The Philosophical Basis for the Evolution of the Doctrine of Assumption of Risk in Anglo-American Law: A Liberal Perspective

Abstract

The doctrine of assumption of risk—the notion that one cannot blame others for damage, that is, the realization of risk to which one has willingly exposed oneself—was first codified in the Civil Code of the PRC in 2021. Judicial practice has interpreted and applied this in a variety of ways. The maxim “volenti non fit injuri” finds deep roots in our extralegal life and in Roman law. After its first application in the case of Cruden v. Fentham more than 200 years ago, this doctrine has experienced a dramatic and controversial evolution due to its straightforward literal meaning and revolutionary effect on society. I review the evolution of liberalism, one of the most important philosophical foundations of the doctrine of assumption of risk, and provide an in-depth analysis of the social and historical conditions, content, and impact on the assumption of risk of the three phases of liberalism, from laissez-faire liberalism to paternalistic liberalism to liberal egalitarianism. I conclude that in a risk society, the doctrine of assumption of risk is not only necessary but also provides an illuminating framework for the apportionment of liability in more areas of torts.