Comparative Legal Culture and Tort Law - An Exploratory Experiment

Abstract

In the legal literature it is argued that applicable law in a given country should be understood against the background of the shared notions of justice in that country. If this view is correct, then the prevailing civil law in a given country should also reflect the shared notions of 'civil justice'. And if that is correct, citizens should reveal a preference for their own law over the law of another country. In this contribution, we try to make the link between citizens' views and the applicable civil law tangible on a concrete case level: does Dutch liability law in concrete cases really fit with what citizens in the Netherlands think is fair? And English liability law to what the English consider to be just? We investigate this question by means of an exploratory experiment. The results point in different directions. When we put the results together, it seems that Dutch people prefer Dutch liability law and English people prefer English liability law. But at the case level, this is certainly not always the case. Thus, the results may provide a tentative indication but certainly no definitive proof that liability law structurally corresponds to what citizens consider fair; we therefore formulate suggestions for follow-up research.

Keywords: Legal culture, tort law, comparative law, empirical legal studies, justice