Nils Jansen, ‘The Idea of Legal Responsibility’

The article analyses and reconstructs a broad idea of legal responsibility which underlies and normatively links tort law with the law of unjustified enrichment. The article’s central proposition is that responsibility for damage caused and enrichment-responsibility are closely interrelated. Both aspects of obligations are equally an expression of corrective justice, and ultimately serve to protect the civil rights of citizens. It is shown that the idea of civil equality and the principle against unjustified enrichment require citizens to assume responsibility not only for the consequences of their misbehaviour, but also for the consequences of lawful actions that non-reciprocally endanger the rights of others. This can be seen particularly clearly in cases of necessity like Vincent v Lake Erie. Under current law, those cases fall in between the categories of unjustified enrichment and wrongs; in most legal systems, they are therefore regarded as particularly hard cases. Nevertheless, the liability of a person lawfully causing damage in a situation of necessity exemplifies the idea of legal responsibility, and thus helps in better understanding the law of non-contractual obligations. Methodologically, the article combines historical arguments derived from the late scholastic theory of restitution with a comparative analysis of Western legal systems and contemporary private law theory. This approach is designed to overcome the conceptual boundaries of national private laws on both sides of the English Channel; it may help to address difficult legal problems more appropriately.

Nils Jansen, The Idea of Legal Responsibility. Oxford Journal of Legal Studies, Summer 2014, 34(2) 221-252, doi: 10.1093/ojls/gqt031.

First posted 2014-05-26 12:59:03

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