Although lawyers sometimes use terms such as 'risk distribution' and 'assumption of risk,' it is striking that there has been a dearth of scholarship on the relationship between law and risk. This paper seeks to start to address that deficiency and urges scholars to devote more time to this important area. It suggests that risk analysis in the past has been hampered by both confusion over terminology and fundamental misunderstanding of the differences between - and relevance of - subjective and objective risk. It argues that, once these details are properly understood, looking at law from the perspective of the risks involved dovetails with other, more familiar, ideas such as Henry Maine's movement from Status to Contract and John Stuart Mill's 'harm principle'. In this vein, it considers developments of the law within Europe and attempts to relate them to the growth of what has become known as the 'Risk Society'. Focusing particularly on English and German law, it also draws a number of comparisons with the position in the United States. Legal scholars who continue to omit a systematic discussion of risk from their analysis may be overlooking a valuable perspective.

It is often said that the biggest challenge facing private law is that posed by the continual need to choose between certainty and justice. Certainty is a worthy goal, it is said, because everyone knows exactly where they stand and judicial decision-making can proceed from clearly-articulated statements of legal principle. On the other hand, the pursuit of certainty may not allow for sufficient differentiation between different circumstances. Justice may modify this problem, but only by introducing uncertainty.

Such an account may be thought so familiar as hardly to be worth recounting. Yet this paper seeks to challenge this dichotomy by suggesting that it is the product of a very peculiar combination of perspectives. Philosophically, the dichotomy is problematic only to legal positivism and allied schools of thought. Even then, it presents difficulties only if viewed from a particular temporal perspective as well: that is, after the events in question have already taken place and have become known.

It is argued that this combination of perspectives is singularly unhelpful. It fails to provide any sort of systematic explanation for a very large number of cases, preferring instead to dismiss them as 'policy decisions'. Such dismissal is not so much an explanation as an abdication of explanation. This paper suggests that, if we move from an ex post facto positivistic perspective to one that takes an ex ante approach which focuses on the predictability of risk, then not only does the certainty-justice dilemma cease to be problematic; it also provides a much more plausible and persuasive account of the case law.