RELATING TO RESPONSIBILITY: ESSAYS IN HONOR OF TONY HONORE ON HIS 80TH BIRTHDAY by Peter Cane and John
Gardner (Editors). Oxford: Hart Publishing Co., 2001. 246 pp. Cloth $55.00. ISBN: 1-84113-210-1.
Reviewed by Marc-Georges Pufong, Department of Political Science, Valdosta State University.
This book is a collection of essays that analyze and synthesize of the jurisprudence and scholarship of Tony Honore with a particular focus on his legal "theory of responsibility." It is somewhat unusual book because its contributors focus entirely on another book, Honore's RESPONSIBILITY AND FAULT (1999). The contributors essays represent, in my view, a catalogue of one of the best examination "by committee" on an aspect of the work of a single scholar.
As the subtitle of RELATING TO RESPONSIBILITY illustrates, its eight essays were written as a special tribute to Tony Honore for his 80th birthday. A ninth essay is by Honore. In it he generously responds to criticisms with humility and grace, is flexible, and is receptive to new ideas offered by his critics. But who is Tony Honore and why this book? Professor Honore is a legal philosopher, a Roman and common lawyer of great distinction, and a scholar of remarkable mind. He is Fellow of the British Academy and was Professor of Civil Law at the University of Oxford and a Fellow of All Souls College. His numerous books, including
RESPONSIBILITY AND FAULT, have made major contribution to legal scholarship during the past half-century. RESPONSIBILITY AND FAULT established Professor Honore in a category of scholars with a profound and enduring influence in the area of moral and legal responsibility. This legacy originated with
CAUSATION IN THE LAW (1959), a collaborative effort with H. L. A. Hart. Professor Hart emerged from the collaboration in CAUSATION IN THE LAW to
write many influential works in the area of criminal law. Hart did so while deliberately steering away from what at the very core represented the theoretical and philosophical issues surrounding the CAUSATION IN THE LAW. Professor Honore continued to exploring the core philosophical issues alone, and his efforts over the years would be translated into a second edition of the book with the same title in 1985. Part of that effort also culminated in RESPONSIBILITY AND FAULT.
In RESPONSIBILITY AND FAULT Honore set out, among other things, to solve a question, "Why should we be held responsible for the harm we cause?" In so
doing he not only advanced a proposition but also formulated a theory of responsibility. Also known as the theory of OUTCOME RESPONSIBILITY, it states that to be responsible it is sufficient to have intervened in the world. Responsibility, Honore argued, can be a matter of luck than fault or merit, and thus "to act" and "to be responsible" is to assume certain risk. In Honore's formulation of the theory of responsibility whether responsibility carries with it moral blame or legal liability is an important but a secondary question. In practice the theory or conceptual
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framework he formulated was used to explain the moral basis of strict liability in tort law. It is also was used to illustrate when there is a moral difference between POSITIVE ACTS and OMISSIONS on one hand, and on the other, the extent to which a given circumstance that causes a wrongdoer to do wrong should affect their responsibility for an act.
From a wider perspective Honore's theory examined other conceptual issues and offers assistance for practical and real-world conflict resolution. Approaching responsibility from a "cause" perspective, Honore posited several questions. For example, to what extent does causation in law or legal context differs from causation outside the law, or what are the appropriate criteria in law for deciding whether one action or event has caused another harmful event? The importance of the question, he argues, is that "responsibility" in law very often depends on showing that a specific action, event or state of affair has caused specific harm or loss to
another. Are the criteria adopted, conceptual linkages made, and assumptions advance for and in deciding these issues that are both objective and properly attuned to the function of fixing responsibility? The theory and assumptions made and how Honore tackled these questions in RESPONSIBILITY AND FAULT form the basis for review, critique, and analysis presented by eminent scholars in RELATING TO RESPONSIBILITY.
The essays that make up RELATING TO RESPONSIBILITY not only explore the contribution of philosophy of action and of mind to our understanding of the law but also confront fundamental questions about the relationship between moral and legal responsibility. The eight essays in the book are the fruits of two workshops carefully planned and organized in two continents and two cities to honor both the work and person of Tony Honore. The first four essays were presented in Canberra in November 1999, and the other four, in New York City in March 2000. They focus on specific chapters in RESPONSIBILITY AND FAULT. In that book Professor Honore raised three lines of inquiry with which the contributors of the essays in this volume take issue. The first line of inquiry addresses "human
capacity," or how do people's capacities and incapacities bear on their moral and legal responsibility? The second line of inquiry has to do with why are people responsible above all for harm they actually bring about or, as Honore puts it, "why are responsible people above all, outcome responsible?" Finally, the third line of inquiry examines "what counts as an outcome in relevant sense" if people are outcome responsibly? The concerns here revolve on "which relations are causal once, how causal relations differ among them, and which causal relations are responsibility grounding."
The first line of inquiry focuses on, "how do people's capacities and incapacities bear on their moral and legal responsibility." For example, how can it be possible to praise or blame, people or hold them legally liable even when, given the circumstance, including their state of mind and body at the time, they could not then have done things differently? According to Honore, if the "general capacity" theory is accepted we bypass the objection that determinism--if true--rules out praise, blame and legal liability. Honore first put this theory forward in 1964 in attempt to explain certain capacities by testing them at a certain level of generality. In this volume the idea is picked up and examined by Michael Smith and Philip Pettit in their essays. They both review and reveal some classical puzzles about "responsibility" in its nature and form. Specifically, Michael Smith and Philip Pettit's
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essays argue that morals and law require as a condition of blame or liability, a general capacity to perform successfully.
Michael Smith's essay titled "Responsibility and Self-Control" takes on the issue of self-control (pp. 1-19). He starts from the view that to blame someone morally or impose a legal sanction on them for what they have done requires not merely that they have done something reprehensible for which they are in a broad sense responsible. It must also be the case that, when they acted, they had the capacity to reach a rational decision about what they did. In effect, they must possess the necessary ability to control their conduct. Smith's account of capacity to self-control as a capacity for co-ordination is attractive and receives positive appraisal
from Honore in his summary essay. Honore, however, views Smith's account of capacity as a normative capacity, a capacity to order desires, beliefs, and psychological states in accordance with norms of coherence. He argues that it does not follow, that if an agent possesses the capacity for self-control, the agent's desires and beliefs are ordered in a way that rests on socially acceptable norms. The agent's conduct may be coherent and yet directed to unacceptable ends.
Philip Pettit's essay, titled "The Capacity of have Done Otherwise: An Agent-Centered View" also deals with different aspects of an agent's capacity. He predicates his argument on the assumption that the possession of capacity is conditioned by praising or blaming the agent for doing what he or she in fact does (pp. 20-35). He contrasts an act-centered approach to the problem with an agent-centered approach. He argues, for instance, that the act-centered approach, i.e., asking whether the act could the have been different, is objectionable. Either it requires that there be gaps in causal laws which is inconsistent with determinism, or it assumes that the mere absence of compulsions of the sort (that intuitively rule out free agency) automatically exposes the agent to praise or blame for his or
her conduct- which is not self-evident and need to be justified.
The agent-centered approach on the other hand is concerned instead to ask what sort of agent the person in question is. Also, what is the agent capable of doing in general? Does it mean that when people do or do not come up to the standard of which they themselves are in general capable it is normatively to praise or blame them? Pettit points out that praise or blame will not be justified if it is employed merely as a technique for conditioning the agent. That would be disrespectful and a ground for resentment. But if agents hold themselves out as tracking standards and as able to meet the requirements of ordinary social assumption, they invite
praise or blame to the extent that they meet or fail to meet the expectations they arouse. This openness to praise or blame can sometimes be rebutted, since it presupposes that the agent has acted freely in the sense of not being subject to inner compulsions or manipulation by others. However, ordinarily, this too can be taken for granted. That is, provided the capacity the agent has in mind is taken to be a matter of degree. For instance, we can only know that an agent has the capacity to track standards if that is what the agent, on the whole does when he or she tries to do so. A person who benefits from being treated by others is a
person with whom to converse and deal and who has in return to accept criticism of his or her failure to meet the standards that he or she expects to meet.
Overall, Pettit present a persuasive argument, a fact also acknowledged as such by Tony Honore in his rebuttal and appraisal of Smith's review.
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The next four essays--by Ripstein, Perry, Perry, and Cane and Gardner--focus on the second line of inquiry (pp. 38-143). This has to do with why are people responsible for the harm they bring about or, as Professor Honore puts it, why are responsible people above all, outcome responsible? What is the relationship of outcome responsible to just distribution of risk in tort law? Outcome responsibility, as conceived by Honore, is the idea that certain outcomes of our conduct, settled
according to causal criteria, are ours, even when they are unforeseen or unintended. We identify with them or others attribute them to us. They form a constituent element of our individual character and identity, without which we should lack achievement and failure both in our own eyes and in the eyes of others. If we possess a minimum capacity to control our conduct, Honore argues, we are morally responsible for these outcomes, good or bad, although we are not always in the case of bad outcomes morally blameworthy or legally liable for them. Since we benefit from being regarded as rational agents, the attribution of responsibility in this way is fair. How far responsibility should carry with a moral praise or blame, or legal liability, depends on other factors, which include the virtues, or vices that our conduct exhibits, the likely consequences of imposing liability and the need to distribute risk fairly.
Again, what is the relationship of outcome responsible to "just distribution of risk in tort law?" With regard to this question, the first two of the four authors in four sets of essays in this section of the volume (Arthur Ripstein and Peter Cane) evince serious doubts about Tony Honore's questions and propositions in this line of inquiry. Specifically, Ripstein and Cane have serious reservations about whether truly responsible people really are outcome responsible in the relevant sense. First, in his essay titled "Private Law and Private Narratives" Arthur Ripstein argues that outcome responsibility in its autobiographical aspect does not on its
own provide a reason for imposing liability nor is the law of torts interested in subjective query of the sort (pp. 37-60). However, he insists that tort liability requires only that the agent have the minimum capacity needed for outcome responsibility and, in addition, a violated right to which the victim is entitled to under a system of fair distribution of risk. In tort the standard is "the reasonable person of ordinary foresight and prudence standards." Although observing that tort law does not judge agents by the standard of their own capacities he concedes that the "general capacity standard" is determined by an agent's general capacity to control his or her conduct and, in particular, to avoid harming others. Honore takes issue with Ripstein's essay on what he perceives as a "downplaying" of the role of his argument about the balance of benefits and burdens. In Honore's view, certain steps are needed if, in tort law, an agent is to be held accountable to the standard of conduct of the reasonable person.
Peter Cane's essay titled "Responsibility and Fault: A relational and functional approach to responsibility," disputes Honore's claim that outcome responsibility, rather than moral responsibility as generally understood, is the basic type of responsibility in a community requiring fault or legal responsibility or fault and special danger (pp.81-110). In the first part of the essay, Cane establishes a critical account of Honore's work in the area of outcome responsibility. First, Cane argues that by concentrating on the relationship between conduct and outcomes, Honore gives insufficient attention to other important factors relevant to judgments of responsibility in various contexts. Put differently, Cane argues that although Honore's theory of
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outcome responsibility offers a valuable account of the ontological function of responsibility, his account of the scope of outcome responsibility is incomplete. Also, because Honore pays insufficient attention to other functions of responsibility and to the relationships between agents and outcomes and victims and society, Cane claims that outcome responsibility is basic and that other types of responsibility are forms or versions of it are unconvincing. Taking his argument a step further, Cane argues that there is an important distinction between strict liability and liability for bad and good luck. Accordingly, he argues that Honore's failure to take account of this distinction undermines his claims to have found in the idea of "outcome responsibility" the key to justifying strict legal liability. The key to understanding the variety of responsibilities, which make up our responsibility practices, lies in an appreciation of their various functions and the variety of relationships that they regulate.
Generally, although Honore agrees with Cane's critique that there can indeed be moral responsibility without moral blame, he argues that outcome responsibility entails moral responsibility. At the very least, Honore contends that moral responsibility is triggered when an agent's conduct impinges on someone else and that this fact need not entail "moral blame "or "legal liability." To Honore, therefore, the distinction between responsibility outside the law and within it provides clarity between what, in fact, may be "legal liability" and "legal responsibility." A second point projected by Honore in his rebuttal to Cane's review of his theory
is that responsibility for outcome of one's conduct, though very basic in relation to moral and legal liability, is not the only form of responsibility. He points to three species of responsibility first introduced in his book RESPONSIBILITY AND FAULT and reiterated here again. These species of responsibility include "responsibility for one's own conduct," "the responsibilities undertaken for other people or things," and "responsibilities that are entrusted upon as members of a community."
Although Honore agrees with the thrust of Peter Cane's critique of his theory of responsibility, he expresses reservation in specific areas. For instance, he agrees that the prime function of "legal and moral responsibility" is different from that of "outcome responsibility"; however, he does so solely on the basis of the initial question asked. Hence, questions about "which outcomes we are identified with "according to Honore, can be explained independently of the questions such as "what moral or legal consequences result from such identification." Much the same, he insists, applies to the view that the theory of outcome responsibility is
not sensitive to the role of luck in relation to outcome. Finally, despite some divergence in detail most of which the concerns the objective character of the contribution of outcomes to people, Cane's ultimate opinion on the theory of responsibility outcome does not seem to be radically inconsistent from Honore's formulation of that theory in RESPONSIBILITY AND FAULT.
Stephen Perry, in "Honore on Responsibility for Outcomes," and John Gardner, in "Obligations and Outcomes in Law of Torts," also set out a constructive framework to critique Tony Honore's assumptions on the theory of outcome responsibility. Their contribution is consistent with the second line of inquiry noted above, which inquires, "why are people responsible above all for harm they actually bring about?" Following Honore's formulation he asks, "Why are responsible people above all, outcome responsible?" Although John
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Gardner seem to put Honore's theory of outcome responsibility in firmer perspective, Stephen Perry in his review essay makes the point that the notion of outcome responsibility presented in RESPONSIBILITY AND FAULT is characterized in ways that are not always compatible (see pp. 61-80 and 111-42). This, he asserts, inevitably leads to a wide and variable understanding. For example, he contends that sometimes he understands Honore's notion of outcome responsibility as relating to PERSONHOOD, something inescapably attaching to the HUMAN CONDITION, and/or presented as a social system capable of change. In this way, he contends, outcome responsibility is similar to change in tort law as "fault or strict liability," is replaced by a system of "social insurance."
Further, Perry contends that the elements of personhood and social understanding are in tension. Incidentally, Honore in his rejoinder assessment agrees wholly with Perry's concerns raised. Indeed, in what I deem to a direct and bold response, Honore maintains that, "it is true that what is said about outcome responsibility in the essays collected in RESPONSIBILITY AND FAULT is not always consistent." The essays, he notes, were written over a period of time, and were not homogenized. Professing now to have a somewhat new and improved perspective, he contend that his current (mature) view is that outcome responsibility though inescapable, possesses both a substantive view and a social aspect. For example, Honore maintains that outcomes of what we do are attributed to us in a way that is essential to our conception of ourselves as individuals and also forms the basis on which we acquire credit or discredit in the eye of others. However, he adds, although we cannot exactly equate our successful outcomes and failures as seen by others, the common-sense principles of attribution are objective enough to ensure that, except with the mentally ill, the two are not radically in conflict. In their respective conclusions, the four essays in this section demonstrates variety of inter-agreement with Honore's propositions as well as reinforces and edifiers them while nevertheless attempting to shake some of the principal foundations of
Finally, the third line and last line of inquiry about Honore's 1999 book focuses on the fact that people are "outcome responsible." Of the two essays, only Jane Stepleton's essay titled "Unparking Causation" relates its focus on aspects of Honore's work developed in CAUSATION IN THE LAW that dealt with "outcome responsible" (pp. 146-86). William Lucy's essay "Private Law: Between Visionaries and Bricoleurs" mark a broad coverage on methodology of legal philosophy (pp. 188-218). Although conceived differently, both essays are consistent with the third line of inquiry involving specific questions about "what counts as an outcome in relevant sense, which relations are causal once, how do causal relations differ among themselves, and which causal relations are responsibility grounding." Stapleton's contribution here is devoted on specific contentions probing questions that test propositions drawn partly from the CAUSATION IN LAW and
FAULT AND RESPONSIBILITY. With emphasis on legal theory, she also injects further query probing whether "it is lawyers' philosophy or philosophers'
law" and 'how broader questions on philosophical sweeps interplay with legal niceties' (pp. 145-86). Professor Honore's appraisal of her review is not positive. He observes that, although her essay was fascinating, it suffered from a strategic weakness. For example, Honore points to failure to distinguish between "forensic and analytical considerations" and also the failure
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to distinguish between "issue of fact and normative questions," and more generally, between different types of normative issues.
Arguments advanced by William Lucy in his review "Private Law: Between Visionaries and Bricoleurs" is remarkably different from other essays in this volume (pp. 187-218). As noted, others have addressed in a variety of rigorous and illuminating ways the substance of Tony Honore's path breaking work on causation and the varieties of responsibility. Although Lucy contends that many works mark a broad coverage on methodology of legal philosophy, he also depicts ideal types termed "visionaries" and "bricoleurs." He argues that neither of the two views of scholarship is likely to yield a philosophically engaged and legally meaningful understanding of law, and in particular, private law. Furthermore, since both embody the different and oft incompatible hopes for law, Lucy argues that the tension between the two views of scholarship is hardly new or significant. The language used in describing such tension although not significant, is predicated on whether or not it is genuine and, if so, how it might be dealt with in practice. To Lucy, Honore's work is the exemplary kind of scholarship required to achieve a philosophically
engaged and legally meaningful understanding of law.
Overall, the contributors to this book do a great job relating Professor Honore to his theory of responsibility and overall legal scholarship in variety and interesting ways. The review essays are splendidly written, intellectually engaging with absolutely no punches pulled. The preface by Peter Cane does a good job in introducing the various pieces, and the rejoinder essay by Honore that responds to each of the critiques is insightful and facilitates a fuller understanding of nuances in the conceptualization of the theory of responsibility. There is great admiration and cordiality shown to Honore in the essays that perhaps may in part be attributed to the very unusual structure of the two seminars that resulted into this book. Although it obvious in the exchanges that some of the contributors knew Professor Honore personally or have worked closely with him, it also obvious that the other authors knew him only through his publications.
As part of the review, some of the contributors traced the steady development of Tony Honore's scholarship over the years, while two approached RESPONSIBILITY AND FAULT as the starting point for their analysis. All of them however, demonstrate a rare combination of humility and rigor in their assessment of his work showing a great deal of respect for his exceptional passion for the most demanding subject, as to so many others has done before. As exemplified by his many books in law and philosophy of law, it should be noted that the works discussed here based on RESPONSIBILITY AND FAULT, represent only one dimension of Honore's contribution to theoretical study of legal doctrines. Those interested in jurisprudence as well as in theory building, and specifically the theory of responsibility, will find this book interesting.
Honore, Tony. RESPONSIBILITY AND FAULT, Oxford: Hart Publishing, 1999
Honore, Tony and H. L. A. Hart. CAUSATION IN THE LAW, Oxford: Clarendon, 1959.
Copyright 2002 by the author, Marc-Georges Pufong.