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Dictionary of the History of Ideas

Studies of Selected Pivotal Ideas

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We seek with law to achieve order through the
governance of men by rules. This reliance upon rules
presupposes that men are responsible in two senses.
First, law governs the conduct of those capable of
understanding the meaning of rules and capable of
making choices guided by this understanding. Law is
not a technique designed to govern the conduct of
those who are not responsible, creatures human and
nonhuman, who lack either the capacity to understand
or the capacity, given understanding, to conform their
conduct to rules. There are rules with respect to those
who are not responsible; there are none designed to
govern them.

Second, law also requires for its existence at least
some individuals disposed to exercise self-restraint,
individuals who are responsible in the sense of caring
for their fellow human beings, caring for the objects
sought to be achieved by law, and thus caring to com-
ply with the rules which exist to realize those objects.
Those who are unwilling, in the absence of threats of
harm, to exercise restraint are the irresponsible, at the
extreme, the psychopaths, and if their number becomes
too great, there is no longer law. In its place are threats
supported by force and relations between individuals
are, perhaps, best describable as those of war. Law
exists, then, only when not all persons are irresponsible,
at least some are responsible; and a substantial number
of those for whom the rules are intended are disposed
to follow the rules for reasons other than fear of harm
if they do not.

At the core of law are rules which, if generally
obeyed, provide benefits for all persons who value such
matters as continuance of life, bodily security, security
of possessions, and predictability. These rules define
spheres within which each person is immune from
interference by others. Connected with these core rules
are others prescribing responses if there is a failure
to comply with rules of the first kind. A failure to
comply typically initiates a process that may be
divided for purposes of analysis into three stages. First,
a charge or complaint is brought. If it is a criminal
action, normally initiated by an authority representing
the state, a charge is levelled that the party before
the court has violated a law. If it is a civil suit, normally
initiated by a private person, there is a complaint of
breach of some duty owed to the injured person. There
is then an inquiry into, among other things, who or
what was responsible for the violation or the breach
with an opportunity provided to answer the charge
or complaint. Second, there is a decision, intimately
connected with the earlier inquiry, that the party be-
fore the tribunal is or is not to be held responsible or,
what is the equivalent in the law, held liable. Third,
the system provides for execution of a judgment of
liability, that is, in a criminal case the exacting of
punishment and in a civil case the order to pay dam-
ages or to do or forbear from doing certain acts.

The concept of legal responsibility is not univocal
in meaning. There are, first, within the law criteria
to differentiate those who are from those who are not
legally responsible persons. Infants, imbeciles, and
psychotics fall into the latter class. Second, responsible
persons are sometimes said to have specific legal re-
sponsibilities such as those imposed upon parents with
respect to providing for their children and guardians
with respect to their wards. These responsibilities are
with respect to the future. Third, the law is concerned
with whether or not a person is responsible for some-
thing that has happened, for example, a burned build-
ing or the death of a human being. And finally, there
is a decision to “hold responsible” or “hold liable” that
is generally, but not always, closely connected with
a finding of individual responsibility for something that
has happened. “Being responsible for” some happening
and “being held liable” particularly require further

What, then, is involved in holding a person legally
liable? First, a decision of legal liability implies the


existence of applicable legal standards or legal rules.
The retaliation by one country, for example, against
another, where there is no recognized international
law, is not a case of legal liability. Second, holding
a party liable implies that the party is appropriately
subject to what is commonly regarded as some depri-
vation or disadvantage. A decision that a party is liable
is, then, incompatible with disregarding the offense or
wrong for which one is held liable, excusing it, or, a
rewarding the party. Third, holding a party
liable is a response justified by some offense or wrong.
Neither preventive measures nor compelled therapy,
divorced as these modes of response are from the idea
of a deprivation justified by some violation or wrong
done, is connected with the idea of liability. Fourth,
holding one liable and the deprivation, essentially
linked to it, are deliberate acts. They are not sponta-
neous responses to some injury suffered. They are to
be contrasted with striking out in anger when we are
struck. Fifth, a decision to hold a particular party
legally liable is a decision made by authorized persons
who hold defined adjudicative roles within the society.
A private person who judges that some wrong has been
done to him and who seeks and achieves revenge
against the alleged wrongdoer is not holding the
wrongdoer legally liable nor punishing because of lia-
bility. The deprivation he visits upon the wrongdoer
is neither grounded on a decision made by authorities
of the system nor within the control of such authorities.

A person's being responsible for some occurrence
is a pervasive requirement in legal systems for holding
the person liable for the occurrence. It is also com-
monly supplemented by a requirement of fault. Each
of these grounds of liability deserves attention.

A person may challenge his being responsible for
some happening in a variety of ways, all of which may
fairly be described as relating, in one way or another,
to the absence of a causal connection between the
individual as a person and the occurrence. A person
may claim that he was not involved at all, and that
it was another who was responsible for the occurrence.
“I was nowhere near the scene of the crime. You have
the wrong man.” This claim may be of no avail if the
law specifically imposes on a class of persons liability
for the conduct of another class, and it was this conduct
that was responsible for the occurrence. The law
sometimes proceeds in this manner with parents and
their children, employers and their employees, owners
and their animals. Second, a person may admit that
his body was involved causally in some injury and deny
that he, as a person was, for he may argue that the
movements of his body were not under his control, or
that he was totally unconscious when the movements
took place. In these cases, in which voluntariness is
absent there is no responsibility. Third, a party may
claim absence of responsibility for some occurrence,
not by denying his part as a person in what came about
but, by denying the claimed causal connection between
his voluntary conduct and the occurrence. Thus, if a
person shoots at what he takes to be a live human being
and the bullet is in fact entering what is a corpse, the
person is not responsible for killing a human being.
Finally, in a situation where the result which has come
about may not have come about except for the indi-
vidual's conduct and still, the result was only remotely
connected with the conduct or it came about too
accidentally or because of the intervening act of an-
other human being, then there is no responsibility for
the occurrence.

Liability is normally grounded on some finding of
fault in addition to a finding of responsibility for some
occurrence. When is there legal fault? First, there is
legal fault provided there is conduct determined to be
a violation of some rule. There is no legal fault if there
is no rule in existence the person is alleged to have
violated. And there is no fault if the conduct falls
within legal definitions of justifiable conduct. Thus, one
may be without fault if acting in self-defense. Second,
there is some culpable state of the person with respect
to the conduct. The culpable states typically made
relevant by law are intentionally doing, knowingly
doing, doing in conscious disregard of risk, and doing
without taking care. There is no fault if none of these
conditions are satisfied. Neither ignorance of the legal
proscription, however, nor the commendability of one's
motives is generally made relevant to legal fault. Third,
fault is absent or, at least, diminished if a person lacks
ability to appreciate the significance of what he is
doing or the ability to conform his conduct to the rules.
Thus, some impairment in one's control over conduct,
due to provocation or to mental illness or drugs or
alcohol, may lead either to a conclusion there was no
fault or that its degree is less than it would be had
the condition not been present.

All legal systems include principles of liability that
are exceptions to the generalization that legal liability
is grounded on a finding of responsibility and fault.
First, questions of causation may sometimes be irrele-
vant to the issue of liability because a wrong is not
defined in terms of causing or bringing about a result.
This is so, for example, in the criminal law governing
attempts, conspiracy, and possession of narcotics. Sec-
ond, conduct prohibited by law may involve injury to
others but a person may be held liable who is not
responsible in a causal sense for the harm. This is so
with vicarious liability where the basis for liability is
one's relation to another who was causally responsible
for some harm. Third, within both the civil and crimi-


nal law there are rules permitting liability without
fault. This is so, for example, when there is objective
liability, that is, where a standard is employed to de-
termine the existence of fault which makes irrelevant
the actual fault of the person charged with an offense.
His testimony, for example, on his actual state of mind
will be treated as irrelevant. There may also be an
absence of fault in cases of vicarious liability. And
finally, there are those cases of strict or absolute liabil-
ity in which the definition of the offense or wrong
obviates inquiry into fault, even fault tested by objec-
tive standards.

We have before us now a sketch of a familiar and
complicated system of liability. But, of course, such
a system is the product of a long evolution. In the
earliest period injury of one person by another meets
with an attempt at retaliation. Primitive conduct that
first suggests the concept of liability arises when a
member of one kin group injures a member of another
kin group, and there is an accepted alternative to
retaliation. The vengeance desired by the injured party
and his kin may be bought off. With time and the
growing desire for peace vengeance ceases to be a
recognized option; there must be acceptance of the
offer to buy off the vengeance. The idea of composition
is introduced. It is an agreed upon amount, usually
definitely fixed, depending upon the injury done, which
quiets the feelings and dissolves the need for returning
injury with injury. Soon composition is determined not
by what it takes to buy off the vengeance but by the
injury done; and the idea of compensation comes into

For primitive societies, punishment, with its con-
demnatory connotation, is a response reserved for
injury done to a member of the same group; for cases
where there is no discernible injury, but some wrong
done, such as incest; and for cases where there is a
developed sense of the impropriety of accepting some
material benefit for offense done.

Primitive modes of response to wrongdoing which
differ from those of more developed societies may be
accounted for by three pervasive characteristics of
primitive culture: belief in unity of nature, belief in
unity of the individual and the group, and focus on
the physically observable. First, then, divisions between
men and the rest of nature, pronounced in our own
way of looking at the world, assume little significance
in primitive societies. If there is some disaster, caused
not by man but by some natural force, this may be
looked upon as a punishment for transgression. But
nature does not only mete out punishment; it is thought
to justifiably receive it. So, a tree which has fallen on
a man may be destroyed in a ritual of punishment.
Second, the dominant primitive conceptions are not
of individual but of collective responsibility and liabil-
ity. When an individual acts, it is the group acting,
the group that is responsible, and it is the group that
is held liable for the damage that has been done. Third,
the familiar distinction between what a man does and
the mental state with which he does it, gives way to
a focus on the harm done despite the state of mind
of the actor. The primary impulse is to repair injury
and not the assessment of fault.

Ezekiel's words: “... the righteousness of the right-
eous shall be upon him, and the wickedness of the
wicked shall be upon him” (18:20) signals a revolution
in ways of conceiving responsibility. There have been
few such periods in human history. There is evidence
that the twentieth century is one such period. Serious
doubt exists whether or not the law is responding to
men as it ought. The future promises a confrontation
between opposing ideologies on the subject of legal
responsibility. The doctrine of legal liability, particu-
larly in the criminal law, is more than ever before,
under attack. There is, first, a serious doubt, one long
with us, about the morality of punishment. Develop-
ments in the behavioral sciences lead some to believe
that no one is guilty, that fault is an outmoded concept
that does not apply to men as they are, that holding
persons liable and punishing them are outmoded re-
sponses appropriate for an earlier era when we knew
less than we now do, and that rationality suggests
prevention and cure and not punishment. Second, con-
clusions similar to these may be reached through skep-
ticism. A system of liability connected with findings
of fault presupposes that we can make justifiable claims
about the state of mind of another, and this some deny
on philosophical grounds or simply on grounds of the
difficulty in coming by reliable evidence, particularly
when the inquiry relates to a state of mind accompa-
nying past conduct. There are, third, doubts about the
efficacy of punishment. Some believe that punishment
hardly serves to reduce wrongdoing but only increases

There are, then, powerful assaults on the concept
of individual responsibility. They leave us with difficult
questions. Is it possible for men to give up the idea
of individual fault or responsibility? If the criminal law
as we now understand it should disappear and in its
place there were to be a system of social control scru-
pulously avoiding judgments of fault and responsibility,
would we be better or worse off? There are those who
argue forcefully that were this to come about we would
lose much that we value in human freedom and much
that we value in being viewed by others as responsible
creatures, capable of wrongdoing and worthy of being
responded to as wrongdoers, and not animals or sick



A. S. Diamond, Primitive Law (London, 1935). P. Faucon-
net, La Responsabilité (Paris, 1920). C. J. Friedrich, ed.,
Responsibility (New York, 1960). H. L. A. Hart and A.
Honoré, Causation in the Law (Oxford, 1959). H. L. A. Hart,
Punishment and Responsibility (Oxford, 1968). E. A. Hoebel,
The Law of Primitive Man (Cambridge, Mass., 1954). O. W.
Holmes, The Common Law (Boston, 1881). W. Moberly,
Responsibility (Oxford, 1951). H. Morris, ed., Freedom and
(Stanford, 1961). R. Pound, An Introduction
to the Philosophy of Law
(New Haven, 1922), pp. 144-90.
G. de Tarde, Penal Philosophy (Boston, 1912). B. Wootton,
Crime and the Criminal Law (London, 1963).


[See also Civil Disobedience; Freedom, Legal Concept of;
Law, Common; Legal Precedent.]