Tort and Insurance Law

One of the clearest signs of the tendency of the law to provide its own answer to the question of what wrongdoing is lies in the notion of fault. Since the law regulates human behaviour through the imposition of external standards of conduct – this is how Kant put the distinction between law and ethics – fault for tort law purposes is to be established according to an external measure. The yardstick is the mythical always reasonable or prudent person, or its civilian counterpart, the bonus pater familias, the family man.

Behind this predicament there is already an extended history. In Europe, one does not have to wait until the age of Enlightenment to discover a cleavage between law and morals. A wall was gradually erected between transgressions that affect only the conscience of the agent and wrongs that generate claims adjudicated by civil courts. Modern political discourse supported this distinction by insisting on the need to build a civic community which can accommodate certain differences, including, of course, religious differences.8 The utilitarian view of the law which emerged by the beginning of the modern age became explicit and dominant by the middle of the nineteenth century. By the last quarter of the nineteenth century – but there are forerunners here as well9 – a functional and interests driven approach to tort law was on the ascendancy. Eventually, it gained the centre of the stage and became the hallmark of a modern law of tort.

This did not, of course, erase many differences between national systems of tort law. I will just mention in this respect the different structure of the notion