A Breath of Determinism: Free Will and Tort Law in Fin de Siècle Legal Scholarship

This article situates Franco-Belgian tort law scholarship at the fin de siècle within the broader debate on free will, moral responsibility, and determinism. While positivism’s impact on penal law is well-documented, its influence on private law has been notably overlooked. It is argued that the emergence of risk theory was not merely a pragmatic response to industrialisation, but a compatibilist engagement with the prevailing ‘breath of determinism’ that challenged the status quo in tort law scholarship. Central to this transition was Raymond Saleilles (1855-1912), who drew upon Gabriel Tarde’s insights to reconcile human behaviour – shaped by internal dispositions and social forces – with personal attribution. By advancing a ‘causalisation of the will’, Saleilles reconfigured rather than discarded the classical spiritualistic, or libertarian, fault principle. This conceptual shift redefined legal attribution in causal terms, allowing it to remain compatible with a deterministic understanding of human agency.