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Essay On Tort Law History, In Particular Looking At The British And Australian Tort Law Development Through The 19th Century.

1396 words - 6 pages

Prior to the industrialization of America and England in the early 19th century tort law had a limited scope primarily due to a lack of diversity and lack of quantity in tort cases. However with large factories and railroads grew a complex relationship between employee, employer and consumer. Due to this it was necessary for the legal system to re examine lines of reasoning. Despite academics such as Friedman suggesting that the law became a tool for those few at the top of the new economic structure, it is more reasonable to concede that law was unable to stagnate in a period of such rapid development.Among those projecting the view of a law driven by economics are Horswitch and Friedman. Central to their argument is that tort law reasoning was dramatically altered in both the United States and Great Britain to benefit the new technology to the detriment of individual justice. Horwitz in particular is adamant that the law was used as a subsidy for the new economy as taxes would be both obvious and a politically undesirable thing. However there is flaw in Horwitz's argument that; " though never entirely able to overthrow the regulatory assumptions behind the earlier law, these new doctrines nevertheless underlined a deep tendency ... to favor the active and powerful elements in American society " for the simple reason that there is little correlation between negligent law in the nineteenth century with any law preceding this, as it was a completely new area of law sparked by the unique situations that industrialization created. Therefore the old law could not be overthrown as it never had to deal with tort cases of this nature. The new doctrines arose not as a result of ambition in the powerful segments of society but rather as a result of change. Furthermore, it would be an instable policy to rely on tort cases as a subsidy for industry rather than imposing a tax as the very nature of law is reactive. Due to this, any encouragement of industry that could result from the law can only happen after something tortuous has occurred. It would be more plausible to argue that even though the result of the new doctrines may not have hindered industry, the reason for the new doctrines was not one based in pure economic growth.Such views take a largely reductive attitude towards the law and deny any real substance to the idea that law must retain an inherent logic, which would deny any change as large as this without more motivation than pure economic gains. It may be accurately stated that much of the reasoning that developed did not hinder industrialization. However it would be arrogance to argue that the judges and lawyers at the heart of these decisions had complete disrespect for the internal structure of the law and that politics was the only motivation.As E. White points out, the existence of tort law in the United States, as well as in Great Britain, before the nineteenth century was relatively sparse. The first treatise on torts did not emerge...

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