Pragmatism and Theory in English Law - College of Social Sciences ...

Theory Beneath the Surface 177
a sort of open letter to Mr Justice Holmes. Thus he identifies
and deals with some general principles of liability. For
instance, there are general rules governing the possible parties
to a tort, rules affecting the liability of the state, of
infants, of corporations, of lunatics and so forth. There are
general rules of vicarious liability, affecting all torts, there
are general rules concerning the effect of death on torts, and
so on. There are general rules about the remedies available,
especially damages. Here at last we seem to be on some sort
of firm structured ground, which bears at least a passing
resemblance to the sort of structure revealed by the general
principles of contract law. But the trouble is that these
general principles of liability clearly do not fill the same
central role in tort as the general principles fill in contract.
Too much is left out here, and has to be dealt with in detail
in the handling of the individual torts. But then there is this
further difficulty: how do the individual torts fit in with the
general principles? How should they be classified? Pollock
sees that there are basically two ways to classify torts. First,
we could try to divide the law up according to the interests
of the plaintiff which he claims to have been infringed: thus
we could classify the subject by looking at personal injury
torts, other torts infringing personal rights such as defamation
and false imprisonment, torts involving interference or
damage to land and then chattels, and torts involving an
interference with commercial rights. Alternatively, we
could try to classify torts by looking at the different bases of
liability, and so divide the law of torts up into torts based on
intentional conduct, torts based on negligence and torts of
strict liability. The older way of looking at tort law, in
which torts had largely been an offshoot of property law,
had tended to classify torts by looking at the kind of right
which the plaintiff complained had been infringed. But the