This chapter completes our examination of the long Plantagenet period, which culminated in the bloody War of the Roses. However, as the chapter title makes plain, the focus is on the impact that the deadly plague of this period had upon law and order. The chapter explores the different interpretations made of the importance of the Black Death and surveys developments of this period such as the origins of what we would today call employment law, significant increases in the effectiveness of the administration of justice chiefly through increased powers for justices of the peace and important developments in both law of obligations (exploring how actions on the case developed from the writ of trespass and how it further developed into the action on the case for assumpsit) and the criminal law (focusing on treason and murder).

The title of this chapter on ‘The English Justinian (c. 1272–1307)’ refers to the nickname given to Edward I who was likened to the Roman Emperor Justinian I who codified Roman law on the basis that Edward’s reign saw a significant increase in the number and importance of statutes. It falls into three sections. The first will discuss the main statutes of Edward I, focusing on the Statute of Westminster 1275, the Statute of Wales 1284 and the Statute of Westminster II 1285. The second part will examine statutes that had a particular effect upon feudalism: the Statute of Mortmain 1279 and Quia Emptores 1290 (also known as the Statute of Westminster III). The third and final section will explore a development in the common law that began before this time but blossomed in this period: the origins of what is now known as the law of obligations or the law of contract and tort (examining the writs of covenant and trespass). This underlines that, although the English Justinian is known for the growth of statute law, the era also saw the continued development of the common law.

Schloendorff v. Society of New York Hospitals is a 1914 New York Court of Appeals decision frequently cited as the foundational case establishing a patient’s common-law right to bodily autonomy. But Judge Benjamin Cardozo’s assertion that “every human being of adult years and sound mind has a right to determine what shall be done with his own body” was mere dicta. In affirming a directed verdict for the hospital where the plaintiff’s uterus was removed without her consent, Cardozo deemed a nurse’s awareness of the patient’s objection to surgery insufficient to put the hospital on notice that an independent-contractor surgeon was planning a non-consensual hysterectomy. In her feminist judgment, Professor Kelly Dineen unearths a treasure trove of contemporaneous sources that establish the nursing function as an independent basis for duties to patients for which the hospital may be held vicariously liable. In her commentary, Professor Danielle Pelfrey Duryea situates the case within the emergence of “modern nursing” as a devalued feminine counterpart to masculine, valorized “modern medicine."

In this chapter, the law scholar Jan von Hein analyses and evaluates the European Parliament’s proposal on a civil liability regime for artificial intelligence against the background of the already existing European regulatory framework on private international law, in particular the Rome I and II Regulations. The draft regulation (DR) proposed by the European Parliament is noteworthy from a private international law perspective because it introduces new conflicts rules for AI. In this regard, the proposed regulation distinguishes between a rule delineating the spatial scope of its autonomous rules on strict liability for high-risk AI systems (Article 2 DR) on the one hand, and a rule on the law applicable to fault-based liability for low-risk systems (Article 9 DR) on the other hand. The latter rule refers to the domestic laws of the Member State in which the harm or damage occurred. In sum, compared with Rome II, the conflicts approach of the draft regulation would be a regrettable step backwards in many ways.

This chapter starts from a familiar question: is State responsibility in international law usefully understood on the model of domestic private law or on that of domestic criminal law or neither? It then discusses the attractions and limits of the model of private law. It then turns to ‘international crimes’ or ‘serious breach[es] of an obligation arising under a peremptory norm of general international law’ as defined in the International Law Commission's successive works and discusses the ways in which the provisions for such wrongs seem analogous or disanalogous to domestic criminal law. The next section takes up the suggestion that a distinction between ‘private’ and ‘public’ law is conceptually and practically preferable to that between ‘international crimes’ and ‘international delicts’: is this the best way to capture a category of international wrongs that merit a distinctive response? The final section asks whether State responsibility thus understood can usefully be seen as a species of ‘criminal’ responsibility and whether it offers domestic theorists a fruitful way of ‘deconstructing’ criminal law.

Internet of Thing (IoT)s. It focuses in particular on the question of liability in circumstances where an IoT system has not performed as expected and where this has resulted in loss or damage. The authors argue that the combination of AI and the IoT raises several novel aspects concerning the basis for assessing responsibility and of allocating liability for loss or damage, and that this will necessitate the development of a more creative approach to liability than generally followed in many legal systems. Linear liability based on contractual relationships and fault-based or strict liability of a wrongdoer in tort law are no longer sufficient to deal with the complex issues associated with the interaction of AI and the IoT. According to the authors, the values underpinning established liability systems, particularly in the field of consumer protection law, should be maintained in the context of new digital technology applications. The adoption of new digital technology applications cannot be a basis for imposing a lower threshold of liability than the level of liability established in other contexts.

The rapid development of robotics and intelligent systems raises the issue of how to adapt the legal framework to accidents arising from devices based on artificial intelligence (AI) and machine learning. In the light of the numerous legal studies published in recent years, it is clear that ‘tort law and AI’ has become one of the hot topics of legal scholarship both in national and comparative contexts.

Tort law has a number of systems and structures by which the system will be used to address the challenges posed by AI technologies. It will not be necessary to significantly alter our understanding of tort law’s foundations to be ready for AI, and this may significantly and potentially affect AI innovation and utilization.

The emerging society of networks is no longer tied to territorial differentiation. The network form causes a rupture with established models of liability (individual or organisational liability), undermines the public/private liability divide, and also their regulation, now beyond the state. This third rupture in the knowledge base of society creates profound challenges for tort law. So far, the response in tort law has largely been deferential to definitions of acceptable risk that emerge from governance networks beyond territorial borders. This is explained by the uneven de-territorialisation of functional systems (economy vs law, and politics), and in particular by the failure of tort law to develop a convincing model of ascription for network failures. The chapter has two main tasks; first, it locates these problems within EU law because it is considered an avant-garde experiment in governing a society of networks. It is claimed that its product liability law offers novel solutions to problems of risk-responsibility under conditions of uncertainty. It also deepens our understanding of tort law as a venue for providing contestory, discursive spaces when systems discourses collide.

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.

This chapter is a scholarly attempt to identify the purpose of private enforcement in EU competition law. Section 2 presents US antitrust law as the model where deterrence has a predominant role in private enforcement and which has served as a source of inspiration but not a role model for EU competition law. Section 3 presents the purpose-setting of EU competition law at the intersections of three aims: effective remedy in terms of in integrum restitutio, fundamental rights and public policy. Section 4 defines the limits of private enforcement’s deterrent function in EU competition law. The chapter’s central argument is that while private enforcement has multiple purposes in EU competition law, it represents an idiosyncratic compromise between policy-oriented deterrence and the traditional notions of civil law (full compensation, prohibition of unjust enrichment). It is demonstrated that while serving a public policy purpose and making use of the grey zone between compensatory and super-compensatory damages, EU “private competition law” does not go beyond that and remains within the confines of “compensation”. The fact that it is the deterrent side-effects that make private enforcement relevant for EU competition law and subject to special legislative attention does not call into question its compensation-oriented DNA.

This chapter examines seven (alleged) modern fictions of private law: (i) the equitable maxim that equity treats as done that which ought to be done; (ii) estoppel; (iii) volenti non fit injuria; (iv) the single meaning rule in defamation; (v) the common intention constructive trust; (vi) remoteness in negligence; and (vii) reading down exclusion clauses. I establish whether each of these devices is a Hard Fiction, a Soft Fiction or no fiction (the Nature Classification). I classify each device in terms of the Effect Classification developed in Chapter One. If a device has been found to be a Hard or a Soft Fiction, I go on to consider whether it should be retained or abolished in favour of a specific alternative. These evaluations of individual fictions lead to general insights, which are used in the development of the Acceptance Test in Chapter Four.