In his most recent essay—“Key Ideas in Tort Law” (Hart Publishing, 2017)—Peter Cane discusses nine fundamental ideas in English civil liability law. The Cambridge professor emeritus begins the booklet by emphasizing that all of his “insights” can be summarized in one truly grand idea: civil liability is a phenomenon that can be understood both from within—as a source of guidance regarding desirable behavior—and from without, taking into account its normative character and the political and social environment in which it operates. From this external perspective, the doctrine is merely one aspect of the social nature of “tort law,” serving as the legal authority that enables civil liability to fulfill its intended social functions. Understanding legal doctrine is important, but what matters most is appreciating the environment and contexts in which the doctrine is embedded and comes to life beyond the page. Understanding the law in all its social and doctrinal richness teaches us something about the human condition—about what it means to be human.
For the Brazilian reader—even one accustomed to studying civil liability—the best part of the book’s 136 pages can be found in what is unusual in our context: Peter Cane devotes the final chapter to examining the political foundations of civil liability—“The Political Foundations of Tort Law.” At first glance, the association between law and politics is subject to criticism—not only among us, who consider civil liability a subject restricted to the rights and duties of individuals in their legal relationships —relegating political activity to the realm of society and groups—but also among respected common law legal philosophers, such as Ernest Weinrib, for whom “tort law” concerns exclusively corrective justice, while distributive justice is the domain of politics par excellence.
The primary mission of politics is the distribution among members of society of the benefits and burdens of communal life. In this sense, explains Peter Cane, the politics of civil liability does not relate to the manner in which individual disputes will be resolved, but rather to the general principles and rules that determine how claims will be adjudicated and who the winners and losers will be. A good Brazilian illustration can be drawn from the enactment of the CDC. Before it took effect, consumers of defective products were “losers”; however, they became “winners” with the introduction of strict liability for products and services. In summary, it can be said that civil liability achieves “justice according to the law,” if we consider the term “justice” to mean the redress of harm in individual cases, while the term “law” refers to the rules that determine how the cost of redressing the harm will be distributed.
In the thought-provoking debate over how the rules and principles of civil liability—which will be applied to individual cases—should ideally be designed, five policies emerge that seek, each in its own way, to justify civil liability as a mechanism for the (re)distribution of wealth based on risk.
The policy of regulation consists of using norms and institutions in an instrumental manner to influence our behavior as potential wrongdoers, thereby minimizing the incidence of harm caused by such conduct. This policy enjoyed considerable prestige in the United States during the 1960s and 1970s, primarily with the introduction of the concept of “minimizing the social costs of accidents”—an idea explored by Guido Calabresi—as a means of shifting the burden of accident costs. Rather than necessarily falling on the party who negligently caused the harm, the law should shift the cost to the party that could have prevented it at the lowest cost. This is a political argument whose objective is to produce a desirable distribution of the costs and benefits of social life associated with traffic accidents. However, the practical application of such a theory would result in the abolition of civil liability, based on the premise that the “cheapest cost avoider” could be the victim themselves. This regulatory approach remains influential in the United States; we need only recall films such as A Civil Action (1998) or Erin Brockovich (2000), whose stories depict civil liability being adopted as a regulatory alternative to the enforcement of workplace safety rules and environmental quality standards, by replacing individual lawsuits with a system of penalties and class-action lawsuits. Nevertheless, “the politics of regulation” receives little support in other jurisdictions: partly because empirical studies show little evidence that civil liability can contribute to minimizing accident costs, and partly because of the inherent impossibility of reconciling civil liability with an economic principle that supersedes the traditional principle of fault.
The second strand concerns the policy of compensation. In contrast to Calabresi, Professor Terence Ison assumes that compensating victims—rather than minimizing accident costs—is the primary function of tort law. However, the practical implication of this approach is just as radical as Calabresi’s, since, in practice, the Canadian scholar proposes replacing civil liability with a universal “no-fault” compensation system, based on the provision of social insurance for illnesses and injuries that cause disabilities and death, regardless of whether the injury is attributable to the harmful conduct of another. In 1974, a universal system analogous to the one proposed by Ison was introduced in New Zealand, covering most accidental injuries (while in other countries, such as Brazil, it was limited to the area of traffic accidents). It can be said that in the 21st century, this type of insurance-based solution for dealing with personal injuries has been rejected, for while political debates in the 1970s focused on how to replace tort law, the core of the current discussion centers on how to coexist with it, resolving its most significant problems.
Next comes the policy of responsibility. According to this policy, civil liability will only (re)distribute resources equitably if risks are also distributed equitably. Just like regulatory policy, the policy of responsibility focuses on the distribution of risks. On the other hand, just like compensation policy, responsibility policy aims at the distribution of resources. However, it differs from both, for while the former are unilateral, responsibility policy tends to be doubly distributive: it distributes both risks and resources. Its evolution over the past 50 years is illustrated by the work of the British scholar Patrick Atiyah. In his book Accidents, Compensation, and the Law (1970), he advocates for the abolition of civil liability for personal injury, considering it an inefficient regulatory tool as well as an extremely costly and equally unfair compensatory mechanism, since it distributes resources randomly among distinct groups of victims—a phenomenon he later termed the “Damages Lottery” (1997). For Atiyah, the greatest problem with civil liability is its bias in favor of victims at the expense of wrongdoers, thereby unfairly distributing the risks of harm and resources between the two groups. A “culture of blame” has emerged, whereby people’s first reaction to any adversity is to blame others—rather than taking responsibility for their own health and safety—thereby turning civil liability and social security into systems of dependency. In this spirit, the Oxford University professor proposed replacing civil liability insurance with a new system, under which potential victims would take it upon themselves to insure against damages (first-party insurance) caused by third parties, rather than relying on third-party civil liability insurance.
Essentially, Calabresi, Ison, and Atiyah are abolitionists. They share the view that civil liability is a flawed mechanism for addressing the social problems arising from the proliferation of individual harms and, therefore, seek to replace it with systems that would more satisfactorily achieve the objectives each considers a priority, whether they be accident prevention, universal compensation, or self-responsibility.
As an alternative to the radical proposal to abolish “tort law,” the reformists emerge. For example, to achieve the regulatory objective, the reformists suggest expanding the use of punitive damages, with the aim of sending potential wrongdoers a stronger signal than that normally conveyed by simple compensation for damages, or by facilitating class-action lawsuits in which multiple consumers can hold a supplier of defective products or a polluter liable, thereby reducing costs and generating publicity. Reformists who believe in the compensatory purpose, on the other hand, tend to persuade lawmakers to create new categories of damages (as occurred in Brazil with the recognition of “existential damages” in the labor reform) or to increase the amount of damages awarded. A neoliberal response consists of advocating for caps and floors on damages, particularly to discourage low-value claims—which are disproportionately costly to pursue—as well as to encourage people to find alternatives to damage claims to protect themselves against the risk of personal accidents.
These reflections lead us to the fourth aspect of civil liability policies: legislative policy. For Peter Cane, the term “politics” involves not only the distribution of risks and damages but also the distribution of power—above all, the power to legislate—which must be balanced between parliament and judges. Neither the legislature nor the judiciary alone possesses the resources to create the rules necessary to satisfy “insatiable” social demands. This delicate balance has been redefined in England over the past 50 (fifty) years, for while common law is a typically creative process arising from the adjudication of individual cases, the legislature has gradually intervened through statutes to bring greater rationality to judges’ decisions, which demonstrates the growing influence of politicians on major legal reforms, to the detriment of the traditional role played by judges. In general, abolitionists are tolerant of parliamentary interventions, while reformists argue that legislators may only interfere when judges alone are unable to improve the system. A notable example of this battle for influence is the legislative debate over bills aimed at making it more difficult for victims of personal injury accidents to obtain compensation (arguing that the balance between potential victims and perpetrators has recently swung too far in favor of the former), based on a review of the principles of civil liability, such as tort, causation, and the defenses available to potential tortfeasors. One of the arguments used by those who oppose legal reforms is that judges themselves can achieve similar results without legislative intervention.
In contrast, the influence of the judiciary has grown enormously in Europe and Brazil. Thus, it is no longer possible to equate civil law with codified law and common law with case law: the reality of legal sources is far more complex on both sides. Of course, significant differences remain, but the old ideal of irreconcilable differences in legal mindsets is becoming increasingly untenable.
In England, none of the four policies mentioned has received much attention over the past twenty years. Rather than focusing on the objectives, content, or even the very debate over the existence of civil liability, the emphasis has been on litigation policy and “access to justice.” Civil liability lawsuits are costly and time-consuming. Unlike the payment of damages by defendants to plaintiffs, the lawsuits themselves consume resources from professional services and the judicial system. In England in the 1980s, the basic rule was that the winning litigant’s legal costs would be borne by the losing party, who, in practice, passed on to their insurer not only compensation for personal injury but also litigation costs. However, a significant proportion of plaintiffs were entitled to “legal aid,” a type of social security payment to cover legal costs, which was essential to the functioning of the civil liability system. If successful, the plaintiff would have to repay a portion of the compensation to the legal aid fund; if defeated, they would normally pay nothing. However, from the 1990s to the present, two trends have emerged regarding access to justice: the revision of procedural rules to reduce litigation costs and facilitate out-of-court settlements, and the gradual reduction of legal aid for cases arising from personal injury accidents. In their place, the “conditional-fee arrangement” is now used, whereby lawyers provide services to plaintiffs whose compensation is contingent solely on a successful outcome, thereby eliminating the burden of initial litigation costs and the payment of court fees if the case fails. This fundamental change has created a new legal industry—so-called “claim management companies”—which provide claimants with a range of essential services—including lawyers, doctors, and insurance experts—to resolve disputes, operating on a “no-win, no-fee” basis.
The availability and cost of legal services are political issues involving the distribution of the burdens and benefits of life in society, forming an inseparable part of the history of civil liability; for without legal services, there would likely be few claims for damages in the non-contractual sector. Dispute resolution is certainly not a major doctrine of civil liability, but it is likely the most visible one.