The Critical Lawyers' Handbook Volume 1
2: Critical Legal Education
Joanne Conaghan and Wade Mansell
The subject of tort is one of the most beguiling to students whose conception of legal study is that it is about discrete subjects apparently clearly defined and governed by a satisfying intermingling of statute and case law. If the textbooks are to be believed, tort appears to consist of a number of general principles (in most cases strongly corresponding with common sense) exemplified by case applications which seem, if the premises of tort are accepted, logical, coherent and essentially just. Additionally, the cases themselves are often memorable because of the bizarre and commonly tragic facts with which they often deal. They support the view that humour is intimately connected with misfortune. Individuals being struck on the head by cricket balls, suffering dermatitis through impure underpants, trapped in a toilet with a defective door, vomiting because of decomposed snails in opaque ginger-beer bottles are the very stuff of tort.
It seems, then, that tort is a morbidly attractive subject to study and an at times exhilarating subject to teach - rigorous, principled and even entertaining. Yet, despite these manifest attractions, the lure of tort is somewhat diminished by a closer critical examination: logic, coherence and justice too often give way to chaos and aimlessness; rationality, far from being a characteristic of the torts system, becomes a major weapon in its assault; politics assumes a dominant and contentious position. The popular image of tort remains both coercive and appealing because it is not obvious that as a system of loss distribution tort is very haphazard. Nor are its politics explicitly revealed and rehearsed in a traditional study of the subject. Conventional texts, such as Winfield & Jolowicz, proceed on the basis that tort law consists of a basically uncontentious and apolitical body of principles (Rogers, 1989). This encourages a view of tort law as largely commonsense and corresponds fairly closely with many students' perception of what is just and fair. These things impede the development of a reflective and critical approach to the subject. Tort law appears apolitical because it is experienced as largely uncontentious and we do not, therefore, tend to question its politics. But the politics are there and it is vital to understand that tort, its texts and its syllabuses are inherently political. The whole foundation of tort law reflects a particular philosophical and ideological perspective (based on individual rather than societal responsibility for misfortune) which is, in our view, highly contentious. Indeed, if the basic subject matter of tort is concerned with how the law responds, or fails to respond, to the misfortunes which afflict individuals in our society, it can be strongly argued that the tort system represents a political solutions which is undesirable both because of the arbitrariness of its results and because of the underlying callousness of its ideology. It can also be contended that the legal form which tort doctrine assumes, as a body of knowledge which is coherent, principled and neutral as to outcomes, operates as a major impediment to any significant political change.
Of course, this criticism itself is also political and its underlying premises should be made explicit: it is that society should assume considerable responsibility for the misfortunes of its members, and that political and legal energy should be redirected, away from tinkering with torts law and towards the construction of alternative loss-distribution mechanisms based upon the acceptance of social responsibility for individual misfortune.
At the heart of the law of tort lie a myriad of complex political and moral issues which rarely surface. To critique is partly to excavate, but the critical lawyer cannot approach the subject like the disinterested scientist examining the finds of an archaeological dig. To acquire a critical understanding of law involves an acceptance of the impossibility of a neutral, disinterested point of view. This produces a strange and paradoxical result. The rejection of neutrality undermines the legitimacy of those positions which posit themselves as neutral by showing that they are, in fact, partial rather than universal points of view, and so confers greater legitimacy on those points of view generally regarded as partial and political. In other words, it shifts the terms of the debate. The issue is no longer what is the correct (that is, objective, verifiable) legal position but rather what is the preferred legal and political solution. Articulating the politics of law is thus a crucial step in the process of securing a 'good society' through open discourse and participatory decision-making. It is in this sense that the critical project is a radical one. But there is another dimension here. By focusing on tort law as something other than the affirmation of a neutral, common sense position and by seeing it instead as a partial and contingent point of view, one is free to imagine and to pursue alternative arrangements.
these goals in mind we will consider more closely the nature of the tort
system. Our primary focus will be on the tort of negligence which assumes
a position of supreme importance in the conventional texts and in most
tort syllabuses, and whose reasoning and ethos has permeated other areas
of tort particularly through the ubiquitous concept of 'reasonableness'.
A critical exploration of negligence might take a number of different forms. First, one might exhume and examine the political and moral underpinnings of its doctrines. Secondly, one could focus on the form of negligence as an allegedly coherent and rational body of rules and consider to what extent this form corresponds with its content. Finally, one might look at a number of interpretive perspectives on negligence as a way of unraveling the complex political and moral norms which compete for recognition and realisation in the courtroom and the classroom.
It is clear that negligence is imbued with political and moral values which, although never far from the surface, are rarely articulated and even more rarely questioned or challenged. Why, for example, should omissions often be treated as incurring less liability that 'acts'? Why should the intervention of a third party act as a brake on liability when damage is done and the defendant is a negligent cause of it? Why should mental distress and economic loss be treated differently from physical damage? These questions conjure up generally accepted rules and principles which permeate the tort of negligence (although neither their boundaries nor their doctrinal status is very clear) and which are often defended in moral terms. Thus, it is contended that moral responsibility for omissions is somehow less than that for acts and therefore should not attract the same liability even where the damage is identical. This assumption is in turn based on ideas about limiting individual responsibility, particularly in relation to obligations imposed by the state. It is argued that the imposition of positive obligations on people diminishes freedom and discourages action, inventiveness and, consequently, economic growth. In other words, the legal tendency to treat omissions differently from acts reflects the economic and political perspective of market capitalism. Again, careless actors are somehow viewed as less responsible if, in the arbitrary scheme of things, some third party comes between them and subsequent harm. The old and venerated concept of novus actus interveniens operates here to shift our attention away from the negligent behaviour of the defendant towards the more immediate wrong inflicted by the intervening actor and posits the absurd conclusion that the original negligent actor is no longer at fault for the apparently non-ideological reason that her or she is not a 'legal cause' of injury. This authoritative pronunciation of causation is a smokescreen which clouds the presence of a policy operating to limit the responsibility of individuals for their acts. This is further illustrated in the tendency to eschew mental-distress and economic-loss liability on the grounds that they place too heavy a burden of liability on the defendant. It is likewise assumed in such cases that somehow economic loss and mental distress open up floodgates which are better left closed.
Of course, alternative rationales based on economic efficiency, deterrence, insurance, risk distribution and compensation can also be offered in defence of, or in opposition to, any of these doctrines. But the presence of such competing alternatives simply serves to reinforce the strongly political content of these doctrines. The point remains that tort law does not operate in a value-free zone but takes its content, shape and direction from norms which should rightly be a primary focus of its study.
Consideration of the assumptions underlying torts doctrines (and their controversial nature) opens up for discussion a host of issues which are rarely addressed and certainly never adequately explored the traditional texts. Critical re the problems arising from the centrality of the concept of fault in the tort of negligence. Essentially, negligence embodies the principle that where harm to someone is caused through the fault of another party, that party will be liable to compensate for the injury and loss caused. This statement is of course unacceptably broad as the qualifications relating to duty, breach and damage exhaustively discussed in every text on tort indicate. But the basic ideas is that it is just that those who injure through carelessness should e compensated by the perpetrators of the careless act. This focus upon the cause of the injury or loss in determining whether compensation is due results in the differential payment of compensation to those who have suffered identical harm by different means. Fault dictates full compensation, but, in the absence of fault, losses must lie where they fall subject to the meagre and uncertain benefits of the current welfare system.
merits of the fault principle are not in our view so self-evident as to
require such inattention to its demerits. While the maxim 'no liability
without fault' may make a certain sense, its corollary - no compensation
without fault - is must more questionable because identical needs are
met with different responses on the basis of a difference which is irrelevant
to the need itself. Why should fault determine who gets what? Equally
importantly does fault, in fact, determine who gets what, and when
it does not, why not? Furthermore, what is fault? How is it recognised?
The traditional answer, namely that fault involves unreasonable behaviour,
is merely to restate the question in a different form. These sorts of
questions about the moral content of negligence doctrine - marginalised
by the 'black-letter' focus of the conventional text - are at the centre
of a critical approach to legal education.
A common impression of the form of negligence is as an essentially 'black-letter' discipline with perhaps more woolly edges that most and a more explicit if nevertheless limited role for political considerations in the determination of results. This is certainly the impression created by classical tort texts such as Winfield & Jolowicz, and Street (Rogers, 1989, Brazier, 1988). Students are encouraged to see negligence law as rule-based. The task for the student is to discover the rules and also to discover which 'rules' are uncertain or unresolved. They are provided with a framework within which the rules fit and the implication is that rules which do not readily fit the framework are the 'hard cases' of particular interest to examiners. Underlying such a presentation of negligence is a belief that it is, to some extent at least, coherent, logical, rational and deducible from previous cases and fundamental principles. In reality, however, negligence doctrine abounds with demonstrable incoherence.
The internal incoherence of negligence is evidenced in almost all aspects of doctrine including definitional questions surrounding duty and breach; the attempt to present as objective concepts such as forseeability and the 'reasonable person', which are subjective and intuitive; the morass of complications concerning the law on negligent misstatements; problems caused by cases where injury or loss is caused by more than one factor or when the direct causal link is difficult to establish; rules of remoteness and forseeability, particularly when the defendant may be held liable for consequences of his or her negligence which, while a direct result of forseeable consequences, are not in themselves forseeable (the 'thin-skull' rule of Smith v. Leech Brain & Co. Ltd  2 QB 405). Students flounder helplessly in these areas as they attempt to grasp the lifelines offered to them by the textbooks - the rule which will illuminate the puzzle of intervening acts of harness the disorder of the duty question. Likewise, they do not probe too deeply into the tricky questions raised by a serious consideration of tort law's best distinctions - such as omissions and acts, economic loss and physical damage, direct and indirect consequences - in case they should be confronted with the awful realisation that these concepts are fairly meaningless. Consider in this respect the recent case of Murphy v. Brentwood DC  3 WLR 414) and ask whether it can be honestly said that their lordships in this case have had any more success in maintaining the spurious distinction between economic loss and physical damage in the context of defective premises than they had in their previous tour de force - D & F Estates LTD v. The Church Commissioners for England  AC 177).
Despite such manifest uncertainty within particular doctrines, the traditional textbook writers, together with commentators in scholarly journals, continue to perpetrate the myth of doctrinal coherence subject to room-for-argument or areas-of-uncertainty qualifications (Brazier, 1988, pp.226-7). Furthermore, judges and commentators like continue to cling to the organisation concept of fault as the universal principle underlying the edifice of negligence. It does not seem to matter than negligence law is riddled with situations in which the fault principle is mysteriously and inexorably suspended, as in the cases concerning nervous shock or economic-loss recovery.
does it seem to matter than in practice fault has little to do with tort
recovery but is in fact hostage to the availability of insurance. It is
extraordinary how little attention is paid to the major disparities between
negligence as an academic and legal category and negligence as an operational
reality. For law students negligence consists of appellate cases which
reach the pages of Winfield & Jolowicz while negligence, the system,
is presented as something quite different and less important. While Atiyah's
Accidents, Compensation and the Law (Cane, 1987) remains the authoritative
text addressing the disparity between negligence in books and negligence
in practice, its trenchant criticism of the system seems to have had only
a marginal effect upon academic courses in negligence (Cane, 1987). Yet
the problems addressed by Atiyah concerning the operation of negligence
actions - such as delay, cost, quantification, settlement and uncertainty
of results - are by no means marginal. To realise that the administration
expenses of the negligence system amount to some 85 per cent of the value
of the sums paid out as compensation (or 45 per cent of the total of compensation
and operating costs), emphasises that the system is as unsatisfactory
practically as it is theoretically (Pearson, 1978, vol. 2). To enter the
arcane realms of calculating injury and loss, both present and future,
in money terms is also revelatory. The form of negligence as a 'black-letter'
discipline quickly loses much of its alleged coherence when viewed through
the lens of 'what really happens'.
This essay clearly adopts a particular interpretive perspective. It is one which challenges the central conception of fault and individual responsibility in the allocation of compensation. It also maintains that in operation negligence is an irrational system for redistributing loss arising from particular circumstances. It is a system only in that it does some things consistently, but as a system of compensation it is remarkable for its overall inconsistency. As such, it has few defenders beyond those who profit from its operation. The criticism of negligence, then, is both from within and from without. We maintain that it fails first on its own terms as a rational, self-perpetuating, self-evaluating system of neutral rules and secondly as a social reasons to particular goals - those of compensation and loss redistribution. Of course, such as assertion opens up for debate the whole question of what goals or objectives torts law is or should be pursuing. This is a question about which there is divergent opinion. In our view, such divergence must be an important focus of critique because clearly different approaches to evaluating the system (for example, in terms of economic efficiency or deterrence, or compensation, or fault and individual responsibility) generate different assessments of the system's worth and different prescriptions as to its cure. Even tensions within cases, between judgments and different judicial styles, can often be understood in terms of conflicts about goals (or even about whether the law of torts is goal-oriented at all rather than simply a mechanism to facilitate the pursuit of a variety of individual goals). It is essential to examine the law of negligence in the wider context of arguments about its political and social role. Such a focus serves a dual purpose in providing a forum within which the political content or torts can be properly aired and explored and in giving students a framework which aids their understanding of the evolutionary and dynamic aspects of torts doctrine. At the same time this makes it impossible to present the subject as a static 'black-letter' discipline, an approach more likely to blur than to illuminate the student's grasp of the subject. Such an approach encourages the student to regard negligence not as a set of rules but rather as a series of arguments which compete for persuasiveness, drawing upon institutional resources (such as precedent), the ascendancy of a particular moral tradition (usually fault-related) and political acceptability. Through such as approach students not only experience law as political and controversial (which it is) but also acquire the sort of skills and insights which inform and direct legal practice.
Of course, this essay has an agenda. We are exploring the law of negligence in light of the need for a humane and adequate compensation system. But, if we have an agenda, so do all writers and commentators on tort; so do the judges who develop the doctrine; so do the litigators who formulate arguments in terms of their particular clients' demands. To view the law of tort as anything other than an armoury of conflicting agendas is to e both naive and myopic. To teach the law of tort without addressing this insight is to fail to teach at all. It is, rather, to mislead.
Inevitably such exploration raises for discussion a wide range of issues which space does not allow us to examine here - questions about how and why the tort system continues, given its demonstrable inefficiencies; upon what epistemological premises it rests; whether its credibility depends to any great extent on its alleged rationality; what principles and policies should determine the question of compensation in our society; and finally whether any of these questions can usefully be asked in a world where capitalism is dominant.
critical student should arm herself (or himself) with a scepticism of
what passes as 'received' knowledge in the texts, in lectures and in classes.
She should refuse to take for granted as wisdom that which is written
by the learned of the law. She should proceed on the basis that law, including
negligence, is intimately connected with politics, particularly the politics
of resource distribution, and finally she should not allow the authority
of the text, the teacher or the institution to invalidate her understanding
and assessment of the issues which she confronts.