General Case Study

The topic of the development of fault liability in the period 1850 to 2000 is both representative and informative. In eighteenth century Europe, tortious liability was widely seen as coextensive with individual responsibility, expressed in terms of fault or negligence. This was fixed in the French Civil Code of 1804, versions of which were adopted in many European nations in the nineteenth century. In addition, it became part of the 'Common law' in England and Scotland, and was firmly established in the German territories. From the middle of the nineteenth century the inadequacy of this fault standard as the single test of legal liability was becoming clear, and has become increasingly marginalised in practice since then, whilst retaining a considerable hold on the formulation of the core rules of liability within the different systems. For all its deficiencies, it still occupies a central place in the Dutch Civil Code of 1992. Although the large-scale picture is the same across Europe, the local differences are very significant; it is on the different patterns of balance between the formulation of the general core and the specific cases on the periphery that we will primarily be concentrating.

A second branch of the literature charts the history of fault liability, through doctrinal study and most of it is national rather than comparative. Alongside these, there is a good deal of comparative work on modern legal systems; an important branch of this is to be found in the writings of those comparatists involved in the identification of common European legal principles (most of the participants in the project have been involved directly or peripherally in this work). A final strand, of relatively recent importance, is the work examining the integration of EU and ECHR rules and standards into national legal systems. As yet, though, there has been no thorough-going synthesis of these different approaches. Both branches of the literature provide important raw material on which the analysis of legal development can be based.