Benefits of comparative tort reasoning: lost in translation

Abstract

In this article I argue that the noble cause of comparative law as an intellectual activity is undermined by those who focus on its forensic utility. Specifically, I examine the practical value to practitioners and judges in the court of final appeal in an English-speaking jurisdiction of paying attention to how tort issues are analysed in a different jurisdiction when the subject matter of the domestic case at hand does not positively require it. Part I argues that the benefits of resorting to ``comparative tort reasoning" vary greatly according to the focus of the legal analysis in issue: outcomes, arguments, principle, or conceptual arrangement; and that by far the potential for enrichment is greatest in the context of comparative tort argumentation. Part II addresses the study of law across not just jurisdictional but language barriers: ``comparative foreign-language law." My argument here is that the practitioner and judge in an English-speaking jurisdiction should exercise extreme caution in using comparative materials from foreign language systems. Part III considers ``coordinated" tort materials: materials that seek to expound tort law across multiple intra-national tort jurisdictions, such as restatements of law by the American Law Institute, or across multiple national tort jurisdictions such as Helmut Koziol's ``Principles of European Tort Law" published in 2005.