1st Edition
Uncertainty in Comparative Law and Legal History Known Unknowns
Laws are imposed on facts. But what is the law to do when its rules for establishing facts do not—because they cannot—produce a satisfactory answer? Scenarios that raise this intractable uncertainty problem have been treated as isolated concerns, but are in fact endemic across legal systems. They can cross jurisdictional and doctrinal boundaries, have recurred throughout history, and demand creative thinking from those faced with them. This book explores the law’s understandings of and responses to such situations from a comparative historical perspective. It investigates how the law has framed these most difficult problems of uncertainty; dealt with uncertainty’s often unclear boundaries; and developed a broad range of different responses to solve or avoid it, across doctrine, time and jurisdiction. The work examines a selection of key uncertainty problems across private law as elements of a singular uncertainty issue endemic in legal systems. This analysis will be of interest to historians and comparatists, but also to doctrinal, theoretical and other scholars and practitioners. The analysis leaves us better informed and better equipped for dealing with future scenarios where uncertainty arises, including insights beyond national and doctrinal confines.
1. Known unknowns: uncharted waters
Andrew J. Bell and Joanna McCunn
PART 1: Life and death
2. ‘In the beginning’: dealing with ‘unknowns’ at the start of life
Gwen Seabourne
3. Commorientes: deaths, disasters, disappearances
Andrew J. Bell
4. The subtle conclusion: epistemic uncertainty and law at the end of life
C.P. McGrath
PART 2: Causation and loss
5. Causal uncertainty in tort law: the special case of mesothelioma
Ken Oliphant
6. Known unknowns: loss of a chance and intractable connections
Samantha Schnobel and Judith Skillen
7. Quantifying or avoiding the unknown? Damages for future lost earnings in tortious personal injury cases
David Messner-Kreuzbauer
PART 3: Meanings and intentions
8. Contractual interpretation and ad hominem rules of construction
Joanna McCunn
9. Unmixing intangible assets
Benjamin Douglas and Lorenzo Maniscalco
PART 4: BROADER PERSPECTIVES ON LAW AND UNCERTAINTY
10. A spectrum of uncertainty
Matthew Dyson
11. Known unknowns in Roman law: the second chapter of the lex Aquilia
David Ibbetson
PART 5: Conclusions
12. Known unknowns: tracing a map
Andrew J. Bell and Joanna McCunn
Biography
Andrew J. Bell is a Lecturer in Law at the University of Bristol, UK, and a Fellow of the European Centre of Tort and Insurance Law.
Joanna McCunn is a Senior Lecturer in Law at the University of Bristol, UK.
