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from PART IX - Private Law
Published online by Cambridge University Press: 05 December 2014
In a famous article written in 1926 on the history of negligence in the law of torts, Winfield made the remark:
If we have started with the age of Bracton, where can we make our next pause in an historical sketch? Not until the nineteenth century. This may seem a breathless course, but till then the history of negligence is a skein of threads, most of which are fairly distinct, and no matter where we cut the skein we shall get little better than a bunch of frayed ends. In fact the tale is from beginning to end almost exclusively a narrative of action upon the case.
Cutting the skein may not be as deft a way of conserving the fabric of history as separating the threads, but before doing either it is worth pausing to reflect on some of the reasons for Winfield's perplexity. This will involve reviewing some of the historiography; but the excursion seems necessary in view of the continuing difficulties which have beset this topic.
First, there is the matter of vocabulary. It is all too easy to assume that words have always meant the same as they do today, and in particular that words which have become part of the lawyer's stock-in-trade represent eternal legal ideas or categories. When a word is captured by lawyers, it tends to spend the rest of its life in a kind of conceptual imprisonment; but words are rarely born in legal custody.
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