Germanen, 660, n. 1. See further Lex Salica, XL.; Pactus pro tenore pacis Child. et Chloth., c. 5; Decretio Chlotharii, c. 5; Edictus Hilperichi, cc. 5, 7; and the observations of Sohm in his treatise on the Procedure of the Salic Law, Sections 20, 22, 27, French Tr. (Thevenin), pp. 83 n., 93, 94, 101-103, 130.
[47] Wilda, Strafrecht, 590.
[48] Cf. Wilda, Strafrecht, 660, n. 1; Merkel, Lex Salica, Gloss. Lege, p. 103. Lex Saxon. XI. Section 3: "Si servus perpetrato facinore fugerit, ita ut adomino ulterius inveniri non possit, nihil solvat." Cf. id. II. Section 5. Capp. Rip. c. 5: "Nemini liceat servum suum, propter damnum ab illo cuibet inlatum, dimittere; sed justa qualitatem damni dominus pro illo respondeat vel eum in compositione aut ad poenam petitori offeret. Si autem servus perpetrato scelere fugerit, ita ut a domino paenitus inveniri non possit, sacramento se dominus ejus excusare studeat, quod nec suae voluntatis nec conscientia fuisset, quod servus ejus tale facinus commisit."
[49] L. Saxon. XI. § 1.
[50] Lex Angl. et Wer. XVI.: "Omne damnum quod servus fecerit dominus emendet."
[51] C. 3; 1 Thorpe, Anc. Laws, pp. 27, 29.
[52] C. 74; 1 Thorpe, p. 149; cf. p. 118, n. a. See LL. Hen. I., LXX. Section 5.
[53] C. 24; 1 Thorpe, p. 79. Cf. Ine, c. 42; 1 Thorpe, p. 129.
[54] C. 13; 1 Thorpe, p. 71.
[55] 1 Tylor, Primitive Culture, Am. ed., p. 286.
[56] Cf. Record in Molloy, Book 2, ch. 3, Section 16, 24 Ed. III.: "Visum fuit curiae, quod unusquisque magister navis tenetur respondere de quacunque transgressione per servientes suos in navi sua facta." The Laws of Oleron were relied on in this case. Cf. Stat. of the Staple, Ed. III., Stat. 2, c. 19. Later, the influence of the Roman law is clear.
[57] Quon. Attach., c. 48, pl. 10 et seq. Cf. The Forme and Maner of Baron Courts, c. 62 et seq.
[58] Forme and Maner of Baron Courts, c. 63.
[59] C. 64. This substantially follows the Quoniam Attachiamenta, c. 48, pl. 13, but is a little clearer. Contra, Fitzh. Abr. Corone, Pl. 389, 8 Ed. II.
[60] Fitzh. Abr. Barre, pl. 290.
[61] Mitchil v. Alestree, 1 Vent. 295; S.C. 2 Lev. 172; S.C. 3 Keb. 650. Cf. May b. Burdett, 9 Q.B.101, 113.
[62] May v. Burdett, 9 Q.B.101.
[63] Mason v. Keeling, 12 Mod. 332, 335; S.C. 1 Ld. Raym. 606, 608.
[64] Williams, J. in Cox v. Burbidge, 13 C.B. N.S. 430, 438. Cf. Willes, J. in Read v. Edwards, 17 C.B. N.S. 245, 261.
[65] Mason v. Keeling, 1 Ld. Raym. 606, 608.
[66] In the laws of Ine, c. 42 (1 Thorpe, Anc. Laws, 129), personal liability seems to be imposed where there is a failure to fence. But if an animal breaks hedges the only remedy mentioned is to kill it, the owner to have the skin and flesh, and forfeit the rest. The defendant was held "because it was found that this was for default of guarding them,...for default of good guard," in 27 Ass., pl. 56, fol. 141, A.D. 1353 or 1354. It is much later that the reason is stated in the absolute form, "because I am bound by law to keep my beasts without doing wrong to any one." Mich. 12 Henry VII., Keilway, 3b, pl. 7. See, further, the distinctions as to a horse killing a man in Regiam Majestatem, IV, c. 24.
[67] Fol. 128.
[68] Cf. 1 Britton (Nich.), 6a, b, 16 (top paging 15, 39); Bract., fol. 136b; LL. Alfred, c. 13 (1 Thorpe, Anc. Laws, p. 71); Lex Saxon., Tit. XIII.; Leg Alamann., Tit. CIII. 24.
[69] Fleta, I. 26, Section 10; Fitzh. Abr. Corone, pl. 416. See generally Staundforde, P.C., I. c. 2, fol. 20 et seq.; 1 Hale, P.C. 410 et seq.
[70] Doctor and Student, Dial. 2, c. 51.
[71] Plowd. 260.
[72] Jacob, Law Dict. Deodand.
[73] Y.B. 30 & 31 Ed. I., pp. 524, 525; cf. Bract., fol. 136b.
[74] Fitzh. Abr. Corone, pl. 403.
[75] Bract. 122; 1 Britton (Nich.), top p. 16; Fleta, Ic. 25, Section 9, fol. 37.
[76] 1 Hale, P.C. 423.
[77] 1 Rot. Parl. 372; 2 Rot. Parl. 345, 372a, b; 3 Rot. Parl. 94a, 120a, 121; 4 Rot. Parl. 12a, b, 492b, 493. But see 1 Hale, P.C. 423.
[78] 1 Black Book of the Admiralty, 242.
[79] Cf. Ticonderoga, Swabey, 215, 217.
[80] China, 7 Wall. 53.
[81] Doctor and Student, Dial. 2, c. 51.
[82] 1 Roll. Abr. 530 (C) 1.
[83] 3 Black Book of Adm. 103.
[84] Malek Adhel, 2 How. 210, 234.
[85] 3 Kent, 218; Customs of the Sea, cap. 27, 141, 182, in 3 Black Book of the Admiralty, 103, 243, 245.
[86] 3 Kent's Comm. 188.
[87] Clay v. Snelgrave, 1 Ld. Raym. 576, 577; S.C. 1 Salk. 33. Cf. Molloy, p. 355, Book II. ch. 3, Section 8.
[88] "Ans perdront lurs loers quant la nef est perdue." 2 Black Book, 213. This is from the Judgments of the Sea, which, according to the editor (II., pp. xliv., xlvii.), is the most ancient extant source of modern maritime law except the decisions of Trani. So Molloy, Book II. ch. 3, Section 7, p. 354: "If the ship perishes at sea they lose their wages." So 1 Siderfin, 236, pl. 2.
[89] 3 Black Book, pp. lix., lxxiv.
[90] 3 Black Book, 263. It should be added, however, that it is laid down in the same book that, if the vessel is detained in port by the local authorities, the master is not bound to give the mariners wages, "for he has earned no freight."
[91] Lipson v. Harrison, 2 Weekly Rep. 10. Cf. Louisa Jane, 2 Lowell, 295.
[92] 3 Kent's Comm. (12th ed.), 218; ib. 138, n. 1.
[93] 3 Kent, 218.
[94] Justin v. Ballam, 1 Salk. 34; S.C. 2 Ld. Raym. 805.
[95] D. 20. 4. 5 & 6; cf. Livy, XXX. 38.
[96] Pardessus, Droit. Comm., n. 961.
[97] 3 Keb. 112, 114, citing 1 Roll. Abr. 530.
[98] Godbolt, 260.
[99] 3 Colquhoun, Roman Civil Law, Section 2196.
[100] Lex Salica (Merkel), LXXVII.; Ed. Hilperich., Section 5.
[101] See Lecture III., ad fin.
[102] Arthur R. Hogue, Origins of the Common Law (Indianapolis, Liberty Fund 1986 (1966))
[103] Well discussed in  William S. Holdsworth, A History of English Law Book 1 ch. 1(7th ed., Methuen Sweet & Maxwell, 1956).
[104] Discussed in S.F.C. Milson, Foundations of the Common Law (London: Butterworths, 1969).
[105] The classical elaboration of this meaning was developed by Edward Coke in the 16th century debates with royalists and in defense of the common law.   For an excellent distillation, see, Edward S. Corwin, The “Higher Law” Background of American Constitutional Law 38/39 (Ithaca, NY:  Cornell University Press, 1955).
[106] Douglas North the institutional economist reminds us that “ideas and ideologies matter, and institutions play a major role in determining just how much they matter. Ideas and ideologies shape the subjective mental constructs that individuals use to interpret the world around them and make choices.” Douglas C. North, Institutions, Institutional Change and Economic Performance 111 (Cambridge University Press, 1990).
[107] Holmes, Common Law, supra., at 2.
[108] “Our system of private liability for the consequences of a man’s own acts, that is, for his trespasses, started form the notion of actual intent and actual personal culpability.” Holmes, supra., 4.
[109] Or , in Holmes’ words: “The customs, beliefs, or needs of a primitive time establish a rule or a formula. In the course of centuries the custom, belief, or necessity disappears, but the rule remains. The reason which gave rise to the rule has been forgotten, and ingenious minds set themselves to inquire how it is to be accounted for. Some ground of policy is thought of, which seems to explain it and to reconcile it with the present state of things; and then the rule adapts itself to the new reasons which have been found for it, and enters on a new career. The old form receives a new content, and in time even the form modifies itself to fit the meaning which it has received. The subject under consideration illustrates this course of events very clearly.” Ibid., 5.
[110] “The surrender of the slave or the beast empowered the injured party to do his will on them.  Payment by owner was merely a privilege in case he wanted to buy the vengeance off.”  Ibid., 15.
[111] Damages, of course, is a key element of common law and represents the  principal means available for recovery against a wrongdoer.
[112] Holmes, supra., 16.
[113] Ibid., 18
[114] Ibid.
[115] Ib id., 24.
[116] Ibid., 24-30.
[117] Ibid., 29.
[118] Ibid. 30-31(“In other words, those great judges, although of course aware that a ship is no more alive tan a mil Wheel, thought that not only the law did in fact deal with it as if it were alive, but that it was reasonable that the law should do so.”).
[119] Ibid., 34 (“The ox in Exodus was to be stoned.  The axe in the Athenian law was to be banished.  The tree, in Mr. Tylers’s instance was to be chopped to pieces. The slave under all systems was to be surrendered to the relatives of the slain man.” Ibid., 34-35).
[120] Ibid., 35.
[121] Ibid., 35.
[122] Holmes famously notes: “precedents survive in the law long after the use they once served is at an end and the reason for them has been forgotten.” Ibid. 36.
[123] Ibid.
[124]  Ibid. (“And as the law is administered by able and experienced men, who know too much to sacrifice good sense to a syllogism, it will be found that, when ancient rules maintain themselves in the way that has been and will be shown in this book, new reasons more fitted to the time have been found for them, and that they gradually receive a new content, and at last a new form, from the grounds to which they have been transplanted.” Ibid., 36).
[125] “The truth is, that the law is always approaching, and never reaching, consistency” Ibid., 36. 
[126] Ibid.
[127] Larry Catá Backer, Chroniclers in the Field of Cultural Production: Interpretive Conversations Between Courts and Culture, 20 Boston College Third World Law Journal 291-343 (2000).
[128] This is an application to institutional behaviors of the cultural tropes of a “heroic age” best distilled in studies of oral poetry and traditional literature. C. M. Bowra, Heroic poetry (London: Macmillan, 1952); H. M. Chadwick, The Heroic Age (London, 1912).  The allure of the heroic is very much embedded in the academic cultures of analysis in the United States.  See, e.g., Larry Catá Backer, The Many Faces of Hegemony: Patriarchy and Welfare as a Women’s Issue, 92 Northwestern University Law Review 327 (1997) (reviewing Mimi Abramovitz, Under Attack, Fighting Back: Women and Welfare Reform in  the United States (1996))
[129] Discussed in Larry Catá Backer, Chroniclers in the Field of Cultural Production: Interpretive Conversations Between Courts and Culture, 20 Boston College Third World Law Journal 291-343 (2000).
[130] See Carl Schmitt, The Age of Neutralizations and Depoliticizations(1929) Telos 1993:130-142 (June 20, 1993);  discussed in John Carlos Donado, Schmitt’s Spirit of Technicity: Reading “The Age of Neutralizations and Depoliticizations”, Telos Scope (Jan. 22, 2013).  Available
[131] For those interested in the academic debate on the character of law, much of which has sometimes seeped into the judicial mind and influenced the way legislatures approach the management of the Enterprise of law in the United States, one can start with Gary Minda, Postmodern Legal Movements: Law and Jurisprudence at Century’s End 1-80 (New York: New York University Press, 1995).
[132] Among the most famous of the last generation is Robert H. Bork, The Tempting of America: The Political Seduction of the Law (New York: The Free Press, 1990).
[133] Among the best early Works is Robert M. Unger, Law in Modern Society (New York: The Free Press, 1976).
[134] Gary Minda, Postmodern Legal Movements, suprra., 20.
[135] Ibid.
[136] Ibid.
[137] Instrumentalism refers to the premised that law and law making must be understood as instruments, the worth of which ought to be measured  by their use in achieving a set of objectives.  Legal instrumentalism would see law as a  tool for the achievement of other, greater aims, the control of which is placed in the hands of religious elites, political elites or others who can legitimately determine the objectives toward which law is to be directed.  One of its most influential U.S. adherents was the philosopher John Dewey, who sometimes referred to this as experimentalism.  See, e.g., John Dewey, Logic: The Theory of Inquiry (New York: Henry Holt & Co., 1938).
[138]  Considered in more detail in Larry Catá Backer, Reifying Law:  Understanding Law Beyond the State, 26(3) Penn State International Law Review 521-563 (2008).
[139] This is considered at greater length in Larry Catá Backer, Retaining Judicial Authority: A Preliminary Inquiry on the Dominion of Judges, 12(1) William & Mary Bill of Rights Journal 117-178 (2003); Larry Catá Backer, Chroniclers in the Field of Cultural Production: Interpretive Conversations Between Courts and Culture, 20 Boston College Third World Law Journal 291-343 (2000).
[140] We note that it is a criminal offense to operate a motor vehicle in this Commonwealth while the amount of alcohol by weight in the blood of the driver is 0.10% or greater. See 75 Pa. C.S.A. § 3731(a)(4); Commonwealth v. Yapsuga, 369 Pa.Super. 336, 535 A.2d 187 (1987). Where a driver’s blood alcohol content is 0.10% or greater, it may be inferred that the driver is under the influence of alcohol. Commonwealth v. Johnson, 376 Pa.Super. 121, 545 A.2d 349 (1988).
[141] Act of December 5, 1936, Second Ex.Sess., P.L. (1937) 2897, As amended, 43 P.S. s 802(e), which provides in pertinent part: ‘An employe shall be ineligible for compensation for any week-‘(e) In which his unemployment is due to his discharge or temporary suspension from work for willful misconduct connected with his work . . ..’

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