Justifying Strict Liability: A Comparative Perspective, by Marco Cappelletti

The imposition of strict liability in tort law is controversial, and its theoretical foundations are the object of vigorous debate. Why do or should we impose strict liability on employers for the torts committed by their employees, or on a person for the harm caused by their children, animals, activities, or things? Legal actors (scholars, judges and legislators) across jurisdictions have put much effort into seeking to provide proper justifications for strict liability, whether in general or in relation to specific torts (or “contexts of liability”), but they have by no means agreed on what these are or should be. As a result, the justificatory basis of strict liability remains hotly contested.

In my monograph, entitled Justifying Strict Liability: A Comparative Analysis in Legal Reasoning (OUP 2022), I explore in a comparative perspective the most significant arguments which legal actors put forward to justify the imposition of strict liability in four legal systems, two common law (England and the United States), and two civil law (France and Italy). As each of these jurisdictions has its own distinctive ways of thinking and theorising about tort law in general and strict liability in particular, they offer a valuable perspective on the variety of reasoning on strict liability in tort law and how it differs across legal systems. Moreover, by including legal systems belonging to both the common law and civil law tradition, my analysis allows to identify differences and similarities both within and across them. The justifications explored in the book include risk, accident avoidance, the “deep-pockets” argument, loss spreading, victim protection, reduction in administrative costs, and individual responsibility.

The book unearths and discusses a variety of ways in which these arguments are used across the four legal systems and it also assesses the justificatory weight they carry in each. While the main focus of the book is on the legal reasoning put forward in more recent times, the views of legal actors in the nineteenth and early twentieth century are also discussed, given that those views are still very influential today and form an integral part of the modern conversation on the theoretical basis of strict liability. By looking carefully at the patterns of use and significance of each argument, the book paints a complex picture in relation to each justification for strict liability. There is not enough space here to discuss the findings regarding every single argument – for these, the reader is referred to the individual chapters included in Part 3 of the book. This blog post can instead draw the reader’s attention to some of the wider points emerging from the analysis. These points concern, first, the relationship between the arguments for strict liability and the contexts where strict liability is or should be imposed; secondly, the patterns of reasoning on strict liability; and thirdly, the relationship between the arguments for strict liability and the broader values/goals inspiring tort law in the four legal systems.

Before focusing on these substantive points, I would like to provide a brief overview of the comparative law methodology adopted in the book.

A Preliminary Word on Comparative Law Methodology: The Jurisprudential and Structural Approaches

My book combines two methods of comparative law, the “jurisprudential” approach and the “legal formants” approach. The jurisprudential approach aims for “an understanding of conscious ideas at work” in legal systems, that is “the principles, concepts, beliefs, and reasoning that underlie … legal rules and institutions”: William Ewald, “The Jurisprudential Approach to Comparative Law: A Field Guide to Rats” (1998) 46 AJCL 701, 705. This approach is intimately connected with the core aim of the book, which is to advance our understanding of the ideas that lie behind strict liability and inspire its imposition across the four legal systems reviewed. Secondly, my emphasis on legal arguments finds support in Rodolfo Sacco’s structural approach to comparative law. According to this approach, the reasons through which legal actors reach a certain solution constitute one of the “legal formants” which shape the legal system and which “have a life of their own”; this is so true that “[l]egal systems where the conclusion is supported by different justifications cannot be regarded as identical”: Rodolfo Sacco, “Legal Formants: A Dynamic Approach to Comparative Law” (1991) 39 AJCL 1, 30. So, by treating the arguments for strict liability as a legal formant, the book seeks to improve our understanding of the legal formant itself, i.e. the arguments, as well as of the broader system of which they form part, and therefore of strict liability and the tort system more generally.

The relationship between arguments and contexts of strict liability

Paying attention to the contexts of liability in relation to which the individual justifications are invoked is clearly very important in understanding the role and significance of such arguments in each legal system. At the same time, though, a point which emerges from the analysis is that there seems to be no one-to-one relation between any particular argument and any particular context of liability. In other words, the same particular argument may be used to justify strict liability in a plurality of contexts and, conversely, a particular context of liability may attract a multitude of arguments. To give an example, an argument from risk may be invoked to justify product liability or the vicarious liability of employers; at the same time, each of these contexts of liability may be justified on the basis of additional arguments such as accident avoidance, loss spreading, or victim protection. A possible explanation for this phenomenon lies in the nature of the arguments themselves. Indeed, justifications such as accident avoidance or victim protection are malleable enough to be used to justify strict liability in most situations, regardless of the activity or conduct carried on by the defendant. Other arguments, it is true, have some built-in elements that restrict the range of situations which can attract them and, therefore, the contexts of strict liability they may justify, examples including some permutations of the risk argument such as risk–profit or abnormality of risk. The fundamental point, though, holds true in any case: each of the arguments explored is seen in the four systems as capable of justifying strict liability in multiple contexts; at the same time, the same context of liability may well attract a plurality of arguments.

Patterns of Reasoning in Strict Liability

There are many ways in which the justifications for strict liability are used in the four legal systems reviewed, with three main emerging patterns. First, arguments can be put forward as stand-alone justifications. Secondly, they can be juxtaposed among themselves. Thirdly, they can be combined among themselves.

Where an argument stands alone, it means that, in the view of its proponent, it constitutes the only justification that explains or supports strict liability in the relevant context. For example, an influential French scholar argues that what justifies the strict liability of parents for the harm caused by their children is “the desire to make sure that the victim … receives compensation”: Geneviève Viney, Les conditions de la responsabilité. Traité de droit civil (4th edn, LGDJ 2013) [870] at p.1186. This pattern can be identified in relation to most of the arguments discussed, but generally, and very importantly, reliance on stand-alone justifications is rare in all four jurisdictions. This reveals that strict liability is generally perceived as requiring a reinforced justificatory basis which cannot be provided by a stand-alone argument. And indeed, legal actors in the four systems typically link strict liability to a plurality of arguments which are usually put together either in juxtaposition or in combination.

Where a legal scholar or judge puts forward a juxtaposition of arguments, they are providing a list of independent justifications which point to strict liability from different directions. Juxtaposed arguments do not show any meaningful integration or interconnectedness among themselves and are instead simply thrown in the mix one after another. Precisely because of this, any argument can be juxtaposed with any one or more of the others and there are really no limits to the inventiveness with which legal actors across the four legal systems juxtapose arguments, regardless of their nature. For instance, in advocating the adoption of strict liability for bursting cyber-reservoirs of personal data, a US scholar puts forward lots of different justifications, including a specific understanding of accident avoidance, a concept of enterprise liability based on loss spreading and (again) accident avoidance, and loss spreading as burden-benefit proportionality, nonreciprocity of risk, and various conceptions of individual responsibility: Danielle Keats Citron, “Reservoirs of Danger: Evolution of Public and Private Law at the Dawn of the Information Age” (2007) 80 S Cal L Rev 241, 283–93. It is often the case that juxtapositions reveal a deficit of clarity in legal reasoning, especially where lots of justifications feature together; and this is true for all four legal systems. In particular, it is often difficult to understand the interplay, if there is any, among the arguments put forward and to pinpoint their relative significance within any broader reasoning. For example, if one juxtaposes victim protection and accident avoidance, what is the relative justificatory weight of each of these goals? Do they have the same weight or does either of them take priority over the other? How should a conflict between them be resolved? Unfortunately, in a majority of cases of juxtapositions, the reasoning put forward is quite opaque and one is left to speculate about the significance and role of each argument relative to those of the others in the list.

The situation looks different in relation to combinations of arguments. Where a legal actor combines two or more arguments, these arguments are not put forward as separate, independent rationales, but are instead presented with some level of integration or interconnectedness. In contrast with the juxtaposition pattern, clearer trends can be identified in relation to combinations of arguments. For instance, victim protection and accident avoidance are typically not combined in any of the four legal systems. A plausible explanation for this is that these two justifications are often seen as ultimate goals of strict liability that neither fuel each other nor work together for the achievement of some other, further goal. Another interesting point regarding combinations of arguments is that most frequently one or more arguments act as goals of strict liability and one or more others act as a means to achieve those goals. For example, the deep-pockets and the loss-spreading arguments may be relied upon to pursue victim protection (as happens in all four systems), or, quite differently, to avoid accidents or minimise their social costs (as happens in the United States and, more rarely, in Italy and England). Or take risk–profit and risk–benefit, which support the imposition of liability for harm on the party who benefitted financially (“profit”) or in some other non-pecuniary way (“benefit”) from imposing the relevant risk (of harm) on others: these ideas may be used to promote norms of individual responsibility (especially in England and in United States), or, rather differently, to ensure that the victims of accidents receive compensation (especially in France and Italy). A final, further point concerning combinations of arguments is that, in essence, they are not affected by the problems of clarity which instead characterise the juxtaposition pattern. Indeed, when combining arguments, the relevant legal actor is usually led to clarify the role of each argument and therefore the relationship among the arguments being combined. Excellent examples of this are provided by the writings of those working in the field of law and economics, where arguments such as accident avoidance, loss spreading, and administrative cost reduction are often balanced with one another and assessed in light of their wider effects on the minimisation of the social costs of accidents; see, e.g., Guido Calabresi, The Costs of Accidents: A Legal and Economic Analysis (YUP 1970). Similarly, scholars who approach the law from the standpoint of morality and personal responsibility sometimes put forward risk-based justifications in combination with norms of individual responsibility, explaining how the two relate to each other and how they work together to provide a morally appealing justificatory basis for strict liability; see, e.g., Jane Stapleton, Product Liability (Butterworths 1994) 179–200.

Justifying Strict Liability: The Wider Values and Goals

The arguments used to justify strict liability assume varying significance in the four legal systems, and such variations reflect the different views of different legal actors as to the values and goals which inspire (or should inspire) strict liability and tort law more generally. Important examples of such values and goals include social solidarity, the avoidance of accidents, the minimisation of their social costs, the meeting of victims’ needs, or the fulfilment of norms of individual justice and responsibility. All these commitments may well coexist within the same legal system, giving rise to interactions and clashes of views that manifest themselves in the reasoning justifying strict liability.

Moreover, an intimate, two-way relationship between the arguments for strict liability and the broader values and goals emerges from the analysis offered in the book. First, the use of specific arguments can help shed light on the broader values and goals to which legal actors are committed when approaching the functions of tort law in general and of strict liability in particular. Secondly, and at the same time, these values and goals provide a specific connotation to the arguments used, with the result that the same justification will be understood differently in the hands of legal actors who proceed from different commitments.

In addition, it becomes clear that the legal reasoning on strict liability does not track the distinction between civil law and common law. Indeed, such reasoning has its own specificities in each legal system, with the result that there are lots of differences and similarities among all four systems, i.e. both within each of the two legal traditions (civil law and common law) and across them. In other words, while there certainly are similarities between France and Italy and between England and the United States, there are also profound differences between the two civil law systems and between the two common law systems. For example, a common trait in the French and Italian reasoning on strict liability is that no meaningful reliance is placed on arguments based individual responsibility, which instead are very much alive in the English and US debate about the proper role and functions of strict liability (and of tort liability more generally). At the same time, accident avoidance has limited significance both in the French and in the English reasoning on strict liability, while it is seen as a key justification in the United States and Italy. This difference can be traced back, at least in part, to the different treatment of law and economics: frowned upon in France and England, kept in high regard in the United States and Italy. In sum, as these examples show, different arguments for strict liability sometimes reveal similarities, sometimes differences, within and across legal traditions.

Overall, to understand the reasoning used by legal actors in each system to justify strict liability it is essential to pay close attention to each individual justification and to see how this is treated and what its significance is in each jurisdiction. At the same time, it is important to consider the wider values and goals which inform different tort cultures and which bear on the reasoning in strict liability. The overall result of this is a very complex picture of such reasoning, showing that the way in which strict liability is justified depends fundamentally on the values and goals that prevail at different times in different jurisdictions.

Finally, I am delighted to add that, in recognition of its quality and contribution to comparative  legal studies, the book has been awarded the Grand Prize (“Canada Prize”) of the International Academy of Comparative Law. The announcement was made during the International Congress of Comparative Law, held in Asunción, Paraguay, in October 2022.

Posted by Dr Marco Cappelletti (Oxford, St John’s College)