Legal Theorists and Academic Writers on Tort: Austin and his followers

John Austin was a very influential nineteenth-century legal theorist in the individualist tradition. In his view, the law gave individuals primary rights (to life, liberty etc) and then secondary rights to compensation through the law of civil injuries. A person would be liable if he culpably interfered with the primary rights of another. Austin’s discussion shared the common lawyers’ assumption that there were rights which were vindicated with a remedy when violated. But he said little about how the lawyer was to identify those rights, or how the judge was to develop the duties which protected them. Austin’s jurisprudence therefore could not explain the law of torts as a coherent system. It was the task of later theorists to attempt to map out a coherent system.

Pollock and Salmond were the leading English writers here, and both men wrote textbooks on torts as well as works on the theory of law. In seeking to develop a theory of torts, they followed in the footsteps of Holmes, who was arguably the first common lawyer to seek to develop a theory of tort. These writings accepted the individualist ideas of personal responsibility for actions, but disagreed on whether this fault involved personal culpability or merely falling short of an objective standard of conduct.

Holmes, an academic writer who became a leading judge, argued that the content of the law of torts was the product, not of abstract theory, but of historical choices by courts and legislators. He was read individualist writers such as Spencer and Austin. He rejected Austin’s contention that the notion of negligence applied a moral theory of subjective culpability. Rather, judges and juries made decisions about who ought to be liable. He insisted that people could only be liable for their individual acts: “The general principle of our law is that loss from accident must lie where it falls, and this principle is not affected by the fact that a human being is the instrument of misfortune.” Although liability could only be imposed if the agent was at fault, the standard of fault was not a subjective one, as Austin suggested. It was an objective externally based standard of reasonable care set by the law

Salmond argued that the personal and culpable fault of an individual was necessary to ground liability to pay compensation when another person was injured: “If I am not in fault, there is no more reason why I should insure other persons against the harmful issues of my own activity, than why I should insure them against lightning or earthquakes.”

Salmond did not believe that there was one general principle that united instances of liability for negligence. But Pollock did. He wrote: “All members of a civilized commonwealth are under a general duty towards their neighbours to do them no hurt without lawful cause or excuse” Pollock’s view that there was a single moral principle underlying the law of negligence, increasingly seen as the ‘core’ tort, was highly influential on other tort scholars in the 1920s and 1930s. Pollock’s generalisation of negligence was famously accepted by the House of Lords in Donoghue v Stevenson in 1932.

We see here that the philosophical ideas of individualism needed to be refined by academic lawyers, before they were eventually accepted by the courts. The academic lawyers were trying to give structure to the existing law, and used the philosophical ideas to give them inspiration.