Explaining Tort and Crime (CUP 2022), by M Dyson

Explaining Tort and Crime describes how English examples of the relationship between tort and crime have developed over the last 170 years, testing those explanations against examples from other legal systems. The comparator countries are France, Spain, with pinpoint references to, in this order of detail, German, Swedish, Brazilian, Chilean, American and Australian law. The book completes a trilogy of works, along with the edited collections Unravelling Tort and Crime (2014), focused on English law, and Comparing Tort and Crime (2015), focused on modern comparative law, all published with Cambridge University Press.

The book, and the series it is part of, explore how criminal law and tort law relate to one another. The interfaces between these areas of law are one of the least studied overlaps in English law, and one of the least fully understood in many legal systems. These books have attempted to contribute to a greater understanding of that area of law. The present volume takes particular case studies of tort and crime’s connection: to do so it is divided into four parts.

Part 1, Setting the Scene: Introduction and Methods

This Part sets out the comparative and historical tools used in the work. The book involves a stage of functionalism, reinforced with “structural” and a “cultural” approaches. This Part sets out how one might compare as much within a system, as across systems. In addition, for the book a sub-species of comparative method was created, dubbed “comparative calibration”. One theme running through the book is of trying to understand how and why legal systems develop, and in particular, in how certain emblematic areas of criminal law and tort law have done so. It sets out the English story for those areas, and tries to explain why the story unfolded in the way it did. Those explanations are then tested against stories from other legal systems, and explanations for them. The legal systems, and focuses of the stories are selected to allow valuable comparison. In this way, the explanations about English law are “calibrated” by reference to the explanations elsewhere. For that reason the book’s substance is around two-thirds on English law, but still presents much of interests to those from other legal systems, and not just the comparator countries. There are two chapters in this part, the brief introduction, followed by the chapter on methods.

Part 2, Mental States and Careless Acts: The Development of Fault Doctrine in Crime and Tort

In this Part, how fault concepts, including intention, recklessness, negligence and strict liability developed is analysed. These were selected as cases studies in the substantive part of the law, where the same conceptual language is often used in both tort and crime, but its intertwined development, and its precise meaning, are often not interrogated. Other examples would have included unlawfulness, wrongfulness, rights, causation, and consent.

This Part is made up of three chapters. It includes a chapter on fault concepts in criminal law, one on tort law, and one comparison chapter. The Part picks out specific questions from the overall story, such as why, in the twentieth century, criminal law pushed deliberate risk-taking out of the concept of intention, and into a new category, recklessness, while tort law did not do so. Similarly, it explains why negligence featured barely at all in criminal law reasoning, but when it did, it as a civil law concept of negligence. Another example is how “strict liability” came to mean something different in criminal law, than in the rest of English law, especially tort. Instead of the established meaning, of liability regardless of, or without proof of, fault, in criminal law fault could still be present but the offence became known as one of strict liability. In criminal law, in a process beginning in the 1940s, strict liability began to mean where at least one physical element of the offence did not have a corresponding fault element. There might be many physical and fault elements present, but as soon as there was one physical element about which the defendant did not need to be at fault, the criminal form of strict liability was created. The reasons for these developments blend historical accident and path dependency, with approaches to culpability, particularly a trend for subjectivism and its counterbalance in allowing liability without any fault element present at all.

Part 3, Procedures Interfacing Tort and Crime

Three chapters chart and explain three procedural interfaces: criminal powers to compensate, timing rules to control parallel actions, and convictions as evidence in later civil cases. Even if legal systems have not considered how conceptual work like fault doctrines compare across tort and crime, they have had to decide what happens where they interact procedurally. Compensation inside a criminal court is a paradigmatic question. In some legal systems, criminal law is not concerned with compensation, so a civil “joined in” action is used instead. This yokes the criminal justice system to the pursuit of civil law concerns, with various limits and constraints depending on the system and point in time. In the common law tradition, criminal law is often viewed as being able to compensate, so autonomous “compensation orders” can be used as criminal orders. In England, while they normally loosely track civil law concerns, they are cut free in a number of ways. Other procedural connections explored pick up, and decide where, the implications of a criminal prosecution end. Thus, whether a civil claim should be suspended while a criminal prosecution is ongoing is more significant where the criminal prosecution does not typically (as in many situations in France) or by default (as in Spain) compensate the victim. Similarly, whether a conviction is evidence, or conclusive, of facts or legal matters in a later civil action on the same issue, will be more of a live issue where the criminal prosecution has not resolved the matters the victim is concerned about.

Part 4, Conclusions

The last Part brings together themes across the development in fault and procedure, and tries to explore what it called the “patterns of development” in the law. That is, it pulls together ideas and shared experience, visible as motifs in the law of many legal systems. It pulls together six such patterns, concerning structure, substance and transition, picking up examples from across the book. The purpose is to offer something more specific than macro-level statements about legal change, operating on a very high level of abstraction, and something more theorised than micro-level stories of particular events, on particular days or over short periods. For that reason, the book covers 170 years, and multiple jurisdictions. A brief concluding chapter completes the volume’s ten chapters.

Explanations and future patterns

On one level, this book sheds light on how and why law changes, and in particular to push legal actors to think more about the relationship between criminal law and tort law. It shows that much of what we think about as obvious can be conditioned by decisions made in the past, and by particular values we might not be considering carefully. One of the interesting observations is how common law legal systems seem most commonly not to have an overarching structure for how criminal and civil law are compared. Instances of interaction between civil and criminal law tend to be seen as relatively isolated incidences, and the wider picture need only been gestured at. By comparison, many legal systems in the civilian tradition do have such a structure. Theirs often grew out of the modern codification movements around the nineteenth century, though not always. Nonetheless, whether that overarching infrastructure is there or not, many of the doctrinal details are not fully worked out, and much of the normative argumentation is incomplete. It is almost like having the superstructure can have the effect of not looking further at the issues. It is also very clear that procedure has played a very significant role in how the law has developed. This is particularly clear in France, with the civil action inside a criminal prosecution driving a lot of the development of the law.

On a wider level, this book pushes legal actors to reflect on what borders they believe in within legal systems, why, and with what consequences. In one sense, that ties in with some of the most difficult questions for researchers and practitioners: how can we validly limit our research topics. Where one idea starts, and where it ends, is often very difficult to work out. That is no less the case in law, as an example of a subject in the social sciences, and humanities. It takes time, effort and skill to work out the limits work should have, to leave some questions out, or to prioritise certain perspectives on. There’s a similar burden of choice and consideration to writing about them clearly, and for the reader, to follow and understand them. Partly those choices flow from the purposes of the research, but they also bound up with how interconnected legal phenomena can be. For comparative legal historians, the problems are often most visible in considering how far back in time, and in identifying which legal systems to study. This book goes a step further, and considers what the limits of two areas of law are, tort and crime. The same fact patterns, travelling on two substantive routes, might pass through the same court on the same day. There remains much work to be done to understand each fact pattern’s journey, and how it has changed over time, but some of it, at least, is now open to view.

Posted by Matthew Dyson (Professor of Civil and Criminal Law at the University of Oxford).