Private Law Theory

ABSTRACT
Common law courts celebrate their own creativity in the law of tort, extending the categories of actionable duty by incremental analogy without waiting for legislative sanction, while treating the same creativity as constitutionally forbidden the moment the question shifts to criminal liability. This article examines that paradox through the law of Ghana, asking whether the asymmetry between tort’s incrementalism and criminal law’s principle of legality is doctrinally coherent, and whether it has left Ghanaian tort law under-developed relative to what the common law method would otherwise permit. Its thesis is that Ghana’s constitutional prohibition on judicial creation of criminal liability is normatively justified by the differing liberty, retroactivity, and democratic legitimacy stakes of the two fields, but that the institutional caution this justifies in criminal law has no logical application to tort, and that Ghanaian courts consequently possess considerably more doctrinal authority to develop civil liability, in medical negligence, product liability, and mining-related environmental harm, than their current jurisprudence exercises.

The claim is tested against original and secondary empirical evidence, including Judicial Service caseload and disposition data, a published systematic count of reported Ghanaian medical malpractice decisions, and recent regulatory data on mining-related water pollution, with explicit attention to what that evidence does and does not prove.

The article closes with concrete legislative proposals, principally a product liability statute and a mining-affected communities compensation regime, together with narrower institutional and procedural reforms. Comparative material from England and Wales, Nigeria, Kenya, South Africa, and the European Court of Human Rights is used throughout, with South Africa’s contrasting experience under Carmichele and Masiya serving as the principal test of whether Ghana’s particularly emphatic statutory foreclosure of common law crime creation, in section 8 of the Criminal Offences Act, 1960 (Act 29), is a strength or simply a narrower version of a dilemma every common law system shares.

Debrah, Charis Joshua, Judicial Innovation in Tort and the Principle of Legality in Criminal Law: A Ghanaian and Comparative Perspective (September 4, 2026).