ABSTRACT
This paper argues that the German-originated doctrine of permitted risk (erlaubtes Risiko) – historically the theoretical basis for individualizing negligence liability in traffic accidents – contains a structural asymmetry: society has tolerated the existence of risk from motor vehicle use for the sake of its own benefit, while the burden of that risk’s realization has been assigned almost exclusively to individual drivers. This asymmetry, sustained by the practical convenience of fault-based liability and reinforced by psychological and sociological mechanisms of individualizing blame, becomes untenable once autonomous driving systems remove the driver’s judgment from the causal chain. The paper proposes reconstructing autonomous-driving accidents as an extra-statutory ground of justification, with liability shifting to the public authorities that approve and supervise the technology, funded through a manufacturer-contribution scheme modeled on nuclear damage compensation. It situates this proposal within existing scholarship on the distribution of risk in negligence theory and on the ‘vacancy of attribution’ in autonomous-vehicle liability debates.
Ito, Keiichi, Reconstructing the Doctrine of Permitted Risk in the Age of Autonomous Driving A Case for Shifting Liability to Public Authorities (September 5, 2026).
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