Common Problems and Uncommon Solutions in the Law of TORT: A Comparative Study

Let us begin with a problem which, as Alice might remind us, comes at the beginning, namely, when does the right to life begin? Is it at conception? Or at the quickening? Or at birth, or only after the child has lived for a certain period of time, thus demonstrating its intention to take living seriously?

It is understandable that to primitive legal systems, the answer was clear: human life and legal personality begin only at birth, when there was present a demonstrable human being which the law could recognize and protect. As is well known, the rest of the American jurisdictions apply the doctrine of contributory negligence (though often much mollified) whereby the plaintiff's action is barred if his own negligence contributed to cause the accident, regardless of the greater negligence of the defendant. There is little to recommend this latter doctrine except the principle of stare decisis. We began by posing the question: when does legal personality begin?

May we close by asking another fundamental question: when does legal personality end or put another way, when does death take place? Does it take place only when the heart stops beating, or as recently suggested, when the brain function has ceased for forty-eight hours as indicated by an absence of waves in the electroencephalogram. In this era of transplanted organs and perhaps heads, the philosophers, theologians, scientists and the jurists are being asked to redefine the notion of death.