responsibility not the concern of law

Responsibility is often thought of as primarily a legal concept. Even when it is moral responsibility that is at issue, it is assumed that it is above all in moralities based on law-centered patterns and models that responsibility takes center stage, so that responsibility is a legal concept at its core, and is applicable to the realm of private morality only by extension and analogy.

As a genetic claim about the historical origins of the concept, this account may well be true. What I wish to suggest, however, is that, regardless of how our concepts may have originated, judgments of responsibility are most properly at home in the realm of private morality, and are out of place in the legal sphere.

By “responsibility” I mean, of course, more than mere causal responsibility, in the sense invoked when we say that the acid was responsible for the corrosion of the metal, or that an asteroid was responsible for the extinction of the dinosaurs. Judgments of causation are, of course, essential to the working of any legal system. But there is a narrower sense of responsibility, having to do with positive considerations of knowledge and control, as well as normative considerations of praiseworthiness, blameworthiness, and obligation; and it is responsibility in this sense that I maintain is legally irrelevant.

Let me quickly qualify this “legal irrelevance of responsibility” in two ways.