Christopher Dreisbach, Ph.D. Johns Hopkins University

1. Constitution, Society, and LeadershipWeek 9 Unit 3Concepts of Justice:Responsibility in General Christopher Dreisbach, Ph.D. Johns Hopkins University

2. Responsibility in General-iUnit Overview-i • 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?

3. Responsibility in General-iiUnit Overview-ii • 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

4. Responsibility in General-iiiHart and Honoré-i • Point: “A person caused harm” is a vague concept • Moral responsibility usually means • Directly caused • Caused by neglect • Caused by influence over another

5. Responsibility in General-ivHart and Honoré-ii • 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

6. Responsibility in General-vFeinberg-i • 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”

7. Responsibility in General-viFeinberg-ii • “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

8. Responsibility in General-viiFeinberg-iii • “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

9. Responsibility in General-viiiFeinberg-iv • 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

10. Responsibility in General-ixFeinberg-v • 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

11. Responsibility in General-xFeinberg-vi • 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?

12. Responsibility in General-xiHonoré-i • 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

13. Responsibility in General-xiiHonoré-ii • 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

14. Responsibility in General-xiiiHonoré-iii • 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”

15. Week 9 Unit 3 Concepts of Justice: Responsibility in General Constitution, Society, and Leadership