more slowly, have been used with great force in favor of the latter
view. But there is weighty authority for the belief that, however this
may be, "not the nature of the crime, but the dangerousness of the
criminal, constitutes the only reasonable legal criterion to guide the
inevitable social reaction against the criminal."

The impediments to rational generalization, which I illustrated from the
law of larceny, are shown in the other branches of the law, as well as
in that of crime. Take the law of tort or civil liability for damages
apart from contract and the like. Is there any general theory of such
liability, or are the cases in which it exists simply to be enumerated,
and to be explained each on its special ground, as is easy to believe
from the fact that the right of action for certain well known classes of
wrongs like trespass or slander has its special history for each class?
I think that the law regards the infliction of temporal damage by a
responsible person as actionable, if under the circumstances known to
him the danger of his act is manifest according to common experience,
or according to his own experience if it is more than common, except in
cases where upon special grounds of policy the law refuses to protect
the plaintiff or grants a privilege to the defendant. I think that
commonly malice, intent, and negligence mean only that the danger was
manifest to a greater or less degree, under the circumstances known to
the actor, although in some cases of privilege malice may mean an
actual malevolent motive, and such a motive may take away a permission
knowingly to inflict harm, which otherwise would be granted on this or
that ground of dominant public good. But when I stated my view to a very
eminent English judge the other day, he said, "You are discussing what
the law ought to be; as the law is, you must show a right. A man is not
liable for negligence unless he is subject to a duty." If our difference
was more than a difference in words, or with regard to the proportion