Descheemaeker: 'The Divisions of Wrong' shortlisted for SLS Book Prize
23 July 2010
Eric Descheemaeker, Lecturer in the Law School, has had his book 'The Divisions of Wrong: A Historical Comparative Study' shortlisted for the Society of Legal Scholars' Peter Birks Prizes for Outstanding Legal Scholarship 2010.
- Provides a comprehensive historical account of the structure of the civil law of delict, from its Roman origins to the modern French law;
- Offers a revisionist interpretation of the French law, arguing that its structure became confused through misunderstanding the Roman law
- Presents a provocative argument advocating the incorporation of the civilian structure into the common law
This book does two things. In the first two parts, it investigates the origins of the division and its development in a modern civilian jurisdiction, France. What is argued for is that the Roman dichotomy was originally one between fault (culpa)-based and situational liability, which was prompted by a historical contraction of the Roman concept of a wrong (delictum). French law, building on medieval interpretations of the division, redrew the line one level higher, between deliberate and negligent wrongdoing. By doing so, it involved itself in severe taxonomical difficulties, which the book explores.
The third part of the work concerns itself with the significance of the civilian division of wrongs according to degrees of blameworthiness (dolus, culpa, casus) for the common law. A provocative thesis is developed, in effect, that there is a strong case for the adoption of a similar trichotomy as the first-level division of the English law of civil wrongs. From its formulary age, English law has inherited an unstable taxonomy where wrongs intersect. The existence of these mismatched categories continues to cause significant difficulties, which a realignment of causes of action along the above lines could rectify.