Responsibility and the negligence standard

Oxford Journal of Legal Studies

Volumn 30, Issue 1, 2010, Pages 1-18

  Raz, Joseph ^a  

^a Och Spine at New York Presbyterian Hospitals   (United States)

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EID: 77955290571     PISSN: 01436503     EISSN: 14643820     Source Type: Journal    
DOI: 10.1093/ojls/gqq002     Document Type: Article

References (56)

1. This paper was delivered as the HLA Hart Memorial Lecture 2009 on 26 May 2009 at the University of Oxford
2. See Punishment and Responsibilty (OUP, Oxford 1968)
3. Especially in T Honoré, Responsibility and Fault (Hart Publishing, Oxford 1999).
4. WN Hohfeld, Fundamental Legal Conceptions (Yale UP, New Haven 1919) 50ff, esp. 58-9.
5. Hart was right (see n 1, 215-6) to correct his earlier (see ch 8) mistake in thinking that in one of its senses responsibility is virtually identical with liability, and also right in criticizing other legal writers for taking this view. It is a pity that some writers still attribute to him the view that liability is one 'type' of responsibility.
6. See, eg, P Cane, Responsibility in Law and Morality (Hart Publishing, Oxford 2002) 29
7. Hart (n 1) 227
8. 'Control of conduct' is not strictly part of our rational capacities. It is however, as will be explained below, necessary for these capacities to be manifested in action in all but mental acts.
9. See generally my 'On the Guise of the Good', in S Tenenbaum (ed) Desire, Practical Reason, and the Good (OUP, Oxford 2010) 190.
10. Capacity-responsibility, as well as the concept of responsibility that I will discuss today, allow of degrees. To simplify I will not consider the implications of that fact. I will assume that below a certain level (probably to be only vaguely identified) one simply lacks capacity responsibility, and as a result is not responsible for one's actions. Those who possess (that minimum degree of) capacity responsibility are responsible for an action if and only if the conditions of responsibility discussed here apply to them, i.e. if their responsibility for the actions passes a threshold condition.
11. Hart talks of role-responsibility, but the duty need not depend on any specific role.
12. See Hart (n 1) 212-4.
13. For an explanation of my personalization of the law, see Between Authority and Interpretation (OUP, Oxford 2009).
14. Derivative reasons are, typically, instrumental or constitutive reasons. For example, I may have a reason to take the train to Oxford, and also a reason to take the bus there, both deriving from my reason to be there (say because I promised to give a lecture). If I take the bus I no longer have a reason to take the train. Taking the bus was a way of getting there, taking the train an alternative way to the same end. Failing to follow a derivative reason has no consequences, provided one took an alternative (adequate) route to the same goal. But if one fails to get to Oxford then one ought to do something in mitigation or compensation for this failure.
15. The Control Principle says that we are morally responsible for X only if X is under our rational control, or if we are responsible only because, and to the extent that X has aspects which are under our rational control. It is often identified implicitly with the Intention Principle namely that one is responsible for one's intentional actions, and for their intended or foreseen consequences. I have argued elsewhere that the two differ in significant respects. Cf my 'Being in The World: The Limits of Responsibility' (RATIO, forthcoming). I should add that advocates of the Control Principle often assume an understanding of control which differs from the one incorporated in the Guidance Principle, and which differs (though I will not argue the point here) from the common understanding of control.
16. For example, New Zealand has abolished tort liability for personal injury, but negligently injuring someone is certainly still a moral wrong. There could also be cases of piecemeal rejection of such liability, by raising the standard of care required by law above the moral standard, or by implementing a different regime of liability for some harms (as in the law of strict liability and of product liability).
17. (1868) LR 3 HL 330
18. See eg the explantion that part of the basis for strict liability is 'the ultimate idea of rectifying a wrong and putting the burden where it should belong as a matter of abstract justice, that is, upon the one of the two innocent parties whose acts instigated or made the harm possible' Siegler v Kuhlman 81 Wash 2d 448 (1972) 455-6 (emphasis added).
19. John Gardner: 'The truth is that when the law imposes strict liability on D for actions of D's that injured P, it asserts that D had (and failed to perform) a straightforward obligation not to injure P.'
20. 'Obligations and Outcomes in the Law of Torts' in P Cane and J Gardner (eds) Relating to Responsibility: Essays for Tony Honoré on his Eightieth Birthday (Hart Publishing, Oxford 2001) 113.
21. Alan Brudner also thinks that strict liability to compensate derives from a prior duty: The Unity of the Common Law (University of California Press, Berkeley 1995) 190. His variant is effectively criticized by Gardner.
22. Honoré,inMaking Law Bind (Clarendon Press, Oxford 1987) 71.
23. Doubts that there is in such cases a legal duty of care, and it is natural to think that if he is right there is no legal duty to prevent harm either.
24. Gardner (n 14) especially at 134-41.
25. Gardner would perhaps take issue with this characterization of the obligation to try: according to Gardner, it is not correct to think of an obligation to try as another kind of obligation to succeed: 'If some people do not perform their obligation to take care however hard they try, this does not go to show that it is not an obligation to try. It only goes to show that it is an obligation to try harder (more assiduously) than they are capable of trying.'
26. Though in some cases the difference between trying to φ and failing to φ and trying to φ and failing to try to φ disappears, just as on occasion failure to try reduces to 'not trying hard enough', which concedes that one is trying.
27. One cannot shortcut the argument by claiming that one has a right not to be harmed, or that one's property not be damaged, and therefore there is a duty not to harm or not to damage other people's property. Had there been a general right of that kind it would have made sense to think that strict liability arises when people invade the right but are not responsible for invading it. However, there is no general right not to be harmed. Establishing which rights we have goes hand in hand with establishing what duties we owe. That is the way I consider the matter in the text above.
28. It appears that Cane (n 4, 3) really regards liability in negligence as similar in the respects analysed above, to strict liability, though his analysis of responsibility (which neither isolates nor focuses on the sense of responsibility I am investigating) may disguise the fact.
29. It can be difficult to establish what writers on the subject think about this question. Many writers argue that individuals are responsible for negligently caused harm, but do not use 'responsible' in the sense I use it. Some writers use it to mean roughly the same thing as 'liable', with no implications for the characterization of the conduct outside the law. For example, Stephen Perry argues that responsibility in tort law hinges on the individual's ability to avoid causing harm. The obligation to compensate is normally triggered by fault (except in cases of strict liability), but responsibility itself is a stricter concept, and we are not always responsible only for harm we could have avoided.
30. See Perry 'Responsibility for Outcomes, Risk, and the Law of Torts' in Gerald J Postema (ed) Philosophy and the Law of Torts (CUP, Cambridge 2001) 91.
31. I discussed this point in 'Numbers, With and Without Contractualism' (2003) 16 RATIO 346-67, 348-52.
32. Reprinted in P. Stratton-Lake (ed) On What We Owe to Each Other (Blackwell Publishing, Oxford 2004).
33. 'Personal Practical Conflict' in P Baumann and M Betzler (eds) Practical Conflict (CUP, Cambridge 2004).
34. where I argued that outside the law the duty to compensate for a wrong one did is nothing more than the duty not to do the wrong. Institutional legal considerations generally make enforcement of such duties subject to judicial decision, and sometimes make the very recognition of their existence as legally binding duties subject to such decisions.
35. Though sometimes it has desirable consequences as well, and sometimes they predominate.
36. The phenomenon adverted to here exists regarding intentional actions as well. I refer here to its application to negligence merely because I am discussing negligence, and not to imply that it is special to negligence.
37. Honoré, Responsibility and Fault (Hart Publishing, Oxford 1999).
38. They have been refuted as explanations of negligence as we understand it. They can be advanced as alternatives to our concept of negligence. But the case for that depends on the failure of explanations of responsibility to deny that the Guidance Principle constitutes a necessary condition for responsibility, a question to be discussed in the rest of this article.
39. Notable exceptions are Enoch and Marmor, who argue that responsibility for negligence is consistent with the Control Principle, mainly on the ground that liability for negligent harm does not presuppose responsibility for the harm. In their view it only presupposes responsibility for the conduct that caused it.
40. See David Enoch and Andrei armor, 'The Case Against Moral Luck' (2007) 26 L & Phil 405-36, 413.
41. John Goldberg and Benjamin Zipursky also see negligence law's apparent insensitivity to luck as an issue that a comprehensive theory of negligence should address, although their primary concern is different from Enoch and Marmor's. For Goldberg and Zipursky, the most troubling area of luck in tort law concerns 'actors who seem not to have behaved wrongfully in a full-blooded sense but nevertheless face liability for injuries they have caused. Often enough, an actor causes harm despite diligent efforts to comply with a standard of conduct'.
42. see JCP Goldberg and BC Zipursky, 'Tort Law and Moral Luck' (2007) 92 Cornell Law Review 1123-76, 1143.
43. This seems to be the view of Cane (n 4).
44. Also Arthur Ripstein 'Equality, Luck, and Responsibility' (1994) 23 Phil Pub Affairs, 3-23, 13 (though his particular argument that liability in negligence is required if the law is to treat people as equal 'protecting them each from the activities of the others, and leaving each with room to pursue his or her own purposes' is fallacious).
45. Honoré does not indicate whether there are any limits to the outcomes for which one is responsible. John Gardner remarked that Honoré does not distinguish between outcomes which are constitutive of the action, being the state it is defined as bringing about, and outcomes which are the consequences of the constitutive outcomes. See Gardner (n 14) 130. von Wright usefully draw this distinction using 'results' and 'consequences' to mark it.
46. See GH von Wright, 'On the Logic of Norms and Actions' in Philosophical Papers (Vol. 1 Basil Blackwell, Oxford 1983)107.
47. Presumably Honoré means results, including the results of actions which are the bringing about of the outcome.
48. I consider some aspects of blameworthiness in 'Agency and Luck' Unpublished, available on SSRN last accessed 22 January 2010.
49. A couple of points to note: (1) If this is principle is sound then principles of derivative responsibility can make responsibility depend on a duty or other normative condition, while basic principles cannot. (2) The example assumes that B (causing an accident) involves actions subsequent to A (driving), but the principle applies more generally to cases in which that is not so.
50. See 'Being in the World' (n 10).
51. For lack of a better term, I use 'omitting to A' to mean 'not doing A'.
52. B Williams, 'Moral Luck' in Moral Luck (CUP, Cambridge 1982) 20-39.
53. R Adams, 'Involuntary Sins' (1985) 94 Phil Rev 3-31.
54. J Raz, 'Agency and Luck' (n 29) and 'Being in the World' (n 10).
55. 'Being in the World' (n 10)
56. An important aspect of the explanation of responsibility offered here is that one may have to look closely at the background of an action for which the agent is responsible to establish the grounds of the responsibility: Suppose one fails to act as one has a duty to do (let us say to check that one's baby child is sleeping safely) through momentary laspse of memory. In that case one is responsible for the omission because it is due to a malfunction of one's power of rational agency. Imagine, however, that one fails in one's duty because of feelings of hate and resentment towards the baby. In that case one's omission is not due to a malfunctioning of one's rational faculties. It is, however, intentional, and one is responsible for it according to the Guidance Principle, which is an aspect of the Principle of Rational Functioning. Suppose, however, that the parent is merely ignorant of a duty to check on the baby. In that case the omission is neither due to a malfunction of the parent's powers, nor is it intentional. Is he not responsible? That would depend on whether not being aware of the duty is due to a malfunction of the parent's powers of agency. If the parent has normal competence and he lives in a society in which such duty is widely understood then he would be responsible (derivatively) for not checking on the baby's condition. He will be responsible for the ignorance (which is due to a malfunction of his rational powers) and derivatively responsible for the omission which arises out of that malfunction. If, however, the parent is disabled (has limited mental powers) then he will not be responsible, for the omission will not be due to a malfunction of his powers. The same is true if he lives in an environment in which the duty is not generally understood and recognized. I am grateful to Jane Stapleton for bringing the example to my attention.