BOOK: Andrew J. BELL & Joanna MCCUNN, Uncertainty in Comparative Law and Legal History. Known Unknowns [Transforming Legal Histories, eds. Lydia HAYES, Katie RICHARDS, Russell SANBERG & Sharon THOMPSON] (London: Routledge, 2024), 346 p. ISBN 9781032873756, 116 GBP

 

Abstract:

Laws are imposed on facts. But what is the law to do when its rules for establishing facts do not—because they cannot—produce a satisfactory answer? Scenarios that raise this intractable uncertainty problem have been treated as isolated concerns, but are in fact endemic across legal systems. They can cross jurisdictional and doctrinal boundaries, have recurred throughout history, and demand creative thinking from those faced with them. This book explores the law’s understandings of and responses to such situations from a comparative historical perspective. It investigates how the law has framed these most difficult problems of uncertainty; dealt with uncertainty’s often unclear boundaries; and developed a broad range of different responses to solve or avoid it, across doctrine, time, and jurisdiction. The work examines a selection of key uncertainty problems across private law as elements of a singular uncertainty issue endemic in legal systems. This analysis will be of interest to historians and comparatists, but also to doctrinal, theoretical, and other scholars and practitioners. The analysis leaves us better informed and better equipped for dealing with future scenarios where uncertainty arises, including insights beyond national and doctrinal confines.

Table of contents:

. Known unknowns: uncharted waters

Andrew J. Bell and Joanna McCunn

PART 1: Life and death

2. ‘In the beginning’: dealing with ‘unknowns’ at the start of life

Gwen Seabourne

3. Commorientes: deaths, disasters, disappearances

Andrew J. Bell

4. The subtle conclusion: epistemic uncertainty and law at the end of life

C.P. McGrath 

PART 2: Causation and loss

5. Causal uncertainty in tort law: the special case of mesothelioma

Ken Oliphant

6. Known unknowns: loss of a chance and intractable connections

Samantha Schnobel and Judith Skillen

7. Quantifying or avoiding the unknown? Damages for future lost earnings in tortious personal injury cases

David Messner-Kreuzbauer

PART 3: Meanings and intentions

8. Contractual interpretation and ad hominem rules of construction

Joanna McCunn

9. Unmixing intangible assets

Benjamin Douglas and Lorenzo Maniscalco

PART 4: Broader perspectives on law and uncertainty

10. A spectrum of uncertainty

Matthew Dyson

11. Known unknowns in Roman law: the second chapter of the lex Aquilia

David Ibbetson

PART 5: Conclusions

12. Known unknowns: tracing a map

Andrew J. Bell and Joanna McCunn

Editors:

Andrew J. Bell is a Lecturer in Law at the University of Bristol, UK, and a Fellow of the European Centre of Tort and Insurance Law. Joanna McCunn is a Senior Lecturer in Law at the University of Bristol, UK.

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