Change, Resistance, Development

Such factors as these can be seen in the developments described in the earlier sections. There is a tension between the law as courts use it and the legal theory that attempts to pin it together. One aspect that the summaries of cases studies cannot always express is the communal head-scratching that takes place in academic, and practitioner circles when an important legal doctrine is changed by the courts. A recent example is the law on compensation for mesothelioma caused by asbestos. Even after a serious of related cases reaching the highest courts in Europe, many states could not for certain explain and apply their rules over five years later. The law goes through long periods of uncertainty before finding a satisfactory solution to a particular point.

There are also all kinds of extra-legal mechanisms which affect the importance of the law for individuals. It is only in the last 60 years that the law of negligence in England has reached such a predominance that about 90% of tort law cases involve it at the High Court level every year. One particularly important, but hard to investigate factor in the last hundred years has been the development of insurance. Once people can have personal liability insurance, i.e. insurance to cover your own liability to pay compensation if you harm someone else, for instance in a car accident, or at work, people look at risk differently. If something goes wrong, and you cause harm to someone or something else, the only result is that your premiums might go up, rather than a huge one-off bill. It also makes litigation less likely in simple cases because insurance companies want to keep their costs down and litigation is costly. Equally there are forces which resist the development of the law, whether in general or in specific directions. One thesis that the project is currently investigating is whether there has generally been a formal appearance of stability, which hides doctrinal shifts occurring underneath titles or heads of legal rules that do not change. To understand this involves comparing the law on the ground, with that in the books; the outcome with the theory. But knowing how this might have affected or been lead by changing attitudes to law and legal rules in general and in specific cases is a much harder issue to investigate.