Private Law Theory

ABSTRACT
Traditional human rights law operates on a foundational assumption: a rights violation implies an identifiable violator. Torture has a torturer. Arbitrary detention has a detaining authority. Discrimination has a discriminator. Accountability follows the chain of causation. This paper argues that contemporary governance has disrupted this assumption. In fragmented, multi-agency systems – where authority is distributed, information is siloed, and no single actor controls the entire rights pathway – rights can fail systematically even when no individual institution’s conduct appears sufficient, by itself, to explain the failure. This produces an accountability paradox: the coexistence of two propositions that appear incompatible: (1) the state remains legally responsible for the rights failure; (2) no single institution can be readily identified as the primary site of operational accountability. Responsibility exists, yet operational accountability cannot be readily located. The paper distinguishes between formal state responsibility and operational accountability. The paper argues that contemporary human rights law possesses sophisticated doctrines for attributing state responsibility but lacks an equivalent framework for locating operational accountability within distributed governance systems. The Accountability Paradox identifies this gap and provides a conceptual framework for diagnosing it. The paper introduces the Accountability Gap Trianglea visual model identifying the conditions under which the paradox emerges: harm, distributed governance, and the absence of readily identifiable operational accountability. (The 2 Dissolution Chain and Distributed Accountability Test are secondary applications.) The paper provides a rigorous analysis of why existing doctrines (positive obligations, structural injustice, collective responsibility, due diligence, institutional responsibility, administrative burden, the ‘problem of many hands’, and general accountability theory) are insufficient. It includes a negative counterexample to clarify the concept’s boundaries, addresses strong counterarguments, deepens jurisprudential engagement (including Iris Marion Young’s distinction between liability and social connection responsibility, and Mark Bovens’s accountability framework), and spells out the human rights consequences. State responsibility answers who is legally responsible. The Accountability Paradox answers where operational accountability cannot be readily located. Usable Rights explains why rights fail in the administrative state; The Accountability Paradox explains why operational accountability fails when those rights collapse.

Anwar, Tahera, The Accountability Paradox: Operational Accountability Beyond the Violator Model (June 11, 2026).