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Responsibility in Law and Morality - Peter Cane

Responsibility in Law and Morality

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Lawyers who write about responsibility tend to focus on criminal law at the expense of civil and public law; while philosophers tend to treat responsibility as a moral concept, and either ignore the law or consider legal responsibility to be a more or less distorted reflection of its moral counterpart. This book aims to counteract both of these biases. By adopting a comparative institutional approach to the relationship between law and morality, it challenges the common view that morality stands to law as critical standard to conventional practice. It shows how law and morality interact symbiotically, and how careful study of legal concepts of responsibility can add significantly to our understanding of responsibility more generally. At the heart of this book lie two questions: what does it mean to say we are responsible? And, what are our responsibilities? Its aim is not to answer these questions but to challenge some traditional approaches to answering them and more importantly, to suggest fruitful alternative approaches that take law seriously. Cane's lucidly-written and well-argued book is one of the finest ever contributions to responsibility theory ranking qualitatively with Joel Feinberg's Doing and Deserving (Princeton 1970) and H.L.A. Hart's Punishment and Responsibility (Oxford 1968).It is absolutely required reading for anyone interested in developing a more comprehensive theory of responsibility." -J. Angelo Corlett (Mind)

"Cane's lucidly-written and well-argued book is one of the finest ever contributions to responsibility theory, ranking qualitatively with Joel Feinberg's Doing and Deserving (Princeton, 1970) and H.L.A. Hart's Punishment and Responsibility (Oxford, 1968). It is absolutely required reading for anyone interested in developing a more comprehensive theory of responsibility." - J. Angelo Corlett (Mind)

Moral and Legal Responsibilityp. 1
Prospectusp. 1
Starting points and themesp. 1
The structure of the bookp. 4
The institutions of law and moralityp. 6
Lawp. 6
Moralityp. 10
The relationship between law and moralityp. 12
Moral reasoning and legal reasoningp. 15
Practical and analytical reasoningp. 16
Context and levels of abstractionp. 22
Deduction, induction and analogyp. 25
Summaryp. 28
The Nature and Functions of Responsibilityp. 29
Varieties of responsibilityp. 29
Hart's taxonomyp. 29
The temporal element in responsibilityp. 31
Personal and vicarious responsibilityp. 39
Individual, shared and group responsibilityp. 40
Responsibility and sanctionsp. 43
Responsibility, evidence and proofp. 44
Responsibility as a relational phenomenonp. 49
Responsibility, agents and outcomes: three paradigms of legal responsibilityp. 49
Responsibility and social valuesp. 53
Summaryp. 56
Functions of responsibility practicesp. 56
Responsibility, liability and the functions of lawp. 60
Conclusionp. 63
Responsibility and Culpabilityp. 65
Responsibility, liability and culpabilityp. 65
Responsibility and luckp. 66
Limited sensitivity to luckp. 66
Limited sensitivity to circumstantial luckp. 69
Limited sensitivity to dispositional luckp. 72
Liability, sanctions and dispositional luckp. 76
Criteria of legal liabilityp. 78
Faultp. 78
Strict liabilityp. 82
The incidence of fault-based and strict liabilityp. 85
The nature and function of legal criteria of liabilityp. 88
Liability criteria are nestedp. 88
Liability criteria are building blocksp. 89
Liability criteria and answersp. 89
Liability criteria and sanctionsp. 92
Responsibility, fault and culpabilityp. 94
"Moral responsibility requires intentionality"p. 95
Some definitional preliminariesp. 96
The importance of choicep. 97
Summaryp. 110
Responsibility and Causationp. 113
Causation, consequences and outcomesp. 114
The nature of causation in lawp. 115
The scope of the causation questionp. 115
The temporal orientation of causationp. 116
The meaning of "cause"p. 117
Causation as interpretationp. 118
Causation in the criminal law and civil law paradigmsp. 119
Factual causationp. 120
The but-for and NESS testsp. 120
Causation, proof and uncertaintyp. 123
Attributive causationp. 128
The relationship between causation and responsibilityp. 128
Principles of causal responsibilityp. 130
Causation in law and moralityp. 136
Conclusionp. 140
Responsibility and Personalityp. 143
Three issues of personality and responsibilityp. 143
Approaches to the relationship between personality and responsibilityp. 143
Legal personality and the corporationp. 145
Legal principles of group personalityp. 148
Responsibility, personality and rules of attributionp. 148
Responsibility and capacityp. 150
Basic legal rules of attributionp. 151
Group responsibility and division of labourp. 158
The scope and functions of group responsibilityp. 162
Legal and moral group responsibilityp. 163
Modified humanistic approachesp. 165
Divided mindsp. 169
Shared responsibilityp. 171
The relationship between group and shared responsibilityp. 171
Joint and concurrent responsibilityp. 172
Contributory negligencep. 173
Secondary responsibilityp. 173
Secondary and group responsibilityp. 174
Vicarious responsibilityp. 175
Assessing shares of responsibilityp. 177
Conclusionp. 179
Grounds and Bounds of Responsibilityp. 181
The basic argument and a prospectusp. 181
Responsibility, protected interests and the functions of lawp. 181
Responsibility, distributive justice and the functions of lawp. 186
Protected interests, proscribed conduct and distributive justicep. 190
Grounds of legal responsibilityp. 191
Breach of promises and undertakingsp. 191
Interference with rightsp. 196
Uttering untruthsp. 198
Breach of trustp. 200
Doing harmp. 202
Creating risks of harmp. 206
Making gainsp. 208
Contemplating crimesp. 209
The bounds of legal responsibilityp. 210
For breach of promises and undertakingsp. 210
For interference with rightsp. 211
For uttering untruthsp. 213
For breach of trustp. 213
For doing harmp. 214
For creating risks of harmp. 221
For making gainsp. 221
For contemplating crimesp. 223
Conclusionp. 224
Realising Responsibilityp. 225
The "law in the books" vs the "law in action"p. 225
Settlementp. 226
The nature of settlementsp. 226
The dynamics of the settlement processp. 229
For and against settlementp. 232
Settlement and responsibilityp. 235
Selective enforcementp. 239
Spreading legal responsibilityp. 241
The importance of insurance in civil lawp. 241
Insurance and interpretations of tort lawp. 242
A relational and functional account of the relationship between reponsibility and liability insurancep. 245
Conclusionp. 249
Responsibility in Public Lawp. 251
The public law paradigmp. 251
The institutional framework of public lawp. 254
The province of public lawp. 256
Grounds of public law responsibilityp. 258
Civil liabilityp. 258
Criminal liabilityp. 264
Judicial reviewp. 268
Bounds of public law responsibilityp. 272
Civil liabilityp. 272
Criminal liabilityp. 273
Judicial reviewp. 273
Public law responsibility and "the problem of dirty hands"p. 275
Conclusionp. 278
Thinking about Responsibilityp. 279
Referencesp. 285
Indexp. 297
Table of Contents provided by Syndetics. All Rights Reserved.

ISBN: 9781841134000
ISBN-10: 1841134007
Audience: BAC
Format: Paperback
Language: English
Number Of Pages: 320
Published: 9th July 2003
Country of Publication: GB
Dimensions (cm): 23.3 x 15.7  x 2.6
Weight (kg): 0.47
Edition Number: 1