From Ex Post Liability to Ex Ante Obligation: An Analysis of the Legal Nature of Governmental Duties in the Prevention and Mitigation of Damages Caused by Unforeseeable Incidents in Iranian and United States Law

Abstract

Social developments and the expansion of the State’s role in managing public risks have moved governmental responsibility for unforeseen incidents beyond the traditional framework of force majeure and transformed it into a legal issue with ex ante and institutional dimensions. The central question addressed in this study is whether the omission of the State’s preventive obligations in the face of foreseeable risks can constitute a basis for civil liability, and how such liability has been conceptualized in different legal systems. Focusing on the legal systems of Iran and the United States, this article examines the issue in light of the evolution of tort liability concepts, the limitation of sovereign immunity, and the institutionalization of prevention. The findings indicate that in United States law, the State’s ex ante obligations have gradually evolved from the realm of administrative policymaking into legally assessable standards, and preventive omissions, under specific conditions, have been recognized as a breach of the public duty of care. By contrast, in Iranian law, despite the existence of jurisprudential foundations and constitutional principles aimed at protecting the life and property of citizens, the predominance of an ex post approach, ambiguity in liability standards, and judicial caution have hindered the effective linkage between prevention and governmental civil liability. The comparative analysis suggests that although the United States experience is not entirely replicable, it may provide a basis for the gradual redefinition of governmental liability in Iranian law on the foundation of ex ante obligations and the legal management of risk. Employing a descriptive–analytical method and a comparative approach, this study seeks to develop a conceptual framework for the transition from a purely compensatory model of liability toward a forward-looking form of responsibility aligned with the requirements of the contemporary State.