Instrumental Comparative Tort Law
Journal of Tort Law, Forthcoming
33 Pages Posted: 8 Dec 2021
Date Written: September 1, 2021
This contribution to the JTL symposium on "The State of Tort Theory" aims to delineate the potential use of comparative tort law in practice and theory. It takes the view that comparative law is always a means, never an end in itself, demonstrates how it can be utilized by judges, legislatures, and legal scholars, and puts forward important caveats and qualifications.
Part 2 exemplifies the more traditional role of comparative law in interpreting and implementing shared or similar tort doctrines and in providing ideas, often accompanied by relevant empirical evidence, for domestic tort law gap-filling and reform. It explains the challenges that lawmakers and scholars who use comparative tort law for these purposes might face.
Part 3 maintains that comparative law is the cornerstone of unification endeavors. It starts with coordinated projects, such as the Restatements of Torts and the Principles of European Tort Law, demonstrating that unification is in itself an instrument (making comparative law a second-order instrument) and that it cannot be pursued without taking into account some concerns about its desirability and practicability. Part 3 then discusses uncoordinated unification processes, whereby lawmakers in one jurisdiction identify a “global consensus” and decide to join it. It elaborates on the two components of these strategies—the normative (justifying adherence to consensus) and the positive (proving consensus through comparative research).
Part 4 acknowledges that comparative analysis more frequently uncovers trans-jurisdictional diversity and argues that such findings can be used as the foundation for normative and positive theories of tort law. As regards normative theories, a comparison can offer a systematic taxonomy of possible legal solutions to a particular problem, enabling legal scholars to critically evaluate and compare the alternatives from their preferred theoretical perspective. As regards positive theories, any hypothesis about the impact of cultural, economic, political, technological, and other conditions and changes on the law can be substantiated or refuted through comparative analyses that seek out legal differences (or similarities) among systems with different (or similar) underlying backgrounds.
Keywords: tort law, comparative law, unification, interpretation
JEL Classification: K13
Suggested Citation: Suggested Citation