Research Handbooks in Comparative Law series
Edited by Mauro Bussani and Anthony J. Sebok
Chapter 8: Alternative compensation schemes from a comparative perspective
There is a good argument that this chapter is not about comparative tort law. The preceding chapters highlight the key features of tort law as a manifestation of corrective justice and private law reasoning. They set out the conditions under which a person who suffers a loss may claim before an ordinary court against the author of his misfortune, for compensation of the harm caused by the defendant or imputable to him. Conversely, the present chapter considers the alter ego of this model or, to be more specific, the different logic and structure of compensation for accidental harm that has emerged over the past 125 years, on the margins of the main event of tort law as corrective justice. It is fair to say that these margins are very crowded. Alternative schemes of compensation are found in almost every country around the world. They come in all shapes and sizes – the basic structure of tort law has been set aside for some types of accidental injury in a broad range of circumstances. In all of their diversity, these regimes are defined in opposition to tort law and its fundamental characteristics. The present chapter thus entails a comparative exploration of ‘alternative’ or ‘other’ schemes of compensation. Because ‘otherness’ or what-is-not-tort-law is arguably very broad, this exploration cannot proceed further without some clarification of its conceptual boundaries.
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