But when A
assaults or slanders his neighbor, or converts his neighbor's
property, he does a harm which he has never consented to bear,
and if the law makes him pay for it, the reason for doing so must
be found in some general view of the conduct which every one may
fairly expect and demand from every other, whether that other has
agreed to it or not.
Such a general view is very hard to find. The law did not begin
with a theory. It has never worked one out. The point from which
it started and that at which I shall [78] try to show that it has
arrived, are on different planes. In the progress from one to the
other, it is to be expected that its course should not be
straight and its direction not always visible. All that can be
done is to point out a tendency, and to justify it. The tendency,
which is our main concern, is a matter of fact to be gathered
from the cases. But the difficulty of showing it is much enhanced
by the circumstance that, until lately, the substantive law has
been approached only through the categories of the forms of
action. Discussions of legislative principle have been darkened
by arguments on the limits between trespass and case, or on the
scope of a general issue. In place of a theory of tort, we have a
theory of trespass.
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