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Tort liability without taking responsibility

A challenge to David Enoch’s idea of taking tort liability
Maciej Juzaszek

Abstracts

If someone denied the existence of resultant moral luck, s/he would probably argue that the no-fault compensation system is fairer than a standard account of tort liability. Agents are not responsible for the consequences and harms they cause but only for the risks they create. David Enoch recently argued that such an approach lacks personal liability taken on by agents. For him, taking responsibility is an exercise of normative power based on the specific role of an agent living and acting in the real world. Enoch claims that agents not only may but even ought to take responsibility for things for which they were not responsible per se. I believe that Enoch’s position is incoherent and taking responsibility is irrelevant for tort liability. First, I claim that the obligation to take responsibility is unfair because the agent obligated to take responsibility for the consequences of their actions is still under the influence of moral luck. In this case specifically, they are under circumstantial moral luck, which determines the kind of dilemmas and situations the agent faces. Therefore, if one takes responsibility for the consequences of their actions, s/he is responsible for them. But if s/he does not take responsibility for the consequences of his or her actions, s/he is still responsible for failing to comply with the obligation to take responsibility. This responsibility cannot be escaped - it is like a moral trap. Second, tort liability is not about taking responsibility based on one’s own decision. It is about imposing legal liability on meeting the conditions set by hypological legal norms (i.e. norms determining issues of responsibility). Leaving this at the discretion of the offender may lead to a violation of the victim's rights and denial of the basic functions of tort law.

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1 Introduction

  • 1 See Schuck 2008.

1At the beginning of the 1970s, New Zealand radically changed its system of tort law. Following the suggestions of the Woodhouse Commission, the government extended the no-fault compensation system from workplace accidents to almost all accidental, personal injuries (before it covered only those that were work-related). The no-fault system provides compensation from a public fund without the need to prove that any other party was at fault in the accident. The party who caused the harm does not bear any tort liability, although they still may be held criminally liable for their acts. In New Zealand, a person who suffered personal harm does not have to file a claim against the tortfeasor. Instead, they can apply for compensation to a state agency, the Accident Compensation Corporation (ACC), whose budget comes both from mandatory levies and general revenues. ACC covers hospital and medical costs, wage replacement at a rate of 80% of average weekly earnings, rehabilitation and transportation costs, and compensation for impairment.1

  • 2 This is what Enoch (2015: 250) refers to as “the New Zealand of the tort law theorists’ legend”.
  • 3 See Fiore 2009.
  • 4 See Baker 2008.
  • 5 It is important to note that we do not need to assume that moral responsibility is a necessary cond (...)

2 In an idealised New Zealand system (hereafter called iNZ2), tort liability would be fully abolished for all injuries, not only personal ones, in favour of the above-mentioned no-fault compensation scheme, which serves the main function of iNZ tort law – the compensatory one. In iNZ, both the causal and moral responsibility of the perpetrator are irrelevant from the point of view of tort law and all accidental personal harms are reimbursed from the public fund. Such a solution may be economically viable, as it would help to save the costs incurred by judicial machinery, expert witnesses, and the execution of judgments. Or, it may be pragmatically effective, especially from the perspective of the victims, who could obtain compensation quicker than in the classic tort system, which is particularly important for those who require expensive medical treatment or those who have lost their homes.3 But there may also be moral reasons to choose a no-fault scheme over tort liability. The strongest moral reason, I believe, comes from the paradox of moral luck and regards the unfairness of responsibility for things beyond our control.4 If we agree with opponents to moral luck who state that holding tortfeasors liable for the effects of actions beyond their control is unfair,5 then the iNZ no-fault scheme seems to be fairer than the standard system of tort liability because the liability for the risk of causing an accident is divided between all the risk-takers and is not based on the (un)lucky result of the causal chain.

3However, according to Enoch, even if there is no moral luck, we still can (and sometimes ought to) use our normative power to take responsibility and become liable for the consequences of our actions (Enoch 2012: 12). In this case, the personal responsibility of the perpetrators would not be affected by moral luck, and they would take on liability themselves, which would be morally better than iNZ without the possibility of taking responsibility. David Enoch (2015: 252) also recently claimed that iNZ still lacks a “tortfeasor’s taking responsibility for her actions”, and if iNZ is indeed missing it, then one would have a moral reason to replace iNZ with an improved, complete version, including such a responsibility (Enoch 2015: 251-252).

  • 6 I would like to thank a reviewer for raising this point.

4It is important to acknowledge the aim behind Enoch's considerations. He does not offer a new moral justification for the system of tort liability, but rather the removal of the objection that imposing tort liability is morally unjustified because of moral luck.6 Regardless of whether I agree with this approach, I believe it has serious flaws and issues calling for an answer. In this paper, I will present two arguments against the relevance of taking responsibility for tort liability, both of which can undermine Enoch’s argument. The first relates to the unfairness of an obligation to take responsibility and shows internal incoherence in Enoch’s theory. The second concerns the unfitness of taking responsibility for tort liability. Contrary to Enoch, I believe that tort liability is not about taking, but imposing responsibility onto an agent through legal norms. That is why, even if iNZ lacks personal liability, it is not the liability incurred by the perpetrator of the accident.

2 Moral luck

  • 7 See Enoch 2008: 25-28.
  • 8 See Juzaszek 2015.
  • 9 See Enoch 2008: 28.

5To better understand Enoch’s argument, we should start by elucidating the paradox of moral luck, the bedrock of his argument. The paradox refers to the contradiction between two moral intuitions concerning the influence of things beyond our control on our moral responsibility. If moral luck does not exist according to the so-called Control Principle, we are morally responsible only for things that are within our control. On the other hand, if moral luck does exist, then we can be responsible for things that fall beyond our control.7 It is usually believed that agreeing with both viewpoints would be paradoxical or irrational.8 An analogous situation occurs in case of legal liability; if legal luck does not exist, then we should be legally responsible only for things within our control, but if legal luck exists, then we can be legally responsible for things beyond our control.9

  • 10 I would like to thank the anonymous reviewer who suggested these.

6 We can distinguish two basic, general approaches to the moral luck paradox, both assuming that it is only apparent. The first denies the existence of moral luck and gives preference to the intuition underlying the Control Principle. For example, according to the so-called epistemic argument, moral luck is only an illusion, a heuristic effect that allows us to make moral judgments in conditions of incomplete knowledge, but it does not affect true moral responsibility (Nelkin 2011: 4.1.1). The second approach goes in the completely opposite direction, it negates the absoluteness of the Control Principle, recognising the existence of moral luck. An example here comes from Margaret Urban Walker (1993), who claims that the principle of control is a false assumption about the pureness of human nature, contrasting it with her impure vision of subjectivity in which luck produces virtues that are morally and socially significant. Between these extreme positions, there are many others, for example, those that accept some kinds of moral luck and deny others.10

  • 11 Constitutive and causal moral luck are outside the scope of this paper.

7Thomas Nagel (1993) suggested that there are at least four kinds of moral luck: resultant, circumstantial, constitutive, and causal. In the paper I will focus on the first two.11 Resultant luck, which influences the effects of our actions, is most widely discussed in the literature. It is present when our responsibility is exposed to circumstances that lay beyond our control, which may prevent or modify certain outcomes of our actions. To illustrate, let us imagine a sniper who tries to shoot a target. If the bullet reaches the target, then the probable effect will be the death of a victim and the sniper will be responsible for the killing. But if it misses, then there will no effect for which the sniper is responsible; the only thing for which they will be responsible is shooting to try to kill the target. The difference between these two situations is caused by factors that, even if they can be predicted, cannot be controlled by the sniper, such as wind speed, the movement of a target, or even the behaviour of a bird intersecting the flight path of the bullet. According to the Control Principle, the sniper is not morally responsible for the effects of their actions, but if we believed they should be responsible, this would support the existence of moral luck.

8Circumstantial luck on the other hand relates to the circumstances and dilemmas we face. In Nagel’s (1993: 65) example, circumstantial luck significantly increases the risk that a person living in Germany in the 1930s could have been a Nazi supporter and therefore could have been responsible (at least indirectly) for the crimes of the totalitarian regime. In contrast, a person who went to Argentina in that period was probably not responsible for the same actions. However, it is important to note that where we live is often a result of circumstances beyond our control and that where we are born or raised is fully beyond our control. To apply circumstantial moral luck to the sniper example, let us imagine that the sniper wants to kill a target but cannot carry out the attack because the building they want to shoot from is closed. The sniper would not be morally responsible for trying to kill the target; the only thing they are responsible for is their intention to kill. If the building had not been closed, the sniper would have got into position, taken a shot, and been responsible for killing the target.

9Denial of the existence of resultant moral luck leads one to the claim that we are not morally responsible for the effects of our actions, but for what is under our control - for example, wanting or trying. In contrast, rejection of the existence of circumstantial luck leads one to claim that we are not responsible for many of the circumstances we encounter that put us in a position to do something wrong.

10 Some solutions to the paradox of moral luck may assume that only some kinds of moral luck are problematic, while others are not. For example, the Asymmetry View claims that we are morally assessed only for our actions (Harman 2018: 3188-3189). Circumstantial luck exists (and so does constitutive luck), while resultant luck does not. Hence, according to this position, the sniper who shoots their target is equally as blameworthy as the sniper who misses because of the bird. They are, however, both more blameworthy than the sniper who wants to kill the target but cannot because the building is closed.

  • 12 For more arguments against resultant moral luck see Enoch & Marmor 2008.

11Enoch (2008: 29-31) is not only a strong denier of moral luck, but also denies both resultant and circumstantial luck (Enoch & Marmor 2007: 420-425). According to him, moral responsibility rests upon the Control Principle and cannot be affected by luck. He justifies these claims based on the basic intuitions that constitute the bedrock of the discussion, and which cannot be really disputed (Enoch 2008: 30; Enoch & Marmor 2007: 407).12 Thus, we cannot be morally responsible for the consequences of our actions because we cannot control them. The assumption here is that we control only what is up to us, e.g. the decisions we make or the risks we create based on ex ante beliefs (Enoch & Marmor 2007: 411-412). For instance, if the sniper shoots the target, they believe that the result will be deadly and the risk that the bird will intersect the flight path of the bullet is extremely low. Therefore, regardless of whether they succeed in killing the target, they controlled the same aspects of the situation and they are thereby equally morally responsible.

12 Enoch also believes that circumstantial moral luck does not exist (Enoch & Marmor 2007: 420-425). He argues that we are not morally responsible for the things we did but for the things we would have done. However, we are usually held responsible only for the former and it is because people do not have enough data to determine one’s hypothetical responsibility. The closer one gets to the action, the better our evidence that one would have actually performed it (Enoch & Marmor 2007: 423). For instance, if we would have known the whole story about the sniper who does not shoot his target because the building is closed, we probably would have admitted that he is equally morally responsible as a sniper who succeeded in the shooting. Unfortunately, when we make our moral judgments, we do not have such information and we cannot therefore hold the person responsible on that basis (even if they are morally responsible tout court).

  • 13 My position concerning moral luck is irrelevant here, so I will just present the problem from the p (...)

13Let us come back to iNZ, in which the risks we create are within our control and therefore we are liable for them, regardless of whether they materialise. Liability is divided between all of us ex ante; we all contribute to the pool of money, perhaps according to the level of the risk we create. However, we would not be liable for harm resulting from these risks. In the absence of tort liability, there are no tortfeasors and thus no one bears personal responsibility for the accidents. Thus, if we deny the existence of moral and legal luck, as Enoch does, we may conclude that iNZ is complete. On the other hand, if we accept the existence of moral and legal luck, we must acknowledge that iNZ is missing something important: the personal responsibility based on causation (Enoch 2015: 251). In other words, if we agree that we can be responsible for things beyond our control, then we should believe that the relationship between harm and the person who caused it is morally relevant and should be included in a system of liability and compensation.13

  • 14 Importantly, even though the considerations below seem to mainly apply to moral responsibility, for (...)

14Interestingly, although Enoch is a denier of moral luck, (both resultant and circumstantial), he still believes that luck influences moral and legal responsibility and thus iNZ is an incomplete system of compensation. His basic claim is that even if victims are compensated fairly, the personal responsibility of the agents who cause harm is morally relevant and should be reflected in the legal system. However, according to Enoch (2015: 252), the link between harm and perpetrator are not grounded in causation, but in the act of taking responsibility.14

3 Taking responsibility

15Enoch’s idea of taking responsibility is inspired by Bernard Williams’s (1993: 43–45) concept of agent regret, which was famously illustrated with the example of a truck driver who faultlessly hits a child who carelessly ran into the street. We assume that the driver followed all the rules of caution and could neither predict nor prevent the accident. From the perspective of impartial bystanders, the driver should not be held morally responsible for the death of the child because it was a matter of luck, not recklessness or negligence. However, Williams claims that there is a kind of negative sentiment, called agent regret, available only to the agent (who causes the accident) and not to witnesses or people reading the story. The driver ought to feel this regret and should not negate his responsibility for the accident by saying, for example, [i]t is sad that the child is dead, but I did nothing wrong. I have nothing to reproach myself for. Most probably that would be seen as morally inappropriate. However, the bystanders who witnessed the chain of events can console the innocent driver and stand up for him because they are not subjected to agent regret.

  • 15 Cf. recent Sussman 2018 or MacKenzie 2017.

16While various scholars have explained the phenomenon of agent regret,15 Enoch (2012: 97; 2015: 254) uses William’s concept as a starting point for a bigger theory based on the distinction between three groups of objects of moral responsibility (Enoch 2012: 100–103; 2015: 256). The first group includes things within our control, such as our decisions or actions, that can be valid objects of responsibility based on the Control Principle. The second group includes things over which we have no control, such as the consequences of a meteorite falling from the sky, for which we cannot be held responsible according to the Control Principle. A norm that assigns responsibility for these things would be morally flawed and unfair.

17Enoch claims that there is a third kind of object of responsibility that lies in the penumbra of agency. These things are beyond our control and thus we are not implicitly responsible for them, but we could become responsible for them through our normative power if we desired. Joseph Raz (2019: 1–2) argues:

A person’s act is an exercise of a normative power if it brings about or prevents a normative change because it is, all things considered, desirable that that person should be able to bring the change about or prevent it by performing that act. […] Those who can exercise a normative power have a normative power to do so.

18Enoch (2015: 266) refers to Gary Watson’s (2009: 162) idea that this kind of normative power is a constitutive part of valuable relationships and ways of thinking of ourselves. For example, a parent is not directly responsible for their child’s actions because the child is not within the parent’s control. The children are agents who should bear responsibility for their own acts if they are sufficiently mature and competent. The parent can be only responsible for negligence in parental supervision or upbringing. However, the parent may decide to become responsible for their children’s actions if he or she desired. In addition, in relation to his or her country and thinking of oneself as a good citizen provides the normative power to take responsibility for the country’s actions (but only in the case of one’s own country).

19Enoch believes, however, that taking responsibility may be also relevant for our discussion of tort liability. If I accept the Control Principle and deny resultant luck, I am not responsible for the consequences of my actions; according to Enoch, they are just outside my agency. However, thinking about myself as an agent acting in the world makes them a part of the penumbra of agency and gives me the normative power to take responsibility for them. This is quite similar to the situation of the truck driver in Williams’ example. The truck driver feels responsible for the consequences of his actions, even if they were beyond his control, because of agent regret. Enoch takes inspiration from Susan Wolf (2001: 13), who argues that taking responsibility for one’s actions is a demand of “a virtue of no name”, which “involves living with an expectation and a willingness to be held accountable for what one does, understanding the scope of ‘what one does’, particularly when costs are involved, in an expansive rather than a narrow way”.

20There is a second important claim in Enoch’s theory: sometimes, we not only have the possibility to use our normative power to take responsibility for things within the penumbra of our agency, but we also have a moral obligation to do so (Enoch 2012: 127; 2015: 257). In such a case, if one fails to take moral responsibility for X, then s/he is not morally responsible for X but for Y, which is failing to take moral responsibility for X. This obligation may be generated by the relationships that create our normative power to take responsibility and the roles that stem from these relationships. For example, taking responsibility for a child’s actions is inscribed in the concept of being a good parent; if one wants to be a good parent, one should take responsibility for their children’s actions. Without this, one fails to be a good parent. Similarly, if one does not comply with the obligation to take responsibility for one’s country’s actions, one fails to be a good citizen. Most interestingly for this paper, if one does not take responsibility for the consequences of one’s actions, s/he does not meet the obligation to be a good agent acting in a world. As Enoch (2012: 127) mentions, “[t]he case of responsibility for the consequences of your actions is less clear”. He argues, after Wolf (2001), that we, as agents living and acting in a real world, should be aware that our decisions and actions do have consequences. Thus, we cannot detach ourselves from the effects we have on the external world and on others. We may not be in control of these effects, but they lie very near to our agency, in its penumbra. This is particularly notable in situations in which our intentions turn out well and we feel responsible for our success. For example, if we intend to bake a cake and do so well, not only do we feel responsible for trying or intending to bake the cake, but we also feel responsible for the cake itself; we do not say that the cake existing is a matter of luck and detached from ourselves. According to Enoch, to think about ourselves as full agents, we should accept responsibility for the consequences of our actions.

21Taking tort liability for the consequences of our actions is the next step. According to the Control Principle, a perpetrator is liable only for the risk he incurs, not for its effects. Like moral responsibility, one is obliged to take tort liability for what happened. Paying material compensation is, however, unnecessary; the perpetrator can just apologise to the victims and say that he is liable for their harm. Enoch claims that such a system would be morally better than iNZ, in which there is no tort liability to be taken by agents.

4 The obligation to take responsibility is unfair

22My first counterargument to Enoch’s idea is that an obligation to take responsibility, whether moral or legal, is not coherent with basic assumptions concerning the role of control and denial of moral luck. The idea of becoming responsible in virtue of an act of will is interesting, as it seems to successfully combine both an individualist approach to moral responsibility and respect for human freedom to take deliberately moral burdens onto one’s shoulders. Problems arise, however, when Enoch adds a moral obligation to take responsibility. At first glance, everything seems consistent, especially when considering Enoch’s examples of parents or citizens. Being a good parent or citizen is, as Enoch claims, deeply associated with the duty to take responsibility for the actions of our children or state. Therefore, if we take responsibility for our children’s actions, we are exemplary parents, and if we take responsibility for our country’s actions, we are good citizens. If we fail to obey our duty to take responsibility, we are poor parents or citizens. Importantly, however, we are not usually forced to be parents or citizens. If we believe that we will not meet our obligations, then we may opt out by using contraception or by moving to a new country.

23The problem is related to the consequences of our actions, which, recall, we are not responsible for according to the Control Principle because they are under influence of resultant moral luck. We are born as agents who live and act in the world, and we cannot choose or change this (unless we decide to end our lives). Therefore, even though John can control taking responsibility for the consequences of his actions, holding him responsible for failing to fulfil the obligation to do so is unfair because he is placed in the position of being obligated and the reason for it is a circumstance beyond his control.

24To illustrate, let us imagine a situation in which John is kidnapped by an evil genius and told that he is obligated to choose A. Choosing A (i.e. taking responsibility) means that he will lose 100 dollars. Not choosing A (i.e. failing to fulfil the obligation to take responsibility) means that he will also lose 100 dollars. John will always fail. However, it was not John’s decision to take part in the game (i.e. the circumstances were beyond their control).

25Therefore, this solution to the problem of resultant moral luck raises problems with circumstantial moral luck. If we deny, like Enoch, all kinds of moral luck, then according to the Control Principle we should not be held morally responsible not only for the consequences of our actions that are beyond our control but also for the circumstances beyond our control. Being a part of a game of taking responsibility, which puts us in a position in which we will be always morally responsible, is a circumstance beyond our control. Therefore, it seems that the obligation to take responsibility for the consequences of our actions is an attempt to avoid the influence of a kind of moral luck that involves subordinating moral responsibility to circumstantial moral luck.

  • 16 Although Enoch believes there is a duty to take responsibility, he also says: “Everything I have to (...)

26From the perspective of the Control Principle, failing to fulfil a moral obligation to take responsibility for something beyond our control should not make us morally responsible. This is a moral trap; if we are not morally responsible for the consequences of our actions, then we are put in a situation in which we have to choose either to take responsibility for something for which we were not responsible or to expose ourselves to responsibility for not fulfilling this obligation. Such a situation not only limits our freedom of moral choice but also weakens the moral importance of taking responsibility. I argue, therefore, that for consistency with a viewpoint that denies moral luck, taking responsibility must be supererogatory (i.e. it should not be morally required, but a result of an agent’s willingness to take on a moral burden).16

27People can take responsibility for things they are not morally responsible for per se, but they should not be morally required to do so. Let us consider Williams’ truck driver example. Even though the driver is not morally responsible for the accident, he can decide to take responsibility for the accident and bear at least some of the consequences. For instance, he can call the parents to ask how the child is feeling, say that he is sorry for what happened, or even pay for the child’s treatment. And this may be seen as praiseworthy. Agent regret may motivate people to make virtuous decisions, but such decisions are still a matter of individual discretion, and they cannot be forced.

  • 17 As in Margaret Urban Walker's (1993) impure agency.

28It should be emphasised that the above argument applies if we believe in the primacy of the Control Principle within the moral sphere. But one may believe that there are other, equally morally relevant principles that generate obligations and are more important than the Control Principle. Such principles would concern the spheres mentioned by Enoch: being a good parent, good citizen, or full agent. From this perspective, we can argue that the sphere of agency is expanded to things beyond our control17 or that the scope of moral responsibility does not equal our agency. We can be responsible not only for what is under our control but also for what Enoch refers to as the penumbra of responsibility. For instance, if we believe that the principle stipulating that parents should take responsibility for their children’s actions is as morally relevant as the Control Principle, then one can be directly morally responsible for their children’s actions without the need to take responsibility for them.

5 Tort liability is not a matter of taking responsibility

29My second argument against Enoch relates to the legal side of taking tort liability. If, as Enoch argues (2008), there should be no legal luck, one should not be legally liable for the consequences of their actions. Considering his theory of taking responsibility, the only way to become legally liable for the consequences of your actions is to take responsibility for them. This raises two questions: first, is taking responsibility relevant also in legal liability, as Enoch believes? And second, even if it is, should one be legally obligated to take tort liability? I believe that there should not be a legal obligation to take tort liability. I believe that taking responsibility is not relevant for tort liability, but even if it were, there should not be a legal obligation to take tort liability for one’s actions.

30I claim that even if the idea of taking responsibility is deeply relevant from a moral point of view, it is incompatible with the nature and function of tort liability. This is because Enoch’s position relies on an individuals’ freedom to take responsibility, but the institution of tort liability (like other types of legal liability) relies on imposing liability upon individuals through legal norms. Law, on this account, is what John Gardner (2018: 85) calls a peacemaker whose aim is to determine contentious matters. The discussion on moral luck shows us that the question of responsibility for the outcomes for one’s actions is such a matter. Therefore, as Gardner (2018: 85) says, “if the relevant determinacy cannot be found in the raw facts apart from the law, then the law needs to manufacture its own determinacy.”

  • 18 This categorization was inspired by the conceptual structure of Fiery Cushman’s (2008) psychologica (...)

31Before I elaborate on this argument, I will provide my views on the structure of the institution of legal liability (either criminal or tort) because they underlie further considerations. Briefly, I believe that we can identify three kinds of norms that constitute the institution of legal liability: deontic, hypological, and sanctionative.18 To illustrate them, I will use examples from the Polish Civil Code (hereafter called PCC).

  • 19 See the discussion on different types of moral judgment in Zimmermann (2006: 585).

32Deontic norms impose certain legal obligations and prohibitions on individuals (i.e. they prohibit us from doing X and oblige us to do Y). For example, article 669, section 1, of the PCC (1964, 2012) says that “the tenant is obliged to pay rent at an agreed time”. This means that if the tenant does not pay rent by the agreed-upon time, he contravenes his legal obligation to do so. However, breaking one’s legal obligation does not mean that one is responsible for doing so. To be liable, the conditions for liability set by hypological norms, which determine issues of responsibility rather than obligation, must be satisfied first.19 These conditions can be negative (e.g. a lack of proper justification of excuses) or positive (e.g. the occurrence of an injury). For example, article 425 of the PCC (1964, 2012) says that “a person who, for any reason, is in a condition which precludes conscious or free decision-making and expression of will is not liable for damage caused in such a condition”. This means that if someone accidentally bumped into their neighbour’s car, they would fail to meet the obligation to respect other people’s property established by a deontic norm. However, if they bumped into the car due to having a heart attack, they would not be liable for it because it was an accident that took place “in a condition which precludes conscious or free decision-making” (PCC 1964, 2012).

33It is important to note that the conditions set by hypological norms may represent either the Control Principle or intuition underlying legal luck. If a legislator accepts legal luck, then the typological norms may preclude liability for things beyond agents’ control, such as strict liability. But if a legislator, like the one in iNZ, believes that a compensation system should be based on the Control Principle, then hypological norms will be constructed in such a way as to exclude liability beyond agents’ control, as with article 425 of the PCC. The structure of the institution of liability and compensation for injuries does not determine which values and assumptions are actually implemented.

34Hypological norms define liability as meeting certain conditions, and no further judgment or effect is required—neither the judge’s nor the victim’s. Nobody even needs to know that one is liable. For example, if John scratches Peter’s car, he is liable for not obeying the legal obligation to respect others’ property rights, even if neither Peter nor anyone else ever notice the scratch. This is because John satisfied all the requirements of tort liability prescribed by hypological norms.

  • 20 The distinction between responsibility and responsibility-related reactions is based on Enoch and M (...)

35Sanctionative norms set the conditions under which one can be the subject of responsibility-related reactions, such as criticism, social condemnation, ostracism (in cases of morality), and punishment or damages (in legal cases).20 In other words, sanctionative norms determine what happens when one is already liable in a hypological sense.

  • 21 This is especially true from the point of view of retributivist theories of punishment.

36Deontic and hypological norms usually justify the application of sanctionative norms and the imposition of responsibility-related reactions. That is why it is widely believed to be unjust to inflict punishment (according to sanctionative norms) upon someone who does not deserve it (i.e. is not responsible in a hypological sense), especially criminal punishment.21 If John never stole a car, he never committed a crime and should not be punished for it. On the other hand, not everyone liable in a hypological sense is also liable in a sanctionative sense. If John steals his uncle’s car but immediately returns it and the uncle does not file any legal complaint, then John will be liable in a hypological sense for stealing the car but will not be liable in a sanctionative sense because he will not bear any (legal) consequences.

37Let us now consider how this three-element structure works in relation to tort liability. As an example, I will use the conditions for tort liability set by the PCC (1964, 2012):

Art. 415. Anyone who by a fault on his part causes damage to another person is obliged to remedy it.

Art. 416. A minor under thirteen years of age is not liable for damage caused.

Art. 417. Anyone who, under the law or a contract, is obliged to supervise a person who cannot be held accountable due to his age, or his mental or physical condition is obliged to remedy any damage caused by this person unless he fulfilled the supervision obligation or unless the damage would also have arisen even with supervision being exercised with due care. This provision also applies to persons who, without a legal or contractual obligation, take permanent care of a person who cannot be held accountable due to his age, or his mental or physical condition.

Art. 4491. § 1. Anyone who, within the scope of his business activity, manufactures (manufacturer) a hazardous product is liable for damage caused to any person by the product.

38In article 415 of the PCC, which determines standard tort liability based on fault, the deontic norm prohibits causing damage to another; the hypological norm makes a person who causes damage to another through their own fault liable; and the sanctionative norm states that the liable person needs to remedy the damage caused. But, according to article 4491 of the PCC, which constitutes strict liability, one does not have to break any obligation to be liable. Meeting the conditions set by hypological norms (basically, professionally manufacturing hazardous products) is sufficient.

39Tort liability can often include liability for other people or entities, similar to Enoch’s example of taking responsibility for one’s own children. Let us consider the above-mentioned articles 416 and 417 of the PCC. Even if a minor breaks their obligation to not damage others’ property, they are not liable in a hypological sense because they do not satisfy the age requirements set by hypological norms. Thus, imposing sanctions on a minor would be unjustified. However, there is still a harm that requires compensation. Therefore, even though the minor’s parent/guardian/supervisor is not liable for the minor’s actions in a hypological sense, they are liable in a sanctionative sense. In other words, they are obligated to remedy the damage caused by the child. A supervisor or parent need not take liability for a minor’s act to be liable for it in a sanctionative sense. It is sufficient that the norm determines the supervisor’s liability for the minor’s tort, which is exempt from the principle of individual responsibility. In other legal systems, there may be an opposite norm in which a supervisor is not liable for a minor’s deeds. It is up to legal norms, not the perpetrator or supervisor, to determine whether someone is liable in both a hypological and sanctionative sense.

40Of course, one who is not liable for X may still feel liable for X or may want to help provide compensation for X. For example, even if Williams’ truck driver is not liable for the death of the child, because of agent regret, they may feel responsible and willing to apologise to parents, pay for the burial, and so on. Perhaps the truck driver takes moral responsibility, according to Enoch’s moral theory, or perhaps they do not take any responsibility but just feel sorry about the child and want to do something good. My key point is that this does not influence the driver’s tort liability, and their acts after the accident do not mean that they can take legal liability. Their liability, whether hypological or sanctionative, is determined solely by the norms of tort law.

  • 22 Importantly, I acknowledge an ongoing discussion about what the functions of tort liability are. Ho (...)

41However, what if a norm requires an agent to take responsibility in order to be held liable? In such a situation, to become tortiously liable in either a hypological or sanctionative sense, an agent would need to first take liability. I believe that leaving this in the hands of a perpetrator or third party, perhaps under the requirements presented by Enoch, could jeopardise not only the positions, interests, and rights of potential victims but also one of the most important functions of tort liability: compensation.22

42If we imagine such a condition for tort liability, we must consider the other important part of Enoch’s theory: the duty to take responsibility. If a norm assigns an agent a legal obligation to take tort liability, what happens if he or she does not comply with this obligation? Would the agent be legally liable for not taking tort liability? One solution to this problem would be to enforce tort liability by overriding the value of the agent’s freedom not to take it. For example, if John negligently causes an accident in which a child is hurt and he does not want to pay for treatment, the state can make him do so, meaning that he is liable. This does not differ from a norm that makes someone liable; in both situations, the agent need not take liability for something to be liable for it.

43As I have already mentioned, Enoch claims that failing to comply with one’s duty to take responsibility for something does not make us responsible for it, but for not taking responsibility. Here, we may assume that there should be methods of legal enforcement to hold John liable for not bearing responsibility for hitting the child. But would this be tort, criminal, administrative, or disciplinary liability? A sanction for failure to take moral responsibility could be condemnation, ostracism, or criticism, but not compensation because the agent is not responsible for any harm for which they could compensate. Analogously, non-compensatory sanctions could be enforced for failing to take tort liability. Such sanctions seem to be from the fields of criminal or administrative law, as they support retributive or expressivist functions of law. This means that liability for failing to take tort liability would be outside the scope of tort law. In turn, this indicates that tort liability does not require one to take responsibility.

6 Conclusion

44Enoch’s idea of taking responsibility for something for which one was not responsible features an individualist approach to moral responsibility and allows moral individuals to take burdens onto their shoulders if they feel it is appropriate. But this must be a matter of supererogation, otherwise moral responsibility would be a trap. If people had a moral obligation to take responsibility, they would be morally responsible even in cases of circumstantial moral luck, which is deeply unfair. If we believe that tort liability should reflect moral responsibility and that the basis of moral responsibility is the Control Principle, we cannot allow circumstantial luck to have such an important impact on tort liability.

  • 23 It is important to note that such an approach does not mean that taking responsibility does not hav (...)

45There is also reason to believe that taking responsibility does not fit with the notion of tort liability. Either one is liable, or liability is imposed. There is no place for taking responsibility in a tort liability regime. This is because one of the primary functions of tort liability is compensation, and failing to fulfil one’s obligation to take tort liability would not concern compensation, but criminal or administrative law.23

46Taking all this into account, if we believe that moral and legal luck exists, we will consider iNZ to be defective at the root. But if we, like Enoch, do deny the existence of moral luck and claim that there should be no legal luck, then we should also think iNZ is a complete system, and taking responsibility would be just a supererogatory act in it.

—Acknowledgements.— I would like to thank Tomasz Żuradzki, for his detailed comments on a draft of this paper. I also benefited from suggestions by my friends and participants of Ethics Research Seminar organized by Interdisciplinary Centre for Ethics at Jagiellonian University in Krakow, Poland. This research was funded by the Ministry of Science and Higher Education in Poland, National Programme for the Development of Humanities, from the research grant no. 0068/NPRH4/H2b/83/2016, obtained and carried out at Jagiellonian University, Krakow, Poland.

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Notes

1 See Schuck 2008.

2 This is what Enoch (2015: 250) refers to as “the New Zealand of the tort law theorists’ legend”.

3 See Fiore 2009.

4 See Baker 2008.

5 It is important to note that we do not need to assume that moral responsibility is a necessary condition of legal liability. It can be just a matter of evaluation of legal norms and legal liability from the moral point of view. David Enoch (2007: 31-38), for example, believes that legal liability should reflect moral responsibility and that it is therefore morally wrong or unfair to hold someone legally liable for the things beyond their control. In such a case, if the conditions for legal liability determine that someone can be legally liable for things beyond their control (i.e. legal luck exists), then the moral luck opponents do not need to claim that the conditions of legal liability are invalid or non-binding, they may just say that they are legally valid but should be changed because they are not morally justified (see more in Juzaszek 2014).

6 I would like to thank a reviewer for raising this point.

7 See Enoch 2008: 25-28.

8 See Juzaszek 2015.

9 See Enoch 2008: 28.

10 I would like to thank the anonymous reviewer who suggested these.

11 Constitutive and causal moral luck are outside the scope of this paper.

12 For more arguments against resultant moral luck see Enoch & Marmor 2008.

13 My position concerning moral luck is irrelevant here, so I will just present the problem from the perspective of a moral luck denier.

14 Importantly, even though the considerations below seem to mainly apply to moral responsibility, for Enoch, tort liability must also be considered, “[f]or tort liability may be thought of as an institutionalized way of taking responsibility” (Enoch 2015: 268). I believe we must assume that we have, at least prima facie, a moral reason to make legal liability reflect moral responsibility. Of course, there can be other reasons that may, for example, allow for strict liability in law that does not relate to morality. Therefore, when speaking about the act of taking responsibility, I am also referring to the act of taking legal liability.

15 Cf. recent Sussman 2018 or MacKenzie 2017.

16 Although Enoch believes there is a duty to take responsibility, he also says: “Everything I have to say survives pretty much unchanged if we go for the supererogation reading instead” (Enoch 2012: note 4).

17 As in Margaret Urban Walker's (1993) impure agency.

18 This categorization was inspired by the conceptual structure of Fiery Cushman’s (2008) psychological research on moral judgment, which concerned the influence of moral luck on permissibility, blame, and punishment.

19 See the discussion on different types of moral judgment in Zimmermann (2006: 585).

20 The distinction between responsibility and responsibility-related reactions is based on Enoch and Marmor’s (2007: 412) distinction between blameworthiness and blame-related reactions.

21 This is especially true from the point of view of retributivist theories of punishment.

22 Importantly, I acknowledge an ongoing discussion about what the functions of tort liability are. However, due to the clarity of arguments, in the paper I assume that the main function of sanctions in tort law (at least in the iNZ) is material or moral compensation based on the principles of corrective justice. This means that we have to compensate for wrongful harms, damages, or losses caused by our conduct.

23 It is important to note that such an approach does not mean that taking responsibility does not have an important role in contract law, in which agents can not only take responsibility for the acts or debts of others but also impose obligations on themselves

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References

Electronic reference

Maciej Juzaszek, Tort liability without taking responsibilityRevus [Online], 41 | 2020, Online since 30 March 2021, connection on 22 April 2024. URL: http://journals.openedition.org/revus/6548; DOI: https://doi.org/10.4000/revus.6548

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About the author

Maciej Juzaszek

Assistant Professor in the Department of Theory, Philosophy and History of Law, Kozminski University, Warsaw (Poland)

Address: Kozminski University – Jagiellonska Str. 57/59 – 03-301, Warsaw – Poland

E-mail: mjuzaszek [at] kozminski.edu.pl

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The text only may be used under licence CC BY-SA 4.0. All other elements (illustrations, imported files) are “All rights reserved”, unless otherwise stated.

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