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Introduction to Constitutional Law

The issue of how victims of accidents can receive compensation has been addressed for a long time in many legal systems and of course also in comparative law. The complicated issue of the topic ‘accident compensation’ is of course that a variety of legal instruments come to mind that can be used by victims to receive compensation after an accident has happened. Some of these will be discussed in other items in this encyclopedia. This is more particularly the case for tort and for insurance, both of which are important instruments.

There is also overwhelming literature describing the ways in which victims can achieve compensation not only for their damage in different countries but also from a comparative perspective. It seems as if recently the number of publications in this domain has only been increasing. One reason for the interest in accident compensation may simply be the increasing interest in the harmonization of law and more particularly private law in Europe.

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This has given rise to many volumes which usually are based on country reports describing the situation in the particular country of the reporter and which usually contains a comparative analysis as well. Many of these books have as their goal to examine whether there is a common core in the (European) legal systems which could be used as a basis for a possible harmonization of the law with respect to accident compensation.

Hence, a lot of material is available today, much of which has emerged in recent years. To a large extent, we can therefore simply discuss this material for further reference. A second reason for the increasing interest in accident compensation in a comparative perspective is probably the sad fact that, although technological progress has undoubtedly largely added to the quality of life of mankind, at the same time mankind also seems to be exposed (increasingly) to various (also new) risks which raise the question of compensation of the victims.

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And even in cases where the risks are not new (as with earthquakes, flooding, hurricanes or, more recently, tsunamis) the question of legal instruments that can provide adequate compensation to victims is increasingly asked. Many specific studies address specific risks, many of which are also ‘man-made’ and particularly an undesired side-effect of technological progress.

In this respect, we can, of course, refer to environmental risks, medical malpractice, but especially after 9/11 also to the terrorism risk. For all of these (and many others, such as traffic) risks specific comparative studies exist, all devoted in some way or another to the question of how in different countries’ victims can receive compensation. There have even been specialized institutes that have set themselves as a goal to promote research with respect to the various instruments that can provide accident compensation to victims.

In this respect, for instance, the European Centre of Tort and Insurance Law (ECTIL), founded in 1999 and located in Vienna, should be mentioned. In the various studies that ECTIL initiated, many of which will be mentioned in the list of references, research is undertaken on similarities and differences with respect to accident compensation in various legal systems in Europe, but also in non-European countries like Israel, South Africa, and the United States.

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A third reason for the increasing body of literature that addresses accident compensation is the growth of the domain known as law and economics or the economic analysis of law. Starting from the concept of efficiency law and economics, scholars examine what types of legal rules in various legal systems are and can be used to prevent accidents in an efficient way and to compensate victims without negative effects on the prevention.

The focus of law and economics scholars (Shavell, 1987) is indeed rather on the prevention of accidents than on accident compensation. The premise of a law and economics scholar is usually that the best way to protect the victims is to prevent accidents. Hence a law and economics scholar will always be interested in the question of what the influence of a chosen compensation mechanism is on the incentives of the parties involved to prevent accidents or, more generally, whether the different instruments presented lead in an optimal way to cost reduction. This domain of law and economics certainly has reached comparative law.

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In this respect, we can simply refer to the domain of ‘comparative law and economics’ which more particularly addresses inter alia the question whether differences between legal systems can also be explained on efficiency grounds. Also, this interest in the economic analysis of law, more particularly among lawyers interested in accident compensation, can explain the increasing body of literature in this domain.

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