Interactions in doctrine and practice

Obviously, these three aspects are connected, but all three dimensions are needed to give a full picture. Disentangling them can be particularly difficult.

At any one time, the same fact-patterns can give rise to different results. Even though there might be the same input, the processes and available outputs could be different. For instance, when a case about a man who drove on the hard should of a motorway comes to court, the judge might decide that it was clearly negligent to drive there. The driver might then appeal, and the Court of Appeal might decide that it was perfectly reasonable to drive on the hard shoulder in certain circumstances. That is a simple disagreement over what the word “reasonable” means. There would be a number of other questions that a court would have to look into before it was decided whether the driver would have to pay compensation for harm caused to someone else while driving on the hard shoulder, but that need not be a concern now. The difference between input and outcome is even more forcefully seen when you consider the same facts in say 10 different countries over 150 years. For instance, a country might not be able to stop a negligent driver from driving again, so might have a relatively higher amount of compensation awarded against him instead.

Equally, over time the way legal academics and practitioners write about a topic (the doctrinal frameworks) change as well. These doctrinal shifts could end up with the same results, or, could lead to changes in legal outcomes as well. The availability of non-legal solutions to problems of compensation (e.g. private insurance), can have an impact on how far the law is used by people to provide a solution. More than this though, there will be feedback between the different dimensions. For instance, when one area of law is abandoned in practice, there will be pressure both to achieve good outcomes in other parts of the law and on the way legal writers describe the law. Judges, or other case-deciders will be constrained by doctrinal rules, but not all of them will be constrained to the same extent. The lowliest magistrate will be more constrained by previous interpretations of rules than the most senior judge in the country. At the same time, doctrine in the books may be more or less constrained by decided cases, depending on the views of the authors and the nature of the publishing environment.