Jurisprudence
Liability versus Responsibility
At a Glance ▪ Salmond uses the two words as synonyms: 'Liability or responsibility is the bond of necessity that exists between the wrongdoer and the remedy of the wrong.' ▪ Hart (Punishment and Responsibility, 1968) showed that responsibility has four senses: role, causal, liability and capacity responsibility. Only the third is a synonym of liability. ▪ The words part company in both directions. Liability without personal fault: vicarious, strict and absolute liability (Vidyawati, 1962; M.C. Mehta, 1987). Responsibility without liability: moral blame the law does not enforce, or harm caused by pure accident. ▪ Capacity is the precondition of penal liability: children under seven (Section 20 BNS, formerly 82 IPC), children of seven to twelve of immature understanding (Section 21 BNS, formerly 83 IPC), persons of unsound mind (Section 22 BNS, formerly 84 IPC). ▪ Companies and the State answer through attribution and vicarious principles (Standard Chartered, 2005; Nilabati Behera, 1993). Hohfeld's liability, the correlative of a power, is a different idea altogether (Note 28). |
A school bus overturns on a hill road, and everyone asks who is responsible. The teacher in charge was responsible for the children: that was her job. The burst tyre was responsible for the crash: it was the cause. The school is responsible to the injured families: it must pay. The six-year-old who had been jumping on the seats is not responsible at all: he is too young to be blamed. The law is interested mainly in the third, liability. This note explains where liability and responsibility coincide and where they part; the general theory of liability is in Note 34.
1. Salmond: Two Names for One Bond
For Salmond, liability is the last link in a chain running from duty to breach to consequence: the law ties the wrongdoer to the remedy of his wrong, whether compensation (remedial liability) or punishment (penal liability). He called that tie indifferently liability or responsibility, and legal usage agrees: a defendant held responsible for the damage must pay for it. Yet Salmond's own theory contains the points of divergence. He explains why the law sometimes imposes liability without fault, why one person may answer for another's wrong, and why infants and the insane are exempt though they caused harm. In each case being responsible, in the sense of blameworthy, and being liable, in the sense of answerable, do not match.
Classic Definitions ▪ Salmond (Jurisprudence): 'Liability or responsibility is the bond of necessity that exists between the wrongdoer and the remedy of the wrong.' ▪ Hart (Punishment and Responsibility, 1968): the word responsibility is used in four senses: role responsibility, causal responsibility, liability responsibility and capacity responsibility (paraphrase). ▪ Kelsen (General Theory of Law and State, 1945): a person is legally responsible when a sanction may be directed against him; usually the wrongdoer himself, but the law may direct the sanction against another (paraphrase). |
2. Hart's Four Senses of Responsibility
H.L.A. Hart illustrated the senses with a story about a sea captain. As captain he was responsible for the safety of passengers and crew. On his last voyage he was drunk every night and was responsible for the loss of the ship. Rumour said he was insane, but the doctors found him responsible for his actions. He blamed the storms as responsible for the loss. He was found criminally and civilly responsible, and he remains morally responsible for many deaths. One word does four different jobs.
Sense | Meaning | In the captain's story | Legal illustration |
|---|---|---|---|
Role responsibility | The duties that attach to an office, post or task | As captain he was responsible for the passengers' safety | A guardian's duties; a director responsible for the conduct of a company's business (s.141 NI Act) |
Causal responsibility | Being the cause of an outcome; things and events can be responsible in this sense | He blamed the storms for the loss | The escaping gas that caused injury; the swerve that caused the collision |
Liability responsibility | Being answerable to punishment or to make compensation, under legal or moral rules | Criminally and civilly responsible; morally responsible for the deaths | A conviction; a decree for damages |
Capacity responsibility | Having the capacities of understanding, reasoning and control of conduct that make a person answerable | The doctors found him responsible for his actions | Sections 20 to 22 BNS; the Juvenile Justice Act, 2015 |
The senses are connected. Legal liability usually rests on the other three: the law holds a person liable because he had a duty (role), brought about the harm (cause) and could have acted otherwise (capacity). Hart grouped the criteria of liability under three heads: mental conditions such as knowledge, intention and capacity; a causal or other connection between the act and the harm; and a relationship between the person held liable and the actual wrongdoer, as between employer and employee (paraphrase). The third head is where liability begins to outrun personal responsibility.
3. Liability Without Personal Responsibility
Vicarious liability
An employer is liable for his employee's tort in the course of employment though he did nothing wrong himself. The employee is causally and morally responsible; the employer is liable because of the relationship (respondeat superior). The justification is distributive, not moral: the employer takes the profit, controls the work and can best bear and insure the loss.
State of Rajasthan v Vidyawati; Nilabati Behera v State of Orissa Supreme Court of India, 1962 and 1993 Vidyawati: the driver of a government jeep negligently killed a pedestrian; the State was vicariously liable like any employer, since maintaining the jeep was not a sovereign function (contrast Kasturi Lal, 1965: Note 34). Nilabati Behera: for a custodial death the Court awarded compensation under Art. 32 as a public law remedy based on the State's strict liability for violating Art. 21; sovereign immunity is no defence. The State answers for the wrong of its agents. |
Strict and absolute liability
Here the defendant is causally responsible but not at fault. Under Rylands v Fletcher (1868) the keeper of a dangerous thing is liable for its escape though he took every care, subject to exceptions (Note 85). Indian law went further.
M.C. Mehta v Union of India (Oleum Gas Leak) Supreme Court of India, 1987 An enterprise engaged in a hazardous or inherently dangerous activity is absolutely liable for harm resulting from it, with none of the Rylands exceptions available, and compensation must match its magnitude and capacity. Liability follows the risk created, not blame (Note 86). |
Corporations and their officers
A company has no mind of its own, so the law attributes to it the acts and state of mind of its directing mind and will. Here liability is fixed first and responsibility is constructed to support it.
Standard Chartered Bank v Directorate of Enforcement; Iridium India Telecom v Motorola Supreme Court of India, 2005 (5 judges, 3:2) and 2011 A company may be prosecuted even for an offence carrying mandatory imprisonment, the court imposing the fine (Standard Chartered), and may have the mens rea for cheating attributed to it from those who control it (Iridium). |
Attribution does not run backwards: a director is not criminally liable merely because he holds office (Sunil Bharti Mittal v CBI, 2015). Vicarious criminal liability needs a statute, such as Section 141 of the Negotiable Instruments Act, 1881, which deems guilty every person who was in charge of, and responsible to, the company for the conduct of its business when a cheque offence was committed. The statute turns Hart's role responsibility directly into liability, and illustrates Kelsen's point that the person under the duty and the person sanctioned may differ.
4. Responsibility Without Liability
A person may be morally responsible without legal liability: the strong swimmer who watches a child drown in shallow water is blameworthy, but the law generally imposes no duty to rescue a stranger (Note 88). He may be causally responsible without liability: an accident in doing a lawful act by lawful means with proper care is no offence (formerly Section 80 IPC), and a consequence too remote is not charged to the wrongdoer (the Wagon Mound, 1961: Note 34). And a debtor whose debt is time-barred is still bound, though the creditor's remedy by suit is gone: Salmond's imperfect obligation (Notes 28 and 35).
5. Capacity: The Precondition of Liability
Capacity is the sense the law builds most directly into penal liability. Hart defended the excusing conditions on the ground that they give each person a fair opportunity to choose whether to obey, so that sanctions fall only on those who chose to break the law (paraphrase).
Capacity in Indian law ▪ Under seven. Nothing is an offence which is done by a child under seven (Section 20 BNS, formerly Section 82 IPC). The incapacity is conclusively presumed. ▪ Seven to twelve. No offence if the child has not attained sufficient maturity of understanding to judge the nature and consequences of his conduct on that occasion (Section 21 BNS, formerly Section 83 IPC). ▪ Unsoundness of mind. No offence if, by reason of unsoundness of mind, the person was incapable of knowing the nature of the act or that it was wrong or contrary to law (Section 22 BNS, formerly Section 84 IPC): legal, not medical, insanity, descended from the M'Naghten Rules (1843). ▪ Under eighteen. The Juvenile Justice (Care and Protection of Children) Act, 2015 treats such a person as a child in conflict with law, dealt with by the Juvenile Justice Board for care and rehabilitation rather than punishment. For a heinous offence alleged against a child of sixteen to eighteen, the Board assesses his mental and physical capacity and his ability to understand the consequences (Section 15), and may send him for trial as an adult. |
The Juvenile Justice Act is Hart's analysis in statutory form: it does not deny that a sixteen-year-old may be causally and morally responsible, but it grades his liability by his capacity. Civil law draws the line elsewhere: a minor cannot contract (Mohori Bibee v Dharmodas Ghose, Privy Council, 1903; Note 83), but minority is not in itself a defence in tort.
6. A Word of Warning: Hohfeld's Liability
In Hohfeld's scheme (Note 28) liability is the correlative of a power: the position of a person whose legal relations another may change, as an offeror is liable to have a contract created by acceptance. It involves no wrong, blame or remedy, and it is not a sense of responsibility at all.
7. The Two Compared
Basis | Liability | Responsibility |
|---|---|---|
Meaning | Answerability to a remedy or a sanction for a wrong (Salmond) | A family of four ideas: role, cause, liability and capacity (Hart) |
Relation | One sense of responsibility | The wider genus |
Fault | Not always needed: vicarious, strict and absolute liability | Moral responsibility implies blame |
Who bears it | May fall on one who did nothing: employer, State, company, director by statute | Causal and moral responsibility attach to the actor |
Capacity | A precondition of penal liability (ss.20 to 22 BNS) | Itself one of the four senses |
8. Evaluation
Salmond's equation serves doctrinal law, where the only question is whether the defendant must answer. Hart's analysis matters whenever the justification of liability is in issue. Retributive theories of punishment (Note 27) require moral responsibility and so resist strict and vicarious criminal liability; the presumption of mens rea (Note 85) is the legal form of that resistance. Distributive and deterrent arguments justify liability without responsibility in tort and regulation, as M.C. Mehta did for hazardous industry.
Memory Aid ▪ Analogy: the school bus. The teacher's duty (role), the burst tyre (cause), the school that pays (liability), the six-year-old who cannot be blamed (capacity). ▪ Hart's four senses: 'Real Cats Like Cream'. Role, Causal, Liability, Capacity. Salmond's usage covers only the L. ▪ One line: liability is the bill; responsibility is the story of how the bill came to you, and sometimes the bill arrives without the story (vicarious, strict, absolute). ▪ Capacity ladder: '7, 12, 18'. Under 7, never (s.20 BNS); 7 to 12, only if mature (s.21 BNS); under 18, the Juvenile Justice Act. |
Exam Corner: Likely Questions ▪ 'Liability or responsibility is the bond of necessity that exists between the wrongdoer and the remedy of the wrong.' Is Salmond right to treat the words as synonyms? Discuss with reference to Hart. ▪ Explain Hart's four senses of responsibility with the help of his sea captain illustration. ▪ Discuss liability without fault and responsibility without liability, with reference to vicarious, strict and absolute liability. ▪ Why is capacity a precondition of criminal liability? Refer to the BNS and the Juvenile Justice Act, 2015. |
Exam Corner: MCQ Traps ▪ The four senses of responsibility are Hart's (Punishment and Responsibility, 1968); Salmond treats liability and responsibility as synonyms. ▪ Child under seven: Section 20 BNS (formerly 82 IPC). Seven to twelve, immature understanding: Section 21 BNS (formerly 83 IPC). Unsoundness of mind: Section 22 BNS (formerly 84 IPC), legal not medical insanity. ▪ Hohfeld's liability is the correlative of a power and involves no wrong. ▪ Absolute liability came from M.C. Mehta (1987), the Shriram oleum gas case, not the Bhopal litigation. |
9. Frequently Asked Questions
Q. Are liability and responsibility the same thing?
A. For Salmond, yes: both mean the bond between a wrongdoer and the remedy of the wrong. For Hart, liability is only one of four senses of responsibility, beside role, causal and capacity responsibility, and a person may be responsible in one sense without being liable, or liable without being responsible in the others.
Q. Can a person be liable without being at fault?
A. Yes: an employer for his employee's torts (Vidyawati, 1962), a keeper of dangerous things for their escape (Rylands v Fletcher, 1868), a hazardous enterprise absolutely (M.C. Mehta, 1987), and the State in public law for custodial deaths (Nilabati Behera, 1993).
Q. What is capacity responsibility?
A. Hart's term for having the capacities of understanding, reasoning and control that make a person answerable. The law reflects it in the exemptions for children (Sections 20 and 21 BNS) and persons of unsound mind (Section 22 BNS), and in the assessment of capacity under the Juvenile Justice Act, 2015.
See also: Note 34 (liability), Note 84 (civil versus criminal liability), Note 85 (fault versus strict liability), Note 86 (strict versus absolute liability), Note 87 (motive versus intention), Note 88 (legal duty versus moral duty), Note 27 (punishment).
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