1. Wrongful ("culpa"). This is a very broad concept pervading the whole field of private law. At every step we meet with it. Substantial success in a lawsuit almost always turns on questions arising out of this concept. Of course, nobody is going to decide for the party that acts "wrongfully." Even if considerations drawn from the law of property or the law of inheritance were to speak in his favor, the judge would constantly incline to impose upon the party in fault conditions of indemnity or restitution that render his apparent victory nugatory.
Of the two principal varieties of "culpa," to wit, malice ("dolus") and negligence, I shall here touch upon the latter only. It has been variously described as "culpable inattention"; "lack of attention or proper diligence"172; "lack of such diligence as ordinary capacity is able to exercise"173; "omission of proper exertion of mind"174; "absence of proper circumspection, care, or energy of action."175
171 In general, the difficulties of deduction decrease in this order: law of inheritance, law of things, law of obligations; while the difficulties of projection increase correspondingly. The law of inheritance, that proud superstructure of the law of property, is the classical province of deduction, while the law of negligence is the principal domain of projection.
172 Austrian Civil Code, Sec. 1294.
Thus definitions vary. It is well known that different degrees of negligence are distinguished, such as slight and gross negligence, according as there was lack of exercising the powers of mind to be found in any ordinary person, or only those presumed to be possessed by a "prudent head of a household." Now let us analyze this concept, not in its relations to other legal concepts but in its functions in face of the phenomena of life.
First of all, attention may be called to what may be designated as the anti-historical character of the concept. Whether negligence shall be imputed to a party must always be decided in accordance with the notions of the present age, and never according to what the legislator may have thought of it when the law was made. A landlord is charged with failure to light a dark stairway, whereby a tenant is injured; or it is claimed against the manager of a bathing establishment that his appliances are unsafe; or the administrator of a building has failed to insure it against fire. The defendants will offer what defense they can find, but will not be heard to say that in 1811, when the Civil Code went into effect, nobody bothered about lighting up stairways; appliances in bath houses, such as complained of, were then in common use; or persons whom nobody would think of calling anything but good and prudent householders never lighted their stairways in those days nor insured their buildings. Nor would it be a good defense to assert that such actions and persons of such disposition were what the legislator had in mind when he spoke of a good and prudent householder, and the term "negligence" ought not to be given a meaning different from that which the legislator connected with it. We would simply smile at such an answer.
173 Austrian Civil Code, Sec. 1297. 174 Dernburg, "Pandekten," Sec. 86. 175 Unger, "System," Sec. Sec. 101, 102.
But suppose the defendant takes a different course. He offers evidence that prudent householders, or let us say persons of ordinary capacity, do as a matter of fact, sometimes or commonly, fail to light their stairways; or he raises an issue of fact on the point whether an ordinary person, with the exercise of ordinary attention, would have been moved to light the staircase or to insure the building; and he offers expert testimony by statisticians or psychologists to prove the facts, on the plea that the fact in question is of a statistical or psychological nature. Surely the court would decline to receive such evidence.
The answer to the question what acts are negligent is by no means limited to those which the legislator had in mind, as shown by historical research. The householder or the man of ordinary prudence, who is held up to us as a model, is not an actual average person who can be found by statistics or in some other way; the "ordinary moderate energy of action" he is expected to show is not at all a fact demonstrable by psychological methods. Nor is it intended that they should be such. By the concept "negligence" one does not understand some definite way of acting. To describe the manner of acting which comes within the concept, to invest the model held up by the law, the "diligens paterfamilias," with certain qualities; to estimate whether ordinary care would have been sufficient to lead to a certain act-all these things are not findings of fact but parts of the process of weighing facts in the scales of the law. For that reason such questions will be considered by the Supreme Court. In these cases the application of the law to the facts does not involve an inquiry into what meaning the legislator attached to the term "negligence." This is to some extent impossible, and in part would be of little help. It consists rather of estimating the character of the facts with the aid of the whole conception, ethical, economic, social, and otherwise, which the judge has of human life. This process of estimating is affected also passively by all the factors enumerated, and in it are involved equally the experience and knowledge of the world possessed by the judge and by the value judgments, i.e. currents of volition, that are to be found in his mind.
It is these currents of volition that really imbue the "prudent householder" with certain qualities176 which the judge postulates as existing in him, although he adapts his postulate as far as possible to what is met with in real life. Thus it is that the concept "negligence" is projected upon certain ways of acting.
From this we may see, also, that the process described, although it is not directed towards finding the intention of the legislator, is yet no such thing as analogy. At the same time it is not inconsistent with the intent of the statute. The concept "negligence" was to constitute a form 177 (it is immaterial whether this was intended consciously or not), by means of which a confused mass of unforeseen acts could be arranged so as to become susceptible to a legal estimate. In this higher sense, to be sure, one may reduce even projection to the will of the legislator. By means of this logical form it is possible for entirely new rules of conduct to arise which are to be distinguished from provisions of law by nothing except that one has to utilize the concept "negligence" in order to make them reasonable. For instance, when the number of vehicles increases, the custom grows up of driving always on the left side of the street. At once, people will incline, whenever two wagons or bicycles collide, to impute negligence to the party driving on the right side, although the custom of taking the left may be nothing but the result of a suggestion made, let us say, by the League of Wheelmen. As a matter of fact, though not formally by law, the rule of taking the left has, by the aid of the concept "negligence," become obligatory.