7 - Assessing (Divergent) Legal Development

Summary

John Bell’s work consistently interrogates why legal systems are the way that they are. French legal cultures drew out the importance of understanding a system’s legal culture(s). In a joint project with David Ibbetson, European Legal Development, a broader methodology and programme for comparative legal analysis emerged. Their focus was twofold: to shift analysis from legal rules towards their direction of travel over time and, crucially, to provide insight into the specific factors, perhaps distinct between systems, that accounted for a given national narrative. In this chapter, using a core problem in medical liability, an Anglo-Germanic case study of Bell and Ibbetson’s methodology is provided. First, the German system, which Bell and Ibbetson did not consider in relation to medical liability is examined. Second, through a reassessment of key English sources, a plausible alternative to their suggested narrative of homogenous development is constructed. Finally, their assumptions about the relationship between legal and social change and identify key questions for future applications are reflected on.