Volume 3, Issue 2

Abstract: This article provides a short introduction to the present special issue of the Journal of European Tort Law, which critically investigates the cultures of tort law in four selected national or regional contexts in Europe: England, France, Germany and Scandinavia. It explains what is meant by the idea of a culture of tort law, summarises the articles that follow, and ends with some concluding reflections from a comparative perspective.

Abstract: French tort law is well known for its victim-oriented approach and is, in the eyes of many, the very example of what should not be done if the floodgates of litigation and compensation are to be kept closed. Yet, despite their breadth, the rules of tort law have not wrought the kind of havoc in France’s society and economy that one might have expected. It is this article’s hypothesis that at least part of the explanation for this lies in the culture surrounding French tort law. The article thus investigates the important elements of the culture, particularly the broader legal and social context, of which French tort law is a part, as well as the mentality and habits of tort law’s key ʻplayersʼ namely, legal academics, judges and attorneys.

Abstract: Important tributaries that feed into the culture of German tort law go back to the values of the late 19th century, lessons drawn from the catastrophe of the Third Reich, and core principles of the constitutional regime that was created in 1949. The single most relevant influence today – despite the economic pressures that have led to substantial cuts in many areas – may be the social security system, which has roots both in the reforms initiated by Otto von Bismarck and the social state principle of the German Basic Law. Other issues explored by the author in this very modest attempt to map new trends and identify some of the many cultural factors that in their sum determine how contemporary German tort law plays out in daily practice include the rate of litigation, the willingness of parties to adopt alternative approaches to the resolution of their disputes, the influence of legal expenses insurance, and the level of damages awarded by German courts. The common thread through all of these topics is the role that judges play in the development of the law not only in tort but in just about every part of the German legal system. The true oracle of German law today is not the legislator but the judge.

Abstract: Although there is no single “Scandinavian tort law culture”, the author attempts to highlight some features that have impacted on tort law discourse in the Nordic countries over the last 100 years. Currently it seems that the intellectual tradition of Scandinavian Realism can possibly be challenged since Scandinavian tort law is influenced both by internal and external factors. Late modernity can pave the way for more pluralistic reasoning and the European influences concerning individual “rights” can be a challenge to the traditional societal and welfarist way of viewing collective issues of security and the standard of living. The author shows the developments by making “micro visits” (using 20-year intervals) to intellectual tort law discussions throughout the century while looking for traces of the ideas encountered in these environments in current tort law discourse. Scandinavian tort law culture is also addressed in the context of other cultural spheres, with particular reference to corresponding developments in music.

Abstract: This article highlights two contrasting sets of images of tort that are dominant in UK culture. The first set reflects various aspects of the traditional portrayal of justice, which depicts tort as an independent ʻnaturalʼ system of rules of universal application forming the foundation of a just society. The second group of images is more recent and relates to the perceived development of a damaging compensation culture. Focusing on personal injury litigation, we show, in different ways and to different degrees, how these portrayals differ from the reality of tort in practice. In explaining how tort actually operates we reveal significant features of the culture of tort. In practice it is heavily influenced by institutional arrangements: the importance of both welfare provision and liability insurance is highlighted, and the effects of a ʻno-win no-feeʼ claims market are examined. The article reveals that the operation of tort is very much affected by commercial interests and the economic demands of the institutions which surround it. Overall we conclude that the cultural images of tort examined fail to reflect how the system of compensation for personal injury actually operates in practice.

Abstract: The question of whether and when expulsion and valuation clauses in partnership agreements or the articles of close corporations are valid has occupiedGermancourts as well as legal scholars formanydecades. While the courtsnowadaystake a rather restrictive stance on the validityand enforceability of such clauses, a growing body of literature criticises the case law of the Federal Supreme Court as overreaching with regard to the members’ freedom to arrange for the internal affairs of their own association. This article depicts the changeful caselaw of the German Federal Supreme Court on expulsion and valuation clauses as well as its echo in the scholarly debate. Subsequently, the analysis turns to the questionwhetherandhowthis restriction of the partners’ and shareholders’ freedom of contract can be justified. It comes to the conclusion that limiting themembers’privateautonomyonthe issues of expulsionandvaluationof theexitingmember’s share in the association can, in principle, be justified as a manifestation of so-called libertarian paternalism. Applying this regulatory concept that builds on the insights of psychological and behavioural economic research to the Federal Supreme Court’s case law shows, however, that the court’s grip on the arrangements of the members of partnerships and close corporations is unjustifiably tight and has to be loosened in deference to the members’ freedom of contract, thereby bringing it morein line with English and U.S. laws on closely held business associations.