Innovation technologique, incertitudes et responsabilités

At a 2010 meeting in Grenoble, France, the idea emerged to build an international network of researchers interested in the difficulties posed in the law of civil liability by uncertainties and risks inherent in contemporary science and technology. Teams from McGill University and the University of Grenoble initiated the project and established a network of European and North American academics interested in analyzing the relationship between the law of civil liability and science and technology. Traditionally, civil liability is a reparation mechanism grounded on wrongdoing. However, from the end of the nineteenth century, the field of civil liability began to undergo transformations in response to accidents tied to emerging technologies—initially developments in transportation and industrialization—for which proof of negligence was often difficult to establish or for which the causal link to the accident remained complex or unknown. Throughout the modern era, science and civil liability have become closely intertwined due to risks tied to innovative technologies, and each discipline has informed the other. Science’s rational analysis has contributed certainty to legal decision-making both inside and outside of courtrooms. Civil liability’s corresponding contribution to science, however, has traditionally been limited to questions surrounding accidents arising within the ambit of technological risks which are scientifically known, or at least knowable. Twenty-first century civil liability law is now grappling with the possibility of expanding this scope to also consider uncertain risks and to offer protection to individuals against this type of uncertainty. This question is beginning to emerge simultaneously within legal, normative, and conceptual orders. Courts are increasingly confronted with litigation grounded in real or alleged risks—litigation that questions or even contradicts scientific findings. This situation now commonly arises in cases involving health products, industrial accidents, damage brought about by the dissemination of genetically modified organisms, and risks posed by electromagnetic waves or nuclear energy. There now appears to be an entrenched tension between responsibility and science in the context of technological risks, and this tension has guided the evolution and transformation of civil liability. The essence of the research project that led to the articles that appear in this issue is precisely this legal evolution and transformation. The project aimed to examine the role that civil liability plays—and that it can or should play—in the face of uncertainty in governing the allocation of modern technological risks and compensation for damage tied to those risks. The junction of civil liability and science and technology gives rise to questions about law’s understanding of risk and uncertainty across contemporary legal systems, as well as between the two predominant legal traditions—civil law and the common law. Creating an international network of researchers therefore made it possible to design a research project capable of exploring these questions from a global perspective. The first phase of the research project took the form of an international research seminar held at McGill University’s Faculty of Law in July 2012. This special issue of the McGill Law Journal now makes seven of the contributions presented during the meeting available to a wider audience. Les grands thèmes ayant structuré cette réflexion sont les suivants : l’impact de l’évolution scientifique sur l’évolution juridique; la confrontation des approches juridiques et scientifiques de concepts communs (causalité, imputation, état des connaissances, précaution); et les évolutions du droit de la responsabilité vers un droit de l’indemnisation. Certains textes constituent donc des approches globales des relations entre les sciences et technologies et le droit. Le texte de Vincent Forray analyse l’effet de l’incertitude sur le droit de la responsabilité, prenant la forme d’une perturbation de ses discours théoriques, incluant une rupture de son unité conceptuelle. Il suggère une …