/1/ On the other hand, we
shall see what can be said for the proposition, that even in
trespass there must at least be negligence. But whichever
argument prevails for the one form of action must prevail for the
other. The discussion may therefore be shortened on its technical
side, by confining it to trespass so far as may be practicable
without excluding light to be got from other parts of the law.
As has just been hinted, there are two theories of the common-law
liability for unintentional harm. Both of them seem to receive
the implied assent of popular textbooks, and neither of them is
wanting in plausibility and the semblance of authority.
The first is that of Austin, which is essentially the theory of a
criminalist. According to him, the characteristic [82] feature of
law, properly so called, is a sanction or detriment threatened
and imposed by the sovereign for disobedience to the sovereign's
commands. As the greater part of the law only makes a man civilly
answerable for breaking it, Austin is compelled to regard the
liability to an action as a sanction, or, in other words, as a
penalty for disobedience. It follows from this, according to the
prevailing views of penal law, that such liability ought only to
be based upon personal fault; and Austin accepts that conclusion,
with its corollaries, one of which is that negligence means a
state of the party's mind.
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