Comparing Tort and Crime. Learning from across and within Legal Systems
Editor: Matthew Dyson
Publisher: Cambridge, UK: Cambridge University Press, 2015. 558p.
Reviewer: Marta Infantino | May 2016
The book presents itself as a reasoned collection of essays about the relationship between tort and crime in eight jurisdictions: England, France, Germany, Sweden, Spain, Scotland, the Netherlands, and Australia. The essays are framed by the editor’s introduction, which explains the aims and the methodology underlying the volume, and the editor’s conclusion, which sketches out the overall picture arising from the national reports. The volume follows the publication of another CUP book edited by Matthew Dyson (Unravelling Tort and Crime, 2014), which focused on tort and crime under English law only.
There are many reasons why the book is a fascinating read for a wide audience, which goes beyond just those who are interested in comparative tort and criminal liability. Some reasons are self-evident, while others are a refreshing surprise. Let me start from the most obvious merits of the volume.
The clearest contribution made by the book is that it fills a gap in the comparative law literature. It is well known that boundaries and interactions between tort and crime widely vary across jurisdictions, reflecting different institutional, professional, and cultural contexts. There are jurisdictions where cross-fertilization between tort law and criminal law is, if not absent, negligible. In other places, the two fields frequently overlap, either because rules and doctrines from one sector are shared with the other, or because procedural rules allow for the joinder of claims. Yet, no large-scale and in-depth study of the many forms that the crime/tort divide may take across legal systems was previously available.
Another striking feature of the book relates to the questions it raises. Many of these questions are of the kind almost anyone would ask in facing the tort/crime divide. What is the purpose of tort law and of criminal law? Are rules on capacity, consent, fault, causation, and defences the same in both contexts? How do the rules of procedure operate for each area, and are there points of overlap? What is the standard of evidence in tort and criminal proceedings? Can a criminal court award compensation to a victim and can a victim force a prosecution in order to get it?
The book seeks to explain not only what the black letter law is each jurisdiction, but also its structural background and underlying rationale. The volume sheds light on commonalities and divergences in jurisdictions’ approaches to dispute resolution, in forms of state support and in the role played by the insurance market. It investigates the level of specialization of the legal actors – i.e. lawyers, judges, academics, and insurers – whose daily work shapes the boundaries between tort and criminal liability. It analyses the mind-set and narratives associated with tort law and criminal law thinking and practice. It examines the ways in which the two fields are seen both from within and outside the legal community, trying to identify the pressures that promote change in each domain. In other words, the volume does not content itself with delving into the ensemble of positive rules, institutions, and procedures that govern tort and criminal liability in the eight jurisdictions considered. It also explores the tort/crime divide as the product (and the constituent) of technocratic and popular visions about responsibility and justice, the private/public boundary, and the values that should be protected and promoted by the system. The effort of paying attention to the institutional, professional and cultural factors impinging on tort and criminal law is as rare as commendable in comparative legal literature.
Underlying this effort, there is a broad idea about what law, and in particular comparative law, is. The book is grounded on the assumption that tort law and criminal law are not defined by statutory texts, judicial precedents, or scholarly writings only. Rather, tort and crime live also in the (self-)representations and interpretive practices within and outside the legal community. The tort/crime divide is thus understood as both dynamic and pluralistic. It is dynamic because (paraphrasing what has been famously said about legal systems) tort and crime in this book ‘never are; they always become’. It is pluralistic because one of the volume’s leitmotivs is that in each and every jurisdiction one can find different legal cultures across and within the tort/criminal law divide.
Such a dynamic and pluralistic idea of law informs, and probably is informed by, the equally open view adopted in the volume about what comparative law is. As the title hints at, the object of the comparison in this volume is the boundaries and interactions between tort and crime, not only across different jurisdictions but also within them. The scrutiny of the implications of lawyers’ linguistic usages and working assumptions; the unravelling of the history of rules, institutions, and professions; the emphasis on the many perspectives, layers, and divisions of labour that have through time cohabitated within a given legal community – all this substantiates the comparative law exercises made in the volume. Needless to say, each essay performs these ‘comparative’ tasks in its own way. But what stems from the overall volume, and especially from its introductory and concluding chapters, is still comparative law at its best.
National essays offer a final reason to praise the volume. A common difficulty in any collective transnational enterprise is that of producing a consistent output, and having different people abiding by the same guidelines. A striking feature of this volume is that, although all essays present a national story, there is a high level of consistency between each tale. This is certainly due to the methodological efforts carried on during the making of the book. A general questionnaire (see Introduction, pages 13-17) was sketched out to guide the authors of the national chapters in their research. All national chapters were co-authored by national specialists in tort law and criminal law (plus, in some cases, procedural law). The consistency of the chapters was further guaranteed by the meetings held between the authors, and by the circumstance that national teams were partnered with each other to develop stronger links between the papers, the teams, and a common methodological approach. The result of such a cooperation is manifestly evident to any reader.
All the above, of course, does not mean that the book leaves no room for complaint. Somebody may find the selection of the jurisdictions rather arbitrary. While reasons of space and time obviously made a choice necessary, the point is that all the jurisdictions picked up in the volume are Western. The result is that no post-socialist countries are included, though the analysis of the long-term effects of the sedimentary layering of socialist law on the tort/crime divide looks like a promising field for research. Moreover, the Western-centred focus of the book leaves out of the picture a plethora of experiences from Africa, Asia, North and Latin America, the study of whose developments might have been extremely interesting in the comparative perspective.
Another limit of the book might lie in the abstractedness of the questions posed. Contributors were asked to respond to a theoretically-shaped questionnaire, complemented by one factual case (the case is at page 17; answers to the case are in the Appendix at the end of the volume, pages 476-492). This way, the cross-jurisdictional comparison emerging from the volume is a collection of highly sophisticated national scholarly tales. While these tales are helpful in providing readers with accurate knowledge about national scholars’ perspectives about their own legal system, what might be missing is the appreciation of the operational similarities and divergences between jurisdictions. This might have been done by asking reporters to explain how their own jurisdiction would deal with factual problems, along the lines traced by the project on the ‘Common Core of European Private Law’ led by Mauro Bussani and Ugo Mattei (see the volumes published in the dedicated Cambridge University Press series here. A more extensive recourse to factual cases might have better highlighted the practical convergence or divergence between the national experiences examined. Finally, one may complain about the index, whose brevity does not do justice to the substance of the volume.
Even critics, however, would surely concede that the book is a great piece of scholarship, full of detailed information and well-thought-out analysis that was simply not available before. I am persuaded that any reader will side with the editor’s hope that the book will only be the first of a series of volumes dedicated to understanding tort and crime from a comparative perspective. My personal wish is that the series will perpetuate the quality of its beginning.
Marta Infantino, Lecturer, University of Trieste, Italy