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Prevention and the Pillars of a Dynamic Theory of Civil Liability: a Comparative Study on Preventive Remedies Alexandru-Daniel On

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Prevention and the Pillars of a Dynamic Theory of Civil Liability: a Comparative Study on Preventive Remedies Alexandru-Daniel On Louisiana State University Law Center LSU Law Digital Commons Research Papers Student Scholarship Spring 2013 Prevention and the Pillars of a Dynamic Theory of Civil Liability: A Comparative Study on Preventive Remedies Alexandru-Daniel On Follow this and additional works at: http://digitalcommons.law.lsu.edu/studpapers Part of the Civil Law Commons Recommended Citation On, Alexandru-Daniel, "Prevention and the Pillars of a Dynamic Theory of Civil Liability: A Comparative Study on Preventive Remedies" (2013). Research Papers. 1. http://digitalcommons.law.lsu.edu/studpapers/1 This Article is brought to you for free and open access by the Student Scholarship at LSU Law Digital Commons. It has been accepted for inclusion in Research Papers by an authorized administrator of LSU Law Digital Commons. For more information, please contact [email protected]. Prevention and the Pillars of a Dynamic Theory of Civil Liability A Comparative Study on Preventive Remedies Alexandru-Daniel On Research Associate, Center of Civil Law Studies, Louisiana State University LL.M., Louisiana State University Law Center (2013) LL.M, Babeş-Bolyai University, Faculty of Law (2011) LL.B, Babeş-Bolyai University, Faculty of Law (2010) Spring 2013 1 Copyright @ 2013 Alexandru-Daniel On All rights reserved 2 Contents CHAPTER I Introduction ................................................................................................................................................... 5 CHAPTER II Redefining Liability .................................................................................................................................... 12 A. The preventive function of liability ................................................................................................ 12 B. Terminology ....................................................................................................................................... 14 CHAPTER III Responsibility, Freedom and Human Power ........................................................................................................................ 26 A. Moral responsibility ........................................................................................................................ 26 B. The relationship between moral responsibility and civil liability ................................................... 38 C. Finding a domain for preventive remedies...................................................................................... 43 Chapter IV Preventive Remedies ................................................................................................................................... 47 A. Introduction ..................................................................................................................................... 47 B. Preventive remedies at French law ................................................................................................. 51 1. The preventive action (l’action préventive) ................................................................................ 51 2. Preventive remedies disguised as reparation in kind. ................................................................. 60 3. Le référé and l’action déclaratoire .............................................................................................. 62 4. The problem of private preventive expenses .............................................................................. 65 C. Preventive remedies in English and American Law ....................................................................... 70 1. A general overview ..................................................................................................................... 70 2. Injunctions ................................................................................................................................... 75 3. Self-help ...................................................................................................................................... 96 4. Declarations of right ................................................................................................................... 97 CHAPTER V The Perception of Direct Prevention In Legal Literature ...................................................................................................................................... 98 A. Introduction ..................................................................................................................................... 98 3 B. France .............................................................................................................................................. 99 1. Theoretical systems proposed for prevention by French doctrine .............................................. 99 2. A short outline of the evolution of tort law in France ............................................................... 102 3. The road towards functional diversity ...................................................................................... 104 4. The emergence of new species of damages and the precautionary principle ............................ 108 C. England and the United States. A brief survey on the evolution of tort law and the preventive function in the common law.................................................................................................................. 113 D. Individualism and collectivism in the law of torts ........................................................................... 119 Chapter VI Analytical Tools for a Dynamic Theory of Direct Prevention The Fault Based Standard and Risk Assessment Techniques ................................................................... 122 A. Towards a gap filling theory of prevention? .................................................................................... 122 B. Methodology and the importance of time in the law of preventive torts ......................................... 124 C. The Hand formula and other risk assessment tools ....................................................................... 133 D. Placing limits on preventive intervention ..................................................................................... 142 1. Relational limits—supervening administrative or legislative regulation .................................. 142 2. Foundational limits—freedom and preventive intervention ..................................................... 143 3. Epistemological limits—knowledge and uncertainty ................................................................... 143 Chapter VII Final Remarks ........................................................................................................................................... 147 4 CHAPTER I Introduction The Greek philosopher Heraclitus of Ephesus famously proposed the idea that change is the only constant in the world.1 To a greater or smaller extent, everything in the physical world is subject to some degree of change in every moment. The French philosopher René Descartes imaginatively described this process as God re-creating the world at each successive instant.2 The law of torts is subtly, yet strongly, linked to change in the world, particularly to change in human society. A natural consequence of this link is the inherent dynamism of this area of the law, which manifests itself twofold: first, the law of torts evolves in time; and second, the theory of tort law must be structurally dynamic: as a consequence of the fact that tort law is fact- dependent, tort theory is based on a process of characterizing and arranging facts, and finding their legal significance—a process which should be intuitively dynamic. That being said, so far, the law of torts has been explained and theorized using a rather static approach. Traditional tort theory, in both the common law and the civil law, has been focused on placing facts into categories and enumerating elements. There is great value in breaking down elements of torts, or in creating abstract categories. This is not an attempt to minimize the importance of the traditional approach on tort law, The author would like to warmly thank Professor Olivier Moréteau for his immense patience, full support, and extraordinary guidance provided throughout the process of writing this study. His thoughts and advice, offered with the occasion of many discussions, have been absolutely invaluable, and for all these reasons, sufficient words of gratitude can hardly be found. Also, much appreciation is owed to Professor John Church, Adrian Tamba and Orel Engelbach, for their help and for the very useful comments. Last but not least, the author would like to thank Jennifer Lane for all the advice and the help provided in the editing process. This paper is based on the LL.M paper written by the author while attending the LL.M in Comparative Law program at Louisiana State University. 1 See PLATO, CRATYLUS 19 (Benjamin Jowett trans., Project Gutenberg), available at http://pinkmonkey.com/dl/library1/cratylus.pdf (last visited Mar. 20, 2013). 2 This perspective on change is linked to Descartes’ image of time. Descartes believed that objects in the world do not have the capacity to endure in time, and believed that the nature of time is perpetual “re-creation”. See RENÉ DESCARTES, MEDITATIONS ON FIRST PHILOSOPHY 33, 88 (John Cottingham ed. & trans., Cambridge University Press, 18th prtg. 2012; published as part of CAMBRIDGE TEXTS IN THE HISTORY OF PHILOSOPHY series). 5 especially
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