Abstract
This article is about ‘role responsibility’ as understood by H. L. A. Hart in his taxonomy of responsibility concepts in his book, Punishment and Responsibility. More particularly, it focuses on what I call ‘public, institutional role responsibility’. The main arguments are that (1) such role responsibility is based on authority and power rather than physical and mental capacity; and (2) the foundation of role responsibility in authority has significant implications for what Hart referred to as ‘liability–responsibility’, which I unpack in terms of ‘attribution’, ‘accountability’ and ‘liability’. The article addresses possible objections to the authority-based analysis of role responsibility based on the concept of ‘moral’ responsibility, and on understandings of what types of question are ‘philosophical.’
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Notes
But see, e.g., Bovens (1998: 27, 35–36).
I discuss such approaches in Cane (2002: 143–180).
Vicarious liability may provide an example of role responsibility assumed by ‘agreement’ in Hart’s terminology.
Hamilton et al. (2008: 347) (Federalist 70).
http://www.trumanlibrary.org/buckstop.htm: accessed January 4, 2016.
This difference between the legal and philosophical approaches may be explained by the fact that for philosophers, a focus on agents is the default starting point when thinking about ‘moral’ obligation and responsibility. Justification of ‘special’ obligations, by contrast to ‘general’ obligations, requires a broadening of focus beyond agents. On the other hand, the legal theorists’ version of individualism appears in discussions of ‘private law,’ which by definition focuses on relations between individuals, not individuals in isolation. What is distinctive about the individualist approach is that, in reflecting on the rights and obligations of parties inter se, it does not treat one party to such relationships as the agent and the other as the ‘object of agency,’ but both as agents and equals. By contrast, the philosophical question is framed in terms of how to justify treating some objects of agency differently from others.
For more discussion, see Cane (2014).
For a general discussion, see Stapleton (2015).
Doing one’s personal best may not be enough.
And they certainly do not prevent ministers taking credit for things done by others in their name.
Hart distinguished the ‘positive morality’ practised by a social group from ‘critical morality,’ which provides a benchmark against which to judge positive morality.
I.e., Obligation-generating political norms.
However, Peter Hacker describes Hart’s method as ‘genetic-analytic.’ ‘It is important to understand,’ he states, that this method involves ‘conceptual analysis’ not ‘armchair anthropology.’ (Hacker 1977: 11–12).
See further Cane (2013: 650–654).
An alternative way to think about law is as a normative system of practical reasoning. Hart shifts back and forth between analysing law as a set of social practices and analysing it as a system of practical reasoning—what he calls ‘a system of rules.’ He also shifts between understanding ‘system’ in institutional terms on the one hand, and conceptual terms of the other. Hart’s leading disciple, Joseph Raz, has gone much further than Hart in analysing law in terms of reasons for action (Raz 1975).
For a succinct summary of this approach, see Deigh (2011: 198–201), discussing the work of Harry Frankfurt and others.
At least to the extent that those characteristics are non-linguistic (understanding ‘language’ in a narrow sense), they might be shared by other species as well.
For discussion, see Williamson (2007: 1–22).
A classic statement is Finnis (1980: 3–22).
I hesitate to use the term ‘cultural evolution’ because this tends to be used to refer to research concerned specifically with the relationship between species-universal human characteristics and the environment(s) in which the human species evolved and now lives (such as the EEA: the environment of evolutionary adaptedness). More specifically, ‘legal evolution’ is associated with the notion that all legal systems go through certain common phases. My interest is more superficial (or, perhaps, more generously, ‘at a different level of analysis’), namely to understand similarity and diversity in human normative practices (especially law) and to explore plausible explanations therefor.
http://www.iep.utm.edu/comparat/: accessed January 4, 2016.
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Acknowledgments
Distinguished Professor of Law, ANU College of Law, Australian National University. I have benefited greatly from discussions with Tony Connolly and Leighton McDonald. I am particularly grateful to Tony, who (as ever) constructively challenged me to simplify and clarify the argument.
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Cane, P. Role Responsibility. J Ethics 20, 279–298 (2016). https://doi.org/10.1007/s10892-016-9235-8
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DOI: https://doi.org/10.1007/s10892-016-9235-8