Odpowiedzialność odszkodowawcza za działania ustawodawcy. Kształtowanie się koncepcji i instytucji na tle reguł ogólnych odpowiedzialności państwa do połowy XX wieku

Bartłomiej Wróblewski


State Liability for Legislative Acts in the Context of General State Liability Rules. The Development of the Concepts and Institutions until the mid-20th century

State liability for legislator actions is a particular far-reaching application of the principle that the state is liable for the actions of the public authority. Hence the question of such liability is usually raised only when the principle as such is recognized. As a consequence, also comparative historical analysis of the development of the concepts and institutions of state liability for legislative acts must take into account the evolution of the general principles of state liability.

This thesis is divided into three parts. The first part, entitled The Institutions and Concepts of State Liability in Selected Legal Systems until the End of the 18th Century, consists of three chapters. It presents the current state of research on the existence and operation of institutions and concepts of the liability of the public authority, including the legislature, since the classical antiquity (Greece and Rome), through the Middle Ages (ius commune, Germany, France, England) until the first centuries of modern times (the school of rationalist natural law, Germany, France, England). The second part, divided into three chapters and entitled The Development of Contemporary Systems of State Liability for Public Authority Actions, is devoted to the development of contemporary systems of state liability since the end of the 18th century until the mid-20th century (Germany, France, Great Britain). The third part of the thesis features three chapters and is entitled The Problem of State Liability for the Actions of the Legislature. Subject to discussion is the applicable law, judicature, as well as jurisprudence regarding the state liability for legislative acts since the end of the 18th century until the mid-20th century (Germany, France, Great Britain).

The analysis of selected legal systems since the classical antiquity through the Middle Ages until modern times raises doubts with respect to two views pertaining to the origin and evolution of the state liability, which are quite popular in the jurisprudence. First of all, the belief is undermined that state liability is a relatively new legal phenomenon that has, in fact, developed only since the latter half of the 19th century, i.e. a legal phenomenon characteristic of contemporary times only. Secondly, as a partial consequence of the first conclusion, also the thesis of linear progressive development of compensation mechanisms i.e. gradual transformation from non-liability to a more and more complete realization of state liability, is challenged.

In all historic periods and nearly all legal systems under analysis, at least some forms of state liability can be found. In many cases there are no grounds for assuming that there is certain historic continuity among them. This thesis presents, or at least indicates, numerous institutions and concepts of public authority liability that existed before the 19th century. The first can already be traced back to the ancient Greece and Rome. They were supposed to ensure protection for entities affected by the public authority interference in the ownership title and seem to correspond to the contemporary institution of expropriation. More data are available for the medieval period, where, both in the German and English laws, the rules of liability for losses suffered as a result of public authority actions were to apply. In the German Empire, community liability, based on the rules of the Germanic law, was to apply. In England, in turn, the sovereign and subordinate administration, despite numerous protective privileges, were to bear liability following the same principles as private entities. The practical significance of these institutions, however, was about to decline as of the end of the Middle Ages. A lasting achievement of the European legal thought turned out to be the concept of protection for private entities in the case of public authority interference in private rights, developed by commentators in the 14th century. It affected the legal practice and led to the development of expropriation institutions in the Latin countries of Europe, or at least in France and the Iberian Peninsula countries, as early as the end of the Middle Ages. This concept remained vivid until the 18th century in the ius commune. It influenced neo-Scholastics of the School of Salamanca, and, indirectly, Hugo Grotius and other representatives of the rationalist school of the natural law. In the end, it formed the basis for the development of the institution of state liability for breach of vested rights (iura quaesita) in the German Empire. On the other hand, its narrower understanding contributed to the development of the contemporary concept of expropriation in France at the turn of the 19th century. It must be added that in the 18th century France there was a regular practice of compensating, though probably ex gratia only, for losses incurred during public works. The only legal system under analysis where no institution of liability in damages could be found, is England of the late 17th century and the 18th century, though individuals could, at least in some cases, count on compensation for their losses, however, only ex gratia, too.

It seems that since the medieval period, in particular in the ius commune, the question of possibility of state liability for legislative actions has been raised. As some representatives of the legal doctrine hold, both in the Middle Ages and in the first centuries of modern times in some legal systems it was the rule of applicable law. It pertains in particular to the 18th century Germany, where the state liability for legislative actions was to be realized according to the “obvious rule of the German general public law, according to which if individuals  are divested of their vested rights, the ruler is obliged to compensate for it”. It must, however, be noted that for the whole period before the 19th century, views of the state liability for legislative actions are not supported with explicit examples from the legal practice.

Since the end of the 18th century contemporary state liability systems have been developing. The analysis contained herein indicates many differences in this respect in the legal systems of Germany, France and Great Britain. They pertain both to their origin and the course of the process as such, as well as achieved results. The origin of some contemporary institutions of state liability for lawful actions of the public authority – as has already been mentioned – should be traced back to the ius commune. The doctrine of liability for breach of private rights, developed by commentators, was fundamental, on the one hand, to the institution of liability for breach of vested rights in Germany, and on the other, to the institution of expropriation in France. Although the rules of such liability were prescribed in some constitutions and statutes towards the end of the 18th and early 19th centuries, it was rather a continuation than a change in terms of the substantive law. Regarding the institutions of state liability for lawful actions of the public authority, it should be added that also other forms of the liability have originated in the judicature of the French Council of State since the end of the 19th century (liability based on the principle of equality of citizens in respect of public burdens, risk-based liability). Unlike Germany and France, in the British law, in turn, no general rules of state liability have developed which would be aimed at compensating for losses arising from lawful actions of the public authority, although the petition of right, applied again since the early 19th century, served such a function to some extent.

Given that at least basic protection was guaranteed to individuals in the case of losses suffered as a result of lawful interference of the state in the ownership title and other property rights, the fundamental problem in the 19th century Germany and France was state non-liability for unlawful actions of the public authority. Apart from particular regulations adopted occasionally by the legislator, the general rules of such liability first developed in France. 

A decisive factor in the creation of the contemporary system of state liability was the ruling of the Jurisdictional Court (Tribunal des conflits) in the Blanco case of 1873. It formed the basis, in terms of competence and substantive law, enabling the Council of State to establish autonomous state liability in tort, independent of the civil law regulations. Following nearly one hundred years of discussion among legal academics, such liability was recognized also in Germany in the early 20th century, finally by virtue of Article 131 of the Reich Constitution of 1919. The state liability for unlawful actions of the state was the last to be generally accepted in Great Britain, where the state immunity in damages dominated until 1947 when, as a result of the legislative reform, the rules of tort liability  of private entities began to be applied to the public authority liability.

On the basis of the analysis results one might be inclined to challenge the conviction, often expressed in the reference literature, concerning the way state liability for legislator actions used to be perceived in the past. Such non-liability, contrary to the popular view,  was not an indisputable dogma of either the legal theory or practice in the 19th or in the first half of the 20th century. There are however, considerable differences in the way this problem is perceived in individual legal systems. 

In the German jurisprudence in the latter half of the 18th century, as has already been mentioned, a conviction was supposed to dominate that the state is obliged to compensate for the losses incurred as a result of legislature acts which infringe vested rights. This seems to have been the view of the Prussian legislator who prescribed the rules of such liability in Article 75 of the Introduction to the Prussian Civil Code, and analogous rules applied under the common law also in other German states. A decline of such a conviction could be observed in the 19th century. Limited acceptance of the application of liability for breach of vested rights to damages arising as a result of legislative action is noticeable both in legislative decisions, judicature and jurisprudence. As a consequence, although some decisions of the Reich Court until the period between World Wars featured formulae implying extensive state liability for legislative acts, in practice, it was restricted by the courts to statutes and other legislative acts of individual nature, exclusively. Unlike the issue of state liability for lawful legislator actions, the question of liability for unlawful actions of the legislature had virtually not been subject to jurisprudence discussion or referred to  in the judicature before the enactment of the Constitution of 1949.

In France, until the end of the 19th century, there was a conviction in the judicature of absolute non-liability of the state for statutes. It pertained both to lawful and unlawful legislative acts. There are no grounds, either, to suppose that this issue was paid attention to in the jurisprudence. This is understandable given the fact that apart from detailed statutory regulations, throughout most of the century, the state remained non-liable even for the actions of the executive, and in particular for sovereign acts (actes de souveraineté). Acceptance and development of such liability, as well as challenging, at the turn of the 20th century, of the understanding of “legislator sovereignty”, previously dominant in the jurisprudence, resulted in decades-long discussion of the possibilities of extending the rules of state liability also to the actions of the legislature. Practical results of nearly forty years of doctrinal controversies in this respect turned out to be modest. Relying on the theory of state liability on the basis of the principle of equality of citizens in respect of public burdens (princip de l’égalité des citoyens devant les charges publiques), the Council of State ruled in 1938, in the La Fleurette case, that the state may be obligated to compensate for losses caused by the actions of the legislature. Compensation may, however, only be awarded if there are no relevant statutory provisions to this effect, since, in accordance with this concept, a court’s decision is only a realization of the alleged intention of the legislator. As the remaining premises of such liability had been developed in an extremely restrictive fashion, during the subsequent seventy years it was only a few times that the courts awarded compensation  on this basis.

State non-liability for legislative actions is reflected most distinctly in the British legal system, as no evidence could be found either in the legislation or in the judicature and in the jurisprudence that would indicate at least attempts at systemic limitation of the absolute immunity in damages of the legislator. There are only examples of regulations which explicitly award compensation to entities which, as a result of specific legislative acts, have suffered loss. Such cases, however, have always been settled subject to the exclusive and unlimited discretion of the parliament.

An analysis of the evolution of opinions concerning the state liability for legislative actions in Germany, France and Great Britain offers several more general conclusions.

First, if the development of contemporary systems of state liability since the end of the 18th century appears to be the process of rejecting legal structures which absolutize the state or the sovereign, this comment pertains, to the largest possible extent, to the legislature. The analysis shows, however, that the question of state liability for legislator actions is not a simple consequence of views concerning the sovereignty of the statute or the sovereignty of the legislature. Three solutions are possible in this respect. Firstly, the rejection of such liability is encouraged by the assumption that the legislator is absolutely sovereign as regards their legislative activity. Therefore, where such a belief was dominant, i.e. in Great Britain, post-revolutionary France or Germany dominated by legal positivism, the issue of such liability was usually not even raised, or even if it was, the possibility of any state liability was definitely rejected. The second solution is applicable when the belief in sovereignty of legislative acts was not formulated in such an absolute fashion. The principle of sovereignty, as evidenced by the functioning of state liability for breach of vested rights, as well as concepts presented during French discussions in the first half of the 20th century, can then be reconciled with the state liability for legislator actions, however, provided that the latter does not undermine the legality of the legislative act as such but only serves compensating for losses caused by such an act. Such liability can be perceived as peculiar self-limitation of the legislator that is always dependent on their decision. Not always does it come from the parliament as such, as both in Germany and in France it was justified in the judicature and the jurisprudence, but in the end it must at least have tacit approval of the legislator. In the third model the conviction of legislator sovereignty is not only diminished but also negated. As a result, theoretical bases are formed for considering the possibility of accepting judicial control of legality (constitutionality) of statutes, and hence also the structure of liability for illegal (unconstitutional) statutes.

Secondly, where the reasoning in terms of unlimited sovereignty of the public authority or at least the legislature dominated, there was no need to quote other arguments for rejecting the state liability for statutes. As a complementary measure, and in principle when the belief about absolute sovereignty of the legislator declined, additional arguments were used (parliament as the “society authority”, member of parliament as “a free representative of the nation”, abstract and general nature of the legal norm, no appropriate legal basis or competent authority in the applicable law). In most cases, at least implicitly, and where it was impossible to reject liability on account of the sovereign nature of the legislature, usually also explicitly, a significant role in this argument was played by the belief about practical difficulties related the state’s assuming liability for statutes: the threat of parliament action being paralysed and threat to the stability of public finance.

Thirdly, both in the case of the German liability for breach of vested rights and the French liability based on the principle of equality of citizens in respect of public burdens, the liability for losses caused by the statutes was eventually realized only when the group of affected entities was limited and small. Hence the occasional comparison of such statutes to individual administrative acts. The comparison is reasonable to the extent that although the norms that led to the loss were abstract and general, as regards their practical consequences, they rather resembled administrative decisions addressed to individual entities and pertaining to specific behaviours.

The findings confirm a strong relation between specific legal system assumptions and regulation of the issue of state liability for legislative actions. As a result of decline of the natural law concepts at the expense of the concepts absolutizing the state authority, the views of state non-liability, in particular for legislative actions, were dogmatized. Rejection of extreme formulae that make the state authority omnipotent, in turn, created favourable conditions for raising the issue of the duty to compensate for losses caused by their operation, including legislative actions. 

Translation from: B. P. Wróblewski, Odpowiedzialność odszkodowawcza za działania ustawodawcy. Kształtowanie się koncepcji i instytucji na tle reguł ogólnych odpowiedzialności państwa do połowy XX wieku, Warszawa 2011, pp. 247-254.
Book typeMonograph
Author Bartłomiej Wróblewski (Wydział Zamiejscowy w Poznaniu)
Bartłomiej Wróblewski,,
- Wydział Zamiejscowy w Poznaniu
Publisher name (outside publisher list) Wydawnictwo C. H. Beck
Publishing place (Publisher address)Warszawa
Issue year2011
Publication size in sheets15.5
Abstract in PolishProblem odpowiedzialności odszkodowawczej państwa za działania ustawodawcy należy do najbardziej spornych kwestii w prawoznawstwie. Autor analizuje kształtowanie się zasad takiej odpowiedzialności na tle ogólnych reguł odpowiedzialności państwa do połowy XX wieku w wiodących europejskich porządkach prawnych: w Niemczech, Francji i Wielkiej Brytanii. Wbrew rozpowszechnionym w nauce prawa przekonaniom w dawnych systemach prawnych niemal zawsze odnajdujemy przynajmniej pewne instytucje odpowiedzialności państwa. Także nieodpowiedzialność za akty prawodawcze nie była niepodważalnym dogmatem, a pytanie o możliwość takiej odpowiedzialności stawiano od czasów średniowiecza. 
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