Preliminary Remarks

The aim of this chapter is to provide an English and ( within limits ) Common-

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wealth perspective on the fundamental ideas elaborated in Helmut Koziol’s » Basic

Questions of Tort Law from a Germanic Perspective «. That book is so rich in its

argumentation that the selection of particular ideas within it as » fundamental «

runs the risk of omitting others that are no less or perhaps even more important.

But the task I was set requires me to grasp the nettle, though I would observe by

way of mitigation that the ideas I have chosen to highlight struck me as especially

likely to resonate with English and Commonwealth lawyers.

Formulated in my own words, the fundamental ideas to be found in the » Basic

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Questions « are the following:

  Preliminary Remarks

357

These propositions set out a basic approach to tort law that would strike most

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English and Commonwealth lawyers as somewhat familiar, and would be enthusi-

astically endorsed by some – though emphatically denounced by others. It would

be helpful at the beginning of this contribution to provide a preliminary indica-

tion of where – in England and the Commonwealth – the principal battlegrounds

would be seen to lie.

Tort as part of a comprehensive system for the protection of legal goods. Though

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I cannot now think of any account of tortious liability that subjects to such sus-

tained and rigorous analysis its place in the overall system for the protection of

legal goods, I suspect that most English and Commonwealth lawyers would ac-

cept that it is helpful to view it in those terms, and one sees debates in particular

contexts that set tort law against other protective mechanisms, including those of

public law ( eg tort versus regulation, tort versus » no fault « ).

The consistency of the overall system. Though there are a few » critical « legal

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scholars who celebrate inconsistency in the law6, a substantial majority of Eng-

lish and Commonwealth lawyers would accept the desirability of what is often

termed » coherence «. In recent decades, coherence in tort law has been a particu-

lar theme of the writings of the Canadian legal scholar Ernest Weinrib and those

who might loosely be called his disciples7. However, even those who accept in

principle that the law should be coherent in the senses described sometimes rec-

ognise restraints on what can be done to achieve it in a common law system: cer-

tain reforms may be considered to lie beyond the legitimate role of the judiciary

and to be appropriate only for the legislator. As the legislator rarely finds political

advantage in legislating in the field of tort law – and, when it does, cannot be re-

lied upon to enact a coherent reform – this becomes a source of considerable frus-

tration within the legal community.

The distinctiveness of private law. Weinrib has also argued extensively in his

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writings that private law is distinctive because of its bilateral structure, and can-

not therefore coherently pursue » public « goals. These should be pursued, if at

all, through alternative legal mechanisms. This view is also endorsed by others

who nevertheless stop short of » buying into « the whole Weinrib package. However,

358

Ken Oliphant 

England

¶

Helmut Koziol ( ed ) • Basic Questions of Tort Law from a Comparative Perspective