Modern Tort Research Articles

Book reviews

‘THE LAW OF THE INDIVIDUAL ACCORDING TO AGE AND SEX’ by Colin A. Coode, published by Sweet and Maxwell (1968) at £2. 17s. 6d. (paperback £1. 17s. 6d.) 258 pp. BRITISH CONSTITUTION NOTEBOOK by Vincent Powell‐Smith and Paul Barber, published by Butterworths (1968) at 12s. 116 pp. CASES AND MATERIALS ON LABOUR LAW by K. W. Wedderburn, published by Cambridge University Press at £4. 4s. (paperback £2. 0s. Od.) 784 pp. REVISION NOTES ON ENGLISH LAW by Thomas J. Lyon, published by John Murray (1968) at 7s. 6d. 88 pp. STREET ON TORTS, 4th Ed., published by Butterworths (1968), at £2. 10s. (Library Edition, £4.8s.) 534 pp FRIDMAN'S MODERN TORT CASES, published by Butterworths (1968) at £2. 5s. (Library Edition £2. 18s.) 424 pp. PALMER'S COMPANY LAW 21st edition by Clive M. Schmitthoff and James H. Thompson with Practice Notes by S. J.S. Eley and contributions by P. V. Sclaverario and John S. Hall, published by Stevens & Sons (1968) at £9. 17s. 6d. cxxiii & 1, 556 pp. OUTLINES OF EQUITY by J.R. Lewis, published by Butterworths (1968) at £2. 15s. (paperback £1. 17s. 6d) 380 pp. THE ADMINISTRATION OF ESTATES by T. G. Matthews, published by Butterworths (1968) at 18s. 107 pp. A CASEBOOK ON EQUITY AND SUCCESSION by John Tiley, published by Sweet & Maxwell (1968) at £4. 10s. (paperback £2. 2s.) 432 pp. THE YEAR BOOK OF WORLD AFFAIRS 1968, published under the auspices of The London Institute of World Affairs, by Stevens & Sons (1968) at £3. 17s. 6d. 401 pp. ELEMENTS OF THE LAW OF INCOME AND CAPITAL GAINS TAXATION by C.N. Beattie, published by Stevens & Sons (1968) at £2. 7s. 6d. 309 pp.

The Role of Negligence in Modern Tort Law

S o central is the idea of fault to our past and present concept of tort liability, that to inquire about its continued role invites speculation about the very future of civil liability and the function that may remain for it in taking care of the injured in the years to come. In large measure, that future will be determined by the extent to which the task of compensation will increasingly be entrusted to other legal institutions, especially to social security and other forms of insurance. Long-range questions about loss bearing that we have been accustomed to debate solely in terms of tort liability will increasingly demand consideration in the wider context of the whole panoply of social institutions charged with alleviating the lot of the community's unfortunates and allocating the cost in a socially and economically acceptable manner. The part played by tort law in that task is bound to shrink to ever more modest proportions, to the point where today's postulates, based on very different assumptions about its work load, will be doomed to irrelevance. That time however has not yet come. In the short run, therefore, it is perhaps not entirely idle to venture a summation about the place of negligence within the modest perspective of today's and tomorrow's orientation.

Is There a Place for Negligence in Modern Tort Law?

Is There a Place for Negligence in Modern Tort Law?

Homicide in Islamic Law

Perhaps the first point which attracts the attention of the European lawyer who begins to study the treatment of qatl (homicide) in the text-books of Islamic law is that it is there treated, in modern parlance, more as a tort than a crime. To understand the offence properly, however, no such simple classification will suffice: instead, it is essential to view it in its historical setting and detailed development.Under the heading of ‘uqūbāt, or punishments, Muslim lawyers treat primarily the very limited number of offences for which definite penalties (hudūd, singular hadd) are expressly prescribed in the arīa, although reference is also frequently made to the discretionary power of the Ruler or Judge suitably to punish other wrongdoing. Offences in general, moreover, are normally sub-divided into those which are regarded as exclusively involving the “right of God”, those in which both the “right of God” and the right of some individual is recognized but the former is held to preponderate, and those in which the latter is regarded as predominant. In the first category all jurists include sariqa in its two degrees (theft and brigandage), zinā (illicit sex relations), urb (wine drinking) and, when placed in this context, irtidād (apostacy from Islam); in the second, some jurists place qaf (the unproved assertion of a chaste person's incontinence), although others put this in the third category; while in the latter all include homicide and wounding. In effect an offence in which the right of God (as the Head of the community) is held to be exclusive or preponderant more or less corresponds to the modern crime, and one in which a private individual's right is regarded as predominant to the modern tort, for the chief practical difference is that in the former neither the party primarily injured nor, indeed, the Court may drop the case or allow a settlement once it has been started, while in the latter the injured party may do either at his or her discretion.