The Legal Theory of Fault
Fault is, at its heart, wrongfulness. It is the idea that an action or a state of mind is wrong, blameworthy, culpable. If fault is required for a legal action to succeed, the argument would run something like “it is not just the act of causing harm which means you should pay compensation (in the civil law) or be punished (in the criminal law). Rather, it is the fact that what you did was wrong”. This clearly connects to moral ideas; ideas about what is right and wrong. On the other hand, since such morality can be vague and not generally agreed upon, this link is not certain. There is a library of books on the subject of the link between morality and law, so we must put a detailed discussion of that issue aside. The question that this group of researchers was dealing with centres on the role of fault in a legal situation. Here are some of the relevant questions
- First, should the defendant have to be at fault before he should compensate the victim? If so, how does this get shown, and how much fault is ‘faulty’ enough?
- Whether fault must be present or not, what else must exist for there to be liability? Do the roles of these other elements change depending on how much fault there must be to create liability, and depending on the actual level of fault, once that threshold is passed?
- Do ideas of fault remain the same over time and across jurisdictions?
Isn't there a way where we can both be right?
