The Conflict Between the General and the Particular—Some Legal Background

Abstract

A recurrent conflict, in both theoretical discussions of the law and in its practical application, is that between the intellectual urge to greater generality and the cautionary counsel of experience to focus as much as possible on the particular. The ideal or universal audiences to which legal argument is directed are constantly torn by these conflicting impulses. In the history of common-law adjudication, one of the principal areas in which this conflict has been played out is the field of tort law or what in other systems of law is generally called either the law of delict or the law of non-contractual obligations. After the law of torts developed as a separate field of law in the second half of the nineteenth century, scholars began to argue about whether the law of torts was just a convenient amalgam, for purposes of study and classification, of a large set of discreet types of actions which would continue to develop in their separate ways, or whether it now reflected the application of some broad general principles that were implicit in the structure of the older law and which would henceforth guide its future development.¹ That what is now the modern law of torts was historically a set of different forms of action each with its own peculiarities and restrictions, was indisputable. The question was whether it had evolved into something else.