6 Colum. J. Eur. L. 264 (2000)

reviewed by Lenny A. Budyonny.

This book attempts to answer two important and controversial questions in jurisprudence. The first question is concerned with conditions that make us responsible for the harm we cause. The second is why we should be held responsible at all. The answers to these questions appear at various points in a compilation of six previously published essays and one introductory essay. Five of these pieces were written between 1988 and 1998, one essay was published as early as 1964, and the Introduction was most likely written in 1999. While the author concedes that the volume contains repetitions because of its organization, on the whole this collection registers a “development of thought” whose origins go back to Honord’s work with Herbert Hart in the 1950s. In particular, these essays expand on the themes first formulated by Hart and Honore in Causation in the Law.

Honore responds to the questions above by offering a theory of outcome responsibility, in which our intervention in the world is by itself a sufficient condition for responsibility. One broad implication of this theory, of course, is that we always intervene in the world, whether by action or omission, and in so doing always bear responsibility for our actions. More importantly, this theory addresses responsibility and fault as two distinct concepts, in the sense that being responsible does not necessarily mean being at fault. Honore argues that this view allows one to envision responsibility as a derivative of luck rather than an instance of fault. To a degree, even legal liability depends on luck. Whether or not moral fault and legal liability arise out of responsibility is an entirely separate issue. But a more interesting issue, especially from the viewpoint of jurisprudence, is Honor6’s proposed connection between responsibility and luck in the light of his causation model.

Why is it more interesting? First, from a linguistic standpoint, we normally do not associate responsibility with luck. To say that someone is responsible connotes rational choice and accountability on the part of the responsible agent. The term “responsibility” itself has no concept of luck embedded in it, insofar as we use this term in everyday speech. Second, a determination of liability at law usually rests on a well-defined set of rules and principles where luck is rarely a criterion the courts resort to in deciding cases. If this is the case, then how could anyone attribute legal liability to luck? The second essay, Responsibility and Luck, grapples with this problem. Of all essays in this volume, this is by far the most important one because it delineates the basic premises of the argument for outcome responsibility.