This post was intially written in French with Rodolphe Bigot (lecturer at the University of Picardie Jules Verne) in the Fall 2019.
In 150 years, the concept of responsibility has evolved a lot, without ever disappearing. And today, we find it in a variety of contexts, from ecological or industrial disasters – we will evoke a “precautionary principle” that has blurred the very notion of causality – to “intelligent machines” – which leave the role of helper to finally make decisions in our place.
From fault liability …
Although engraved in the more than two hundred year old marble of the Civil Code, civil liability is obviously a legal institution that is regularly rethought. The doctrine has highlighted the renewal of its law. The image that comes to mind is that of a tree of ideas, subject to the variations of the seasons, with its hours of flowering, incandescence, dead leaves and dormancy. In recent years, reform projects have followed one another, bringing civil liability out of a period of hibernation. Incessantly, it is about to change, again and again. But for a long time, it has generally been defined, to quote Tunc (2019), as “the institution by which a person is obliged to repair a damage caused by another“. For several decades, it has been in a paradoxical situation. As Ewald (1986) reminds us, insurance developed at the same time as an attempt was being made to socialize (in the sense of transferring from the individual to the collective) the risk of liability. Viney (1965) noted that “social security and responsibility produced a decline in individual responsibility and a socialization of risks, the burden of these being distributed over a community: the national community or a mutuality of insureds managed by an insurer“.
With the industrial revolution, and in particular the explosion of steam engines, the notion of “unknown cause” appeared. Since 1804, when only liability for fault existed, the law of liability has greatly evolved, institutionalizing a system of compensation that is no longer centered on the punishment of the author of a damage, but on reparation, individual or social. Victims and their relatives, faced with the blows of fate, no longer have the same resignation. The psychology of the claim has also evolved. We can go back, as Ewald (1986) does, to the law of 9 April 1898 on accidents at work, which was to inspire future social insurance legislation. This law forced us to rethink the notion of individual responsibility and the social contract that united the members of a community. At that time, from a legal point of view, the judge started from an accident, from a damage, to infer the existence of a cause, and from a fault: without fault, there would be no accident. More precisely, without fault, there was no civil liability, nor compensation, which could lead one to think that, in the end, the accident was denied: Today there are regimes of liability for fault (it is up to the victim to prove it), liability for presumed fault (it is up to the perpetrator to prove that he or she did not commit a fault), or liability without fault or by right (which rests on other grounds: the authority or cohabitation of the child with his or her parents; liability for things in one’s custody).
Judgments of responsibility are then judgments made about the causality of an event. We find the idea that anyone who causes damage to others must repair it. This vision is very different from that of the actuary who calculates the probability of an accident occurring independently of any will. But a comparison is sometimes made, and the will no longer has any influence. For a long time, it was required that the author of the fault was aware of his act. To do this, the person responsible had to have the “capacity of discernment”, in a way (in a Judeo-Christian tradition) the capacity to distinguish between good and evil. This condition was called the imputability of the fault to its author. Two types of people did not have this faculty of discernment: young children and mentally deficient people (whether this was permanent or whether the person was taken by a temporary crisis of madness at the time of the act). Gradually, the law and jurisprudence have removed this requirement. Article 489-2 of the French Civil Code (resulting from a law of January 30, 1968) now provides that “a person who has caused damage to another person while under the influence of a mental disorder is no less obliged to pay compensation“. The jurisprudence then established the same principle concerning children deprived of discernment in 1984. The fault is thus henceforth an objective fault, deprived of its moral and voluntary element, with some nuances or resistances of the jurisprudence. The doctrine initiated this solution. A certain number of authors, including Paul Esmein, the Mazeaud brothers (Henri, Léon, Jean) and then François Chabas,[i] argued in favour of broadening the notion of fault, which does not involve any subjective element and which, in a way, is reduced to an error of conduct that would not have been committed by a good family man, a reasonable person, in the same circumstances as the defendant.
Fault loses its psychological content. Thus, on the basis of this objective conception of fault, which does not imply a moral judgement on behaviour, it has been possible to admit the civil liability of incapable adults and young children, who have in common that they are not endowed with discernment.
In the end, civil liability – in respect of things, then in respect of others – and fault have undergone an objectification giving rise, according to Ewald (1998), to a law of liability which “is now no more than a law of compensation in which the notion of fault (and guilt) through which one traditionally recognizes oneself as being responsible is less and less the norm“. For the judge’s perspective, if a person had not committed such and such a fault, or had not been at the origin of such and such a generating event (of responsibility), “the world would be harmonious” whereas for the insurer, whatever the will of each person, accidents occur with a strong statistical regularity. We find here the reflections of Durkheim (1897), when he sees suicide as a normal social phenomenon. But this vision was not imposed in one day.
… to risk management
If we often evoke the brakes on the birth of life insurance, in France Colbert’s 1681 decree considered that insurance on life in the event of death was “reprehensible and against (good) morals” because it made people wish for the death of the person on whose life the subscriber was taking out the policy, in other words the risk of votum mortis. As Zelizer (1979) reminds us, the birth of “fault insurance” was also difficult and even later. While in 1840 civil liability insurance in the context of traffic accidents (on horseback) was still perceived as an “incitement to carelessness and negligence“, ten years later liability insurance was finally admitted (“the fact of driving in our time and in the middle of Paris [without insurance] indisputably constitutes a gross fault“). It was not until 1876 that the Court of Cassation ruled on the subject and recognized its legality, as Profit (2020) recalls. Several questions remained. Is it moral and just to shift the burden of the consequences of an individual’s actions onto the whole of the mutual society, thus absolving him of his responsibility? How can it be legitimate to make the community pay for negligence? Is this not in contradiction with the idea of encouraging prevention (formalized by economists – beginning with Adam Smith – through the notion of moral hazard)? This liability insurance seems to contradict the legal vision, or at least certain functions assigned to it, such as the normative and sanctioning function.
However, insurance has been able to develop because the occurrence of damage (almost) never benefits the insured, and it guarantees above all the third party, the victim of the damage. Conceived as a mechanism for protecting a debt of reparation owed by the insured who is responsible, evolution has assigned to civil liability a second role, undoubtedly predominant today, of protecting the victim’s claim for compensation. It is therefore no longer so much the fault of the insured that matters but its consequences for the victim, “insurance acquires here, in addition to its economic function, a social function, it makes up for the insolvency of the person responsible in order to guarantee the reparation of the damage“, as Profit (2020) points out. It is in this spirit that the law of 5 July 1985 (the so-called Badinter law) relating to compensation for traffic accidents was conceived. In order to prevent a victim from not being compensated, for want of proving the existence of a fault, the doctrine had developed the theory of risk. This theory accepted the idea of liability without fault, known as objective liability. This theory appeared at the end of the 19th century with Raymond Saleilles and Louis Josserand, especially with regard to damages caused by things (machines, locomotives, cars…). It also had considerable influence on jurisprudence and legislation, with the law of April 9, 1898 on accidents at work. This text attributed the responsibility to the employer by right, by setting up their automatic compensation without having to prove a fault of the employer.
In the context of work accidents, if the employer has done everything to prevent accidents, he cannot be held responsible, but, in spite of everything, accidents happen. Professional mutual insurance companies were then created, guaranteeing (and limiting) the civil liability of the employers. This coverage of professional risk introduced a mutualization.
It was transformed into solidarity with the law of October 30, 1946, which repealed the law of April 9, 1898, and attached compensation for work-related accidents to social security, which replaced private insurance[ii]. ii] The burden of these accidents was thus shifted to society, leaving behind the legal vision of liability based on the idea of the search for cause – fault retaining a secondary role when it was intentional or inexcusable – and the distribution of the burden. This solidarity will give rise to a notion of liability seen as a distribution of risks, far removed from the idea of fault. It is no longer a question of determining who has committed a fault, but of determining who will have to bear the loss caused by a damage. We leave ethics and morality to define an economic equity. If accidents affect individuals, it is society that must distribute their burden appropriately. By going a step further, as several medical liability lawsuits have shown,[iii] one can commit a fault and be relieved of responsibility. As Ewald (1986) points out, insurance forces us to leave the legal notion of responsibility for “a project of social regulation“, by managing a collective responsibility. From industrial risk to technological risk, collective responsibility expands from the company to the State, and even to several States.
Responsibility and the precautionary principle
Ecological risks have challenged the classic legal notion of responsibility, with a sometimes vague causality and an unprecedented temporal dimension. Ecological damage extends over several generations, and the loss or damage is not always immediately perceptible. The multiple, intersecting, intertwined causes make the idea of individual responsibility often obsolete, or at least unsuitable.
Usually, for civil liability to be incurred, three cumulative conditions are required: a prejudice, a causal event, and a causal link between the latter and the former. The implementation of liability presupposes first of all that the damage is materially attributable to an event giving rise to liability. Consequently, it is necessary to demonstrate a causal relationship between the occurrence of the damage and the event giving rise to it. Then comes the moment of designating a person responsible, which varies according to the regime and the basis of the liability. The person responsible is understood as the person who is liable for the damage. He is not necessarily the author of the damage. Whether it must be proved or presumed, the causal link remains intangible as a condition of liability. On the other hand, the event giving rise to liability may, depending on the circumstances, consist sometimes in a fault, sometimes proven, sometimes presumed, and sometimes in a simple fact, in other words a nonfaulty but harmful event.
Moreover, a person must be affected, which is a concern in many cases of environmental damage, affecting ecosystems, animals or plants. The law of August 8, 2016 for the reconquest of biodiversity, nature and landscapes has broadened liability. Article 1247 of the French Civil Code provides that “ecological damage consisting of non-negligible damage to the elements or functions of ecosystems or to the collective benefits derived by man from the environment is reparable.” A rethought conception of liability has thus made it possible to take into account this pure ecological harm. In some countries, the solution has been to recognize the legal personality of nature, or one of its elements, such as a river (like the Ganges, in India) for example. But it is necessary to rethink the notion of “reparation”, invoking the idea that the purpose of liability is not only to repair damage but also to prevent its occurrence. In particular, civil liability may have a prophylactic dimension from the moment when a certain number of measures are put in place to prevent damage from occurring or from producing consequences that are too great.
The precautionary principle has been enshrined in the legal system in stages. It is one of the foundations of the European Union’s environmental policy. It is recalled by the French Charter of the Environment of 2004, mentioned in the preamble of the French Constitution – “when the realization of a damage, although uncertain in the state of the scientific knowledge, could affect in a serious and irreversible way the environment, the public authorities take care, by application of the precautionary principle and in their fields of attributions, to the implementation of procedures of evaluation of the risks and to the adoption of provisional and proportionate measures in order to avoid the realization of the damage“.
This principle of law is rooted in the adages that “prevention is better than cure” and “when in doubt, abstain. Philosophers had considered this principle before jurists, beginning with Nietzche (1887): “in order for man to be able to “answer for himself as the future […] must he not have learned to separate the necessary from the accidental, to think the causal relationship, to see the distant as if it were present and to anticipate it, to establish with certainty what is the goal and the appropriate means“.
Since precautionary responsibility would be based on potential causation, it would impose an anticipatory examination of causation. Although it has been suggested that the theory of adequate causality should be adjusted in its regard, applicable in the presence of sufficient scientific knowledge to predict the future, the precautionary principle applies on the contrary when this knowledge is uncertain, as Boutonnet (2005) reminds us. This leads the doctrine to distinguish “liability-repair” from “liability-caution”.
Ultimately, the basis of fault, in the individual sphere, perpetuates an ancient logic of guilt and carries the underlying imperative not to harm others. Then the basis of risk, subject to a logic of compensation, opened up responsibility to the social sphere. The new basis of precaution, having the merit of already being an international, European and internal principle, in various but related fields, extends to the planetary sphere. We no longer really know what civil liability is, nor solidarity, with the proliferation of guarantee and compensation funds that take over from liability and become intertwined with it. At the end of this hybridization of responsibility and solidarity, these centaurs could be renamed “responlidarity” or “solidability”. In its rethought functions, the project of reforming civil liability is likely to proceed to a new interbreeding, even confusion, with those of criminal liability.
From victimized ecosystems to responsible machines
New technologies, with machines enriched with so-called artificial intelligence, primarily for autonomous vehicles, have recently raised many concerns and questions. Noguéro & Vingiano-Viricel (2019) have recently recommended that “it is necessary to patiently collect the lessons of experience and avoid haste in order to, if necessary, build a law that would be specific to apprehend the liability of (or caused by) the “autonomous vehicle”. In the meantime, the precautionary principle should prevail: do not put the cart before the horse.
Boutonnet, Mathilde (2005) Le principe de précaution en droit de la responsabilité civile. LGDJ.
Ewald, François (1986) L’Etat Providence. Grasset.
Ewald, François (1998) L’expérience de la responsabilité. in De quoi sommes-nous responsables ?, 8e Forum, Le Monde, Le Monde éditions
Mill, John Stuart (1843) A System of Logic. Harper & Brothers Publishers.
Nietzsche, Frederich (1887) Généalogie de la morale. Mercure de France.
Noguéro, David & Vingiano-Viricel , Iolande (2019) Intelligence artificielle et véhicules autonomes, in Droit de l’intelligence artificielle, Loiseau & Bensemoun Eds, LGDJ.
Profit, Alix (2020) Droit des assurances, Bigot & Cayol Eds, Ellipses.
Quézel-Ambrunaz, Christophe (2010) Essai sur la causalité en droit de la responsabilité civile, Dalloz, Nouvelle Bibliothèque de Thèses.
Thibierge, Catherine, Libres propos sur l’évolution du droit de la responsabilité (vers un élargissement de la fonction de la responsabilité civile ?), RTD Civ. 1999, p. 561 et s.
Tunc, André (2019) Responsabilité Civile in Encyclopædia Universalis. https://bit.ly/36tf0xL ; La responsabilité civile, Economica, 2e éd., 1989.
Viney, Geneviève (1965) Le déclin de la responsabilité individuelle. LGDJ
Zelizer, Viviana (1979). Morals and Markets: The Development of Life Insurance in the United States, Columbia University Press
[i] In connection with their work on the notion of obligation in law.
[ii] With the 1898 law, fault is no longer a condition for compensation for a work-related accident. Occupational risk replaced it. But the notion of fault was not completely abandoned. It now plays an accessory role. It thus makes it possible to sanction the most serious behaviour, in particular in cases of intentional fault on the part of the employee, where no compensation is awarded.
[iii] Since the Mercier decision of May 20, 1936, physicians must treat “in accordance with the acquired data of science“, and not in consideration of warnings from colleagues if they have not been scientifically corroborated. The heart of the medical contract lies in the physician’s duty of care.