The Welfare Courts: A Socio-Legal Analysis of Risk Management Through Modern Strict Liability

The aim of the essay is to offer an adequate theoretical framework for a socio-legal analysis of risk management by the legal system. Law and risk are the two most important concepts to be clarified. Unlike the law, whose function consists in the temporal stabilisation of normative expectations, the perspective of risk is characterised by the possibility of changing the criteria for decisions based upon the evaluation of the consequences of those decisions. In the context of a modern society, characterised by an increasing demand for protection for people injured by new technologies, one observes certain difficulties in the attempt to adopt a risk perspective within the legal system. The result of this process is the new law of tort based upon the modern principles of strict liability. While strict liability can be shown to be effective in managing conflicts relating to technological accidents, its most negative effects are the increasing instability of legal structures and interference with the activities of other subsystems of society, such as medicine and the economy.