Constitution, Society, and Leadership Week 9 Unit 3 Concepts 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 3

 Point: “A person caused harm” is a vague concept  Moral responsibility usually means  Directly caused  Caused by neglect  Caused by influence over another 4

 Legal responsibility usually also includes  Vicarious liability Vicarious liability  Strict 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 5

 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” 6

 “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 7

 “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 8

 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 9

 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 10

 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 it  Ascription v. Description  Answer: Jones did it ▪ Ascriptive: Who did it? ▪ Descriptive: What did Jones do? 11

 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 12

 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 13

 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 9 Unit 3 Concepts of Justice: Responsibility in General 15