Law and Economic Change

Each of these economic issues provides a background condition for the way in which tort/delict law operates. Social situations arise from economic developments. New factories create pollution and neighbours complain. New drugs are manufactured and consumers complain about the side effects. Cars are invented and cause accidents.

The issue for the project has been the extent to which tort law took dealt with new issues and adapted its rule, and how far it simply left them to regulations made by the legislator. How far did it adapt its content and application to deal with the emerging problems?

One of the difficulties here is the extent to which judges refer to changes in the economy when they offer reasons for changes in the law.

Judges and legislators did know quite a lot about the economy. Judges were shareholders in companies (such as railway companies). When they had been barristers, they had argued cases on behalf of major industries. As educated people of the time, they knew a lot about current economic ideas. They also knew a lot about practices of insurance. But when they wrote judgments, they did not normally refer to the economic and insurance implications of their decisions. The justifications remain expressed in the language of ‘fairness’ or ideas such as social solidarity, rather than the promotion of economic prosperity.

Few academic writers on tort referred to economic issues before the 1970s. There was a notable exception. A German author, Mataja wrote a book on the economic impact of tort law damages in 1888 suggesting that the law should aim to spread the costs of harm among as wide a group of people as possible, but his ideas were not followed by other academics or judges.

So it is hard to prove that the law was changed in order to support economic prosperity. But it is clear that lawyers were aware of these issues.