Law and Risk: An Introduction Book Chapter
Date of Publication:
Recommended Citation
Tim Kaye, Law and Risk: An Introduction, in Risk and the Law (Gordon Woodman and Diethelm Klippel eds., Routledge-Cavendish, 2008)Clicking on the button will copy the full recommended citation.
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.