Page:Harvard Law Review Volume 8.djvu/216

200 HARVARD LAW REVIEW. THE TRIPARTITE DIVISION OF TORTS. THE essay in this Review (May, 1894), by Mr. Justice Holmes, on " Privilege, Malice, and Intent," raises a broad question as to the general analysis of a Tort, which it is the purpose of this article to discuss. The writer has for some time believed in the correctness of the division there briefly expounded as a foundation for the discussion of Malice in connection with Interference with Social Relations, and the general interest shown in the suggestions of that learned writer seems to show that the time is favorable for a presentation of the analysis in its broader aspect as a general foundation for the treatment of all Torts. Certainly the subject is in need of some accepted analysis, which shall at once co-ordinate our present knowledge and form the basis of future development. If we are ever to have, as Sir Frederick Pollock puts it, not books about specific Torts, but books about Tort in general, some further examination of fundamental ideas is desirable. One might proceed with such a general analysis without regard to the definition of a Tort, or — what is much the same thing — without setting forth one's view as to the differentiation of Tort- relations from others in the general classification of private law. But, for the sake of clearness, the latter task will here be briefly attempted, no effort being made to justify the system stated, or to say more than is necessary as preliminary to the main subject. Private law, then, deals with the relations between members of the community regarded as being ultimately enforceable by the political power. Such a single relation may be termed a Nexus ; it has a double aspect, for it is a Right at one end, and a Duty or Obligation at the other ; every such relation or Nexus necessarily having both these aspects. In classifying them, we may of course rest the division on the nature of either the Rights involved or the Duties involved. For the first and broadest division it seems best to take the latter point of view, and to distinguish according as the Duty has inhered in the Obligor (i) without reference to his wish or assent, or (2) in consequence of some volition or intention of his to be clothed with it. The former we may term Irrecusable, — having reference to the immateriality of the attitude of the obligor in respect to consent or refusal ; the latter,