Judges, child trespassers and occupiers' liability

This paper analyses how the doctrine of occupiers’ liability for the safety of child trespassers has been developed in English Law over the last 100 years by applying Pierre Bourdieu’s theorising of the operation of the ‘juridical field’ (Bourdieu, 1987). The paper presents a doctrinal analysis tracing the evolution of occupiers’ liability across case law, legislation and policy in English Law and subjects these jurisprudential materials to a contextual socio-legal analysis by examining both judicial discourse and the changing cultural and physical contexts within which the jurisprudence has developed. The analysis outlines the tensions and subtleties of the doctrinal evolution of this area of the law and the ways in which both changes in social attitudes (e.g. to parental responsibility and children’s play) and changes in the built environment have affected how the appellate judiciary have understood and applied occupiers’ liability law to instances of harm suffered by child trespassers. The analysis finds Bourdieu’s theorising of the juridical field to be an effective way of making sense of the senior judiciary’s operation as an ‘interpretive community’ (Fish, 1980, 1989) in developing and practising this body of law. This paper provides an empirical explication of key aspects of Bourdieu’s abstract theorising and does so by analysing an area of the law that has attracted little academic investigation: whether conventional jurisprudential or socio-legal. This paper attempts to show that it is possible (and for this analysis, necessary) to combine both approaches. Keywords: Occupiers’ Liability – Trespass – Pierre Bourdieu – Sociology of Law.