In order to express my ideas fully on this subject, I should say I am convinced that greater and more certain progress will be made in the law by a frank method of investigation which will openly recognize the gaps in the written law. By this method we may then attempt to supply what the statute lacks by means of an independent scientific process, whereby all the surrounding circumstances will be examined and an equilibrium of all the interests involved be produced if possible. This will take the place of the subterfuge of forced constructions of the text, which is to be condemned not merely because it fails to understand the true nature of statute law and the proper rules for putting it into effect, but which must needs result in a falsifying of the ideas contained in the text and lead to unsatisfactory conclusions.
I may be permitted to make this matter still clearer by choosing as an illustration another extension of the traditional conception of civil liability for injuries. I have in mind what has been called the doctrine of objective liability, which has arisen in modern days from a laudable desire to give a fair compensation for certain accidents the cause of which is unknown, or for which no specific negligent act can be established.13
Josserand has reviewed and analyzed in his "De la Responsabilite du fait des choses inanimees" 14 the various theories on this subject which have been proposed prior to his own, with remarkable sureness and delicacy of touch. He has had little difficulty in proving that these theories have failed to bring about the desired results, although they have all done violence to the statutory texts on which they have been built; this has been the case without distinction, whether they involved an extension of contractual liability, or whether they started from an amplification of the presumptions concerning negligence and thereby pushed the doctrine of liability for torts to an extreme point.
1 3 It is well known that notwithstanding the statutes of April 9, 1898, and June 30, 1899, this is still an open question for all those injuries not coming within one of these statutes.
14 1897; pp. 11-52.
However, when we stop to consider the new conception of objective liability on statutory grounds from the same point of view, such as has been advocated by Saleilles since 1894, and further developed by the same author and Josserand, will we not unavoidably be driven to recognize that this ingenious theory has precisely the same fault as those gone before, in so far as it purports to be based on positive statutory provisions, so that the principle of employers' risk may be discovered, as has been said, in the Civil Code itself? Whether, with Josserand, we base it almost entirely on the empty and vague formula of section 1384 line 1 [A person is responsible . . . for the injuries caused by his own act], or are radical and bold enough to go with Saleilles to the first provision of the chapter and substitute for the conception of fault as expressed in section 1382 [Every human act whatsoever which causes injury to another makes the person through whose act the injury occurs liable for the damages] the simple relation of cause and effect, in either case we shall find it difficult to deny that we exceed the meaning actually expressed in the text, or twist the words of the legislator out of their natural meaning. Yet the principle so derived is still far from what the law should be, because with all the forced construction of the text the provision itself cannot be changed and the best rule that can be read into it is a liability for accidents caused by some piece of property belonging to the employer, while for all those originating without some material object over which the employer had control there is still no adequate and equitable provision.
I am far from wishing to oppose the just and reasonable idea which has inspired these new theories. I agree with that proposition altogether, I merely wish to point out the defects and shortcomings of certain mental processes by which it is attempted to establish it. Accordingly, I maintain that this legal principle could be more easily defended from the standpoint of safe reasoning, and would be, more readily adaptable to the facts, if we were to admit frankly that the Civil Code in section 1382 and the next following sections provides only for injuries resulting from the fault of another, but that these provisions do not deal at all with inherent risks of the employment. The real question is to find out how the damages resulting from a pure accident can be divided among two or more persons who are all affected under the circumstances of the case; and we should say that in the absence of a statutory provision it is the office of the court to regulate the matter as appears best to promote justice and social utility.
In order to learn what will best promote justice and social utility, there is no way but to observe carefully what is the actually prevailing moral sentiment regarding such relations between man and man, and to inquire into the social and economic conditions so as to estimate the various interests involved at their true value in accordance with the state of our civilization as it exists at the time of rendering judgment.
Briefly put, we always come back to an attempt to establish an equilibrium between interests that are contending with each other or seem to be inconsistent. This result will never be obtained except by examining thoroughly the elements of every system of positive law, which, as I have shown in another place, are not logical entities, but those ethical and economic realities which alone can give us an insight into the effective forces of social life.
Moreover, as a general proposition at least, the rules so derived would give way to any inconsistent stipulation entered into by the autonomous will of the parties, because it must be held, a priori, that these understand better than anybody else, even the Government, what will best promote the interests which they are protecting for the benefit of all concerned.