I. INTRODUCTION
The distinction between civil and common law systems has often been characterised as the distinction between codified and non-codified systems. De Cruz, for example, in his student textbook advises that ‘it is still true to say that … the primary source of law in civil law countries … is still predominantly codified or enacted law, whereas in common law countries it is still predominantly case law’.Footnote 1 As comparative lawyers know, this statement is a simplification,Footnote 2 based on a private law perspective with limited relevance to public and criminal law, but one that remains fundamentally true for the law of tort/extra-contractual liability.Footnote 3 Lord Hodge, for example, in 2019 described the common law of obligations as ‘essentially judge-made’.Footnote 4 In contrast, it is the Civil Code that takes centre stage in civil law jurisdictions such as France, where it retains ‘une forte charge symbolique’:Footnote 5 the rules applicable to la responsabilité extracontractuelle set out in articles 1240–1252.Footnote 6
This article will examine how common and civil law systems have responded to claims that the law of tort lacks precision and coherence using as examples English and French law. Both legal systems have manifested concerns at the lack of systemisation of contemporary tort law. Oliphant argues that this has serious implications: ‘incoherence … in large parts of our law of tort is a major barrier to our communication of its key tenets and our engagement in debates about its future’.Footnote 7 This article will therefore examine, from a comparative perspective, the means by which the law of tort can be rendered more accessible, intelligible and coherent.Footnote 8 It will first examine codification: the methodology favoured by the civil law legal tradition. Codification of tort law will be examined in the light of recent proposals by the French Ministry of Justice to update the codification of the French law of tort.Footnote 9 While not yet enacted due to a change of government in May 2017, these proposals remain under active consideration and cast fresh light on the potential benefits of a modern codification of tort law. Codification here permits not only a period of reflection on the role of tort law in twenty-first century society, but also gives the drafters the opportunity to remove dead wood, rationalise case-law developments and clarify any misunderstandings arising in the law. Codification of private law is not, however, a purely civilian idea. Weiss points out that English lawyers have been engaged in thought about codification for over 200 years with a list of failed code projects including contract, criminal and commercial law.Footnote 10 Bentham, perhaps its most well-known advocate, saw codification as a vital means to make the law accessible and predictable to the layperson.Footnote 11 Further, the Law Commission Act 1965 expressly requires the Commission to contemplate codification as a means to systemise, modernise and simplify the law.Footnote 12 Steiner has been forthright: ‘As a consequence of the failure to conclude any codification project, important areas of English law have been left in a critical condition and in real need of some form of systematisation and clarification.’Footnote 13
However, codification is not the sole option available. In rejecting codification, as we will see, the common law has developed its own methodology, with statute playing an important role in consolidating case-law development. While confused, at times, with codification, it is a distinct methodology providing a means of bringing greater certainty to the common law. More informal options also exist: legal scholarship and, notably in the United States and at a European level, restatements in which a particular organisation seeks to restate core principles of private law. These projects have different goals—at US level to assist courts in a federal system by providing clearer formulations of the common law and its statutory elementsFootnote 14 and in Europe to identify a common core of European tort law principle.Footnote 15 While not intended to serve as a model code,Footnote 16 these provide more informal methods of rationalising the law supported by commentary and model rules.
If we seek to improve the accessibility, intelligibility and coherence of tort law, it is important to examine critically the modes of systemisation used by common and civil law systems. Should common lawyers reconsider codification as a means to improve existing law or is the current resistance to such ideas justified? To what extent can common law consolidation provide a mechanism to clarify principles of tort law? While much has been written about contract law, both in terms of European harmonisation and projects for codification,Footnote 17 tort law has so far received limited attention, despite concerns as to its coherence and accessibility. In this article, I will examine why tort law has proven particularly difficult to systemise, before examining codification, consolidation and restatements as techniques to bring greater coherence to the law. It will be shown that in both common and civil law systems, there is room for improvement. The very nature of tort law requires a response that accepts the need for both formal and informal modes of systemisation. More needs to be done.
II. TORT LAW AND UNCERTAINTY: A PROBLEM?
Before examining the mechanisms used by common and civil law to systemise private law, it is helpful to identify first why the accessibility, intelligibility and coherence of the law of tort are regarded as such a problem. One factor all systems of tort law have to face is that parts of tort law are inherently indeterminate. Tort law, as a law of civil wrongs, must adapt to changing circumstances and reflect the values and norms of a particular society. Too rigid a system would not be able to respond to contemporary needs and economic, social and technological change. Many tort law concepts such as ‘fault’, ‘reasonableness’, even ‘causation’ or ‘harm’ are therefore relative—relative to the standards set by a particular society, judicial determination of the scope of liability and to the facts of the particular case. Liability for negligence, for example, requires proof of behaviour that falls below the standard expected of a ‘reasonable’ person. Ultimately, if we are trying to assess how the reasonable person would behave,Footnote 18 this will be context dependent and subject to a finding how subjective/objective such a test should be. Wagner, for example, describes the concept of fault as a ‘battleground’ where rival theories of tort law are fought out.Footnote 19 Cane argues that:
… making and developing tort law involves striking a balance between the interests we all share in personal and financial security on the one hand, and freedom of action on the other. In this way, tort law establishes a particular pattern of distribution of the risks and costs of the types of harm against which it provides protection.Footnote 20
The problem is that this pattern is not self-evident. It will vary from one jurisdiction to another (and over time). In particular, the balance between strict and fault-based liability rests not simply with black letter rules, but with the values the State espouses.Footnote 21 Stability, as Cane argues, can only be one factor that is taken into account when establishing the law of tort. Flexibility is both desirable and necessary.
One way in which this flexibility is achieved is by judicial intervention. In both common and civil law systems judges play a significant role in developing the law. For common lawyers, the need for judicial intervention is self-evident: ‘For centuries judges have been charged with the responsibility of keeping this law abreast of current social conditions and expectations. That is still the position.’Footnote 22 Although legislation covers some elements of tort law, for example, statutes that provide tortious remedies for issues such as discrimination, data misuse or financial misconduct,Footnote 23 the general principles of tort law are largely constructed from case law, with some statutory assistance.Footnote 24 Even in civil law systems, while codification provides the primary source, judges are not merely ‘la bouche de la loi’, to quote Montesquieu, but play a creative role in keeping the provisions of any code alive and relevant to contemporary social experience. As Griss has remarked, ‘[i]t is not only judges in common law countries who develop the law: developing the law is also an important task of judges in civil law countries’.Footnote 25 Portalis, one of the four drafters of the French Civil Code, saw his role as to fix, in broad perspective, the general maxims of the law and conceded that judges and legal scholars ‘imbued with the general spirit of the law’ would at some point need to assist in the application of the law.Footnote 26 Case law in both systems then seeks to ensure tort law remains flexible and responsive to social change. The price to be paid for such an approach is a need to systemise the decisions in question. Mechanisms do indeed exist to rationalise judicial decision-making. In common law systems, stare decisis relies on the senior courts setting precedents that will guide the lower courts and litigants alike. In the absence of a doctrine of stare decisis, civil law systems have developed informal practices (which the French term jurisprudence constante and the German ständige Rechtsprechung) by which the courts are expected to take past decisions into account when there is a sufficient level of consistency in case law.Footnote 27 Despite these mechanisms, in both systems, uncertainties do nevertheless arise, for example, where inconsistencies are not resolved, or authorities clash.
One further difficulty is specific to the common law: the structure of the common law of tort itself. In adopting a nominate system of torts, derived from the writ system, each individual tort has its own requirements for liability. This caused Rudden to comment that ‘the alphabet is virtually the only instrument of intellectual order of which the common law [of tort] makes use’.Footnote 28 The fragmentation of English tort law contrasts with the nineteenth-century generalisation of tort law in continental Europe.Footnote 29 Rather than establishing common rules of fault or intentional harm, then, the common law focuses on causes of action, be they negligence, nuisance or defamation. While common law academics such as Pollock sought to offer some rationalisation of tort law as a discipline, rather than a collection of instances,Footnote 30 as Murphy observes, the common law of the twenty-first century continues to lack structural and juridical unity: ‘there is no universal form of liability that unites this diverse “family” of wrongs’.Footnote 31 The law of tort is for the common lawyer a law of torts and the law continues to resist arguments in favour of one overwhelming theory.Footnote 32 This does not mean, of course, that there cannot be coherence within each individual tort, but simply that systemisation of ‘tort law’ per se is not regarded as a priority for the common law. As Rudden commented, the common lawyer's preference is for the particular, rather than higher-level generality.Footnote 33
Once we accept that tort law needs flexibility to survive and that open-textured rules by their very nature open themselves up to uncertainty,Footnote 34 then this will have important repercussions on how we approach tort law. The question, therefore, for any system of law is not how to remove imprecision, but how best to minimise this inherent uncertainty and render the law more coherent. Codification is obviously one means by which a legal system can systemise legal rules to render them more accessible, clear and coherent. In examining codification, however, it is important first to examine what we mean by ‘codification’ before evaluating its potential benefits for civil and common law systems.
III. CODIFICATION AND CONSOLIDATION: COMMON AND CIVIL LAW APPROACHES TO THE SYSTEMISATION OF PRIVATE LAW
A. Codification
While the term ‘codification’ is attributed to Englishman, Jeremy Bentham, codes are seen as part of the civil law legal tradition, traceable back to Roman law.Footnote 35 Varga argues that codification is one of the most powerful techniques humanity has ever developed in order to objectify its law.Footnote 36 The French Civil Code of 1804 is commonly regarded as the leading prototype of a civil law codification. A product of the rational and scientific thinking of the Enlightenment, it brought together the customary and written law of the ancien régime and replaced it with a text that sought to present private law in a coherent, clear and comprehensive manner. Certain key characteristics of a civilian code may be identified. It is a self-contained text enacted by the legislature that seeks to formulate systematically a set of abstract general principles that bring the law together in a coherent form.Footnote 37 It replaces earlier law and becomes the primary source of law.Footnote 38 It may also seek to establish a particular ideological framework: in the case of the French Civil Code one that is revolutionary, rationalistic and non-technical in character, in the case of the 1900 German Civil Code, one that is historically orientated, scientific and professional.Footnote 39 Rivera notes also the symbolic force of a code, often given a value equivalent to that of the Constitution.Footnote 40
Codification appears at first glance the obvious response to legal uncertainty. By reasoning deductively from legal rules set out in a civil code, the law, it is argued, is more likely to be applied in a rational and predictable manner.Footnote 41 Granted an elevated status as the primary source of private law, this does not mean, however, that judges have no role in legal development in civil law systems.Footnote 42 What it signifies is that while judges will interpret the law to keep it up to date, they must work within the conceptual structure of the code.Footnote 43 As Steiner explains:
… [codes] are still regarded [by civil law systems] as the primary source of private law and they serve as essential day-to-day working instruments for French lawyers. In law schools as well, students are encouraged to become familiar, as early as possible, with the layout and component parts of the codes.Footnote 44
Codes, therefore, impact not only as sources of law, but on how lawyers think.Footnote 45 Codification influences their education, legal training and the form private law judgments take.Footnote 46
Yet it should not be thought that all codes represent full civilian style codification. In reality, ‘codification’ has a variety of meanings and civil law systems recognise a variety of intermediary categories ranging from mere compilations of statutory material to full-fledged codifications.Footnote 47 This diversity, for Tallon, is perhaps the major feature of codification today.Footnote 48 As Steiner has noted, while French law has grand projects such as its Civil and Criminal Code, more frequently it engages in a process known as codification à droit constant where the aim is simply to gather together and list existing law to render it more accessible and remove any obsolete provisions.Footnote 49 Codifications may thus be large-scale or minor, each bringing different challenges to the drafters and the legal community who apply the rules.Footnote 50
Codes are not, however, confined to civil law systems. The term ‘codification’ has been used to describe nineteenth-century common law statutes such as the Sale of Goods Act 1893 and Bills of Exchange Act 1882. The United States has many codes even in its common law states (eg the California Civil Code) and the Uniform Commercial Code (UCC) operates at a national level. However, despite the use of the term ‘codification’, it is widely acknowledged that these instruments are not in the same style as civilian codes. The California Civil Code, for example, while organised in the manner of many civil law codes, is largely a consolidation of well-established common law principles. The UCC is exceptional in being influenced by the civilian drafting style,Footnote 51 but has been described by civil lawyers as ‘a collection of private solutions’.Footnote 52 Equally, while the Sale of Goods Act 1893 (or indeed the Bills of Exchange Act 1882) have been described by some judges as a code,Footnote 53 in reality, they represent a collection of legal rules, drawn together as a point of reference for those engaged in this specific field. McKendrick, with typical clarity, highlights why such legislation is not a code in the civilian sense:
Statements that the 1893 Act is a ‘Code’ or that the [Sale of Goods Act] 1979 is a ‘single code’ are apt to mislead. They give the impression that the legislation is the sole repository of the law relating to the sale of goods when this is far from the case. The Act is built upon common law foundations and the common law … The Sale of Goods Act 1979 may be the first port of call for the lawyer seeking to advise on a sale of goods problem but it is not necessarily the last nor the most important.Footnote 54
The closest English example to a code may be found in relation to legislation designed to transplant English law to parts of the British Empire. Legislation such as the Indian Contract Act 1872 transported the common law of contract to India. (Pollock's 1886 draft bill to codify the law of civil wrongs, commissioned by Government of India, never eventuated.)Footnote 55 While far from the style of a continental civil code, this legislation included explanations and illustrations to assist those implementing the law overseas.Footnote 56 The reason for this form of legislation, however, was largely pragmatic; Diamond arguing that the format was a response to an undermanned legal profession where books were hard to get.Footnote 57
B. Consolidation
In general, what common lawyers regard as ‘codes’ are statutory attempts to consolidate existing law, building on the principles stated in case law, which, under the doctrine of precedent, remain binding until overturned. There is no attempt to provide a comprehensive statement of the law. Despite, then, the advocacy of writers such as Bentham of French-style codification in the nineteenth century,Footnote 58 codification to an English lawyer is synonymous with legislation consolidating existing laws. The value of this exercise should not, however, be underestimated. Gathering the relevant law in one place renders it more accessible and enables the legislator to resolve inconsistencies and/or gaps rendering the law more coherent. Importantly, with a system of stare decisis, such legislation, unlike a code, has no need to set out the basic structure of the law—this has been established by earlier case-law precedents. A key distinguishing factor, therefore, is that any common law version of ‘codification’ retains existing case law; full-scale civil law codifications replace. The style of Parliamentary drafting in the UK further renders common law ‘codes’ very different to the principled and abstract style of the continental codes. There is no ‘omni-comprehensive’ statute law culture in the UK;Footnote 59 the preference is for statutes on specific topics, be it sale of goods, occupiers’ liability or defamation rather than entire fields of law.
What we see, therefore, is a different systemisation of law with a preference for the piecemeal rather than the absolute. Statutes, in private law, generally supplement the common law. While technically a superior source, they exist alongside judicial precedents that have force of law thanks to the doctrine of stare decisis.
It is interesting that the Law Commission of England and Wales has distanced itself from what it terms ‘continental style’ codification despite the fact that the Law Commissions Act 1965 requires the Commission to review the law ‘including in particular the codification of such law’.Footnote 60 This mission statement led to several proposals for codification. In its First Programme of Law Reform in 1965, the Commission pledged to examine the possibility of the codification of contract and landlord and tenant law, adding in 1968 the possibility of codifying criminal law.Footnote 61 A code of contract was indeed drafted for the Law Commission by McGregor in 1971.Footnote 62 Yet all such projects have been abandoned (the McGregor Code only reaching the public eye when published in Italy in 1993). A number of reasons may be found; some practical (cost in terms of time and resources to draft and implement a code) and some political (lack of government support; opposition from various interest groups).Footnote 63 While the Law Commission's proposal for a Sentencing Code was recently enacted in the Sentencing Act 2020,Footnote 64 this is not a code recognisable to a civilian. It is in fact a consolidation of the existing legislation governing sentencing procedure, bringing together provisions from the Powers of Criminal Courts (Sentencing) Act 2000 and parts of the Criminal Justice Act 2003, amongst others. The aim is to provide the first port of call for legislation concerning sentencing procedure. Its selling point (and the reason it received government support)Footnote 65 is its utility to practitioners. It is not, and does not aim to be, a general statement of principle. Ormerod, who pushed strongly for the Code as a Law Commissioner, has described the process behind the Code as ‘consolidation plus’—consolidation of the existing law with the inclusion of policy refinement when necessary.Footnote 66
C. Codification v. Consolidation
We need therefore to distinguish ‘codification’ from ‘consolidation’. What common lawyers engage in is not codification but consolidation (collating existing law) or ‘consolidation plus’ (collating existing law plus policy initiatives). For common lawyers to engage in civilian-style full codification would require a massive shift of practice, both in terms of legal reasoning and the treatment of legal sources. Adapting to the abstract principled style of the civilian code for lawyers steeped in detailed rules of statutory interpretation and stare decisis would, in the words of Hogg, be a ‘fiendishly hard exercise’,Footnote 67 requiring ‘an enormous cultural shift before a legal profession brought up in the common law tradition would embrace it’.Footnote 68 It is unsurprising, therefore, that common lawyers prefer to adhere to their own method of systemisation that reflects how they treat sources of law and engage in legal reasoning. Each system, as Kötz once commented, must find its own solution to find order, form and structure shaped to its own needs.Footnote 69
In systemising tort law, therefore, we can see two different styles of systemisation. I will first examine codification and draw insights from a recent attempt to codify tort law, found in the French proposals to reform the tort provisions of its Civil Code. This will be followed by an examination of common law attempts to consolidate tort law. In critically appraising both methodologies, this article will consider how each methodology responds to the need for greater clarity and accessibility in the law of tort. Are changes needed? Improvements required?
IV. CIVIL LAW CODIFICATION: THE 2017 PROPOSALS TO MODERNISE AND UPDATE THE TORT PROVISIONS OF THE CODE CIVIL
The French 2017 Projet de réforme du droit de la responsabilité civile provides a contemporary illustration of tort law reform by means of a large-scale civilian-style codification. That this is much needed is not in doubt. While the 1804 Code has been revised many times, for example, to introduce measures to deal with bioethics and protect privacy and against defective products,Footnote 70 the tort section of the Code still largely resembles its original version of 1804. As an early nineteenth-century code, the tort provisions, responding to the needs of a pre-industrialisation largely agrarian society, were limited, famously encapsulated, until 1998, in a mere five articles. These focussed on issues arising in early nineteenth-century life (two out of the original five articles deal with civil liability for damage caused by animals and dilapidated buildings).Footnote 71 At its core is liability for fault. Article 1240 (previously 1382) provides that any human action whatsoever which causes harm to another creates an obligation in the person by whose fault it occurred to make reparation for it. Such limited provision rapidly became inadequate in the face of industrialisation, social and economic change and the occurrence of new and unanticipated forms of harm. It was left to the courts to intervene and, from the late nineteenth century, they adopted a liberal interpretation of the Code. As Whittaker noted:
These provisions on [tort] in the Civil Code are indeed a triumph of generalization … However, if the generality of these provisions themselves is considerable, the generalizing interpretation of them by the courts has been extraordinary.Footnote 72
Notable judicial developments include creating rules of strict liability for motor accidentsFootnote 73 and defective products,Footnote 74 an objective notion of fault,Footnote 75 and a broad notion of strict liability for the torts of others (fait d'autrui) and for harm caused by objects under your control (fait de choses) extending beyond the specific instances listed under article 1242 of the Code. While framed as interpretations of existing codal provisions, the French Supreme Court, in reality, was elaborating new principles of tort law. In the Jand'heur case of 1930,Footnote 76 for example, the court relied on article 1242(1) of the Civil CodeFootnote 77 to hold the driver of a motor vehicle strictly liable to a victim in a road accident. The fact that article 1242(1) was an introductory provision and tort liability had traditionally rested primarily on proof of fault did not prevent the court from developing a rule of strict liability when faced with a rising number of motor accident claims. In so doing, in the words of Whittaker, it gave expression to ‘a juristic concern for the victims of the machine age, it being thought unjust that they should be left without compensation owing to an inability to identify and prove fault’.Footnote 78 More recently, in the 1990s, the French courts extended strict liability under article 1242(1) to include the liability of institutions for the torts of third parties where they were found to be responsible for organising and controlling their actions.Footnote 79 This included, in the Blieck case, privately-run care centres which were held strictly liable for the harmful acts of mentally handicapped individuals under their careFootnote 80 and even extended to sports clubs which were held strictly liable for the negligence of their members when injuring a fellow competitor during a sporting event.Footnote 81
Yet, in developing principles of French tort law in this way, the courts have inevitably diminished the explanatory power of the Code as a primary source of law.Footnote 82 Lawyers today can only gain an accurate understanding of the modern principles of French tort law by reading not only the Code, but related case law and legal commentary. In this sense the French law of tort bears a resemblance to the common law—case law supplementing limited statutory sources. Both systems share the same difficulties, therefore, in systemising and rationalising case-law developments.
The 2017 projet seeks to resolve this uncertainty and reassert the status of the Code civil as the primary source of tort law by integrating key case-law developments into the Code. Its aims are threefold—to consolidate and clarify existing law, to improve the position of personal injury victims and to modernise and enrich the law to create a twenty-first century law of tort.Footnote 83
A. Making Existing Law Clearer, More Accessible and Predictable
The proposals would increase the tort articles of the Civil Code from five (in 1804) to 83, and, in so doing, provide a far more detailed exposition of the rules relating to: loss (articles 1235–1238); causation (articles 1239–1240); fault-based liability (articles 1241–1242-1); strict liability (articles 1243–1249); defences (articles 1253–1257-1); remedies (articles 1258–1266-1) and the assessment of losses (articles 1267–1280). The EU Product Liability Directive would continue to be implemented by the Civil Code (article 1289–1299-3). For added clarity, nuisance would now be expressly mentioned in the tort section (article 1244).Footnote 84 The nineteenth-century decision to have specific articles imposing liability for animals and dilapidated buildings is overturned in favour of inclusion within the general provisions of the Code.
The treatment of ‘fault’ provides a good example of the new approach. As stated earlier, this concept was central to the 1804 Code and yet not defined. Article 1241 of the réforme repeats in clearer terms the wording of the current article 1240—a person is liable for the harm caused by his fault—but article 1242 now adds a definition of fault as a ‘violation of a legislative requirement or a failure in the general duty of care or diligence’.Footnote 85 Existing provisions are also set out in more detail. For example, the 1804 article on strict liability for the torts of others (article 1384)Footnote 86 is redrafted as five separate articles (1245–1249) and incorporates case-law developments from the nineteenth-century onwards eg the 1991 Blieck decision on fait d'autrui is restated at articles 1246–1247.Footnote 87 Consolidation, however, is not simply a mechanical exercise, particularly in a system without a doctrine of stare decisis. Choices had to be made determining which judicial decisions to incorporate as ‘the law’. Where decisions are regarded as arrêts de principe (cases expressing rules of general importance), the decision is made easier, but it is not decisive. Some arrêts de principe were found to be too controversial to be retained, eg the Supreme Court decision that parents would be held strictly liable for the harmful acts of their children even where the child was not proven to be at fault.Footnote 88 Article 1245(2) of the reforms would provide that liability for the acts of another depends on proof of an action of a nature to engage the liability of the direct author of the harm.
The abstract style of a Code does, however, limit the level of detail permissible to drafters. Long and detailed definitions (and tests) are not the province of a code. It is helpful here to review the three key elements of fault-based liability: fault, causation and harm. Fault is for the first time defined in the proposals, but article 1242, in reality, does little more than give an overview of ideas found in case law. The nature of the ‘general duty of care or diligence’ remains as much a matter for court development as is the case in the common law. ‘Causation’ (article 1239), while stated as a condition of liability, oddly remains undefined. We are simply told that causation can be established by any means of proof. Was the task too difficult within the restraints of a code or simply too controversial? This is particularly unfortunate given the tendency of the French courts to vacillate between two main tests of causationFootnote 89 (entirely permissible in a system without stare decisis). In contrast, while harm (dommage—a condition of both fault-basedFootnote 90 and strictFootnote 91 liability) is not defined, loss (prejudice)Footnote 92 resulting from harm is dealt with in considerable detail. There is a general section covering key principles for the compensation of loss arising from contractual and tortious liability,Footnote 93 and special rules govern the reparation of losses resulting from personal injury, physical damage to property, environmental harm and delays in payment of money.Footnote 94 Such measures are intended to diminish the power of the French Supreme Court to control the actionability of harm, but do raise a number of unanswered questions, not least the relationship between dommage and préjudice.Footnote 95 The debate as to the division between these two terms is therefore likely to continue.Footnote 96 Greater detail does not, therefore, necessarily correlate with greater clarity. In particular, in choosing to adopt a particular conceptual framework in which to consolidate existing law, it is not clear whether the aim is purely consolidation or whether some degree of change is intended. Despite, therefore, increased detail and length, uncertainties remain.
One further dilemma faced the drafters. While product liability was added to the Code civil in 1998,Footnote 97 to what extent should a codification of tort include other special regimes providing compensation for victims of tortious actions? Should it include all regimes giving compensation for personal injuries? Or insurance measures designed to assist tort claims? Or even social security measures that provide alternative forms of compensation for victims?Footnote 98 The decision was taken to integrate legislation on motor vehicle accidents,Footnote 99 but go no further. On this basis, the measures do not include special compensation funds, established, for example, in the wake of the contaminated blood scandal,Footnote 100 for victims of injuries following compulsory vaccinationsFootnote 101 and for those suffering a medical accident or infection as a result of urgent measures taken to combat serious health risks.Footnote 102 These remain in other Codes,Footnote 103 such as the Public Health Code or, in the case of nuclear accidents, the Environmental Code.Footnote 104 Codification, especially in tort, is rarely comprehensive given the many ways victims of personal injury can receive compensation.
This leads to a number of conclusions. First that codification may be regarded as helpful in assisting in the consolidation of existing law, but it is not a straightforward exercise.Footnote 105 In choosing which sources to consolidate, decisions of policy must be taken.Footnote 106 These are not necessarily uncontroversial, as seen above. Secondly, as Borghetti and Whittaker identify, the drafting of the provisions reflects a particular style, notably one that seeks to state legal rules broadly, bringing together different things under a single concept or idea, rather than emphasising their differences.Footnote 107 This will impact on the level of detail permissible. Thirdly, while the proposals do seek to resolve certain conceptual conflicts and provide more information for litigants, such detail comes at a price, notably that it is likely to give rise to a fresh set of interpretative challenges for the courts. Finally, it is not clear to what extent, despite the efforts of the drafters, a reformed code will constrain judicial expansionism. Attempts have been made to limit judicial intervention but inevitably in an area of law that seeks to respond to social change, some flexibility must be permitted. A more serious concern is whether judges, used to developing this area of law, will accept this limit on their interpretative powers.
B. Protecting Personal Injury Victims and Modernising and Enriching Tort Law
The French proposals also exemplify a second potential benefit of codification—a means by which the legislator can reflect on and set out the goals and objectives of law, responding to the needs of contemporary society. Which victims, asked the drafters, should a twenty-first century law of tort seek to protect? What are its goals? Should it be responding to new forms of harm?Footnote 108 Consistent with the victim-centred tradition of French tort law,Footnote 109 the proposals make clear that priority should be given to the protection of personal injury victims. This is achieved in two ways. First, the proposals advocate improved legal protection for victims. These include the prohibition of agreements that exclude or limit damages for personal injury (article 1281), confining the reduction of any award of compensation to gross contributory negligence (faute lourde) by the victim (article 1254(2)), and removing any duty on the victim to minimise his or her loss (article 1263).Footnote 110 Secondly, the proposals seek to make the law clearer and more accessible. The principle of full compensation (réparation intégrale) is expressly affirmed at article 1235, with a later section dedicated to the rules governing the assessment of personal injury damages.Footnote 111 For Laithier, ‘the ranking of protected interests plays an unheralded role in the draft law by way of its favourable treatment of the victim of personal injury’.Footnote 112
However, the drafters go further and propose that, in addition to the overall goal of victim protection, the code should acknowledge that tort law, as a matter of policy, should seek to prevent harm and, on occasion, punish. Here the French Ministry of Justice accepted the view of a number of influential academic writers that the preventative function of civil liability should be inscribed in the Civil Code.Footnote 113 Article 1266 would extend existing provisions that permit interlocutory injunctive relief to prevent harmFootnote 114 to all tort claims.Footnote 115 Judges would be able to grant injunctive relief to prevent harm or see that unlawful misconduct is stopped (cessation de l'illicite). In terms of punishment, the reforms reject the idea of punitive damages, but propose instead to extend existing legislative provision for civil penalties which sanction breaches of public or civil duties. Article 1266-1 provides that faute lucrative (torts committed for profit) should be punished by a civil penalty (l'amende civile) payable to the Treasury or relevant compensation fund.Footnote 116 Such a sum would be uninsurable,Footnote 117 with guidance given to the level of the penalty.Footnote 118 Here codification engages with fundamental questions of tort law and provides a framework for future development of the law.
These latter reforms, while innovative,Footnote 119 have given rise to controversy. For example, while prevention of harm may be a laudable goal of private law, the wording of article 1266 grants judges a potentially wide discretion to intervene in tort cases. In particular, by permitting intervention prior to the harm taking place, it raises clear issues of undue interference with the rights of innocent third parties, and defendants whose wrongdoing has yet to be proven.Footnote 120 For this very reason, English law adopts a cautious approach that seeks to confine injunctive relief to situations where there is clear evidence of potential wrongdoing and the high possibility of substantial damage occurring if an injunction is not awarded.Footnote 121 Here the nature of the codal provision—an abstract statement of principle, without guidance—has raised concern. There is no formal indication how the courts will interpret this provision.
Similar concerns have been raised in terms of punishment. Traditionally, French law has opposed the award of punitive damages on the basis that they provide claimants with a windfall and conflict with the goal of full compensation.Footnote 122 While the civil penalty avoids such criticism, it has been challenged as an illegitimate move towards a more normative and repressive role for civil law.Footnote 123 Further its lack of precision has given rise to concerns as to its constitutionality. This is unsurprising given that challenges have been made to similar legislative provisions.Footnote 124 The reaction of the business community has also been critical, both of its uncertain procedure and the potentially high fines which article 1266-1(4) indicates to be as high as 5 per cent of the highest amount of the business’ revenue in the course of one of the fiscal years.Footnote 125 A review in July 2020 recommended that the reforms be slimmed down and less ambitious.Footnote 126 In particular, it recommended that l'amende civile should be deleted from the reforms in that it was likely to encourage opposition to the proposals.
C. Codification and the Law of Tort
The 2017 French tort law projet highlights many of the benefits and disbenefits of civilian-style codification. On a positive level the projet permits modernisation, new initiatives to protect personal injury victims and more detailed provisions that incorporate case law and statutory developments in tort law since 1804. It provides a framework for lawyers and a clearer starting point for litigants pursuing a claim in tort. It also promotes a broader discussion as to the aims and objectives of tort and its relationship with contract. Significant steps are proposed to improve the position of personal injury victims both substantively in terms of more favourable rules, but also in terms of accessibility, setting out the rules governing reparation of losses resulting from personal injury and integrating into the Code the law relating to motor vehicle accidents (a major source of personal injury liability).Footnote 127 Significant case-law developments, notably in relation to strict liability, are brought into the Code. However, not all provisions have been welcomed with open arms. Measures that are overambitious or do not represent settled law (or political consensus) may prove disruptive. It would be very surprising, for example, if the final version of the reforms contains l'amende civile which many regard as a step too far. Not all policy initiatives represent the views of the legal community as a whole. More fundamentally, the drafting of the proposals is likely to give rise to a number of problems with interpretation. Certain key terms are either not defined or described with such a degree of generality that reference to case law will still be needed. Nevertheless, it is very much hoped that the projet will be implemented in some form. At present, the tort provisions of the code provide limited assistance for litigants and, as a form of systemisation, they therefore fail to provide citizens with the benefits that codification can potentially provide. Change is needed and while it has not proven a straightforward process, progress is being made.
It is important at this stage to appraise the French tort law proposals on their own terms, that is, as a full civilian-style codification. Common lawyers advocating codification need to be wary of idealising codes as a one-stop-shop in which one may find in a single legislative source the whole of tort law. Codes represent not a comprehensive compendium of the law, but rather a starting point for travellers. They provide ‘the bedrock of principles that shape the nation's jurisprudence’.Footnote 128 This does not mean that doctrinal debates will cease, nor that litigants will obtain clear guidance on all points of law. It is, as Bell and Ibbetson state, a reference point for legal debate rather than a prescription of what citizens must do.Footnote 129 In triggering a legal debate, assistance will be derived from two sources. First, as stated in Section II above, judges will play an important role in interpreting and applying codal provisions. Secondly, legal scholarship will also play a significant part in civil law systems in elaborating the meaning of codal provisions and systemising case law.Footnote 130 Jestaz and Jamin in their leading work outline the great benefits to any legal system of scholarship that is systematic, aims at clarity, avoids abstract concepts and includes work from law professors, judges and practitioners.Footnote 131 For Sacco, legal scholarship represents an important legal formant in civil law systems.Footnote 132 A simple example may be found in the development of strict liability rules for things under one's control (fait de choses). Ostensibly based on article 1242(1) of the Civil Code, the doctrine was developed by the courts under the inspiration of scholars such as Josserand who sought to respond to social concerns that fault-based liability was proving an inadequate response to personal injury cases in the late nineteenth century.Footnote 133 Jobin is amongst many who have remarked on the richness and abundance of scholarly writing on private law.Footnote 134 For Helleringer, legal scholarship reveals through articles and studies the logic behind the structure of the law (or serves indeed to construct such a logic).Footnote 135 Fundamentally, ‘legal scholarship keeps the codes alive’.Footnote 136 Systemisation via codification must therefore be examined in context, reviewing not just the codal provisions themselves, but case law and legal scholarship. While a code will not have the precision of a common law statute fundamentally, it does not set out to do so.
In the next section, I will contrast codification with common law consolidation. As will be seen, both systems utilise a combination of judicial intervention and legislation, although differences exist as to the use of informal sources of systemisation.
V. COMMON LAW CONSOLIDATION AND THE LAW OF TORT
In this section, I will examine the ways in which common lawyers have embraced alternative ways of systemising private law and consider their application to the law of tort. Two main mechanisms have been utilised: formal means (legislation; judicial precedent) and informal means (restatements, scholarly treatises and textbooks). While these may at times be loosely labelled ‘codes’, I would strongly argue that such a description is unhelpful and misleading. What they represent are alternatives to civilian-style codification and their existence, according to legal historians, provides an explanation why England and Wales continued in the nineteenth century to resist calls for codification.Footnote 137 It is these sources that ‘contributed to the reduction of the law into a more orderly and systemic shape’.Footnote 138
A. Formal Means: Legislation and Case Law
1. A partnership
The ‘common law way’Footnote 139 towards systemisation has been to embrace a partnership of case law and statute. While the most authoritative partner is that of legislation, case law has its own systematic force, deriving general principle from specific instances.Footnote 140 While case law will, based on the doctrine of stare decisis, provide an initial form of judicial systemisation, it is supported by piecemeal statutes that consolidate and refine specific areas of law. Such statutes do not engage in comprehensive legislation on the whole of private or tort law. Legislation will not generally seek to be all-embracing nor revisit well-established fundamental principles. A notable example of this methodology can be found in the Occupiers’ Liability Acts 1957/1984 of England and Wales. Here the key question—who is an ‘occupier’?— is not defined. This is because it has been determined satisfactorily by case law and so in no need of change.Footnote 141 Equally, while the Defamation Act 2013 does seek to replace certain common law defences with statutory versions, in many cases these changes merely consolidate existing lawFootnote 142 and the courts continue to rely on principles set out by case law prior to the Act.Footnote 143 Defamation itself is not defined.Footnote 144 Similarly, the recent Consumer Rights Act 2015 (which consolidated and refined not only UK law, but also selected EU consumer directives) does not attempt to legislate on all consumer rights. Nor does it address established matters such as contract formation or breach. Remedies provided by the statute supplement those already existing at common law.Footnote 145 What is clear about these examples is that they represent a partnership between the legislator and the courts. As Lord Burrows has remarked, ‘it is the case law that provides the basic legal framework onto which statutes have to be fitted’.Footnote 146
Legislation will therefore generally supplement and refine existing case-law. It can provide structure, clarify uncertainty arising from conflicting case law (and undo case-law mistakes), and render the law more accessible to its users. The success of legislation in meeting the above goals does, however, vary. The Defamation Act 2013, for example, seeks to modernise the law and respond to concerns that the law had an unduly chilling effect on freedom of expression. However, its consolidation of the ‘serious harm’ testFootnote 147 and indeed the public interest defence based on the earlier Reynolds Footnote 148 litigation has required clarification by case law at the highest level some five years after the introduction of the Act.Footnote 149 Equally, case-law clarification of key sections of the Occupiers’ Liability Acts 1957 and 1984 was needed.Footnote 150 Case law therefore supports and ensures the successful operation of the statute: a partnership indeed.
2. Recent attempts to ‘codify’ breach of duty
In contrast, initiatives for more ‘code-like’ intervention, limiting the role of the courts, have not generally worked well in tort. In two recent examples, English and Australian legislators sought to legislate on the test for breach of duty in negligence to bring greater certainty and predictability to the law. The motivation in both cases was overtly political: in providing legislative guidance, the courts would be prevented from applying the test too generously, giving rise to too many successful negligence claims. Legislative intervention thus responded to fears that defendants were being overburdened with claims placing an undue burden on their insurers,Footnote 151 and that the courts were creating a ‘compensation culture’ whereby citizens would be discouraged from engaging in socially beneficial behaviour due to the threat of litigation.Footnote 152 Here, what Lunney has termed ‘small-scale codification’Footnote 153 is being used by the legislator to limit the discretion of the courts.
In England and Wales, the Social Action, Responsibility and Heroism Act 2015 (SARAH) identified factors to which the court must have regard in applying the test of breach, namely, when relevant, that the person:
• was acting for the benefit of society or any of its members (section 2);
• had demonstrated a predominantly responsible approach towards protecting the safety or other interests of others (section 3); or
• had acted heroically by intervening in an emergency to assist an individual in danger (section 4).
No mention is made as to how these factors are to be weighed, but we do know from existing tort law that social utility is regarded as a factor in the defendant's favour in determining the question of breach.Footnote 154 As is acting heroically in an emergency.Footnote 155 In essence, then, the Act restates existing law, albeit underlining certain issues that the courts must address, one must presume, expressly rather than implicitly. Hindsight has not been kind to SARAH. It has been dismissed by a leading practitioners’ text as having a ‘merely symbolic function’Footnote 156 and there has yet to be a single reported case under the statute. Mulheron, in a devastating critique, has suggested that SARAH cannot even be dismissed as relatively harmless in that it leaves it to the courts to define key terms such as ‘predominantly responsible’, ‘acting heroically’ and ‘for the benefit of society’, creating uncertainty. Indeed, she speculates, is there not a danger that in restating established common law tests one might unwittingly change the law?Footnote 157
The breach provisions of the Australian Civil Liability Acts equally seek to provide greater certainty by setting out in detail the test for breach of duty in negligence. The Acts are the result of a general overhaul of negligence law which followed an insurance crisis in Australia in the early 2000s. The Federal Government responded by commissioning a report that made 61 recommendations for legislative reform to the tort of negligence (the Ipp Report).Footnote 158 In reformulating the breach of duty test, the Ipp Report had expressed concern that the traditional test set out by Mason J in Wyong Shire Council v Shirt Footnote 159 had been interpreted in a way that allowed the courts to place too much emphasis on foreseeability of risk at the expense of the other factors.Footnote 160 It concluded that it would be helpful ‘to embody the negligence calculus in a statutory provision. This might encourage judges to address their minds more directly to the issue of whether it would be reasonable to require precautions to be taken against a particular risk.’Footnote 161 Section 5B of the Civil Liability Act 2002 (NSW) provides that:
(1) A person is not negligent in failing to take precautions against a risk of harm unless—(a) the risk was foreseeable (that is, it is a risk of which the person knew or ought to have known), and (b) the risk was not insignificant, and (c) in the circumstances, a reasonable person in the person's position would have taken those precautions.
(2) In determining whether a reasonable person would have taken precautions against a risk of harm, the court is to consider the following (amongst other relevant things)—(a) the probability that the harm would occur if care were not taken, (b) the likely seriousness of the harm, (c) the burden of taking precautions to avoid the risk of harm, (d) the social utility of the activity that creates the risk of harm.
This provision (and its equivalent in other Australian jurisdictions) have raised issues similar to those identified in relation to SARAH above. Critics have questioned whether restating an established common law test in legislation gives rise to greater certainty or rather might trigger unintentional legal change in subsequent court decisions.Footnote 162 So far it seems that changing the risk factor to ‘not insignificant’ (as opposed to ‘not far-fetched or fanciful’ in Shirt) has made little impression on the courts.Footnote 163 This suggests that, like SARAH, section 5B has had no more than a symbolic impact on the law. Even 20 years on, the Australian attempts to ‘codify’ the tort of negligence are still ‘bedding in’, with courts, lawyers (and law teachers)Footnote 164 struggling to adapt to the statutory framework. McDonald, a leading Australian critic, has expressed concern that the reforms have brought not certainty, but rather incoherence to the law; a difficulty exacerbated by the facts that distinct civil liability legislation now exists across the States and Territories of AustraliaFootnote 165 and that the provisions do not cover the whole of the tort of negligence.Footnote 166
3. Legislation and case law: a successful partnership in tort?
Legislation in tort can be helpful but given the importance of case law, a piecemeal approach, that seeks to consolidate the law on a specific issue in one place, seems to play more to the strengths of the common law system. More ambitious legislation, as indicated above, faces a number of obstacles, not least attracting legislative support and Parliamentary time. Even where this is not a problem, limited Parliamentary perusal and political compromises will often need to be addressed subsequently by the courts. Political imperatives may also result in legislation that is poorly drafted (SARAH) or rushed (Australian Civil Liability statutes).Footnote 167 There is also concern that too much legislation will ‘freeze’ the law and render it unable to respond to societal change; a real issue as we have seen with the law of tort.Footnote 168 Piecemeal legislation that consolidates existing law is less likely to do so, permitting incremental case-law development refining the law on a case-by-case basis.
This places the baton, however, firmly back with the courts. In the face of limited statutory intervention in tort, it is for the courts to provide general principles of tort law and, at apex level, guidance to lower courts via stare decisis. The problem is that this is not at times a role with which the courts feel comfortable. Numerous examples may be found across private law of senior courts resisting calls for systemisation, preferring to defer to Parliament (despite the knowledge that Parliament is rarely willing to intervene in tort law). One notable example may be found in relation to negligently incurred psychiatric injury. Here, despite a critical Law Commission report,Footnote 169 the House of Lords refused to intervene to rationalise the law.Footnote 170 For every Robinson (where the UK Supreme Court clarified the duty of care test in negligence),Footnote 171 there is a Darnley creating uncertainty as to the scope of a hospital's duty of care to patients.Footnote 172 While the courts at times will step in and resolve a doctrinal dilemma (eg clarifying the limitation period for intentional torts causing personal injury;Footnote 173 providing protection against misuse of private informationFootnote 174), this is often a sign of frustration at the unwillingness of Parliament to intervene and certainly not always the case.Footnote 175 A reluctance to intervene in certain cases combined with limited statutory intervention and, as seen in Section II above, the inherent indeterminacy of many aspects of tort law has led to uncertainty and, in some areas of tort law, incoherence. As two former Supreme Court Justices have openly acknowledged, ‘[m]any aspects of the [common] law of torts are inherently imprecise’.Footnote 176
In seeking to minimise such uncertainty in tort law, other sources become important. While stare decisis/precedent gives the courts the opportunity to systemise the law, reasoning incrementally and by analogy, where the partnership of legislation and case law fails to provide sufficient legal clarity and precision, attention must be turned to alternative ways of achieving these goals.
B. Informal Means: Treatises, Textbooks, Restatements
If we go back to the nineteenth century, one reason why codification was not adopted in England and Wales (in contrast to the rest of Europe) was the fact that the systematic explanation of the common law was being undertaken, not by codifiers, but by the writers of treatises.Footnote 177 Braun, for example, argues that England during this period developed a type of legal literature that sought to make the common law more coherent and ultimately functioned as a substitute for a Code,Footnote 178 described by Varga as ‘doctrinal codification’.Footnote 179 For Lord Rodger, the existence of excellent textbooks, supported by statutory intervention, offers a convincing explanation why codification was deemed unnecessary in common law systems at this time.Footnote 180 Goudkamp and Nolan see an evolution—the pioneer treatises of the nineteenth century followed by twentieth-century consolidators.Footnote 181 Modern private law consolidators include Chitty on Contracts Footnote 182 and Clerk and Lindsell on Torts.Footnote 183 We should also not ignore scholarly textbooks such as Winfield and Jolowicz on Torts Footnote 184 that reach an audience beyond their primary target of students to influence the work of practitioners and judges. These works are cited in court and their raison d’être is to bring together case law and legislation to establish a framework of reference for those using and applying the law. Further, the Law Commission of England and Wales (established in 1965) represents a body whose work, albeit subject to financial constraints, seeks to rationalise, clarify and modernise the law. Even when its recommendations are not implemented, they provide a source for reformers and an aide-mémoire for those seeking to understand debates in the law.Footnote 185
Yet, the logical question is why these resources have to date had limited impact on the common law courts. This contrasts with the position in civil law identified above where codification is supported by judicial interpretation and scholarly commentary. It is trite simply to respond that the practice of the common law courts is make limited reference to academic authority. Law Commission reports and practitioners’ texts are frequently cited and at times used as a framing device. Equally, senior judges have increasingly been willing to acknowledge the utility of academic articles.Footnote 186 The issue appears to be one of legitimacy. Courts remain wary of intervention on the basis of informal initiatives lacking the status of legislative intervention. Even Law Commission proposals recommending much needed reform to areas of tort law such as psychiatric injuryFootnote 187 and limitationFootnote 188 have been left to Parliament to consider. The question, therefore, is how to persuade the courts that certain informal sources of systemisation are worthy of consideration. The success of even the best projects lies with the willingness of courts and legislators to respond to recommendations that will systemise and clarify the law.
One possible response is to provide a restatement of the key principles of tort law. Andrews argues that a succinct restatement of law can have three benefits: accessibility (making the law easier to discover and communicate), making the law more susceptible to rational discussion and consistency (rendering the law more likely to be applied reliably by lawyers).Footnote 189 Restatements represent an attempt by scholars and practitioners to systemise the law in a new, more accessible form, concentrating on its most important principles, supported by commentary and evidence of State practice. Like a code, restatements address broad areas of law (contract, tort, restitution).Footnote 190 They are not subject to the constraints of parliamentary time that render statutory intervention into private law relatively rare. Here the influence of the American Law Institute (ALI) is pivotal.Footnote 191 Founded as a private institution in 1923 in response to the perceived uncertainty and complexity of American law, its members include judges, practitioners and academics of international renown. One of the ALI's first projects was to restate the law of torts in 1934, with the second full restatement in 1965. More recently, areas of tort law that have undergone considerable change since 1965 have been subject to a third restatement.Footnote 192 While non-binding and purely advisory, in the US they are consulted by both judges and attorneys and provide a very useful overview in a federal system with different state laws. They also provide a source of inspiration for state legislators.
Lord Burrows in 2016 sought to transplant the restatement into English contract law. In his A Restatement of the English Law of Contract,Footnote 193 supported by an advisory group of 20 including 10 judges and practitioners and 10 scholars,Footnote 194 Burrows endeavoured to set out the law ‘in as clear and accessible a form as possible’ and provide the ‘best interpretation of the present English law of contract’.Footnote 195 In adopting the US Restatement style—stating legal principles, followed by a full commentary explaining the Restatement's provisions and allowing readers to see its application in real and hypothetical cases—his work represents an informal attempt to consolidate existing law. The style is notably closer to that of a common law statute rather than a civilian code.Footnote 196 Cambridge professor Neil Andrews published a similar project that same year, albeit acting alone, based on, in his words, a decade trying to explain English law to civil lawyers.Footnote 197 Andrews’ model provides 198 Rules in 24 Parts (including five General Principles),Footnote 198 each article supported by Comment and Further Reading with references to leading cases, statutes and specialist literature. It is, as one commentator remarked,Footnote 199 an ambitious undertaking, seeking to encourage the adoption of English common law as the law of choice in the world of economic business. Both address the same audience of practitioners, the judiciary, academics and students.
Albeit focused on contract law, such projects throw light on the potential utility of restatements of private law, but also some of the difficulties. Burrows noted several issues in undertaking his project. First, how to deal with gaps or uncertainty in the law. While seeking merely to explain current law, he found it hard to avoid taking a policy position in such instances and noted that they often gave rise to strong differences of opinion between members of the advisory group. It is difficult to ‘restate’ unsettled law. All one can give is an overview of different views and a suggestion for a way forward. Second, how to determine the degree to which a restatement should include statutory provisions and deal with general matters of principle as opposed to specific issues relating to different types of contract. Andrews (understandably) also flagged the challenges of undertaking such an endeavour alone even for a very experienced and eminent scholar. Their aim is to provide a useful additional tool for those seeking to understand the shape and form of private law, albeit, in terms of legitimacy, a restatement produced by a team of experts is likely to have more force than that of a single scholar and statements of policy will depend on the expertise and eminence of the authors.Footnote 200
Lord Leggatt in his review of Burrows’ work contrasted restatements (such as those discussed above) that are largely descriptive and seek to make existing law more accessible, with restatements that set out a model law stating best practice and seeking to influence lawmakers.Footnote 201 While seeking inspiration from the US Restatements, restatements at a European level have tended to reflect this latter approach.Footnote 202 For example, the Principles of European Tort Law (PETL) Footnote 203 were drafted by academics from across the EU with the goal of providing greater coherence to private law by drafting a set of unifying principles. These principles represent the ‘best’ solutions for a European law of torts rather than a restatement of existing legal practice.Footnote 204 While such principles, drafted in the civil law style, have inevitably found greater favour with civil, rather than common, law jurisdictions,Footnote 205 they (in common with other attempts, such as the Draft Common Frame of Reference (DCFR)Footnote 206 and work of the Study Group on a European Civil Code (SGECC)Footnote 207) are collaborative works that combine draft model rules with comments and references to case law, legislation and literature and have received funding at a national and European level. They mirror attempts to produce harmonised principles of European contract law.Footnote 208 The aim here is to identify a ‘soft’ European tort law, rather than simply making existing law more accessible. As such, such examples play a more overtly political role in harmonising tort principle across the EU, providing material as the work of the SGECC indicates, potentially of use in any future European Civil Code.Footnote 209
Examining the models above, it is clear that a restatement that is descriptive rather than setting out model rules will have more utility for a common law system. The issue here is not a political one of bridging national laws encompassing distinct legal cultures, languages and socio-economic structures, but rather one that seeks to systemise existing law in a more accessible and coherent way. Nevertheless, it must be conceded that the reason why restatements have proven popular in the US is that they (as in Europe) have responded to divergence within a federal structure between the private laws of individual states. This gives rise to an institutional need for such instruments. This is not, however, regarded as an issue in most common law jurisdictions which serves to explain the lack of interest (notably in terms of financing) for such initiatives. Given (as stated in Section II) the evolving nature of tort law, the need for flexibility to respond to societal change and the input of the courts, it becomes understandable why, to date, there has been no English attempt at a restatement of tort law. Even the contract law initiatives outlined above have had limited impact. Any restatement of torts would need both to be regularly updated and highlight active doctrinal debates. One might wonder, for example, about the longevity of a restatement of the principles of vicarious liability given the rapidity of recent case-law developments, unless it was stated in a very general way.Footnote 210 Further, as Burrows discovered, even explanatory summaries of the law cannot avoid matters of policy and decisions as to scope. This is particularly true of the law of tort.
One is left with the conclusion that despite the initial attractiveness of the restatement project, it would require investment, a mixture (as in the Burrows’ project) of legal personnel and regular updating. This author is not surprised therefore that efforts have primarily been directed to less controversial and more predictable areas of law such as contract law. It would also be an immense endeavour—any restatement would have to include not only rules but commentary and relevant literature.
This takes us back, then, to the start of this section. Just as civilian codification is supplemented by case law and scholarship, the common law partnership (case law plus legislation) would benefit from assistance to improve systemisation. At present, legal scholarship does supplement to a certain extent formal sources of law, but, in the absence of any viable restatement project, it is worth considering why such informal sources have failed to have the influence seen in civil law systems. The answer, as will be seen in the next section, lies in the nature of the scholarship concerned. As Stapleton has commented, scholarship that is sensitive to the nature of judicial decision-making and the constitutional restraints within which the judiciary operate will be best placed to influence the courts.Footnote 211
VI. SYSTEMISATION AND THE LAW OF TORT
Tort law is prone to uncertainty.Footnote 212 As Lord Neuberger commented recently, ‘tort law reflects most aspects of human life … consequently no set of principles can satisfactorily cover every situation in which a claim in tort, even in a particular tort, is brought’.Footnote 213 The question is how to minimise such uncertainty and render tort law more accessible, intelligible, clear and predictable. This article has discussed civilian-style codification and common law consolidation as means of systemisation. Examination of the French proposals to recodify tort law reveals what codification can achieve, but also what it cannot. Codification permits updating and consolidation of material previously outside the Code which aids accessibility. It facilitates new initiatives reflecting changing priorities in the law of tort. It also allows a discussion of tort law as a whole—its aims, objectives, its role in society. What it does not provide is a one-stop-shop nor a detailed exposition of the law. While the 2017 Projet de réforme has flaws—it is overambitious at times, introducing concepts such as l'amende civile for which there is no general support, and it would have been helpful to clarify the meaning of disputed terms such as ‘causation’ or ‘dommage’—at heart, it seeks to clarify and systemise tort law principle and bring back into the civil code 200 years of case law which arose as a result of the very limited provision made for tort law in the Code civil of 1804. This is to be welcomed. It is important, however, to flag that systemisation by codification is only the start. Case law and legal commentary will explore further the meaning of the revised Civil Code.
In foregoing codification and adopting consolidation by legislation supplementing judicial development via stare decisis, the common law has similar goals. As this article has shown, attempts to limit judicial legal development by ‘codifying’ elements of the common law have not proven particularly successful in tort. Problems arise, however, where judges are unwilling to systemise the law and Parliament refuses to intervene. Such reluctance may be understandable in terms of the separation of powers, with judges unwilling openly to engage with matters of policy they believe best addressed by the legislature, but this has contributed to the lack of precision and coherence found in many areas of common law tort law.
This leads to three conclusions. First, common lawyers are correct to reject codification as a means of resolving tort law uncertainty. It does not reflect current common law practice and, as the French example has shown, at best, a code can establish a framework—a focus—bringing key rules together. A better approach would be to improve the existing system. Second, neither codification nor consolidation are sole actors but operate with the support of case law. This form of intervention is vital to ensure that the particular needs of tort law—in terms of flexibility and receptiveness to social and political change—are achieved. Thirdly, one issue highlighted in this article is the different influence of legal scholarship in civil and common law jurisdictions. In France, la doctrine is regarded as having a status almost equivalent to a source of law. There is also a long-standing tradition of civil law commentaries on codified private law (eg Palandt, Bürgerliches Gesetzbuch Kommentar for Germany;Footnote 214 Tramontano, Codice civile for Italy)Footnote 215 which bear some resemblance to the restatement projects. In contrast, restatements, as we have seen, have not found favour in common law systems bar the US (provoked, as we have stated, by a federal system of state private law) and a few academic initiatives. In the absence of a need to harmonise (or achieve an overview) of competing state laws, this is unlikely to change.
What does this mean for tort law systemisation? Codification can improve the accessibility, intelligibility, clarity and predictability of tort law, but its generality will require support from case law and legal commentary to ensure its longevity and adaptability to changing social and political climates. Consolidating statutes play a similar role, albeit different in style, and the detail and complexity of common law statutory drafting can often prove a barrier to flexibility and adaptability. This may explain why such statutes are relatively rare in the law of torts and that case law is regarded as better serving the need for flexibility and adaptability. This does, however, present a problem. Parliamentary Sovereignty dictates that legislative intervention will be the ‘best’ solution, having the benefit of legitimacy and democratic choice. As Cane argues, if done properly, legislation acts as a more pluralistic and open agent of norm-legalisation than case law.Footnote 216 However, democratic concern must accept that, in a common-law system, courts are expected to develop the law and, in the view of Priel, those that fail to do so may be seen as abdicating responsibilities allotted to them.Footnote 217 Here, assistance may be gained from informal sources. While traditionally the common law has been wary of relying on scholarship, it is submitted that informal sources may provide an intellectual framework that can help systemise and clarify the law and their utility needs to be recognised. This requires, however, a particular kind of legal scholarship. I have mentioned treatises and textbooks above, but to this may be added any form of scholarship that is directed, not in the abstract, but as to how courts decide cases and which is sensitive to the nature of judicial decision-making. An interesting comparison may be made with civil law systems where notes d'arrêt Footnote 218 and Kommentare written by professors and practitioners provide exactly this kind of practical scholarship.Footnote 219 As Burrows’ interesting project highlights, work based on collaborative exercises, bringing together the expertise of lawyer, judge and the academic, appears most likely to provide material useful to a court.Footnote 220 This will require rethinking, not solely by the judiciary, but also by academics in considering how they orientate their work. While common law research funding has tended to draw academics away from such scholarship,Footnote 221 it remains the case that courts are most likely to respond to work directed at a judicial audience which assists them in the systematic development of the law. While greater recognition of the value of such work is needed, far more support is needed for those undertaking such work than exists at present.
Common and civil law systems employ different means to systemise the modern law of tort. This comparative study has highlighted the role that can be played by both formal and informal mechanisms in improving the accessibility, clarity and coherence of tort law. No system is perfect. Tort law continues to defy any attempt to confine it to a single code or consolidating statute. Yet this article argues that mechanisms do exist to enhance the systemisation of tort law and minimise uncertainty—be it improving an existing codification or recognising to a greater extent the utility of legal scholarship attuned to judicial needs. These mechanisms need to be considered seriously. Complacency should not be an option.
