Tort liability without taking responsibility

Abstract

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.