And even within that narrower limit,
precedents of the time of the assize and jurata have been applied
without a thought of their connection with a long forgotten
procedure.
Since the ancient forms of action have disappeared, a broader
treatment of the subject ought to be possible. Ignorance is the
best of law reformers. People are glad to discuss a question on
general principles, when they have forgotten the special
knowledge necessary for technical reasoning. But the present
willingness to generalize is founded on more than merely negative
grounds. The philosophical habit of the day, the frequency of
legislation, and the ease with which the law may be changed to
meet the opinions and wishes of the public, all make it natural
and unavoidable that judges as well as others should openly
discuss the legislative principles upon which their decisions
must always rest in the end, and should base their judgments upon
broad considerations of policy to which the traditions of the
bench would hardly have tolerated a reference fifty years ago.
[79] The business of the law of torts is to fix the dividing
lines between those cases in which a man is liable for harm which
he has done, and those in which he is not. But it cannot enable
him to predict with certainty whether a given act under given
circumstances will make him liable, because an act will rarely
have that effect unless followed by damage, and for the most
part, if not always, the consequences of an act are not known,
but only guessed at as more or less probable.
Pages:
89
90
91
92
93
94
95
96
97
98
99
100
101
102
103
104
105
106
107
108
109
110
111
112
113