Friday, August 14, 2009

Eric Engle on The Globalization of Tort Law

SSRNProfessor Eric Engle (Harvard & Universitat Bremen) has posted to SSRN his article, Aristotelian Theory and Causation: The Globalization of Tort Law.  Here's the abstract:

Instant global communication and world-wide trade and travel have broken down legal barriers despite historical and linguistic differences in the differing legal systems. The result? A remarkably uniform globalized system of tort law. The common law and civil law of torts reach similar results because they must address and resolve the same basic fact patterns. However, the parallels between the common law and civil law of tort are much greater than mere factual convergence: the same legal theories appear in each system, notably Aristotelian concepts of causation, as well as foreseeability, the adequacy theory, and economic analysis of law. More often than not, even the same basic black-letter rules of tort liability are found in common law and civil law. This contentious conclusion of rule convergence is compelled by an observation of the basic black-letter rules in both systems. Similar fact-patterns and the same basic theories led to the development of strikingly similar rules in both the common law and civilianist tort, even in a field of national law and even in a field where the facts are inevitably indeterminate. 

Tort law is the doctrinal (superstructural) expression of material facts, notably the relationships of productive forces - economic actors and actions. The law of tort seeks to rationalize, justify and explain the relations of production. Convergence of tort law is an emergent property of the global legal system, a demonstrable confirmation of a weak version of Gunther Teubner's thesis that law is a self-organizing system and of Volkmar Gessner's thesis that legal certainty is an emergent property of legal systems. Autopoeisis and emergence clearly are characteristics of globalized tort law. Unlike Duncan Kennedy and, I believe, like Teubner, I do not take the position that law is autonomous or even relatively-autonomous to other social sciences or the economic base on which legal superstructures are built. Rather, global convergence of national private law of tort tends to confirm that law (superstructure) and market (base) are in a dialectical relation. However, at least on the issue of emergent legal convergence, the facts do not prove my hypothesis that the economic base determined the legal superstructure even as the legal superstructure at times, exceptionally, decidedly influences the structuring of the economic base - because the economic base and the legal superstructure here both lead to the same outcome - convergence of distinct private law systems.


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