Doctrine

Convenor: Nils Jansen, Münster
This study forms the indispensable backbone for all the other studies, but, for ease of analysis, it is treated independently of them. It aims to identify the place of fault within the law of tort/delict and to chart its development over the period. In locating the place of fault, it also relates it to the developing importance of no-fault liability, and, in some countries, at the relationship between fault ideas in public law and in private law. By looking at doctrinal legal writing, the working group has been examining not simply what changes occurred, but also who was responsible for the discourses within which they occurred in the context of the multiplicity of alternative frameworks which co-existed at any one time.

Outcome

The group members on legal doctrine note a degree of stability in the structure of legal doctrine, though there is change in the application of that doctrine over time. The idea of fault as a guiding principle remains significant in English, German and Spanish law, though its scope is significantly lessened by the development of no-fault in France and Italy. In France, there is an increasing orientation towards protecting the victim of injuries, and this represents a change in values. In other areas, change is not so much a product of movement in values, as a reviewing of the tensions that already exist between different components of liability (e.g. unlawfulness and fault in German law). There were sufficient open-ended concepts to enable a flexible interpretation to fit new conditions. The creation of an objective concept of fault has its origins in the 19th century, but became more prevalent in the 20th.

We find many ideas coming across Europe: fault as an illicit/wrongful act (typically contrary to statute) and fault as a breach of an individual right. These are in the French debates at the end of the 19th century and also appear in the German Civil Code. The more complex problem was breach of duties of prudence. Fault remains important (even if strict liability was dominant at one point):

“Today, there is again some proof of the attachment of the French academics for the notion of fault: for example, the doctrine has generally greeted the 1982 and 1999 decisions of the Constitutional Council, recognizing the fault as a fundamental principle of French law. But, the fault principle has lost its past empire and the foundation of liability is rather searched in the ideas of solidarity, precaution and authority.” (Halperin)

For Germany and Italy, constitutional law has been an agent for expanding notions of harm.