Contingency, Immanence, and Inevitability in the Law of Accidents

Abstract

For well over a century now, the law of accidents has offered one of the great testing grounds for theories of legal history. This article draws out three competing theories of history, and in particular of legal history, embedded in narratives of accident law’s development. The first is immanence; the second is contingency; the third is inevitability. The immanence idea is that there is a deep inner logic to the development of the common law of torts. Contingency narratives, by contrast, tell the story of accident law’s development as being accidental: untethered to any deep logic or transhistorical coherence. Finally, inevitability narratives contend that tort and accident law are driven inexorably in one direction or another, not by forces that are immanent or instinct in tort doctrine, but by institutions and economic imperatives that impose strong constraints on the development of the law. The article elaborates further on these three themes, highlights their significance, and shows some of the ways they have animated (consciously or otherwise) important work in the literatures of law and history. Along the way, the article notes the deep tensions between immanence narratives and contingency narratives.