involve no loss

isomorphism.

At least in the sense that the defendant is deemed properly answerable to a plaintiff, the defendant is deemed legally responsible for having injured the plaintiff.

One might, say, for example, that the parent owes it to the victim to make amends in a manner that is consistent with her situation.

As matter of formal doctrine, the law’s commitment to objectivity is so stark as to entail a willingness to hold accountable even persons who, at the time of acting, suffer from a serious mental illness or defect that renders them incapable of appreciating the dangerousness of their actions.

Few, we suspect, would sign on to the idea that one who carelessly knocks over a fellow pedestrian incurs a moral duty to make the victim whole, at least if that entails paying tens of thousands of dollars to cover lost wages, pain and suffering, and the like. Whatever may be required from the careless injurer by way of repair, compensation of this magnitude is more than ordinary morality seems to demand.

There are many areas of law in which the state empowers an individual or entity to prevail in a claim against another for payment because the defendant has a legal duty to make that payment. Classic examples involve the federal government, through the Internal Revenue Service, bringing an enforcement action against a taxpayer who has not paid taxes owed, and a Creditor bringing a breach of contract action for payment of a debt. Defendants in tort cases are not in this position

legal power to exact a remedy from the wrongdoer

injuriously wronged

When tort law determines legal liability by reference to this criterion, it is doing so because it is a scheme for holding actors to the moral responsibility to repair that they incur by virtue of being both outcome-responsible and at fault for a given loss

The plaintiff’s proof that the defendant was driving carelessly (and that she was crossing carefully) establishes that the defendant is not only outcome-responsible for the loss, but also morally responsible, such that he now has reason to respond to the loss by indemnifying the plaintiff

tort law holds a defendant responsible to the plaintiff in the particular manner of enforcing the defendant’s moral duty to repair the plaintiff’s loss. That duty is ultimately grounded, in significant part, in the defendant’s being “outcome-responsible” for that loss

Roughly speaking, a person is outcome-responsible for a loss if the person’s volitional action was a necessary condition for the loss’s having occurred, and if the loss was avoidable, in that the person could reasonably have foreseen that his action might cause the loss, and the person was capable of acting so as not to cause it

In all of these cases, the plaintiff has suffered an injury because of the defendant’s wrongful conduct, and she demands that the court hold the defendant responsible for that injury. In ordinary parlance, the defendant must compensate the plaintiff for her injury because it was the defendant’s fault.

More generally, the ideas and specific concerns, the customs and practices that Magna Carta mentions were rooted in earlier English practice and circumstance.

cessation of arbitrariness

Tenure

homage or merely from the grant of land

Land is a place to live, and a source of food and other commodities, including – if one has enough to let to others – money

This suggests that contemporaries regarded physical injuries as a species of insult; just as lying with a man’s female slave was an affront to his honour, so too was breaking his rib.28

eighth century

promoted peace without compromising pride. It was also more consistent with Christian teaching than revenge-killing.

A more uniform influence from the same period was that of the Christian Church, which after the arrival of St Augustine’s mission from Rome (597 ad)

our first glimpses of ancient British customs are obtained through Roman eyes. The learned men among the Britons passed on their traditions by word of mouth and thought it inappropriate to commit them to writing. Most of the people were held in servitude to a native military nobility, but there was a caste of priest-judges, called druids, who spent years learning the old Celtic customs by rote (in verse-form) and were called upon to decide controversies both public and private

nd so on, until an affirmative was negatived. All assertions which were not denied had to be treated by the court as if they were true, because their truth could not come into question if the parties themselves did not make an issue of them

the plaintiff had to reply to the avoidance (the defendant’s new facts), using the same four logical choices

One was for the parties to deny that in law the facts as agreed amounted to a case against him; this was a demurrer, and it produced an issue of law. The other was to introduce further facts to explain away the agreed facts; this was a confession and avoidance

‘count’

royal courts was wager of law,16 or compurgation, which was regularly used in actions of debt and detinue until the beginning of the seventeenth century.17 The defendant took an oath that he did not owe the money, or withhold the chattels, and produced eleven compurgators to testify to his credibility.

The classical form of trial jury (or ‘petty jury’) appeared first in criminal suits around 1220, as a direct result of the decision of the Church in 1215 to stop participation in ordeals.

Resort was had instead to ‘proof’ by oath, which might have to be backed up by a physical test (an ‘ordeal’).

It would be anachronistic to regard it, when the dim rays of history first fall upon it, as a court of law. It was an open-air meeting of the populace to discuss local affairs under the presidency of an ealdorman,13 or his deputy, assisted in some places by a group of ‘doomsmen’. The community issued no writs and kept no records, and in consequence little is known about its doings.

Alienation by substitution could harm the lord in a different way, for instance if an old tenant substituted a young man with a long life-expectancy

But if the tenant had in his lifetime subinfeudated for a worthless service such as a peppercorn,109 taking the purchase price in ready money, the lord had wardship only of the seignory – that is, a peppercorn once a year

(substitution)

The lord’s autonomy was evaporating in the process. We may even dare to say that the law had begun to recognize something like ownership, belonging to the person with ‘right’

Should there be a dispute, the question who should have seisin was now determined by applying uniform rules of common law

On either view, however, the working of the common-law remedies brought about a substantial change of legal thought. The exigencies of the situation had required the dispossession of those who had gained seisin unjustly between 1135 and 1154, and it followed that assuring plenum rectum to those who were to be restored necessarily gave them a ‘right’ which was legally superior to seisin.

pone

tolt,

writ of right patent, ordering the lord to do the right thing, and thereby impliedly authorizing him to unseat the present tenant

Henry made an ordinance forbidding informal action in the form of disseisin without judgment

writ of right ‘patent

When legal logic took over, and the origins of tenures faded into the past, there was no incongruity in a knight holding land in villeinage, or a villein by knight-service.

vassal

No more was heard of bookland and folkland, or of allods.

Bookholders themselves made ‘loans’ of land to their own men in return for services, the performance of which was enforceable by forfeiture of the loan

Land ‘books’ were perhaps first used to make grants in perpetuity to the Church, but by the ninth century they were also used for grants to laymen

by the tenth century thegns and royal ministers owed service in return for their lands, and the king’s thegns had their own thegns to perform services for them

Most Anglo-Saxon men seem to have had a lord, though the seignorial relationship could exist independently of the tenurial

Littleton indeed governed legal thinking about the land law for three centuries. But Littleton’s system of tenures and estates was not living feudalism even in his own time

English feudalism had undergone a legal distortion. Its features had been systematized by the lawyers of the thirteenth and fourteenth centuries, whose constant engagement with the land law had turned earlier social assumptions into doctrine and thereby created an intricate ‘law of tenures’

Tenure is the name given to the relationship whereby a tenant ‘holds’ land of a lord.

‘owner’ does not seem to have been much used by medieval lawyers

he was undertaking, for himself and his own heirs, an obligation to receive the homage of the tenant’s heir (and the heir’s heirs in turn) so that they would become seised.

The earliest forms merely characterized the tenancy as hereditary in nature,4 but by the thirteenth century it had become usual to mention heirs – ‘to A and his heirs’ – and the final formula, which remained in use until 1925, was ‘to A and his heirs for ever’