Overview of State Liability in English and French Law Duncan Fairgrieve

DOI:10.1093/acprof:oso/9780199258055.003.0002

Abstract and Keywords

This chapter considers the historical development of French and English liability administration within their legal systems and examines its existence in relation to the individual and public servants. Accounts date back to medieval times and the late eighteenth century, when kings had monarchical liability or immunity, which rendered being sued or tackled by their own court for wrongdoings virtually impossible. The system of state liability gradually developed in French law upon establishment of post-revolution statutes, which often held authorities liable in damages, and with the later occurrence of the Blanco case of 1873. In parallel, the evolution of English proceedings in the nineteenth century limited the immunity of the Crown and allowed public bodies to incur civil liability, which shaped the formation of its modern state liability through the Proceedings Act in 1947.

Keywords:   liability administration, monarchical liability, immunity, Blanco case, Proceedings Act

1. Introduction

In this chapter, an overview of state liability will be made prior to the in-depth comparative analysis in the rest of the book. As part of this overview, we will briefly examine the historical evolution of governmental liability in the two legal systems. This historical section will be followed by an overview of the modern law of state liability which will ensure that the following comparative analysis is prefaced by a clear presentation of the basic framework of this topic. We will also examine the occurrence of administrative liability for the actions of individual public servants.

2. The Historical Evolution of State Liability

In both English and French law there has been a gradual evolution from the early position of restricted state liability to a broader position in the present day. There are many parallels in this gradual development over time.¹ The analysis of this evolution will be divided into a number of sections, stretching from the early period of state liability to the modern era.

2.1. The Early Period of State Liability

The early period of state liability from the medieval period to the late eighteenth century is dominated by the question of monarchical liability. In France, orthodox academic opinion refers to the maxim ‘le Roi ne peut mal faire’² as reflecting the principle of irresponsabilité or immunity of the monarchy prevailing throughout the pre-revolutionary ancien régime.³

(p.8) In England, it was also argued that the maxim ‘the King can do no wrong’ resulted in the immunity of the Crown for torts against its subjects.⁴ In legal principle, however, this was not strictly correct: the Crown was in fact considered to be subject to the law, as consonant with principles of justice.⁵ But, in practice, procedural particularities did severely thwart opportunities for redress. One of the King's prerogatives was that he could not be sued in the central courts, in the same way that a feudal lord could not be sued in his own court.⁶ No writ would lie against the Crown.⁷ On the other hand, the aggrieved victim could appeal to the King by way of a Petition of Right and hope that discretion would be exercised in his favour.⁸ This procedure was complex and dilatory, but there is evidence in extant documents that aggrieved individuals had some recourse against the monarch.⁹ For instance, claims were successfully made to the King to gain the restitution of wrongfully seized property.¹⁰

Property-based wrongs also provided an exception to immunity in France. Despite the prevailing principle of irresponsabilité of the monarch, local authorities were, during the eighteenth century, systematically awarding compensation for loss caused by workers engaged in travaux publics.¹¹ Although these payments did not represent an actual right to compensation, as they were generally granted on an ad hoc basis and motivated by principles of equity, Boulet-Sautel has argued that the systematic nature of the overall procedure enables one to identify the rudimentary elements of modern administrative liability in the sphere of travaux publics.¹²