Essay on tort law history, in particular looking at the British and Australian tort law development through the 19th century.

Essay by Kathleen564College, Undergraduate May 2003

download word file, 5 pages 4.5

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...