Abstract:
The paper presents a broad conception of legal responsibility that is based on legal, rather than theological or moral, arguments. The central proposition is that responsibility rests on the necessity to protect the rights of citizens in a way that is acceptable for every member of society. Responsibility secures the equality between private citizens and is thus an expression of corrective justice.
The idea of responsibility presented in the present paper is not limited to the field of tort law. In contrast to what is commonly assumed, there is no clear-cut separation between agency- and enrichment-responsibility, or between tort law and the law of unjustified enrichment. On the basis of arguments that were originally developed in the context of the scholastic theory of restitution but are not anymore a specific expression of this tradition, it is shown that agency- and enrichment-responsibility are normatively interrelated. In particular, strict liability can be explained as a means of correcting unjustified inequalities resulting from a non-reciprocal distribution of risks among citizens: the idea of civil equality and the principle against unjustified enrichment require citizens to assume responsibility not only for the consequences of their fault, but also for the consequences of actions that non-reciprocally endanger the rights of other citizens. It follows that strict responsibility is an intellectually coherent concept and may often be highly appropriate.
Jansen, Nils, Why Answer? – the Legal Foundations of Legal Responsibility (June 24, 2011). Moral Values and Private Law, Irit Samet, Sandy Steel, eds., 2011, Forthcoming .
First posted 2011-09-03 13:06:42
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