Vol. 15 No.5 (May 2005), pp.350-353
A REVISIONIST HISTORY OF TORT LAW: FROM HOLMESIAN REALISM TO NEOCLASSICAL RATIONALISM, by Alan Calnan. Durham, North Carolina: Carolina Academic Press, 2005. 340pp. Cloth. $45.00. ISBN: 0-89089-473-6.
Reviewed by Michael L. Rustad, Thomas F. Lambert Jr. Professor of Law & Co-Director of Intellectual Property Law Program, Suffolk University Law School, Boston. Email: firstname.lastname@example.org .
Alan Calnan’s bold new historiography of tort law takes issue with those legal historians who conceptualize early tort law as a simple cell organism that is both primitive and thoughtless. Calnan’s rich historical tapestry also challenges the conventional view that the law of torts reversed course from strict liability to one based on fault. Calnan locates the lodestar of tort law in the principle of the reasonable person, and his revisionist theory examines both the history and the jurisprudence of the formative era of tort law.
Legal historians will be impressed with the thoroughness of Calnan’s research. He relies extensively upon primary source documents from the Selden Society, founded by English legal historian Frederick Maitland and the single best source for primary materials on legal history. A perusal of the bibliography confirms that Calnan thoroughly explored the Selden Society’s Year Books, as well as a range of primary ancient and medieval sources. Calnan’s book is a treasure trove of legal records from a period where few tort scholars have studied.
Calnan develops the provocative thesis that Oliver Wendell Holmes, Jr.’s, oft-cited history of tort law is at odds with its underlying jurisprudence. In Holmes’ THE THEORY OF TORTS (1873), he divided the universe of civil wrongs into fault-based torts and those based on other criteria (p.16). Calnan points out that twenty-four years later in THE COMMON LAW (1897), Holmes changed his mind, deciding that torts revolved around fault. He observes that Holmes’ earlier work had no moral basis underlying tort law; whereas fault became the rule and strict liability the exception in the latter work. The problem with Holmes’ realist reassessment of tort law was that “in making up these rules, Holmes became a rule-breaker” (p.17).
Part I debunks the conventional paradigm of tort historiography. Here, Calnan castigates Holmes for excessive reliance upon legal sources without any attention to social or intellectual history. He concludes that Holmes’ history of torts is flawed because of methodological errors. Calnan contends that many legal historians do perfunctory or purposive histories rather than comprehensive ones, and they are doomed to failure because of inadequate methodologies. The first part of his book provides many compelling examples of how well-known scholars slavishly followed Holmes without critically unpacking his historical assumptions or his methodology. It is unclear from Calnan’s account how serious legal historians such as Pollock [*351] and Maitland (1895), Plucknett (1956), Baker and Milsom (1986) were led astray by Holmes’ historical account of early tort law.
Calnan amply supports his thesis that Holmes’ work as an historian of tort law needs to be reassessed. In Chapter One, he considers the uses of history. According to Calnan, legal history is not just about explaining the past, but also determining the future path of the law (p.37). Benjamin Cardozo warned all legal scholars “The law must be stable and yet it cannot stand still.” The job of the legal profession, lawyers, and judges was to adjust the need for continuity with the “alchemy of corrective change.” Professor Lambert wrote that the law of torts does not need judges who sit like the figures on Roman silver coins, ever looking backward. Calnan has a similar concern about Holmes’ historiography.
The Reporters of the Restatement (Third) of Torts pay homage to Holmes as if there was a wall of fire around Holmes’ unexamined legal history. Lambert quoted Alfred North Whitehead’s (1927, at p.88) admonition that societies which cannot combine reverence to their codes with freedom of revision “must ultimately decay either from anarchy, or from the slow atrophy of a life stifled by useless shadows.” Professor Calnan attempts to save the early history of tort law by debunking the conventional view.
Alan Calnan has a keen awareness of the uses as well as the misuses of history. He views history’s lessons as not only explaining the present and the past but also having a practical use of allowing one to avoid repeating the mistakes of the past. Santayana’s quote that those who “cannot remember the past are condemned to repeat it” applies to bad legal historical accounts. The conventional history of tort law was that at early common law in pre-Norman England, the civil liability system was predicated upon the bedrock of “absolute liability.” Calnan questions this oft-repeated tort aphorism tracing the path of tort law to the fault principle with pockets of absolute liability.
Professor Calnan uses the method of imaginative reconstructive to tell the story of the writ system. Legal history is marked by benign neglect of imaginative reconstruction because of historians’ heavy reliance on recorded laws and legal decisions. The law did not descend from above like the Ten Commandments. Legal historians must consider not only culture but practical and political ideologies but also the jurisprudential predispositions of judges and other legal decision makers. Calnan provides many examples of the poverty of tort legal historiography in Chapter Three. Tort legal historians suffer from tunnel vision (p.76) and their collective noses are stuck in law books (p.73). Calnan sensibly shows that it is all but impossible to reconstruct imaginatively from Anglo-Saxon sources (p.81)
His description of the writ system in action was primarily a system for regulating competing jurisdictions—manorial, county, and county court. The Royal writ system favored the wealthy because justice could be purchased for fixed prices. Historians Frederick Pollock and Frederic Maitland describe how the Royal writ system of Henry III was fee-based. Creditors, for example, agreed to pay the king a quarter or a third of the debts that they [*352] hoped to recover, creating an economic incentive to support the interests of creditors over debtors. Calnan notes that by Henry II’s reign, writs were in ascendancy with some thirty standardized writs in use (p.102). It was during Henry II’s reign that the common law took root (p.87). Chapter Five, on early medieval sources of tort law, is a model of excellence though Calnan acknowledges that he has produced only an incomplete case that the formative era of tort law was fault-based. Chapter Six is a rich recreation of tort law in the Twelfth-Century Renaissance.
Calnan dubs the twelfth century as the “ground zero” of the modern English legal system. By the thirteenth century, Aquinas built upon and expanded the ancient concept of natural law. It was Aquinas, more than any other figure, who transformed English law. The entire medieval system was based upon preordained assumptions stemming from Adam’s original sin. Next he examines the transition from trespass to case in the late medieval period. Tort does not take a more definite form until the concept of social duties was perfected. Calnan brilliantly shows that it was the patchwork of social duties created in the Middle Ages that explains the rise of negligence. Negligence is based upon reasonableness, and reason provided doctrinalists with a tool that was at once flexible and stable (p.241).
The last chapters synthesize and explain the general standard of fairness. Calnan concludes that tort history is a contradiction in terms. Holmes’ juristoriography is legal fiction, not history (p.277). Calnan provides clear and convincing evidence that tort law did not evolve out of the Dark Ages, but that it did not begin to appear until the twelfth century. According to Calnan, there is a solid core, with actions radiating outward like rings of a tree. The first legally protectible interest was the right to human dignity, followed by the right to social welfare, and finally the right to expect reasonable treatment from others. Legal sanctions were first repressive, punishing reprehensible acts and later, acts of carelessness (negligence).
Calnan’s book achieves his promise of providing an alternative model to Holmes’ historiography. This book is highly recommended for all tort scholars, legal philosophers, and legal historians. It will be too difficult for the typical undergraduate audience but may be of value to graduate students in the sociology of law or law and policy.
I hope that Professor Calnan will consider writing a second volume reexamining the role of Blackstone in the formative era of tort law. When Sir William Blackstone wrote his COMMENTARIES ON THE LAWS OF ENGLAND (1765-68), his formulation of “private wrongs” was designed as a legal system that provided compensation primarily for intentional torts. At that time, tort law was largely a legal institution to adjudicate conflict between neighbors and landowners, and to mediate relations between employers and employees. Volume Three of Blackstone’s COMMENTARIES synthesized private wrongs before legal subjects were classified into “private and public spheres, and private law was further divided into the recognizable divisions of tort, contract, and property.” Blackstone’s Volume Three provides considerable insights into how torts were [*353] prefigured prior to the fault-based negligence paradigm. Blackstone’s COMMENTARIES, like Holmes’ COMMON LAW, requires a critical re-examination or imaginative reconstruction.
Baker, John H., and S.F.C. Milsom. 1986. THE SOURCES OF ENGLISH PRIVATE LAW TO 1750. Oxford: Oxford University Press.
Benjamin Cardozo. 1924. THE GROWTH OF THE LAW. New Haven: Yale University Press.
Plucknett, Theodore F.T. 1956. A CONCISE HISTORY OF THE COMMON LAW (5th ed). Boston: Little, Brown.
Pollock, Sir Frederick, Maitland, Frederic William. 1895. THE HISTORY OF ENGLISH LAW, BEFORE THE TIME OF EDWARD I (2 vols). Cambridge: Cambridge University Press.
Whitehead, Alfred North. 1927. SYMBOLISM. Cambridge: Cambridge University Press.
© Copyright 2005 by the author, Michael L. Rustad.
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