This chapter offers an example of conceptual instrumentalist analysis. Being instrumentalist in nature, the analysis focuses on the degree to which one plausible doctrinal design or another best advances the underlying social policies sought to be achieved in a given area of law. Unlike classic empirical analysis, however, the social policies at play in conceptual instrumentalist analysis are not concrete practical benefits that might be furthered in the real world, like greater compensation or deterrence, but are instead more abstract preferred outcomes, like greater fairness or the presence of sufficient fault by a certain party before the imposition of legal liability. Of course, appellate court analysis of any particular legal issue might involve elements of both empirical and conceptual instrumentalist analysis.

The focus of the analysis in this chapter is the tort law requirement of causation. The account presented seeks to explain the structure of this long-standing requirement, the meaning ascribed to the distinction between actual and proximate cause, and the rationale underlying the various exceptions to the main rule that have been developed over time.

Artificial intelligence (AI) is becoming increasingly important in our daily lives and so is academic research on its impact on various legal domains. One of the fields that has attracted much attention is extra-contractual or tort liability, as AI will inevitably cause damage. Reference can also be made to accidents involving autonomous vehicles. In this chapter, we will discuss some major and general challenges that arise in this context. We will thereby illustrate the remaining importance of national law to tackle these challenges and focus on procedural elements, including disclosure requirements and rebuttable presumptions. We will also illustrate how existing tort law concepts are being challenged by AI characteristics and provide an overview of regulatory answers.

The right to claim contribution in competition law is ensured by EU law but its exercise takes place under national laws. This Chapter investigates English, German, French and Polish rules on contribution and their application in the competition law context. On the one hand, the assessment is pragmatic. It analyses questions that are likely to appear when pursuing contribution claims. Does a right to claim contribution exist in a given legal order? On what basis and in which form can contribution be claimed? Against whom can contribution be claimed? What legal test must be met to receive contribution? What is the criterion for allocating liability between antitrust infringers? The analysis shows that the allocation of liability can be debated, as there are several possible methods of dividing liability: relative fault, causation, illicit gains, values of sales, market shares and pro capita. At the same time, the Chapter reflects on whether the requirements and modifications stemming from EU competition law require the adoption of a competition law-specific approach to contribution and makes proposals on how rules on contribution can be improved.

This chapter raises the question whether attribution of wrongful acts to the State is based on ‘objective’ causal chains or ‘subjective’ mental states. It argues that attribution of conduct to the State is not primarily causal or fault-based. First, it shows that several of the Articles on the Responsibility of States for Internationally Wrongful Acts cannot be understood in terms of causation or fault. Second, it argues that causal and fault-based theories of attribution are either circular or incomplete. Instead, the chapter claims, the logic of attribution is primarily functional. The rules of attribution converge around the central principle that an act of State is an act performed in the service of a State function, such as defence or detention. Functional attribution is best understood as ‘intersubjective’: it is determined not by objective causal chains or by subjective mental states, but by shared ideas about the functions of the State and what it means to perform them. The functional character of the rules of attribution allows them to adapt to economic and technological changes, such as the growth of corporations and the development of autonomous weapons.

International responsibility law today is in great need of theorizing or, at least, that is the present volume’s argument. This introduction sets the stage for that argument. It unfolds in four steps: first, it clarifies the reasons that led to putting this collection of essays together and explains what it hopes to achieve; second, it introduces the main theoretical challenges addressed in the volume; third, it provides some information about how the book is organized; and, finally, it sketches out the content of its successive chapters and their articulation.

The author concludes the volume by reflecting on the interface between philosophy and law, arguing that they are both complementary and interdependent. He shows examples of the legal translation of philosophical principles and stresses the necessity to establish a system of responsibility – that is, a clear system of sanctions – so that philosophical and legal norms do not remain mere gratuitous statements. The chapter reflects on the philosophical foundations of legal responsibility, the historical movement of gradual individualization of responsibility and the shift to joint obligation to respond to collective threats and challenges. It ultimately argues that classical responsibility reduced to an essentially inter-individual relationship is technically very sophisticated, both philosophically and legally, but insufficient to face collective challenges (in particular the environmental crisis).

The autonomy inherent in AI systems brings legal challenges. The reason is that it is no longer possible to predict whether and how explanations and actions emanating from AI systems originate and whether they are attributable to the AI system or its operator. The core research is whether the operator of AI systems is contractually liable for the damage caused by its malfunctioning. Is contract law sufficiently prepared for the use of AI systems for contract performance? The answer is provided through a review of the common law, CISG and the German Civil Code (BGB).

This chapter deepens the insight that tort law fulfils a societal role. It locates the classical model of tort liability, namely individual responsibility, within a wider privatist societal constitution. Both contract and tort, however, are understood as second order observations of the knowledge base of society, which has broken free of tradition and centralized authority in modernity. Therefore, private law models its dynamic knowledge base, and provide a constitution of civil society that unleashes experimentation and enables a 'relational rationality' to unfold. The gradual emergence classical tort law is documented, and its constitutional role underscored through examples from of private and public liability in English, French and German law. The society of individuals on which the law of torts is modelled, however, begins to rupture by the end of the 19th century, and it becomes increasingly difficult to frame all legal problems as issues of corrective justice. Nonetheless, the legacy of classical tort law, is a model of individual responsibility, which continues to shape scholarly engagement with tort law, and continues to impact on how legal problems are perceived in law.

French state liability is based on different rules and principles from French private law. There are two broad areas of liability: fault and no-fault. Fault liability is based principally on faute de service, the direct fault of the public service, not vicarious liability for the acts of state employees. Fault involves a failure to fulfil a mission, rather than moral culpability. It includes unlawful acts. No-fault liability includes liability for exceptional risks, assisting the public service and for bearing exceptional burdens for the public benefit. The chapter concludes by examining the way state liability is limited by the interpretation of causation and by the measure of damages. On the whole, categories of recognised harm are very broad.

This chapter explores the foundations of due diligence under international law. Due diligence emerged in the international practice of the nineteenth century concerning diplomatic protection and the security of states, and developed as a notion linked to the responsibility of states in connection with acts of private individuals. For a long time, due diligence was conceived as a concept pertaining to the realm of international responsibility and it was primarily associated with the measure of a state organ’s fault. The chapter illustrates how, during the twentieth century, due diligence migrated from the realm of secondary rules to primary rules. The chapter clarifies the relationship between due diligence and overlapping concepts, like international liability and the notion of general principles of international law. It is argued that due diligence should be construed as an identifier for a typology of international obligations, something that provides meaning and rationale to them. The chapter concludes by clarifying the difference between due diligence as a ‘qualifier’ for primary rules of states, and due diligence as a ‘process’ linked to the activities of non-state actors.

This chapter explores how due diligence obligations operate in pratice and how their content is determined. The first part explores the factual conditions affecting the scope of a state’s duty to act with due diligence, which are identified in power over the source of risk and knowledge of the risk. The chapter critically discusses the concept of power of the source of risk linked to due diligence and explains the difference between this power and similar notions, like control, influence and jurisdiction. The chapter then argues that the other condition shaping the scope of a state’s duty to act with due diligence is knowledge of the risk and links this knowledge to the concept of state fault. The second part of the chapter discusses the legal and factual parameters affecting the content of due diligence obligations. After thoroughly appraising the concept of reasonableness, the set of variables influencing the degree of diligence expected of a state are identified in: the degree of risk linked to the primary rule; the nature and value of the legal interest protected by due diligence; the level of state capabilities; and the level of state control over the source of risk.

The work of codification of civil and commercial law, which began in 1908 under the direction of French draftsmen, produced the desired result in 1925 only after Phraya Manavarajasevi (Plod na Songkhla) became involved. Plod was instrumental in replacing the French Civil Code of 1804 with the German Civil Code of 1900 (“BGB”) as the principal model and introducing the Japanese Civil Code of 1898 (“JCC”) and a copying method which he referred to as the ‘Japanese method’ to the new Thai-dominated drafting committee. The JCC and the ‘Japanese method’ were chosen owing to Plod’s conviction that the Japanese had established their civil code by copying the BGB. In reality, the JCC was influenced by a variety of foreign laws, including German and French law. The drafting committee’s lack of knowledge about the rules and concepts they borrowed and the method they adopted led to difficulties in interpreting the rules and concepts in question. This chapter will explore Plod’s fundamental misconception in the drafting of the TCCC and its consequences with a particular focus on the principle of fault in breach of contract.

Chapter 11 examines environmental criminal law that aims to punish and deter unacceptable pollution to protect the environment and public health. Pollution used to be tolerated as a way of life. Now a distinction is drawn between ‘acceptable’ pollution by routine operation in compliance with state provisions and ‘unacceptable’ pollution in violation either intentionally or negligently committed to maximize financial gains. The latter is punished by administrative penalty or criminal sanction depending on the seriousness of circumstances. The chapter reviews early treatment of environmental crimes under the Criminal Law (1979), and examines the more sophisticated approach to environmental crimes under the Criminal Law (1997) including the crime of causing serious pollution accident, crimes relating to cross-border movement of waste and the crime of environmental dereliction of duty. It analyses the criminal law amendments on the crime of waste smuggling and the crime of environmental pollution. The chapter concludes with discussion of key issues of criminal law including legal person and natural person, fault-based liability, defences, sanctions balancing severe punishment with leniency, and liability of multiple parties jointly committing crimes.

In this chapter, I move on to resulting normative questions about the culpability principle, causal contribution, and command responsibility. I engage in deontic analysis of what type of contribution the culpability principle actually requires, and whether the requirement might be reconceived.

First, I will examine why criminal law requires causal contribution, and the degree of contribution required. I will argue that the requirement in relation to accessories is not onerous; ‘risk aggravation’ satisfies the culpability principle.

Second, I consider ambitious proposals to re-imagine culpability, i.e. to develop a new deontic account that does not require any causal contribution. A theme of this book is that ICL can present us with new questions that can lead us to adjust our basic assumptions from criminal law theory. On this issue, however, although the arguments are intriguing, my conclusion is that on a coherentist all-things-considered judgement, they are as yet far too tentative and undeveloped to provide a convincing basis for criminal sanctions. Accordingly, the current best theory is that accessories must at least elevate the risk of the crimes occurring.

This chapter looks at how the government should be held accountable for the purpose of the ideal accountability benchmark. This requires attention both to the procedures by which accountability is delivered (eg the nature of the accountability forum and how it performs its role) as well as the ultimate consequences of the accountability process (eg sanctions and remedies). This chapter explores these two ideas, asking what processes and consequences might be most relevant for the purpose of each of the various accountability rationales. For example, if the goal is to punish wrongdoing, it might be appropriate to apply highly punitive sanctions tempered by procedures with built-in protection such as a high burden of proof. On the other hand, if the goal is to ensure redress for those who suffer harm as a consequence of government wrongdoing, it might be more appropriate to apply restorative remedies via victim-friendly procedures. In order to design an accountability benchmark that can be used to identify accountability deficits and overloads, it is necessary to consider the most suitable means to achieve whatever ends we assign to the overarching concept of accountability.

A historical analysis of state responsibility shows that this body of law developed from an implicit doctrine into a separate topic of international law over the centuries. The traditional law of state responsibility was confined to injuries to aliens, largely due to the widespread resort to international arbitration in the second half of the nineteenth century. Following scholarly interest in responsibility, codification initiatives mushroomed with the domestic analogy playing a varying role. Progress in codification was made only in the 1960s with the abandonment of the controversial traditional law of state responsibility for the benefit of generalized and secondary rules on state responsibility. State responsibility now became important for the role it played with respect to legality and rule of international law; yet, its foundation was based on bilateral state relations and remedying of concrete wrongs. As a consequence, the law of state responsibility as codified in the 2001 Articles on State Responsibility remains infused with tensions and dilemmas, in addition to which the legal form and effect of the Articles have remained under debate.

Chapter 7 attempts to define accurately the standard of care adopted by Maimonides in his Code with respect to four categories of damage: (1) damage caused by a person to the property of another, (2) damage caused by a person who injures another, (3) damage caused by property, and (4) murder. In relation to each of these four categories, Maimonides proposed a standard of care that lies on the scale between fault, negligence, and strict liability. A careful examination of Maimonides’ writings reveals that he favored different liability regimes for different categories of damage. We present a scheme that illustrates Maimonides’ differential model and explains its rationale with respect to the hierarchy in the different standards of care applied in different cases. We also describe the historical background, circumstances, and nature of the tortfeasors in Maimonides’ time and in the contemporary era. This is essential for an understanding of the differential liability model in itself and as compared to contemporary models. Maimonides’ tort theory, we argue, is based upon a fundamental distinction between two questions: (1) upon whom should tort liability be imposed and (2) what is the standard of care that should be imposed in each case.