Tort Vulnerability and Security Risk Governance 1 FIRST DRAFT : please do not quote without permission

The paper argues that the last few decades have witnessed changes in how citizens are viewed in the UK and that these changes have implications for security risk governance. The paper identifies a shift from contract to tort law, and a related shift from a contract model of citizens to a tort model of citizens, or from a view of citizens as robust, rational risk-takers to vulnerable persons at risk. My discussion of law involves socio-legal ideal-types, nevertheless, these ideals inform presumptions underpinning individual laws and policies and their interpretation. The paper begins by discussing the contractual model of the citizen as robust rational risk-taker and its influence on the interpretation of tort law. Second the paper discusses the expansion of tort and consumer protection, and the evolving view the citizen as vulnerable victim. Third the paper discusses the implications of a tort culture of risk aversion for security strategies. Contractual character of modern law and the rational citizen Any account of modern citizenship would be incomplete without reference to the influence of social contract theories and theories of individuals’ natural inalienable rights. From eighteenth century Enlightenment philosophers like Rousseau or political figures like Tom Paine invoked the idea of the rights of man and society founded on individuals coming together in a social contract, These ideas were applied politically by the American and French revolutionaries and the British Chartists. Political theory classes teach how the idea of an original social contract and natural rights is a myth. Nevertheless the force of social contract theories was grounded in historical developments reflecting the shift from feudal society to industrial capitalist society and its shift from social relations based on feudal status to relations based on contract, including the expansion of commercial trade and waged labour. The rise of contractual relations in the UK was unsurprisingly accompanied by contractual disputes, and disputants applied to the courts to resolve disputes. The nineteenth century saw the rise of contract law in the UK, largely developed from civil case law. Tort law also began to develop in the 1 Please note that this is a first draft and I have yet to add many references. nineteenth century, but at a slower pace than contract law. Contract law was the primary field, and tort law was the subsidiary field evolving to fill anomalies in the primacy of contract law. The relation between capitalism, contract and modern law has been analysed by the Marxist legal theorist Pashukanis and others. The contract model of law has underpinned the democratic ideal of law, which regards law as the reflection of our collective will. We follow laws, which we ourselves have willed and agreed to through political debate and assent. In other words, we are subjects of law as both authors of law and its followers. In so far as legal sanction is invoked it is to hold us to our agreement in law. The law’s contractual character is clearest in civil law. But even criminal law in the modern democratic ideal of law embodies the idea of a citizen with the capacity to reason and enter into contracts. Criminal law sanctions the citizen for violating the social contract and not following his or her will as embodied in law. The criminal sanction is measured proportionate to the violation of the social contract. The criminal contract-breaker, having served time, regains his or her freedom and returns to society to resume full citizenship rights. Tort and the reasonable man on the Clapham omnibus Tort law developed to redress problems that arose outside a contractual relationship or could not be addressed by breach of contract. For example, injury sustained by faulty goods or services. Or for third parties who were not party to a contract and who had suffered injury. For example, tort law sought to address injured railway passengers such as children whose tickets had been bought by somebody else, or those who had consumed defective food products but were not the original buyer. The subject of tort might be a person who is not a formal participant in a contract who is at risk and needs to be protected. Tort law originally tended to supplement contract law and was interpreted to encompass foreseeable injured parties and foreseeable injuries. Informing the character of contract law and tort was an understanding of the citizen as a robust, rational, active self-determining individual with the capacity to handle risk. Consider the ideal of the proverbial reasonable man on the Clapham Omnibus, who was invoked to determine the standard of care in negligence claims. (See Hall v Brooklands Auto-Racing Club (1933) 1KB 205). The assumption was of the average solid citizen as reasonable and rational. This ideal embodied the figure of the new suburban, middle-income male office worker and householder (renting was the norm for most). Evidently this archetypal figure did not embrace women or all men when first invoked culturally before being invoked legally. Not least universal suffrage was not won by people without political struggle. Yet the ideal as it modified into ‘the ordinary man in the street’ came to embrace more of the population following the achievement of universal franchise, and as the possibilities for office work, becoming a householder, suburbia, and train and bus travel expanded. The ideal embraced much of the population in the postwar consensus after the Second World War. Here I stress that I am discussing a legal ideal, yet the ideal of the rational sensible citizen, informed by social forces, influenced law’s development in the nineteenth and twentieth century, especially after the Second World War. Belief in the ultimate reasonableness of people even influenced criminal law reform. Contractual assumptions of the citizen as capable risk-taker Under the contract model, the citizen is allowed to take risks and make wrong decisions and undertake endeavours, which might fail. Consider how the idea of the citizen as a conscious risk-taker is expressed in case law. * Consider how the idea of the citizen as a risk-taker is expressed culturally in Kipling’s historically well-known poem If: If you can make one heap of all your winnings And risk it on one turn of pitch-and-toss, And lose, and start again at your beginnings And never breath a word about your loss; If you can force your heart and nerve and sinew To serve your turn long after they are gone, And so hold on when there is nothing in you Except the Will which says to them: "Hold on". This idea of the citizen as capable risk-taker was modified in twentieth century Britain through the creation of the welfare state. Nevertheless its assumptions of capacity underpin the concept of universal basic welfare, which regarded welfare rights as bound up with duties and responsibilities, that is, the capacity of citizens to act responsibly and fulfil their share of social duties. See, for example, influential models of welfare citizens’ rights and duties by social theorists T.H. Marshall, Richard Titmuss, and Richard Tawney. Underlying the various models was an expectation that citizens had capabilities, would act responsibly, and, having contributed to society, were entitled to state welfare when they fell sick, became temporarily unemployed or reached retirement age. The welfare state model with its idea of universal entitlements was propelled through the force of the collective democratic political movements of the twentieth century, which emphasised the productive capacity of the working classes and their related social entitlements. It is no coincidence too that the broad social consensus the postwar welfare state model attracted was fostered by the individual and collective sacrifices made by citizens in the Second World War. Citizens had testified to their capacity to risk their own lives for the social good and therefore society owed them a duty to support them when in need. The default ideal of the citizen under the idea of universal welfare rights remained a capable subject with agency. Consider how Talcott Parsons’ concept of the sick role assumes citizens as robust capable beings and how people would only be in the sick role temporarily because their pride in their independence would make them want to relinquish the sick role as quickly as possible. Only a residium of the population were considered as lacking rational capacity. But even among this category there was overall social optimism over their reformability and therefore ultimate rational capacity. Thus in the postwar period under the sway of belief in people’s rationality and society’s robustness, child murderers like Mary Bell could be returned and assimilated relatively simply back into society, with a fresh start under anonymity, once they had served their sentence. Instructively the original 1960s’ trial judge of Myra Hindley, perhaps the most notorious child killer in the UK of the last century, indicated that she might be released after serving a very long sentence. That her release did not happen is indicative I would argue of the shift from the risk-taking contractual model to the risk-averse tort model in subsequent decades I am discussing. One aspect of the risk-averse model is more illiberal laws and erosion of the citizens’ freedoms. Rise of citizen as consumer and tort claimant The expansion of tort is linked to policy approaches treating the citizen as a consumer. The postwar social consensus and collective political movements that had underpinned the universal state welfare system began to fragment. In that fragmentation, claim-making took on more individualised, special pleading forms. From the 1980s the state welfare system shifted from a collective welfare model to a more individualised, privatised model, which imagines the citizen as consumer and has sought to put more welfare costs onto private individuals and bod