Accomplice liability makes people guilty of crimes they knowingly helped or encouraged others to commit, even if they did not commit the crime themselves. But this method of criminalizing aiders and abettors is fraught with problems. In this chapter, I argue that accomplice liability in the criminal law should be replaced with a system in which agents are criminalized on the basis of their individual contributions to causings of harm—the larger the contribution, the more severe the (...) crime—regardless of whether those contributions were made “through” the actions of another person. Not only would this avoid the issues associated with making the guilt of accomplices parasitic on the guilt of the principal, it would also fill gaps in the law concerning other cases to which accomplice liability does not apply. (shrink)

Preferred Citation: R.A. Duff, Response, Is Accomplice Liability Superfluous?, 156 U. Pa. L. Rev. PENNumbra 444 (2008), http://www.pennumbra.com/responses/04-2008/Duff.pdf.

:This essay undertakes two tasks: first, to describe the differing mens rea requirements for accomplice liability of both Anglo-American common law and the American Law Institute's Model Penal Code; and second, to recommend how the mens rea requirements of both of these two sources of criminal law in America should be amended so as to satisfy the goals of clarity and consistency and so as to more closely conform the criminal law to the requirements of moral blameworthiness. Three (...) "pure models" of the mens rea requirements for complicity are distinguished, based on the three theories of liability conventionally distinguished in the general part of Anglo-American criminal law. One of these, the vicarious responsibility model, is put aside initially because of both its descriptive inaccuracy and its normative undesirability. The analysis proceeds using the other two models: that of the mens rea requirements for principal liability for completed crimes, and that of the mens rea requirements for attempt liability. Both the common law and the Model Penal Code are seen as complicated admixtures of these two models, the common law being too narrow in the scope of its threatened liability and the Model Penal Code being both too broad and too opaque in its demands for accomplice liability. The normative recommendation of the paper is to adopt the model for the mens rea of complicity that treats it as a form of principal liability, recognizing that the overbreadth of liability resulting from adoption of that model would have to be redressed by adopting a "shopkeeper's privilege" as an affirmative defense separate from any mens rea requirement. View HTML Send article to KindleTo send this article to your Kindle, first ensure [email protected] is added to your Approved Personal Document E-mail List under your Personal Document Settings on the Manage Your Content and Devices page of your Amazon account. Then enter the ‘name’ part of your Kindle email address below. Find out more about sending to your Kindle. Find out more about sending to your Kindle. Note you can select to send to either the @free.kindle.com or @kindle.com variations. ‘@free.kindle.com’ emails are free but can only be sent to your device when it is connected to wi-fi. ‘@kindle.com’ emails can be delivered even when you are not connected to wi-fi, but note that service fees apply. Find out more about the Kindle Personal Document Service.UNTYING THE GORDIAN KNOT OF MENS REA REQUIREMENTS FOR ACCOMPLICESVolume 32, Issue 2Heidi M. Hurd and Michael S. Moore DOI: https://doi.org/10.1017/S0265052516000157Your Kindle email address Please provide your Kindle [email protected]@kindle.com Available formats PDF Please select a format to send. By using this service, you agree that you will only keep articles for personal use, and will not openly distribute them via Dropbox, Google Drive or other file sharing services. Please confirm that you accept the terms of use. Cancel Send ×Send article to Dropbox To send this article to your Dropbox account, please select one or more formats and confirm that you agree to abide by our usage policies. If this is the first time you use this feature, you will be asked to authorise Cambridge Core to connect with your account. Find out more about sending content to Dropbox. UNTYING THE GORDIAN KNOT OF MENS REA REQUIREMENTS FOR ACCOMPLICESVolume 32, Issue 2Heidi M. Hurd and Michael S. Moore DOI: https://doi.org/10.1017/S0265052516000157Available formats PDF Please select a format to send. By using this service, you agree that you will only keep articles for personal use, and will not openly distribute them via Dropbox, Google Drive or other file sharing services. Please confirm that you accept the terms of use. Cancel Send ×Send article to Google Drive To send this article to your Google Drive account, please select one or more formats and confirm that you agree to abide by our usage policies. If this is the first time you use this feature, you will be asked to authorise Cambridge Core to connect with your account. Find out more about sending content to Google Drive. UNTYING THE GORDIAN KNOT OF MENS REA REQUIREMENTS FOR ACCOMPLICESVolume 32, Issue 2Heidi M. Hurd and Michael S. Moore DOI: https://doi.org/10.1017/S0265052516000157Available formats PDF Please select a format to send. By using this service, you agree that you will only keep articles for personal use, and will not openly distribute them via Dropbox, Google Drive or other file sharing services. Please confirm that you accept the terms of use. Cancel Send ×Export citation Request permission. (shrink)

The Law Commission for England and Wales has published for consultation a proposal for an offence of first degree murder. A person found guilty of this offence whether as a principal or an accomplice will receive a mandatory sentence of life imprisonment. It is argued that the conditions for liability as an accomplice put forward by the Commission do not fulfil the Commission's aspiration for a "parity of culpability" between principals and accomplices. The discussion has general implications (...) for the reform of complicity laws. (shrink)

This Article presents a theory whereby criminal punishments are routinely distributed in proportion to the weight of the evidence mounted against the defendant. According to this theory, the law relaxes the stringent decision threshold in criminal trials—beyond a reasonable doubt—by creating easy-to-prove evidentiary offenses. These offenses, in turn, are associated with less severe sanctions, thus creating a de-facto proportional liability regime. Against that backdrop, the Article examines the legal duty to report criminal activity to the authorities. As the analysis (...) shows, while legal scholars analyzing such duties have focused on the paradigmatic case in which an innocent bystander, friend or family member is unwittingly exposed to information about a crime, in practice these duties are rarely used in such cases. Rather, reporting duties are used to prosecute suspected accomplices whose involvement in the commission of the actual crime is difficult to prove beyond a reasonable doubt. Thus, offenses imposing a reporting duty on criminal activity turn out to be part of the general framework of accomplice liability, and are used to apply less severe sanctions in cases of evidentiary uncertainty. (shrink)

According to the Finnish Penal Code a corporation may be sentenced to a corporate fine if a person who is part of its statutory organ or other management or who exercises actual decision-making authority therein 1) has been an accomplice in an offence or allowed the commission of the offence, or 2) if the care and diligence necessary for the prevention of the offence has not been observed in the operations of the corporation. Criminal liability of legal persons (...) is based on the intentional or negligent acts of individuals who are in a certain relationship with the corporation. The Finnish legal doctrine clearly rejects the identification theory according to which an individual is considered as acting not for a company but as a company. According to Finnish scholarly writings, the acts of an individual offender could be attributed to the legal person under certain conditions not as acts of the legal person but as acts of the individual for the company. Nonetheless, Finnish law does not abandon the fault requirement. In this respect, Finnish law differs from the traditional common law theory of vicarious liability. (shrink)

I argue, contrary to standard claims, that accomplice liability need not be a causal relation. One can be an accomplice to another’s crime without causally contributing to the criminal act of the principal. This is because the acts of aid and encouragement that constitute the basis for accomplice liability typically occur in contexts of under- and over-determination, where causal analysis is confounded. While causation is relevant to justifying accomplice liability in general, only potential (...) causation is necessary in particular cases. I develop this argument through the example of the role of U.S. legal officials in abetting the acts of unlawful interrogation that have taken place since 2001. I also suggest that there may be a limited justification for ex post ratificatory accomplice liability. (shrink)

In Michael Moore's important book Causation and Responsibility, he holds that causal contribution matters to responsibility independently of its relevance to action. We are responsible for our actions, according to Moore, because where there is action, we typically also find the kind of causal contribution that is crucial for responsibility. But it is causation, and not action, that bears the normative weight. This paper assesses this claim and argues that Moore's reasons for it are unconvincing. It is suggested that sometimes (...) a person's responsibility for that to which he causally contributes depends on his recognition of an identity between himself and the protagonist of the event for which he is held responsible. Since this fact about identity is not captured by causal contribution, action matters to responsibility for reasons that are not exhausted by the fact that action involves causal contribution. The relevance of this idea for accomplice liability is also briefly discussed. (shrink)

This is the first comprehensive handbook in the philosophy of criminal law. It contains seventeen original essays by leading thinkers in the field and covers the field's major topics including limits to criminalization, obscenity and hate speech, blackmail, the law of rape, attempts, accomplice liability, causation, responsibility, justification and excuse, duress, provocation and self-defense, insanity, punishment, the death penalty, mercy, and preventive detention and other alternatives to punishment. It will be an invaluable resource for scholars and students whose (...) research and studies concern philosophical issues in criminal law and criminal law theory. (shrink)

Perhaps more than any other scholar, Michael Moore has argued that there are deep and necessary connections between metaphysics, morality, and law. Moore has developed every contour of a theory of criminal law, from philosophy of action to a theory of causation. Indeed, not only is he the central figure in retributive punishment but his moral realist position places him at the center of many jurisprudential debates. Comprised of essays by leading scholars, this volume discusses and challenges the work of (...) Michael Moore from one or more of the areas where he has made a lasting contribution, namely, law, morality, metaphysics, psychiatry, and neuroscience. The volume begins with a riveting contribution by Heidi Hurd, wherein she takes an unadorned and unabashed look at the man behind this monumental body of work, full of both triumphs and sadness. A number of essays focus on Moore's view of the purpose and justification of the criminal law, specifically his endorsement of retributivism and legal moralism. The book then addresses Moore's work in the various aspects of the general part of the criminal law, including Moore's position on how to understand criminal acts for double jeopardy purposes, Moore's claim that accomplice liability is superfluous, and Moore's views about the culpability of negligence, as well as the relationship between that view and proximate causation. Furthermore, the subject of defenses in criminal law is addressed, including self-defense, and also the intersection of psychiatry, psychology, cognitive neuroscience, and the criminal law. Also discussed are features of morality, and Moore's work in general jurisprudence. Finally, Moore concludes the volume with an essay that defends and delineates the features of his views. (shrink)

The question of the moral acceptability of infertility treatment to HIV positive persons raises a number of interesting ethical points regarding the responsibility of the infertility specialist for the outcome of his or her actions. The analysis of the physician’s responsibility is conducted within the framework of accomplice liability. The physician is a collaborator in the parental project of the principals—that is, the intentional parents. Both causal contribution and intention are considered as elements of complicity. It is concluded (...) that a two per cent risk of vertical transmission when the woman is HIV positive is insufficient to blame the infertility specialist who helps her to conceive. Helping an infertile HIV positive infertile couple to have a child does not constitute reckless behaviour. When the couple is fertile, infertility treatment is directed at risk reduction and falls under the physician’s obligation to act in the best interests of his patients. (shrink)

Criminal law doctrine fails to provide an adequate solution for imputing responsibility to organized crime leaders for the offenses committed by their subordinates. This undesirable state of affairs is made possible because criminal organizations adopt complex organizational structures that leave their superiors beyond the reach of the law. These structures are characterized by features such as the isolation of the leadership from junior ranks, decentralized management, and mechanisms encouraging initiative from below. They are found in criminal organizations such as the (...) American Mafia, the Japanese Yakuza, and even outlaw motorcycle gangs. The paper offers a doctrine that may transcend this shortcoming. Referred to as “leaders’ liability,” this doctrine will be assessed and appraised through a comparison with competing theories such as accomplice liability, Organisationsherrschaft , and conspiracy. (shrink)

Complicity marks out a way that one person can be liable to sanctions for the wrongful conduct of another. After describing the concept and role of complicity in the law, I argue that much of the motivation for presenting complicity as a separate basis of criminal liability is misplaced; paradigmatic cases of complicity can be assimilated into standard causation-based accounts of criminal liability. But unlike others who make this sort of claim I argue that there is still room (...) for genuine complicity in the law and in morality. In defending this claim, I sketch an approach to complicity which grounds our liability for what others do not in our causal relation to their actions but in our “agency-relations” with others. In such cases, one agent can be liable for the wrongs of second agent to the extent that first authorizes the second to act at her behest. This approach fills the gap where standard causation-based accounts of complicity fail – especially in where several agents cooperatively contribute to an overdetermined harm. (shrink)

Mobsters and others engaged in risky forms of social coordination and coercion often communicate by saying something that is overtly innocuous but transmits another message ‘off record’. In both ordinary conversation and political discourse, insinuation and other forms of indirection, like joking, offer significant protection from liability. However, they do not confer blanket immunity: speakers can be held to account for an ‘off record’ message, if the only reasonable interpreta- tions of their utterance involve a commitment to it. Legal (...) liability for speech in the service of criminal behavior displays a similar profile of significant protection from indirection along with potential liability for reasonable interpretations. Specifically, in both ordinary and legal contexts, liability depends on how a reasonable speaker would expect a reasonable hearer to interpret their utterance in the context of utter- ance, rather than on the actual speaker’s claimed communicative intentions. (shrink)

Standard theories of liability say that X is liable to Y only if Y was harmed, only if X caused Y harm, and (usually) only if X was at fault. This article offers a series of criticisms of each of these claims, and use them to construct an alternative theory of liability in which the nature of X's having imposed a risk of harm on Y is central to the question of when X is liable to Y, and (...) for how much. The article ends with some conjectures on ignorance as an excusing condition. (shrink)

States act wrongly. Sometimes, they are held responsible, or take responsibility of their own accord, to remediate their wrongdoing: they cease to act wron.

Jeff McMahan has argued against the moral equivalence of combatants (MEC) by developing a liability-based account of killing in warfare. On this account, a combatant is morally liable to be killed only if doing so is an effective means of reducing or eliminating an unjust threat to which that combatant is contributing. Since combatants fighting for a just cause generally do not contribute to unjust threats, they are not morally liable to be killed; thus MEC is mistaken. The problem, (...) however, is that many unjust combatants contribute very little to the war in which they participate—often no more than the typical civilian. Thus either the typical civilian is morally liable to be killed, or many unjust combatants are not morally liable to be killed. That is, the liability based account seems to force us to choose between a version of pacifism, and total war. Seth Lazar has called this “The Responsibility Dilemma”. But I will argue that we can salvage a liability-based account of war—one which rejects MEC—by grounding the moral liability of unjust combatants not only in their individual contributions but also in their complicit participation in that war. On this view, all enlistees, regardless of the degree to which they contribute to an unjust war, are complicitously liable to be killed if it is necessary to avert an unjust threat posed by their side. This collectivized liability based account I develop avoids the Responsibility Dilemma unlike individualized liability-based accounts of the sort developed by McMahan. (shrink)

According to the dominant position in the just war tradition from Augustine to Anscombe and beyond, there is no "moral equality of combatants." That is, on the traditional view the combatants participating in a justified war may kill their enemy combatants participating in an unjustified war - but not vice versa (barring certain qualifications). I shall argue here, however, that in the large number of wars (and in practically all modern wars) where the combatants on the justified side violate the (...) rights of innocent people ("collateral damage"), these combatants are in fact liable to attack by the combatants on the unjustified side. I will support this view with a rights-based account of liability to attack and then defend it against a number of objections raised in particular by Jeff McMahan. The result is that the thesis of the moral equality of combatants holds good for a large range of armed conflicts while the opposing thesis is of very limited practical relevance. (shrink)

At the end of 2017, Kristen Roupenian’s short story, Cat Person, went viral. Published at the height of the #MeToo movement, it depicted a ‘toxic date’ and a disturbing sexual encounter between Margot, a college student, and Robert, an older man she meets at work. The story was widely viewed as a relatable denunciation of women’s powerlessness and routine victimization. In this paper, I push against this common reading. I propose an alternative feminist interpretation through the lens of Simone de (...) Beauvoir’s notion of narcissism: a form of alienation that consists in making oneself both the subject and the ultimate project of one’s life. Framing Margot as a narcissist casts her as engaging, not in subtly coerced, undesired sex, but rather in sex that is desired in a tragically alienated way. I argue that Beauvoir’s notion of narcissism is an important tool for feminists today – well beyond the interpretation of Cat Person. It presses us to see systematic subordination not just as something done to women, but also as something women do to themselves. This in turn highlights the neglected role of self-transformation as a key aspect of feminist political resistance. (shrink)

The paper considers the proper method for theorizing about criminal jurisdiction. It challenges a received understanding of how to substantiate the right to punish, and articulates an alternative account of how that theoretical task is properly conducted. The received view says that a special relationship is the ground of a tribunal’s authority to prosecute and, hence, that a normative theory of that authority is faced with identifying a distinctive relation. The alternative account locates prosecutorial standing on an institution’s capacity to (...) address the basic reasons generating criminal liability. This reframes the normative issues at stake, and has the result that various, perhaps quite heterogeneous, considerations can substantiate penal authority. It also eliminates the existence of a special relation as a necessary condition for legitimate criminal accountability. The argument proceeds by offering an analysis and account of universal jurisdiction. Not only does the alternative elegantly perform where the received view struggles, it can accommodate much of what motivates the pursuit of relational ties in existing efforts to vindicate jurisdictional conclusions. (shrink)

This paper is a response to Jeff McMahan's "Just Cause for War". It defends a more permissive, and more traditional view of just war liability against McMahan's claims.

In most cases, liability in tort law is all-or-nothing—a defendant is either fully liable or not at all liable for a claimant's loss. By contrast, this paper defends a causal theory of partial liability. I argue that a defendant should be held liable for a claimant's loss only to the degree to which the defendant's wrongdoing contributed to the causing of the loss. I ground this principle in a conception of tort law as a system of corrective justice (...) and use it to critically evaluate different mechanisms for “limiting” liability for consequences of wrongdoing and for “apportioning” liability between multiple wrongdoers. (shrink)

McMahan argues that justification defeats liability to defensive attack (which would undermine the thesis of the "moral equality of combatants"). In response, I argue, first, that McMahan’s attempt to burden the contrary claim with counter-intuitive implications fails; second, that McMahan’s own position implies that the innocent civilians do not have a right of self-defense against justified attackers, which neither coheres with his description of the case (the justified bombers infringe the rights of the civilians) nor with his views about (...) rights forfeiture, is unsupported by independent argument, and, in any case, extremely implausible and counter-intuitive; and third, that his interpretation of the insulin case confuses the normative relations between an agent’s justification and non-liability on the one hand and permissible or impermissible interference with the agent’s act on the other. Similar confusions, fourth, affect his discussion of liability to compensation. (shrink)

This paper examines some of the possible legal implications of the production, marketing and use of expert systems. The relevance of a legally useful definition of expert systems, comprising systems designed for use both by laymen and professionals, is related to the distinctions inherent in the legal doctrine underlying provision of goods and provision of services. The liability of the sellers and users of, and contributors to, expert systems are examined in terms of professional malpractice as well as product (...) liability. A recurring theme indicates that legislators may be inclined to restrict possibilities of liability suits in order to avoid disincentives to the creation of expert systems. (shrink)

This paper focuses on the role of culpability in determining the degree of liability to defensive harm, and asks whether there are any restrictions on when culpability is relevant to liability. A natural first suggestion is that it is only relevant when combined with an actual threat of harm in the situation in which defensive harm becomes salient as a means of protection. The paper begins by considering the question of whether two people are equally liable to defensive (...) harm in a situation if both culpably intend to harm another, but due to circumstances outside the control of the two people only one has a chance of succeeding in causing harm. I argue that there is no difference in liability between the two. I then turn to a kind of slippery slope challenge that accepting this conclusion would lead to a vast over-inclusiveness in those liable to defensive harm, and consider a recent attempt at meeting it that requires that a person’s culpability can only affect liability if it concerns the very situation in which defensive harm is relevant. Finally, I put forward and assess a new way of meeting the challenge that appeals to a particular conception of culpability together with auxiliary theses concerning how culpability can decrease over time, among others. (shrink)

In this paper, I outline a proposal for assigning liability for autonomous machines modeled on the doctrine of respondeat superior. I argue that the machines’ users’ or designers’ liability should be determined by the manner in which the machines are created, which, in turn, should be responsive to considerations of the machines’ welfare interests. This approach has the twin virtues of promoting socially beneficial design of machines, and of taking their potential moral patiency seriously. I then argue for (...) abandoning the retributive approach to machine crime in favor of prioritizing restitution. I argue that this shift better conforms to what justice demands when sophisticated artificial agents of uncertain moral status are concerned. (shrink)

Adil Ahmad Haque argues that civilians who contribute to unjust lethal threats in war, but who do not directly participate in the war, are not liable to defensive killing. His argument rests on two central claims: first, that the extent of a person’s liability to defensive harm in virtue of contributing to an unjust threat is limited to the cost that she is initially required to bear in order to avoid contributing, and, second, that civilians need not bear lethal (...) costs in order to avoid indirectly contributing to unjust lethal threats. I argue that Haque’s defence of each claim fails. (shrink)

This article is a response to commentaries on my book, Killing in War, by Cécile Fabre, Alex Leveringhaus and Victor Tadros. It discusses the implications of the approach I have defended for the morality of war for such issues as internecine killing in war, humanitarian intervention and the bases of individual liability to attack in war.

The issue of the biological origin of consciousness is linked to that of its function. One source of evidence in this regard is the contrast between the types of information that are and are not included within its compass. Consciousness presents us with a stable arena for our actions—the world—but excludes awareness of the multiple sensory and sensorimotor transformations through which the image of that world is extracted from the confounding influence of self-produced motion of multiple receptor arrays mounted on (...) multijointed and swivelling body parts. Likewise excluded are the complex orchestrations of thousands of muscle movements routinely involved in the pursuit of our goals. This suggests that consciousness arose as a solution to problems in the logistics of decision making in mobile animals with centralized brains, and has correspondingly ancient roots. (shrink)

The standard of proof applied in civil trials is the preponderance of evidence, often said to be met when a proposition is shown to be more than 50% likely to be true. A number of theorists have argued that this 50%+ standard is too weak – there are circumstances in which a court should find that the defendant is not liable, even though the evidence presented makes it more than 50% likely that the plaintiff’s claim is true. In this paper, (...) I will recapitulate the familiar arguments for this thesis, before defending a more radical one: The 50%+ standard is also too strong – there are circumstances in which a court should find that a defendant is liable, even though the evidence presented makes it less than 50% likely that the plaintiff’s claim is true. I will argue that the latter thesis follows naturally from the former once we accept that the parties in a civil trial are to be treated equally. I will conclude by sketching an alternative interpretation of the civil standard of proof. (shrink)

The Moral Responsibility Account of Liability to Defensive Harm (MRA) states that an agent becomes liable to defensive harm if, and only if, she engages in a foreseeably risk-imposing activity that subsequently threatens objectively unjustified harm. Advocates of the account contend that liability to defensive harm is best understood as an aspect of distributive justice. Individuals who are liable to some harm are not wronged if the harm is imposed on them, and liability to defensive harm thus (...) helps ensure that harm is borne by whoever has least of an objection of justice against being burdened with it—or so advocates of the MRA insist. In this paper, I argue that liability to defensive harm is not grounded in considerations of distributive justice. While it depends on the wider societal context what allocation of a burden is distributively most just, liability to defensive harm is a distinctly localised affair. I propose that liability to defensive harm is best understood as part of the enforcement dimension of our rights to non-interference. Framing liability in this way does not invalidate the MRA. It does, however, render subjective impermissibility accounts of liability particularly promising. (shrink)

Who is responsible when an AI machine causes something to go wrong? Or is there a gap in the ascription of responsibility? Answers range from claiming there is a unique responsibility gap, several different responsibility gaps, or no gap at all. In a nutshell, the problem is as follows: on the one hand, it seems fitting to hold someone responsible for a wrong caused by an AI machine; on the other hand, there seems to be no fitting bearer of responsibility (...) for this wrong. In this article, we focus on a particular (aspect of the) AI responsibility gap: it seems fitting that someone should bear the legal consequences in scenarios involving AI machines with design defects; however, there seems to be no such fitting bearer. We approach this problem from the legal perspective, and suggest vicarious liability of AI manufacturers as a solution to this problem. Our proposal comes in two variants: the first one has a narrower range of application, but can be easily integrated in current legal frameworks; the second one requires a revision of current legal frameworks, but has a wider range of application. The latter variant employs a broadened account of vicarious liability. We emphasise strengths of the two variants and finally highlight how vicarious liability offers important insights for addressing a moral AI responsibility gap. (shrink)

Does undercover police work inevitably wrong its targets? Or are undercover activities justified by a general security benefit? In this article I argue that people can make themselves liable to deception and manipulation. The debate on undercover policing will proceed more fruitfully if the tactic can be conceptualised along those lines, rather than as essentially ‘dirty hands’ activity, in which people are wronged in pursuit of a necessary good, or in instrumentalist terms, according to which the harms of undercover work (...) are straightforwardly overcome by its benefits. This article motivates the ‘liability view’ and describes its attractions, challenges, and implications. (shrink)

A minimally responsible threatener is someone who bears some responsibility for imposing an objectively wrongful threat, but whose responsibility does not rise to the level of culpability. Minimally responsible threateners include those who knowingly commit a wrongful harm under duress, those who are epistemically justified but mistaken in their belief that a morally risky activity will not cause a wrongful harm, and those who commit a harm while suffering from a cognitive impairment which makes it prohibitively difficult to recognize and (...) act on what is morally required of them. The chapter argues that minimally responsible threateners can indeed be morally liable for the harms they impose. Put differently, culpability is not a necessary basis for liability. (shrink)

The current rise in malpractice litigation has led to concern in the research community as to the prospect of litigation against researchers. Clearly as the responsibility for the day-to-day conduct of the research falls upon the researchers they will be potentially liable should there be negligence in the conduct of the research project itself. But to what extent can the research ethics committee and its members be held liable should harm result to the research subject? How far does the prospect (...) of the threat of litigation equate with the reality of the prospect of liability? Although the NHS research governance framework suggests that primary responsibility for the conduct of the trial is with the researcher this does not mean that REC members will be immune from actions in tort where research subjects suffer harm in the conduct of a research project approved by their NHS REC. This paper focuses upon the prospect for liability in the law of tort of NHS RECs and their members. While in practice the vast majority of such claims are unlikely to be successful members of RECs may incur resultant legal costs as a consequence of involvement in proposed litigation. It is submitted that the scope of indemnity provision provided to RECs and their members should be precisely determined, otherwise there is a real prospect that the risk of malpractice litigation may deter individuals from serving on such committees. (shrink)

In this article, we demonstrate that individuals use motivated reasoning to convince themselves that their self-serving behavior is justified, which in turn affects the distribution of resources in business situations. Specifically, we explore how ambiguous contextual cues and individual beliefs can jointly form motivated reasoning. Across two experimental studies, we find that whereas individual ideologies that endorse status hierarchies can strengthen the relationship between contextual ambiguity and motivated reasoning, individual beliefs rooted in fairness and equality can weaken it. Our findings (...) contribute to person–situation theories of business ethics and provide evidence that two ubiquitous factors in business organizations—contextual ambiguity and social dominance orientation—give rise to motivated reasoning, enabling decision makers to engage in self-serving distributions of resources. (shrink)

The author investigates the necessity of fault as the prerequisite of contractual civil liability. The author makes the conclusion that Lithuanian law, following most of the countries belonging to the civil law tradition and contrary to the common law systems, as well as Vienna convention, UNIDROIT principles, PECL and DCFR, begins with the theory that fault is a requirement for contractual liability. Strict liability in Lithuanian law is the exception of this general rule. Nevertheless, the author argues (...) that the general rule is subject to important exceptions, and the practical importance of these exceptions is as great as the cases falling within the general rule. In case of no agreement of the parties or any provision of law regarding fault as the necessary prerequisite for contractual liability, in Lithuania, similar to France, the distinction between the obligations to produce a given result and the obligations to use reasonable care is essential: according to Article 6.200(4) of the Lithuanian Civil Code (hereinafter – the CC), a party in breach of an obligation to use best efforts is liable for fault. (shrink)

Many climate ethicists maintain that climate policy costs should be borne by those who historically emitted the most greenhouse gases. Some theorists have recently argued, however, that actors only became liable for emitting once the emissions breached legitimate legal regulation governing emissions. This paper challenges this view. Focusing on the climate responsibility of states, it argues that even if we assume that legitimate legal regulation is needed to remove excusable ignorance of entitlements to emit or is constitutive of such entitlements, (...) it does not follow that states should be exonerated from responsibility for all pre-legal emitting. This is because the pre-legal emissions may have violated moral duties not to behave recklessly and to promote the emergence of the relevant regulation. The paper closes by noting how grounding liability for emitting in such duties complicates the link between past emissions and liability. (shrink)

This collection of contemporary essays by a group of well-known philosophers and legal theorists covers various topics in the philosophy of law, focusing on issues concerning liability in contract, tort and criminal law. The book is divided into four sections. The first provides a conceptual overview of the issues at stake in a philosophical discussion of liability and responsibility. The second, third and fourth sections present, in turn, more detailed explorations of the roles of notions of liability (...) and responsibility in contracts, torts and punishment. The collection not only presents some of the most challenging work in legal philosophy, but it also demonstrates the interdisciplinary character of the field of philosophy of law, with contributors taking into account recent developments in economics, political science and rational choice theory. This thought-provoking volume will help to shed light on the underexplored ground that lies between law and morals. (shrink)

This paper offers an intervention in recent debates about white anti-racism by revisiting James Cone’s treatment of this topic in his early writings. In the last decade, scholars and activists have sought to reimagine the conceptual framework of white anti-racism, criticizing the dominant paradigm of “the ally” and articulating an alternative: “the accomplice.” While these critiques of white allyship accurately expose the serious deficiencies of that paradigm, the failure of white allyship is a symptom of a more fundamental crisis (...) within white anti-racism as a whole, one which the accomplice paradigm is equally unable to resolve. Cone’s early account of the relationship between black liberation and those racialized as white, which he articulates using the theological concept of conversion, offers important resources for a constructive account of conversion from whiteness as a way to imagine an ambiguous and paradoxical future for people racialized as white beyond the crisis of white anti-racism. (shrink)

Legal acts of the Republic of Lithuania establish several types of material liability of workers engaged in labour (professional) relations: material liability applied pursuant to the Labour Code of the Republic of Lithuania (hereinafter referred to as the LC) and material liability applied pursuant to the Law on Public Service of the Republic of Lithuania (hereinafter referred to as the LPC). In the present article, theoretical and practical aspects of material liability of Lithuanian public servants for (...) material damage caused are analysed. The authors of the article study the conditions for the application of the material liability and identify the main circumstances that must be determined in applying this type of legal compulsion. Furthermore, the authors investigate the relation between the material and disciplinary liabilities, study the limits of the application of labour law norms (that regulate material liability of employees) and civil law norms (regulating personal civil liability) in professional legal relations, identify the means and procedure for solving disputes arising in the application of the material liability. Practical mistakes in the application of the material liability of public servants and violations are analysed on the basis of a rather sparse case-law of the Supreme Administrative Court of Lithuania related to the material liability. (shrink)

This article focuses on the problem of criminal liability for unlawful engagement in economic activities, analyses the emergence and development of this norm in criminal law and the ways of its optimal explanation. Special attention is paid to the problem of identification of illegality of activities, based on specific tax and economic regulation. The study concludes that criminal liability must be limited to a violation of fundamental requirements for the legality of business, and does not include particular abuses (...) occurring in legal business. The author also deals with the criteria of delimitation of criminal and administrative liability for unlawful engagement in economic activities. Under Article 202(1) of the Criminal Code of the Republic of Lithuania, application of criminal liability is limited by two alternative conditions: either a person illegally undertakes activity in entrepreneurial way or on a large scale. According to the paper, the above-mentioned regulation lacks clarity and leads to the risk of unfounded prosecutions. The author gives practical examples, where on the basis of inexplicable criterion of an entrepreneurial way, criminal charges are filed in respect of petty economic activities. Such practice is incompatible with the purposes and principles of criminal law. The paper proposes to delete the criterion of an entrepreneurial way from the definition, leaving the possibility of criminal liability only in case of large scale illegal economic activity. The article also substantiates the conclusion that prohibited business activities provided for in Article 202(2) of the Criminal Code actually defies logical explanation and should be removed from the regulation. At the end of the article, the author offers a sample of optimal legal wording of unlawful engagement in economic activities in criminal law. (shrink)