Paul Mitchell, A History of Tort Law 1900–1950, Cambridge: Cambridge University Press, 2015, xviii + 366 pp, hb £75.00.
| Published date | 01 July 2015 |
| Date | 01 July 2015 |
| DOI | http://doi.org/10.1111/1468-2230.12135 |
REVIEWS
Paul Mitchell,A History of Tort Law 1900–1950, Cambridge: Cambridge
University Press, 2015, xviii + 366 pp, hb £75.00.
Historically aware private lawyers are bound to approach this new book by Paul
Mitchell with a sense of trepidation. They will, of course, already know the
author to be one of Britain’s finest scholars of private law, both in its modern
guise and its historical substrate. His previous books, in particular The Making of
the Modern Law of Defamation (Oxford: Hart Publishing, 2005) and his series of
Landmark Cases (on restitution, contract, tort and equity, all co-edited with
Charles Mitchell), exemplified the way a meticulous examination of the past can
shed considerable light on our understanding of the present: one of the main
reasons why today’s lawyers – all of them – should be interested in legal materials
that are no longer authoritative and legal actors who have long been dead.
Yet the fact that few, if any, would have better credentials to set out to write
a history of (English) tort law in the first half of the twentieth century should not
detract from the fact that this is by nature an enormously complex operation. For
one thing, the period concerned is possibly the trickiest to write on. The task of
the scholar of earlier history, despite its many pitfalls, is at least curtailed by the
limited amount of materials available to her. At the other end of the spectrum,
the analyst of the most recent past can start from the perspective of the common
understanding of our age and work backwards: this is a considerable advantage.
But the 1900–1950 period would seem to combine difficulties in a unique way.
On the one hand, the language used is not so different from ours that we would
have no choice but to take off our modern glasses. Yet just how different their
thinking was from ours is peculiarly hard to ascertain, and so the line between
under- and over-estimating the distance will be an especially fine one to walk.
At the same time, this is the first era when the mass of data becomes such that
anyone committed to a careful study will be in constant danger of drowning in
a sea of archives, books, judgments, letters, manuscripts and other delights of the
man trying to put himself in his ancestors’ shoes. The author had previously
demonstrated how one can write a long chapter to analyse historically and
doctrinally just one single tort case – ‘Hedley Byrne & Co Ltd vHeller & Partners
Ltd (1963)’ in C. Mitchell and P. Mitchell (eds), Landmark Cases in the Law of Tort
(Oxford: Hart Publishing, 2010), one of the finest pieces of modern legal history
this reviewer is aware of. Hence the mixture of expectancy and fear as one
approaches this book: how would it be able to replicate the same standards of
scholarship across an entire area of the law, not renowned for its intelligibility in
the first place, at what is evidently one of the most complex stages of its historical
development?
The short answer is: by being deliberately, unabashedly selective. A History of
Tort Law 1900–1950 is not a book that tries to cover the whole field in depth.
Given that the task would be impossible in less than a lifetime, this is evidently
a wise choice – anything else would have condemned the author to superfici-
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© 2015 The Author. The Modern Law Review © 2015 The Modern Law Review Limited. (2015) 78(4) MLR 695–726
Published by John Wiley & Sons Ltd, 9600 Garsington Road, Oxford OX4 2DQ, UK and 350 Main Street, Malden, MA 02148, USA
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