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Tort law in India and the People's Republic of China poses a puzzle. Both inherit sophisticated systems of tort law, yet each prefers to rely on the criminal law or on administrative mechanisms to resolve disputes involving industrial accidents and personal injuries rather than to rely on private action though civil cases.1
The answer to the puzzle lies not in the poverty of the population. Tort law developed in an England far more destitute than are many regions of modern India or China.2 Nor are idiosyncratic cultural or political factors the answer, given the real differences between the politics and cultures of India and China. Economics are equally unavailing. While state owned or sponsored industries are important in both nations, India's private sector contributes more to its national economy than does the private sector in the United States3 and seventy percent of China's 2005 GDP was in private hands.4
These two societies, alike in that both are experiencing the stresses of political and economic modernization, challenged by millennia-long histories of social stratification and inertia, and confronted by perceived enemies at home and abroad, struck out on two different political trails sixty years ago.5 Today they find themselves undergoing similar periods of economic liberalization. Having become two of the largest industrial economies in the world, they have embraced Western legal doctrines forged to bring order to the effects of industrialization. Yet each is reluctant to embrace some of the key practices associated with these doctrines.
I. Tort Law as a "Looking Glass"
Tort law provides a looking glass into the norms and expectations of a society's everyday life. A tort is a "wrong" in which one person's conduct creates a compensable injury to another's person, property, or legally recognized interest.6 Such a "wrong" might entail injury to a person's reputation (defamation), to the person's physical integrity (assault, personal injury), or to a person's economic interests (nuisance, theft).7 Torts reflect a society's or its ruler's estimations of what personal actions inflict unacceptable costs on the entidements or privileges of others and on the character and values of a society.8
Industrialization inflicts considerable costs on individuals. Modernization typically shifts responsibilities and obligations among individuals, and it tests the adequacy of nonjudicial forms of conflict resolution and social...
