Volume 14, Issue 3

In recent decades, tort law, and the theory on which it is based, have been the subject of intense debate. These debates focus on the underlying rationale of tort law and reflect tensions between instrumental and non-instrumental perspectives. Instrumental perspectives cover a wide variety of approaches in which tort law is seen as a tool to realise social aims. It can be recognised in the theories of legal economists, such as Posner, who emphasise deterrence, but also in the theories of those who consider it to be an instrument to realise compensation or to contribute to distributive justice. The non-instrumental perspective reflects the concerns of those who consider tort law to be based on individual autonomy and liberty. Some advocates of this perspective adopt a straightforward anti-instrumental position. Weinrib and Beever for instance, object to tort law being used as an instrument to realise collective aims. An instrumental approach would make individuals – either the injurers or the victims – the servants of collective aims, whereas tort law should instead protect individual freedom in the face of community needs.These non-instrumental theories and their individualistic interpretation of liability are unrealistic in a society where people are embedded in wide networks of interdependency, in which risks are often anticipated and deliberately accepted as socially desirable, and in which insurance and its accompanying rationale of actuarial justice play a prominent role.Nevertheless, the issue I seek to address in this paper is whether the principle of corrective justice might not embody some important values that can be used to counter some problematic aspects of an instrumental approach. Based on an awareness that the concept of corrective justice as a whole is no longer realistic in today’s society and building on Habermas’ theory of communicative action, I will sketch the contours of an alternative underpinning for tort law that better reflects current social realities, while at the same time taking some normative reservations held by advocates of corrective justice against instrumentalism into account.

Presumptions of law are an appealing concept to remedy situations of causal uncertainty. In many pieces of EU legislation in various areas such as competition law, AI law and environmental law, presumptions are presented as a solution for plaintiffs that encounter problems regarding causal uncertainty in their compensation claims. Oftentimes, however, insufficient attention is paid to the possible risks of over- and under-compensation, the available alternatives and the functionality of these presumptions. In this article, I argue that a presumption of law fulfils two functions. First, this paper aims to address situations of evidentiary deficiency (individual goal). Second, it aims to facilitate the procedural road to compensation in cases of mass harm (collective goal). A comparative analysis of Belgian, Dutch and French law reveals that there are many ways to shape a presumption and its consequences. In conclusion, I argue that presumptions should always be tailored to a certain case and should attempt to reconcile the collective goal with the individual goal. To that end, policy-makers should aim to create collective presumptions of fact, based on the statistical evidence in a certain mass harm case, as opposed to presumptions of law.

Product liability has been, and continues to be, a problematic area in Turkish law. Prior to legislative attempts to introduce strict product liability, producers could only be held liable based on their fault. Although liability based on fault cannot provide appropriate solutions to all product liability problems, the Turkish Court of Cassation was in the process of establishing case law that was suitable to most product liability issues. However, this development was interrupted by problematic legislative attempts to introduce strict product liability, which became the focus of academic literature on product liability. The final of these legislation attempts is the Product Safety and Technical Regulations Act of 2020. In this Act, product liability and product safety rules are intertwined with each other. This is problematic for product liability provisions, since concepts and rules that should remain in product safety law are transferred to product liability law. The Act claims to be in line with the Product Liability Directive of 1985. However, this is far from accurate. The Act fails to harmonise Turkish law with the Product Liability Directive of 1985, let alone offer solutions to problems that have become apparent since 1985. This article attempts to highlight the product liability issues caused by the Act and interpret its provisions in a manner that is as compatible with European law as possible.

Climate change has created existential challenges for current models of natural hazard insurance, and it may be difficult going forward for these models to consistently, fairly and coherently manage the compensation challenges associated with climate change impacts in Europe. This paper analyses the application of a comprehensive no-fault compensation fund framework to the problem of presently uninsured and technically uninsurable losses that are currently inadequately covered by other compensation mechanisms, and for which compensation may be difficult to recover using tort law mechanisms. The proposed structure includes consideration of the purpose and form of the fund, eligibility and categories of loss covered, quantum of compensation, and funding sources. There is also a preliminary consideration of the impact of such a fund on questions of liability. The proposed model illustrates potential ways for a compensation fund to support and complement existing compensation structures such as insurance and civil liability, and provide the necessary stabilisation in European society. Further legal research in this area will require qualitative and quantitative empirical data on how existing compensation frameworks (including innovative insurance instruments like parametric insurance) have so far positively and negatively impacted the ability of victims of climate change to prepare for and recover from loss incidents, in comparison with tort law and existing insurance.