Introduction to three dimensions of legal reality

The questions asked by the Project

The European Legal Development Project wants to understand how legal systems develop over time. By using the law on liability for fault, it has been able to ask three questions:

• Can private law adapt effectively to meet the challenges of social change?
• What influences the adaptations the law makes?
• Does the law adapt of its own motion, or does it need pressure from the outside?

Now you have read some of the Case Studies and the studies of the Factors for Development, you will have some ideas about the answers that can be given to these questions.

What changes happened in the law?

Three main trends in the law relating to liability have become apparent from this study:

• Victims of accidents have gradually found it easier to obtain compensation, either because the burden of proof has shifted towards the person causing the injury or because liability no longer depended on proof of fault.
• Simpler and less expensive compensation systems have gradually been created outside private law (the law of relations between individuals). For example, although the victims of boiler and railway accidents tended to be employees, they rarely gained compensation through private law but instead through state-created insurance-based workmen’s compensation systems. In Germany, Sweden and France, such schemes have also replaced private law for most road accidents, and Sweden and France have now adopted similar schemes for medical injuries.
• Private law has played only a small role in preventing accidents. Other forms of regulation had a much larger impact. For instance, state regulation on the siting of boilers, buildings or crops alongside railway lines, as well as regulation related to determining who can practice as a doctor, has played a very important role in reducing the incidence of harm.

How much did private law change?

In many legal systems, fault has remained the central principle of tort or delict. This is especially true of English, Italian and Spanish laws. In many European systems, fault has expanded in some areas over the past 150 years:

• In medical law, courts are no longer enjoy the so unwilling to make doctors and hospitals to patients. No longer are doctors only found liable when they have committed a ‘gross fault’. No longer do hospitals have immunity from being sued.
• In relations between neighbours, interference with the enjoyment of land is tested against a social standard of what is reasonable use in the area, a test which is similar to that for fault.  Occupiers of land are now liable for failing to look after their own property so that neighbours are harmed, but only where they have been at fault.
• In liability for products, the manufacturer has become held liable to a consumer on the basis of fault, when he previously would not have been considered as the person responsible for a harmful product.

The rules of delict and tort have changed in some cases. In response to the complexity of accidents on the roads or caused by manufactured products, the law has often reversed the burden of proof. It is often for the person causing the damage to show that he was not at fault. The victim does not have to prove fault. (But he still typically has to do so in medical cases.) The law has also changed to make the real creator of a risk liable. The keeper of a car (e.g. the person who employed the driver) was made liable as well as the driver for road accidents. Hospitals have been made liable, as well as doctors and nurses.

Legal approaches in Europe on compensation for harm caused by others have splintered. At the start of the project period in 1850, almost all legal systems used a fault standard for tort roughly equivalent to what a reasonable person would do. Today there are huge variations in the test for fault, and even whether fault is required at all. Many legal systems have moved towards stricter standards. However, this simple picture is misleading. It is certainly not a case of linear development of legal systems. There is no inexorable move from fault to strict liability. Instead there are all kinds of movements between different approaches, and many of them are backwards.

There are many ways to think about the way the law works, and different ways of talking about. Looking at the legal rules to begin with, one could analyse their function, their form, the effect they produce, their history or their relationship with other rules. These are all aspects of the nature of a rule. For instance, take a rule “do not walk on the grass”. We could analyse the function of this rule. Does it protect the grass from too many people walking on it? Does it provide a sense of status to those who can walk on the grass? Is it to keep people on certain paths, i.e. is it an exclusionary rule? Looking next at the form of the rule, it is pretty simple. On the other hand, it does not describe what will happen if you do walk on the grass. Nor does it define the “grass” area. While that might seem like an obvious point, what would happen if there was an area next to the grass where there was only earth, not grass? What about flower beds when there are no flowers, or even when there are? What is the effect of the rule? Do people follow it, do they actually get punished if they do not follow it? Are the non-grass areas worn down more? Turning to the past, when did the rule get created, and who created it? Was it put there for the same reason as it is there now? Has it changed over time? Is the grass area the same as when the prohibition was first created? Finally, are there other related rules? Can you drive a car or bicycle on the grass? Can you drive a car or bicycle on the non-grass areas?

Of course, legal rules are created and changed, so then there are all kinds of constitutional questions involved. But we are still dealing with legal rules, and that is in no way the whole picture.

Legal rules must be applied in practice, as well as described in books There are first kindred but distinct rules, specifically those of evidence and procedure. They are not full legal rules in quite the same way, but they are clearly related. Beyond this however, legal rules require application, and in our societies that requires people. Legal actors have their own complicating factors, such as their own motivations and purposes, be they political, religious or personal. It becomes even more complex when one considers that law, when applied by legal actors, may well change, and be disagreed upon. In many legal systems, this disagreement may never be resolved, whether because it is never realised, or because it is not in any party’s interests to test it, or because it is cheaper to avoid solving the problem legally and construct, for instance, a contractual bypass.

There are many ways to think about the way the law works, and different ways of talking about the problem. For simplicity, a three dimensional framework could be used to understand the whole field:

1) Law on the ground: what are the legal outcomes reached by the courts

2) Law in the books: how is the law described by textbooks and legal writing

3) Law and not law: how does the law interact with other forces guiding decision making processes.