This chapter argues for a concept of ’roundabout reasoning’ as a useful tool for comparative legal studies for the movement and adaptation of legal objects, in understanding domestic law, and in critiquing legal development. Roundabout reasoning is defined as a process to resolve potential conflict between two or more objects by (a) a simple method of sequencing their consideration; (b) where actors apply it autonomously; and (c) consideration takes place through a neutral third space without reference to their earlier state.

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.

For over 400 years English civil courts have accepted some form of chronological pre-eminence of the criminal law where civil and serious criminal liability exist for the same facts.1 The victim of a crime would have to wait to bring a claim for compensation, or any other civil remedy such as an injunction. One of the underlying tensions is that that criminal process has often made those remedies harder to satisfy by depleting the defendant’s resources.

The field of Tort and Crime is in its infancy. This book’s purpose is to contribute to its coming of age. It seeks to do so by exploring, and explaining, important connections between tort and crime, and looking generally at how law changes. Criminal law and tort law have seen links across substantive concepts and doctrines, and had interfaces for their procedural rules for hundreds of years: this work explores the connections made, unmade, and missed, seeking to draw out a deeper understanding of them and of legal development in general.