Tort law beyond the reasonable man : re-thinking tort law beyond the state

Abstract

This thesis explores the evolution of tort law through the prism of three paradigms of modernity, namely, the society of individuals, organizations and networks. These models build on Karl-Heinz Ladeur’s pioneering work. Tort law developed in a society of individuals which is considered a radical break with prior methods of social organization. While the core of private law was contract law modelled on the abstract will, tort law set outer boundaries on the will but its shape was individualistic focusing on individualized conduct. In the twentieth century, with the rise of the society of organizations, tort law was reshaped towards providing remedies fit for a society of organizations. This is evident both in terms of how tort law was adapted to the private firm and the state as service-provider. We find that the concept of vertical vicarious liability fits the way in which tort law abstracted from the reasonable man per se, to embrace the organizational setting in which agents conducted their activities. Our third paradigm, that of the society of networks, is emergent. It blurs lines between private and public and, additionally, the existing normative models of liability – whether individualized or organizational – are not aligned. With the breaking of the territorial frame of the nation-state coinciding with the emergence of a society of networks we investigate whether actors, which might previously be considered 'peripheral' to a tort and, therefore, outside the organizational model of liability are, from the perspective of the horizontal sociological network, once again potential normative addressees of liability. We argue that European law de lege lata is beginning to bring such actors within its scope of application. Making sense of these developments in an overall framework of an emerging society of networks and, additionally, arguing what the stakes are, and how they may be fitted into legal, normative argument, is the task of our final chapters.