The Basis of the Immunity of an Employer of an Independent Contractor

Abstract

Between the specious and often artificial legalistic concepts in which opinions of courts are couched and the plausible rationalizations devised by ingenious law professors, it is often difficult to determine the actual forces which have made the law, at any given time, what we find it to be. Man is a rational creature in one sense, but a thoroughly irrational one in another and by far the more important sense. He is adept in fashioning logical and even practical ratiocinations for his conduct to make it appear proper if not inevitable. But, on the whole, he has not developed the capacity for following a course of planned conduct according to blue prints prepared by the most competent social engineers. Thus, a rule of law is found in the reports to be based upon one or more supposed Blackstonean "reasons". In the juristic literature, the principle is based upon a pyramid of premises and inferences or upon an array of actual or fictitious social and economic considerations which are supposed to furnish an adequate social policy for the principle. It is seldom that a rule is frankly stated to be the law because a complex conjury of popular notions make the principle appropriate. And still less often is such a reason offered as an adequate justification for a rule of law. Nevertheless, these vague and nebulous popular notions variously branded as "public opinion", "common sense", "the general feeling of mankind" and the like are probably responsible for more rules of law than any other single factor and, it is submitted, such a basis for a legal principle is probably the soundest and most adequate that can be found. The fact that such a basis frequently defies accurate analysis because of the impossibility of attributing the exact effect of the myriad of considerations of the experience and heritage of a given generation which constitute the motive power behind social forces, makes it none the less important. By overlooking such forces, we are apt the more easily to be misled in making predictions as to what courts will hold in a given situation. Accordingly, a consideration of the basis for the curious rules and exceptions thereto with respect to the liability of an employer of an independent contractor, must not ignore these variable and illusory factors.