Tort Law and Efficiency: The Hong Kong Context - Essay Example

It is easy in the abstract to distinguish between the formal dimension of law (the laws and procedures as they appear on the books, largely the product of legislative, bureaucratic, or appeal court rulings), the informal dimension (actual courtroom practice derived from informal understandings among judges, lawyers, and other frequent participants), and the customary dimension (the laws and procedures developed by business elites for their industries). American courts have specifically accepted the latter practices as legitimate. (Hooper) Both the formal and the informal dimensions may be less significant than the customary dimension.

Legal systems mould actual conduct in indirect and tangential ways. Most business elites do not expect to face one another in the courtroom, and studies of corporate behaviour in the United States demonstrate the reluctance of businesses to invoke the formal processes of the law. (Friedman 267-98) The legal system is seldom invoked, despite laments over the so-called litigation explosion in the United States. First, the formal process is slow, cumbersome, and costly. Most businesses want to settle their disputes quickly so that they can return to mutually profitable relationships.

Second, entering the courtroom expands the "scope of conflict" and poses serious threats to the actors. (Schattschneider 40) Not only are courtroom proceedings open to the public, but also the judge introduces a third set of social values and interests apart from those of the litigants. (Shapiro 5-8) Moreover, the courtroom is the domain of the legal professionals. Control over the dispute is handed over to advocates who are part of another system of values and perspectives.Prior to the industrialization of America and England in the early 19th century tort law had a limited scope primarily due to a lack of diversity and lack of quantity in tort cases.

However with large factories and railroads grew a complex relationship between employee, employer and consumer. Due to this it was necessary for the legal system to re examine lines of reasoning. Despite academics such as Friedman suggesting that the law became a tool for those few at the top of the new economic structure, it is more reasonable to concede that law was unable to stagnate in a period of such rapid development.Among those projecting the view of a law driven by economics are Horswitch and Friedman.

Central to their argument is that tort law reasoning was dramatically altered in both the United States and Great Britain to benefit the new technology to the detriment of individual justice. Horwitz in particular is adamant that the law was used as a subsidy for the new economy as taxes would be both obvious and a politically undesirable thing. However there is flaw in Horwitz's argument that; " though never entirely able to overthrow the regulatory assumptions behind the earlier law, these new doctrines nevertheless underlined a deep tendency .

to favour the active and powerful elements in American society " for the simple reason that there is little correlation between negligent law in the nineteenth century with any law preceding this, as it was a completely new area of law sparked by the unique situations that industrialization created. Therefore the old law could not be overthrown, as it never had to deal with tort cases of this nature. The new doctrines arose not as a