Constitution, Society, and Leadership

Week 9 Unit 3Concepts of Justice:

Responsibility in General

Christopher Dreisbach, Ph.D.Johns Hopkins University

Retributive Justice usually involves Someone who has done wrong Some legal action to right that wrong

Usually to say someone has done wrong in a way that calls for retributive justice Is to say that person was responsible for

the wrong that he or she did But what does responsibility mean in

this case?2

This unit looks at three answers to that question H. L. Hart and A. M. Honoré, Causation

and Responsibility Joel Feinberg, Action and Responsibility Tony Honoré, Responsibility and Luck:

The Moral Basis of Strict Liability

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Point: “A person caused harm” is a vague concept

Moral responsibility usually means Directly caused Caused by neglect Caused by influence over another

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Legal responsibility usually also includes Vicarious liability Strict liability

Therefore, the legal view of responsibility is wider than the moral view With moral grounds being one subset of

possible reasons for finding someone legally responsible

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Point: No clear answer to the debate: full-fledged human action v. mere bodily movement But some considerations worth noting

Defeasible v. nondefeasible claims Defeasible=legal claims that could be

defeated▪ A prima facie case▪ “Can be established by sufficient evidence”▪ “Can be overthron only by rebutting evidence”

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“The notion of defeasibility is inextricably tied up with an adversary system of litigation and its complex rules governing the sufficiency and insufficiency of legal claims…”

An excuse or a justification can be defeating

Nondefeasible, e.g.: He drove dangerously, he dropped the ball, he spoke falsely Vs. he drove recklessly, he fumbled the ball, he

lied▪ These claims can be defeated

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“The distinct feature of the defeasible ascriptions is that they express a blame over and beyond the mere defectiveness of the ascribed action”

Three types of defeasible faults Defective skill/ability, e.g., “fumble” Defective/improper care, e.g., negligence Improper intention, e.g., lying

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Three stages in response to a faulty performance Note defective act Charge with defeasible act Record and put to use, e.g., ascription of

liability

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Five possible meanings of ascription of responsibility “Straightforward ascriptions of

causality”▪ E.g., Peter opened the door

“Ascription of causal agency”▪ E.g., Peter opened the door, causing Paul to

jump “Ascription of single agency”▪ E.g., Peter’s finger moved

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Imputations of fault▪ E.g., Peter is the only one to blame

Ascription of liability▪ E.g., Peter will take the hit regardless of who

did itAscription v. Description

Answer: Jones did it▪ Ascriptive: Who did it?▪ Descriptive: What did Jones do?

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Point: “being responsible in law and in ordinary life is not the same as being at fault or to blame”

The Argument An objective standard of competence▪ Not based wholly on fault▪ But a form of strict liability▪ “To justify strict liability we must first show

why people should sometimes bear the risk of bad luck”▪ E.g., stupid or clumsy

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Outcome responsibility: “To bear the risk of bad luck is inherent in the basic form of responsibility in any society”▪ O.R.=“Being responsible for the good and harm

we bring about by what we do”▪ Involves “a series of bets on our choices and

their outcomes▪ O.R. is “inescapable because it is the counterpart

of our personal identity and character”▪ Being a person entails O.R. ▪ O.R. is more foundational than moral or legal

responsibility

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O.R. “can fairly be imposed only on those who possess a general capacity for decision and action▪ Fault: One “must have besides a general

capacity for decision and action, the ability to succeed most of the time in doing the sort of thing that would on that occasion have averted the harm”▪ Strict liability: one must simply have the

general capacity▪ “Attaches to us by virtue of our conduct and its

outcome alone, irrespective of fault”14

Week 9Unit 3Concepts of Justice:Responsibility in General

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