Codification, Consolidation, Restatement? How best to systemise the modern law of tort

Paula Giliker*

*Corresponding author for this work

Research output: Contribution to journalArticle (Academic Journal)peer-review

27 Downloads (Pure)

Abstract

The law of tort (or extra or non-contractual liability) has been criticised for being imprecise and lacking coherence. Legal systems have sought to systemise its rules in a number of ways. While civil law systems generally place tort law in a civil code, common law systems have favoured case-law development supported by limited statutory intervention consolidating existing legal rules. In both systems, case-law plays a significant role in maintaining the flexibility and adaptability of the law. This article will examine, comparatively, different means of systemising the law of tort, contrasting civil law codification (taking the example of recent French proposals to update the tort provisions of the Code civil) with common law statutory consolidation and case-law intervention (using examples taken from English and Australian law). In examining the degree to which these formal means of systemisation are capable of improving the accessibility, intelligibility, clarity and predictability of the law of tort, it will also address the role played by informal sources, be they ambitious restatements of law or other means. It will be argued that given the nature of tort law, at best, any form of systemisation (be it formal or informal) can only seek to minimise any lack of precision and coherence. However, as this comparative study shows, further steps are need, both in updating out-dated codal provisions and rethinking the type of legal scholarship that might best assist the courts.
Original languageEnglish
Pages (from-to)271-305
Number of pages35
JournalInternational and Comparative Law Quarterly
Volume70
Issue number2
Early online date26 Mar 2021
DOIs
Publication statusPublished - 1 Apr 2021

Bibliographical note

Publisher Copyright:
Copyright © The Author(s) 2021. Published by Cambridge University Press for the British Institute of International and Comparative Law.

Keywords

  • tort law
  • comparative law
  • French law
  • codification
  • tort law reform

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