Abuse of Rights: The Continental Drug and the Common Law
2009; University of California, Hastings College of the Law; Volume: 61; Issue: 3 Linguagem: Inglês
ISSN
0017-8322
Autores Tópico(s)Legal Systems and Judicial Processes
Resumoions that had long obfuscated the problem of malice, bringing to light its real 121 F. P. Walton, Motive as an Element of Torts in the Civil Law and in the Common Law, 22 HARV. L. REV. 501 (19081909). 122 MICHAEL TAGGART, supra note 20 at 167. See Cosgrove Our Lady The Common Law, the formation of a community dedicated to the celebration of the common law for its unifying force dated from about 1870, reached a zenith of influence in the years before WWI and then declined until about 1930, when it ceased to attract loyalty on either side of the Atlantic. See FREDERICK POLLOCK THE LAW OF TORTS (1887 1st edition), p. V. di Robilant ABUSE OF RIGHTS 55 of 99 nature. The maps they sketched contributed to the refutation of one of the central tenets of classical legal science, i.e. the proposition that individuals exercise their rights, absolute within their spheres, so as not to injure the equal rights of others. Rather, there are instances in which individuals are permitted to exercise their rights maliciously or unreasonably to the injure of others. The question of is the question of defining these instances and is, ultimately, a question of policy. In an article on malicious torts published in 1884, Henry Terry integrated malice in a conceptual scheme that reflected the most sophisticated analytical tradition123. Terry's scheme aimed at showing that there is a general duty not to act maliciously which is subject to exceptions motivated by reasons of policy and justice. Rather than questions about the nature of malice, malicious torts raise crucial questions regarding the possibility of admitting exceptions to the general duty to refrain from malicious acts. These questions are not to be decided by deduction from an abstract notion of malice, depending, instead, on broad considerations of justice and policy. The widespread misapprehension of the problem of malice, Terry noted, arises from a lack of clear views about certain elementary legal ideas and their relation to each other. By tracing a clear analytical scheme of legal ideas, Terry sought to disentangle the different kinds of questions posed by malicious torts, clarifying the actual role played by malice. Terry drew a threefold classification of legal duties: peremptory duties, duties of reasonableness and duties of intention. The latter include both duties not to act with a mere intention to produce a certain result, which may be broken without malice, and duties not to act maliciously, in the breach of which malice is essential. Malice means an intention to cause harm or damage to another, the harm or damage as such being the very thing desired. Further, Terry distinguished between two types of rights. Permissive rights are liberties to do or refrain from an act uncorroborated by a duty on others not to interfere. Protected rights, on the other hand, describe the legal condition of a person for whom the law protects a condition of fact by imposing 123 Henry Terry, Malicious Torts, 20 L. Q. REV. 10 (1904). di Robilant ABUSE OF RIGHTS 56 of 99 duties on others. The protected condition of fact is the content of the right, any impairment of such condition amounting to a violation of the right. Terry delineated several classes of protected rights, i.e. rights of personal security, rights in the persons of others, normal property rights, abnormal property rights and rights of pecuniary condition, each displaying different features and corresponding to different duties. In rights of pecuniary condition the protected condition of fact is the holding of value or purchasing power in some form. Having laid out this table of elementary legal ideas, Terry confined the relevance of malice to a specific hypothesis. An actual question of malice, he noted, arises in case of breach of a duty not to act maliciously followed, as its proximate consequence, by the violation of a corresponding right of pecuniary condition. When it appears that there has been a violation of the right of pecuniary condition and of no other right and the case is not one of fraud, then the duty which must be proved to have been broken will usually be a duty not to act maliciously, malice will be an essential question on case of action and the question will arise, what is malice? And what is the legal duty as to malicious conduct? However, even in this hypothesis, Terry added, malice might be irrelevant, the question being whether there is any exception to that duty. There may be good reasons why a particular class of cases should be excepted out of the general rule; the opportunity of these exceptions “is to be decided upon grounds of justice or policy special to each class of cases”. To sum up: when malice is alleged the questions maybe be any of the following.....If there has been a malicious act and thus prima facie a breach of the last named duty, whether there is any exception to that duty that covers the case. Thus depends not on any theory of malice, but on considerations of justice and policy. A decade later, the appearance of Holmes’ article “Privilege, Malice and Intent” marked a shift in the conceptualization of malice124. Holmes’ conceptualization of malice further developed Terry’s idea that, in certain 124 Oliver Wendell Holmes, Privilege, Malice and Intent, 8 HARV. L. REV (1894-1895). di Robilant ABUSE OF RIGHTS 57 of 99 cases, policy reasons suggest that malicious acts may be done, without the actor being liable. However, Holmes took Terry’s scheme one step further, developing a general theory of intentional tort in which malice was purged of any moral connotation and equated with “the absence of just cause or excuse”. Holmes’ scheme proved extremely influential, setting the terms of a transatlantic conversation between Frederick Pollock and the Americans. “Privilege, Malice and Intent” represents the final stage in the shaping of a new conceptual structure of tort law; Holmes altered and refined his earlier conceptual scheme of tort law according malice a central role. Holmes’ earlier efforts were directed at anchoring liability to an external objective standard, ultimately dependent on policy considerations, rather than to an internal subjective standard based on fault125. The general purpose of the law of torts, Holmes argued, is to secure a man indemnity against certain forms of harm, not because they are wrong but because they are harms. The preoccupation with articulating an objective, policy-based theory of liability, induced Holmes to arrange different types of torts in a “philosophically continuous series”, running from intentional torts to negligent torts to strict liability. The continuum was organized according to the degree of foreseebility of the harm, rather than on any subjective notion of fault. For this scheme to hold, the role of malice was to be eclipsed. Malice was deemed to be a comparatively insignificant form of liability, circumscribed to isolated instances, and malicious torts were disguised into the broader category of intentional torts. Holmes noted that there certain harmful acts which may done even with malevolent intent. [A man] may establish himself in business where he foresees that the effect of his competition will be to diminish the custom of another shopkeeper, perhaps to ruin him. He may erect a building which cuts another off from a beautiful prospect, or he may drain subterranean waters and thereby drain another’s well; and many other case may be put. Privileged malicious acts and strict liability functioned as the two extremes proving the irrelevance of any subjective moral standard of
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