That no stark normative divide exists between the private law (including tort) in common and civil law systems was once, it appears, the common understanding of common lawyers.111 As one British judge put it, “the [c]ivil law is not of itself authority in an English [c]ourt, [but] it affords great assistance in investigating the principles on which the law is grounded.”112 In fact, some historians of the common law have argued that “the basic structure of the tort of negligence . . . was directly or indirectly derived from Roman law,”113 partly by way of continental moral philosophers, such as Grotius and Pufendorf, who were influential in shaping the eighteenth-century English legal consciousness as well as the civil law codes.114 Whether or not this strong claim is sound, there is ample evidence of robust influence and doctrinal borrowing. Some of the common law’s leading tort judgments, such as Lord Atkin’s famous speech in Donoghue v. Stevenson,115 conspicuously draw upon civil law concepts in order to frame or support their analyses of common law doctrine.116 To my knowledge, in none of these contexts did common lawyers ever suggest that the structural divergence between common law tort and civil law tort bespoke some significant normative discontinuity between them.
Maybe both are wrong.
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