IX
Novus Ordo
Positivism and Conceptualism
Before the nineteenth century, jurists concentrated on bodies of law that had an
authority that transcended political boundaries. The Roman texts were regarded as
a ius commune, in force everywhere according to the medieval civilians. They were
in force in France insofar as they had been received there and, according to Domat,
the texts received for the most part reflected natural law. According to the usus
modernus pandectarum, the Roman texts were in force in Germany and the Netherlands
by custom because they rested on reason. The late scholastics, the iusnaturalists,
and the rationalists had written about natural law—a law with an authority
which was independent of the texts in force.
In the nineteenth century, jurists came to believe that they should interpret texts
without regard to any higher principles on which they might rest. If there were such
principles, it was not the task of jurists to investigate and apply them. The texts
were authoritative simply because they were the law of a particular region, enacted
or accepted by those with authority in that region. We can speak of this approach as
“positivism,” if we use the word with caution. The positivism of the jurists was not
a philosophical view of the nature and sources of law. Rather, it was a belief about
where the law was to be found so far as their work was concerned.
French jurists sought the law in French legislation such as the French Civil Code.
German jurists centered their work on the Roman texts that were now regarded as a
gemeines Recht, or German common law. Common lawyers thought that their law
rested on the authority of decided cases. Certainly, they had always thought so, but
now a change occurred in how the cases were understood. The common law ceased
to consist of bodies of lore organized about writs or forms of action. As we will see,
it was organized according to legal doctrines, many of which were borrowed from
the Continent. Nevertheless, the Continental sources from which the doctrines
were borrowed were not recognized as authoritative in themselves. Rather, the
doctrines were thought to rest on the authority of the decided cases.
The jurists systematized law by concepts that they claimed to find in their
sources. We can speak of this endeavor as “conceptualism,” if, again, we are careful
about the word. Conceptualism was not a philosophy. Rather, it was a method of
explaining the law by identifying basic concepts and deriving from them as many
rules as possible.
Thus the jurists began a new project that united positivism and conceptualism.
Although work on the project began in the late eighteenth century and continued
into the twentieth, for convenience we will call it the “project of the nineteenthcentury
jurists.”
The project may have originated, in part, because of the jurists’ disillusionment
with the attempt to explain law by means of higher principles founded on human
nature. That attempt seemed unlikely to succeed after the rise of modern critical
philosophy, and all the more unlikely because of the efforts of jurists over the
previous two centuries. In the work of the iusnaturalists, and of Domat and
Pothier, the higher principles had become so indistinct and their links to legal
doctrines so unclear that they may have seemed like platitudes and non sequiturs.
The work of the rationalists may have seemed like a series of tautologies leading
nowhere. The alternative seemed to be positivism: if the law did not rest on higher
principles grounded in human nature, then it rested on texts with legal authority.
Positivism was linked to conceptualism. If the texts were the ultimate source of
law, then a jurist must be able to derive his conclusions from the texts. If he could
not do so, he was presenting his own opinions as if they were law. He was usurping
legal authority. Therefore there must be concepts underlying the texts from which
his conclusions could be derived.
These considerations help to explain why the project of the nineteenthcentury
jurists made sense to them. Yet, as with other projects that we have
examined, this one too need not have been. Positivism and conceptualism were
not the only possible response to the situation of the jurists, nor were they an
obvious response.
Positivism
The nineteenth-century jurists’ commitment to positivism depended on a new
understanding of legal texts that was far from obvious. The French jurists now
regarded legislation as the exclusive source of French law, and their Civil Code as
one exclusive source of private law. In contrast, Portalis had thought that, to
interpret the Code, one must look beyond it to Roman and natural law. German
jurists came to regard Roman texts that were once accepted as the ius commune of
Europe as forming a German gemeines Recht, the authority of which rested on the
German Volksgeist—the “mind,” or “spirit”—of the German people. Common
lawyers restructured their law by borrowing extensively from Continental authorities,
while claiming that their work rested on the authority of their own decided
cases.
L’ecole de l’exégèse in France
The nineteenth-century French jurists implicitly rejected the view of Portalis, the
chairman of the committee that drafted the French Civil Code. As we have seen,
Portalis did not expect the Civil Code to be the sole authoritative source of French
196 The Jurists
law.1 To interpret it, the judge could turn to the “natural light of justice and good
sense,” since law is based on “universal reason, supreme reason,” founded on the
very nature of things. He could also consult the “valuable collections for the science
of laws” made by the Roman jurists. He could draw upon the learning of the “entire
class of men” trained in legal science who had produced “compendia, digests,
treatises, and studies and dissertations in numerous volumes.” He was referring
to compendia, digests, treatises, and studies and dissertations already written, not
new ones concerned only with the texts of the Civil Code.
In the nineteenth century, however, the conviction grew that the Code should be
interpreted exegetically without looking beyond its own texts. Thus the Code was
treated as self-sufficient even though its drafters had not intended it to be, and even
though, as we have seen, its drafter-in-chief had risked the defeat of his project
rather than abandon his conviction that self-sufficiency was an unnecessary and
impossible goal.
Charles Toullier, who wrote the first commentary on the Code soon after its
enactment, tried to interpret it according to jurists who had written on natural law.2
Later nineteenth-century authors did not. They usually said that they believed in a
natural law, but their protestations were sentimental introductions to exegetical
commentaries. The natural law, according to Alexandre Duranton, was promulgated
by God and known to man through the light of natural reason.3 According to
Antoine Marie Demante, it was given by God, engraved on our hearts, inseparable
from our reason, and invariably attached to our nature.4 Charles Demolombe
acknowledged its divine origin, its universality, and its immutability.5 To deny
that such a law exists, François Laurent said, would be to deny that there is a God
and to deny that man is a spiritual being, thereby reducing man to a brute and law
to a chain.6 Raymond-Théodore Troplong said that to deny that the Creator
engraved such a law on our hearts would be false and degrading.7 Auguste Valette
claimed that all nations recognize such a higher law and that the only people who
do not are certain metaphysicians whose systems need not be considered.8 Charles
Aubry and Charles Rau defined the natural law as the ensemble of rules that would
permit restraining a citizen by force.9
But their commentaries were innocent of any real attempt to determine what the
natural law was or to interpret the Code in its light. Demante said that the Code
1 See Chapter VI, pp. 150–53.
2 Charles Bonaventure Marie Toullier, Le Droit civil français suivant l’ordre du Code, 4th ed. (Paris,
1824–37). As Ghestin and Goubeaux have observed, the fact that Toullier did not regard the texts as
self-sufficient is good evidence that the drafters did not either: Jacques Ghestin and Gilles Goubeaux,
vol. 1 of Traité de droit civil, 2nd ed. (Paris, 1983), }} 142–45.
3 Alexandre Duranton, vol. 13 of Cours de droit français suivant le Code civil, 3rd ed. (Paris, 1834),
}} 15–16.
4 Antoine Marie Demante and Edouard Colmet de Santerre, vol. 1 of Cours analytique de Code Civil
(Paris, 1883), } 4 (by Demante).
5 Charles Demolombe, vol. 1 of Cours de Code Napoleon (Paris, 1854–82), }} 6, 8.
6 François Laurent, vol. 1 of Principes de droit civil français (Paris, 1869–78), } 4.
7 Raymond-Théodore Troplong, vol. 1 of De la vente (Paris, 1837), Preface, xvii, n. 1.
8 Auguste Valette, Cours de Code Civil (Paris, 1872), 2.
9 Charles Aubry and Charles Rau, vol. 1 of Cours de droit civil français (Paris, 1869–71), } 2.
Novus Ordo: Positivism and Conceptualism 197
had to be interpreted in light of the natural law,10 but his works were an echo of the
natural law tradition rather than an effort to explain and apply the natural law.
Duranton said that recourse to natural reason and equity should be the last resource
of the interpreter.11 Demolombe took as his motto “The texts before all else.”12
From the point of view of a jurist, he explained, there is only one true law: the
positive law.13 Troplong praised the jurist who measured his writings by the
inflexible text of the Code.14 Valette advised restraint in using principles of equity
to interpret it.15 Laurent claimed that the jurist should merely note defects in the
Code, thus leaving to the legislator the task of bringing it into accord with natural
law.16 Aubry and Rau gave an account of interpretation that made no reference to
natural reason or equity.17
They gave quite different reasons for reaching what was essentially the same
conclusion. Duranton explained that, while natural law speaks to all men of virtue
and intelligence, these men were simply too prone to make mistakes as to its
secondary precepts.18 Laurent thought that the natural law is revealed to the human
conscience progressively as a people approaches perfection. The legislator, however,
was supposed to prepare for it by interpreting statutes and noting their defects.19
Troplong20 and Valette21 contented themselves with general remarks about the
perfection and comprehensiveness of the Code. Demolombe agreed that, with a
Code so complete, humane, and equitable, a case could scarcely arise in which
natural law would be any different from positive law. Moreover, while there was a
pre-existent, universal, and immutable natural law, to think about such a law was
more appropriate to a philosopher or a moralist than a jurist. For a jurist writing
about the Code, the one true law was the positive law.22 Aubry and Rau claimed
that, while there were absolute and immutable principles such as the personality of
man, the right of property, the constitution of the family, and the liberty and
obligatory force of contracts, one could not determine a priori the rules by which
these principles should be developed. While the principles were immutable, the
rules were contingent and variable.23 The only point on which the French did
agree, then, was that their task was to interpret the Code exegetically and insofar as
10 Demante and Colmet de Santerre (n. 4), 1: } 23 (by Demante). On the other hand, he seems to
have thought that recourse should be had to general principles of law or natural equity only in the rare
instance in which a case is not covered by the letter or spirit of the statute, or the statutory text is so
obscure as to have no true sense: Demante and Colmet de Santerre (n. 4), 1: } 28.
11 Duranton (n. 3), 1: } 96. 12 Demolombe (n. 5), 1: 1st preface, vi.
13 Demolombe (n. 5), 1: } 8.53. 14 Troplong (n. 7), 1: Preface, viii.
15 Valette (n. 8), 1: 4. While acknowledging that the judge must consult general principles of law to
find a solution when statutory provisions are absent, Valette maintained that it would be astonishing to
find a case in which these provisions were wholly lacking, given the legislation enacted in the previous
seventy years: Valette (n. 8), 1: 34–35.
16 Laurent (n. 6), 1: }} 5, 30. For a judge to decide a case by natural law is permissible only when the
texts are insufficient, and then it is a necessary evil: Laurent (n. 6), 1: }} 256–57.
17 Aubry and Rau (n. 9), 1: }} 40–41. 18 Duranton (n. 3), 1: } 96.
19 Laurent (n. 6), 1: } 5. 20 Troplong (n. 7), 1: Preface, xii.
21 Valette (n. 8), 1: 34–35. 22 Demolombe (n. 5), 1: }} 8–10.
23 Aubry and Rau (n. 9), 1: } 2, n. 2.
198 The Jurists
possible without recourse to the natural law in which many said that they
believed.24 Although Philippe Rémy dislikes the phrase “school of exegesis” (école
de l’exégèse), he notes that these jurists, “despite their great diversity,” shared the
same “work” or task. It was the “‘explanation’ or development of the Civil Code.”
He praises them for having undertaken it: “Sixty-five years of explanation are not
too much to make a Code of 2000 articles of daily use to a civil lawyer.”25 Like
these jurists, he considers French law to be an elaboration of the rules of the
Code—a movement, as he describes it, “from the rule to the problems.”26
As Portalis had said, however, many cases could not be covered by the express
language of a Code provision. He expected that these provisions would be interpreted
by the principles of a higher law. If that was not possible, then the question
arose: by what principles could they be interpreted? As we will see, the answer of the
nineteenth-century jurists was to extract principles from the texts that made sense
to them, but which were quite different from those that had made sense to Domat,
Pothier, or the drafters of the Code.
Pandektenrecht in Germany
In Germany, the view that became orthodox was developed by Friedrich Carl von
Savigny. Like the jurists of the usus modernus pandectarum, Savigny regarded the
Roman texts as authoritative as received and modified in Germany. Together with
borrowings from canon law and customary law, they constituted the gemeines Recht,
or German common law. For the jurists of the usus modernus school, as we have
seen, these texts had authority because they rested on universal principles, and
because they had been accepted by usage or custom, which, like legislation, was a
source of law. Savigny did not believe that the texts rested on universal principles.
He thought that there were no universal principles sufficiently definite to be of use
to a jurist.27 The texts were authoritative and had been received in Germany
because the Geist—the mind, or spirit—of the German people had accepted
them.28 The Volksgeist—the unconscious mind or spirit of a people—is the source
of its law.29 It is manifested in “the common conviction of the people, the kindred
consciousness of an inward necessity, excluding all notion of an accidental and
arbitrary origin.”30 The authority of the gemeines Recht did not rest on mere
custom.
24 See André-Jean Arnaud, Les Juristes face à la sociétè du XIX 2e siècle à nos jours (Paris, 1975),
53–60.
25 Philippe Rémy, “Eloge de l’exégèse,” Droits Revue française de théorie juridique 1 (1985): 115,
119.
26 Rémy (n. 25), 121.
27 Friedrich Carl von Savigny, vol. 1 of System des heutigen Römischen Rechts (Berlin, 1840–48), } 8.
28 See James Whitman, The Legacy of Roman Law in the German Romantic Era: Historical Vision and
Legal Change (Princeton, NJ, 1990), 125–31.
29 Savigny (n. 27), 1: } 8.
30 Friedrich Carl von Savigny, Vom Beruf unsrer Zeit für Gesetzgebung und Rechtswissenschaft
(Heidelberg, 1840), 8.
Novus Ordo: Positivism and Conceptualism 199
Because the gemeines Recht was based on this common conviction, it possessed
authority. For the same reason, it possessed unity. Savigny, Georg Friedrich Puchta,
and Bernhard Windscheid described the gemeines Recht as a “natural whole.”31
Windscheid observed that “[t]he concept of gemeines Recht is related . . . to the
extraordinarily important concept of the whole which is not the sum but the
unity of its parts.”32
Because it possessed unity, the gemeines Recht could be interpreted. The French
Civil Code could not, because its provisions lacked unity. Their unity could not
come from higher principles of “natural equity,” as Portalis had thought.33 There
were no principles of natural law or equity that were sufficiently definite to be
of use.34
Nor could unity come from the foresight of the legislator. Savigny argued, like
Portalis, that it would be impossible for the Code to provide for “each [particular
case] by a corresponding provision. . . . [T]his undertaking must fail because there
are positively no limits to the actual variety of actual combinations of circum-
stances.”35
In principle, Savigny said, it would be possible to draft provisions that could
extend to any case that might arise. A code might then have another kind of
unity—or, as Savigny put it, “a perfection of a different sort”—which one might
call logical, or conceptual, unity:
[It] may be illustrated by a technical expression of geometry. In every triangle, there are
certain given features from the relations of which all the rest are deducible: thus, given two
sides and the included angle, the whole triangle is given. In like manner, every part of our
law has points by which the rest may be given: these may be termed leading axioms.36
The difficulty was that “to distinguish them, and to deduce from them the internal
connection . . . is one of the most difficult problems of jurisprudence. Indeed, it is
peculiarly this that gives our work a scientific character.”37 The drafters of the
French Code had achieved nothing of the kind. Their Code was an amalgam of
texts lacking this technical perfection.
Savigny and his followers believed that the gemeines Recht was a natural whole
because it was an expression of the Volksgeist, and for that reason it had a logical or
conceptual unity that allowed jurists to identify its legal axioms and to deduce their
internal connections. The axioms and their connections were not rooted in human
nature, as the rationalists had thought. Rather, they were rooted in the gemeines
Recht. That was so even though, as Savigny and his followers recognized, the
gemeines Recht was an amalgam of Roman, canon, and customary law, and even
though, as the humanists had shown, the Corpus iuris was an amalgam of the
opinions of different jurists writing at different times. Thus the school that Savigny
founded has been called Pandektenrecht, because it regarded the Roman texts of the
31 Savigny (n. 27), 1: } 10.
32 Bernhard Windscheid, vol. 1 of Lehrbuch des Pandektenrechts, 6th ed. (Frankfurt am Main,
1887), } 1.
33 Savigny (n. 30), 74–76. 34 Savigny (n. 30), 74–76. 35 Savigny (n. 30), 38.
36 Savigny (n. 30), 38. 37 Savigny (n. 30), 38.
200 The Jurists
Digest or Pandects as authoritative. It has been called Begriffsjurisprudenz because
its object was to understand the concepts underlying the Roman texts. It has been
called the “historical school” because of its belief that the conceptual or logical unity
to be found in the texts was the product of an historical process in which each text
carried a deeper meaning than its author personally understood.
The rationalists had thought that, because the law possessed a logical unity, like
mathematics, it must be based on concepts that, in their view, were as eternal and
immutable as those of mathematics. Savigny used the analogy of mathematics to
illustrate the conceptual or logical unity of the gemeines Recht. Neither Savigny nor
his followers explained in a distinct way why the Volksgeist should produce a law
with this conceptual or logical unity.38
Savigny believed that there is a Menschengeist, a mind or spirit of humanity.
According to Savigny, “what operates in a particular people in only the general Geist
of man (Menschengeist) which reveals itself in particular ways.”39 But the Menschengeist
for Savigny did not play the same role as that of human nature for the
rationalists. It was not a repository of coherent principles. As Okko Behrends
observed, for Savigny it was “mystical,” in the technical sense that its precepts, if
there were any, transcend human understanding.40
Savigny never explained why, if the Menschengeist reveals itself in the Geist of
particular peoples in particular ways, the German Volksgeist happened to manifest
itself in a law in which the elements logically cohere and which jurists could show to
be coherent. Did he mean that the Menschengeist, operating elsewhere, through the
Geist of another people, might operate in a different way? Could there be a people,
led by the Menschengeist and therefore human, that had no law? Or a people that
had no coherent law? Or could there be a law that was coherent, although based on
different concepts than the gemeines Recht? Savigny was not a philosopher seeking
answers to these questions. He was instead a jurist defending the Roman texts and
the jurists’ role in expounding them against French ideas that he thought were
unsound.
Savigny seemed to think that, because the gemeines Recht was a natural whole,
then ipso facto it was a logically or conceptually coherent whole. Puchta came close
to distinguishing the two. He said that the authority of legal concepts or principles
does not depend exclusively on the Volksgeist.41 They would have an intellectual
authority even if they had not been received anywhere. He came close to the
rationalist position that these concepts are invariable and timeless:
38 Joachim Bohnert, Über die Rechtslehre Georg Friedrich Puchtas (Karlsruhe, 1975), 138–45. On
the different explanations of Savigny and his followers, see Jan Schröder, Recht als Wissenschaft
Geschichte der juristischen Methodenlehre in der Neuzeit (1550–1933) (Munich, 2012), 198–200.
39 Savigny (n. 27), 1: } 21.
40 Okko Behrends, “Geschichte, Politik und Jurisprudenz in F. C. v. Savigny’s System des heutigen
römischen Rechts,” in Römisches Recht in der europäischen Tradition: Symposion aus Anlass des 75.
Geburtstages von Franz Wieacker, eds. Okko Behrends, Malte Diesselhorst, and Wulf Eckart Voss
(Ebelsbach, 1985), 257 at 264.
41 See Walter Wilhelm, Zur juristischen Methodenlehre im 19. Jahrhundert: Die Herkunft der
Methode Paul Labands aus der Privatrechtswissenschaft (Frankfurt am Main, 1958), 78–79.
Novus Ordo: Positivism and Conceptualism 201
A law which did not originally develop among a people either has only inner scientific
authority (as raison écrite) or also outer authority like that of indigenous law (or ‘received
law’). In the states in which Roman law does not have the latter authority today, it at least
possesses the former, which is by no means insignificant. In most German states, however, it
possesses both.42
Puchta was fortunate that Roman law did possess both forms of authority. If it
possessed only the authority of received law, there would be another law, like that of
the rationalists, which rested on reason alone and was not the law of any particular
people. It is not surprising that some scholars have thought that Puchta returned to
some form of natural law—although, as Hans-Peter Haferkamp has noted, that
claim is hard to establish.43
Windscheid seems to have thought that, because the Roman law was built upon
coherent principles and concepts, it had an intellectual force that explained both
why it was accepted in Germany and why it could be interpreted by jurists. Like
Savigny, Windscheid believed that the source of law was the Volksgeist. Nevertheless,
he said, Roman law was received “by the custom, not of the Volk, but of the
jurists,” who were “directed by the overpowering intellectual force with which the
Roman law confronted them.”44 Indeed, the Roman law had a decisive influence
on all of Europe:
. . . because its content in large part does not relate to the particularities of the Roman
Volksgeist but is nothing else than the expression of general human relations, developed,
however, with a mastery that no case law or legislation has since known how to achieve, and
therefore of immediate value where civilized people live together. . . . The concepts of
Roman law are always sharp and precise, and yet they are always elastic, always capable of
opening to needs in life that are newly arisen and of making room for their requirements.45
Here, the German Volksgeist seems to mean a national genius for appreciating,
appropriating, and developing concepts that are of significance “wherever civilized
people live together.” Nevertheless, for Windscheid, unlike the rationalists, these
concepts were not universal:
Roman law is not absolute law. There is no absolute law. In the area of law, as in other areas,
truth is revealed only in the progressive work of the human spirit (Menschengeist). Nevertheless,
Roman law resulted from the legal effort of that part of humanity which, among all
other peoples that previously appeared in history, participated in the greatest contribution to
legal culture. Roman law is not law, as little as Greek art is art, but the spiritual summit of
humanity was reached by Greek art in no greater measure than by Roman law.46
While believing that the gemeines Recht possessed conceptual unity, the German
jurists also recognized that it was based on Roman, canon, and customary law, and
42 Georg Friedrich Puchta, Lehrbuch der Pandekten (Leipzig, 1838), } 3.
43 Hans-Peter Haferkamp, Georg Friedrich Puchta und die “Begriffsjurisprudenz” (Frankfurt am
Main, 2004), 444. See Christoph-Eric Mecke, Begriff und System des Rechts bei Georg Friedrich Puchta
(Göttingen, 2009), 589–638; Bohnert (n. 38), 143–45.
44 Windscheid (n. 32), 1: } 1. 45 Windscheid (n. 32), 1: } 6.
46 Windscheid (n. 32), 1: } 6.
202 The Jurists
that, as the humanists had shown, the Roman texts themselves had been written
and understood in different ways at different times by different jurists. Puchta
explained that, although elements had been taken from Roman, canon, and
indigenous law, “each of these elements had to suffer modification” so that the
gemeines Recht would form a “whole.”47 According to Heinrich Dernburg, they had
been received “according to the German Geist, uniting ancient Roman legal ideas
with German and modern ones,” to form the gemeines Recht, which “was not
established by legislation but formed in the womb of the Volk by custom, legal
practice and science. . . . ”48 The Volksgeist was therefore responsible for the historical
development of the gemeines Recht as a unified body of law that jurists could
understand in terms of its underlying principles. Savigny said:
With the progress of civilization, national tendencies become more distinct, and what would
otherwise have remained common becomes appropriated to particular classes. The jurists
now become an increasingly distinct class of this kind. The law perfects its language, takes a
scientific direction, and, as formerly it existed in the consciousness of community, now it
devolves upon the jurists who thus, in this department, represent the community.49
In taking this scientific direction, the jurists were identifying principles that the law
already contained and which were evidenced by the historical development in the
way in which these texts were understood.50
Consequently, Windscheid described the school founded by Savigny as the heir
of the humanists. It had taken a “new step in the science of Roman law”—a step
that began “from the same point as in the 16th century.”51 Like the humanists,
the German jurists understood the texts in their historical context. Yet they
understood their historical meaning better by understanding the principles underlying
the texts:
Roman law was conceived as the result of a development that stretched over many centuries,
and in this development one sought and found the explanation of the true sense of the
Corpus iuris. Accordingly, the new school that arose [in the nineteenth century] is called the
historical school. Its greatest name and acknowledged head is Friedrich Carl von Savigny.
This school is principally distinguished from the historical school of the 16th century by the
energy of its effort to understand legal principles (Rechtssätze) and powers (Kräfte) underlying
actual relations and in this way to discover their inner life increasing attention to the
sharp expression of concepts and to the demonstration of the systematic relationship
between particular principles of Roman law. As to the last, the role of Georg Friedrich
Puchta, the most significant of Savigny’s students, is well known.52
Windscheid believed that, like the humanists, his contemporaries were engaged in
an historical enquiry. Yet their enterprises seemed different. As Ernst Böckenförde
noted, Savigny’s belief that the Volksgeist was responsible for such an historical
47 Puchta (n. 42), } 5.
48 Heinrich Dernburg, vol. 1 of Pandekten, 5th ed. (Berlin, 1892), } 1.
49 Savigny (n. 30), 28. 50 See Wilhelm (n. 41), 22–23, 25–27.
51 Windscheid (n. 32), 1: } 9. 52 Windscheid (n. 32), 1: } 9.
Novus Ordo: Positivism and Conceptualism 203
development was not based on the study of history.53 Rather, it was an attempt to
resolve theoretical problems about why the law had authority and how it could rest
on principles that were neither those of a higher law nor the prescriptions of a
human legislator. He and his followers did not seek the historical meaning of texts,
as the humanists did, by asking what the texts meant to their authors. They
identified principles that made sense of the texts and therefore, they said, illuminated
their historical meaning. As we have seen,54 initially the humanists believed
that when they recaptured the original meaning of the Roman texts, they would
arrive at an art of science of law unified by common principles. Savigny and his
followers thought that when they identified principles that were coherent and made
the best sense of the texts, they were understanding historical meaning of the texts.
Anglo-American common law
In France, although the texts of the Civil Code remained the same, jurists changed
their view of the authority of these texts. These texts were the private law of France
sanctioned by the authority of the state. The German Pandektists interpreted the
same texts as the usus modernus pandectarum, but now understood their authority
differently. They were expressions of the German Volksgeist with a conceptual or
logical unity that the jurist could investigate. In common law jurisdictions, the
authoritative texts were the decisions of judges. But, again, the authority of these
texts was now understood differently. The decided cases were understood to be
authority for a restructured common law, with a structure and doctrines borrowed
in large part from Continental jurists, although the writings of these jurists did not
have comparable legal authority.
As mentioned earlier, English law had not traditionally been organized around
general concepts such as ownership, possession, tort, or contract. English judges
used cases to determine the scope of the writs recognized by the courts. Until the
nineteenth century, to obtain relief, the facts of the plaintiff’s case had to fit one of
the existing writs, or “forms of action.”
Frederic William Maitland predicted that, when the history of the common law
is finally written, we will understand how the common lawyers arrived at “the great
elementary conceptions, ownership, possession, contract, tort and the like.”55 Yet,
as Charles Donahue has said, “[r]elatively little of the history of the forms of action
seems to deal with ‘the great elementary conceptions,’ like ownership, possession,
tort and contract.”56 In the nineteenth century, these conceptions and much else
were borrowed by common lawyers from Continental authors. The common law
53 Ernst Böckenförde, “Die Historische Rechtsschule und das Problem der Geschichtlichkeit des
Rechts,” Collegium Philosophicum: Studien Joachim Ritter zum 60. Geburtstag (Basel, 1965), 9 at 16. See
Wilhelm (n. 41), 36–37.
54 See Chapter IV, p. 116.
55 Frederic William Maitland, “Why the History of English Law is Not Yet Written,” in vol. 1 of
The Collected Papers of Fredric William Maitland (Cambridge, 1911), 480 at 484.
56 Charles Donahue, “Why the History of Canon Law is Not Written,” Selden Society lecture, Old
Hall of Lincoln’s Inn, London, July 3, 1984 (London, 1986), 6.
204 The Jurists
was still said to rest on the authority of the decided cases. The decided cases were
interpreted to support the borrowings.
As we have seen, the English courts were never clear about whether they were
protecting ownership or possession until the Court of Queen’s Bench decided Asher
v. Whitlock in 1865.57 They were not clear until the nineteenth century about
whether the fault of the defendant mattered when the plaintiff sued for some
harm that he had suffered. Before then, as Milsom and Fifoot pointed out, they
failed to distinguish fault and strict liability.58 It was not until 1865, in the nowfamous
case of Raffles v. Wichelhaus,59 that an English court finally said, like
the Roman jurists, that mistake could prevent the formation of a contract because
the parties must consent to the same thing. These concepts had been basic to civil
law since the time of the Roman jurists. The common lawyers were now seeking
a more systematic account of their own law. These Roman concepts made sense
to them.
In some areas of law, the systematization of the common law could not go as far
as others. In property law, for example, it would have been hard to make sense
conceptually of the common law estates in land and future interests, the rule
against perpetuities, or the distinctions among easements, covenants, and equitable
servitudes.
The same can be said of the law of restitution before twentieth-century scholars
tried to fill the breach.60 As John Dawson said, “any suggestion that the continuities
[the courts] were creating added up to a ‘law’ of restitution would have been
met for decades with disbelief.”61
Tort and contract, however, were reorganized so far as possible along Continental
lines. Here, the common lawyers were not borrowing Roman concepts. As we
have seen, Roman law was a law of particular torts and contracts. Intead, they were
borrowing from the structure that had been built by the late scholastics and passed
on by iusnaturalists such as Grotius.
The late scholastics gave tort law a structure that it previously lacked. They
described the distinctions among Roman actions as matters of Roman positive law,
as well as the limits that the lex Aquilia placed on the types of harm for which one
could recover. In principle, liability for harm was based on fault, which could be
intentional or negligent, although Molina found room for strict liability. If harm
was caused by fault, the defendant owed compensation for, as Soto said, “everything
whatsoever of which a person can be unjustly deprived.”62 Grotius summarized
their conclusions in words that affected the structure of all modern codes:
57 1 L.R. 1 Q.B.
58 S. F. C. Milsom, Historical Foundations of the Common Law (London, 1981), 392–98;
C. H. S. Fifoot, History and Sources of the Common Law Tort and Contract (London, 1949), 189, 191.
59 2 H. & C. 906, 159 E.R. 304 (1858).
60 See pp. 261, 273–74. See D. J. Ibbetson, A Historical Introduction to the Law of Obligations
(Oxford, 1999), 299–302.
61 John P. Dawson, “Restitution without Enrichment,” Boston University Law Review 61 (1981):
563, 564.
62 Domenicus de Soto, De iustitia et iure libri decem (Salamanca, 1553), lib. 4, Q. 6, a. 3.
Novus Ordo: Positivism and Conceptualism 205
“From . . . fault, if damage is caused, an obligation arises, namely, that the damage
should be made good . . . Damage . . . is when a man has less than what is his . . . ”63
The common lawyers borrowed this structure and used it to explain what they
now called the common law of tort. They classified, as actions in tort, such
traditional writs as trespass in assault and battery, trespass to land, trespass to
chattels, libel, and slander. They adopted, as an organizing principle, the doctrine
that a person was liable for harm caused by fault, drawing on Continental writers.64
As on the Continent, fault meant “wrongful intent or culpable negligence.”65
“Negligence” was now recognized as a separate tort by common law judges,66
with the approval of most of the treatise writers.67 If negligence was actionable
under this new tort, then the older forms of action—or many of them—had to be
classified as “intentional torts” in which liability was based on wrongful intent. Sir
Frederick Pollock, who would have been the last to acknowledge his great role in
reshaping English law, claimed that, in the case of “personal wrongs,” such as
battery, assault, false imprisonment, slander, and libel, “generally speaking, the
wrong is wilful or wanton. Either the act is intended to do harm, or, being an act
evidently likely to cause harm, it is done with reckless indifference to what may
befall by reason of it.”68 He concluded that “the Roman conception of delict agrees
very well with the conception that appears really to underlie the English law
of tort.”69
One element of the Continental model was that, typically, liability rested on
fault. Another element was that the defendant must have deprived the plaintiff
of something to which he had a right. The common lawyers incorporated this
second element by identifying the remedies provided by the traditional writs with
different rights that the law sought to protect.
This step had already been taken by Blackstone. He distinguished actions that
protected personal property (trespass to chattels and trover), those that protected
real property (trespass to land), and those that protected the “personal security of
individuals” against injuries to “their lives, their limbs, their bodies, their health or
their reputations.”70 Injuries to personal security were redressed by actions for
63 Hugo Grotius, De iure belli ac pacis (Amsterdam, 1646), II. xvii. 1–2.
64 Ibbetson (n. 60), 164–68.
65 Sir John Salmond, The Law of Torts: A Treatise on the English Law of Liability for Civil Injuries,
4th ed. (London, 1916), 8.
66 A first step was to hold that the plaintiff could not recover for bodily injuries that the defendant
caused accidentally and without negligence. In the United States, this step was taken in Brown v.
Kendall, 60 Mass. 292 (1850), in England, in Stanley v. Powell (1891) 1 Q.B. 86. As Prosser noted, it
was then illogical not to do the same with damage to property: William L. Prosser, Handbook of the
Law of Torts (St. Paul, MI, 1941), 77–78.
67 For example, Francis Hilliard, vol. 1 of The Law of Torts or Private Wrongs (Boston, MA, 1866),
83–84, 104–05, 109; Salmond (n. 65), 9; Sir Frederick Pollock, vol. 6 of The Law of Torts: A Treatise on
the Principles of Obligations Arising from Civil Wrongs in the Common Law, 8th ed. (London, 1908), 8.
Addison was an exception: C. G. Addison, vol. 2 of Wrongs and Their Remedies: A Treatise on the Law of
Torts, ed. F. S. P. Wolferstan, 4th English ed. (Albany, NY, 1876), 691.
68 Pollock (n. 67), 9. 69 Pollock (n. 67), 17.
70 William Blackstone, vol. 3 of Commentaries on the Laws of England (London, 1776), 119.
206 The Jurists
menace and assault in the case of threats, and, in the case of actual injury, by actions
of battery for harm to life and limb, actions of malpractice and nuisance for harm to
health, and actions of libel and slander for harm to reputation.
Although the treatise writers of the nineteenth and early twentieth centuries
proposed different solutions, like Blackstone, they looked for a correspondence
between forms of action and harms for which the plaintiff should be compensated.
Francis Hilliard and C. G. Addison, who wrote two of the earliest treatises on tort
law, explained that, for the plaintiff to recover, he must have suffered some
“injury”71 or “damage.”72 Pollock and Salmond, in their more systematic works,
said that he must have suffered some “harm.”73 Later writers, such as Fowler
Harper and William Prosser, spoke of the violation of “interests demanding
protection”74 or “legally recognized interests.”75
A paradox of the enterprise was that the Anglo-Americans were drawing on
Continental authority while, for the most part, insisting that only their decided
cases had genuine authority. Not surprisingly, the traditional case law did not sit
easily with Continental ideas either about fault or about rights in need of vindication.
Under the common law forms of action, the plaintiff could sometimes prevail
when the defendant clearly was not at fault. He was liable for trespass to land even
if, in good faith, he had thought that the land was his own. The defendant could
not escape liability for battery, assault, false imprisonment, or defamation by
proving that he had been innocently mistaken as to the identity of the victim, or
the existence of a privilege, or whether a statement was defamatory. The treatise
writers were in a difficult position. They could not scrap these rules without
admitting that their conclusions were not supported by the decided cases,
although Pollock at one point considered making that admission.76 So instead
they improvised.
According to Pollock, “[a] man can but seldom go by pure unwitting misadventure
beyond the limits of his own dominion.”77 In all but “exceptional cases,” strict
liability would not result in “real hardship.”78 According to Lawrence Vold, the
defendant was liable for mistakes in identity because “the risk . . . should be placed
on the intentional wrongdoer rather than his innocent victim.”79 He did not
explain why an actor who made a reasonable mistake should count as a wrongdoer.
According to Jeremiah Smith, “an intentional entry standing alone and unexplained
involves fault.”80 He did not ask why the law will not let such a person make an
explanation. Sir John Salmond thought that the reason lay in “the evidential
difficulties in which the law would find itself involved if it consented to make
71 Hilliard (n. 67), 1: 83–84. 72 Addison (n. 67), 2.
73 Pollock (n. 67), 6; Salmond (n. 65), 8.
74 Fowler Vincent Harper, A Treatise on the Law of Torts: A Preliminary Treatise on Civil Liability for
Harms to Legally Protected Interests (Indianapolis, IN, 1933), 5.
75 Prosser (n. 66), 8–9. Similarly, Restatement of Torts } 1 cmt. d (1934) (“legally protected
interests”); Restatement (Second) of Torts } 1 cmt. d (1965) (same).
76 Pollock (n. 67), 15. 77 Pollock (n. 67), 16. 78 Pollock (n. 67), 11.
79 Lawrence Vold, “Note,” Nebraska. Law Review 17 (1938): 149.
80 Jeremiah Smith, “Tort and Absolute Liability: Suggested Changes in Classification—II,”
Harvard Law Review 30 (1917): 319 (emphasis original).
Novus Ordo: Positivism and Conceptualism 207
any inquiry into the honesty and reasonableness of a mistaken belief which a
defendant set up as an excuse for his wrongful act.”81 He did not say why the
defendant was held liable even if there were no evidential difficulties.
A different approach was taken by Warren Seavy, Harper, Prosser, and the
Restatements.82 They said that the intent that mattered was not one to do wrong
or harm. According to Seavy, it was the intention “to deal with the things or with
the interests of others.” He claimed that “[t]he liability of one whose words
unexpectedly prove to be defamatory can be based, in most instances, on his intent
to deal with another’s reputation.”83 Similarly, Harper claimed that the intention
that matters is “to violate a legally protected interest of the plaintiff.”84 In the case
of trespass to land or chattels, the defendant need merely intend “the immediate
effect of his act which constituted the interference with plaintiff’s possession.”85 To
be liable for defamation, “the defendant must have intended to publish the
defamatory matter, i.e., he must have voluntarily published the statement which
harms the plaintiff’s reputation and thus invades his legally protected interests.”
But he need not have intended that anyone’s reputation be harmed.86 Similarly,
Prosser said that the intention that matters is not a desire to do harm, but “an intent
to bring about a result which will invade the interests of another in a way the
law will not sanction.”87 He drew the same conclusions as Harper. So, too, did the
Restatements.88
Neither were the common law writs a list of harms against which the law had
decided to protect the plaintiff. Again, there was a problem of fit.
For example, the defendant was liable in battery if he had not hurt the
plaintiff. A person who had been struck, but not physically harmed, could
recover.89 Some writers said that the reason was “the very great importance attached
by the law to the interest in physical security,”90 or that the interest “in bodily
integrity” is one of the “most highly protected.”91 Salmond described the interest in
question as “not merely that of freedom from bodily harm, but also that of freedom
from such forms of insult as may be due to interference with his person.”92 Harper,
81 Salmond (n. 65), 116.
82 Beale had yet another explanation. He said that someone who enters land mistakenly thinking it
is his own “acts on a mistake as to his own authority.” The mistake cannot “give him an authority
which in law or in fact he lacks”: Joseph H. Beale, “Justification for Injury,” Harvard Law Review 41
(1928): 553. He did not explain why one who enters land without authority and without believing that
he has authority is liable only if the entry is negligent but one who makes such a mistake is liable
without negligence.
83 Warren Seavey, “Principles of Torts,” Harvard Law Review 56 (1942): 72.
84 Harper (n. 74), 41. 85 Harper (n. 74), 55.
86 Harper (n. 74), 504. 87 Prosser (n. 66), 40–41.
88 Restatement of Torts } 13, } 13 cmt. d, } 158, } 158 cmt. e, } 577, } 580 (1934); Restatement
(Second) of Torts } 13, } 13 cmt. c, } 158, } 158 cmt. f (1965). In response to the constitutional
challenges to no-fault liability, the Second Restatement changed its rules to include a requirement of
fault for liability in defamation: Restatement (Second) of Torts }} 580, 581.
89 For example, Melville M. Bigelow, Elements of the Law of Torts for the Use of Students, 3d ed.
(1886), 101 (“any forcible contact may be sufficient”); Salmond (n. 65), 382 (force may be “trivial”).
90 George L. Clark, The Law of Torts (Columbia, MO, 1926), 10.
91 Seavey (n. 83), 72. 92 Salmond (n. 65), 383.
208 The Jurists
Prosser, and the Restatements agreed,93 and so they were able to redefine battery in a
way that fit the cases and also corresponded to the harms that Salmond had
identified: the plaintiff could recover for “unpermitted unprivileged contacts with
[his] person,”94 and for “harmful or offensive touching.”95
A plaintiff could recover in an action of assault even if he had not been touched.
According to the earlier treatise writers, the reason was the violation of a “right not
to be put in fear of personal harm.”96 Yet the plaintiff could not recover always or
only when he had been put in fear. As before, some, such as Seavy, said that the
reason was the importance of personal security, as though that explained the
matter.97 Harper, Prosser, and the Restatements, however, redefined the right at
stake as “the interest in freedom from apprehension of a harmful or offensive
contact.”98 That interest corresponded to their more precise definition of assault:
it required the “apprehension of a harmful or offensive contact,” in which apprehension
simply means the awareness that such a contact may imminently occur.99
The law, then, was protecting a rarefied state of mind.
Similarly, the plaintiff’s property was supposedly protected by an action for
trespass to land, and his reputation by actions for libel and slander. Yet the plaintiff
could recover for trespass if the defendant entered his land even if he did no physical
damage. He could recover for libel and certain types of slander if the defendant
“published” a defamatory statement, whether or not the plaintiff’s reputation had
suffered, or had suffered with anyone whose opinion mattered to him. This time,
none of the treatise writers managed to describe the interest as stake so as to make it
conform to the circumstances under which the plaintiff could recover. Some of
them found reasons why the law would impose liability when no harm was done.
Some said that the law “presumes,”100 or “implies,”101 damage. According to
Cooley, it does so in the case of defamation because it would be “unjust” to deny
recovery to a plaintiff who could not prove that he had been harmed.102 According
to Salmond, “[t]he explanation [is] that certain acts are so likely to result in harm
that the law prohibits them absolutely and irrespective of the actual issue.”103
According to Seavy, the reason was that, like the interest in bodily integrity, the
93 Prosser (n. 66), 44–45; Harper (n. 74), 38; Restatement of Torts ch. 2, titles of topics 1 & 2
(1934); Restatement (Second) of Torts ch. 2, titles, topics 1 & 2 (1965).
94 Prosser (n. 66), 43.
95 Harper (n. 74), 39. See Restatement of Torts }} 13, 15, 18–19 (1934); Restatement (Second) of
Torts }} 13, 15, 18–19 (1965).
96 Thomas M. Cooley, A Treatise on the Law of Torts or the Wrongs which arise Independent of
Contract (Chicago, IL, 1907), 161. See Francis M. Burdick, The Law of Torts: A Concise Treatise on the
Civil Liability at Common Law and Under Modern Statutes for Actionable Wrongs to Person and Property
(Albany, NY, 1913), 266.
97 Seavey (n. 83), 72.
98 Prosser (n. 66), 48; Harper (n. 74), 43 (same, but speaking of a “harmful or offensive
touching”); Restatement of Torts ch. 2, title of topic 3 (1934); Restatement (Second) of Torts ch. 2,
title of topic 3 (1965).
99 Prosser (n. 66), 48; Harper (n. 74), 43; Restatement of Torts } 21 (1934); Restatement (Second) of
Torts } 21 (1965).
100 Hilliard (n. 67), 1: 87. 101 Burdick (n. 96), 338.
102 Cooley (n. 96), 30–31. 103 Salmond (n. 65), 12.
Novus Ordo: Positivism and Conceptualism 209
interests in “reputation, together with those in the possession and ownership of
land, are the most highly protected.”104 Some merely let the matter pass.
In a similar way, the common lawyers reclassified their actions of covenant and
assumpsit as actions in contract. David Ibbetson notes that:
As occurred with the law of torts at the same time, English lawyers began to use theoretical
models to give a structure to contractual liability, and by 1800 the law of contract could be
treated as an abstract entity distinct from the forms of action.105
Again, Ibbetson notes, the common lawyers borrowed from Continental
authors.106 As we have seen, Roman law was a law of particular torts and contracts.
Again, the common lawyers borrowed this time from the structure that had been
built by the late scholastics and passed on by iusnaturalists such as Grotius.
According to the late scholastics and iusnaturalists, there were two kinds of
voluntary arrangements made for a causa, or reason, that the law would respect:
contracts of exchange, and gratuitous contracts in which one party assisted another
without recompense. In principle, both were binding. Still, if one party gratuitously
enriched another by making a gift, the late scholastics and iusnaturalists believed
that the law sensibly required a formality for the promise to be binding, which, in
their ages, was notarization. They reclassified the particular contracts of Roman law
as either acts of commutative justice or of liberality.
In common law, one could bring an action on almost any promise if one used a
formality called “seal.” Originally, a wax impression was made on a paper on which
the promise was written. No formality was required to bring an action in assumpsit,
and yet not every promise was enforceable. The promise, it was said, must have
“consideration.”
The treatise writers identified “consideration” with bargain or exchange. That
gave the common law a structure that looked like the civil law. Gratuitous promises
required a seal, just as gifts, in civil law, required the formality of notarization. As in
civil law, exchanges did not.
Nevertheless, there were difficulties with identifying the civil law distinction
between the two causae with the common law actions of covenant and assumpsit.
One problem was that seal was an antiquated formality, unlike notarization on the
Continent. Another problem was that “consideration” had never meant “bargain,”
or “exchange.” The courts had found consideration in a variety of cases. Some were
bargains or exchanges in the normal sense; some were not, for example promises of
gratuitous loans and bailments.107 The gratuitous loans and bailments were like the
types of arrangement that Roman law had called loan for consumption (mutuum),
loan for use (commodatum), and deposit (depositum). In the first two cases, the
recipient of the loan was receiving a favor. He could consume or use the object, and
104 Seavey (n. 83), 72. 105 Ibbetson (n. 60), 215.
106 Ibbetson (n. 60), 215, 217–21.
107 A. W. B. Simpson, A History of the Common Law of Contract (Oxford, 1975), 416–52.
210 The Jurists
later return the same amount or the object itself. In the last case, the recipient was
doing the favor of looking after another’s object for a while without charge.108
To refuse to enforce these contracts in assumpsit would have been odd. A person
who had borrowed from another would then be liable only if he made such
a promise under seal. Similarly, a promise made to a prospective son-in-law
was enforceable even though it was not a bargain. English courts wanted to enforce
such a promise, and so they said that the consideration was “natural love and
affection.”
Beginning with Blackstone, Anglo-American treatise writers identified “consideration”
with the causa of a contract of exchange.109 As Simpson said, they regarded
consideration as a local version of the doctrine of causa.110 Consequently, the
common law treatise writers were faced with three alternatives. They could compromise
their positivism by saying that the courts were wrong in claiming that such
gratuitous arrangements had consideration. They could compromise their effort to
systematize the common law by refusing to identify consideration with any specific
concept such as bargain or exchange. Or they could say that there really was a
bargain or exchange when a promise was made to a prospective son-in-law or by the
recipient of a gratuitous loan or bailment.
The last of these alternatives might seem the least likely, but Pollock achieved it.
He devised an ingenious definition of bargain or exchange that is still with us. He
said that “whatever a man chooses to bargain for must be conclusively taken to be of
some value to him.”111 To say that the parties had entered into a bargain or
exchange therefore meant that the promisor was induced to give his promise by
some change in the position of the promisee.112 In the case of the prospective sonin-law,
according to Pollock, the parent was induced to promise by a change in the
promisee’s position: marriage. In the case of the gratuitous loan, the borrower was
induced to promise to repay the loan or to look after and return the object loaned
by the lender’s change in position: he parted with the object. One anomaly
remained: the recipient of a deposit was not promising to look after an object
because he wanted to be entrusted with something that he could not use. Yet, in the
early case of Coggs v. Bernard, in which a carter agreed to transport a keg of brandy
free of charge, the court said that “a bare being trusted with another man’s goods,
must be taken to be a sufficient consideration.”113 Otherwise, Pollock seemed to
have succeeded. Pollock’s doctrine was adopted in America by Oliver Wendell
108 On the Roman contracts, see Chapter I, pp. 20–21.
109 Blackstone (n. 70), 2: 442; John J. Powell, vol. 1 of Essay Upon the Law of Contracts and
Agreements (London, 1790), 331; William Taylor, A Treatise on the Differences Between the Laws of
England and Scotland Relating to Contracts (London, 1849), 16; William Wentworth Story, A Treatise
on the Law of Contracts (Boston, MA, 1851), 431, n. 1; S. Comyn, vol. 1 of Contracts and Agreements
not under Seal (Flatbuch, 1809), *8; James Kent, vol. 2 of Commentaries on American Law (Boston,
MA, 1884), *630.
110 A. W. B. Simpson, “Innovation in Nineteenth Century Contract Law,” Law Quarterly Review
91 (1975): 247, 262.
111 Pollock, The Law of Torts or Private Wrongs, 10th ed. (1936), 172.
112 Pollock (n. 111), 164.
113 2 Ld. Raym. 909, 920, 92 Eng. Rep. 107, 114 (K.B. 1703).
Novus Ordo: Positivism and Conceptualism 211
Homes,114 whence it passed by way of Williston115 into the First116 and
Second117 Restatement of Contracts. It is taught today as the “bargained for detriment”
formula for consideration.
The formula is still used in the United States even though the cases that Pollock
sought to explain are now dealt with by a new doctrine, that of promissory reliance.
According to that doctrine, a promise is enforceable without either a formality or
consideration if it induced the promisee to change his position in reliance that the
promise would be kept. The parent is liable, supposedly, because the son-in-law
married in reliance on his promise of financial assistance. The borrower’s promises
are binding, supposedly, because the lender relied upon them in making the loan.
This is not the place to pursue the question, but one may doubt whether the
doctrine of promissory reliance really resolves these cases.118 Would a court really
deny relief to a son-in-law who would have married for love, even if he had been
promised nothing? The Second Restatement waffles by saying that the son-in-law
will be assumed without proof to have relied.119 Suppose that when Antonio, the
merchant of Venice, loaned Bassanio money to woo the fair Portia, he was
convinced he would never be paid back and made the loan only because he
preferred to lose the money than to risk Bassanio’s friendship. Should Antonio
not be entitled to recover if Bassanio refuses to repay him, although, having won
the fair Portia, Bassanio can afford to do so?
Conceptualism
The project of the nineteenth-century jurists was to find the law in authoritative
texts and to understand the texts, so far as possible, by a set of concepts that were
thought to underlie them. It combined positivism and conceptualism.
As noted earlier, both elements went together. They did not believe that, as
jurists, their task was to understand the law through means of higher principles
rooted in human nature. Rather, it was to find the law in texts invested with legal
authority. If a jurist’s conclusions were to have the same legal authority, they must
114 The language just quoted is from later editions of his treatise on contracts, but the core of his
theory of consideration was presented in the first edition, published in 1876, which he had sent in
manuscript form to his friend Oliver Wendell Holmes. Holmes wrote back that the account of
consideration “was the best which I had seen”: Letter from Pollock to Holmes, December 16, 1875,
in vol. 1 of Holmes–Pollock Letters, ed. M. Howe, 2nd ed. (Cambridge, MA, 1961), 276; Letter from
Holmes to Pollock, June 17, 1880, in Holmes–Pollock Letters, 1: 14, 15. Holmes then published his
own theory of consideration, which was similar: Oliver Wendell Holmes, The Common Law (Boston,
MA, 1881), 293–94.
115 Samuel Williston, “Consideration in Bilateral Contracts,” Harvard Law Review 27 (1914): 503,
516–18.
116 Restatement of Contracts } 75 (1932).
117 Restatement (Second) of Contracts } 71(1) (1979).
118 See James Gordley, “Enforcing Promises,” University of California Law Review 83 (1995): 547,
574–78, 584–89.
119 Restatement (Second) of Contracts } 90(2) (1979).
212 The Jurists
follow logically from these texts. Therefore there must be concepts underlying these
texts from which conclusions can be deduced.
The nineteenth-century jurists rejected rationalism. Yet Karl Wieacker observed
a parallel between rationalism and the conceptualism of nineteenth-century
German Pandektists:
[They] borrowed the method of forming a system and concepts and logically deducing legal
decisions from the system and concepts from their predecessor Christian Wolff. . . . The
subsequent development of [their] legal science shows that it never surrendered in principle
the formalism of natural law, descending more geometrico from axioms to general concepts
and from these to particular concepts and particular principles.120
There was a similar parallel between the method of the rationalists and that of
nineteenth-century French and Anglo-American jurists, although they did not
write with the logical rigor of the Germans. As noted earlier,121 in Germany, a
chasm had emerged between two approaches to law: that of the usus modernus,
which was based on texts unsupported by principles, and that of the rationalists,
which was based on principles unsupported by texts. The Pandektists tried to
combine close attention to texts with the logical rigor of rationalism. In France,
the humanist tradition was too strong. As Rémy observed, the French jurists wrote
“often more oratorically, always more rhetorically,” than a jurist would today.122
They were more relaxed about principles and texts both before and after the Code
was enacted. In England and America, the attempt to systematize law according
to principle was too new. The holdings of the decided cases continually got in the
way of attempts to explain them logically. Yet the French jurists and the common
lawyers, like the Germans, based their conclusions on concepts supposedly extracted
from their authoritative texts, in the same way as the rationalists based theirs
on concepts that were supposedly immutable. Contemporary French and AngloAmerican
jurists, like the Germans, look back on the nineteenth century as an age
of conceptualism.
At first sight, the parallel seems surprising. The starting points of the rationalists
were at the other extreme from those of the nineteenth-century jurists. The
rationalists believed that there is a higher law based on principles rooted in
human nature. Leibniz and Wolff, following Suárez, thought that these principles
are immutable. Correctly understood, they already prescribed the correct course of
conduct under all possible circumstances. These ideas were based on philosophical
principles that the rationalists understood and defended. As we saw, their idea of
immutable principles depended on a metaphysical innovation: their idea of what it
means for a thing to exist. Their idea that conclusions must follow with deductive
certainty was based on an innovation in method or epistemology: their idea of how
truth is known.
120 Franz Wieacker, Privatrechtsgeschichte der Neuzeit unter besonderer Berücksichtigung der deutschen
Entwicklung (Göttingen, 1967), 373–74; Mecke (n. 43), 594. Bohnert noted that, despite all of the
debate over the work of Savigny and his followers, one point of agreement has been its resemblance to
that of the rationalists: Bohnert (n. 38), 125.
121 See Chapter VII, p. 164. 122 Rémy (n. 25), 119.
Novus Ordo: Positivism and Conceptualism 213
The nineteenth-century positivists thought that there were no principles of
natural law—or at least none that jurists need to consider. The law is found in
texts with legal authority. They were not philosophers, and avoided the metaphysical
and epistemological questions. Yet we have seen the resemblance in their work.
A jurist’s conclusions were to follow from authoritative texts rather than immutable
principles, yet they must follow deductively or they would not have the same
authority as the texts. Therefore it must be possible to demonstrate the correct
application of higher principles under any circumstances that might arise. The
nineteenth-century jurists seem unaware of the metaphysical and epistemological
ideas that had led to a similar approach among the rationalists. They took a similar
path not because they adhered to such ideas, but because they seemed to see no
alternative.
Another innovation of the rationalists, as we have seen, was to disjoin legal
concepts from higher principles that could give them content. The rationalists did
so even though they thought that such concepts were to follow logically from the
higher principles. The gap arose because, once the rationalists had defined the
higher principles in terms of altruism, they were unable to get from those principles
to concepts of private right. So they defined these concepts negatively in terms of
their contrast to altruism.
In private law, for Leibniz and Wolff, the higher principle was that everyone
should act for the happiness and perfection of others.123 Private rights, such as tort,
property, and contract, were defined negatively in terms of their contrast to
altruism and in abstraction from any purpose that they served. Only a right holder
is protected, and protected only in any use that he chooses to make of a right.
In international law, according to Wolff, “[e]ach nation ought to love and care
for every other nation as itself.”124 Then Wolff uncoupled altruistic duty from strict
or perfect right: “If one nation does not wish to do for another that which it is
naturally obligated to do, that is wrongful but does not do the other an injury.” The
right of that nation is “imperfect.”125 Consequently, “no nation can coerce another
to do for it those things that nations are naturally obligated to do for each other.”126
Here, again, there was a parallel with the work of the nineteenth-century jurists.
As we will see, the concepts that the French, the German, and the Anglo-American
jurists used to interpret their law were not only much like each other, but also much
like those of the rationalists. They were much like each other even though the
French claimed that their law was based on legislation, the Germans, on the
gemeines Recht, as received through the Volksgeist, and the Anglo-Americans, on
their cases. Yet, like the rationalists, in private law, they defined property, tort, and
contract in terms of rights that the right holder could use as he chose and in
abstraction from the purposes served by recognizing these rights. In international
law, they said that each state had the right to do as it chose, provided that it did no
123 See Chapter VIII, pp. 183–84.
124 Christian Wolff, Ius gentium methodo scientifica pertractatum (Frankfurt, 1764), } 161.
125 Wolff (n. 124), } 159. 126 Wolff (n. 124), } 158.
214 The Jurists
wrong. “Wrong” was defined without regard to the purposes for which states are
established and the reasons why they should have the rights that they do.
One reason why the rationalists came under fire was that they did not show how
to get from concepts thus defined to concrete rules. The nineteenth-century jurists
put considerable effort into doing so. Yet they encountered a series of problems that
they took seriously, but were unable to resolve. Their failure to do so made them
targets for critics in the twentieth century. Indeed, it became the project of
twentieth-century jurists to expose this failure, and to find an alternative to
positivism and conceptualism.
In the remainder of this chapter, we will see how the nineteenth-century jurists
faced these problems. We will see that twentieth-century jurists were better at
pointing to their predecessors’ failures than finding alternative solutions. In the
next chapter, we will examine the efforts of the twentieth-century jurists to find an
alternative to positivism and conceptualism.
We will look first at some problems of international law, and then of private law.
International law
Positivism in itself created problems for the understanding of international law. If
the law did not rest on higher principles, but on the legal authority of the state,
what law could bind the state? How could the state bind itself, or be bound by
another state’s law?
Conceptualism added to the difficulty. The nineteenth-century jurists defined
the rights of the state negatively, in terms of the right of the state to do as it chose, in
abstraction from the purposes for which states were founded and on account of
which they should have rights. The rationalists could not get to a more positive
concept because there was a gap between their higher principle of altruism and one
that could give content to the rights of states. The nineteenth-century jurists could
not do so from any higher principle at all. There was no principle to obligate the
state to act otherwise than it chose, and no reason why it should choose to apply
another state’s law.
International public law
One might conclude that, on such premises, there could not be an international law
binding upon national states. Indeed, John Austin said that the “law of nations” is
“law improperly so called.” It consists only of “the opinions current among
nations”:127
Every positive law, or every law simply and strictly so called, is set by a sovereign person, or a
sovereign body of persons, to a member or members of the independent political society
wherein that person or body is sovereign or supreme.128
127 John Austin, The Province of Jurisprudence Determined (London, 1832), 146–47.
128 Austin (n. 127), 136–37.
Novus Ordo: Positivism and Conceptualism 215
Many scholars agreed with Austin, although some reached his conclusions by a
different route.129 Those who genuinely believed that international law did not
exist did not write treatises about it. Beginning in the early nineteenth century,
those who did write treatises generally dealt with the problem in one of three ways.
Some bypassed the question of the theoretical foundations of international
public law. The leading American jurist, Henry Wheaton, when considering
whether international law rests on “principles of natural justice,” answered:
It may, indeed, have a remote foundation of this sort; but the immediate visible basis on
which the public law of Europe, and of the American nations which have sprung from
European stock, has been erected, are the customs, usages, and conventions observed by that
portion of the human race in their mutual intercourse.130
The same approach has been taken by some treatise writers ever since.
Other jurists said that international law rests on the consent of the sovereign,
which is manifested in a treaty or custom. The sovereign does bind itself—or at
least agrees to do so. According to August Wilhelm Heffter, author of a leading
German treatise, “[t]he truth is . . . that States do not admit any laws to be
obligatory among them but those that result from reciprocal consent.”131 Today,
some treatise writers also take that approach.132
A third approach was to claim that international law must be based on transcendent
moral principles, yet without attempting to identify and apply these
principles. The principles are posited simply so that international law can exist.
This approach resembles that of certain nineteenth-century French jurists mentioned
earlier, who, after declaring that there is a natural law, treated the Civil Code
as comprehending all of the private law of France.133 Thus, Robert Phillimere said
in his leading English treatise on international law, there was “a moral sanction
conferred on [it] by the fundamental principle of Right,”134 by “natural law,”135
which was part of God’s law.136 Similarly, according to Paul Pradier-Fodéré, author
of a leading French treatise, one must grant “the necessary principle of a moral
order superior to the human will which binds individuals, and makes nonobservation
of a received custom or treaty a violation of law.” To deny that principle would
129 Austin’s route was to define law as a command “distinguished from other significations of
desire . . . by the power and purpose of the party commanding to inflict an evil or pain in case the desire
be disregarded”: Austin (n. 127), 6. One can believe that international law is not law without
subscribing to this definition. Moreover, only if one subscribes to this definition need one deny that
international law is law. The iusnaturalists and Vattel recognized, and often bemoaned, the fact that
international law could not be enforced.
130 Henry Wheaton, Elements of International Law, 3rd ed. (Philadelphia, PA, 1846), 40–41. At
one point he did say that one source of international law is “the rules of conduct which ought to be
observed between nations and deduced from reason”: Wheaton, Elements, 47.
131 August Wilhelm Heffter and F. Heinrich Geffcken, Das Europäisches Volkerrecht der Gegenwart
auf den bisherigen Grundlagen, 8th ed. (Berlin, 1888), } 3. Similarly, see George Grafton Wilson,
Handbook of International Law, 2nd ed. (St. Paul, MN, 1927), }} 2, 5.
132 For example, Karl Doehring, Völkerrecht Ein Lehrbuch (Heidelberg, 1999), } 2; Louis Henkin,
International Law: Politics and Values (Dordrecht, 1995), 27–28.
133 See pp. 197–99.
134 Robert Phillimore, vol. 1 of Commentaries upon International Law (London, 1859), } 62.
135 Phillimore (n. 134), } 22. 136 Phillimore (n. 134), }} 33, 42.
216 The Jurists
“transform law into a simple science of material observation.”137 As before, a
similar position is taken by some contemporary treatise writers.138
The jurists who took these positions wrote the same sort of books. After a short
introduction on the foundation of international law, they discussed the same
problems, looking for solutions to treaties, customs, and the opinions of other
jurists—mostly their contemporaries. Even those who said that there were higher
moral principles did not describe these principles systematically and use them to
solve these problems.
For that reason, James Lorimer, a Scottish jurist, attacked them and almost
everyone else who had written about international law since Vattel. According to
Lorimer, Wolff and Vattel, despite their distinction between imperfect and perfect
rights,139 had preserved the great work of Suárez, Grotius, Pufendorf, and Barbeyrac,140
which had been founded on that of “the scholastics”:
The value of what was indirectly effected by Thomas Aquinas, who, as in ethics and
theology, stands out in solitary majesty, and by Soto, whom we may regard as the immediate
founder of the dynasty of jurists which culminated in Grotius, when contrasted with the
labours of the civilians—from Bartolus and Baldus down even to Bijnkershoek—consisted
in this: that . . . the scholastic jurists remounted to nature, and sought to discover laws of
which the validity was universal.141
“The conception of a law that had no deeper roots than ‘sovereignty’” came later,
said Lorimer, citing Austin:142
From Vattel’s time . . . till our own . . . the effort has been made to determine the consuetude,
which is accepted as the common law, without reference to any absolute or necessary
standard, and positive law is criticized or amended only in accordance with prevailing
sentiments, or with such experience of its results as recent events are supposed to afford.143
Lorimer defined “the law of nations” as “the law of nature, realized in the relations
of separate political communities.”144 He tried to develop and apply the principles
of that law, while avoiding the “real fault of the elder jurists [which] was that they
were not careful enough in circumstances of the State life in which they sought to
realize the necessary law. . . .”145 To do so was his project. It was not that of his
contemporaries.
International private law
International private law, or conflict of laws, deals with the question of which law a
court should apply when the laws of different jurisdictions differ. The nineteenth-
137 Paul Pradier-Fodéré, vol. 1 of Droit international publique Européen et Américain (Paris, 1885), 21.
138 For example, Charles Rousseau, Droit international public, 11th ed. (Paris, 1987), no. 13.
139 James Lorimer, vol. 1 of The Institutes of the Law of Nations: A Treatise of the Jural Relations of
Separate Political Communities (Edinburgh, 1883), 77–78.
140 Lorimer (n. 139), 68–77. 141 Lorimer (n. 139), 68.
142 Lorimer (n. 139), 75–76, 76, n. 1. 143 Lorimer (n. 139), 81.
144 Lorimer (n. 139), 19. 145 Lorimer (n. 139), 80.
Novus Ordo: Positivism and Conceptualism 217
century pioneers were Joseph Story, who has been called “the father of American
and English conflicts of law,”146 and Friedrich Carl von Savigny, who has been
credited with a “Copernican revolution.”147 They both tried to resolve the problem
by reference to the same principle: the principle of territorial sovereignty.148 “It is
plain,” Story said, “that the laws of one country can have no intrinsic force, proprio
vigore, except within the territorial limits and jurisdiction of that country”:149
For it is an essential attribute of every sovereignty, that it has no admitted superior, and that
it gives the supreme law within its own dominions on all subjects appertaining to its
sovereignty. What it yields, it is its own choice to yield. . . .150
According to Savigny: “1. Every state can require that only its own law (Gesetz) is
valid within its boundaries. 2. No state can require that its own law be accepted as
valid beyond its boundaries.”151
Nevertheless, both thought that, in choosing which law to apply, a court should
consider such factors as where the suit was bought, where a person had lived or
acquired a certain status, where a tort or crime was committed or harm done, where
a contract was made or to be performed, and where property was located. As we
have seen, these were much like the factors that the medieval jurists had identified.
They had been repeated by later jurists. Story and Savigny knew of them through
the seventeenth-century works of the Dutch jurists Ulrich Huber and Paul Voet.152
Neither Huber nor Voet, nor the medieval jurists, had tried to solve the problem
by an appeal to the principle of territorial sovereignty. Some scholars believe that
Huber did so.153 He said that “the laws of each state have force within that state
and bind all those who are subject to it but not others.”154 Yet, although different
states might adopt differing particular laws, they might recognize the authority of
bodies of law that extend beyond their boundaries and are the same in other states.
“It often happens,” he said, “that a transaction that occurs in one place is of
146 See Albert A. Ehrenzweig, Private International Law: A Comparative Treatise on American
International Conflicts Law, Including the Law of Admiralty General Part (Leyden, 1967), 53.
147 See Friedrich K. Juenger, Choice of Law and Multistate Justice (Dordrecht, 1992), 37–38.
148 Joseph H. Beale, vol. 3 of A Treatise on the Conflict of Laws (New York, 1936), } 72.
149 Joseph Story, Commentaries on the Conflict of Law, Foreign and Domestic (Boston, MA,
1841), } 7.
150 Story (n. 149), } 8. 151 Savigny (n. 27), 8: } 348.
152 Harrison said of Huber’s short essay “that in the whole history of law there are probably no five
[quarto] pages that have been so often quoted, and possibly so much read”: Frederick Harrison, On
Jurisprudence and the Conflict of Laws (Oxford, 1919). According to Lorenzen, “they had a greater
influence upon the development of the Conflict of Laws in England and the United States than any
other work”: Ernest G. Lorenzen, “Huber’s De Conflictu Legum,” in Celebration Essays to Mark the
Twenty-fifth Year of Service of John H. Wigmore (Buffalo, NY, 1987), 199 at 199.
153 Donald Earl Childress III, “Comity as Conflict: Resituating International Comity as Conflict of
Laws,” University of California at Davis Law Review 44 (2010): 11, 20 (he “established conflict of laws
as a discipline concerned with sovereign interests”); Alfred Hill, “Governmental Interest and the
Conflict of Laws: A Reply to Professor Currie,” University of Chicago Law Review 27 (1960): 463,
482 (he “stat[ed] unmistakably that the basic objective of the law of conflict of laws is to advance the
governmental interests of the forum”).
154 Ulrich Huber, “De conflictu legum in diversis imperiis,” Appendix III in Friedrich Carl von
Savigny, A Treatise on the Conflict of Laws, trans. W. Guthrie (Edinburgh, 1880), } 2.
218 The Jurists
different use and effect in others,” because “after the dispersion of the Roman
imperial provinces, the Christian world was divided into entirely different peoples,
who are not subject to each other. . . . ” Absent such a difference, one could apply
the Roman ius civile. One could apply the ius gentium or law of nations. Indeed,
one of Huber’s first questions is which of these two bodies of transnational law
should determine what to do when different local rules have emerged. The
“fundamental rules,” he said, “seem to have been sought in Roman law, but . . . they
have more to do with the ius gentium than with civil ius civile.”155 Similarly, Voet
discussed what to do when “statutes” conflict. A “statute” belongs to the ius
particulare or ius municipale—to particular or local law—as distinguished from
the ius commune or common law:
The particular law is enacted by another legislator than the Emperor. I say particular law as
opposed to the common law (ius commune), not insofar as [common law] is natural or
international law, but insofar as it is the civil law of the Romans. . . .156
As we have seen, the medieval jurists thought that the Roman law was an ius
commune in force everywhere absent local statutes or custom. Indeed, although they
developed the rules that passed into “international private law,” they did so without
believing that there were any nations that possessed sovereignty. Principalities and
states might vary the ius commune with the express or tacit permission of the
emperor. But, as we have seen, in their eyes, the emperor was sovereign of the
world.
As a result, Story and Savigny were using rules about conflict of laws that were
devised to resolve quite a different problem. The rules had been fashioned to deal
with local differences from a common legal system, not to decide which legal
system to apply to a transaction. The problem of deciding what law to apply when a
statute of Modena differed from one of Parma was simple by comparison. One
would look to the law of Modena if it had a special rule about acquiring citizenship,
or driving carts within the city, or the witnesses needed for a contract of sale, or the
height to which a person could build—an example used by Iacobus, Cinus, and
Bartolus.157 Such variations aside, a court would apply the general law of persons,
torts, contracts, or property of the ius commune. Story and Savigny were using rules
like these to decide which general body of the law of persons, torts, contract, or
property to apply. The result has been that, since the time of Story and Savigny,
many applications of the rules of conflict of laws have seemed arbitrary. That is not
155 Huber (n. 154), } 1.
156 Paul Voet, De statutis eorum concursu (Leyden, 1700), } 1, c. 4, }} 1–2. Story quoted these words
to show that civilian writers used the word “statutes” to “mean, not . . . positive legislation [but] in
contradistinction to the imperial Roman law, which they are accustomed to style, by way of
eminence, the COMMON LAW, since it constitutes the general basis of the jurisprudence of all of
continental Europe, modified and restrained by local customs and usages, and positive legislation”:
Story (n. 149), } 12.
157 Iacobus de Arena Parmensis, Super iure civile (Lyon, 1541), to C. 8.53.1; Cinus de Pistoia,
Super codice cum additionibus (Frankfort-am-Main, 1493), to C. 8.53.1; Bartolus de Saxoferrato,
Commentaria Corpus iuris civilis (Venice, 1615), to C. 1.1 no. 26. See Chapter II, pp. 44–45.
Novus Ordo: Positivism and Conceptualism 219
surprising since rules devised to resolve one problem were now applied to a different
one.
Another problem that has troubled scholars is that it hard to see how to get from
Story and Savigny’s principle of territorial sovereignty to the list of factors that they
believed should determine which law to apply. In view of that principle, why
should one country apply the laws of another in preference to its own? As Story
acknowledged, “[e]very nation must be the final judge for itself” of when it should
do so.158 Savigny said that “the strict right of sovereignty might certainly go so far as
to require all judges of the land to decide the cases that come before them solely
according to the national law, regardless of the rules of some foreign law. . . . ”159
Here, again, we see the gap between a basic concept defined negatively and in
abstraction from purpose—the right of the state to do as it chooses—and any way
in which to establish the content of that right. According to Story and Savigny, the
concept of territorial sovereignty does not, of itself, lead to the rules that govern
conflict of laws. They must be based on some other consideration.
For Story, the consideration that explained why one state would apply another’s
law was “comity”:160
Whatever extra-territorial force [laws] are to have, is the result, not of any original power to
extend them abroad, but of that respect, which from motives of public policy other nations
are disposed to yield to them, giving them effect . . . with a wise and liberal regard to
common convenience and mutual benefits and necessity.161
For Savigny, the consideration was that “[t]he more multifarious and active the rule
between different nations, the more will men be persuaded that it is not expedient
to adhere to such a stringent rule. . . . ” Consequently, nations have adopted the
“opposite principle” of “equality in judging between natives and foreigners”:
[I]t is a consequence of this equality, in its full development, not only that in each particular
state the foreigner is not at a disadvantage to the native . . . but also that, in cases of conflict of
laws, legal relations are decided in the same way, whether the judgment is pronounced in
this state or that.162
Thus the rules of international private law did not follow from the concept of
sovereignty. They limited the implications of that concept on account of comity or
expediency.
If Story and Savigny were right, then comity and expediency had led states not
only to rules to govern conflict of laws, but also to the same rules—to rules the
application of which often seemed arbitrary to the nineteenth-century jurists
themselves, and which, we can see in retrospect, were designed for quite a different
problem.
But the very fact that these rules did not follow from the concept of territorial
sovereignty was troubling in an age of conceptualism. In the twentieth century, the
American jurist Joseph Beale tried to show how such rules could be derived from
158 Story (n. 149), } 33. 159 Savigny (n. 27), 8: } 348. 160 Story (n. 149), } 33.
161 Story (n. 149), } 7. 162 Savigny (n. 27), 8: } 348.
220 The Jurists
that concept, even though, in his day, a conceptualist approach to law was under
attack. Drawing on A. V. Dicey,163 Beale claimed that, because law is the creation
of a sovereign state, it can never operate outside the territory of the state that created
it. Therefore, when a state makes use of another state’s law, it is not applying
foreign law. Rather, it is enforcing a right that had vested in the plaintiff in a foreign
territory according to foreign law: “The primary purpose of law being the creation
of rights . . . the chief task of the Conflict of Laws [is] to determine the place where a
right arose and the law that created it. . . . ”164 In the case of a tort, for example,
that right arose in the state where the last event occurred necessary to give rise to
the right. When the plaintiff sues successfully in another state, he is merely enforcing
a right that already exists. Beale wrote this approach into the Restatement of Conflict
of Laws of 1934, for which he served as Reporter. It was adopted by Oliver Wendell
Holmes165—although he was one of the first critics of conceptualism.
Beale was attacked, notably, by Brainerd Currie, who started a revolt that has
also been called a “Copernican revolution” in the conflict of laws.166 Currie claimed
to oppose Beale’s conceptualist approach. Like Story and Savigny, he believed that
the decision of one state to apply the law of another must rest on expediency—or,
as he put it, on policy. Paradoxically, his analysis was based on the same principle as
that of Story, Savigny, and Beale: the principle of territorial sovereignty. The power
of Currie’s attack was that he turned this principle against them. A state had the
right to decide what law to apply within its own territory. Therefore it had the right
to make its own judgment concerning expediency. Beale, like Story and Savigny,
had assumed that their rules for resolving conflicts of laws subordinated every other
policy of the state to whatever unclear policy underlay these rules. Their approach:
. . . attributes to the choice-of-law rule a policy content of far greater importance than is
normally attributed to the municipal law of the forum. This is a strange inversion of values.
A choice-of-law rule is an empty and bloodless thing. Actually, instead of declaring an
overriding public policy, it proclaims the state’s indifference to the result of the litigation
[although] the law of the state points to the result which alone can advance the social and
economic policy embodied in that law.167
Before applying foreign law, Currie said, the state should consider the interest or
policy on which that law was based and whether it conflicted with an interest or
policy underlying its own law. The alternative would be to base international
private law not on considerations of expediency, but, as Beale did, on what Currie
called “metaphysical” conclusions about where a cause of action really arose.
163 A. V. Dicey, A Digest of the Law of England with Reference to the Conflict of Laws, 5th ed.
(London, 1932), 17–25.
164 Beale (n. 148), 1: } 8A.8; 3: } 73.
165 Cuba R. R. v. Crosby, 222 U.S. 473, 478 (1912) (“when an action is brought upon a cause
arising outside of the jurisdiction . . . the duty of a court administering justice is not to administer its
notion of justice but to enforce an obligation that has been created by a different law . . . ”). See Brainerd
Currie, “On the Displacement of the Law of the Forum,” in Selected Essays on the Conflict of Laws by
Brainerd Currie (Durham, NC, 1963), 3 at 4–5; Ehrenzweig (n. 146), 55.
166 See Juenger (n. 147), 146. 167 Currie (n. 165), 52 (emphasis original).
Novus Ordo: Positivism and Conceptualism 221
The problem was, as Currie’s critics pointed out, that it is hard to see what could
be meant by the “interest” or “policy” of a state.168 The state can enact whatever
laws it deems to be expedient. It would seem, then, that there is a state “interest” or
“policy” behind every law it enacts. But then, as David Cavers pointed out, the
word “interest” merely expresses “the conclusion that the purposes of a statute or
common law rule would be advanced by its application. . . . Since the rule emanates
from the state, . . . the rule’s purposes may reasonably be ascribed to the state.”169 If,
however, the word “interest” is understood narrowly as that of the government, as
distinct from that of a private party, the state often does not have an interest of its
own in a law that it makes. As Albert Ehrenzweig noted, “‘governments’ are . . .
‘interested’ in the solution of conflicts problems in such exceptional cases as tax or
currency matters.”170 Once again, it had proven impossible to bridge the gap
between the concept that, by definition, the state can do as it chooses, and any
way of giving content to this concept by explaining or limiting what the state
should choose to do.
As Mathias Reimann has pointed out, for various reasons Currie’s approach has
had little impact in Europe. One reason is a belief that the state cannot act as it
chooses. There are limits to the extent to which it can prefer its own interests over
those of others. In the absence of any way in which to analyze these limits,
European scholars have preferred the traditional rules because they, at least, seem
to be neutral.171
Private law
According to the nineteenth-century jurists, the law was to be found by the
exegesis of authoritative texts, not by examining higher principles on which these
texts were based. As we have seen, for the French, the texts were those contained
in legislation such as the Civil Code; for the Germans, they were found in
Corpus iuris; in Anglo-American jurisdictions, in the decisions of common law
courts. Despite the disparity in these sources, the French, the Germans, and
Anglo-Americans arrived as the same basic concepts, supposedly based on their
texts. Property was an unlimited right of the owner to use a thing as he chose.
Any restraints on its exercise were limitations imposed by the law on a right that
was, in principle or by definition, unlimited. A person was liable in tort if, by
fault, he harmed another person. Contract was defined in terms of the will or
consent of the parties. The parties’ contractual obligations were those that they
had willed to assume.
168 Friedrich K. Juenger, “Conflict of Laws: A Critique of Interest Analysis,” in Selected Essays on the
Conflict of Laws (Ardsley, NY, 2001), 131 at 163–65.
169 David F. Cavers, The Choice of Law Process (Ann Arbor, MI, 1965), 100.
170 Ehrenzweig (n. 146), 63.
171 Mathias Reimann, Conflict of Laws in Western Europe: A Guide through the Jungle (Irving, NY,
1995), 105, 109.
222 The Jurists
Having defined property, tort, and contract in the same way as the rationalists,
the nineteenth-century jurists faced similar problems. There was a disjunction
between the definitions of property, tort, and contract and any way in which
to determine the limits or the content to the concepts so defined. One could
not explain these rules in terms of the purposes of property, tort, and contract
because these concepts had been defined without reference to any purpose that they
served.
If property is defined as the exclusive and unlimited right of the owner to use
what he owns as he chooses, it is hard to move from that definition to rules that
protect a nonowner’s use of a thing that belongs to another or limit the owner’s use
of it. If tort is defined by saying that a person owes a duty to compensate those
whose rights he violates through his own fault, then there is a gap between this
definition, and rules, and an account of why fault triggers a duty to compensate and
what constitutes the violation of a right. If a contract is the will or consent of the
parties, then there is no clear way in which to get from this definition to rules that
sometimes bind the parties to obligations that they did not will or which bind them
despite their wants, hopes, and expectations.
As we have seen, these problems arose for the rationalists. They dealt with them
briefly. The nineteenth-century jurists, however, considered them closely. They
wished to show that their concept explained the rules found in their authoritative
texts.
The obstacles that they encountered drew the fire of twentieth-century jurists.
One can better understand the efforts of the nineteenth-century jurists by considering
the twentieth-century jurists’ criticism. The twentieth-century critics, as
we will see, did a good job of pointing out the nineteenth-century jurists’ failures to
resolve them, but never arrived at generally accepted solutions to these same
problems. In the rest of this chapter, we will finish considering the project of
the nineteenth-century jurists and also begin to consider that the twentieth century.
The twentieth-century jurists sought an alternative to nineteenth-century conceptualism.
In this chapter, we will discuss their difficulties finding generally accepted
ways in which to resolve the problems that the nineteenth-century jurists faced. In
the next, we will consider why they could not do so.
A word of caution, however: to say that jurists have not arrived at a generally
accepted solution to these problems is not to disparage their work or to deny that
some of their ideas, if followed up by others, might have led to generally accepted
solutions. I particularly admire the work of Peter Birks, Melvin Eisenberg, Jacques
Ghestin, and Hein Kötz. Nevertheless, jurists in the twentieth and early twentyfirst
centuries are still facing the same problems.
Property
The nineteenth-century conceptualists defined property in terms of the will of the
owner. It is, in principle, the absolute and exclusive right of an owner to do as he
chooses with what he owns.
Novus Ordo: Positivism and Conceptualism 223
In France, Aubry and Rau said that:
[P]roperty . . . expresses the Idea [sic] of the most complete legal power of a person over an
object and can be defined as the right by virtue of which a thing is submitted in an absolute
and exclusive manner to the will and the conduct of a person.172
Laurent explained that a proprietor could use his thing however he wished until
prohibited by law or until he injured the rights of others.173 According to Demolombe,
as “an absolute right property confers upon the master a sovereign power, a
complete despotism over the thing.”174
They claimed to have taken this concept of property from article 544 of the Civil
Code.175 It states: “Property is the right to enjoy and to dispose of things in the
most absolute manner provided that one does not make a use of them that is
prohibited by laws (lois) or regulations (règlements).”
This provision paraphrased a passage in Pothier: property is “the right to dispose
of a thing at [the owner’s] pleasure, provided he does not violate the laws or the
right of another: ius de re libere disponendi or ius utendi et abutendi.”176 The
meaning seems to be that an owner can use his right of property as he chooses,
but that does not imply that the right is unlimited. Pothier was describing the rights
of the holder of a French feudal estate, which were limited and not only by natural
law: he was entitled to use and alienate the land freely, but he was liable for feudal
rents and duties. Pothier did not have a principle of unlimited property rights in
mind. There is no reason to think that Portalis did.177
The drafters of the Code do not tell us much about their theories of property.
One has the sense that they wished to leave theoretical issues aside as much as
possible.178 So far as one can tell, however, they subscribed to the ideas of the
iusnaturalists, and of Domat and Pothier. Portalis and Cambacérès explained the
origins of property in the same way as did Grotius. The common ownership of all
things gave way to a system in which property was acquired by taking possession
172 Aubry and Rau (n. 9), 2: } 190. 173 Laurent (n. 6), 6: } 101.
174 Demolombe (n. 5), 9: } 543.
175 A belief that is held by some legal historians: André-Jean Arnaud, Les Origines doctrinales du
Code civil français (Paris, 1969), 180; Jean-Louis Halpérin, L’Impossible Code civil (Paris, 1992), 278;
Adolphe Lydie, Portalis et son temps “Le Bon génie de Napoléon” (Paris, 1936), 275.
176 Robert Pothier, “Traité du droit de domaine de propriété,” } 4, in vol. 9 of Oeuvres de Pothier,
ed. Bugnet (Paris, 1861). For similar passages, see Pothier, “Traité du droit de domaine de propriété,”
} 14; Pothier, “Introduction générale aux coutumes,” } 100, in vol. 1 of Oeuvres de Pothier, ed. Bugnet
(Paris, 1861).
177 See Alfons Bürge, Das französische Privatrecht im 19. Jahrhundert zwischen Tradition und
Pandektenwissenschaft, Liberalismus und Etatismus (Frankfurt-am-Main, 1991), 2–8. Villey and Arnaud
found no evidence that earlier jurists who used language like that in article 544 had in mind a
modern, individualistic conception of the proprietor’s rights: M. Michel Villey, La Formation de la
pensée juridique moderne (Paris, 1968), 239; Arnaud (n. 175), 180–83.
178 Cambacérès explained, when presenting his first and third drafts, that it was not his task to
decide theoretical controversies about the origin of property: Rapport fait à la convention nationale par
Cambacérès sur le 1er projet de Code civil, séance du 9 août 1793, in vol. 1 of Recueil complet des
travaux préparatoires du Code civil, ed. P. A. Fenet (Paris, 1827; reprinted 1968), 7; Discours
préliminaire prononcé par Cambacérès, au Conseil des cinq cents, lors de la présentation du 3e. Projet
de Code civil, messidor, an IV, in Fenet, Recueil, 1: 161.
224 The Jurists
of it.179 The Tribunal of Lyon attacked the provision that became article 544 for
failing to say that property rights were unlimited. According to the Tribunal,
property rights should be based on the principles of “laisser faire” and “laisser
passer.” It is difficult to find all of these rights clearly enough expressed in the words
“to enjoy and dispose of one’s thing. . . . ”180 The court would have been more
alarmed had it heard the Tribune Gillet defending the article before the Corps
Législatif: “There is no property so absolute that it is not subordinated in some way
to the interests of the property of another.”181
The principle that property rights are unlimited is missing not only in the
drafting history of the Code, but also in the early commentaries. Toullier and
Duranton gave a traditional natural law account of property. It was once held in
common, but private rights were established, according to Toullier, because
otherwise no one would labor182 and, according to Duranton, because of long,
continued possession, which created a “moral relationship” between possessor and
thing possessed.183 Both cited jurists in the natural law tradition.
In Germany, jurists defined property rights in the same way as did their French
contemporaries. According to Windscheid, property is the power to dispose of what
belongs to a person according to his “will”;184 according to Puchta, it is “the
exclusive authority to use and dispose of a thing,”185 “the full legal subordination
of a thing,”186 and its “total legal subjection”;187 according to Friedrich Keller, the
perfect and complete right over a thing.188 Dernburg explained that “[t]he right to
property grants, according to its definition, every power over a thing which is
possible according to nature and law.”189 Arndts explained that “[p]roperty,
according to its basic concept, is the right of a subject to complete domination
over a physical thing.”190
This concept of property was said to rest on the Roman texts. We have seen
enough of the Roman texts concerning ownership to realize how differently the
Roman jurists described property. The introductions to the Digest and the Institutes
described a variety of less-than-absolute rights that a person could have in various
sorts of things.191
179 Portalis, Présentation au Corps législatif 28 ventose, an XII, in Fenet (n. 178), 11: 112–14;
Cambarcérès, Discours préliminaire, in Fenet (n. 178), 1: 164. For similar remarks by Tribune Grenier,
see Discussion devant le Corps législatif. Discours prononcé par le tribun Grenier, 6 pluviose, an XII
(January 27, 1804), in Fenet (n. 178), 11: 157.
180 Observations présentées par les commissaires nommés par le tribunal d’appel de Lyon, in Fenet
(n. 178), 4: 95–96. See Bürge (n. 177), 7–8.
181 Discussion devant le Corps législatif, discours prononcé par le tribun Gillet, 10 pluviose an XII
(January 31, 1804), in Fenet (n. 178), 11: 331.
182 Toullier (n. 2), 3: 41–46. 183 Duranton (n. 3), 4: 202–03.
184 Windscheid (n. 32), 3: } 167. 185 Puchta (n. 42), } 123.
186 Puchta (n. 42), } 122.
187 Georg Friedrich Puchta and A. Rudorff, vol. 2 of Cursus der Institutionen, 3rd ed. (Leipzig,
1851), } 231.
188 Friedrich Ludwig Keller, Pandekten (Leipzig, 1861), } 112.
189 Dernburg (n. 48), 1: } 192.
190 Ludwig Arndts, Lehrbuch der Pandekten, 9th ed. (Stuttgart, 1877), } 130.
191 See Chapter I, pp. 18–19.
Novus Ordo: Positivism and Conceptualism 225
In fact, as mentioned earlier,192 the nineteenth-century German jurists defined
property in the same way as the eighteenth-century rationalists. The rationalists did
not base this definition on Roman texts. Rather, they defined property and other
private rights by contrasting them with the ultimate moral principle of altruism. It
would be surprising if a definition of property arrived at in this way also happened
to be embodied in the Roman texts.
Nineteenth-century Anglo-American jurists defined property rights in much
the same way. According to Sir Frederick Pollock, a complete property right was
the “exclusive and effective control of a thing in the highest degree possible, for
this includes the power to deal with the thing, within the bound of what nature
allows, at one’s will and pleasure.”193 Christopher Columbus Langdell defined a
property right formally, “as one which does not imply a correlative duty in
another.”194
In England and the United States, some legal historians have seen the failure of
the nineteenth-century jurists to impose a principled limit on the rights of an owner
as a result of the economic forces unleashed in the nineteenth century by capitalism
and industrialization. One difficulty with this explanation was suggested in the
Prologue. These historians explain the nineteenth-century jurists’ ideas about
property by means of events that happened to occur at the same time—the rise
of capitalism and industrialization—without evidence that the two were linked in
the minds of people then alive. Rarely, if ever, do these historians cite a jurist who
defended his ideas about property by claiming that they would foster a free
enterprise economy or the growth of industry. It is hard to see why the jurists
would be so reticent about the real reasons why they were writing.
Another difficulty is that the attention of these historians has often been
confined to Anglo-American law. As we have seen,195 in the nineteenth century,
the common lawyers began thinking in terms of bodies of law, such as property,
tort, and contract, and organizing them systematically into doctrines with the help
of many ideas borrowed from Continental authors. Thus, if one looks only at the
law of England and America, it is easy to think that everything new in the common
law was brand new, rather than borrowed, and then to identify it with the new
economic conditions of the nineteenth century.
For example, Patrick Atiyah thought that property law changed in the nineteenth
century as people began to think of themselves as owners with a right to
dispose of their property as they chose.196 But people had long had such a right:
how, one wonders, did they think of their right to dispose of their property before
the nineteenth century? According to Morton Horwitz, pre-nineteenth-century
common lawyers had a “physicalist” conception of property “derived from land,”
192 See Chapter VIII, pp. 188–89.
193 Sir Frederich Pollock, A First Book of Jurisprudence for Students of the Common Law, 6th ed.
(London, 1929), 172–73.
194 Christopher Columbus Langdell, Harvard Law Review 13 (1900): 527, 537–38.
195 See pp. 204–12.
196 Patrick S. Atiyah, The Rise and Fall of Freedom of Contract (Oxford, 1979), 84–85.
226 The Jurists
which disappeared with the “abstraction of the legal idea of property.”197 But the
abstraction of that legal idea dates at least to the late scholastics.198
Horwitz himself quoted the pre-nineteenth-century definition of Blackstone:
property is the “sole and despotic dominion . . . in total exclusion of the right of any
other individual.”199 He thought that Blackstone meant that an owner could use
his property as he chose however much his use might interfere with that of
others.200 This conception of property was tolerated before the modern era because
“the low level of economic activity made conflict over land use extremely rare.”201
As we have seen, however, Pothier’s definition in the eighteenth century was like
Blackstone’s. Neither Pothier nor Blackstone meant that there were no limits to an
owner’s right to interfere with others. Like Pothier, Blackstone drew on the
iusnaturalists. He said that he was describing property not as generally conceived,
but as it was in natural law. He gave a standard natural law account of how all
things had once been in common and how private property rights had been
instituted because of the disadvantages of this state, citing Grotius, Pufendorf,
and Barbeyrac.202
People have noticed that uses of land may conflict ever since they began living
near each other. The early common law cases forced pigsties203 and breweries204
out of villages. When the medieval civilians discussed conflicting uses of land, they
were interpreting a Roman text that prohibited a cheese shop from discharging
smoke that bothered people living upstairs.205 Blackstone himself said that if one
person’s use interferes with another, “it is incumbent on him to find some other
place to do that act, where it will be less offensive.”206
Once the nineteenth-century jurists, like the rationalists, defined property as the
right of the owner to do as he wished with what he owned, there was a gap between
this definition and any rules that would protect nonowners or limit an owner’s
rights.
In some cases, the nineteenth-century jurists bypassed the problem. An example
is the doctrine that one can use another’s property in time of necessity. The doctrine
was overlooked in France, although a few recent treatise writers have tried to read it
into the Code.207 It was ignored in Germany, and added to the German Civil
197 For example, Morton Horwitz, The Transformation of American Law 1870–1960: The Crisis of
Legal Orthodoxy (Oxford, 1992), 145.
198 See Chapter III, p. 85. 199 Blackstone (n. 70), 2: *2. 200 Horwitz (n. 197), 31.
201 Horwitz (n. 197), 31. 202 Blackstone (n. 70), 2: *2–5.
203 Aldred’s case, 77 Eng. Rep. 816, 9 Co. Rep. 57b (K.B. 1611).
204 Jones v. Powell, Palm. 536 (K.B. 1628); Rex v. Jordan, cited in Rex v. Pierce, 89 E.R. 967,
2 Show. K.B. 327 (1683).
205 D. 8.5.8.5. 206 Blackstone (n. 70), 3: *217–18.
207 François Terré, Philippe Simler, and Yves Lequette, Droit civil: Les Obligations, 7th ed.
(Paris, 1999), no. 704; Boris Starck, Henri Roland, and Laurent Boyer, “Obligations,” vol. 1 in
Responsabilité délictuelle, 4th ed. (Paris, 1991), nos. 300–01. The cases they cite do not show an
acceptance of the doctrine by the courts. They concern what the Germans call Notstand, in which
one person is threatened by another’s property: Cour de cassation, 2e ch. civ., November 26, 1986,
D.S. 1987 (defendant protected a spaniel by shooting two dogs that were attacking it). Or they are
cases of negligence in which a person chose to risk the lesser of two harms: Cour de cassation,
2e ch. civ., April 8, 1970, JCP 1970. J.136 (defendant broke a glass pane to rescue the plaintiff, a
Novus Ordo: Positivism and Conceptualism 227
Code208 only in one of the last drafts justified by an appeal to justice unsupported by
theory.209 In the United States, it was recognized without benefit of theory in
judicial decisions at the turn of the century.210 It is recognized in England, although
the authority is scanty.211
At other times, the nineteenth-century jurists saw the problem clearly and tried
energetically to resolve it. Despite the definition of property rights, sometimes the
owner was not the only one protected: the possessor was protected as well. Despite
the definition of property rights, sometimes the owner could not use his property as
he wished: he could not do so because his use interfered with a neighbor.
The protection of a nonowner The problem of why a possessor who is not the
owner should be protected was debated by two of the greatest nineteenth-century
German jurists, Friedrich Carl von Savigny and Rudolph Jhering. Protection of
the possessor without title seemed to contradict the proposition that the owner
had the exclusive right to the use of property. The question, as Savigny put it,
is “how possession, without any regard to its own lawfulness, can be a basis for
rights.”212
Savigny said that, by dispossession:
An independent right of the person . . . is not violated but the situation of the person is
altered to his disadvantage; the unlawfulness, which consists in the use of force against this
person, can only be eliminated with all of its consequences by the restoration and protection
of the factual situation to which the force extended.213
That answer is not perfectly clear. It suggests two rather different explanations for
the protection of possession, each of which had its champions among the nineteenth-century
German jurists. According to the first, the law protects the peace
and order of society against unlawfulness and force. According to the second, the
law protects the victim himself. The victim has a legally protectable claim against
unlawful interference even though he does not have a legally protectable claim to
possession.
The first explanation was accepted by Savigny’s contemporary Rudorff.214
Supposedly, relief is given merely because public order has been disrupted and
child, who was locked in the bathroom, and a fragment struck the child’s eye); Trib. Charolles,
March 13, 1970, JCP 1970. J.16354 (truck driver swerved to avoid hitting a third party and struck
plaintiff ’s car).
208 German Civil Code (Bürgerlichesgesetzbuch) } 904.
209 Protokolle der Kommission für die zweite Lesung des Bürgerlichen Gesetzbuches VI, } 419, 214
(Berlin, 1899).
210 Vincent v. Lake Erie Transportation Co., 124 N.W. 221 (Minn. 1910); Ploof v. Putnam, 71 A. 188
(Vt. 1908).
211 John Murphy, Street on Torts, 12th ed. (Oxford, 2007), 305–06; W. V. H. Rogers, Winfield and
Jolowicz on Tort, 17th ed. (London, 2002), } 25.29; K. M. Stanton, The Modern Law of Tort (London,
1994), 69.
212 Friedrich Carl von Savigny, Das Recht des Besitzes, 6th ed. (Berlin, 1837), 9.
213 Savigny (n. 212), 41.
214 Rudorff, “Über den Rechtsgrund der possessorischen Interdicte,” Zeitschrift für geschichtliche
Rechtswissenschaft 7 (1831): 90, 110–14.
228 The Jurists
not because the plaintiff has a protectable interest. German critics objected
that if the plaintiff has no protectable interest, then the unlawfulness or disruption
of public order cannot merely consist in the fact that the plaintiff was deprived
of possession. It must also be found in the unlawful or disruptive way in which
the defendant deprived him of it. But, as Jhering noted, relief is given when
there has been dispossession without violence or a breach of the peace,215 for
example when the defendant took the plaintiff’s hat by mistake in place of his
own.216
In the nineteenth century, most German jurists turned to the second explanation
instead: the possessor should be protected against interference even though possession
in itself is not worthy of protection. According to Gans, Puchta, Windscheid,
Bruns, and Randa, the reason was that the possessor’s will was actualized or
expressed in his exercise of dominion over an object. The will was worthy of
protection without regard to whether this exertion of dominion was rightful or
wrongful.217 To interfere with another’s exercise of will was to interfere with his
freedom or personality,218 or to violate the principle that each person is the equal of
every other.219
The advantage of this approach, as Puchta observed, is that the victim is
protected simply because the act of dispossession itself interferes with his will,
not because the act that interferes is unlawful in any other respect.220 The difficulty
is that the law does not protect people against any interference with their will.
Rather, it protects them against dispossession. German critics made this point in
various ways. Jhering argued that the law does not protect the will regardless of
what is willed, but rather defines the circumstances in which the will is protected.221
Heck noted that while one can always expand a word such as “personality”
to cover any instance in which one gives relief, doing so does not explain why
relief is given.222
Indeed, if the possessor is not the owner and is acting without right, the law is
protecting the will to do something wrongful. Jhering objected that even if, in the
abstract, the will should be protected, it is hard to see why the will to do wrong
should be.223 Moreover, the law is not simply protecting the will of the possessor,
215 Rudolph von Jhering, Über den Grund des Besitzschutzes Eine Revision der Lehre vom Besitz,
2nd ed. (Jena, 1869), 8.
216 Philippe Heck, Grundriß des Sachenrechts (Tübingen, 1930), }} 3, 6.
217 Eduard Gans, System des römischen Civilrechts (Berlin, 1827), 211–12; Georg Friedrich Puchta,
vol. 2 of Cursus der Institutionen, 3rd ed. (Leiptzig, 1851), } 224; Georg Friedrich Puchta, vol. 1 of
Vorlesungen über das heutige römischen Recht, ed. Rudorff, 2nd ed. (Leipzig, 1849), } 122;
Georg Friedrich Puchta, “Zu welcher Classe von Rechten gehört der Besitz?,” in Kleine Zivilistische
Schriften, ed. F. Rudorff (Leipzig, 1851), 239 at 255–56; Windscheid (n. 32), 1: } 148; Carl Georg
Bruns, Das Recht des Besitzes im Mittelalter und in der Gegenwart (Tübingen, 1848), } 58;
Anton Randa, Der Besitz mit Einschluß der Bestzklagen nach österreichem Recht, 3rd ed. (Breitkopf,
1879), } 8.
218 Puchta, Vorlesungen (n. 217), } 122, 243; Randa (n. 217), } 8.
219 Windscheid (n. 32), 1: } 148, n. 6. 220 Puchta, Vorlesungen (n. 217), } 122.
221 Jhering (n. 215), 31–34. 222 Heck (n. 216), Excurs I, 488.
223 Jhering (n. 215), 31–34.
Novus Ordo: Positivism and Conceptualism 229
but settling a conflict among different people’s wills. By taking an object, a
dispossessor allows his will to override that of the earlier possessor. By keeping it,
the earlier possessor allows his own to override the will of all those who come later.
As Dernburg noted, respect for the will does not explain why the earlier possessor
should win.224 Nor does it explain why physical possession matters. If the law were
merely protecting a person’s will to appropriate an object, Jhering objected, it
would protect that will however it were expressed, whether or not physical possession
was taken.225
Jhering recognized that, to explain protection, one needed to identify some
substantive right in need of protection. Like his contemporaries, however, he
thought that the substantive right could not be possession itself. Instead, it was
ownership. By protecting possession, the law gave a more effective protection to
ownership.226 The owner would not have to prove his title when dispossessed.227
The protection given to possessors who were not owners was an “unavoidable
consequence”—a “price” paid for protecting owners.228
Critics pointed out that Jhering’s theory does not explain why a possessor is
protected when he clearly is not the owner229—indeed, why he is sometimes
protected even against the owner.230 Moreover, it rests on the assumption that
the person dispossessed is most often the owner—an assumption that Jhering
himself had questioned.231
Dernburg recognized that the difficulty with all of these theories is a feature that
they have in common: they give no reason to protect possession as such. According
to Dernburg, possession should be protected because it is “the factual order of
society (tatsächliche Gesellschaftsordnung), the given division of physical goods. It
grants the individual directly the instruments of his activity, the means for the
satisfaction of his needs.”232 If so, one might wonder, why is possession not a right
belonging to the possessor? Dernburg denied that it is.233 He explained that the
owner, and not the possessor, has the right to possess. But if that is so, why should
possession be protected?
Two common law jurists, Oliver Wendell Holmes and Sir Frederick Pollock,
approached the problem by claiming that possession was a right, although it was
not the same as ownership. Like the owner, the possessor has the right to deal
with a thing as he chooses. The owner’s rights, however, are good against all of
the world, while the possessor’s rights are good against everyone except the
owner.234 In Pollock’s words, the possessor “may have all or most of the
advantages of ownership against every one but the true owner, in other words,
it may confer a relatively good title”:235 “[w]e treat the actual possessor not only
224 Dernburg (n. 48), } 170. 225 Jhering (n. 215), 37–38.
226 Jhering (n. 215), 45–46. 227 Jhering (n. 215), 47–54.
228 Jhering (n. 215), 55.
229 Randa (n. 217), } 8; Dernburg (n. 48), } 170; Heck (n. 216), Excurs I, 488.
230 Randa (n. 217), } 8; Heck (n. 216), Excurs I. 231 Jhering (n. 215), 25–27.
232 Dernburg (n. 48), } 170. 233 Dernburg (n. 48), } 169.
234 Holmes (n. 114), 210–11. 235 Pollock (n. 193), 178.
230 The Jurists
as legal possessor but as owner, as against every one who cannot show a better
right . . . .”236
Pollock’s idea avoided all of the troubles that German scholars had encountered
once they denied that the possessor had a right to possess. To accept it, however,
one can no longer define property as the conceptualists did: as the exclusive and
unlimited right of the owner to do as he chooses with his own. Pollock did not
suggest an alternative theory of property to replace the will theory.
The twentieth-century project was to find an alternative to the conceptualism of
the past. Yet today, when French and German jurists explain why the possessor is
protected, they merely recapitulate the theories of Savigny and Jhering.237 It is as
though the discussion was frozen a century ago, and on the conceptualist premise
that only an owner can have the right to the use of a thing.
English jurists typically accept the theory of Pollock. Curiously, they have
forgotten that it was developed by him in response to a German debate provoked
by a will theory of property. They regard it as ancient and indigenous to the
common law. In medieval English law, it is said:
[T]he estate in land is based on the right of seisin or possession, of the land. . . . This reliance
on possession as the basis of land ownership resulted in the common law taking the view that
the acquisition of possession was itself the acquisition of a title to the land. Possession was
the root of title.238
That view of English jurists is surprising since, as we have seen,239 for much of the
nineteenth century, English courts had said that possession was protected only
because it was evidence of title. Moreover, Pollock himself did not claim that he
had merely explained English law. He had developed a theory of why both English
and Roman law protected possession:
It may be worth remarking that in general terms the relations of possession and ownership in
Roman and English law, the difficulties arising out of them, and the devices resorted to for
obviating or circumventing those difficulties, offer an amount of resemblance even in detail
which is much more striking than the superficial and technical differences. We cannot doubt
that these resemblances depend on the nature of the problems to be solved and not on any
accidental connection. One system of law may have imitated another in particular doctrines
and institutions, but imitation cannot find place in processes extending over two or three
236 Pollock (n. 193), 172.
237 Jean-Louis Bergel, Marc Bruschi, and Sylvie Cimamonti, Traité de droit civil: Les biens, 4th ed.
(Paris, 2000), nos. 124–25, 127; Henri Mazeaud, Léon Mazeaud, Jean Mazeaud, and François
Chabas, Leçons de droit civil, II. Les Biens: Droit de la propriété et ses démembrements, 8th ed. (Paris,
1994), nos. 1413–14. Others give no explanation: see, e.g., Guy Raymond, Droit civil, 3rd ed. (Paris,
1996), no. 513.
238 E. H. Burn and J. Cartwright, Cheshire and Burn’s Modern Law of Real Property, 18th ed.
(Oxford, 2011), 13 (emphasis original). Similarly, Kevin Gray and Susan Francis Grey, Elements of
Land Law, 4th ed. (Oxford, 2005), } 3.23; Kevin Gray and Susan Francis Grey, “The Idea of Property
in Land,” in Land Law: Themes and Perspectives, eds. Susan Bright and John Dewar (Oxford, 1998), 15
at 18–19.
239 See Chapter I, p. 24.
Novus Ordo: Positivism and Conceptualism 231
centuries, and whose fundamental analogies are externally disguised in almost every
possible way.240
Contemporary English jurists have not recognized that Pollock was trying to resolve
a problem that German conceptualists had created by their definition of property
right. He was trying to do so by redefining that right. Conceptualism was redescribed
as traditional common law.
The rights of an owner The problem of when an owner can use his land in a way
that interferes with another was raised by the Romans and discussed by the
medieval civilians.241 It was bypassed by the late scholastics and iusnaturalists. It
did not seem to be the sort of problem that could be resolved by their higher
principles. But neither were they bothered by it.
The nineteenth-century conceptualists realized that restricting how an owner
could use his land seemed to contradict their definition of property as the exclusive
right of an owner to do as he chooses with what he owns.
French jurists acknowledged the contradiction. Limits to the owner’s right
had to be tolerated for pragmatic reasons. Life would become impossible if the
law were to allow owners to exercise the rights that belonged to them in
principle. According to Aubry and Rau, the “respective rights of [the] proprietors”
of adjacent land were in a “conflict [that] cannot be resolved except by
means of certain limits imposed on the natural exercise of the powers inherent
in property.”242 Demolombe observed that if all proprietors could “invoke
their absolute right, it is clear that none would have one in reality.” What
would be the result? “It would be war! It would be anarchy!” Similarly, Laurent
thought that:
According to the rigor of the law, each proprietor would be able to object if one of his
neighbors released on his property smoke or exhalations of any kind, because he has a right
to the purity of air for his person and his goods.243
If that were so, he admitted, the existence of towns would be impossible.244 Thus
they arrived at the curious position that, in principle, the law conferred rights on
proprietors that they should not have and which the law prohibited them from
exercising.
The nineteenth-century German jurists, like Liebnitz,245 thought that the law
might confer a right that was unlimited, by definition or in principle, and then limit
the use of it. They described the Roman text that prohibited the owner of a cheese
240 Pollock (n. 193), 179. 241 See Chapter II, pp. 37–39.
242 Aubry and Rau (n. 9), 2: } 194. 243 Laurent (n. 6), 6: } 144.
244 Laurent (n. 6), 6: } 144. In a later volume of his work, Laurent finally decided that “[t]he Code
was wrong to say that the owner has the right to enjoy and to dispose of his thing in the most absolute
manner. . . . ”: Laurent (n. 6), 20: } 417. Nevertheless, he did not suggest any other way in which
property could be defined.
245 See Chapter VIII, pp. 189–90.
232 The Jurists
shop from sending smoke onto upstairs premises246 as a limitation of ownership by
positive law (gesetzliche Beschränkung des Eigenthums).247 According to Windscheid,
the limitation was a good one because “reckless realization of the consequences of
the concept of ownership is not possible without serious disadvantages.” But the
right to use one’s property as one wishes is still a “consequence of ownership.”248
Positive law limited the owner’s rights, as though the law no sooner conferred
property rights on the owner than it had to take some of them back.
Jhering, who, as we will see, was one of the first to revolt against conceptualism,
broke with the definition of the right of property as an unlimited right. Property
rights would be worthless if a property owner either could disturb his neighbor at
will or could not disturb him at all. An owner who could disturb his neighbors at
will could make their land valueless by some pestilential use of his own. An owner
who could not disturb them at all could not cook or use heat if his neighbors
objected to the odors or smoke. Jhering concluded that an owner’s rights must
depend on the degree of interference and the normal use of land.249 As we have
seen, such a limitation had been proposed by Bartolus.250 It was accepted even by
nineteenth-century conceptualists such as Windscheid, who maintained that, in
principle or by definition, an owner could use his property as he wished and the
restraints imposed on him were statutory limitations of this right.251 Jhering did
not accept that definition of property, but neither did he propose another.
Jhering’s rule was adopted by the German Civil Code.252 A similar rule was
adopted, independently it would seem, by the French and the common lawyers.
The French Civil Code contained no general provision about disturbances among
neighbors. French courts give relief, however, when a disturbance exceeds that
which is “normal” among neighboring properties. What is normal is judged by the
character of the locality.253 In common law jurisdictions, an interference with a
neighbor is actionable as a “nuisance” when it is “unreasonable.”254 Everyone
agrees, however, that an interference may be “unreasonable” even when an owner was
246 D.8.5.8.5. See Chapter II, pp. 37–39.
247 Puchta, Cursus (n. 217), 2: } 231; Karl Vangerow, Leitfaden für Pandekten-Vorlesungen (Marburg,
1847), } 297 Anm. II; Windscheid (n. 32), 1: } 169.
248 Windscheid (n. 32), 1: } 169.
249 Rudolph von Jhering, “Zur Lehre von den Beschränkungen des Grundeigenthümers im
Interesse der Nachbarn,” Jahrbücher für die Dogmatik des heutigen römischen und deutschen Privatrechts
6 (1863): 81, 94–96.
250 See Chapter II, p. 38.
251 Windscheid (n. 32), 1: } 169. See Vangerow (n. 247), } 297 Anm. II.
252 German Civil Code (Bürgerlichesgesetzbuch) } 906.
253 Gérard Cornu, Droit civil Introduction Les Personnes Les Biens, 4th ed. (Paris, 1990), } 1096;
Murad Ferid and Hans Sonnenberger, vol. 2 of Das Französische Zivilrecht, 2nd ed. (Heidelberg,
1986), } 3 C 191; Boris Starck, Henri Roland, and Laurent Boyer, Droit civil: Obligations Responsabilité
délictuelle, 2nd ed. (Paris, 1985), } 310; Alex Weill, François Terré, and Philippe Simler, Droit civil Les
Biens, 3rd ed. (Paris, 1985), } 309.
254 For example, in England: Murphy (n. 211), 420; Rogers (n. 211), } 14.6; Margaret Brazier, The
Law of Torts, 8th ed. (London, 1988), 32; Sir Basil Markesinis and Simon F. Deakin, Tort Law, 3rd ed.
(Oxford, 1994), 419; in the United States: Restatement (Second) of Torts }} 822, 826 (1965); William
Keeton, Dan Dobbs, Robert Keeton, and David Owen, Prosser and Keeton on the Law of Torts, 5th ed.
(St. Paul, MN, 1984), 629.
Novus Ordo: Positivism and Conceptualism 233
not careless, and so his conduct was not “unreasonable” as the term is understood
in the law of negligence.255 Although English and American jurists list
several considerations that determine the “reasonableness” of an interference, the
ones that matter are the extent of the interference and whether land is used in
the way that is normal in a given locality.256 The Restatement (Second) of Torts
confused matters by suggesting that a court should consider “whether the gravity
of the harm outweighs the utility of the actor’s conduct.”257 But few courts have
followed that suggestion.258
Again, however, it has been difficult for contemporary jurists to explain the rule
that their legal systems have adopted. German jurists occasionally describe their law
of Immissionen as a limitation on ownership, but they seem to have in mind not an
abstractly defined concept of property, but the rights conferred on a proprietor by
} 903 of the German Civil Code. They do not explain why such limitations should
be imposed.259 Some have pointed out that if neighbors could use their property in
any way that they wish, one use would interfere with the other and both properties
could become valueless.260 That is the argument that Jhering made in the nineteenth
century. But it is a purely negative argument that shows why the rights of
owners cannot be absolute. It does not explain why their rights should depend on
whether the interference is large and abnormal.
Some French jurists have said that the reason why a remedy is given is that to
interfere with one’s neighbors is an abuse of right (abus de droit).261 As we will see
in the next chapter, the doctrine of abus de droit was developed by twentiethcentury
jurists in revolt against conceptualism. Conceptualism, they said, had
neglected the purposes for which the law recognizes rights. One has abused his
255 In England: Murphy (n. 211), 420; Rogers (n. 211), } 14.6; Brazier (n. 254), 321; Markesinis
and Deakin (n. 254), 419; in the United States: Restatement (Second) of Torts } 826(b)(1965); Keeton,
Dobbs, Keeton, and Owen (n. 254), 629. See generally James Gordley, “Introduction,” in The
Development of Liability between Neighbours, ed. James Gordley (Cambridge, 2010), 23–24.
256 In England: Murphy (n. 211), 425–26, 428–29; Rogers (n. 211), } 14.7; Brazier (n. 254),
322–27 (extent of the harm and suitability of the locality; she also says that the impracticability of
preventing the interference and the social value of the plaintiff ’s activity bear on reasonableness, but
she clearly does not mean that the plaintiff loses if his activity is of purely personal value and it is
impracticable to prevent the interference); Markesinis and Deakin (n. 254), 427–33 (duration of
interference and character of neighborhood; they also mention fault, but say that a nuisance is
actionable without fault; they do mention the abnormal sensitivity of plaintiff ’s activity as bearing
on reasonableness); Rogers (n. 211), 407–08 (extent of the harm and nature of the locality); in the
United States: Restatement (Second) of Torts }} 829, 831 (1965); Keeton, Dobbs, Keeton, and Owen
(n. 254), 629 (amount of harm and nature of the locality; they mention the possibility of spreading
losses by insurance or by shifting a loss to the general public, but they do not cite any cases that turned
on this consideration).
257 Restatement (Second) of Torts } 826(1) (1965).
258 Jesse Dukeminier, James E. Krier, Gregory S. Alexander, and Michael H. Schill, Property, 7th
ed. (Austin, TX, 2010), 734–35.
259 For example, P. Bassenge, in Palandt, Bürgerliches Gesetzbuch, 5th ed. (Munich, 1996), to } 906,
no. 1.
260 H. Roth, in J. von Staudinger, Kommentar zum Bürgerlichen Gesetzbuch, 13th ed. (Berlin, 1996)
to } 906, no. 1.
261 Their opinions are described by Starck, Roland, and Boyer (n. 207), }} 315–25, and by Weill,
Terré, and Simler (n. 253), } 313.
234 The Jurists
right to use his property as he chooses when he interferes with a neighbor’s use of
his own. As we will see, critics of the doctrine have pointed out that if the law does
not give the proprietor the right to interfere with his neighbors, then one cannot say
he is abusing a right when he does. Indeed, proponents of the doctrine seem to
think that the right to property must be defined as the conceptualists said: as the
right of the proprietor to do as he chooses without regard to the purposes that the
law wishes to serve by recognizing such a right. Only when the right is defined as a
conceptualist would define it is it possible for the proprietor to abuse it. Nor do the
French jurists explain why an interference with another counts as an abuse only
when it is large and abnormal for the area. Some French jurists have said that
liability should be imposed because one person should not be allowed to create or
profit from the risk that his activity will injure others.262 They do not explain why
he may not do so only when the interference is abnormal. Other French jurists have
criticized this explanation without offering one of their own.263
In the United States, the most serious attempts to explain the law of nuisance
have been made by members of the law and economics movement. We will discuss
this at a later point.264
Tort
In tort law, for the nineteenth-century jurists, the defining or organizing principle
was that one who harms another through fault, whether intentionally or negligently,
is obligated to make compensation.
For the French jurists, fault was the only principled explanation of tort liability.265
They based this conclusion on articles 1382–83 of the French Code, which
imposed liability on one who intentionally or negligently caused another person a
harm (dommage). René Savatier and Jean-Louis Halperin regarded this provision as
another instance of the individualism of the Code. According to Savatier, it was
“the corollary of the liberty of the individual.”266 Halpérin traced it from the Code
to what he calls the individualism of the seventeenth- and eighteenth-century
natural lawyers.267
The drafters of the Code had paraphrased Pothier, who said that a person is liable
for an act by which “he causes damage to another through intent or malice,” or
“without malice but by inexcusable imprudence.”268 Pothier, in turn, had been
262 Bergel, Bruschi, and Cimamonti (n. 237), no. 109.
263 Mazeaud, Mazeaud, Mazeaud, and Chabas (n. 237), no. 1341.
264 See Chapter X, pp. 303–05.
265 Toullier (n. 2), 11: 138; Duranton (n. 3), 13: 741; Aubry and Rau (n. 9), 4: } 446;
M. L. Larombière, vol. 5 of Théorie et pratique des obligations (Paris, 1857), 738, 767; Laurent
(n. 6), 20: }} 387, 550, 639.
266 René Savatier, Les Métamorphoses économiques et sociales du droit privé d’aujourd’hui, 2nd ed.
(Paris, 1959), } 2, 6.
267 Halpérin (n. 175), 57.
268 Robert Pothier, “Traité des obligations,” }} 116, 118, in vol. 1 of Oeuvres de Pothier, ed.
M. Siffrein, nouv. ed. (Paris, 1821), 1.
Novus Ordo: Positivism and Conceptualism 235
paraphrasing Grotius.269 As we have seen, although iusnaturalists such as Grotius,
as well as Domat and Pothier, believed that a person should be liable for harm
caused by fault, they did not subscribe to the same principles as the nineteenthcentury
jurists. They believed that liability for fault rested on higher principles
concerning human duty, although they were often unclear about what these
principles were.
Moreover, according to some of the earlier jurists, fault was not the only
principled basis for liability. According to Molina, some activities were so dangerous
that a person engaged in them should be liable without fault. Pufendorf
claimed that a person who profited from an activity should be liable for the harm
that it caused others absent fault. As we have seen, Pothier and Domat were not
clear.270 According to Pothier, masters were liable for torts committed by their
servants even when they could not prevent them. Yet he added: “This has been
established to render masters careful to employ only good servants.”271 Domat said
that when harm is done by fierce animals that escape from a person’s cutody
(garde), that person is liable because, “as he profits from the use he can make
from this animal . . . he should answer.” But Domat said that he should also be
liable as a matter of “equity and public interest,” “because it is by his fault” that the
animal escaped.272
This ambiguity passed into articles 1384 and 1385 of the Civil Code, which
were based on the passages from Domat and Pothier just described. Article 1384
provides that “a person is liable not only for the damage he causes by his own act
but also for that caused for the acts of persons for whom he is responsible or things
that he has under his care (garde).” The article goes on to provide for the vicarious
liability of parents, artisans, teachers, masters, and employers. Parents, artisans, and
teachers may escape liability by proving that they could not have prevented the act
that caused damage. No such privilege is given to masters and employers. Article
1385 imposes liability on those who own or use animals. Whether fault is the
exclusive principle of liability is as ambiguous under these provisions as it is in the
original texts of Domat and Pothier.
One can see the ambiguity in the legislative history of these provisions.273
Bertrand de Greuille explained why masters and employers cannot escape liability
for acts that they could not prevent in the same way that Domat had explained the
liability of the owner of wild animals: “Is it not the service from which the master
profits that has produced the evil that he is condemned to repair?” But he
immediately followed this question by another that suggests that liability is based
on fault: “Does he not have to blame himself for having given his confidence to
men who are bad, clumsy, or imprudent?” He explained the liability of the owner of
animals by stating the “general thesis” that “nothing that belongs to a person can
269 See Chapter V, pp. 135–36. 270 See Chapter VI, pp. 146–47.
271 Pothier (n. 268), } 121.
272 Jean Domat, Les Loix Civiles dans leur ordre naturel (Paris, 1771), liv. II, tit. viii, sec. 2, } 8.
273 John Bell and David Ibbetson, European Legal Development: The Case of Tort (Cambridge,
2012), 60–62; James Gordley, “Myths of the French Civil Code,” American Journal of Comparative
Law 42 (1994): 459, 480–81.
236 The Jurists
injure another with impunity.”274 Tarrible and Treilhard, in contrast, seem to base
liability exclusively on fault.275
The nineteenth-century jurists found it puzzling that masters and employers
cannot escape liability by proving the absence of fault. Duranton and Larombière
said that the masters could have been more careful in choosing whom to employ.276
Laurent, Aubry, and Rau gave no explanation.277 Laurent discussed the explanation
of Bertrand de Greuille that the master profits from the work that gave rise to the
injury, but he rejected it on the ground that the work “is the occasion, not the
cause.”278 Thus even if one were disposed to see the recognition of fault as the sole
basis of liability as an individualistic development, one does not find it unambiguously
in the Code, but, again, one does in the commentators.
The German jurists explained liability in tort as the French nineteenthcentury
jurists did. Fault, for them, was a principle of accountability, but they
did not explain why it gave rise to a duty to compensate the plaintiff. Windscheid
simply said that a person is liable in tort “because he was at fault”;279
Puchta, that “every tort presupposes a relationship of accountability”;280 Arndts,
that “every tortious act” presupposes “the element . . . indicated by the word
fault.”281 All of them agreed that a person might be at fault through intention
or negligence.282 Arndts said that “what lies beyond [fault] is chance. . . . ” But
they did not explain what distinguished fault from chance, except to say that it
was the basis for accountability.283 Nor did they explain why one should
274 Rapport fait par Bertrand-de-Greuille, Communication officielle au Tribunat, 10 pluviose an
XII (January 31, 1804), in Fenet (n. 178), 13: 477.
275 According to Tarrible, vicarious liability and liability for animals are based on the principle
that “damage, to be subject to reparation, must be the effect of a fault or an imprudence on the
part of someone,” since otherwise “it is only the work of chance”: Discours prononcé par le Tribun
Tarrible, Discussion devant le Corps-Législatif, 18 pluviose, an XII (February 8, 1804), in Fenet
(n. 178), 13: 488. According to Treilhard, some are liable for weakness, others, a bad choice, “all
[for] negligence”: Présentation au Corps Législatif, et exposé des motifs par Treilhard, 9 pluviose,
an XII (January 30, 1804), in Fenet (n. 178), 13: 468. If so, one wonders why the Code does not
include masters and employers when it enumerates the people who can escape vicarious liability by
proving that they could not have prevented the act that causes damage. Treilhard does not mention
them, and Tarrible seems to be unaware that masters and employers have not been included. After
enumerating them and all of the other people who may be liable for the acts of another, Tarrible
says that liability “is at an end with regard to all of them if they prove that they could not prevent
the act that gives rise to it”: Tarrible, Discussion devant le Corps-Législatif, in Fenet (n. 178),
13: 489.
276 Duranton (n. 3), 13: 741; Larombière (n. 265), 5: 767.
277 Aubry and Rau (n. 9), 4: } 447; Laurent (n. 6), 20: } 88.
278 Laurent (n. 6), 20: } 588.
279 Windscheid (n. 32), 1: } 101. He also said there that, sometimes, the defendant could be liable
without fault: “Conduct may be tortious (unerlaubt) on account of its result in itself. . . . ”
280 Puchta (n. 42), } 255. 281 Arndts (n. 190), } 85.
282 Windscheid (n. 32), 1: } 101; Puchta (n. 42), } 255; Arndts (n. 190), } 85.
283 Arndts did say that fault entailed “a relationship to the will of the party on the basis of
which responsibility can be imputed to him”: Arndts (n. 190), } 85. That relationship seems clear
enough in the case of intentionally inflicted harm. But Arndts did not try to explain why it extended to
negligent acts in which the harm was not intended—a problem that, as we have seen, writers in the
Aristotelian tradition had resolved by considering the connection between the will and the virtue of
prudence.
Novus Ordo: Positivism and Conceptualism 237
owe compensation. Windscheid simply noted that “[a] particularly important
consequence of tortious acts (unerlaubte Handlungen) is the obligation to make
reparation for the harm they have caused.”284
Windscheid explained harm as a “Rechtsverletzung, that is the violation of a
right.” The conduct is not allowed because it is in conflict with the right of another
person.285 Ludwig Arndts explained that “[e]very tortious act . . . presupposes,
objectively, a violation (Verletzen). . . . ”286 Again, there was no higher principle to
explain the sorts of rights one should have and consequently the harms for which
one should be compensated.
We have seen how differently the Roman authors of their texts had approached
tort law.287 Their law recognized particular torts, only one of which, an action
under the lex Aquilia, required the defendant to have acted intentionally or
negligently. In most of the texts, when the plaintiff can recover, he has been
deprived of his property. Two texts implied that a father could recover for harm
suffered by his son. There were other harms for which he could not recover, such as
physical injury to the plaintiff himself.
As with property law, the German jurists defined tort in the same way as the
rationalists. As we have seen, Leibniz and Wolff agreed that a person owed
compensation if he harmed another through fault. Leibniz said that what was not
the result of fault was the result of “chance.”288 He explained harm as depriving
someone of what he ought to have—that is, as violating a private right. Leibniz said
that a person is harmed if he is deprived of whatever he has whether acquired by
“fortune or industry.”289 According to Wolff, “[t]he one to whom harm has been
done has less than he ought to have.”290 The rationalists did not base this definition
on the Roman texts. Again, it would be surprising if a definition of tort arrived at in
this way were to be embodied in them.
As we have seen, nineteenth-century Anglo-American treatises on torts arrived at
the principle that liability was based on fault by borrowing from Continental
jurists. They recognized a tort of negligence and classified the traditional writs as
“intentional torts.” That distinction had been foreign to the case law that was said
to support it.291
284 Windscheid (n. 32), 1: } 102.
285 Windscheid (n. 32), 1: } 101. A secondary principle was that one might be liable anyway if the
defendant acts in a way that the law forbids: Windscheid (n. 32), 1: } 101.
286 Arndts (n. 190), } 84.
287 See Chapter I, p. 20.
288 Gottfried Wilhelm Leibniz, “Elementa juris naturalis,” in Philosophische Schriften Erster Band
1663–1672, ed. Akademie der Wissenschaften der DDR (Berlin, 1990), 433 at 434.
289 Gottfried Wilhelm Leibniz, “De tribus juris praeceptis sive gradibus,” in vol. 2 of Textes inédits,
ed. Gaston Grua (New York, 1985), 606 at 607.
290 Christian Wolff, Jus naturae methodo scientific pertracta, published as Jus naturae in ed.
Marcellus Thomannus, in vols. 17–24 of Gesammelte Werke II. Abteilung Lateinishce Schriften, eds.
J. École, J. E. Hofmann, M. Thomann, and H. W. Arndt (Hildescheim, 1972), II, } 580.
291 See pp. 205–10.
238 The Jurists
Liability for fault Most nineteenth-century jurists regarded fault as the master
principle on which liability in tort must depend. By “fault,” they meant an action
that is morally culpable. Like the rationalists, they did not explain why moral
culpability should give rise to duty of compensation. Like the rationalists,292 they
did not tie the principle to any larger theory of human accountability. Nils Jansen
has noted the tension between liability based on wrongdoing and liability based on
compensation for harm done to another.293 In my view, this tension has not
marked the entire history of tort law. It is the result of a modern problem that
arose with the rationalists and passed into the work of the nineteenth-century
jurists.
The difficulties were seen at the end of the nineteenth century and became a
target for critics. Jurists such as Josserand said that they could see no reason why the
duty to make compensation should depend on whether a person who harmed
another had been morally at fault.294 The critics then found themselves on the
other horn of a dilemma. If the fault is irrelevant to the duty to make compensation,
then is all liability strict liability? If fault is relevant, but does not entail moral
responsibility, then what can fault mean?
The dilemma is best understood by looking at the efforts that French jurists have
made to escape it. Most jurists have concluded that fault, but not culpable
misconduct, is required for liability under articles 1382–83 of the Civil Code.
As Alain Bénabent has noted, the requirement of fault in the “moral” sense has
been “abandoned”: “[F]ault has become a purely objective idea consisting only of
factual conduct that is juridically described as abnormal.”295 According to Boris
Starck, Henri Roland, and Laurent Boyer, morality cannot matter since, on the one
hand, “to cause a harm to another and then to abandon him to a miserable
state because one was not at fault is inhuman, and in our sense, not moral. . . . ”
On the other hand, “it is not moral to place a burden on the author of an
involuntary fault—negligence or imprudence—that can amount to millions of
francs in damages.”296
If a defendant need not be at fault in the ordinary or “moral sense,” and, indeed,
if he can be “juridically” at fault for events that he could not possibly prevent, the
question is how to explain why liability is imposed by articles 1382–83. “Unfortunately,”
according to Starck, Roland, and Boyer, “authors are not in agreement
among themselves as to the new basis of responsibility.”297 They describe three
popular theories.298 One is the theory of risque-profit according to which whoever
292 See Chapter VIII, p. 188.
293 Nils Jansen, “Duties and Rights in Negligence: A Comparative and Historical Perspective on
the European Law of Extracontractual Liability,” Oxford Journal of Legal Studies 24 (2004): 443.
294 Louis Josserand, De la responsibiité du fait des choses inanimées (Paris, 1897), 6–8, 103–08.
295 Alain Bénabent, Droit civil: Les Obligations, 12th ed. (Paris, 2010), no. 542.
296 Starck, Roland, and Boyer (n. 207), no. 8.
297 Starck, Roland, and Boyer (n. 207), no. 41.
298 These theories are also described by François Terré, Philippe Simler, and Yves Lequette, Droit
civil: Les obligations, 9th ed. (Paris, 2005), no. 685; Philippe Malaurie and Laurent Aynès, “Obligations,”
vol. 1 in Responsibilité délictuelle, 11th ed. (Paris, 2001), no. 25.
Novus Ordo: Positivism and Conceptualism 239
profited from an activity should be liable for the damages that activity caused.299
This theory resembles the explanation of strict liability proposed by Molina on the
basis of ideas of commutative justice, and in looser form by Pufendorf and
Domat.300 Indeed, it would serve better as justification for strict liability than for
liability for fault.
The objection of Stark, Roland, and Boyer was that the theory did not go far
enough. It imposed liability on a defendant engaged in a profit-making activity, not
one conducted for other purposes.301 Unlike the late scholastics, they did not
regard any object that one pursued voluntarily as a gain.302 For the French jurists,
one solution has been to broaden the theory so that the defendant would be liable
for any risque crée—any risk that he had created.303 The difficulty is that if a person
is liable for creating a risk, prudently or imprudently, regardless of its size, then, as
Starck, Roland, and Boyer have noted, “it would be necessary to conclude that a
person is always responsible,” including “the victim of the harm . . . himself. . . . ”304
The problem with these theories, according to Starck, Roland, and Boyer, is that
they look at the question of liability “only from the standpoint of whoever caused
the harm. . . . ”:
That way of reasoning is incomplete because it leaves out the point of view of the
victim. . . . Everyone has the right to his life and his physical integrity, . . . to the physical
integrity of the property that belongs to him, and more generally, to his physical and
moral security.305
They concluded that the ultimate question is balancing a “right to act” against a
“right to security.”306 They did not explain how a balance is to be struck. If the
actor’s conduct is normal and blameless, what will turn the balance? If it is
abnormal and blameless, why should the abnormality matter?
All of these theories have been attacked by Henri Mazeaud, Léon Mazeaud, Jean
Mazeaud, and François Chabas. According to these jurists, when proponents of a
risk theory speak of “abnormal conduct,” they do not mean conduct that is unusual
or even unusually dangerous. For the proponents of risk theories, “abnormal
conduct” means conduct that a prudent person would avoid. But if fault in the
sense of imprudence does not matter, why should it matter what a prudent person
would have done? If the criterion of abnormality is abandoned, according to the
Mazeauds and Chabas, the only other is the creation of a risk. But that eliminates all
criteria.307 They have noted that, “except in a few cases” such as children and the
insane, the law persists in imposing liability for fault in the ordinary sense, whatever
299 Labbé, “Note,” S. 1890.4.18, described by Starck, Roland, and Boyer (n. 253), no. 42.
300 See Chapter VI, pp. 146–47. 301 Starck, Roland, and Boyer (n. 253), no. 43.
302 See Chapter III, p. 91. 303 Described by Starck, Roland, and Boyer (n. 253), no. 44.
304 Starck, Roland, and Boyer (n. 253), no. 45.
305 Starck, Roland, and Boyer (n. 253), no. 58. For a similar criticism of the risk theories, see Terré,
Simler, and Lequette (n. 207), no. 685, 686.
306 Starck, Roland, and Boyer (n. 253), no. 58.
307 Henri Mazeaud, Léon Mazeaud, Jean Mazeaud, and François Chabas, Leçons de droit civil
II. Obligations: théorie générale, 5th ed. (Paris, 1998), no. 430.
240 The Jurists
the jurists may say.308 That is as it should be, they have said, since there is no reason
why it is more equitable to shift the loss to the innocent actor.309
The conceptualist’s principle of liability for culpable misconduct has been
discredited. Yet the French jurists have not found a coherent alternative. As
Terré, Simler, and Lequette have observed, “[l]ogic has not necessarily received
its due, either as to the sources of the rules, or as to a harmony which has
vanished.”310
Since the nineteenth century, leading German treatise writers have also denied
that, in principle, liability for fault is based on moral culpability. According to
Josef Esser, liability is imposed because of the “act,” not the “actor,” and without
“the reproach of fault.”311 The reason is “a plausible division of risks,” “an
acceptable compromise between the interests of the injuring and the injured
party.”312 It has been objected that the German Civil Code requires not only
that the defendant act intentionally or negligently, but also that his action is
“unlawful.” For example, he is not liable if he intentionally struck the plaintiff in
self-defense since it was not unlawful to do so. If he is liable for negligence, not
because he was at fault, but simply because he behaved in the wrong way, it
would seem that his liability is really for unlawful behavior.313 The more
fundamental problem is what the “interests” of either party have to do with
imposing liability for conduct that the defendant could not help, except in the
trivial sense that the defendant always has an interest in escaping liability and the
plaintiff in holding him liable.
Today, leading English treatise writers also deny that, in principle, liability for
fault is based on moral culpability. Heuston and Buckley, in their revision of
Salmond’s treatise, claim that “[t]here is no necessary element of ‘fault’ in the
sense of moral blameworthiness. . . . ”314 According to K. M. Stanton, “the compensatory
purpose” of tort law should not be “undermined by arguments founded
on moral responsibility. . . . ”315 Unlike the French, they do not explain how fault
should be reinterpreted.
Since the time of Oliver Wendell Holmes, American jurists have proposed
theories to explain why fault in the moral sense should not matter. Holmes argued
that if “a man is born hasty and awkward . . . his slips are no less troublesome to his
neighbors than if they sprang from guilty neglect.”316 Leading contemporary
308 Mazeaud, Mazeaud, Mazeaud, and Chabas (n. 307), no. 432.
309 Mazeaud, Mazeaud, Mazeaud, and Chabas (n. 307), no. 429.
310 Terré, Simler, and Lequette (n. 207), no. 673.
311 Josef Esser and Eike Schmidt, Schuldrecht I Allgemeiner Teil 2 Vertragshaftung, Schadensersatz,
Personmehrheit im Schuldverhältnis Ein Lehrbuch, 5th ed. (Heidelberg, 1976), 35. See Hans Brox,
Allgemeines Schuldrecht, 10th ed. (Munich, 1982), no. 219.
312 Esser and Schmidt (n. 311), 35.
313 See Brox (n. 311), no. 219.
314 R. F. V. Heuston and R. A. Buckley, Salmond and Heuston on the Law of Torts, 19th ed.
(London, 1987), 216.
315 Stanton (n. 211), 69. 316 Holmes (n. 114), 108.
Novus Ordo: Positivism and Conceptualism 241
jurists, such as Stephen Perry317 and Jules Coleman,318 have argued that the
defendant should be liable if he deviated from the standard of conduct that
a reasonable person would normally observe, whether or not he is personally at
fault. Their claim is like that of the French jurists who believe that the defendant
should be liable, even if was not personally imprudent, if his conduct was abnormal.
They then describe abnormal conduct as conduct that a prudent person would
avoid. Richard Epstein has claimed that liability should be imposed regardless
of fault if a case falls within one of four “causal paradigms.” The paradigms,
however, describe actions that people typically do not perform unless they are
at fault:319 the defendant applied force to the plaintiff’s person or thing; he
frightened the plaintiff; he compelled the plaintiff to act; or he created a dangerous
condition that injured the plaintiff.320 Epstein then described defenses by which
the defendant can escape liability. They look like typical cases in which a
person ordinarily would not be at fault. For example, he is not liable if the plaintiff
blocked his right of way, and whether the plaintiff did so depends on applicable
state traffic laws.321
These theories have not been generally accepted, perhaps because they are
subject to criticisms like those of the Mazeauds and Chabas in France. The
abnormal conduct for which liability is imposed is that which a prudent person
would and could avoid. It is not merely conduct that is unusually dangerous, like
that of person who unwittingly carries a contagious disease or who is blown off a
building into a crowd. But if the personal fault of the defendant does not matter,
why should it matter what a prudent person would have done?
In France, England, and the United States, the views of the jurists have had little
effect on the results reached by courts. Whatever theory one adopts, the man born
hasty and awkward would not escape liability. How could he prove that he was
born that way or that, if he had tried, he could not have overcome his limitations?
In France, the few cases in which a person is held liable for conduct that he
demonstrably could not help are those of children and insane persons. Imposing
317 Stephen Perry, “The Moral Foundations of Tort Law,” Iowa Law Review 77 (1992): 449,
451–52; Stephen Perry, “Loss, Agency and Responsibility for Outcomes: Three Conceptions of
Corrective Justice,” in Tort Theory, eds. Ken Cooper-Stephenson and Elaine Gibson (North York,
ON, 1993), 24.
318 Jules L. Coleman, “Tort Law and the Demands of Corrective Justice,” Indiana Law Journal 67
(1992): 349, 357. See Jules L. Coleman, Risks and Wrongs (Cambridge, 1992), 333–35; Jules
L. Coleman, “The Mixed Conception of Corrective Justice,” Iowa Law Review 77 (1992): 427, 428,
442; Jules L. Coleman, “Mental Abnormality, Personal Responsibility and Tort Liability,” in Mental
Illness: Law and Public Policy, eds. B. Brody and H. T. Engelhardt, Jr. (Dordrecht, 1980), 107; Jules
L. Coleman, “Moral Theories of Torts: Their Scope and Limits: Part I,” Law and Philosophy 1(3)
(1982): 371, 376–78.
319 On the normative character of Epstein’s paradigms, see Ernest J. Weinrib, “Causation and
Wrongdoing,” Chicago-Kent Law Review 63 (1987): 407, 417; Perry, “Moral Foundations” (n. 317),
464; Gary T. Schwartz, “The Vitality of Negligence and the Ethic of Strict Liability,” Georgia Law
Review 15 (1981): 963, 988–89.
320 Richard A. Epstein, “A Theory of Strict Liability,” Journal of Legal Studies 2 (1973): 151,
166–89.
321 Richard A. Epstein, “Defenses and Subsequent Pleas in a System of Strict Liability,” Journal of
Legal Studies 3 (1974): 165, 176.
242 The Jurists
liability on them is a recent development. The insane were not held to the standard
of conduct of a normal person until the enactment of the Law of January 3, 1968,
now article 489–2 of the Civil Code. By analogy, children were held to an adult
standard by the Assemblée plénière of the Cour de cassation in 1984.322 Despite the
opinion of leading jurists, English courts have held children to the standard of care
appropriate to their age,323 and Canadian courts, applying English common law,
have refused to impose liability on the insane.324 American courts do not hold
children to an adult standard, although, according the Second Restatement of Torts,
they should hold the insane to the standard of a normal person. That was a question
on which the First Restatement had reserved judgment. In any event, whether to
impose liability on children or the insane is not the same question as whether other
people should be liable for conduct that they cannot help. People whose conduct is
the result of a physical disability are not held liable. The German Civil Code of
1900, while acknowledging that children and the insane are not at fault for failing
to meet the standard of a normal adult,325 holds them liable if, in the court’s
judgment, fairness requires that the damage be made good.326
Again, critics were more successful in discrediting the conceptualists’ principle
than in finding an alternative of their own.
The one great change has been the development of strict liability alongside
liability for fault. Technological changes made it possible, without any fault at
all, to cause ever greater amounts of harm. It seemed imperative to impose strict
liability whether or not one had a good theoretical reason for doing so. To find
such a reason would have been difficult for earlier jurists, although, as we have
seen, Molina, Pufendorf, and Domat had justified strict liability on the ground
that it prevented one person from taking risks for his own benefit that harmed
another.327 The task was particularly difficult for the nineteenth-century jurists.
They had neither the theory of commutative justice relied on by Molina,
nor the more indefinite higher principles of Pufendorf and Domat. Moreover,
they had defined tort liability as a duty to make compensation for harm caused
by fault.
In the end, courts and jurists recognized that nineteenth-century conceptual
analysis could not deal with the problem. More acceptable results were reached. Yet
no alternative and generally accepted explanation was found for these results.
American courts arrived at a coherent rule: the defendant is liable for harm
caused by ultra-hazardous or abnormally dangerous activities. This rule was
accepted by American courts and by the Restatements of Torts.328 Yet American
jurists did not find a coherent and generally accepted explanation for it. The most
serious effort has been made by members of the law and economics movement,
322 Cass., Assemblée plénière, May 3, 1984 (4th case), D.S. 1984. J.529.
323 Gough v. Thorne [1966] 2 All E.R. 398 (C.A.).
324 Att’y Gen’l of Canada v. Connolly [1989] 64 D.L.R. 4th 84 (Sup. Ct. British Columbia); Buckley
& Toronto Transp. Com’n v. Smith Transport Ltd. [1946] 4 D.L.R. 721 (Sup. Ct. British Columbia).
325 German Civil Code (Bürgerlichesgesetzbuch) }} 827–28.
326 German Civil Code (Bürgerlichesgesetzbuch) } 829.
327 See Chapter VI, pp. 146–47. 328 Restatement (Second) of Torts } 519 (1965).
Novus Ordo: Positivism and Conceptualism 243
which we will consider later. English courts have rejected the American rule. They
adopted an odd one: a property owner is liable if he brought a “non-natural” thing
on his land that “escaped” and did damage.329 The language is taken from the
nineteenth-century case of Rylands v. Fletcher.330 The rationale is not at all clear.
The French adopted a rule that seems stranger. As we have seen, article 1384 of the
Civil Code imposes liability on a person for harm done by objects in his “custody.”
The meaning of the passage to the drafters is not clear.331 The nineteenth-century
French jurists interpreted it as a special case of liability for fault. Strangely, French
courts have now interpreted it to mean that a person is liable without fault for
harm done by any object in his “custody,” however dangerous or innocuous the
object may be, unless the harm was caused by cas fortuit or force majeure.332
German courts have not adopted any general rule. They impose strict liability
only as provided by a patchwork of special statutes. For example, the defendant is
liable for the operation of trains,333 aircraft,334 automobiles,335 and electric and gas
installations.336
What is missing—and has been missing since the nineteenth century—is an
explanation of why liability is imposed, sometimes for fault, and sometimes
regardless of fault.
Harm For the conceptualists, as for the rationalists,337 recovery in tort is based
on the principle that one owes compensation for harm caused by fault. The
rationalists said little about what constitutes a harm, except that it is a violation
of another person’s rights. The conceptualists tried to explain what constituted
such a violation. The results of their efforts puzzled later jurists, but are still
with us.
The nineteenth-century jurists saw two alternatives. One that prevailed in
France was to say that the plaintiff could recover for any sort of harm that he
might suffer. He had the right not to suffer harm. The other, which prevailed in
Germany and then in common law jurisdictions, was to define a violation of
rights for which one could recover in a more limited way. There must be a
violation of an absolute right such as property, which is a right held against all of
the world. There is no liability for violation of a relative right, such as one based
on contract, which is a right against a particular person. Although this was a
conceptualist solution, it is still with us, overlaid by efforts to account for it by
considerations of policy.
Applying their broad definition of harm, French courts have allowed a plaintiff
to recover for any harm that he has suffered, including economic losses, even
though neither his body nor his physical property were harmed. Factory owners
329 Cambridge Water Co Ltd v. Eastern Counties Leather plc. [1994] 2 A.C. 264; Read v. J. Lyons &
Co., Ltd. [1947] A.C. 156 (H.L.).
330 Fletcher v. Rylands (1866) L.R. 1 Ex. 265; Rylands v. Fletcher [1868] L.R. 3 H.L. 330.
331 See pp. 236–37.
332 The rule dates from Cass, ch. réun., February 13, 1930, D. 1930.1.57.
333 Haftpflichtgsetz } 1(1). 334 Luftvehkehrgesetz } 33. 335 Strassenverkehrgesetz } 7.
336 Haftpflichtgsetz } 2(1). 337 See Chapter VI, p. 188.
244 The Jurists
have recovered for profits that they lost when defendants cut off their supply of gas
by breaking a pipe belonging to a third party.338 A soccer club has recovered for
profits that it lost when the defendant negligently killed a star player.339 A bus
company has recovered for the profits that it lost when defendants negligently
caused a traffic jam and their potential customers either walked or took cabs to their
destinations.340
Nevertheless, applied consistently, this approach would lead to results that the
French courts have been unwilling to accept. They have limited recovery even
though they cannot explain why it should be limited. For example, they did not
allow a partnership to recover for the deals that were not consummated because the
company president who was negotiating them was negligently injured.341 They did
not allow creditors to recover the sums that they would never be repaid because the
borrower was negligently killed.342 In each case, they denied relief without admitting
that they were limiting the definition of harm. But it is hard to know how
seriously they took the reasons that they gave. Although French law allows recovery
for “the loss of a chance,” according to the Cour de cassation, the partnership could
not recover because consummation of the deal under negotiation was not “certain.”
Although a plaintiff is not denied relief because he could have insured himself
against a loss, the creditor was denied relief because he could have purchased
insurance on the life of the debtor.
The preliminary draft of the German Civil Code contained a provision like that
of the French: “One who has caused another harm (Schaden) by intention or by
negligence by an unlawful (widerrechtlich) act or omission is obligated to make him
compensation.”343
The members of the First Commission accepted the Pandektists’ general
principle governing recovery in tort law: the plaintiff could recover for a violation
of a right.344 A question raised at its first meetings was:
[W]hat is to be understood as the “violation of a right”: only the violation of a right which
receives an absolute protection or any violation of the legal order by an act prohibited by law
as contrary to the legal order . . . ?345
The Commission chose the first alternative. As a general principle, the plaintiff
could recover only for the violation of an “absolute right.” It noted that a “right of
338 Cass., 2e civ. ch., May 8, 1970, Bull. civ. 1970. II. no. 160.
339 Cour d’appel, Colmar, April 20, 1955, D. 1956.Jur.723.
340 Cass., 2e civ. ch., April 28, 1965, 1965 D.S.Jur.777.
341 Cass., 2e civ. ch., June 12, 1987, JCP 1987. IV. 286.
342 Cass., 2e civ. ch., February 21, 1979, JCP 1979. IV. 145.
343 Teilentwurf des Vorentwurfs zu einem BGB, Recht der Schuldverhältnisse no. 15, } 1.
344 Die Vorlagen der Redaktoren für die erste Kommission zur Ausarbeitung des Entwurfs eines
Bürgerlichen Gesetzbuches, Recht der Schuldverhältnisse, Teil 1, Allgemeiner Teil I, ed. Werner Schubert
(Berlin, 1980), 657 (“the sphere of rights of each person must be respected and left untouched by all
other persons; whoever acts contrary to this general command of the law without there being any
special grounds for justification has by that alone committed a tortious act [literally, a nonpermitted
act, unerlaubte Handlung]”).
345 Protokolle der Kommission zur Ausarbeitung eines Bürgerlichen Gesetzbuchs (1881–89), in vol. 3 of Die
Beratung des Bürgerlichen Gesetzbuchs, eds. H. H. Jakobs and Werner Schubert (Berlin, 1983), 971–72.
Novus Ordo: Positivism and Conceptualism 245
obligation” (obligatorisches Recht), such as a contract right, is not “absolute.” An
absolute right could be violated by anyone. A right of obligation “cannot be
violated by anyone except the debtor.”346 That conclusion followed, supposedly,
from the definition of the violation of a right.
The result, after several amendments, was } 823(1) of the German Civil Code,
which enumerated certain of the absolute rights: “One who intentionally or
negligently unlawfully violates the life, body, health, freedom, property or similar
right (sonstiges Recht) of another is obligated to compensate him for the harm that
thereby ensues.”347
This provision does not permit recovery for pure economic harm—harm that
results when none of these enumerated rights has been violated—as the Reichsgericht
held soon after the Code was enacted.348 That limitation is the result of the
conceptualist approach that the Commission had taken from the nineteenthcentury
jurists: one defines a right and then deduces the consequences.
In the early twentieth century, the same approach was taken by jurists in
England and the United States. According to J. F. Clerk and W. H. B. Lindsell,
“interference with rights of service or with rights of contract generally is not
actionable.” In that respect, such rights differed from rights such as property,
which were “unqualified.”349 A similar principle was adopted in the eighth edition
of C. G. Addison’s treatise on torts, which was published in 1906 after his death by
William Gordon and Walter Griffith.350 They said that because negligence is the
breach of a duty, the plaintiff is therefore liable only “where there is an obligation
toward the plaintiff.” “It follows,” they said, “that if there is no duty to be careful
there is no action for negligence.”351 Similarly, in 1910, Sir John Salmond said that
346 Protokolle der Kommission zur Ausarbeitung eines Bürgerlichen Gesetzbuchs (n. 345), 984, 986–87.
347 Section 704(1) or an earlier draft provided: “The violation of life, body, health, freedom and
honor are also [along with property] to be regarded as the violation of a right.” The provision was
changed by adding the phrase “similar right,” since it had proved impossible to enumerate all of the
absolute rights, and deleting the right to one’s honor, since it had been decided on independent
grounds that a plaintiff should not recover money damages for violations of his honor, a view that has
since been corrected by decisions of the Bundesgerichtshof: Bundesgerichsthof, 1954, EBGHZ 13, 334.
348 Reichsgericht, April 11, 1901, ERGZ 48, 114; Reichsgericht, February 27, 1904, ERGZ, 58, 24.
349 John Frederick Clerk and William Harry Barber Lindsell, The Law of Torts, ed. W. Paine, 3rd
ed. (London, 1904), 11. They cited Cattle v. The Stockton Waterworks Co. (1875) L.R. 10 Q.B. 453, in
which the plaintiff was not allowed to recover the extra expenses that he incurred when the defendant’s
negligence caused the flooding of a third party’s land on which he was building a tunnel. In that case,
however, the court had rested its decision on different considerations—that the damage was “remote”
and that recovery would unduly multiply the number of possible plaintiffs: Stockton Waterworks, 457,
as noted by Robby Bernstein, Economic Loss, 2nd ed. (London, 1998), 11. At another point, Clerk and
Lindsell do suggest that the case turned on the remoteness of the damage: Law of Torts, 133.
350 Charles Greenstreet Addison, A Treatise on the Law of Torts or Wrongs and their Remedies, eds.
William Gordon and Walter Griffith, 8th ed. (London, 1906). Although they styled themselves
“editors,” Gordon and Griffith had found it necessary to rewrite the treatise extensively because it
was unsystematic, they said, compared with the treatises of Sir Frederick Pollock, and Clerk and
Lindsell. Since it contained “little or nothing about the law of Negligence,” they had written the
chapter on that subject from scratch: Addision, Law of Torts, viii. They also cited Stockton Waterworks
(n. 349) as an illustration.
351 Addison (n. 350), 701.
246 The Jurists
“nuisance is actionable only at the suit of the occupier or owner of the land affected
by it; not at the suit of strangers whatever pecuniary interest they may have in the
non-existence of the nuisance.”352 He also said that “[n]egligent injury to property
gives an action to the owner of that property, or to other persons having some
proprietary interest therein, but not to mere strangers who are thereby subjected to
pecuniary loss.”353 In later editions, Salmond generalized the principle: “He who
does a wrongful act is liable only to the person whose rights are violated.”354
Thereafter, the same principle was endorsed in a long series of English cases
stretching from 1911 to 1969.355
It made its way to the United States in 1927 in the landmark opinion of Oliver
Wendell Holmes in Robbins Dry Dock and Repair v. Flint,356 in which Holmes
once again adopted a conceptualist solution despite his complaints about conceptualism.
In that case, while a steamer was in dry dock, its propeller was damaged as a
result of the defendant’s negligence. The plaintiff had chartered the steamer and
sued for the profits that he lost during the delay resulting from the repair of the
propeller. Reversing the circuit court, Holmes held that he could not recover
because “[t]he injury to the propeller was no wrong to the [plaintiff] but only to
those to whom it belonged.”357
In some cases, applying the rule straightforwardly leads to results that courts are
not willing to permit. They have either refused to apply the rule or done so less than
352 John William Salmond, The Law of Torts: A Treatise on the English Law of Liability for Civil
Injuries, 2nd ed. (London, 1910), 10. For that principle, he cited there Stockton Waterworks and AngloAlgerian
Steamship Co. Ltd. v. The Houlder Line, Ltd. [1908] 1 K.B. 659, in which the defendant had
negligently damaged a third party’s dock and the plaintiff was not allowed to recover for the loss he
suffered when his ship was unable to use it. As in Stockton Waterworks, the court had not mentioned
this principle, but spoken of the remoteness of the harm (at 665) and the danger of multiplying
possible plaintiffs (at 668). Indeed, the court noted that the plaintiff could recover: at 664–65.
Salmond was speaking of what are now called cases of public nuisance if the plaintiff were specially
affected. The rule is now said to be different in nuisance than in negligence, but the court was writing
before that difference came to be accepted.
353 Salmond (n. 352), 10.
354 Salmond, Law of Torts, ed. W. T. S. Stallybrass, 8th ed. (London, 1934), 133. Whether the
English treatise writers who first put forward this argument knew that German jurists had already done
so is another question. That is certainly a possibility for Salmond. He was surely familiar with the
German Civil Code and may have known of the work of the First Commission as well. His select
bibliography in his book Jurisprudence shows a thorough knowledge of German writing on private law
and a special admiration for Bernard Windscheid, one of the most distinguished members of the First
Commission. He described Windscheid as “one of the most distinguished German exponents of
modern Roman law” and his book, Lehrbuch des Pandektenrechts, as “an admirable example of the
scientific study of a legal system”: John William Salmond, Jurisprudence or the Theory of the Law
(London, 1902), 654. Stone has suggested that he used ideas taken from Windscheid in that book:
Julius Stone, Legal Systems and Lawyers’ Reasonings (London, 1964), 141. See Alex Frame, Salmond
Southern Jurist (Wellington, New Zealand, 1995), 63.
355 La Société Anonyme de Remorquage à Hélice v. Bennets [1911] 1 K.B. 243, 245–46, 248; Elliott
Steam Tug Co. Ltd. v. Shipping Controller [1922] 1 K.B. 127, 140; Morrison Steamship Co. Ltd. v.
Greystoke Castle [1947] A.C. 265, 280, 305–06 (H.L.); Best v. Samuel Fox & Co. Ltd. [1952] A.C. 716,
730–31; Attorney-General for New South Wales v. Perpetual Trustee Co. (Ltd.) [1955] A.C. 457, 484;
Electrochrome Ltd. v. Welsh Plastics Ltd. [1968] 2 All E.R. 205, 206; Margarine Union GmbH v.
Cambray Prince Steamship Co. Ltd. [1969] 1 Q.B. 219, 251.
356 275 U.S. 303 (1927). 357 Robbins Dry Dock (n. 356), 308.
Novus Ordo: Positivism and Conceptualism 247
straightforwardly. In People’s Express Airlines v. Consolidated Rail Corp.,358 a commercial
airline recovered when it was forced to evacuate its premises because the
defendant negligently allowed a dangerous chemical to escape from a railway tank
car. The court refused to apply the rule that denies recovery when no physical harm
has occurred. “The challenge,” the court said, “is to fashion a rule that limits
liability but permits adjudication of meritorious claims.”359
In other cases, German and English, as well as American, courts have refused to
apply the rule. The best known are those in which plaintiffs lost money that they
loaned or invested in the enterprise of a third party on the basis of false information
on its financial condition negligently furnished them by a defendant with which
they did not have a contract.360 German courts, however, have claimed that the
plaintiff was not recovering in tort, but on a contract, even though the two had
never entered into a contract.
Once again, although later jurists found the conceptual analysis of the nineteenth
century to be inadequate, they did not find an alternative. The court in
People’s Express did not suggest one. Lord Denning defended the old rule by an
appeal to a miscellany of policy considerations, some of them conclusory, such as
“this is a hazard that we all run,” or “the risk of economic loss should be suffered by
the whole community,” or “the law provides for deserving cases.”361 One commentator
has said that the purpose of the rule is to avoid “indeterminate liability,” that
there is no reason why a person should protect another’s “business interests” as
distinct from his “property,” and that an “individual’s property is to some extent
constituted by his property.”362 These are attempts ex post to defend a rule that ex
ante rested on conceptual reasoning that is not acceptable today.
Contract
The nineteenth-century jurists defined contract in terms of the will of the parties.
According to the French jurists, and many modern scholars, that definition was
enshrined in the Civil Code. They pointed to article 1134: “Agreements legally
formed take the place of law for those who have made them. They can only be
358 495 A.2d 107 (N.J. 1985).
359 People’s Express Airlines (n. 358), 111. In contrast, in Germany, when the defendant negligently
blocked the only passage to a canal leading to a mill, a shipper under contract to pick up grain at the
mill recovered for the profits that he lost because one of his ships could not leave the canal, but not for
those that he lost because another one could not enter and pick up the grain. The court treated the ship
trapped in the canal as one that had been physically disabled, and so claimed that it was applying the
rule: Bundesgerichtshof, December 21, 1970, BGHZ 55, 153.
360 Hedley Byrne & Co. Ltd. v. Heller & Ptnrs., Ltd. [1964] A.C. 465 (H.L.); White v. Guarante, 372
N.E. 315 (N.Y. 1977); Bundesgerichtshof, February 13, 1979, NJW 1979, 1565; Oberlandesgericht,
Munich, July 13, 1956, BB 1956, 866. The courts stressed that the information was prepared or
supplied to a definite person or group. Plaintiffs have not recovered when information was prepared for
general circulation among an indefinite number of actual or potential investors or creditors: Credit
Alliance Corp. v. Andersen & Co., 483 N.E.2d 110 (N.Y. 1985).
361 Spartan Steel & Alloys Ltd. v Martin & Co (Contractors) Ltd. [1973] 1 Q.B. 27 (C. A.).
362 Murphy (n. 211), 96.
248 The Jurists
revoked by mutual consent or for reasons authorized by law. They must be
executed in good faith.”
The statement that agreements “take the place of law” for the parties was a
paraphrase of a passage in Domat, who himself had taken it from a collection of
decretals promulgated by the medieval Pope Boniface VIII,363 who in his turn had
taken it from the Corpus Juris Civilis.364 As Alfons Bürge observed, the passage says that
agreements take the place of law; it does not say anything about autonomy.365 Yet,
according to many modern scholars, this text proclaimed the autonomy of the will366
and the freedom of contract.367 Indeed, it exalted contract to the same level as law.368
It is not clear to what extent the makers of the Code understood and accepted the
principles of the iusnaturalists, and of Domat and Pothier. These jurists had
believed that, while a party entered into a contract by consent or will, nevertheless
the terms of the contract were not merely expressions of their will. Rather, they
were—or ought to be—terms consistent with justice. Nevertheless, the articles of
the Code and the remarks of the drafters are more consistent with that understanding
of contract than the one that emerged later in the century. Articles 1108 and
1131 require the contract to have a lawful cause. Article 1104 explains that, when a
contract is “commutative” (commutatif ), “each of the parties commits himself to
give or do a thing that is regarded as the equivalent of that which is given or done
for him.” Article 1135 provides: “Agreements are obligatory not only as to that
which is expressed in them but also as to all the consequences that equity, usage or
statute give the obligation according to its nature.” Apparently, we are still in a
world in which contracts have a “nature,” in which certain consequences follow
according to “equity” from that “nature,” and in which the nature of some
contracts requires, in principle, an exchange of equivalents.
The drafters may have drawn on the ideas of the earlier jurists more on account
of familiarity than understanding or conviction. Yet, on the rare occasions on which
they speak about the basic principles of contract law, their statements are consistent
with these ideas. According to Portalis:
The freedom to contract cannot be limited except by justice, good mores and public
utility . . . .
There are situations as to which justice is clearly manifested. A partner, for example,
wishes to divide all of the profits of a partnership without taking part in the risks. The claim
363 VI 5.13.85. 364 D. 50.17.23. 365 Bürge (n. 177), 64–65.
366 For example, Cornu (n. 253), 1: } 289; Halpérin (n. 175), 279; Christian Larroumet, vol. 3 of
Droit civil: Les obligations Le contrat, 4th ed. (1998), } 116; F. Marty and P. Reynaud, vol. 1 of Droit
civil: Les Obligations, 2nd ed. (Paris, 1988), } 33; Mazeaud, Mazeaud, Mazeaud and Chabas (n. 307),
1: } 43; 2: } 116.
367 For example, Ghestin and Goubeaux (n. 2), } 137; Marty and Reynaud (n. 366), 1: } 33; Alex
Weill and François Terré, Droit civil: Les Obligations, 4th ed. (Paris, 1986), } 10.
368 For example, Jean Carbonnier, vol. 2 of Droit civil, 11th ed. (Paris, 1977), 66, and vol. 4: 35;
Mazeaud, Mazeaud, Mazeaud, and Chabas (n. 307), 1: } 43; Savatier (n. 266), } 2; Weill and Terré
(n. 367), } 18; Alex Weill and François Terré, Droit civil: Introduction Générales, 4th ed. (Paris, 2979),
} 96.
Novus Ordo: Positivism and Conceptualism 249
is revolting. One need not look outside such an agreement for an iniquity that is perpetrated
by the letter of the agreement itself.369
Cambarcérès explained: “Every contract is essentially an exchange; it presupposes
therefore the return of an equivalent. . . . ”370 Portalis said that, “undoubtedly . . .
good faith, reciprocity, and equality are required in contracts. . . . ”371
Again, the Code itself said that the parties were bound to all of the consequences
that the laws, equity, and custom attach to their agreement,372 paraphrasing
Domat.373 As we have seen, Domat, like the late scholastics and iusnaturalists,
had said that terms are read into contracts according to “natural equity,” such as a
warranty into the contract of sale.374 The seller might disclaim the warranty if the
“equity” of the contract was preserved by lowering the price.375 That was hardly the
view that the will of the parties in and of itself is the source of such terms. The
drafters seem to have held the earlier view. Bigot-Préameneu said that the provisions
of the Code were based on features that were “inherent in the contract, which
differentiate its nature and effects.”376 Lacuée, a critic of the draft, objected that the
Code might “extend obligations well beyond the limits the contract debtor consented
to give them” by “imposing on the debtor obligations that he could not have
foreseen.” Tronchet, for the drafting committee, answered:
The contract of sale, for example, admits obligations that are the natural result of the
contract because they are drawn from its essence, and that they have their effect although
they are not expressed at all. Such, among others, is the warranty.377
These remarks, it must be emphasized again, are scraps of thought thrown out as
the occasion demanded, and while they indicate a familiarity with the work of the
earlier jurists, they do not imply a serious commitment to it or even anything more
than a superficial understanding of it. Nevertheless, they certainly do not indicate
that the old theory had been abandoned for a new one that contract is merely the
will of the parties, and that the justice or injustice of the terms does not matter.
According to Halpérin, the Code magnifies the importance of the individual
will, since it allows property to be transferred as soon as the parties assent to a sale,
rather than upon delivery, as Roman law provided. He acknowledges that the
drafters took this provision from iusnaturalists such as Grotius,378 but he believes,
369 Portalis, Discours préliminaire prononcé lors de la présentation du projet de la Commission du
gouvernement, in Fenet (n. 178), 1: 510.
370 Rapport fait à la convention nationale sur le 2e projet de Code civil, par Cambacérès, séance du
23 fructidor, an II (September 9, 1794), in Fenet (n. 178), 1: 107.
371 Portalis (n. 369), 1: 513. 372 Code civil art. 1135.
373 Jean Domat, Les Loix civiles dans leur ordre naturel, 2d ed. (Paris, 1713), liv. I, tit. i, sec. 3, } 12.
374 Domat (n. 373), liv. I, tit. i, sec. 3, } 12.
375 Domat (n. 373), liv. I, tit. i, sec. 4, } 2.
376 Présentation au Corps-Législatif, et exposé des motifs, par M. Bigot-Préameneu, in Fenet
(n. 178), 13: 329.
377 Tronchet, Discussion du Conseil d’état, Procès-verbal de la séance du 7 pluviose an XII (January
28, 1804), in Fenet (n. 178), 14: 54–55.
378 Hugo Grotius, De iure belli ac pacis libri tres (Amsterdam, 1646), II. xii. 15.1. See Samuel
Pufendorf, De iure naturae et gentium libri octo (Amsterdam, 1688), V.v.3; Domat (n. 373), liv. I,
tit. ii, } 7.
250 The Jurists
partly for this reason, that Grotius espoused a new theory of contract that stressed
the will.379 We have seen, however, that Grotius took this principle, and many
others, from the late scholastics.380
Similarly, the nineteenth-century German jurists defined contract in terms of the
will, or consent or agreement, of the parties, without limiting, in principle, what
could legitimately be willed.381 Contract, they said, is a type of Rechtsgeschäft—a
term that is virtually untranslatable, but which English writers have called a “legal
transaction,” a “juristic act,” or an “act-in-law.” A Rechtsgeschäft, in the words of
Windscheid, is “a private declaration of will (Willenserklärung) intended to produce
a legal effect.” The legal effect “is always the production, extinction, or modification
of legal rights.” Rechtsgeschäft includes more than contract. A last will and testament
also is a private declaration of will intended to produce a legal effect. Windscheid
explained:
The most important distinction to be drawn among Rechtsgeschäfte is that between unilateral
and bilateral acts. Either the Rechtsgeschäft comes into being through the declaration of one
person’s will [as in the case of a last will and testament], or the agreement of several persons’
wills is necessary. More precisely, in the latter case the will declared by one person must be
grasped and held firm by the will manifested by others. A bilateral Rechtsgeschäft is
commonly termed a contract.382
Although they claimed to be interpreting the Roman texts, these ideas were distant
from the Roman law of particular contracts in which only some contracts bound
the parties upon consent, and in some the parties were bound to whatever good
faith required. Again, their ideas were like those of the rationalists. As we have
seen,383 Leibniz and Wolff described the freedom of the parties to contract on any
terms they choose as conceptually limitless. In Leibniz’s view, Luig observed,
contract law is “fundamentally governed by the principle of the freedom and
equality of the citizens. This equality is also realized in the freedom to make a
law for one’s own contractual relations through the lex contractus. . . . ”384 Again, it
would be surprising had the Roman texts happened to embody these same ideas.
In common law jurisdictions, contract was defined as mutual assent.385 As
A. W. B. Simpson has said, the will of the parties became “a sort of Grundnorm
379 Halpérin (n. 175), 57, 130, 207. 380 See Chapter III, p. 97; Chapter V, p. 137.
381 Savigny (n. 27), 3: } 134; Puchta (n. 42), }} 49, 54; Windscheid (n. 32), 1: } 69.
382 Windscheid (n. 32), 1: } 69. For similar accounts, see Savigny (n. 27), 3: } 134; Puchta (n. 42),
}} 49, 54; Arndts (n. 190), } 58.
383 See Chapter VIII, p. 189.
384 Klaus Luig, “Leibniz als Dogmatiker des Privatrechts,” in Römishes Recht in der europäischen
Tradition Symposion aus Anlass des 75 Geburtstages Franz Wieacker, eds. Okko Behrends, Malte
Diesselhorst, and Wulf Eckart Voss (Ebelsbach, 1985), 213 at 239.
385 Kent (n. 109), *477; Dodd, “On the Construction of Contracts: Assent—Construction,” The
Legal Observer 12 (1836): 249, 249–50; Peter Carey, “A Course of Lectures on the Law of Contract:
Lecture I,” The Law Times 4 (1845): 463, 505; Theophilus Parsons, vol. 1 of The Law of Contracts
(Boston, MA, 1860), *399; Theoron Metcalf, Principles of the Law of Contract (New York, 1878), 14;
Sir Frederick Pollock, Principles of Contract (London, 1885), 23–24; Samuel Leake, Elements of the Law
of Contract (London, 1867), 12; William Anson, Principles of the English Law of Contract (London,
1889), 13; Louis Hammon, General Principles of the Law of Contract (St. Paul, MN, 1912), 38.
Novus Ordo: Positivism and Conceptualism 251
from which as many rules of contract law as possible were to be inferred.”386 As a
consequence, the terms of a contract were whatever the parties chose them to be.
Thus, as Joseph Story said:
[E]very person who is not from his peculiar condition under disability is entitled to dispose
of his property as he chooses; and whether his bargains are wise and discreet or profitable or
unprofitable or otherwise are considerations not for courts of justice but for the party himself
to deliberate upon.387
Again, the common lawyers claimed to have found this principle in their sources.
But as we have seen,388 before the rise of conceptualism, the common lawyers had
not been thinking in terms of contract, let alone a will theory of contract. They had
been thinking in terms of writs such as covenant and assumpsit.
As in the case of property, English and American historians have tended to
assume that whatever was new in the common law of contract was a nineteenthcentury
innovation rather than a borrowing. Grant Gilmore said that contract, as
a legal category, was invented by Christopher Columbus Landgell.389 Atiyah
claimed that the idea of will was new. “[T]raditionally,” he said, “a contract was
primarily conceived of as a relationship involving mutual rights and obligations;
there was not necessarily an implication that the relationship was created by a
conscious and deliberate act of will . . . .”390 Horwitz believes that the generic sale
was first recognized in the nineteenth century. Before that time, he thinks,
contract was simply a means of transferring title to specific property. As we
have seen, however, contract was systematically organized as a distinct body of
law by the late scholastics.391 The idea that all contracts are entered into by
consent goes back to the Romans.392 The generic sale was recognized in the
Middle Ages and subjected to papal legislation.393 Again, a source of difficulty is
that their familiarity with Anglo-American law leads historians to assume that
what changed in the common law in the nineteenth century was brand new, and
changed because of nineteenth-century conditions, not because of borrowing
from abroad.
In any event, in the United States, the definition of contract as the will of the
parties touched off a constitutional crisis. American courts have the power to review
the constitutionality of legislation. The American Constitution contains a clause
providing that no one can be deprived of life, liberty, or property without due
process of law—a clause that was construed to protect contract rights. From 1905,
386 Simpson (n. 110), 266.
387 Joseph Story, vol. 1 of Commentaries on Equity Jurisprudence as Administered in England and
America, 14th ed. (Boston, MA, 1918), 337.
388 See p. 210.
389 For example, Grant Gilmore, The Death of Contract (Columbus, OH, 1974).
390 Atiyah (n. 196), 37. 391 See Chapter III, pp. 93–98.
392 See Chapter I, p. 20; Chapter II, pp. 47–48.
393 Accursius, Glossa ordinaria to C. 4.48.2 to veneant (Venice, 1581), X 5.19.6; James Gordley,
“The Origins of Sale: Some Lessons from the Romans,” Tulane Law Review 84 (2010): 1437,
1456–57. See generally Wolfgang Ernst, “Gattungskauf und Lieferungskauf im romischen Recht,”
Zeitschrift der Savigny-Stiftung fur Rechtsgeschichte, Romanistische Abteilung 114 (1997): 303.
252 The Jurists
when the Supreme Court decided Lochner v. New York,394 until 1937, when it
retreated in West Coast Hotel v. Parrish,395 the Court held that the terms on which
parties contract were up to them unless some public interest was at stake. Otherwise,
their right to contract on whatever terms they chose was violated. For example, the
state could require a ten-hour day for railway engineers because safety depended on
their alertness, but it could not do so for bakers, since the wholesomeness of their
bread did not depend upon how long they worked.396
In a famous dissent, Oliver Wendell Holmes objected that “[t]he Fourteenth
Amendment does not enact Mr. Herbert Spencer’s Social Statics.”397 The majority
of the Court would have denied that its decision depended on the theories of
Herbert Spencer or anyone else. It may be that the majority was sympathetic to
Spencer’s theories, or opposed to social legislation, for the same reasons as many
conservatives who were not jurists. But the majority claimed to be deciding the
case according to law. Nineteenth-century contract law had provided the Court
with the minor premise of its argument. The major premise was that the US
Constitution protected contract rights. The minor premise might have been taken
from Joseph Story: whether one’s “bargains are wise and discreet or profitable or
unprofitable or otherwise are considerations not for courts of justice but for the
party himself to deliberate upon.” Judge Peckham, speaking for the Court in
Lochner, affirmed “the general right of an individual to be free in his person and in
his power to contract. . . . ”398
When he stated that principle, Story was not thinking of the problems of
industrialization or capitalism. The principle was that of his European and American
contemporaries, and of the rationalists before them. Like them, he could see no
other source of contractual obligations than the will of the parties, and no limits in
principle to what the parties might will. Neither could the majority of the Supreme
Court.
Indeed, the critics of the Supreme Court themselves could see no source of
contractual obligations other than the will of the parties. Their criticism was
not that some terms of a contract are substantively unfair and that legislation
may be needed to provide fair ones. Rather, it was that the party with stronger
bargaining power could impose his will on the other. Charles McCurdy has pointed
to Richard Ely’s Studies in the Evolution of Industrial Society in 1903 as typical of the
reform literature of the time.399 Assume that people are equal, Ely argued, and
“each one can guard his own interests individually, providing only the hampering
fetters of law should make way for a reign of liberty.” But instead behind the
contract lies “inequality in strength of those who form the contract. . . . Wealth and
poverty, plenty and hunger, nakedness and warm clothing, ignorance and learning,
face each other in contract, and find expression in and through contract.”400 These
394 198 U.S. 45 (1905). 395 300 U.S. 379 (1937).
396 Lochner v. New York, 198 U.S. 45, 57–59 (1905). 397 Lochner (n. 396), 75.
398 Lochner (n. 396), 57.
399 Charles W. McCurdy, “The ‘Liberty of Contract’ Regime in American Law,” in The State and
Freedom of Contract, ed. Harry N. Scheiber (Stanford, CA, 1998), 161 at 162.
400 Richard Ely, Studies in the Evolution of Industrial Society (New York, 1903), 402.
Novus Ordo: Positivism and Conceptualism 253
arguments were tracked by Roscoe Pound in his famous essay in 1909, “Liberty of
Contract.”401 As McCurdy noted, Oliver Wendell Holmes wanted to say in an
opinion that “to suppose that every other force may exercise its compulsion at
will but that the government has no authority to counteract the pressure with its
own is absurd.” He backed down when his fellow justices objected.402 One can
see why they did. According to Ely and Pound, the terms of all contracts are
determined by relative bargaining power, much as the motions of particles are
determined by the vectors of opposing forces. They proposed no standard for
determining which interplay of forces was just or unjust, any more than a moral
standard could apply to the motion of a particle. Consequently, they proposed
no standard as to when the state could justly intervene. It is no wonder that, in
the opinion of the Lochner majority, there was no middle ground between
holding all state intervention to be unconstitutional or allowing the state to
change the terms in any contract where there had been a difference in bargaining
power—which is to say, in almost any contract. The constitutional protection of
contract would be meaningless.
Relief from terms to which one consented Having defined contract in terms of the
will of the parties, the nineteenth-century jurists, like the rationalists,403 believed
that, in principle, the parties could contract on whatever terms they chose. They
then had to explain why the texts that they regarded as authoritative did give relief
from unfair terms, at least under some circumstances. As the previous remarks
suggest, that task was not easy. We will consider one example: relief for an unjust
price.
In France, despite the arguments by Berlier,404 the French Civil Code provided
that the seller can rescind a sale of land when he has received less than five-twelfths
of its value,405 the value to be determined as of the time of sale.406 As we have seen,
Portalis, Cambacérès, and Tronchet explained that the nature of a commutative
contract required equality.407
In Germany, relief for an unjust price had been curtailed in Prussia in 1794. It
was abolished in Bavaria in 1861, in Saxony in 1863, and in commercial matters by
the Allgemeines Handelsgesetzbuch of 1861. Nevertheless, Roman law remained the
401 Roscoe Pound, “Liberty of Contract,” Yale Law Journal 18 (1909): 454.
402 McCurdy (n. 399), 183. 403 See Chapter VIII, p. 189.
404 J. Locré, vol. 12 of La Legislation civile, commerciale et criminelle de la France (Paris,
1826–31), 65.
405 French Civil Code (Code civil ), art. 1674.
406 French Civil Code (Code civil ), art. 1675.
407 Portalis, Discussion du Conseil d’état, Procès-verbal de la séance du 21 nivose an XII (January
12, 1804), in Fenet (n. 178), 14: 46–47. He had made the argument about the nature of a
commutative contract in Portalis, Discussion du Conseil d’état, Procès-verbal de la séance du 30
frimaire an XII (December 22, 1803), in Fenet (n. 178), 14: 43; Cambacérès, Discussion du Conseil
d’état, Procès-verbal de la séance du 30 frimaire an XII (December 22, 1803), in Fenet (n. 178), 14:
43; Tronchet, Discussion du Conseil d’état, Procès-verbal de la séance du 7 pluviose an XII (January
28, 1804), in Fenet (n. 178), 14: 63. See pp. 249–50.
254 The Jurists
chief object of university study, and with it the Roman text on which the doctrine
of laesio enormis had been based.408
Anglo-American courts of equity refused to enforce an “unconscionable” contract.
I have shown elsewhere that nineteenth-century American courts regularly
refused to do so when an exchange was one-sided.409 Although a party denied relief
in equity could still sue for damages at common law, his damages would be awarded
by a jury that might be reluctant to award much on such a contract. In any event,
one historian has found only two reported cases in which a plaintiff who was denied
specific performance still managed to recover damages.410
Nevertheless, many of the nineteenth-century jurists said that, in principle, there
should be no relief for an unjust price. According to Demolombe, value was
“subjective,” “variable,” and “relative.”411 Laurent said that the value of things
was not “absolute”: things worth one amount “from a commercial point of view”
might be worth a different amount to the parties because of the “needs, tastes and
passions.”412 Duranton, Colmet de Santerre, and Marcadé claimed that the relief
supposedly given for an unjust price was really given for some “defect in consent”—
for fraud, mistake, duress, or some sort of moral constraint.413 Glasson thought
that although relief violated the “principle of freedom of contract,” it was an
exception justified on grounds of “humanity.”414
German jurists regarded relief as an exception to the normal rules of contract law.
The basic principle was contained not in the Roman text that gave relief to one who
sold land at less than half its just price, but in another text, mentioned earlier, which
said that “it is permitted by nature for one party to buy for less and another to sell
for more, and thus each is allowed to outwit the other.”415 That text must state the
general principle, they said, because contracts are made by the will of the parties,
and hence relief for an unjust price is contrary to the nature of a contract.
Consequently, that text, according to Windscheid, stated a principle rooted “in
the nature of a contract of sale”:416 according to Vangerow, one “lying in the nature
of things.”417 It must be so, Holzschuer said, because relief for a disparity in price
interfered with “the binding force of contracts.”418 Nevertheless, as in other
situations, once the German jurists declared a principle, they were willing to
make exceptions to it. Windscheid asked: “Are there not limits to the advantage
one contracting party can take of the other?”419 Some jurists pointed to the
408 See Chapter I, p. 35.
409 James Gordley, The Philosophical Origins of Modern Contract Doctrine (Oxford, 1991), 154–58.
410 Ralph A. Newman, “The Renaissance of Good Faith in Contracting in American Law,” Cornell
Law Review 54 (1969): 553, 559.
411 Demolombe (n. 5), 24: } 194. 412 Laurent (n. 6), 15: } 485.
413 Duranton (n. 3), 10: }} 200–01; Demante and Colmet de Santerre (n. 4), 5: } 28 bis; Victor
Marcadé, Explication théorique et pratique du Code Napoléon (Paris, 1859), 357–58.
414 Ernest Glasson, Eléments du droit français (Paris, 1884), 550, 553.
415 D. 19.2.22.3. 416 Windscheid (n. 32), 3: } 396, n. 2.
417 Vangerow (n. 247), 3: } 611, n. 1.
418 Rudolf von Holzschuher, vol. 3 of Theorie und Casuistik des gemeinen Civilrechts (Leipzig,
1864), 729–30.
419 Windscheid (n. 32), 2: } 396, n. 2.
Novus Ordo: Positivism and Conceptualism 255
language of the text that provided a remedy to the seller of land: relief was given
because “it is equitable” (humanum est).420 They disagreed about how broadly to
read the Roman text that provided for relief. Some jurists wished to limit relief to
sellers of land because it was an exception.421 Others wished to extend it to buyers
and to kindred contracts because such relief would be equally equitable.422 They
agreed, however, that to give relief was to make an exception to the normal rules of
contract law.
English and American jurists also thought that, in principle, relief should not be
given because a price was unjust. Some made arguments about value like those of
Demolombe and Laurent. Value, according to Joseph Story, “must be in its nature
fluctuating and will depend upon ten thousand different circumstances. One man
in the disposal of his property may sell it for less than another man would.”423
According to Chitty and Metcalf, there were “no means” for determining whether
an adequate price had been paid.424 William Wentworth Story thought that the
determination would require “a psychological investigation into the motives of the
parties,”425 a view also held by Addison.426 Pollock quoted Hobbes’ attack on
Aristotle’s concept of a just price: “The value of all things contracted for is measured
by the appetite of the contractors, and therefore the just value is that which they be
contented to give.”427
Moreover, to give relief would interfere with the freedom of the parties to
contract on whatever terms they chose. As noted earlier,428 Joseph Story said that
whether a person’s bargains are wise and discreet, or profitable or unprofitable, or
otherwise, are considerations not for courts of justice, but for the party himself to
deliberate upon.429 A similar argument was made, along with the argument about
value, by Chitty, Addison, Metcalf, and William Wentworth Story.430 It was also
advanced in one form or another by Leake, Taylor, Bishop, Smith, Newland, and
Hammon.431
The Anglo-American treatise writers then had to explain why courts of equity
refused to enforce an “unconscionable” contract. As A. W. B. Simpson observed,
420 Vangerow (n. 247), 3: } 611, n. 1 (describing the views of others); Carl von Wächter, vol. 2 of
Pandekten (Leipzig, 1881), } 207, 472–73.
421 Holzschuher (n. 418), 3: 729–30; Vangerow (n. 247), 3: } 611; Wächter (n. 420), 2: } 207.
Some wanted to limit relief to sellers on the grounds that sellers who accepted a low price were more
like to have been needy than buyers who paid a high one: Puchta (n. 42), } 364; Keller (n. 188), 333.
422 Johann Seuffert, vol. 2 of Praktisches Pandektenrecht (Wurzburg, 1852), } 272.
423 Story (n. 387), 1: 339.
424 Joseph Chitty, A Practical Treatise on the Law of Contracts Not Under Seal and upon the Usual
Defences to Actions Thereon (London, 1826), 7; Metcalf (n. 385), 163.
425 Story (n. 109), 435.
426 Charles Greenstreet Addison, A Treatise on the Law of Contracts (London, 1911), 12.
427 Pollock (n. 385), 172, quoting Thomas Hobbes, Leviathan I.xv. 102.
428 See p. 252. 429 Story (n. 387), 1: 337.
430 Chitty (n. 424), 7; Addison (n. 426), 12; Metcalf (n. 385), 163; Story (n. 109), 435.
431 Leake (n. 385), 311–12; William Taylor, The Laws of England and Scotland Relating to Contracts
(London, 1849), 17; Joel Prentiss Bishop, Commentaries on the Law of Contracts (Chicago, IL, 1907),
18; John William Smith, The Law of Contracts (Philadelphia, PA, 1847), 96; John Newland, Contracts
within the Jurisdiction of Courts of Equity (1821), 357; Hammon (n. 385), 692.
256 The Jurists
they did so by inventing a new rationale. They claimed that a disparity in price
matters because it is considered as “evidence of fraud, not as an independent
substantive ground, and not as constituting hardship.”432 If the courts of equity
had acted in accordance with this rationale, they would have stopped giving relief
almost entirely. When a fraud is committed, there will often be a disparity in price,
but it will rarely be the only evidence of fraud or the best evidence. The victim of
fraud in any normal sense will know what the other party did to defraud him.
A court concerned only about fraud would hear the testimony of both parties, and
consider the disparity in price in deciding who to believe. As I have shown
elsewhere, most often, when courts of equity found a contract to be unconscionable,
there was no allegation of fraud in the ordinary sense. No one claimed that a
fact had been concealed or misrepresented. Yet the courts gave relief anyway.433
Indeed, had it been otherwise, the courts would not have needed a doctrine of
unconscionability, but only one that gave relief for fraud.
In support of their principle, the Anglo-American treatise writers cited a
common law rule that a contract was enforceable only if it had consideration and
that a court would not examine the adequacy of consideration. Most of the
statements quoted earlier about the indeterminacy of a fair price and the interference
with parties’ freedom were made in discussing this rule. Yet, as Simpson
observed, the rule was made by judges who were not dealing with hard bargains.434
As we have seen, the judges found consideration not only in contracts of exchange,
but also in gratuitous promises such as gifts to prospective sons-in-law, and
gratuitous loans and bailments.435 They found consideration in promises that
involved multiple parties, in which the transaction was not one-sided when the
role of all of the parties is taken into account. In these cases, to require consideration
to be adequate would have defeated the very purpose that the judges were
trying to achieve, which was to enforce a promise in which consideration was not
recompense. Thus it came to be said, in a famous passage from Sturlyn v. Albany,436
that “when a thing is done, be it never so small, this is a sufficient consideration to
ground an action.” In Sturlyn, the plaintiff had leased to a third party, who had
granted his estate to the defendant. The plaintiff asked the defendant to pay the
rent, which he promised to do if the plaintiff would show him a deed proving that
the rent was due. The showing of the deed was said to be consideration for the
paying of the rent. As Simpson noted, the case has nothing to do with the
enforcement of hard bargains.437 As I have shown elsewhere, neither did practically
all of the cases in which American courts invoked the rule against examining the
adequacy of consideration. In some cases, the price had been set by a procedure
designed to prevent questions of unfairness from arising. Some involved aleatory
contracts, in which the price does not seem unfair considering the risk involved. In
432 A. W. B. Simpson, “The Horwitz Thesis and the History of Contracts,” University of Chicago
Law Review 46 (1979): 533, 569.
433 Gordley (n. 409), 154–57. 434 Simpson (n. 107), 445–49.
435 Simpson (n. 107), 416–52. 436 Cro. Eliz. 67, 78 Eng. Rep. 327 (Q.B. 1587).
437 Simpson (n. 107), 447.
Novus Ordo: Positivism and Conceptualism 257
some, one party received a benefit de facto, although the rights that he purchased
were legally invalid. Some involved gifts, for example made by a dying man to those
who had cared for him in his illness, or by a philanthropist to a college that would
name a fund after her. Some involved reliance, as when one person guaranteed
another’s credit. As noted, some involved three-party situations in which the
consideration was not inadequate given the role of the third party.438 The enforcement
of hard bargains has been no more than the occasional consequence of a rule
that the courts used to make more promises enforceable.
In the twentieth century, relief has become more accepted. In France, special
statutes have been enacted that give a remedy to those who pay an excessive amount
for fertilizer, seeds, and fodder,439 or for a rescue at sea,440 or after an aviation
accident,441 or to those who receive too little when selling artistic or literary
property.442 Sometimes, courts have given relief despite the limitations of the
Civil Code by declaring that the contract was procured by fraud, duress, or mistake,
even though the victim had neither been told a lie nor threatened, and his only
mistake concerned the value of what he bought or sold.443
The first draft of the German Civil Code of 1900 abolished relief for a one-sided
bargain entirely. But in the final version, } 138(2) gave a remedy whenever one
party obtained a “disproportionate advantage” by exploiting the difficulties, indiscretion,
or inexperience of the other party. Since 1936, German courts have been
willing to give relief for a violation of “good morals” (} 138(1)) if the contract is
sufficiently one-sided, even if such a weakness was not exploited.444
In the United States, } 2–203 of the Uniform Commercial Code allows a court
to give relief in law or equity when a contract to sell goods is severely unfair.
Section 208 of the Second Restatement of Contracts provides for similar relief in other
types of contract. American courts have held the price to be unconscionable when
home appliances were sold for over three times their usual retail price,445 and when
homeowners were charged extravagant amounts for windows and side walls.446
Although English courts are more conservative,447 they have given relief, for
example, when a woman was not compensated for signing a release of her interests
in her house.448 The judge quoted with favor the requirements set down in a
nineteenth-century case: “What has to be considered is, first, whether the plaintiff
438 Gordley (n. 409), 151–54. 439 Law of 8 July 1907.
440 Law of 29 April 1916, art. 7. 441 Law of 31 May 1925, art. 57.
442 Law of 11 March 1957.
443 Cass. req., January 27, 1919, S. 1920. I. 198; Cass. civ., November 29, 1968, Gaz. Pal. 1969.
J. 63; Cour d’appel, Douai, June 2, 1930, Jurisp. de la Cour d’appel de Douai 1930.183; Cour d’appel,
Paris, January 22, 1953, Sem. jur. 1953. II. 7435.
444 Reichsgericht, March 13, 1936, ERGZ 150, 1. Although, according to the courts, paragraph one
will be applied when there is not only a “disproportionate advantage,” but also a “reproachable intent”
on the part of the advantaged party, where the advantage is disproportionate, the intent will be
presumed: Hein Kötz, Vertragsrecht (Tübingen, 2009), no. 229.
445 Jones v. Star Credit Corp., 298 N.Y.S. 2d 264 (Sup. Ct 1969); Frostifresh v. Reynoso, 274 N.Y.
S. 2d 757 (Sup. Ct 1966), rev’d as to damages, 281 N.Y.S. 2d 964 (App. 1967).
446 American Home Improvement Co. v. MacIver, 201 A.2d 886 (N.H., 1964).
447 Richard Stone, The Modern Law of Contract, 7th ed. (London, 2008), } 13.9.
448 Cresswell v. Potter [1978] 1 WLR 255 (Ch.). See Chitty (n. 424), } 15-002.
258 The Jurists
is poor and ignorant; second, whether the sale was at a considerable undervalue; and
third, whether the vendor had independent advice.”449
Few jurists today would claim that to give relief when an exchange is one-sided
violates the basic principles of contract law. On the other hand, there is no generally
accepted way of explaining relief.450
A frequent explanation is one that we saw earlier:451 that the parties are in an
“unequal bargaining position.”452 Those who favor this explanation owe more than
they admit to the will theories. They account for relief not by explaining how the
terms of a contract could be unjust, but by suggesting that one person is imposing
his will on another unless the two parties have equivalent bargaining strength. Yet
parties very rarely have equal bargaining strength in the sense meant by these
authors. One cannot give relief every time such parties contract. Even if one
could, it would impossible to tell what terms they would have agreed upon had
their strength been equal. In any event, courts give relief only when the price
deviates from the one that would be set in a competitive market. Yet that price has
nothing to do with bargaining strength: in a competitive market, the parties do not
bargain.
These points have been made by members of the law and economics movement.
Again, they have their own explanation why relief is given, which we will consider
later.453
Consent The nineteenth-century conceptualists said that contracts are formed
by will or consent. Like the rationalists, however, what they said about consent was
negative. Consent was private and self-regarding. A party was free to choose as he
wished, consulting only his own expectations and desires. That definition raised a
problem. Suppose a contract defeats a party’s wants and desires. Did he consent? It
seems odd to say that he consented to something he did not want. But if a party can
escape whenever his wants and expectations are defeated, contracts would not be
binding. Here, again, jurists did not find—and have not yet found—a solution on
which they can agree.
449 Fry v. Lane (1888) 40 Ch.D. 312.
450 Charles Fried endorses “the liberal principle that the free arrangements of rational persons
should be respected”: Charles Fried, Contract as Promise: A Theory of Contractual Obligation (Cambridge,
MA, 1981), 35. Yet even he concedes that “some bargains, though they meet all the tests I have
set out so far, seem just too hard to enforce”: Fried, Contract as Promise, 109. His explanation is that a
random event has caused the breakdown of what he calls a “functioning social system,” or “political
system of social redistribution,” within which exchange normally takes place: Fried, Contract as
Promise, 109–10. He seems to be groping toward the idea of a system of commutative and distributive
justice without getting there.
451 See pp. 253–54.
452 Bénabent (n. 295), nos. 165, 173; Lawrence Koffman and Elizabeth Macdonald, The Law of
Contract (London: 1992), 3, 5; W. David Slawson, Binding Promises: The Late Twentieth Century
Reformation of Contract Law (Princeton, NJ, 1996), 23 at 38. See Stefanie Rollof in Peter Westrmann,
Erman Bűrgerliches Gesetbuch Handkommentar, 12th ed. (Cologne, 2008), }} 305–10, no. 1.
453 See Chapter X, pp. 307–08.
Novus Ordo: Positivism and Conceptualism 259
Article 1110 of the French Civil Code provided that “[e]rror is only a ground for
the nullity of a contract when it falls on the substance itself of the object of the
contract.”454 This article paraphrased Pothier,455 who was paraphrasing Pufendorf,
who was drawing either on the late scholastics or the Roman text that said that
there was no consent if the parties had made an error in substantia. As we have seen,
the Romans were impressing a philosophical word into service with no distinct idea
of what it meant.456 The late scholastics had given the text an Aristotelian
meaning.457 Things with the same substantial form or substance were the same
kind of thing. A person who did not know the substance of the performance to
which he consented literally did not know to what he was consenting.
The explanation of the late scholastics made sense in an Aristotelian world in
which different kinds of things differ in nature, substance, or essence. It is hard to
say what it could have meant to the nineteenth-century jurists. Nevertheless, some
of them repeated it. Those who did not often went to one of the extremes just
described. Some said that a party was not bound if the contract did defeat his wants
and expectations, or, to put it another way, if he would not have contracted had he
known the truth. Others said that, in principle, a mistake was irrelevant even if it
did defeat a party’s hopes and expectations.
Sticking with tradition, some French jurists said that an error in “substance” is
one that concerns the nature or species of an object. Colmet de Santerre said that it
must concern a quality absent which its “nature” would be different.458 Demolombe
said that it must concern the “principal” or “characteristic” quality of a thing
that individualizes it, makes it proper to a given use, or gives it is name.459 Aubry
and Rau said that the error must concern “the properties which, taken together,
determine [its] specific nature and distinguish it according to common notions
from things of every other species.”460 Some French jurists take this position
today.461
454 Leading French jurists thought that this article applied only to errors regarding a property of an
object: e.g. Demante and Colmet de Santerre (n. 4), 5: }} 14 bis, 16 bis, 1; 27 bis, 1–3 (written by
Colmet de Santerre); Demolombe (n. 5), 24: }} 88, 124–27, 164, 171, 181–84; Laurent (n. 6), 15:
}} 450–53, 458, 484. Such an error rendered consent “impure” in contrast to an error in physical
identity, in which case there was a complete absence of consent. In the former case, an action had to be
brought to avoid the contract. In the latter, it was void ab initio. The Code did not say that an error in
substance affected the “purity” of consent, and did not mention any other kind of error. The drafters
paraphrased Pothier. They did provide that, in the case of error in substance, as in the case of fraud or
duress, an action had to be brought to rescind the contract. They may have done so because they were
following a Roman text that said that, in a stipulatio, a promise induced by mistake, fraud, or duress is
not simply void, but gives rise to an exceptio. Or they may have done so because the requirement makes
procedural sense, or because they were working in haste, or because they wanted to keep matters
simple. It is not likely that they did so because they held a new view of the effect of consent that they
never so much as mentioned.
455 Robert Pothier, “Traité des obligations,” } 18, in vol. 2 of Oeuvres de Pothier, ed. M. Bugnet,
2nd ed. (Paris, 1861), 1.
456 See Chapter II, p. 94. 457 See Chapter II, p. 94.
458 Demante and Colmet de Santerre (n. 4), 5: } 16 bis ii (written by Colmet de Santerre).
459 Demolombe (n. 5), 24: } 89.
460 Aubry and Rau (n. 9), 4: } 343 bis. 461 Raymond (n. 237), no. 238.
260 The Jurists
Borrowing the phrase, nineteenth-century English and American judges said that
a contract is void for an error in “substance.”462 Some English courts and commentators
still say that relief will be given if, because of the mistake, a performance is
“essentially different” than the one contemplated.463 It is not surprising that most
contemporary jurists reject that solution.464
Seeing the difficulties, Laurent claimed that an error would vitiate consent if the
parties would not have contracted had they known the truth. Some French jurists
take that position today.465 The error must concern a quality that the parties had
principally in view466—one that led them to contract467 and which was the
“determining” motive.468 A similar position was taken by the nineteenth-century
German jurist Ferdinand Regelsberger469 and by those American jurists who said
that relief should be given if a mistake was “material.”470 At the turn of the
twentieth century, the Italian jurist Fubini pointed out the trouble with it: “If a
party could always avoid a contract because of a quality of importance to him alone,
agreements will be subject to grave uncertainty.”471 Anyone who wants to escape
from a contract must have made a mistake so important that otherwise he would
not have contracted.
462 In Sherwood v. Walker, 33 N.W. 919, 923–24 (Mich. 1887), the court said that a contract was
void because the error was one in “substance” rather than “in some quality or accident.” In England,
Lord Blackburn said, in dicta, that English law was the same as civil law—relief would be given for an
error in “substance”: Kennedy v. Panama Royal Mail Co. (1867) L.R. 2, Q.B. 580, 588. This language
was quoted favorably by Lord Warrington and Lord Atkin in Bell v. Lever Brothers, Ltd. [1932]
A.C. 161, 207, 219. Lord Atkin added, in dicta, that a contract is void if the mistake concerned a
quality that made the object “essentially different”: Bell, at 218. Lord Thankerton said the mistake
must concern a quality that is “essential”: Bell, at 235.
463 Associated Japanese Bank Ltd. v. Credit du Nord S.A. [1988] 3 All E.R. 902, 913; Bell v. Lever
Bros. [1932] A.C. 161, 218 (claiming nevertheless that relief would be denied if a work believed to be
by an old master were discovered to be a modern copy, at 224); Chitty (n. 424), vol. 1 in General
Principles, 30th ed. (London, 2008), } 5–051; Michael H. Whincup, Contract Law and Practice: The
English System with Scottish, Commonwealth and Continental Comparisons, 5th ed. (Alphen an den Rijn,
Netherlands, 2006), } 10.13.
464 Jacques Flour, Jean-Luc Aubert, and Éric Savaux, Les obligations 1. L’acte juridique, 14th ed.
(Paris, 2010), nos. 196–97; Mazeaud, Mazeaud, Mazeaud, and Chabas (n. 307), Leçons de droit civil
II. Obligations: théorie générale no. 166.
465 Flour, Aubert, and Savaux (n. 464), nos. 196–97; Philippe Malaurie and Laurent Aynès, Cours
de droit civil 6 Les obligations, 10th ed. (Paris 1999), no. 403; Bénabent (n. 295), no. 82.
466 Ambroise Colin and Henri Capitant, vol. 2 of Cours élémentaire de droit civil français, 7th ed.
(1932), no. 38; Georges Ripert, Jean Boulanger, and Marcel Planiol, vol. 2 of Traité élémentaire de
Planiol, 4th ed. (1952), no. 199.
467 Colin and Capitant (n. 466), no. 38.
468 Colin and Capitant (n. 466), no. 40; Ripert, Boulanger, and Planiol (n. 466), no. 199; Jacques
Mestre, “Obligations et Contrats Speciaux. 1. Obligations en général,” Révue trimestrielle du droit civil
88 (1989): 736, 739.
469 Ferdinand Regelsberger, vol. 1 of Pandekten (Leipzig, 1893), } 142.
470 For example, Story (n. 387), 152; Clarence D. Ashley, The Law of Contracts (Boston, MA,
1911); Clarence D. Ashley, “Mutual Assent in Contract,” Columbia Law Review 3 (1903): 71, 72. The
younger Story and Bishop explained that a mistake was material if, but for the mistake, the parties
would not have contracted: William Wentworth Story, The Law of Contracts Not Under Seal (Boston,
MA, 1851), 405, 419; Bishop (n. 431), 297–98.
471 Fubini, “Contribution à l’étude de la théorie de l’erreur sur la substance et sur les qualités
substantielles,” Revue trimestrielle de droit civil 1 (1902): 301, 309–11.
Novus Ordo: Positivism and Conceptualism 261
Led by Savigny, German jurists went in the opposite direction. He claimed that
an error in a party’s hopes and expectations could not vitiate consent. He argued
that if the actual will of a party did not correspond to what he had declared his will
to be, there was no genuine declaration of will and consequently no contract. Relief
is given for that reason, he claimed, and not because of a mistake that the party
made in deciding whether to contract.472 In order for this solution to work, Savigny
recognized that a “sharp distinction” must be drawn “between the will itself and
that which precedes it in the soul of the person who wills.”473 A party might decide
to buy a certain object for various reasons, but his will was his decision to buy that
object. “The will itself,” Savigny said, “is an independent event, and it alone is
important for the formation of legal relations.” One cannot “link” this event with
the process of decision as though the process were part of its “essence.”474
This solution, or a variant of it, was generally accepted by nineteenth-century
German jurists.475 It passed into } 119(1) of the German Civil Code, which
provides that a Rechtsgeschäft is void when a party is in error as to the content of
his declaration of will.
Nevertheless, some, including Windscheid, noted that Savigny’s solution did not
work in the cases put by Ulpian that were described earlier: copper was sold for
gold, lead for silver, or vinegar for wine.476 If a party decided to buy a certain ring or
a certain cask and declared his will to do so, his declaration did correspond to his
will, as Savigny had defined it. He would not have made that decision if he had
known that the ring was made of copper or lead, or that the cask contained vinegar.
According to Savigny, however, the will of the party was his final decision expressed
in his declaration of will, not the considerations on which it had been based.
Savigny tried to resolve the problem by saying that some properties of a thing were
bound up with its identity. These were the properties that made it a thing of a
certain kind, “according to the concepts dominant in actual commerce.” If a party
declared his will to buy a certain thing falsely believing that it possessed these
properties, then his will did not respond to his declaration.477
In England, that solution was borrowed by Pollock, who said that relief should
be given for a mistake in an “attribute” of an object that constituted “a difference in
472 Savigny (n. 27), 3: } 135. 473 Savigny (n. 27), 3: } 114.
474 Savigny (n. 27), 3: } 114; similarly Puchta (n. 42), 77.
475 Puchta (n. 42), 77; Windscheid (n. 32), 1: } 76. Among the variants were the theories of
Hölder, which asked whether the will of one contacting party corresponded to that of the other:
Eduard Hölder, “Die Lehre vom error,” Kritische Vierteljahresschrift für Gesetzgebung und Rechtswissenschaft,
14 (1872): 561, 568, 574; Zitelmann, who asked whether the will of the party corresponded
to the legal result that the law was now asked to bring about: Ernst Zitelmann, Irrtum und
Rechtsgeschäft (Leipzig, 1879), 341–42; and Brinz, who made the bizarre claim that a contract was
void when a party indicated that he wanted one thing, but willed another, although the reason was not
the discrepancy itself, as Savigny had thought, but that such a party was unaware of what he was doing
and so lacked the will to act: Aloys Brinz and Phillip Lotmar, vol. 4 of Lehrbuch der Pandekten (Berlin,
1894), } 525. In all of these theories, relief was granted, not because of a mistake that led a party to
decide as he did but because his decision did not correspond to something else: the will of the other
party, the legal result to be brought about, or the declaration of what he willed.
476 D. 18.1.9. See Chapter I, p. 11.
477 Savigny (n. 27), 3: } 137.
262 The Jurists
kind” according to “the course of dealing.”478 Like Savigny, he said that, in such a
case, no contract had been formed because a party’s declared will differed from his
true will.479 A similar approach has been taken in recent times by Werner Flume
and Sir Guenter Treitel. Flume rejected the idea that a person who points to a
ring or says “this ring” is merely indicating “a ‘something’ defined by space and
time . . . .” Rather, he has a picture (Vorstellung) of the object and “grasps it as having
a certain composition.”480 Treitel believed that “[s]ome particular quality may be so
important to [the parties] that they actually use it to identify the thing.”481
At this point, as Fubini noted, the jurists had come full circle. This solution is
like that of Aubry and Rau, who said that a mistake must concern a property that
gives a thing its “species” or “specific nature” according to “common notions.”482 It
is as hard to see why “actual commerce” would be any more likely than “common
notions” to be concerned with which differences in properties constitute difference
in species or kind rather than in quality or degree. Some nineteenth-century
German jurists objected that Savigny’s solution contradicted his own principles.483
If the significance of a characteristic to a party did not matter, its significance
according to “commercially dominant concepts” should not matter either. Windscheid
accepted Savigny’s solution despite the difficulty because, he admitted, he
could not think of anything better.484
A version of it passed into } 119(2) of the German Civil Code, which provides:
“A mistake over those characteristics of a person or a thing that are regarded as
essential in commerce counts as an error in the declaration.” Modern German
scholars have been unsuccessful in explaining what that might mean. It is not
helpful to be told that such a characteristic includes “all factors that contribute to
value,”485 unless one actually proposed giving relief for any mistake as to a factor
that affects value. It is not helpful to be told that error in such a characteristic is a
type of error in motive that invalidates the contract by way of exception, unless one
is told why the exception is made and how widely it extends.486
Some jurists concluded that the problem was insoluble. If the will of the parties
had no intelligible meaning, the contracts were not formed by the will of the
478 Pollock (n. 385), 436. 479 Pollock (n. 385), 392–94.
480 Werner Flume, Allgemeiner Teil des Bürgerlichen Gesetzbuchs 2 Das Rechtsgeschäft, 2nd ed.
(1975), 477. His position was adopted by Medicus: Dieter Medicus, Allgemeiner Teil des BGB Ein
Lehrbuch, 7th ed. (Heidelberg, 1997), no. 770.
481 Guenter Treitel, The Law of Contract, 10th ed. (London, 1999), 267 (emphasis original).
482 Fubini (n. 471), 309–10.
483 Ernst Bekker, “Zur Lehre von der Willenserklärung: Einfluss von Zwang und Irrthum” [Review
of A. Schliemann, Die Lehre vom Zwange (Rostock, 1861)], Kritische Vierteljahresschrift für Gesetzgebung
und Rechtswissenschaft 3 (1861): 180, 188–89; Achill Renaud, “Zur Lehre von Einflusse des
Irrthums in der Sache auf die Gültigkeit der Kaufverträge mit Rücksicht auf v. Savigny: Der error in
substantia,” Archiv für die Civilistische Praxis 28 (1846): 247, 247–54; M. Hesse, “Ein Revision der
Lehre von Irrthum,” Jherings Jahrbücher für die Dogmatik des heutigen römischen und deutschen
Privatrechts 15 (1877): 62, 101.
484 Windscheid (n. 32), 1: } 76a.
485 Hans Brox, Allgemeiner Teil des Bűrgerlichen Gesetzbuchs, 11th ed. (Cologne, 1987), no. 372
(“alle wertbildende Factoren”).
486 Medicus (n. 480), no. 744; Heinrich Palm in Peter Westrmann, Erman Bűrgerliches Gesetbuch
Handkommentar, 12th ed. (Cologne, 2008), } 119, no. 41.
Novus Ordo: Positivism and Conceptualism 263
parties. Oliver Wendell Holmes in the United States and Siegmund Schlossmann
in Germany developed “objective” theories in which contract was defined as a set of
legal consequences that the law assigned to what the parties said, whatever they may
have willed. But they, too, found it difficult to explain why the law gave relief for
mistake.
According to Holmes, a mistake prevented the formation of a contract if the
parties contradicted themselves outwardly. For example, if one party said that he
would buy “this barrel of mackerel” and the barrel contained salt, the language was
contradictory. No object was both “this barrel” and “of mackerel.” Consequently,
no contract was formed.487 Holmes recognized the difficulty. A taciturn party who
merely said that he wanted “this barrel” would be bound, while a loquacious one
who described what he wanted in more detail would be released for the most
insignificant discrepancy between the goods and his description. Holmes responded,
in a famous phrase that he used more than once: “The distinctions of
the law are founded on experience, not on logic.”488 To put it another way, Holmes
could not see how his own solution could be logically defended.
Schlossmann thought that relief should depend on whether it is “fair and
equitable to grant protection against the legal consequences of his transaction to
a person who was in error as to the characteristics of an object.”489 “[T]he person in
error is human, and therefore it is equitable” to help him, “insofar as it can be done
without serious damage to more or less equally important interests of the other
party.”490 This statement is like that of a modern French jurist. The judge must
maintain “an equilibrium between the protection of the party who was deceived
and a certain juridical security assured to the other party.”491 These statements
seem to mean only that the protection of each party is important and that their
needs for protection must somehow be accommodated.
Twentieth-century jurists have improvised. Some have said that both parties
must have been mistaken about a characteristic that they knew to be important.492
They do not explain why the mistake must be mutual if mistake vitiates one party’s
consent and a contract requires the consent of each party. Moreover, as French
critics have noted, relief cannot be given because of what both parties happened to
know. A sale of land cannot be avoided if both parties knew that the buyer intended
to pay for it with money that he inherited, and in fact he inherited nothing.493
Others have tried to steer a path between the two extremes just described: of
claiming that a party is not bound when he did not receive what he wanted or
expected, or saying that his wants and expectations do not matter. It has been hard
487 Holmes (n. 114), 310–11. 488 Holmes (n. 114), 312.
489 Siegmund Schlossmann, Irrthum (Jena, 1903), 46.
490 Schlossmann (n. 489), 47. 491 Bénabent (n. 295), no. 75.
492 Raymond (n. 237), no. 236; Larroumet (n. 366), 3: no. 338. Edwin Peel, The Law of Contract,
13th ed. (London, 2011), 8-001; Restatement (First) of Contracts } 503 (1932). Allan Farnsworth notes
that while that was the traditional view, courts have given relief for unilateral mistake, and not only
when a mechanical error was made in compiling a bid, although that is the most frequent case: E. Allan
Farnsworth, Contracts, 3d ed. (St. Paul, MN, 1999), 631, 635.
493 Mazeaud, Mazeaud, Mazeaud, and Chabas (n. 307), no. 166; Paul Esmein, Marcel Planiol, and
Georges Ripert, Traité pratique de droit civil français 6 Obligations (Paris, 1952), no. 177.
264 The Jurists
to find such a middle path. To do so, jurists have tried to identify some state of
mind that influenced a party, but is not simply what he wanted or expected. Some
jurists asked whether a party assumed the risk that he would be mistaken. Others
have asked whether his mistake concerned a fundamental or basic assumption.
Arthur Corbin popularized the first approach, which was incorporated into the
Second Restatement:494 a party will not receive relief if he assumed the risk that the
facts are not as he hoped. In the words of the Second Restatement, a party bears a risk
when “he is aware . . . that he has only limited knowledge . . . but treats his limited
knowledge as sufficient.” P. S. Atiyah in England and Paul Kramer in Germany
have taken a similar approach.495 The trouble is that a party cannot be bound
simply because he went ahead, realizing that his knowledge is limited. Anyone
would do so unless he thought himself omniscient.
In the United States, Samuel Williston borrowed a solution that German jurists
had developed to resolve a different problem: when relief is given for changed and
unforeseen circumstances. Most of the Pandektists denied that relief should be
given. Windscheid argued that it should on the grounds that a contract is subject to
an “undeveloped condition” (unentwickelte Voraussetzung) that circumstances do
not change.496 His contemporaries found that phrase meaningless: a party either
willed to make his contract subject to a condition or he did not. The doctrine was
not included in the German Civil Code, although Windscheid warned that if it was
thrown out the front door, it would come back through the window. Indeed it did.
The financial upheavals of the First World War and the great German inflation led
the courts to hold that relief could be given for “failure of the basis of the
transaction” (Wegfall der Geschäftsgrundlage), although no one knew quite what it
meant.497
Borrowing the idea, Williston said that a mistake vitiates consent if it goes to a
“fundamental assumption”498 of the parties. A version of this approach passed into
the First499 and Second Restatements of Contracts. According to the Second Restatement,
to invalidate a contract, a mistake must concern “a basic assumption on
which the contract was made.”500 The Second Restatement adopted the same
formulation to describe when relief is given for changed circumstances.501
A number of Anglo-American scholars have agreed.502
It has been as hard for the Americans as for the Germans to explain what is meant
by a “basic assumption.” This phrase could refer to the importance of a belief to the
494 Arthur Corbin, vol. 3 of Contacts (St. Paul, MN, 1963), } 598.
495 P. S. Atiyah, An Introduction to the Law of Contract, 5th ed. (Oxford, 1995), 227; Ernst
A. Kramer, in Münchener Kommentar zum Bürgerlichen Gesetzbuch, ed. Franz Jürgen Säcker, 4th ed.
(Munich, 2001) to } 119, no. 114.
496 Windscheid (n. 32), 1: 75–78.
497 Codified in 2002 at } 313 German Civil Code (Bürgerlichesgesetzbuch).
498 Samuel Williston and George Thompson, A Treatise on the Law of Contracts (1937), } 1544.
499 Restatement (First) of Contracts } 502 (1932).
500 Restatement (Second) of Contracts } 152(1) (1981).
501 Restatement (Second) of Contracts } 261.
502 Melvin A. Eisenberg, “Mistake in Contract Law,” California Law Review 91 (2003): 1573,
1624; Peel (n. 492), 8-001; Chitty (n. 424), 1 General Principles 5-017.
Novus Ordo: Positivism and Conceptualism 265
parties.503 But then a party would not be bound by a contract when he was
mistaken about something sufficiently important to him. As we have seen, that
solution does not explain the binding force of contracts. Alternatively, a basic
assumption could refer to an event in the mind of a party: he took something for
granted and acted on it. Eisenberg and Farnsworth use the example of a person who
takes it for granted that the floor exists and will support him.504 But it is hard to see
why a person should obtain relief because he took something for granted. Many
losing contracts are made by people who did not question their assumptions about
the durability of the market for mainframe computers, or the capacities of the
equipment that they bought, or the tastes of the friends for whom they purchased
presents. Moreover, the propensity to question one’s assumptions varies from one
person to the next. It would be odd to deny relief to the timorous and yet grant it to
the sanguine.
Unjust enrichment
As described earlier, although common law jurisdictions borrowed much else from
Continental jurists in the nineteenth century, the law of unjust enrichment was an
exception. Common law jurists had little to say on the subject until the twentieth
century.505 Continental writers, in contrast, had recognized unjust enrichment as
an independent body of law since the time of the late scholastics. Nineteenthcentury
French and German writers put a good deal of thought into the subject.
Their problem is that, as we have seen, the late scholastics had founded it, like the
law of contract and tort, on the principle of commutative justice, taken from
Aristotle and Aquinas, that no one should be enriched at the expense of another.506
Grotius based the law of unjust enrichment on the same principle, although he did
not mention commutative justice.507 As noted earlier, however, the nineteenthcentury
jurists had difficulty with the idea of giving relief for an unjust price. They
did not believe that, in principle, exchange required equality, nor did they believe in
a theory of commutative justice. Why, then, should the mere fact that one party
was enriched at another’s expense be a ground for relief?
503 Restatement (Second) of Contracts } 152 comm. b (1981).
504 Eisenberg (n. 502), 1622; Farnsworth (n. 492), 624.
505 In 1937, the American Law Institute published a Restatement of Restitution, although John
Dawson noted that it merely “patched the parts together and gave the subject a name”: Dawson (n.
61), 564–65. The first comprehensive American treatise was only published by George Palmer in
1978: George E. Palmer, The Law of Restitution (Boston, 1978). In that year, Lord Diplock insisted
emphatically that “there is no general doctrine of unjust enrichment recognized in English law”; there
were merely “specific remedies in particular cases”: Orakpo v. Manson Investments Ltd. [1978] A.C. 95,
104 (H.L.). Nevertheless, Sir Robert Goff and Gareth Jones had already published a treatise on the
English law of restitution, which was followed in 1985 by a still more systematic work by Peter Birks:
Peter Birks, An Introduction to the Law of Restitution (Oxford, 1985). Perhaps impressed at the degree
of order that these treatise writers had found in the decided cases, English courts have now recognized a
general principle of liability for unjustified enrichment: Lipkin Gorman v. Karpnale Ltd. [1991] 2 A.
C. 548. But skepticism has continued: see Chitty (n. 424), 1 General Principles, 30th ed. (London,
2008), } 29–011.
506 See Chapter III, pp. 85–86. 507 See Chapter V, 134–35.
266 The Jurists
As we have seen, in France, the idea of equality in exchange was alive in the
minds of the drafters of the Civil Code and in the work of the early treatise writers.
So it was with unjust enrichment. The French Civil Code did not speak of a
principle of unjust enrichment. It mentioned two cases in which Roman law had
given an action: when money had been paid by mistake (article 1376), and when
benefits had been conferred on another without his own approval (article 1372).
Here, the drafters followed Domat, who had classified these cases as obligations
“that arise without an agreement,” without mentioning unjust enrichment.508 The
reason was not that Domat or the drafters were breaking with the natural law
tradition. As we have seen,509 Domat was trying to classify Roman rules for
pedagogical reasons in a way that facilitated learning, not in a way that corresponded
to the principles on which they were based. The drafters paraphrased him.
According to Toullier, the two cases mentioned by the Code were instances of a
broader principle: “the legislator commands what it just,” and does so “because it is
just that no one enrich himself at the expense of the other.”510 The Code, following
Justinian, had classified these cases as “quasi-contracts,” but it had given a bad
definition of “quasi-contract.” According to article 1371, “quasi-contracts are
purely voluntary human acts which result in an obligation to a third party or the
other party.” The correct rule, according to Toullier, was that “[a]ny licit act of a
man which enriches one person by a detriment to another obligates the one who
this act enriches to return the thing or the amount by which he was enriched.”511
That principle explained the protection of property: one could reclaim it even from
a party who had innocently come into its possession. It “completed” the Code,
since the same principle explained liability for harm caused tortiously under article
1382. To that extent, the principles of the late scholastics and iusnaturalists passed
into the first treatise written on the French Civil Code.
With an exception soon to be noted, an explanation of the Code in terms of a
broader principle disappeared from the treatises of mainline nineteenth-century
jurists. Laurent conceded that the two situations mentioned in the Code were based
on “equity,”512 but he said that these were the only two situations in French law in
which the plaintiff could recover:
[O]ne cannot have a quasi-contract without law because the obligations that result are found
in the law. . . . One invokes equity in vain: equity is a stranger to the law in the sense that by
itself, it neither creates a right nor an obligation.513
Larombière said of the two situations mentioned in the Code that “it is not
necessary to seek their source elsewhere in natural principles of good faith, justice
and equity which forbid one to be enriched at the expense of another.”514
Nevertheless, he said, given the definition of quasi-contract in the Code, which
508 Domat (n. 373), liv. II, tits. iv, vii. 509 See Chapter VI, p. 143.
510 Charles Bonaventure Marie Toullier, vol. 11 of Le droit civil français suivant l’ordre du Code, 5th
ed. (Paris, 1842), no. 15.
511 Toullier (n. 510), no. 20. 512 Laurent (n. 6), 20: no. 308.
513 Laurent (n. 6), 20: no. 309. 514 Larombière (n. 265), 5: art. 1371, no. 3.
Novus Ordo: Positivism and Conceptualism 267
does not mention enrichment at another’s expense, but defines a contract as a
voluntary act, there were many other obligations in the Code that fell under the
definition.515 Similarly, Demolombe criticized Laurent, but his own examples of
other quasi-contracts were drawn from the Code, like those of Larombière.516 So
were the examples that Duranton gave of additional quasi-contracts.517
The exception was the leading treatise of Aubry and Rau, in which they said:
Payments made without a cause, that is to say (hoc sensu) for a future cause that is not
realized or for an already existing cause which has, however, ceased to exist, as well as
those that have in view a cause that is contrary to law, to public order, or to good mores,
and, finally, those that are obtained with the aid of illicit means, give rise, in principle to
an action for repayment, independently of any error on the part of the person who has
made them. . . .
Here, the principle became that a payment without a cause can be recovered. Aubry
and Rau were doubtless aware of a Roman text that said that a plaintiff could
reclaim a performance that had been made sine causa, or without a basis or a
reason518—a text that the Romans neither generalized nor explained. In all likelihood,
however, Aubry and Rau were following the explanation that Savigny had
given in a volume of his System des heutigen Römishen Rechts published in 1841.519
Although Roman law had no general law of unjust enrichment, it recognized
actions called condictiones. Savigny noted that these could not be classified as
actions in tort, contract, or for the return of property or restoration of possession.
He noted that they:
. . . are unquestionably available and they appear to us at first glance to be extremely various.
Nevertheless, they allow themselves to be traced back to a very simple principle which has
developed from this variety by a simple organic process of formation without the intervention
of legislation.520
The principle is not simply that one party could not be enriched at another’s
expense. The principle is that he could not be enriched without a legally recognized
ground—a Grund, a causa, or, as Aubry and Rau put it, a cause:
Accordingly, we can employ the expression, an enrichment without ground (grundlos) out of
our assets (Vermögen) provided the concept of enrichment is limited in a manner appropriate
to those relationships. Specifically, the causa is gone or was already missing for the transfer of
a right from one person to another, as is the case in a loan after notice to repay or the
payment in error of what is not due.521
515 Larombière (n. 265), 5: art. 1371, no. 6. 516 Demolombe (n. 5).
517 Duranton (n. 3), 13: no. 654. 518 D. 12.7.1.3.
519 In its first edition, their treatise was a translation of a German work on the French Civil Code by
Zacariae. They themselves were from the German-speaking region Alsace, where Aubry taught at the
University of Strassburg from 1833 until its annexation by Germany in 1871. They added the treatise
in subsequent editions, making it more their own work. Between the second edition (1844) and the
third (1856), they added the explanation for recovery just quoted.
520 Savigny (n. 27), 5: 511.
521 Savigny (n. 27), 5: 526.
268 The Jurists
Despite occasional doubts about whether the various Roman actions could be
subsumed under a single principle,522 Savigny’s solution became standard among
German jurists.523
Savigny said that, for an action to lie, one party had to be enriched at another’s
expense without a “ground.” Holzschuer said that the law “cannot tolerate the
having (Haben) without a legal ground because one person is enriched through
damage to another.”524 Seuffert said that, absent a legal ground, it was “right and
equitable” for there to be an action.525 Yet they did not explain whether the
enrichment is in itself an evil to be remedied. If not, why should there be an
action? If so, why, in principle, is there no remedy outside the law of unjust
enrichment, for example in the law of contract for an unequal exchange?
Savigny’s answer was that, in contract, there was a legal “ground” for the
enrichment:
It is otherwise with a sale at a low price where, indeed, the buyer is enriched at the expense of
the seller but nevertheless without any lack of a causa, that is, the legal ground of the
alteration, but only as to the material evaluation of worth, which lies entirely outside the
legal sphere.526
He did not explain why, if the enrichment of one party at another’s expense was an
evil to be remedied, the enrichment of a buyer at the expense of a seller “lies entirely
outside the legal sphere.”
Savigny’s reliance on the concept of “legal ground” seemed circular to some
jurists. It seemed to mean that the defendant must repay what he had gained unless
there was a legal ground for keeping it—in other words, that the defendant is
required to repay the gain except when the law does not require him to do so.
Windscheid tried to avoid the circularity by devising a different explanation. He
also thought that an action would lie only when one party was enriched at the
expense of another, although the principle had to be limited: “[T]he fact that one
person is enriched in an unjust manner from another’s assets gives rise to an
obligation for him to explain to the disadvantaged person why he is richer.”527
Nevertheless, the principle that “enrichment from another’s assets by itself and as
such gives rise to an obligation to compensate the other person for the disadvantage
. . . is incorrect at this level of generality. . . . ”528 For Windscheid, the limitation
was not that there must be no legal ground for the enrichment. Rather, the
enrichment must be unjust.
It is usually unjust, he said, if a person was enriched through another’s assets
without that other person’s consent. It is not unjust if the enrichment occurred
522 Vangerow merely speaks of them as actions “on grounds similar to contract” (borrowing from
Justinian’s term “quasi-contractus”): Vangerow (n. 247), 3: kap. 5. Wächter described the standard
explanation as “usual” without expressly endorsing it: Wächter (n. 420), } 218.
523 For example, Puchta (n. 42), } 307; Arndts (n. 190), } 340; Dernburg (n. 48), 2: } 138;
Holzschuher (n. 418), 3: } 265; Seuffert (n. 422), 2: } 435a.
524 Holzschuher (n. 418), 3: } 265, note.
525 Seuffert (n. 422), 2: 435a. 526 Savigny (n. 27), 526.
527 Windscheid (n. 32), 2: } 421. 528 Windscheid (n. 32), 2: } 421, n. 1.
Novus Ordo: Positivism and Conceptualism 269
with the other party’s consent, although there are exceptions.529 The law might
have deprived the will of that party of its force either for his own protection, as in
the case of a minor, or on account of public order, as in the case of illegally high
interest rates.530 Or the will of that party might be ineffective because it was
subject to what Windscheid called an “undeveloped condition,” or unentwickelte
Voraussetzung.531 As we have seen, this was the idea that he used to explain relief
for changed and unforeseen circumstances, and one that his contemporaries
rejected. Here, it enabled him to go beyond the strict view that a mistake
counted legally only if there was a discrepancy between a party’s conscious will
and its outward expression. It allowed him to apply a broader concept of what
mistakes mattered and to apply that concept to explain the law of unjust
enrichment. This explanation, however, was only as sound as his concept of an
“undeveloped condition,” and that was an idea that his contemporaries did not
accept.
Moreover, neither Savigny nor Windscheid explained why the law gave an action
when one party was enriched at another’s expense only sometimes and not
generally. As we have seen, Windscheid, like Savigny, thought that relief for an
unjust price lay beyond the principles of the law of contract.
In France, matters changed in 1892, when, despite the opinion of most nineteenth-century
jurists, the Cour de cassation allowed recovery:
. . . because this action is based on the principle of equity that prohibits one from enriching
himself through a detriment to another, and the exercise of this action, not being governed
by any statutory text, is not subject to any determinate condition; it is enough, for it to be
recognized, that the plaintiff alleges and offers to prove an advantage that he would have had
through a sacrifice or a personal act that was obtained by the party against whom he brings
the action. . . .532
That statement was considered too broad. The court qualified it in 1914 by
imposing a limit that, as French jurists have noted,533 was taken from Aubry and
Rau: there would be an action “where the assets of one person were enriched at the
expense of another without a legitimate cause. . . . ”534
For there to be an action, French jurists now agree, there must be an enrichment
at the expense of another that is without cause.535 According to Alain Sériaux, one
reason for the limitation “without cause” is that if the principle were not limited,
the entire law of obligations “would be considered as a series of particular applications”
of it.536 That, as we have seen, is precisely what the late scholastics had in
529 Windscheid (n. 32), 2: } 422.
530 Windscheid (n. 32), 2: } 423. 531 Windscheid (n. 32), 2: } 423.
532 Cass. req, June 15, 1892, D. 1892.1.596; S. 1893.1.281.
533 Jacques Flour, Jean-Luc Aubert, and Eric Savaux, Les obligations 2 Le fait juridique, 10th ed.
(Paris, 2003), no. 37; Alain Sériaux, Droit des obligations, 2d ed. (Paris, 1998).
534 Cass., May 12, 1914, S. 1918–19.1.41.
535 Flour, Aubert, and Savaux (n. 533), nos. 38, 44; Sériaux (n. 533), no. 87; Alain Bénabent, Droit
civil: Les Obligations, 5th ed. (Paris, 1995), nos. 486, 491; Philippe Malaurie, Laurent Aynès, and
Philippe Soffel-Munck, Droit civil Les Obligations, 4th ed. (Paris, 2009), no. 1015.
536 Sériaux (n. 533), no. 87.
270 The Jurists
mind when they explained the law of obligations in terms of commutative justice.
Another reason is that there are instances in which an action cannot be brought
even though one person was enriched at another’s expense. One is a contract at an
inequitable price, which the late scholastics and iusnaturalists believed to be a basis
in principle for relief, but which the French jurists still regard as an exception to
general principles of contract.537 Another is a person whose business draws customers
away from his competitor538—a case that the late scholastics would not
regard as taking away anything that belonged to the competitor. They would have
said that to give a remedy would take away the right of the defendant to sell what he
could.539
Cause was then defined “as a legal justification for the enrichment.”540 The cause
is “quite simply, . . . the technical notion that expresses the general idea . . . that the
action . . . must not disturb the positive legal order by permitting an alternation of
its rules.”541 Thus enrichment at another’s expense is prohibited unless it has a
cause, and it has a cause whenever it is permitted. It need not be permitted by an
express text of the Civil Code. If a person takes away business from a competitor,
“the liberty of commerce and industry justify the enrichment.”542 In other words,
the action can be brought except when it cannot.
Section 812(1) of the German Civil Code provided that “one who has received
something through another’s performance or at his expense in some other way
without legal basis (ohne rechtlichen Grund) is obligated to give it back.” It was like
the solution of Savigny rather than Windscheid, except that it did not say expressly
that one party must have been enriched at another’s expense.
In the twentieth century, however, German jurists attacked Savigny’s principle.
It was incorrect to say that an action could be brought when one party was enriched
at another’s expense and there was no legal basis (Grund ) for the enrichment. In
1934, Walter Wilburg claimed that it was impossible to formulate any general rule
as to when enrichment is unjustified.543 Ernst von Caemmerer argued that one
cannot regard an enrichment as unjustified when the person enriched has no
contractual or statutory claim to be. A person might renounce a right that is
consequently acquired by someone else. Or he might open a tourist hotel in a
hitherto unknown village, or build a dam, thereby enhancing the value of neighboring
properties.544 Other jurists pointed out that “enrichment may be due to the
537 Flour, Aubert, and Savaux (n. 533), no. 33; Sériaux (n. 533), no. 87; Bénabent (n. 535),
no. 491.
538 Flour, Aubert, and Savaux (n. 533), no. 33; Bénabent (n. 535), no. 491.
539 See Chapter III, pp. 87–88.
540 Bénabent (n. 535), no. 491. Malaurie, Aynès, and Soffel-Munck (n. 535), no. 1068 (“The cause
constitutes the legal title constituting justifying the enrichment or impoverishment”); Sériaux (n. 533),
no. 90 (“There is enrichment without a cause . . . when the person enriched cannot invoke any legal
title justifying his enrichment”).
541 Flour, Aubert, and Savaux (n. 533), no. 44.
542 Bénabent (n. 535), no. 491.
543 Walter Wilburg, Die Lehre von der ungerechtfertigten Bereicherung nach österreichischem und
deutschem Recht (Graz, 1934), 5–6.
544 Ernst von Caemmerer, “Grundprobleme des Bereicherungsrechts,” in vol. 1 of Gesammelte
Schriften, ed. Hans G. Leser (Tübingen, 1968), 370 at 374–75.
Novus Ordo: Positivism and Conceptualism 271
display of particular skills in (lawful) competition.”545 Von Caemmerer concluded
that, in many cases, “third parties are advantaged without a contractual or statutory
claim to be. But they are not unjustifiably enriched, and there is no action in
unjustified enrichment against them.”546
Here, von Caemmerer is no longer conceiving of enrichment at other parties’
expense as a taking or using something that belongs to the other party, or that the
other party has the right to use. A party relinquishes his right to what he abandons.
He does not have the exclusive right to any benefit that his use of his own property
may confer on others, or to sell to his competitor’s customers. As a result, von
Caemmerer’s approach made the problem both easier than that of Savigny and
more difficult. It became easier in that von Caemmerer did not have to explain, as
Savigny did, why, if enrichment at another’s expense was bad, the principle did not
extend throughout the legal system, mandating, for example, an equal exchange in
contract law. It was harder in that one could now see no evil that the law of unjust
enrichment sought to correct, or, for that matter, any general principle on which it
rested.
Von Caemmerer did not seek a general principle: “[W]hen it is a question of
applying a general clause that is framed in so broad and general a way as the maxim
of unjust enrichment,” one cannot find “abstract and general criteria of application.”
A jurist, “like a judge in a system of case law,” must identify “groups of cases
and types of claims.”547 Building on the work of Wilburg and without intending to
be exhaustive, he described four major ones, of which two are important to the
present discussion: (1) the defendant made an encroachment (Eingriff) on the
plaintiff’s property; (2) the plaintiff rendered the defendant a performance (Leistung),
which was without a legal basis (Grund), in the sense that the purpose the
plaintiff was pursuing was not achieved.548 Today, his typology is widely accepted.
It is found in most German textbooks and commentaries.549
It has proven hard, however, to give these categories a definite meaning without
recourse to a general principle. An Eingriff cannot mean that the defendant
destroyed the plaintiff’s property or interfered with the plaintiff’s use of it. If he
did, that would be grounds for an action in tort. When von Caemmerer speaks of
Eingriff, he has in mind cases in which the defendant used or consumed the
plaintiff’s property: for example, he consumed the plaintiff’s heating oil, believing
in good faith that it was his own.550 Moreover, in order to tell whether the plaintiff
has an action, one must determine whether the plaintiff had the exclusive right to
the use of the resources in question. As Reinhard Zimmermann has noted, von
545 Reinhard Zimmermann, The Law of Obligations: Roman Foundations of the Civilian Tradition
(Cape Town, 1990), 889.
546 Von Caemmerer (n. 544), 375. 547 Von Caemmerer (n. 544), 391.
548 The others are: the plaintiff incurred expenses (Impensen, Aufwendungen, today, commonly,
Verwendungen) improving the defendant’s property; and the plaintiff paid another’s debt and now
claims recourse (Rückgriff) against the defendant. The first cannot be discussed here without an
excursus into the differences on the subject between modern civil law and older law. The second
matters only where the law allows the plaintiff ’s payment to discharge the other’s debt.
549 Zimmermann (n. 545), 889–90. 550 Von Caemmerer (n. 544), 378.
272 The Jurists
Caemmerer’s category of Eingriff cannot be applied without asking “who was
entitled to the right with regard to which there was interference.”551 But then we
are back to defining Eingriff as an enrichment through consumption, or the use of
something that belonged to the plaintiff or which the plaintiff had the exclusive
right to use. That would take us back to the principle against unjust enrichment, as
understood by the late scholastics and iusnaturalists.
Moreover, it would be hard to determine what belongs to the plaintiff and what
he has the exclusive right to use without considering why people have exclusive
entitlements to resources. Like the earlier jurists, von Caemmerer believed that the
reasons why the plaintiff recovers in such cases are implicit in the very establishment
of private rights to resources:
The meaning of property law is that the owner is assigned the authority to use, to profit from
and to consume the object (‘uti, frui, abuti’). The advantage that the encroacher derives
from the consumption or use of the object is therefore unjustified. The encroacher must give
back to the owner the value that he would in fairness have had to pay had he known how
matters were. In this group of cases, the enrichment is considered to be unjustified because
it is in contradiction to the purpose pursued by the legal order in the assignment of
property.552
Wilburg said the same.553 If they were right, then we must determine the purpose
that the legal order was pursuing in establishing property rights in order to determine
whether the plaintiff had an exclusive entitlement on which the defendant has
encroached. Unlike the late scholastics and iusnaturalists, however, von Caemmerer
and Wilburg did not present a theory of the purposes of property law, although they
acknowledged that their solution depended upon these purposes. Indeed, since the
rationalists, property had been defined in abstraction from its purpose.
Von Caemmerer’s category of Leistung ohne Grund is definite only if we can
determine the meaning of Leistung and Grund. For von Caemmerer, Leistung does
not simply mean that the plaintiff incurred expense that conferred a benefit on the
defendant. He would do so by building a tourist hotel in a hitherto unknown
village. It must mean that he incurred expense in order to benefit the defendant.
We have come back to a principle that the defendant must be enriched at the
plaintiff’s expense and, in this case, that the plaintiff must have intended that he be.
The Grund or “legal basis of the performance,” according to von Caemmerer, “is
a contractual or statutory claim—also a ‘natural’ or ‘moral’ obligation.”554 To ask
whether there is a Grund raises the problem of circularity that Windscheid may
have found with Savigny and which stands out among contemporary French
writers. It comes close to saying that there will be an action except when the law
says that there will not. In England, Peter Birks’ reason for regarding the “principle
against unjust enrichment . . . with suspicion” was that “as soon as steps are taken to
bring it down to earth it begins to say nothing other than that the law ought not to
551 Zimmermann (n. 545), 890. 552 Von Caemmerer (n. 544), 378.
553 Wilburg (n. 543), 28. 554 Von Caemmerer (n. 544).
Novus Ordo: Positivism and Conceptualism 273
be ignored”—that is, that “[t]here are circumstances in which the law does not
permit one person to be enriched at the expense of another.”555
Birks tried to explain the law not by a general principle, but by looking
“downward to the cases.”556 Like Windscheid, he tried to identify situations or
“factors” that make it unjust for the defendant to have been enriched. In some
cases, the defendant has been enriched “by subtraction” from the plaintiff’s assets,
and the “transfer” of wealth is unjust if it was “non-voluntary” on the part of the
plaintiff or “freely accepted” by the defendant. In other cases, the defendant was
enriched by committing a wrong, and the type of wrong explains why the enrichment
is unjust.557
A difficulty with giving relief when a transaction is “non-voluntary” is the one
that led Windscheid to speak of the failure of a Voraussetzung, and “undeveloped
condition” of an expression of will. As Sonja Meier has pointed out,558 what sort of
involuntariness will matter depends on the type of transaction in question. In a
certain sense, whenever a party regrets having made a contract, the transaction was
“involuntary.” Circumstances have arisen—possibly including his own change of
mind—which he did not anticipate when he committed himself.
Meier also pointed out that Birks cannot account for instances in which one
cannot identify any unjust factor other than the enrichment itself. Her example was
a payment made ultra vires by an entity that had no authority to authorize it.559
One might, of course, add “payments ultra vires” to the list of “unjust factors,” but
then, as Meier pointed out and as Birks realized, his approach would lose whatever
explanatory power it had.560 Or one might say that such payments are recoverable
for “policy reasons,”561 but that explanation is not helpful unless one can say what
these reasons are. Before his premature death, Birks surrendered and adopted the
Continental approach that a remedy should be given when the defendant was
enriched without reason—sine causa.562
555 Birks (n. 505), 23. 556 Birks (n. 505), 23.
557 For a chart, see Birks (n. 505), 106.
558 Sonja Meier, Irrtum und Zweckverfehlung: Die Rolle der unjust-Gründe bei rechtsgrundlosen
Leistungen in englischen Recht (Tübingen, 1999), 396–405.
559 Sonja Meier, “Unjust Factors and Legal Grounds,” in Unjustified Enrichment: Key Issues in
Comparative Perspective, eds. David Johnston and Reinhard Zimmermann (Cambridge, 2002), 37 at
62–65.
560 Meier (n. 559), 64–65; Peter Birks, Unjust Enrichment (Oxford, 2003), 98.
561 Chitty (n. 424), 1 General Principles } 20-028, n. 142. 562 Birks (n. 560), 87–143.
274 The Jurists