Torts, Courts, and Legislatures Comparative Remarks on Civil Law Codifications of Tort Law

Abstract

This contribution reflects on the relationship between courts and the legislature in tort law from a comparative European perspective. Though there is a substantial body of comparative literature on tort law as such, the relationship between the judiciary and the legislature in comparative tort law has received significantly less attention. Here, the approach under civil law systems to tort law is and the interaction between the judiciary and the legislature under those systems is explored. If we look beyond the misconception among common lawyers that civil law courts act merely as ‘porte-parole de la loi’ there is much flexibility to be found. In tort cases, civil law courts may assume a role that complements the role assumed by the legislature. Where codes give leeway for case law to create, develop, and innovate in tort law, courts will fill the space. Where the legislature is active, courts may assume a more subservient role. Yet, there is no single concept of power balance in civil law tort systems. In some countries, courts may be more willing than in others to show policy initiative where the legislature fails to act. The overall conclusion must be that although there is a fundamental difference in the starting point between the common law and those legal systems that have a codified tort law system, the balance between the legislature and the courts may be similar in many respects.