Holmes developed their theories by examining what they considered the purposes of the law of tort, and by attempting to tease principles out of the history of English case law.75The theory embraced by Brett in the 1880s, and refined by Pollock in the following decades was finally endorsed by the House of Lords in the seminal 1932 case of Donoghue v. Stevenson, which laid the basis of the modern tort of negligence.76 Although this was an appeal from the Scottish Court of Session, and hence from a ‘mixed’ jurisdiction, which had experienced a reception of Roman law, the law of Scotland was treated in the case as the same as the law of England. Instead of looking at what civilian theorists might say, Lord Atkin, in the leading speech in the case,began with a general moral principle, which he then sought to confirm by a painstaking examination of nineteenth century English case law.The result was a theory of negligence; but one which had been born out of forensic dialogues between common lawyers. re cht swi s s e n scha f t al s j ur i st i sch e dok t r i n 156 75 Holmes shared the empiricist approach we have seen in late nineteenth century England. He was particularly sceptical of German jurists who based their views on Kantian epistemology. In his essay on possession,Holmes wrote,“It will be a service to sound thinking to show that a far more civilized system than the Roman is framed upon a plan which is irreconcilable with the a priori doctrines of Kant and Hegel.”Criticizing German idealist approaches, he added that the “first call of a theory of law is that it should fit the facts.” (Common Law, pp. 206, 211). See further MathiasW. Reimann,‘Holmes’s Common Law and German Legal Science’ in RobertW. Gordon (ed) The Legacy of OliverWendell Holmes, Jr. (Edinburgh, 1992), pp. 72-114. 76 Donoghue v. Stevenson [1932] AC562.
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