Legal Outcomes

There can be great differences across a relatively small geographical area which faces similar problems. A classic example would be the liability for railways: since the very year of unification of the German state in 1871, there was strict liability for harm under the Imperial Liability Law, modelled on the earlier Prussian one. On the other hand, in
England,
Italy and
Spain there was restricted liability and it was based on fault. Some of this can be explained by general trends within each legal system, and sometimes by point-specific reasons. This is gone into in more detail in the Legal Case Studies, e.g. Railway and Road Accidents. Thus, the role of the railway industry in the economy of a given society varied, as did the political strength of those being injured. In
England in particular, theere was a widespread use of civil juries who decided claims for compensation. These tended to sympathise with victims when applying the legal rules in actions against large companies, even into the early decades of the twentieth centuries. As a result, judges tended to adopt pro-business positions in the interpretation of legal rules to balance the scales. The respective roles of judge and jury in this period, exemplified by the railway cases, continues to shape modern tort law in a number of ways. English law tends to have more legal rules about what counts as fault, such as the concept of the duty of care in controlling liability for negligence. Put simply, we talk of A being liable to B for harm X where A owed B a duty to take reasonable care not to harm B in way X and A breached this duty causing that harm to B. Since Judges control questions of law, the duty of care (being a question of law) gave them control of liability.

At the same time, there were a large number of similar outcomes across the other systems and areas of law described. It can be argued that this reflects a shared or common value system. One shift in ideas might be a move from individualism (a focus on individuals being responsible for their own destiny) to communitarianism (a focus on the way the community has responsibilities for those less fortunate within it). This might lead to changes in the way the law operates: a move from saying that a person is liable only for the harm caused by his own fault to saying that he is liable for all harm, unless it was caused by the victim’s fault or by an external event (see, for instance, the Social and Legal Ideas Force for Development pages). The similarities also reflect more or less common economic movements, e.g. the growth of liability insurance enabling loss-spreading and perhaps the role of large-scale defendants who were able to absorb costs and distribute them. In some cases this change in ideas ended in imposed near uniformity on the rules of all legal systems in
Europe (see, e.g., the Products Liability Case Study).