D.A. Ridgely wrote:Well, Hell, Ginslinger, if you're going to go all reasonable and scholarly on me, I should acknowledge that my, um, notes are roughly 25 years away from me, albeit with an occasional glance at a note or case to refresh my memory or, as may well be the case, misremembering. Moreover, although for the life of me I still can't see how it's relevant to a contemporary discussion of legal personhood and property, let alone an ethical discussion of same, I long ago packed away my Corbin and Williston and any pretensions I may have had to be a contract law scholar.
As to how I see relevance, and I understand I'm probably way off is very briefly: Lex Mercatoria opened up a new understanding of contract, that it could be recoverable for dereliction of personal obligation (by failing to perform duties) (it also streamline the difference between failure to deliver goods or money and debt), and that when the common law embraced this concept it do so in part by giving personal obligations a veneer of real obligations. Now, I'm probably way off base in it (because I haven't studied how the evolution occurred), but I thought the blurring of distinction between personal and real was connected with concepts of self-ownership in philosophy/politics.
So, it probably isn't relevant since it's likely wrong.
Ha! Now I'm starting to get it! Yes, actually I think you're right in at least this sense (and maybe a broader sense, too): We're agreed that in medieval law just about everything was about property and, gold and such aside, the only property that really counted was land. The king couldn't always rely on his peers to keep the peace and order he wanted/needed/maybe even thought was just, so he sent out representatives to resolve disputes short of bloodshed. And so somewhere in Henry III's reign the action of Trespass starts to take on a specific form for a specific reason, keeping the peace. It's at the heart of both criminal and tort law and, as Maitland notes, it's the mother of all the other historic Forms.
Now, here's where I think I'm starting to grok where you're coming from. To say that the common law has been conservative in its development, especially back then, is to acknowledge a truth that, while abundantly clear, isn't always fully appreciated. When the dispute is over substantive or procedural law good lawyering is and always was largely the art of convincing the judge that he's not breaking any new ground or, if he is, it's so self evidently the necessary and proper application of existing law to new circumstances that he's not going to get into trouble, himself. Thus, Anglo-American lawyers from the earliest days have been playing the "Of course orange is yellow, Your Honor! It's just yellow with an insignificant touch of red in it!" game, if you get what I mean. (And, in fairness, progressive judges in the good sense of progressive have been playing the game, themselves, forever.)
So, for example, I de S et ux. v. W de S
(1348) pushed a novel theory of Trespass vi et armis
such that the judge was willing to declare harm without any actual touching and the decision became the first recorded case distinguishing common law assault from battery. We argue that a slightly different fact pattern is sufficiently like the old fact patterns that the old law should apply to the new facts, as well. No one ever said, hey, I think I'm going to invent a new form of action and call it Assumpsit or Trover or Replevin, etc. From Trespass we eventually get Trespass on the Case, what was once an essential element quietly ceases to be so and, most importantly to our argument, legal concepts get blurred, sometimes intentionally and sometimes not as new forms of action slowly develop. The common law has always been, as my Con Law teacher liked to say, a never ending battle between heritage and heresy.
What the judge in Pierson v. Post
could have done was to hold that the ancient law of animals ferae naturae
, while of some historical significance, wasn't binding on a court of law in the New World and to craft whatever he thought was the best rule to govern such disputes. But what judges have always done is look to the past. Sometimes to the point of completely misconstruing some perfectly reasonable and appropriately legislated change to the common law.
Case in point. The Uniform Commercial Code, Sect. 2-207 modified the ancient mirror-image rule that an acceptance must be the so-called mirror-image of the offer. At common law, any attempted acceptance that changed any of the offer's terms and conditions was deemed a rejection of the original offer and a counter offer. I won't go into the rationale for the change; the important thing is that it was a significant change and the commentary promoting adoption of the UCC clearly stated as much. Not long after Massachusetts' adoption of the UCC, however, came a now infamous appellate decision. In Roto-lith v. Bartlett
, 297 F.2d 497 (1st Cir. 1962) a three judge panel of the U.S. Court of Appeals for the 1st Circuit misread § 2-207 essentially preserving and applying the old common law rule. It's no big deal for a state trial court judge to misread the law, but U.S. Appellate Court judges are supposed to be selected from the cream of the profession. The "dead hand of the common law" continues to weigh on the way lawyers and judges even now think about the law. So applying earlier real property concepts to later personal contract concepts in the early development of the common law was almost necessarily how the latter evolved.
(BTW, most of the cases I've cited are standard 1L fare. The typical lawyer's grasp of much of this tends to plummet, however, the moment he is informed he has passed the bar examination. Of all the lawyers or soon to be lawyers on this forum, AR almost certainly knows more general law than the rest of us. (Make of that what you will.) As for me, if this discussion has proven anything, it's that I've practiced law long enough that I can stretch a few vaguely remembered legal principles and some jargon into what sounds like a much better grasp of the issues than I really have. *grin*)