Legal and Social Philosophy

This group will be concerned with the various ways in which social changes have impinged on the developments of the law, and to a lesser extent viceversa. What appears, for example, to be a shift from a defendant-oriented tort law in the middle of the nineteenth century to a more victim-oriented one in the late twentieth century may be a reflection of a more general shift from individualism to welfarism, particularly when concerned with the relations between large corporations and small consumers.

Indirect changes might also have been relevant, such as changes in judicial self-perception – to what extent is it seen as part of their function to defend the poor against the wealthy or the powerless against the powerful, whether they (for whatever reason) identify with some particular class or interest group.

The group would also deal with the relationship between changes in legal theory and changes in legal practice: the significance, for example, of the move away from legal positivism and of law-and-economics, the increased willingness (at least in some systems) to ground legal arguments in “policy”, and the extent to which judges are openly recognised as having a creative law-making function.

Intellectually, the group might consider the extent to which law operated as a discrete field of knowledge and practice over the period under consideration, and also the extent to which “tort” law (or its equivalents) has been affected by the growth in overlapping categories such as “consumer law”, the institutionalisation of human rights, and the shifting balance between public law and private law.

Outcome

One theory would be that the development of fault liability 1850-2000 was driven by the broader social and political ideas of the period. On the other hand, another theory would be that there is something distinctive, even self-contained and perhaps self-reinforcing in what happens in the law.

There is a clear preference within private law for the paradigm of the individual freely choosing actions and taking responsibility for them. This fits well within the liberal individualist tradition of writers such as John Stuart Mill. The state can intervene only where an individual causes harm to another, and such harm provides justifiable limits on the exercise of individual rights and freedoms. The individual rights within this model are to life, liberty and property (which are the basic rights identified in §823 I of the BGB. Other rights are civil and political rights.

Now the emphasis on individualism was challenged in the latter part of the nineteenth century from a number of directions, both conservative and radical. The conservatives bewailed the decline of social cohesion brought about by industrialization and urbanization – the loss of cohesion through the family and local community (Comte and Hegel). The radicals wanted to argue the need for greater social solidarity in the face of the risks posed by the new society and the harm caused, which was not the fault of the victim.

These latter, ‘welfarist’ ideas influenced the creation of workmen’s compensation in the latter part of the nineteenth century and the wider forms of the welfare state (minimum wages, maternity benefits, medical treatment) after the Second World War. These institutions were also supported by a wider notion of fundamental rights that included economic and social rights. Notions of social solidarity were clearly visible within the works of French writers proposing strict liability in relation to transport and road accidents (Saleilles and Josserand), as well as among those who favoured no-fualt insurance schemes for road and medical accidents (e.g. Tunc, as well as Atiyah in England). Swedish reforms are also linked to similar ideas. Many of these ideas led to issues being taken out of private law delict and being located in some distinct scheme for the compensation for accidents.

In a number of European countries, the importance of individual responsibility has been stressed again since the 1980s. The fears of the consequences of centralized government (even when it provided benefits) to individual liberty and responsibility were stressed by Hayek and Beveridge in the 1940s and became more widely accepted later. This led in England to the rejection of an insurance-based system of compensation for road accidents, and to a limitation being placed on the expansion of negligence liability. The movements in other countries have not necessarily ben the same and have depended on the prevalence of individualist and market-based thinking.

There are obvious connections between academic writers on law and academic writers on social and political ideas. Legal authors write within such a climate. Legislators too are influenced by these ideas perhaps more than by legal doctrine. These ideas set a broad ethos within which notions of what is ‘acceptable’ But there is also an important influence of ‘expert’ opinion which determines more specifically what the law treats as unacceptable. The work of inspectors in factories and in areas such as asbestosis demonstrate that legal intervention is very specifically determined by expert opinion. Such experts are often advisers to the legislator and to regulators, determining the content of regulatory rules. But they also provide experts upon whom courts and litigants draw.