Anaya Nolan
Tort law has evolved from a variety of sources, including Germanic and Anglo-Saxon law, which viewed torts and crimes as compensatory fines for wrongs. Over time, tort law has been influenced by legislative responses to court rulings, such as workers' compensation laws, and legal commentary, resulting in the development of new causes of action like quasi-torts and liability torts. The concept of tort law also varies across jurisdictions, with Singapore's Community Disputes Resolution Act of 2015 offering a unique approach to tort litigation. The economic analysis of tort law and theories such as corrective justice further shape its understanding and application. Tort reform has been a topic of discussion since the 1950s, with ongoing efforts to balance civil justice and liability.
| Characteristics | Values |
|---|---|
| Origin | Germanic system of compensatory fines for wrongs |
| Basis | Holding people responsible for damage and deterring others from creating dangers |
| Objective | To uphold entitlements to property and personal security |
| Function | Providing incentives to reduce risks |
| History | Dating back to the 1950s |
| Notable Cases | Rylands v Fletcher (1868), Filartiga v. Pena-Irala (1980), Cambridge Water Co Ltd v Eastern Counties Leather plc (1994) |
| Legislation | National Childhood Vaccine Injury Act, Community Disputes Resolution Act 2015 (CDRA) |
| Procedure | Discovery, a pre-trial procedure unique to common law jurisdictions |
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What You'll Learn
Germanic system of compensatory fines
The origins of tort law can be traced back to the Germanic system of compensatory fines. In this system, when someone wronged another person, they were expected to make a payment to compensate for the wrongdoing and prevent a blood feud. This practice, known as wergild, involved setting a price upon a person's life based on their rank, and the offender or their family would pay compensation to the victim or their clan. Initially, torts and crimes were not distinguished in Germanic systems, but later Anglo-Saxon law codes began to differentiate certain wrongs, such as arson, murder, and treason, which were deemed unable to be remedied by monetary compensation.
The Germanic system of compensatory fines, or wergild, was a key aspect of early Germanic law and society. It was practiced in Anglo-Saxon England and medieval Germanic countries, where it served as a means to settle debts and provide compensation for inflicted wrongdoings. The concept of wergild is also mentioned in the laws of Ethelbert, King of Kent, in the 6th century.
Germanic law, as a scholarly term, refers to the commonalities between the various law codes of early Germanic peoples. These laws were compared with statements by Tacitus and Caesar, as well as medieval law codes from Germany and Scandinavia. While earlier scholars viewed Germanic law as a distinct legal system, more recent scholarship challenges this notion, arguing that many "Germanic" features actually derive from provincial Roman law.
It is now widely accepted that Germanic law should be understood in contrast to Roman law. Germanic law was not "learned" but incorporated regional peculiarities, indicating that it was a group of related systems rather than a single unified system. Germanic law, as reconstructed by scholars, was based on a society governed by assemblies of free farmers who policed themselves within clan groups. These clan groups, or Sippes, played a crucial role in seeking revenge, receiving wergild, and acting as oath helpers.
In Anglo-Saxon law, which evolved from Germanic law, most wrongs required payment in the form of money or wergild. Fines called wīte, meaning 'blame' or 'fault', were also imposed for disturbances of public order and paid to the king or holder of a court. The distinction between torts and crimes became more defined over time, with certain acts deemed "without remedy" and unable to be compensated by monetary means.
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Anglo-Saxon law and payments to the wronged
Anglo-Saxon law was the legal system of Anglo-Saxon England from the 6th century until the Norman Conquest of 1066. It was a form of Germanic law based on unwritten customs known as folk-right and written laws enacted by kings with the advice of their witan or council. Anglo-Saxon law mandated that a person pay compensation when injuring another person. The injured body part determined the amount of compensation. According to Æthelberht's law, pulling someone's hair cost 50 sceattas, a severed foot cost 50 shillings, and damaging the "kindling limb" (the reproductive organs) cost 300 shillings. In the case of murder, the victim's family could forego a blood feud in return for payment of a wergild. The wergild was a system where if someone was wronged, the community would pay the victim a fine as compensation. This made violence less likely as it discouraged the need for revenge, putting an end to the dispute.
In addition to paying the king a wite (fine), the killer also owed compensation to the victim's lord. Some crimes could not be satisfied by financial compensation. These botless crimes were punished with death or forfeiture of property and included theft, open murder, arson, and treason against one's lord. Items or creatures that caused death were also destroyed as deodands. Alfred the Great's Doom Book distinguished unintentional injuries from intentional ones and defined culpability based on status, age, and gender. For example, Alfred insisted that the wronged family had to wait twelve months to see if the other family would pay up. He banned secret attacks and insisted that payment be requested before any attack.
Anglo-Saxon law grew out of Germanic traditions, not Roman ones, and when it was written down, it was written in Old English rather than Latin. The first written Anglo-Saxon laws were issued around 600 by Æthelberht of Kent. The creation of written law codes coincided with Christianisation, and the church received special privileges and protections in the earliest codes. The Law of Æthelberht demanded compensation for offences against church property. The older law of real property, of succession, of contracts, and the customary tariffs of fines were mainly regulated by folk-right. Customary law differed between local cultures, and these main folk-right divisions remained even when tribal kingdoms disappeared and the people were concentrated in one kingdom.
By the later Anglo-Saxon period, a system of courts had developed to administer the law, while enforcement was the responsibility of ealdormen and royal officials such as sheriffs, in addition to self-policing (friborh) by local communities. Tithings were small groups of ten men, all over the age of twelve. They would all be responsible for one another's conduct. If one man broke the law, all the other men would need to deliver him to court or pay a fine. There was also the system of Hue and Cry, where if a victim had been wronged, they would raise the alarm, and the whole village or town was expected to down tools and chase the perpetrator and bring him to justice. If a person didn't join in the hue and cry, the whole village had to pay a fine. These measures aimed to put the responsibility of the law on the people and probably helped form community ties. It may have even resulted in fewer crimes being committed, as it was in the people's interest to settle small disputes before they escalated into physical violence or stealth.
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Workers' compensation laws
The concept of tort law has its roots in Germanic and Anglo-Saxon law, where compensatory fines were imposed for wrongdoings. Over time, tort law has evolved to encompass various legislative responses and legal commentaries, including workers' compensation laws.
Similar laws existed in other ancient civilizations, such as Ancient Greece, China, and Arabia. These early compensation schemes were based on schedules that assigned specific rewards for particular injuries. For instance, under ancient Arab law, the loss of a joint of the thumb was worth half the value of a finger, while the compensation for the loss of a penis was determined by the length lost.
In the late 19th century, significant developments in workers' compensation laws occurred. Prussian Chancellor Otto von Bismarck enacted the Sickness and Accident Laws, which valued employees and provided medical care and rehabilitation costs for workers injured on the job. This system also established the principle that employees receiving workers' compensation could not sue their employers.
Following Prussia's lead, England's Parliament passed the Workers' Compensation Act in 1897. In the United States, the first workers' compensation program was established by the federal government in 1908 to provide benefits for civilian employees engaged in hazardous work. By 1921, all but six states and the District of Columbia had enacted workers' compensation laws, with Mississippi being the last state to do so in 1948.
Today, workers' compensation laws in the United States cover a significant portion of the workforce, with approximately 135.6 million employees covered in 2015. These laws provide medical benefits, cash benefits for lost work time, and death and funeral benefits for workers' survivors. While there are some exemptions, workers' compensation is compulsory for most private employment.
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Discovery and pre-trial procedure
Discovery, in the law of common law jurisdictions, is a phase of pretrial procedure in a lawsuit. It is a method by which opposing parties in a court proceeding can obtain and exchange information about witnesses and evidence that will be presented at an upcoming trial. This process is unique to common law jurisdictions and is not available in civil law countries, where it is seen as the prerogative of the state to maintain the rule of law.
In the discovery process, each party can use various discovery devices to obtain evidence from other parties, including interrogatories, requests for production of documents, requests for admissions, and depositions. Interrogatories are lists of questions that a party sends to another party, which must be answered under oath. Requests for admissions involve the affirmation or denial of the truth of a statement under oath. Depositions are a witness's sworn out-of-court testimony, which allows them to provide calm recollections and correct the record before their testimony is submitted as evidence. Discovery can also be obtained from non-parties using subpoenas.
The broad purpose of pretrial discovery is to ensure that parties in a lawsuit have mutual knowledge and access to all relevant facts that are essential to litigation. This helps to ensure that lawsuits are decided on the basis of the facts themselves, rather than whether facts have been concealed. While information learned during discovery can be extremely helpful for litigants in preparing their cases, it can also be challenging for those unfamiliar with the process to navigate effectively.
In the United States, discovery is mostly performed by the litigating parties themselves, with minimal judicial oversight. It is governed by the Federal Rules of Civil Procedure, specifically Rules 26 to 37. However, the availability of discovery procedures varies across jurisdictions, and some jurisdictions may have different rules regarding the extent of pretrial discovery allowed. For example, in Florida, there is no constitutional right to discovery in a criminal case, but defendants do have a right to pretrial discovery under the Florida Rules of Criminal Procedure.
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Tort law and economic analysis
Tort law has its origins in Germanic and Anglo-Saxon law, where compensatory fines were imposed for wrongs committed. Over time, tort law has evolved and been shaped by various legal scholars and theories. One notable influence is the work of Holmes and Pollock, who argued that the basis of liability was "causing harm without justification or excuse". This idea, known as the Holmesian formulation, has had a significant impact on legal education in North America and has contributed to the development of economic analysis of tort law.
Economic analysis of tort law seeks to understand and address the social and economic effects of tort law. It treats tort law as a mechanism for regulating safety and allocating social resources efficiently. One key concept in economic analysis is the idea of optimizing safety by weighing the costs and benefits of achieving a certain level of safety. For example, imposing extremely low speed limits would drastically reduce traffic accidents but would also incur high costs in terms of convenience, food spoilage, and emergency services. Therefore, economic analysis proposes to determine the appropriate level of safety that society is willing to pay for.
Another aspect of economic analysis is the focus on transactions between the plaintiff and the defendant. In economic terms, the plaintiff's injury by the defendant serves as the occasion for regulation and liability, but the missing element is the transaction itself. This explains why there is no duty to rescue in tort law and why liability is imposed for injury but not for failure to assist. The transaction-based approach also highlights the role of tort law in upholding entitlements to property and personal security, as argued by scholars such as Gregory Keating.
The economic analysis of tort law has become a dominant force in legal scholarship and education, particularly in the United States. It has influenced the way tort law is understood and applied, with a focus on deterrence, responsibility, and the allocation of costs associated with safety regulations. The development of economic analysis has been shaped by Holmes' emphasis on deterrence and the idea that tort law serves to hold people responsible for the damage they cause, as well as providing incentives for people to take precautions against the risk of injury.
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Frequently asked questions
Torts and crimes in common law originate in the Germanic system of compensatory fines for wrongs, with no clear distinction between crimes and other wrongs.
In the case of Rylands v Fletcher (1868), strict liability was established for the dangerous escape of some hazard, including water, fire, or animals as long as the cause was not remote. Another example is Singapore's Community Disputes Resolution Act 2015 (CDRA), which alters the common law by codifying a statutory tort of "interference with enjoyment or use of place of residence".
Tort law is based on the idea of holding people responsible for the damage they cause and deterring others from creating dangers. It also emphasises corrective justice, which upholds entitlements to property and personal security.
Tort law has evolved through legislative responses to court rulings, legal commentary, and economic analysis. For example, workers' compensation laws arose as a legislative response to court rulings restricting employees' ability to sue their employers for injuries sustained during employment.
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