Instrumental Comparative Tort Law
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Ronen Perry
Abstract
This article examines the possible uses of comparative tort law in practice and theory. It takes the view that comparative law is always a means, never an end in itself, explains how it can be utilized by judges, legislatures, and legal scholars, and puts forward important caveats and qualifications. Part 2 demonstrates the traditional role of comparative law in interpreting and implementing shared or similar tort doctrines and in providing ideas for domestic tort law gap-filling and reform. It highlights the challenges that such utilization might present. Part 3 maintains that comparative research is the cornerstone of unification endeavors. Starting with coordinated projects, Part 3 argues that unification is in itself an instrument (making comparative law a second-order instrument) and that it cannot be pursued without taking into account some concerns about its desirability and practicability. Part 3 then discusses uncoordinated unification processes, whereby lawmakers in one jurisdiction identify a “global consensus” and decide to join it, and elaborates on the normative and positive components of these strategies. Part 4 acknowledges that comparative analysis usually uncovers trans-jurisdictional diversity and argues that such findings can underlie normative and positive theories of tort law. A comparison can offer a systematic taxonomy of possible legal solutions to a particular problem, enabling scholars to critically evaluate and compare the alternatives from their preferred theoretical perspective. Moreover, any hypothesis about the impact of cultural, economic, political, technological, and other conditions and changes on the law can be substantiated or refuted through comparative analyses that seek out legal differences (or similarities) among systems with different (or similar) underlying backgrounds. Through this analysis, the article aims to reignite and enrich the debate and inspire tort-law makers and scholars to integrate comparative research into their work.
© 2021 Walter de Gruyter GmbH, Berlin/Boston
Artikel in diesem Heft
- Frontmatter
- Editor’s Introduction
- Symposium Issue: The State of Tort Theory
- Research Articles
- The Inward Turn and the Future of Tort Theory
- Q: What is Tort? A: Categorical Hurt
- Tort Common Law Future: Preventing Harm and Providing Redress to the Uncounted Injured
- Social Justice Tort Theory
- Tort Theory and Restatements: Of Immanence and Lizard Lips
- From Liability Shields to Democratic Theory: What We Need from Tort Theory Now
- Strict Products Liability 2.0: The Triumph of Judicial Reasoning Over Mainstream Tort Theory
- Tort Theory, Private Attorneys General, and State Action: From Mass Torts to Texas S.B. 8
- Instrumental Comparative Tort Law
- The Public Right and Wrongs: Tort Theory and the Problem of Public Nuisance
- Justifying and Categorizing Tort Doctrines: What is the Optimal Level of Generality?
Artikel in diesem Heft
- Frontmatter
- Editor’s Introduction
- Symposium Issue: The State of Tort Theory
- Research Articles
- The Inward Turn and the Future of Tort Theory
- Q: What is Tort? A: Categorical Hurt
- Tort Common Law Future: Preventing Harm and Providing Redress to the Uncounted Injured
- Social Justice Tort Theory
- Tort Theory and Restatements: Of Immanence and Lizard Lips
- From Liability Shields to Democratic Theory: What We Need from Tort Theory Now
- Strict Products Liability 2.0: The Triumph of Judicial Reasoning Over Mainstream Tort Theory
- Tort Theory, Private Attorneys General, and State Action: From Mass Torts to Texas S.B. 8
- Instrumental Comparative Tort Law
- The Public Right and Wrongs: Tort Theory and the Problem of Public Nuisance
- Justifying and Categorizing Tort Doctrines: What is the Optimal Level of Generality?
