Comparative Tort Law – Global Perspectives (Edward Elgar 2021), by Mauro Bussani and Anthony Sebok

Common questions

This book is an edited collection of twenty-four essays aiming to provide a framework for reflection and analysis about tort law and its recent developments in ‘Western’ and ‘non-Western’ legal systems.

The fixed point that guided the selection of authors and topics in the book is the idea that tort is a concept that has a distinct meaning in all legal systems – even if in some systems there is no word to translate the notion of ‘tort’, and even if in some legal systems the legal consequences of a cause of action in tort are not clearly differentiated from other private law or public law mechanisms. While legal systems may not share a terminology, they share a common set of questions: what wrongful conduct by the defendant triggers liability, and for what grievances [may] the plaintiff recover?

The Overall Settings

With the aim of investigating the answers to such questions throughout the globe, the book is divided into three sections: ‘The Overall Settings’, ‘General Issues’ and ‘Beyond the Looking Glass’.

The section on ‘The Overall Settings’ opens up with a chapter by Marta Infantino and Mauro Bussani on tort legal cultures, explaining that the whole framework of tort is based on contingent elements that are contestable from one time or another and from one perspective or another. For example, certain categories internal to Western tort law, such as causation and injury, are revealed to be highly contingent depending on various political and cultural factors.

Among the other general issues ‘shared overall’ in tort throughout the globe, we placed the subjects of: conflict of laws (Symeon C. Symeonides); human rights (Giovanna Gilleri); tort and crime (Matthew Dyson); the economic analysis of torts (Giuseppe Dari-Mattiacci and Francesco Parisi); insurance (Ina Ebert) and alternative compensation schemes (Daniel Jutras). As editors, we were conscious that these chapters deal with solutions to affluent countries’ problems, and reveal the gravitational pull of Western tort systems on our thinking. But it is precisely the self-consciousness produced by the task of drafting an organizing structure that we wished to harness and highlight.

General Issues (in the West)

Chapters in the section on ‘General Issues’ provide the reader with an overview of the main areas of conflict and development among modern North American and European tort systems.

To set the stage, James Gordley offers a historical account of the common law and civilian systems. Gordley makes clear that there is no necessary logic to the development of tort law in the West among the concepts of responsibility conventionally known as strict liability, negligence and intentional wrongdoing.

Yet the question of the choice between negligence and strict liability has taken on special importance in Western tort systems. This is, as Franz Werro and Erdem Büyüksagis show in their chapter, a result of numerous causes. The most significant is the explosive growth of industrial activities and technological developments that moved civil society away from ‘artisanal’ risks that could be ameliorated with conscious investment of care to a world of statistical risk. The other development is the self-conscious activism of the legislator to use legal codes as a tool for the maximization of social welfare and the minimization of accident costs – a political development that may have been prompted by the growth of the welfare state.

The chapters on professional liability and products liability illustrate one way in which convergence at the level of doctrine has occurred in Europe. Ewoud Hondius provides a survey of professional liability in European jurisdictions by focusing primarily on the development of medical malpractice liability. Hondius notes divergence among European nations as to their formal approaches to medical malpractice, but also stresses how these differences have been ameliorated by the progressive convergence of the regimes applicable to tort law- and contract law-based professional claims. The theme of harmonization looms even larger in Mathias Reimann’s chapter on product liability. In this area of law, diverse strands of contract and tort law were pulled together to form a new hybrid body of law under the EEC’s 1985 Products Liability Directive, which was then integrated, although in different degrees, into the legal regimes of EU member states.

The chapters on causation (Marta Infantino) and pure economic loss (Vernon Valentine Palmer) describe another complex interplay between façades and substance in doctrine. In these areas, the problem is the so-called ‘floodgates’ problem, that is, the need not to expose wrongdoers and judicial systems to limitless and socially costly liability judgments. In each of these areas, different Western systems have grappled with this problem by asserting the existence of limiting principles, grounded on causation or on the nature of the loss. Dealing with the same problem, the account of non-economic losses in Western tort systems is presented in two chapters that take very different approaches. Sugarman focuses on the mechanisms that tort systems employ for calculating the quantum of damages, given that the translation of emotional and physical suffering is fraught with risks of error in every direction. Amram and Comandé look to the future, and ask how new technologies and advances in information science can locate common features within the national legal systems to produce a reliable tool to predict non-economic damages awards.

Beyond the Looking Glass (non-Western systems)

The chapters on non-Western tort law in the section ‘Beyond the Looking Glass’ illuminate the importance of history and culture in the development of national tort systems.

Alexander Yagelnitskiy’s chapter on Russia reveals how many of the matters discussed in the book have undergone a slow evolution, to the point where the modern doctrines of general duty, causation and non-economic harm closely resemble the tort law of France, Germany and other European nations.

Moving to East Asia, Emi Matsumoto offers a chronology of the development of Japan’s ‘mixed’ tort system. In Japan, the German and French codes were both influences on the drafters of the Japanese code at the end of the nineteenth century. But, as Matsumoto tells us, many other factors, such as the tendency to translate foreign legal terms in a literal manner, and the underlying Japanese understanding of society and social relations, played a significant role in the development of the law, too. The case of China (Hao Jiang) is no less illuminating about the long-term resistance of deeply entrenched legal practices. As is well known, the enactment in 2009 of a brand-new Chinese law on tort and the entry into force of the Chinese Civil Code in 2021 are but the last chapter of a long series of legal transplants from the West (mostly from Germany and the US). Yet, Chinese official law offers a poor guide for understanding the legal remedies available to tort victims. In a country that has been run by its own set of social norms for thousands of years, foreign-inspired rules cannot be superimposed overnight. By contrast, the foreign-inspired transplants have created a dynamic and pluralistic framework, where customary understandings coexist with a growing awareness of the potentialities opened up by the official system.

Manjeri Subin Sunder Raj, Ujal Kumar Mookherjee and Aman Deep Borthakur’s chapter on India starts with the powerful influence of one Western nation (the UK) and illustrates how global forces in the last hundred years have pushed it to develop a national tort law. One of the most important developments in Indian tort law was the accidental mass poisoning at Bhopal, which led to dramatic moves by the Indian national court system to domesticate those claims.

Dominic N. Dagbanja’s chapter on tort law in Sub-Saharan Africa takes on the massive task of both describing multiple layers of law (the official and the customary) and many national laws with different political and colonial histories. Dagbanja notes that the official common law in former British colonies in Sub-Saharan Africa does not look very different from Western tort systems. Yet, the list of interested protected by official tort law is paralleled by the list of interests protected in customary tort law in Sub-Saharan Africa. The individual is not the primary bearer of the protected interest; family or kin possess the interest to be protected. This affects not only the range of subjects who may react to or respond for wrongdoing, but also the interests and remedies which are given priority in the concrete application of customary tort law rules.

Abdul Basir bin Mohamad’s chapter on Islamic tort law offers an analysis organized around two sets of questions: the fault of the defendant and the interests protected by tort law. But distinctive to the systems described by Basir bin Mohamad is the source of the law, the Qur’an (Koran), which is explicitly religious. The interpretation of the verses of the text and the authoritative sermons about those verses present a fascinating illustration of legal interpretation, which shares points of comparison and contrast with the methods of interpretation of official and customary law discussed elsewhere in this book.

Marco de Morpurgo and Daniel Peñailillo Arévalo’s chapter on tort law in Latin America provides another perspective on the way that local political and social conditions can shape the tort law in one specific legal family. Given the specific history of Latin American colonization, the history of legal transplantation favored first the codes of France and Spain, and only later United States tort law. However, the colonial and post-colonial influence was both assimilated and resisted in different ways, creating a gap between the official and unofficial sectors of the law. On the same continent, Umberto Celli Jr’s chapter on Brazil presents yet another unique route towards convergence with European tort law. The new Brazilian civil code of 2002 borrows heavily from civilian tort concepts, especially in the adoption of the idea of ‘moral damages’ as well as in its flexible application of the rules of causation.

Conclusions

Ideally, there are two types of books: those that provide a ‘definitive’ statement in a familiar area and those that open new areas and raise more questions than they provide answers. We hope that the volume belongs to the second category, showing how comparative law can be used to study in depth the evolutions and current contents of tort law across jurisdictions and cultures.

Posted by Professor Mauro Bussani (University of Trieste (Italy) & University of Macao (S.A.R. of the P.R. of China) & Professor Anthony Sebok (Cardozo Law School)

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