Codification, Consolidation, Restatement? How Best to Systemise the Modern Law of Tort, by Paula Giliker

Tort law (or la responsabilité extra-contractuelle, Delikt, la responsabilidad extracontractual … in civil law) represents a dynamic part of private law. In setting out rules of fault and strict liability, tort law is expected to respond to social and economic change. This requires it to reflect social mores and be flexible enough to respond to innovation (for example, potential liability arising from use of the AI or autonomous vehicles).  Flexibility, however, can create problems in terms of the clarity and accessibility of its rules.  For systems with codified systems of law, the challenge is for an established Code to respond to the needs of 21st century accident victims.  Similar problems arise in common law systems which are uncodified – in relying on a system based primarily on case-law development with limited statutory support, how can you create a law of tort law that is responsive to change while being as far as possible intelligible, clear and predictable?

In my recent article in the International and Comparative Law Quarterly (P. Giliker, ‘Codification, Consolidation, Restatement? How Best to Systemise the Modern Law of Tort’ (2021) 70 I.C.L.Q. 271-305) I examine, from a comparative perspective, ways in which codified and non-codified legal systems have sought to systemise private law to render it more accessible and coherent and why it has proven so difficult in relation to the law of tort.  In examining codification (and clarifying what exactly we mean by ‘codification’ and how it differs from common law ‘consolidation’)[1]

I rely on a recent example, namely the proposals to recodify the tort section of the French Civil Code (the 2017 Projet de réforme du droit de la responsabilité civile (Civil Liability Reform Bill) of the French Ministry of Justice). These proposals follow on from those that led to the recodification of the contract law section of the Code civil in 2016.[2]  While consolidating and clarifying existing law, bringing back into the French Civil Code case-law developments dating from the late 19th century, the proposals also take the opportunity to address contemporary issues, such as how to improve the position of personal injury victims, and generally seek to modernise and enrich the law. Here codification is being used as a means of addressing fundamental tort law principles, setting out in one document the pillars of French tort law.

Codification may be contrasted with, what I term, the common law ‘partnership’: case-law and consolidating statutes. Statutes such as the Occupiers’ Liability Acts 1957 and 1984 and Defamation Act 2013 bring together rules of law, based, importantly, on pre-existing case-law precedents that survive unless specifically overturned.  In the absence of statute, it is case law that provides legal principle, although statutes can, and do, play a role in consolidating information. Examples, however, of statutes where the legislator seeks to state the law in a way that limits judicial intervention (which I term ‘mini-Codes’) have not worked well in tort. I give as examples two statutes that seek to codify the test for breach of duty in negligence. The first – the Social Action, Responsibility and Heroism Act 2015 [England and Wales] – has been treated with derision by English scholars and ignored by both litigants and the courts. The second – under the Australian Civil Liability Acts – has fared little better.

There is, however, no one right answer and the article highlights problems with both codification and the common law partnership of case-law and statutory consolidation. The French recodification, whilst long overdue, is at times over-ambitious, lacking in important detail in places (e.g key terms such as causation and dommage remain undefined), and policy positions are adopted that many would find problematic in that they are not based on political consensus. While improvements can (and no doubt will) be made, it is important to recognise that whatever its form, a code will not be capable of systemising the law single-handedly. The style of a Code, particularly that of the French Civil Code and those modelled on it, is one of general and abstract statements of principle.  Bell and Ibbetson rightly describe it as a reference point for legal debate rather than a prescription of what citizens must do.[3] Codes represent, therefore, not a comprehensive compendium of the law, but rather a starting point for travellers. It is intervention by judges and scholars that helps to interpret the Code and predict its application in contemporary life. In the words of Reinhard Zimmermann, “a code has to be brought to life, and to be kept in tune with the changing demands of time by active and imaginative judicial interpretation and doctrinal elaboration”.[4] In particular, Helleringer notes the role that legal scholarship plays in civilian systems in revealing through articles and studies the logic behind the structure of the law (or indeed, she argues, at times constructing the logic itself).[5]

The English ‘partnership’ of case-law and statute equally faces problems in systemising the law of tort, notably where Parliament shows no desire to intervene and case-law rationalisation either does not occur or, in the case of vicarious liability with six Supreme Court decisions on this topic since 2012, occurs far too often!  Common lawyers will be familiar with judicial statements deferring to Parliamentary intervention which, as seen in the case of negligently-incurred psychiatric injury, has failed to occur despite a damning Law Commission report in 1998.  Legal scholarship does, however, play a role in common law systems even if it has traditionally been downplayed.  Legal historians note that the publication of treatises in the 19th century played a part in helping the common law to resist the systemising lure of codification. Equally the work of modern-day consolidators and legal scholars is cited in courts. And yet such work remains under-valued and fails to achieve the influence of its civilian counterpart.  How can its status be improved? The article examines two possible options. First, it considers whether a restatement of tort (adopting the model of the US Restatements of Torts) might prove helpful. This first option, seen famously in the United States but also influencing European projects such as the Principles of European Tort Law,[6] is appraised, notably in the light of existing projects to restate English contract law.[7] It is found, however, to be unlikely to present a realistic option. While useful in relation to relatively settled areas of law, the indeterminacy of many areas of tort law, combined with the need for flexibility, renders any restatement likely to require regular updating.  Fundamentally, restatements have proven popular in the US and Europe in that they respond to divergence within a federal structure between the private laws of individual states. The impetus to create and fund a restatement is simply not present when this problem does not exist. 

A more practical solution, therefore, would be to consider how to encourage common law courts to better utilise scholarly systemisation.  Here, civilian systems seem to be ahead with la doctrine having a status almost equivalent to a source of law in France and a long-standing civilian tradition of commentaries written by groups of jurists published on private law.  I argue that common law judges should consider similar types of scholarship, that is, scholarship that is directed, not in the abstract, but which focusses on how courts decide cases and that is sensitive to the nature of judicial decision-making.[8] However, to encourage more scholars to undertake this kind of work, the value of such scholarship would need greater recognition, not simply by the courts, but by funding bodies, Law Schools, and scholars themselves. This is no easy fix, but one that seeks to improve the legitimacy of common law legal scholarship.

In writing this article, I had an ambitious goal – to consider how we systemise private law and identify similarities and differences between common and civil law approaches. Fundamentally, all systems face the same problems – what to do about “tort”? – and use a variety of methods, formal and informal, that seek to render the law of tort more accessible.  What is clear is that there is no “one size fits all” answer.  What is needed is both recognition of the nature of tort law and its often indeterminate nature and the way in which formal and informal sources of systemisation interact in common and civil law legal systems.

Posted by Professor Paula Giliker (University of Bristol)

[1] England and Wales, for example, has recently introduced a Sentencing Code (under the Sentencing Act 2020) but this is a consolidation of existing law, not a “code” in the civilian sense.

[2] Ordonnance n° 2016-131 of 10 February 2016 (ratified by loi n°2018-287 of 20 April 2018).

[3] J Bell and D Ibbetson, European Legal Development: The Case of Tort (CUP 2012) 5.

[4] R Zimmermann, ‘Codification: History and Present Significance of an Idea’ (1995) 3 ERPL 95, 114.

[5] G Helleringer, ‘Judicial Melodies and Scholarly Harmonies – The Music of French Legal Interpretation’ (2013) 77 RabelsZ 345.

[6] European Group on Tort Law, Principles of European Tort Law (PETL) (Springer 2005).

[7] A Burrows, A Restatement of the English Law of Contract (1st ed., OUP 2016; 2nd ed., 2020); N Andrews, Contract Rules: Decoding English Law (Intersentia 2016).

[8] See also J Stapleton, Three Essays on Torts (OUP 2021), who advises scholars to put judges at centre stage and take account of what they do and their constitutional responsibility to identify and articulate the ‘living’ and ‘evolving’ common law.