(VI) Comparisons with French law

It can be seen, therefore, that modern English law sets out the factors which a court must take into account in deciding whether or not a defendant has broken his duty to take reasonable care. While the process of weighing up these factors is often referred to as a ‘cost/benefit’ analysis, it can be seen that this is no mere economic calculation, but requires the evaluation of different considerations, some financial and some social, (p.201) reflecting broadly a philosophy of utilitarianism. At a practical level, though, a court in deciding negligence must balance a particular set of factors; while other English liabilities also require the balancing of factors, these factors sometimes differ slightly (one or more being omitted or substituted), sometimes being almost entirely different.¹⁹⁴ In the English context, therefore, the language of ‘fault’ (whether used in the context of negligence or elsewhere) serves only to confuse, being too vague and unspecific for the particularity of the English techniques.

At this stage, it can be appreciated how very different is the approach of an English court to deciding negligence and a French court in deciding une faute.¹⁹⁵ In part, this results from the different functions of these concepts in the two systems of substantive law: for the breadth of the French understanding of la faute délictuelle is required by the different roles which it must play under the all-embracing articles 1382 and 1383 of the Civil Code, both in terms of defining the limits of liability (a role played in English law by the defining characteristics of the nominate torts and in the tort of negligence by the concept of a duty of care) and in terms of the different types of ‘fault’ appropriate for different contexts. However, even if we restrict our comparison with French law to its understanding of imprudence or manque de diligence (its nearest equivalent to the English negligence) we find very different treatments which I would describe as a French contentment to leave the issue to a global judicial assessment and an English concern to structure its judicial assessment and thereby to create a more complex and specifically legal understanding of the concept of negligence. So, while the Cour de cassation retains for itself the issue of the characterisation of une faute délictuelle of facts by the lower courts, its intervention has been ad hoc rather than based on a set of general, legal guidelines. This allows a number of considerations to be taken into account by the lower courts covertly, under the cloak of their ‘sovereign power of assessment’ and in particular permits expression to be given to their ‘moralising’ tendencies.¹⁹⁶ By contrast, the English approach to negligence requires the considerations to be taken account of by a court to be argued by the parties, decided upon as to relevance and then assessed by the court.

These differences are in part explained by the different institutions of French and English civil adjudication: in the French, the distinction between the juges du fond and the Cour de cassation and in the English the presence or absence of juries. But they also stem from even more fundamental differences in understandings of the appropriate line between issues of law and of fact. For, as I explained earlier, the English doctrine of precedent links fact and law together in the process of ascertaining the common law itself and this has created an intellectual tendency towards the juridification of facts, that is, the construction of legal issues from patterns of judicial decision making on facts. By contrast, while French case law is highly important for an understanding of French delictual liability, French private lawyers do not see previous judicial decisions in the same way as English lawyers and, in particular, do not see the factual context of a decision as essentially relevant to the validity of the legal (p.202) propositions which it proclaims. French judicial decisions do not bind and for a French lawyer, the validity of any legal proposition comes from its relation to la loi or to legal principle: is it right, rather than was it relevant? There is therefore much less reason for a French lawyer to seek out the pattern of application of a concept such as imprudence, no need to ‘distinguish’ one decision from another, and so no juridifying tendency of the sort which we see in English law.