Tort Law Defences: A Defence of Conventionalism

AuthorEric Descheemaeker
Publication Date01 May 2014
Tort Law Defences: A Defence of Conventionalism
Eric Descheemaeker*
James Goudkamp,Tort Law Defences, Oxford: Hart Publishing, 2013, 270 pp, hb
We live in an age where orthodoxy has become suspect. Obligations lawyers
from the entire English-speaking world can be persuaded to gather at a confer-
ence dedicated to its being ‘challenged’.1When one remembers that the word
means ‘right thinking’, this is rather extraordinary: one could be forgiven for
assuming that right thinking, far from being attacked, should be encouraged.
This must mean that the word is taken in a looser sense, presumably as a
synonym of ‘traditional thinking’ or ‘convention’. Now it is absolutely true that
conventional thinking may be wrong; it might be heterodox, and indeed it is
one of the main tasks of legal academia to constantly examine and re-examine
received wisdom. But we must also be careful not to assume, perhaps uncon-
sciously in an environment which institutionally values ‘paradigm shifts’, that
new thinking is necessarily better than the old: it may or may not be. While truth
is the supreme value, meaning that no one should be afraid to discard previously
accepted ideas which are shown to be incorrect, stability – all things being equal
– is also a desirable good, for one cannot build safely on ground that is constantly
It is against this background that the present review article seeks to defend a
view regarding defences in the law of tort which has been described in an impor-
tant recent book, James Goudkamp’s Tort Law Defences, as ‘conventionalism’ –
by contrast with the author’s views, described as ‘radical’.2Indeed, the conven-
tional view is so conventional that it has not been given much thought at all by
tort lawyers, for whom the prospect of conceptualising defences is likely to
appear as exciting as crumbs in a tin box. Whether or not we end up agreeing
with its main theses, one of the greatest merits of Tort Law Defences is arguably
that it forces everyone with a serious interest in tort (and more widely in private
law) to think harder about the topic. While most tort lawyers tend to regard
defences as a collection of appendices to various causes of action, there is no
denying that they are of considerable significance, both theoretically and prac-
tically. It follows that anyone critical of the author’s views should probably start
*University of Edinburgh.
1 Sixth Biennial Conference on the Law of Obligations: Challenging Orthodoxy (Western Univer-
sity, 17–20 July 2012).
2 To avoid the constant repetition of the word ‘radical’, I also use the word ‘revisionist’ to qualify the
author’s views. This is not meant to be derogatory in the slightest.
© 2014 The Author. The Modern Law Review © 2014 The Modern Law Review Limited. (2014) 77(3) MLR 493–512
Published by John Wiley & Sons Ltd, 9600 Garsington Road, Oxford OX4 2DQ, UK and 350 Main Street, Malden, MA 02148, USA
by sharing in a collective act of repentance for the fact that this is the first serious
study devoted to the subject in the common-law world.
This review article focuses on two – intertwined but analytically distinct –
issues which I regard as foundational to the book, in that jointly they make up
the ‘radical’ understanding of defences set forth in the study. These are (i) the
idea that a defence is defined as ‘a rule that relieves the defendant of liability even
though all the elements of the tort in which the claimant sues are present’ (7); and
(ii) the idea that defences are distinct from torts, rather than part of the definition
of the causes of action. These views are misguided in my judgement, even
though they do raise important questions that we all need to examine carefully,
and provide much ammunition for us to do so. The first two parts of this article
examine the author’s arguments in respect of both questions, contrasting them
with the conventional approach, and argue that there are least four good reasons
to retain the traditional thinking. The third part changes tack and seeks to
highlight how the author’s attempt to consider defences as a whole is, despite the
above criticisms, extremely precious – for a reason on which the author himself
does not rely, namely, that it paves the way for a reclassification of defences
which would be highly beneficial for the rationality and accountability of the law
of torts.
The first two sections of this part are concerned with the author’s professed
‘radicalism’ in respect of tort law defences, and highlight those of his positions
which I regard as most significant: namely, as explained, his definition of a
defence and the main consequence this definition has on the relationship of
defences with torts.3This part concludes by articulating the conventional under-
standing of defences on both points.
The definition of a defence
The Difficulty of Definitions
What is a defence? This question is of paramount importance in the present
context; indeed we cannot hope to go anywhere until it has been settled. But
anyone interested in definitions (which ought to be everyone caring about right
thinking) will know how difficult an art this is: omnis definitio periculosa est, not
simply, as Javolenus tells us, because it is in danger of engraving in marble an
understanding that misses the mark;4but more fundamentally because we strug-
gle to know where to find the authority on which basis we can pass a judgement.
3 What ‘torts’ and the ‘law of torts’ are cannot be discussed in the present context; for the purpose
of a discussion of defences, it is enough to accept that ‘Tort is what is in the tort books’ (Tony Weir,
An Introduction to Tort Law (Oxford: OUP, 2nd ed, 2006) ix). My own views, should they be of
interest, are set out in E. Descheemaeker, The Division of Wrongs: A Historical Comparative Study
(Oxford: OUP, 2009) ch 2.
4‘Omnis definitio in iure civili periculosa est: parum est enim, ut non subverti posset’: ‘Every definition in civil
law is dangerous; for it is rare for the possibility not to exist of its being overthrown’ ( Javolenus,
11 Letters, transl Watson Digest).
Tort Law Defences
© 2014 The Author. The Modern Law Review © 2014 The Modern Law Review Limited.
494 (2014) 77(3) MLR 493–512

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