The structure of tort law : history, theory, and doctrine of non-contractual claims for comprensation

This English translation makes available to anglophone readers a modern classic of German tort theory. It argues that modern German tort law is faced with doctrinal tensions based on problematic theoretical assumptions which stem from historical conceptions of tortious liability, inappropriate to modern times. From a theoretical perspective, it argues against the prevalent doctrinal view in Germany that conceives of tortious liability as split between two tracks - a fault-based track and a strict liability track - each with different normative foundations. Instead, Jansen asserts that there is no rigid distinction between the normative foundations of each form of liability. Rather, both fault liability and strict liability in German law, and indeed other European systems, are best considered as resting upon the unifying theoretical structure of outcome responsibility. The book thus places responsibility rather than wrongdoing at the centre of the normative foundations of tort law. Historically, the book traces in detail how conceptions of tort liability have changed from Roman law to contemporary legal doctrine. It shows how particular historical understandings of the normative basis of tort law have led to continuing normative tensions in contemporary doctrine. Finally, the book examines how a reconstruction of modern German - and, indeed, European - law as based upon outcome responsibility should affect its doctrinal structure. This book makes contributions to the study of the theory, history, and doctrinal structure of tort law. While drawing on and explaining German tort law, its comparative, theoretical, and historical analysis will be of interest to scholars in all legal systems. This book presents a unified explanatory account of the different grounds of tort liability in German law. It seeks to show that the different liability rules—strict, and fault-based—are united by the fundamental idea of outcome responsibility. The book argues that the modern tendency in German scholarship to consider strict liability and fault liability as different in kind and resting upon different normative foundations is mistaken. It also traces the history of fundamental tort concepts—individual rights, duty, fault—through important stages of their development. The book then uses this historical treatment to illuminate the modern position in German tort law, and European tort law more generally. Title_Pages Preface Abbreviations Legislation Logical Symbols Introduction to the English Translation Translator’s Note Introduction— The Aim of the Inquiry Part_I_A_Theoretical_Framework 1 Tort Law Norms 2 The Structure of Normative Reasoning in Tort Law 3 The Effect of Tort Liability upon Behaviour Part_II_A_Step_Back_ 4 Delictual Liability in Roman Law 5 Sanction and Duty, Individual Rights, and Compensation 6 Steps towards a Modern Tort Law Part_III_Doctrinal_Foundations 7 Injurious Conduct 8 Violation of a Right, Economic Loss, and Compensation 9 The Structure of Tort Law Literature1 Index The first English translation of a classic of German tort theory, this book analyses the theoretical foundations of tort law in historical and comparative perspective. Focusing on the tensions in modern German tort law, the book explains the historical development of tortious liability, and argues for a foundational role of outcome responsibility.