1. Comparative Law Approach

Debate continues about the methodology, role, and function of comparative law in the study of the law.⁶ Legal systems are not simply about formal legal rules, but are also composed of customs, practices, attitudes, and cultural standards: in short, different mentalités, the term used by Legrand.⁷ In particular, in the sphere of public law, ‘[b]ehind rules and concepts…lie habits, customs and ways of thought derived from historical (p.3) experience’, a phenomenon Harlow describes as ‘mindset’.⁸ However, this book rests on the premise that differences in mentalité or mindset in English and French public law do not fatally undermine the value of comparative research.⁹ These differences do militate in favour of the taking account of broader influences, such as procedural differences and alternative means of redress, and cautions against providing all-encompassing holistic solutions based upon comparative law. But they do not deny the utility of comparing functionally similar concepts, and the deployment of comparative law as a critical tool for challenging assumptions inherent in one's own system, testing hypotheses and discovering indicators of ways in which improvements can be effected. Nor should such differences be a barrier to the exchange of ideas between legal systems.¹⁰

We should now turn to the comparative law methodology adopted in this study. In undertaking this analysis, the importance of the functional approach has been recognized, namely that comparative law should be concerned with identifying and comparing functionally equivalent rules.¹¹ The overriding objective of this book is thus to examine the rules which have the function of providing compensation for administrative wrongdoing in English and French law and to determine how these rules have been formulated so as to achieve a balance between the need to maintain effective public services and the desire to provide compensation for administrative wrongdoing.

One of the main goals of this comparative study is explanatory:¹² to discover the underlying themes of administrative liability in these two (p.4) systems, to identify the visible and hidden rules that exist, to look at the use of policy concerns, the effects of the historical background, as well as to bring to the fore the importance of non-judicial procedures. It is also recognized that another important use of comparative law is to provide a critique of one's own legal system. Although the objective of this book is not to provide a holistic solution to the intractable problem of state liability, an attempt will be made at various stages to draw lessons from comparison, and to consider possible changes in English law whilst taking account of comparative law.

Although emphasis will be placed predominantly upon formal law as applied by the courts, it is nonetheless recognized that the courts are by no means the sole route for gaining compensation for administrative wrong-doing, and that recourse is often made to alternative practices of resolving disputes between citizens and the state.¹³ The impact of these non-judicial means of compensation will be taken into account throughout this book, and will also be the focus of an autonomous later chapter,¹⁴ with particular emphasis placed upon the public law ombudsmen and statutory compensation schemes, including the radical new French medical compensation system. Moreover, this study is not based solely upon a library-based exercise but draws upon extensive interviews with stakeholders in the system,¹⁵ unpublished as well as published judgments, conclusions, and internal documentation of the courts.¹⁶