Toward a Harmonized Tort Law in Europe? An Economic Perspective
| DOI | 10.1177/1023263X0100800401 |
| Published date | 01 December 2001 |
| Date | 01 December 2001 |
| Subject Matter | Editorial |
Editorial
8 MJ 4 (2001) 339
Toward a Harmonized Tort Law in Europe? An Economic
Perspective
§ 1. Introduction: the Contribution of Law and Economics to
Harmonization Issues
In this editorial I will briefly address the possible contribution of the economic analysis
of law to the debate concerning the need for a harmonization of tort law in Europe. The
focus will indeed mainly be on this harmonization issue. It is important to stress this
since the economic analysis of law could be useful to a study of European integration at
various levels.
A. SEARCH FOR PRINCIPLES
First of all, the main advantage of the economic analysis of tort law has been that it
makes it possible to focus on the economic functions of a system of accident law. Thus
economic analysis enables an analysis of the basic principles underlying many tort
systems in Europe. For instance economic analysis can explain why many European tort
systems have chosen a strict liability regime for hazardous activities and have kept a
negligence/fault regime for non-hazardous activities. By focusing on these basic ideas
which underlie tort law in many legal systems, economic analysis can contribute to
European integration. Indeed, it is precisely by focusing on the basic economic notions
behind a tort system, that the comparative lawyer is able to discover whether differences
between legal systems merely relate to legal technique or whether the differences are
the result of differing values and preferences. Often the differences in legal technique
are linked to different legal traditions; they have grown as a result of the doctrinal habits
in a specific legal system. This is not to say that these technical/dogmatic differences
are unimportant. However, in some cases economic analysis of law can show that
although there may be huge differences between various legal systems as far as the legal
form and technique is concerned, the underlying values and principles may be similar.
By focusing on the basic principles of tort law, economic analysis may in some cases
show that differences between a variety of legal systems are not as huge as are
imagined. The flip side is that the economic analysis of tort law indeed simplifies the
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