Finding fault

Although concerned with legal development and involving the research input of many lawyers, the project also benefited from the insights of historians, philosophers and scholars in other disciplines. It stands as a model for how national scholars can be supported and developed in an international context in the humanities and social sciences. Regular meetings and website interactions have built a network of researchers that will continue long after the project itself.

Illustrations of legal development

Of course, the topic ‘How do western legal systems develop?’ is very broad. Does the law change principally in step with the state of the economy and of society at large, or does it respond to its own internal dynamics of change? Even where there are strong similarities between the social and economic factors that fuel changes in the law, how do legal systems in different European countries respond? To make these areas of enquiry more manageable, they were tackled through the lens of a particular branch of law that illustrates legal change over a specific period of European history: the liability for harm caused to others by fault in the years 1850–2000.

In England, the core principles for deciding when one individual has to compensate another for the harm they have caused date back to the 14th century; in continental Europe, they date back to the 3rd century BC. This research has sought to chart how these old principles have needed to change and to seek explanations for what happened.

The law relating to fault began to alter around 1850. Enormous technological and economic changes took place as industrialisation and urbanisation occurred in different countries, influencing many aspects of society, including the law. With the rapid rise in the use of steam boilers to power factories, boats and trains, accidents became more frequent. Machinery was both more complex and less predictable than before, causing injuries to employees and passengers. Although in 1850 there were many similarities in approaches to liability for fault across the legal systems of western Europe, significant divergence began to occur in the years that followed.

Constructing the case

To understand the forces behind legal change, we have to look beyond the experience of one country and investigate many. To this end, six case studies were investigated by academics from jurisdictions across Europe: England, Scotland, The Netherlands, Austria, Germany, Sweden, France, Italy and Spain.

The six case studies, each convened by a different project member, focused on the problems that the law has faced in the 150-year period under study: liability in relation to technological change; liability between neighbours; liability for traffic accidents on rail and road; liability for products; liability for medical negligence; and legal doctrine, or the writings of legal academics trying to set out the principles of this developing law.

Factors for change

In a second stage, the project examined the factors that actually shaped legal development in the fields studied. Certain legal institutions, such as law reform bodies, have been important in fostering change in the law. But these bodies have depended on key individuals who have promoted change, typically by persistence over many years. Governments often promote legislation in response to recent prominent crises or disasters, and at such moments proposals that are already formulated are often seized upon.

To what extent does the law reflect developments in social and political ideas? Sometimes there is a clear connection. For example, the French social theorist Émile Durkheim influenced key French legal writers of the late 19th century to argue that the law should provide compensation out of social solidarity with those who were injured, rather than focusing simply on whether a responsible individual was at fault. But, in other areas, it is the opinions of specialist technical experts that shape the law. For example, the law governing asbestos was strongly influenced by relatively small numbers of people in inspectorates, rather than by a broad movement of opinion or ideas.

Changes in the economy clearly have an impact on law – new problems arise that the law has to solve. But it is less clear whether the pattern of solutions directly responds to economic interests. For example, the easy availability of insurance is frequently invoked in arguments for legislation or in court. But it does not dictate a solution. Although Germany and France introduced insurance-based compensation for road accidents, England did not, even though the economic conditions and the availability of insurance were similar. And so, similar economies do not necessarily adopt similar legal solutions.

This study has illustrated that private law can operate with a kind of relative autonomy from contemporary social and political ideas or economic interests. History and legal ideas can be powerful determinants of how far private law contributes to the solution of contemporary problems.