Constitutional Tort Liability and the Prudent Legislature

In 2006, the Belgian Court of Cassation laid down the liability of the Belgian State for loss and damages caused by a fault for which the legislature can be held responsible. This is the next step in the evolution of State liability, which had been triggered earlier by European Court of Justice case law in the case of a violation of European Union law. In this paper it is argued that objections against State liability for the legislature are mainly arguments against constitutional review. Once constitutional review is accepted in a legal system, the case for State liability for the legislature rests on the rule of law and corrective justice. Considering the specific nature of statutes, restrictions to State liability are acceptable, but only in so far as there is an actual danger of disproportionate harm. The Belgian courts, when dealing with State liability for the legislature, do not directly review against a standard of care, but a standard of care is nevertheless incorporated in the review against constitutional rules and principles.