The present study aims at an explanation of dynamic interpretation in negligence law. It is argued
that the development of negligence law is dynamic on the grounds that it has to incorporate
tentative social presumptions, open-textured concepts, and flexible standards. Furthermore, the
courts have considerable leeway in formulating basic premises and creative freedom in re-shaping,
re-interpreting, and applying rules in particular cases. The central task of the study is therefore to
explore this assertion, to demonstrate the ambiguity inherent in seemingly clear-cut legal
principles, and to reconstruct legal reasoning so that it would be more coherent and responsive to
social needs.
Thesis starts with a fundamental presupposition of the central theme. It is presupposed that one
helpful approach to analysing dynamic interpretation in negligence law is to consider it in the
setting of legal reasoning treated as what Weinrib calls the 'justificatory enterprise'. In respect of
that, there have to be some justificatory premises (legal concepts) by reference to which it is
justified, and some justificatory reasoning process which links the premises and justification. The
justification of any legal decision thus requires the application of appropriate justificatory
reasoning to show how the decision is supported by or derivable from appropriate justificatory
premises. Once these premises are agreed, a conclusion can be made, or justified, by deductive
logic. Legal problems of interpretation, however, arise exactly when we seek to determine the
premises, that is, when we seek to abscribe their possible meanings as well as the criteria for
deciding which cases are alike for this purpose or that. It involves two levels of enquiry: textual
and contextual. The first level involves establishing what the relevant legal concepts mean and the
relation between these concepts and the object of their reference. The second level is the
contextual enquiry. It confronts the consequences of competing interpretations, and, by
evaluating these, one chooses a preferable interpretation.
Weinrib shows that the law of negligence illustrates the coalescence of a number of normative
conceptual'premises e.g. standard of care, duty of care, and proximity into a coherent justificatory
ensemble. Chapters two to four deal with problems of textual interpretation. They give an
analytical account of the open-textured concept of negligence, the flexible and reasonable
standard of care particularly in relation to customary practice, and the varying interpretation and
qualification of duty of care in different legal contexts
Chapter Five is concerned with changing judicial attitudes towards the 'neighbour' principle since
Anns, and focuses on its historic development as a carrier and developer of values rooted within the
legal context itself. Chapter Six considers different types of legal rules and tests, such as the reliance
principle, the assumption of responsibility and the three-stage test, and examines how they inter¬
relate with the proximity test. Chapter Seven, in examining debates between the precedent-based
approach (the so-called incremental approach) and the principle-based approach, argues that
deciding that cases are alike for the purpose of doing justice in a particular instance involves an
irreducible-element of classification and qualification, that is, saying that a given characteristic is
more relevant than that. But, in the end, it must conform to some accepted reasonable standards,
expectations, norms, or principles satisfied by what Stanley Fish calls the 'interpretive community'.
It is concluded that negligence law as a system of law has to minimise, stricdy, the arbitrariness
that can enter into such valuations unless we settle down certain justificatory premises, that is,
rules, precedents, and principles, that guide the judge in reaching a sound legal decision, in
selecting what is to be given weight and what is to be ignored, in distinguishing one case from
another, and in determining what class a particular situation is to be subsumed under. However,
legal interpretations of factors relevant to negligent liability are open-ended and indeterminate. It
is the great range of the scope of legal interpretation and argumentation that makes the
development of negligence law so dynamic.
