Legal tort before 1800

Before 1800, society was mostly agrarian and life was mostly agrarian and life was tough and inordinately short. Most accidents arose out of a non-mechanized farm life involving family members and neighbors. Most harm that was caused by strangers was intentional, so the law was little concerned with unintentional harms. As industry, urban life and transportation developed, unintended accidents became much more commonplace. The new risks posed by the developing industrial economy confronted the courts with problems that could not be resolved readily by the existing tort law; torts before then were based primarily on notions of causation and whether the harm resulting was direct or indirect.

The common law courts, on both sides of the Atlantic, proceeded to develop an accident law to cope with the changing society. The outgrowth of this period was the development and maturation of our fault-based negligence law. There is a difference of view among legal scholars about the development of negligence law. Some commentators assert that the selection of fault by the courts as the operative culpability standard for unintentional harms was designed to assist the development of business during the early period of industrialization.

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Other scholars, however, contend that fault was seen as the more appropriate requirement from a moral standpoint for persons and businesses, or, at least that personal moral culpability in combination with economic development considerations provided the underpinning for the development of negligence law. Both schools of thought tend to overlook the significance of the ancient heritage of the fault concept, its importance in Roman law, and the undoubted influence of both on the common law. There is a remarkable similarity between common law negligence and the negligence law of the civil systems in the rest of Europe which clearly have their heritage in Roman law.

In any event, today, negligence is the primary system of seeking compensation for unintentional harm. But modern negligence law is not the same as the negligence law of the 1800s. As society has changed, so has negligence law. Our study of torts will examine whether the right balance has been struck for our time. Our modern concept of fault has certainly broadened beyond personal moral culpability to include notions of social fault – societal standards of reasonable conduct. There also has been a flirtation in the last 40 years with the concept of strict liability in the products liability area. Abnormally dangerous activities, such as blasting, aerial pesticide spraying, and hazardous waste disposal, among others, have been handled under a regime of strict liability, not negligence. But negligence persists, even rejuvenates, except for these pockets of strict liability. We will study this continuing tension that exists between negligence and strict liability – two possible legal theories for dealing with unintentional harm.