If Chapter 3 situated the problems facing contemporary tort law within EU law, it did not provide a comprehensive or novel model of liability. In Chapter 4, the key argument is that network liability in its incipient form can be detected in the law on 'private' gatekeepers of product liability, and this model can and should be applied equally to the state through reimagining Francovich liability. This move will also assist in developing the liability criteria, and the concept of a sufficient serious breach of EU law offers a coherent and normatively principled standard for the liability of secondary actors in public/private governance networks. It is then underlined that different existing models of liability should be understood as different means of recovery in networks. The central point is that these three models of liability – individual, organisational and network – should be placed within a more encompassing normative concept of network responsibility. This model of responsibility can, and should, be applied beyond the context of product liability as a template for solving problems of attribution and imputation in governance networks. The idea is tested in the context of value chain liability.

This chapter deepens the insight that tort law fulfils a societal role. It locates the classical model of tort liability, namely individual responsibility, within a wider privatist societal constitution. Both contract and tort, however, are understood as second order observations of the knowledge base of society, which has broken free of tradition and centralized authority in modernity. Therefore, private law models its dynamic knowledge base, and provide a constitution of civil society that unleashes experimentation and enables a 'relational rationality' to unfold. The gradual emergence classical tort law is documented, and its constitutional role underscored through examples from of private and public liability in English, French and German law. The society of individuals on which the law of torts is modelled, however, begins to rupture by the end of the 19th century, and it becomes increasingly difficult to frame all legal problems as issues of corrective justice. Nonetheless, the legacy of classical tort law, is a model of individual responsibility, which continues to shape scholarly engagement with tort law, and continues to impact on how legal problems are perceived in law.

The second phase in tort law develop relates to its reception of the society of organisations, which represents an evolution in the law's knowledge base by which large public and private organisations become central to knowledge generation and management. This is accompanied by the rise of expertise and insurance, and a break between expert knowledge and distributed experience as the knowledge base of society. This is patterned onto the law by the rise in 'vertical vicarious liability' or organisational liability, whatsoever its doctrinal nomenclature at the turn of the twentieth century. Calculable risk replaces fault as a key legal concept in the attribution of acts and omissions, and tort law is increasingly conceptualised as concerned with risk management against a background of the providential state. However, the model of organisational liability that develops remains a model of responsibility and should be characterised as a form of weak corrective justice or organisational moral responsibility. These changes have a profound impact on the law, which is documented by reference public and private liability in French, UK and German law, but reach their limits with the rise of network governance.

The Introduction situates the book in a broader context of tort theory. The key argument advanced is that with the rise of transnational regulation and law-making, the settled academic debates in tort theory, whether corrective justice theory or law and economics, are inadequate explanations of the social role and function of tort law today. The Introduction, then, develops an alternative theoretical framework for tort law rooted in Ladeurian systems theory, which focues on the societal role of private (tort) law. The basic argument is that it is not feasible or convincing to present tort law apart from its societal knowledge base from which it draws its models of liability. It is then argued that when tort law is understood in its societal role at a transnational and European level, new theoretical insights and models of liability can be perceived. The new model that emerges at a European level in products’ liability case law is a form of network responsibility, which focuses on the role of peripheral parties to torts, which fulfil normatively secondary roles in the society of networks. This can become a wider template for tort liability in governance networks, and this argument will be deepened in Chapter 4 using examples from value chain liability.

The relationship between tort and crime deserves serious study. The two areas of law are vital to the everyday activity of courts, lawyers and laypeople, across almost all jurisdictions. The fact patterns to be regulated by each significantly overlap, as can the names and content of the rules used to do so. Despite its practical importance and conceptual significance the area is understudied and, in England in particular, incredibly complicated. This chapter explores some of the ideas, concepts and terminology that might be used to understand the relationship, and to compare it across multiple countries. It might be thought of as providing some of the grammar and vocabulary for the three Parts of the book which follow.

Fault doctrine in tort law has been characterised by its context-sensitivity, its adaptability and its comparison with relatively narrow islands of strict liability torts. Unlike some other legal systems, English tort law does not have a general clause of liability, nor presumptive liability for conduct which caused harm and was done with fault. Instead, English law developed specific causes of action in civil law, called torts, with specific configurations of physical requirements and fault. Not all torts can be covered here; the focus will be on some of the more common and/or significant torts. It is also necessary to look a little further back to understand developments in our period, in particular how tort, as a subject, was pulled together in the nineteenth century, particularly by judges.

The doctrines and roles of fault in our period tell a very complex story open to different interpretations. Fault, in this context, describes what aspect of the conduct of the defendant the criminal law used to express blame. Its paradigm form in our period was intention: some sense that the defendant had a purpose in carrying out proscribed conduct or to achieve a prohibited result. It had other forms, which will be discussed here. In particular, the criminal law moved from a broad-brush mens rea, focused on intention, to later differentiating between four forms: intention, deliberate risk-taking, negligence and permitting strict liability.

This chapter considers the effect of a prior criminal judgment on a civil court. Depending on your perspective, an earlier criminal judgment might bind, inform, shackle, create risks for or simply be irrelevant to a later civil claim. The chapter builds on the picture from Chapter 6, ‘Claims and Formats’, and Chapter 7, ‘Timing Rules’. Where criminal courts do not compensate, and where civil claims are suspended, convictions will be more relevant.

The interfaces between tort and crime can have a profound impact on legal reasoning and outcomes. Courts have had to settle cases that straddle both tort and crime since fact patterns have not heeded our pedagogic borders or conceptual pigeon-holes. Even if a system has not developed normative solutions to such boundary issues, litigants have raised them and procedures have had to be developed to deal with them.

This chapter draws together explanations for some of the key developments of fault doctrine in tort and crime described in the preceding two chapters. The first step is to give what explanations are possible for the English development of fault across the domains of tort and crime. Then we turn to comparative materials to confirm, calibrate or, if necessary, reject those explanations. The comparator legal systems are France and Spain, the core comparators throughout the book, alongside narrower references to the USA and Australia.

This work has sought to explore four key places of overlap and potential interaction between crime and tort to better understand both the field as a whole and how and why legal systems change. It has tried to avoid normative claims bound to specific times, and particular theories about the relationship between tort and crime. It has shown that tort and crime in England and elsewhere address many of the same fact patterns, using concepts given the same names and with the same or similar function, and that both pursue some of the same purposes. It has presented a picture of complex and varied ways in which interactions and non-interactions have happened. Across that material, issues, processes and outputs have led to significant legal change over the period 1850–2020.