Analysis of legal responsibility in the case of causing damage (from the standpoint of general theory and philosophy of law)
David Bourget (Western Ontario)
David Chalmers (ANU, NYU)
Rafael De Clercq
Jack Alan Reynolds
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By taking as its starting point the results of criticism of the understanding of the duty of reparation as a type of civil law sanction, the article examines the possible changes in the contents of the concept of legal responsibility in the case of causing damage. Therefore, the author first analyzed the concept of legal responsibility from the standpoint of the General Theory and Philosophy of Law and identified its basic characteristics: normativity, relatedness, groundedness in the applicable legal procedure, personal responsibility, attribution of wrongful conduct (wrong), retrospectivity and normative position of liability to sanction. On the basis of the foregoing essential characteristics of the concept of legal responsibility, the author analyzed the conventional concept of responsibility for damage as legal responsibility in the case of causing damage. Hence, it was concluded that the concept of responsibility for damage does not possess a single essential characteristic of the general concept of legal responsibility. Therefore, according to the author's opinion responsibility for damage cannot be regarded as a type of legal responsibility. Instead, it should only be regarded as a legal relationship of "responsibility for damage" in which the wrongdoer has a legal duty to repair the damage to the injured person and the injured person has a subjective right to demand from the wrongdoer to repair the damage. Furthermore, for the purpose of avoiding confusion concerning basic legal concepts, the author concluded that the institution of legal relationship of "responsibility for damage" should more appropriately be termed legal relationship of damage reparation thus emphasizing at the same time the essential contents and the fundamental purpose of this legal relationship. Finally, a new normative content of legal responsibility in the case of causing damage was elaborated. The author defined legal responsibility in the case of causing damage, in its normative sense, as a legal position of liability to means of execution (sanction) of a person who did not of one's own accord fulfill their duty of reparation (wrong). Such a definition of the concept of legal responsibility in the case of causing damage gives rise to certain theoretical advantages. Apart from resolving the problem of confusion of basic legal concepts, it makes for a unique definition of sanction in law, provides for the possibility of identifying wrongfulness as a necessary precondition for any legal responsibility, overcomes the current problem in international law concerning state responsibility without wrongfulness, solves the problem of theoretical justification of strict responsibility and vicarious responsibility, and offers a clearer theoretical definition of the institute of liability insurance.
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