A good-faith challenge to the taxonomy of tort law defences
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Extract: Perhaps unsurprisingly, there is no universally accepted taxonomy of tort law defences. Indeed, at least one influential scholar in the field actively discouraged any attempt to compile a ‘systematic index of “exceptions” or “defences”’. Nevertheless, in his ambitious and pioneering book, Tort Law Defences, James Goudkamp endeavours to do precisely this. Goudkamp’s work will be lauded by some as an important progression in the great ‘taxonomical project’ – that is to say, the movement given impetus ‘by the late Professor Peter Birks and (the mainly academic) supporters and advocates of his and similar views to impose a coherent and logical taxonomy upon private (common) law’. Whether this is actually Goudkamp’s purpose is unclear; it may be that he intends merely to provide an account of tort law defences that is descriptively true. But whateverthe case – and whether his taxonomy is accepted or rejected – Goudkamp is owed a considerable debt for illuminating the need to develop our understanding of this important area of the law, and for laying the foundations upon which we might do so.
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