Max Weaver



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Just what the Doctrine Ordered?

Max Weaver | Visiting Professor | London South Bank University1

A life in reason was and is difficult. All of us....find it easier to follow dogma than to think.2



Abstract

The prototypical normative intuition against direct physical interferences underlies the trespassory torts and is entrenched in current tort law doctrine. That such interferences are actionable without proof of damage distinguishes these torts from the compensation-dominated mainstream and requires explanation (found in: psychology; legal history; and Maine’s ‘interstices of procedure’) and justification (found in vindication and deterrence). Trespass doctrine instantiates Schauer’s ‘presumptive formalism’—a legal-systemic analogue of Kahneman’s ‘fast thinking’.

But—as the analysis of direct acts, intention, harm, standing and the available forms of redress demonstrates—trespass doctrine is both over and under inclusive. Consequently, it is sometimes manipulated by means of intra-systemic ‘slow thinking’. Furthermore, occasionally extra-systemic review from standpoints outside the citadel of doctrine seems appropriate. Choosing between these modes entails difficult issues of judgement.

Because the argument draws from several disciplines, the lengthy text can show only the tip of the several conceptual icebergs. Hence extensive references are provided, which (together with the additional, and optional, endnotes) give some indications of what lies beneath the waterlines.





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Introduction


Battery and false imprisonment [fi] are as up-close-and-personal as tort law gets. They result from a gradual institutionalization of instincts and customs—norms that ‘lie deep in the background of our experience, implicit, largely transparent to our consciousness, bred in the bone’.0A For the most part, they work well. According broadly with folk morality, they mark wrongs and protect interests. And the systematizing work begun by eighteenth and nineteenth century ‘legal scientists’ (treatise writers and judges)0 has provided a body of settled ‘doctrine’ (taken-for-granted fundamentals) that makes for efficient predictability (a formal aspect0 of the Rule of Law) and broad folk moral assent.

In this conceptual heaven, we see Frederick Schauer’s ‘presumptive formalism’ in operation. Schauer holds that decision-makers should—as the default setting—‘defer [to necessarily exclusionary rules] even when they are convinced that their own judgment is best.’0 But doctrinal clarity is also doctrinal rigidity. Within the system, doctrine cannot be rejected. It can only be interpreted—although one person’s ‘interpretation’ is another person’s ‘manipulation’. As times change and ‘manifesto’0 claims for the recognition of as yet unprotected interests as rights emerge, this doctrinal rigidity produces some positions that, on critical reflection, might be regarded as under-inclusive lacunae or as over-generous to claimants.

Although they have attracted some autonomy-rhetoric by way of ex post rationalization and justification, trespass and fi are not driven by conceptions of a fundamental right to individual autonomy (self-rule). Instead they are founded on particular kinds of wrong and their doctrine systematizes a Tennysonian ‘wilderness of single instances’0B0C0


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1

 My thanks go to Carol Harlow and to my colleagues at LSBU—Mike Rodney, Andy Unger, Kim Silver, Tracey Aquino and Cherry James—for their extraordinarily patient help. As to the remaining flaws, mea culpa.

2

 Martha Nussbaum, Obituary of Hilary Putnam, http://www.huffingtonpost.com/martha-c-nussbaum/hilary-putnam-1926-2016_b_9457774.html

0

 Gerald Postema, ‘Custom, Normative Practice, and the Law’ (2012) 62 Duke Law Journal 707-738, 720. See also endnote A.



0

 Geoffrey Samuel, ‘Is legal knowledge cumulative?’ (2012) 32(3) Legal Studies 448-479, 451-460; Harold Berman, ‘The Origins of Western Legal Science’ (1977) 90 Harvard Law Review 894-943.



0

 There is little justice in certain injustice. Lady Hale knows for certain that she cannot join the Garrick Club under its present rules.



0

 Frederick Schauer, ‘Formalism’ (1988) 97 Yale Law Journal 509-548, 546.



0

 See Joel Feinberg, ‘The Nature and Value of Rights’ in Joel Feinberg & Hyman Gross (eds.), Philosophy of Law (1980) 270-280, 275; originally in (1970) 4 Journal of Value Inquiry 243-257.



0

 Alfred, Lord Tennyson, in ‘Aylmer’s Fields’ in his Enoch Arden (London: Moxon, 1891). See endnote



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A In her ‘Property and the Rule of Law’ (2014) 20 Legal Theory 79-105, 84, Lisa Austin argues that we should view the common law ‘as primarily a social practice of reasoning’. She holds that: ‘doctrine is always closely tethered to the practice of reasoning’; ‘community practices…[provide] evidence of implicit norms and…a way to confirm the reasonableness of the law that was meant to address social life’; and that law and social order are mutually constitutive. Her claim’s comprehensiveness perhaps exaggerates both: the extent of correspondence between community attitudes and the common law; and the coherence of community values in complex societies. On the latter, see Max Weaver, ‘Herbert, Hercules and the “Plural Society”’ (1978) 41 Modern Law Review 660-680.

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V92 Ohio App. 3d 232, 634 N.E.2d 697, 1994 Ohio App.

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