Government Liability in Tort

EDWIN M. BORCHARD, Yale Law School


The common law and the political theory underlying both British and American constitutional law have been regarded as a bulwark of protection to the individual in his relations with the Government. The "rule of law" which Dicey and others extol is designed by judicial control to restrict within the bounds of legality the operation of the governmental machine in its contact with the citizen. Yet it required but a slight appreciation of the facts to realize that in Anglo-American law the individual citizen is left to bear almost all the risks defective, negligent, perverse or erroneous administration of the State’s functions, an unjust burden which is becoming graver and more frequent as the Government's activities become more diversified and as we leave to administrative officers in even greater degree the determination of the legal relations of the individual citizen. Obviously Administration cannot be held to the obligation of guaranteeing the citizen against all errors or defects, for life in an organized community requires a certain number of sacrifices and even risks. The unexampled expansion of the police power in the United States daily illustrates the uncompensated sacrifices to which the individual is exposed by the rightful operation of the State's public powers.