Commenting at law blogs and even blogging for a couple of them (shamelessly, no doubt with a dose of hubris), alongside one semester of law school* some years ago, has nurtured my abiding interest in legal theory and philosophy of law as a layperson “from the outside looking in.” Sometimes I come across topics or issues that fascinate me (as now, when learning about ‘legal fictions’), although I typically fail to devote the time and attention such material requires for an understanding that rises to the level of that which defines a competent lawyer or able law professor. However, I’ve long possessed the chutzpah or temerity to share what I’ve read or learned regardless, in the perhaps naïve belief that even a small taste of same might provoke a similar interest in others. Here is the latest instance of wide-eyed wonder from Lon L. Fuller’s book, Legal Fictions (Stanford University Press, 1967):
“The whole field of vicarious liability is a branch of the law which, from its infancy, has been honeycombed with fictions, and—what is more significant—with fictions that seem to resist the linguistic process of redefinition, with fictions that stubbornly refuse to die. Does not the explanation for this lie in the fact that the notion of vicarious liability is itself a bitter pill to swallow? The social foundations of vicarious liability are never of the self-apparent type. The harshness involved in visiting the consequences of one man’s misdeeds upon another has seemed to call for repeated explanation and apology.”
I sympathize with the tone of this description and assessment, but want to make a few brief points. “Vicarious liability,” presumably for good reasons, remains “a form of agency well known to the civil law, in doctrines such as that of respondeat superior in torts” (Michael S. Moore), as when, for example, an employer (a ‘supervisory party’) is held liable for the actionable conduct of an employee owing to the nature of that relationship (of authority; I think it could be managerial as well). However, as Moore also notes, “Criminal law is much more circumspect in imposing liability vicariously. Still, it is not unknown, the most notable example being the liability of conspirators for the crimes of their co-conspirators even though there is no more than a general agreement between them.”
Where the notion of vicarious liability is more legally conspicuous and, I think, far more intriguing and important (if only analogically) is in international criminal law, where it comes under the heading of “command/superior responsibility,” thus it is not equivalent in meaning to vicarious liability in domestic (or municipal) legal systems, even if there is some family resemblance:
“Command responsibility is an inculpatory doctrine specific to international criminal law…. It is a broad form of liability, which is justified by the privilege, honours, and command entails. Command responsibility as a whole has a lengthy history going back roughly 2,500 years to the China of Sun Tzu. The responsibility of a commander extends far beyond criminal responsibility, and disciplinary or administrative action can be pursued even if there is no criminal liability.” — Please see the introductory material, pp. 320-330 and, on the “defense of superior orders” pp. 342-346, in Robert Cryer, et al., An Introduction to International Criminal Law and Procedure (Cambridge University Press, 2007).
An introduction I found more theoretically or philosophically satisfying is the section (11.4) on “The Responsibility of Superiors” in Antonio Casssese, International Criminal Law (2nd ed., Oxford University Press, 2007): 236-252 [there are of course later editions of this title, which is a common occurrence with books on jurisprudence]. Equally satisfying, is the entry on “Command Responsibility” in Antonio Cassese, Editor-in-Chief, The Oxford Command to International Criminal Justice (Oxford University Press, 2009): 270-272. Finally, I unreservedly recommend two consecutive chapters from Larry May’s analytically lucid and philosophically incisive book, War Crimes and Just War (Cambridge University Press, 2007): (12) “Prosecuting military leaders for war crimes,” and (13) “Commanding and commanded defenses,” pp. 256-300.
My first acquaintance many years ago with this topic arose from the intuitive disgust and anger (thus a bit cloudy reaction) to what occurred at My Lai and not, as should ideally have been the case, the subject as raised in the Nuremberg and Tokyo Tribunals (that interest was awakened as a young adult). See, for instance, some of the essays in Peter A. French, ed., Individual and Collective Responsibility: The Massacre at My Lai (Schenkman Publishing Co., 1972). Reading this volume much later in life helped vindicate and—I’m inclined to believe—clarify my original spontaneous moral response and views on such things.
* These were night classes, a couple days a week while I was a part-time instructor at our local community college; I did not continue when later given another course to teach—on critical thinking—because I needed the time for research and preparation, etc. (the research, as it turns out, got me into trouble with the chair of our department, because I did not approach the course on the order of, as it were, ‘formal logic for dummies,’ which was how it was being taught at the time) and thus felt I could not devote myself sufficiently to the law classes. But that one semester helped immensely with regard to learning how to do research with legal materials (e.g., case books, etc.). In addition, I’ve often bought books that, over the years (although not of late, as I can no longer afford them), have proved invaluable for satisfying my appetite for legal topics, especially those that are inextricably intertwined with moral questions or the rule of law in a democracy. One indispensable book that I’m happy I purchased long ago is Black’s Law Dictionary (Bryan L. Garner, Editor in Chief) (7th ed., 1999), if only because I often need to look up legal terms in Latin. No doubt there is a later edition than mine, but I’m content to at least have this one!
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