The standard, that is, [111] must be fixed. In practice,
no doubt, one man may have to pay and another may escape,
according to the different feelings of different juries. But this
merely shows that the law does not perfectly accomplish its ends.
The theory or intention of the law is not that the feeling of
approbation or blame which a particular twelve may entertain
should be the criterion. They are supposed to leave their
idiosyncrasies on one side, and to represent the feeling of the
community. The ideal average prudent man, whose equivalent the
jury is taken to be in many cases, and whose culpability or
innocence is the supposed test, is a constant, and his conduct
under given circumstances is theoretically always the same.
Finally, any legal standard must, in theory, be capable of being
known. When a man has to pay damages, he is supposed to have
broken the law, and he is further supposed to have known what the
law was.
If, now, the ordinary liabilities in tort arise from failure to
comply with fixed and uniform standards of external conduct,
which every man is presumed and required to know, it is obvious
that it ought to be possible, sooner or later, to formulate these
standards at least to some extent, and that to do so must at last
be the business of the court.
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