2 Responsibility: a Modern Concept – Responsibility and Freedom

Responsibility: a Modern Concept

2.1. The modern formation of responsibility

The determination of the extension of the notion of Responsible Research and Innovation (RRI) can be determined according to the definition of the concept of responsibility. This appears to be a simple operation given the automatic understanding of it that the readers surely possess. However, the constant increase in its usage in different sectors, in order to respond to the challenges related to innovation, has generated a proliferation of meanings and acceptions that makes such an operation not an easy matter.

The first questions that arise when talking about responsibility often are “who is responsible”, “what he is responsible for” and “to what extent”? However, the hermeneutical difficulty can be detected not mainly in the identification of an agent, or in the attribution of an action to its actor, but rather in the plurality of meanings that responsibility entails. The definition of whom, or for what we are responsible, entails different lexical and semantic orders, as well as different social spheres, allowing room for plural and often ambiguous interpretations.

According to the New Oxford Shorter [BRO 93] “responsibility is a charge, trust or duty, for which one is responsible; a person for whom or thing for which one is responsible”. In the literature, we find an extensive recurrence of the term, but rarely an agreement on what it means to be responsible. On the contrary, we find a shared perspective on the fact that there is not a clear determination of its conceptual extension and even less on its potential applications. For Xavier Pavie, the English language clearly distinguishes between accountability, liability and responsibility, where the latter is usually meant to express the feeling of being in charge of something. On the contrary, the French language keeps this differentiation within the concept of responsibility [PAV 14, p.35]. C. Adam and C. Groves identify responsibility with care for the other. Nicole Vincent detects the six concepts of responsibility and up to 15 sources of disputes about responsibility [VIN 12]. Ibo Van de Poel articulates several different meanings of responsibility. For Stahl et al., “Responsibility can be understood as a social construct that establishes relationships between a set of different entities” [STA 13, p. 200]. Owen et al. state the necessity of a reconceptualization of the term in order to be able to define what RRI is and most of all what it should be [OWE 13].

But then, how do we find a usage for the term that can clarify the issue without appearing as biased or relative? My hypothesis is that if we want to look at the overall meaning of the concept of responsibility, we need to understand its conditions of possibility. My objective in this chapter is to make the underlying relations among the acceptions composing responsibility explicit.

The frenetic increase in the recurrence of the adjective “responsible” in the literature and in common employment is surely motivated by the polysemy embedded in the term. As emphasized by several authors [RIC 00, OWE 13, PAV 14, JON 79], responsibility finds its etymological root in the verb respondere, to respond, which offers different possible applications both on a conceptual and a practical plane. It is not difficult to understand how the high level of abstraction of such a verb has favored so many different and sometimes ambiguous applications. To respond to someone for something implies a series of questions and interlaces that are not easy to define. Who do we respond to? Why do we respond? These are only two of the numerous questions that this verb can generate. To be responsible could mean to respond for our actions, for our role, of others, all in different social spheres and dimensions. Ibo Van de Poel [VAN 12a], Nicole Vincent [VIN 12] and Hannah Arendt [ARE 05] showed us the complexity and the variations of the concept of responsibility in its moral dimension, Hans Kelsen and H.L. A. Hart [KEL 05, HAR 08] have defined with extreme rigor the contour of juridical responsibility as distinguished from moral responsibility. Jean Paul Sartre [SAR 93], Ulrich Beck [BEC 92] and Hans Jonas [JON 79], although following different objectives and methodologies, emphasized the character and existential importance of responsibility. Xavier Pavie unveiled the strategic value and the potential economic applications of responsibility [PAV 14].

Finally, we cannot forget the proliferation of dissertations on the possible applications of the term to specific situations, which generated a semantic and pragmatic inflation of the term that is difficult to summarize [RIC 00].

The necessity of analyzing once again the concept of responsibility lies in the risk that, because of its inflation and ambiguity, responsibility ends up by meaning too much or too little [BER 02, p. 172]. I consider this conceptual operation especially important to understand the political aspects involved in the usage of responsibility. In fact, the dictionary, as well as some brilliant analyses, does not offer us much in terms of the adoption of the concept in a context of governance of technologies. The rigid distinction between accountability, liability or blameworthiness appears insufficient and ineffective in a plural context such as that of Responsible Research and Innovation (RRI).

The constellation of acceptions afferent to the concept of responsibility should not discourage us from the possibility of detecting a more radical sense of the term, which could grasp its different aspects. In other words, to the contingent accumulation of meanings, generating several exegetic difficulties, we need to respond exactly by exploiting the fertility embedded in the flexibility of the concept, finding its radical significance and unveiling its main features. My hypothesis is that such a root exists and favors a definition of responsibility an overarching framework of all its nuances. Furthermore, we will try to show how the conceptual nature of the term implies a complementary and not exclusive relation among its different acceptions.

Through one of the deepest readings of the concept of responsibility like the one made by Ricoeur, I will emphasize how responsibility does not only need to tackle the challenges that its acceptions imply, but also and above all, the one generated by their relations. We will need to find a potential solution to the many questions that cross responsibility. The relation between agent and actor, the one connecting an actor to an action, the individual and collective dimensions implied in responsibility, together with its spatial-temporal nature. All these are just some of the several aspects that require a new attempt to define the basic traits of a concept, which has been designated to guide us in the construction of our future.

Responsibility is a “notion associated originally with the rise of modernity” [GID 99]. Ewald and Ricoeur [RIC 00, EWA 86] pointed that the appearance of responsibility does not go back very far. More precisely, according to François Ewald, we find the first occurrences of responsibility at the beginning of the 18th Century, and the term as such was mostly used only with reference to specific objects and situations until the end of the 19 Century, when a debate was opened to draft the French Civil Code. The document, promulgated in 1898, expressed a newer and structural understanding of responsibility, although limited to the domains of work-accidents and social security. The law in fact, thus started to oblige enterprises to stipulate an insurance policy against work accidents establishing a “fairer” relation between the power of entrepreneurs and weaknesses of workers. Apparently relegated to minor articles, like 1348, in reality the shift implied by this integration was part of a wider and deeper usage of the term. Ewald refers only to the juridical conceptualization and application of the term, though using it to highlight the relationships between politics, law and economy through the mean of responsibility. We do not find in its inquiry, however, substantial references to external origins of the concept. Where does it come from then?

Paul Ricoeur shares this wonder of not finding the term outside of the legal realm, pointing out how its absence in the philosophical tradition seems a curious absence. Given its substantial presence and historical development throughout law, he finds it bizarre not to have clear philosophical references to support it. Ricoeur highlights this fact in connection with the increase in its adoption and development not only in legal terms, but also, and especially, in moral philosophy. Moreover, the proliferation of meanings, embedded in the polysemy of its linguistic root – to respond – with which the term is used in literature or in public debates has generated great confusion in understanding what it actually means to be responsible. Finally, the term is often adopted to highlight specific aspects or effects such as risk, solidarity and security. These three factors concur, according to Ricoeur, to generate the necessity for an analysis of the concept in order to eliminate misinterpretations or manipulations.

The strategy that Ricoeur adopts is to look for similar meanings in other fields and to provide a semantic analysis of the concept. In this genealogical investigation, he finds great similarities in the term imputability. To impute usually means: “to put on the account of someone a condemnable action, a fault, therefore an action initially marked by an obligation or a prohibition that this action infringes or breaks” [RIC 00, p. 13]. This understanding clearly matches the one of responsibility when the latter is conceived as a judgment assigned to someone in legal or moral terms, and for the judgment of which the agent is called to respond. Ricoeur, therefore, believes imputation to be a sort of ancestor of responsibility.

The double layer of this term is hidden in its temporal dynamic, because imputability involves a response that at the same time presupposes an attribution.

Ricoeur emphasizes in fact that, to hold someone to account for something, meaning that an agent must compensate/respond for damages committed, does not only tell us that there is a material significance of the term moving toward retribution. It also shows that the inverse relation between an action and an agent is crucial, pointing toward the dimension of attribution. So, imputability winds its tortuous way between retribution and attribution. For Ricoeur, both sides are interesting because, on the one hand it shows the passive acceptions of the term that subjects us, and on the other hand the close and fundamental relation between an action and its actor as an active spirit embedded in it.

Recapturing the several occurrences in theology and natural law, Ricoeur continues his survey on imputability to show how this binary develops historically with particular reference to modernity. The aspect that starts to emerge and that will turn out to be fundamental is the double layer attribution/retribution that unveils a very interesting double nature. Imputability, according to Ricoeur, implies a double dimension based on the necessary response to someone or something, as well as the previous attribution, the connection of an action to an actor, which unveils both the double nature of status and practice, and the close connection between imputability and the freedom it must presuppose. The double track emphasized by Ricoeur, in fact, serves to show how two dimensions, a determinist and a libertarian one, have been developing simultaneously. At the same time, these two sides have been incarnated and overlapping in the ethical and cosmological dimension. Nevertheless, until the realization of modernity and modern rationality, these two aspects of the same concept have been moving forward in parallel, proving some sort of irreconcilable difference between free actions and necessary facts.

According to Ricoeur, it is in modernity in fact, and with Kant in particular, that this double tradition of imputability, as a cosmological and ethical concept, is brought together in one framework. It is true that the most well-known understanding of imputation given by Kant is the one connecting accountability to a moral attribution of a fault. But, this understanding was built on and presupposes another understanding. This latter is not at all considered independently at all, and it is logically anterior, and consists of the epistemic attribution of an action to an agent that every assignment of morally loaded judgment must presuppose. “The force of the idea of imputation in Kant consists in the conjunction of two more primitive ideas: the attribution of an action to an agent, and the moral and generally negative qualification of that action” [RIC 00, p. 16].

In order to be considered imputable in a moral way, i.e. blameworthy, we must assume that an agent is first capable of an action and furthermore that he is capable of choosing among options, meaning that the possibility of being charged with of something can only be possible where we find a free agent, what Kant calls a person. This connection will be continually referred to in all Kant’s production although in different forms: “An action is called a deed [Tat] insofar as it comes under obligatory laws and hence in so far as the subject, in doing it, is considered in terms of the freedom of his choice. By such an action the agent is regarded as the author [Urheber] of its effect [Wirkung], and this, together with the action itself, can be imputed to him, if one is previously acquainted with the law by virtue of which an obligation rests on these. A person is the subject whose actions can be imputed to him. [...] A thing is that to which nothing can be imputed”1.

This first aspect is fundamental in my opinion for two reasons. The first is that in order to open up for moral responsibility, we need to connect an action to an agent, and the second is that this agent needs to be proven “free”. Without the possibility of choosing, there cannot be any form of responsibility. If a situation is imposed on an agent then he cannot undergo a judgment of any sort, it becomes a necessary process.

However, this statement already puts us in front of perhaps the main problem when it comes to responsibility. How can we distinguish between a free individual action and a set of general conditions in which an agent is always embedded? Where is the threshold between what an agent freely chooses to do and the causal process that generated the action? Which perspective would we need to consider, that of the guilty agent or that of a victim of fate?

Well, according to Immanuel Kant this is an antinomic situation that cannot be solved or decided. We can admit that “everything in the world happens solely in accordance with laws of nature”, and also at the same time “Causality in accordance with laws of nature is not the only one from which all the appearances of the world can be derived” [KAN 98, pp. 483–484]. The antinomy for Kant follows to a certain extent a lexical order because the transcendental freedom of things happening according to laws of nature is the ground for further imputability. Of course, this also poses a dilemma between the two starting points of any causality, which is often mentioned as the deepest cul de sac of responsibility. For Kant, we need to accept the presence of both. The link between the two sides cannot be unraveled.

Curiously enough, Kant does not end up with a sceptical attitude as with other antinomies, but he is rather inclined to think of a possible conciliation through a twofold dimension. Meaning that for Kant, at least in the Critique of Pure Reason, the two sides should not be separated but need to be conceived as complementary. We cannot think of imputability without keeping in mind the “casualty” involved when it comes to the consequences of an action.

However, Kant undid the knot that kept these two aspects together by proposing the idea of moral law as the real content of freedom. In this way, freedom was no longer the combination of casual and causal elements but only the adherence of rational agents to the law. It is not surprising then that a long tradition, that finds in Kelsen its main representative, managed to interpret imputability only from the perspective of a juridical or moral compliance. And it is also understandable that the investigations and debate on imputability then followed this course, focusing on how to distinguish between moral and juridical imputation.

At the same time, the work that has been done to distinguish them, to demoralize juridical imputability is a precious operation that brought about precious results; an attempt to demoralize the notion of imputation that can pave the way for a remoralization. I strongly agree with Ricoeur on the need for what he defines a remoralization of responsibility as an exercise based on “internalized social constraints”.

Ricoeur detects attempts to propose a demoralized understanding of imputation in both analytical and continental philosophy. Through philosophy of language, and more precisely through Strawson’s theory of ascription, Ricoeur highlights a conception that tries to connect an agent to his action via language. The “basic particulars” in Strawson’s theory are those (three) traits that define a person as such through linguistic attributions. Accordingly, an action can be ascribed to a person only when we can find these “basic particulars”. As Ricoeur states: “the relation between the action and the agent is thereby covered by such a theory of ascription, that is, the attribution of specific predicates to specific basic particulars, with no consideration of any relation to moral obligation and from the single point of view of the identifying reference to basic particulars” [RIC 00, p. 21].

This linguistic side of imputation is a first step to reconnect the action with the agent in a non-moral way. Of course, the limit of this theory is the external perspective by which statements are referred to agents conceived as objects. We gain objectivity but the neutrality does not suffice to express other forms of communication embedded in utterances, as shown by Wittgenstein for instance [WIT 73].

Thus, we could “make a theory of ascription which speaks of the person from the outside, combined with a theory of the speaker where the person designates him – or herself as the one who speaks and acts, or even acts in speaking, as is the case in the example of promising, taken as the model for every speech act” [RIC 00, p. 22].

And it is precisely in Wittgenstein that Ricoeur confides, in order to think that a theory of action could be developed resembling the linguistic one; in other words, an epistemic and practical path that could generate a new version of imputation free from moral constraints.

Ricoeur highlights that this parallel operation, the attainment of the general “I can” would lead the inquiry to think the relation between an action and agent in a hermeneutic manner and the former would be inflected by the latter according to a possession grammar. In other words, the problem that in the end arises from the ascription process is that often an agent tends to define actions as his property, bringing us back to the initial problem of the loss of spontaneous action. As Ricoeur notices, this seems to be a constant trait throughout history. “Actions that ‘depend on us’ are to their agent what children are to their ‘parents’ or what instruments, organs, and slaves are to their ‘masters’. Ever since Locke, modern thinkers have added only one new metaphor, as can be seen in Strawson’s theory of ascription when he declares that the physical and psychic predicates of the person ‘belong to him,’ that he ‘possesses’ them, that they are ‘his.’ This ‘mineness’ of the ability to act does indeed seem to designate a primitive fact, the well-known ‘I can’ so strikingly emphasized, for example, by Merleau-Ponty” [RIC 00, p. 23].

However, this way of understanding responsibility tends to assume a consequentialist perspective that cannot answer to the uncertainty that characterizes the development of innovative techniques and technologies. RRI’s crucial issue, the one for which we make use of the criterion of responsibility, is exactly to provide an answer to the uncertainties that are implied in the complex relations between individual actions, social relations and natural events. To retain a perspective like the one developed by Kant in the second Critique, where responsibility is tied to exertion of the rational will following moral laws, means to ignore all those contingent, irrational and accidental aspects that a social context entails. It means to discipline responsibility within a mesh between morality, law and ethics, understood as a monolithic block, expression of a univocal rationality. At the same time, such an assumption is determined by starting from an idea of freedom that wants to annul conflictual perspectives, reducing differences to the exertion of reason [WIL 84]. In other words, according to this perspective, the exercise of reason will determine the goodness of the consequences of one’s actions and, conversely, bad or wrong actions will be imputed to an irrational choice or attitude. In this way, responsibility remains tied to an epistemic and juridical dimension that overlaps with the moral one. It is not strange then that the attempt made by Hart, to liberate law from moral dresses, has been identified with a legalistic vision of morality [HAR 08, pp. 13–23]. But, this Kantian perspective has been highly criticized exactly for its deafness to those expressions that are contingent and “other” from reason [WIL 84].

In summary, Ricoeur offers us a scenario depicting the conceptual and etymological origins of responsibility in relation with the emergence and implementation of the concept of freedom. Ricoeur identifies two veins that have contributed to produce a polysemic concept that is still ambiguous nowadays. On the one hand, he detects the philosophical legacy, articulated by Kant in the first Critique, determining the epistemic and ontologic importance of the ascription of an act to the agent. On the other hand, he emphasizes a moral-juridical tradition, which overlapping with Kant’s indication in the second Critique defines the criteria for the accountability of a person. These two sides have tried to tackle the problem connected to the relation between an actor’s actions, his will and the consequent outcomes. The amalgam of these terms generated the emergence of responsibility. However, this responsibility is fragmented and does not manage to keep the two aspects together without losing its meaning.

The ultimate resource would be then, according to Ricoeur, to “pass through the clash of causalities and attempt a phenomenology of their inter-weaving. What then has to be thought through are the phenomena of initiative and intervention wherein we can catch sight of the interference of the agent on the course of the world, an interference that effectively causes changes in the world” [RIC 00, p. 23].

Ricoeur continues with his concise although deep analysis by passing to the analysis of current redeployments of the term responsibility in the fields of law and moral philosophy. He aims to show some exemplary theorization in order to understand chances, potential risks and the general course responsibility has been taking since the two aspects were separated.

I believe this should be our task as well to further analyze the prominent understanding of responsibility, the one based on moral-juridical assumptions to highlight its main features and shortcomings.

2.2. Decoupling law and morality

As we were mentioning at the beginning of the chapter, it is surprising not to find a philosophical reference for the term responsibility adopted in the domain of civil law, considering the proliferation of the term in moral philosophy. However, Ricoeur showed us that a substantial and fertile ancestor could be found in the notion of imputability, where a double meaning evolved in parallel within ethical and theological thinking.

The importance of accountability stands in the demarcation between rational agent that is accordingly free, and the objective reality, regulated by causal necessity. Kant acutely grasped the complexity and importance of this dichotomy and conjoined causality with freedom in one antinomy that he was hoping to conciliate. For Kant, it was already clear that freedom needed to be conceived as the paradoxical relation of choice and boundaries. In the first Critique, a subject is free because he can understand nature according to its reason.

However, the solution he gave to this rebus in the second Critique was, surprisingly, to consider freedom as arising from a reason that could not act otherwise than following moral law.

Freedom lost its neutral status to enter the realm of morality and law. Thus, morality and law were merged together eclipsing the problem connected with “cosmological freedom”. It was not difficult then that “this process of elimination, authorized solely in terms of the Critique of Practical Reason, would end up, with Hans Kelsen, for example, in his Pure Theory of the Law, at a complete moralization and juridicalization of imputation” [RIC 00, p. 19]. The separation of law and morality when considering responsibility is the consequent act of a merging made by Kant without a sufficient account of the distinctive features characterizing accountability.

With Kant, we are still bound to accountability and not to responsibility. For the latter to be connected directly to the former, we need to take a look at perhaps the most influential author with regard to responsibility, Hans Kelsen.

As is well known, Hans Kelsen wanted to formulate a theory of pure positive law and get rid of all other “impurities”. He clearly pointed out: “uncritically, the science of law has been mixed with elements of psychology, sociology, ethics and political theory” [KEL 05, p. 1]. In all his production, Kelsen’s ambition has been to avoid methodological syncretism and describe the science of law, especially how it differs from other sciences. Kelsen, in the Pure Theory of Law published first in 1934, and then a second revised version in 1960 [KEL 05], Kelsen proposes a description of law that aims at exactly clearing out/removing all ambiguities and external influences. In the Pure Theory of Law, Kelsen specifically wants to define positive law and its procedures in contrast with natural law and to a certain extent, with morality, which often, too often according to him, was entering the realm of law [KEL 05, p. 220]. The great danger for Kelsen is that a subjective stance, necessarily unstable, could undermine the basis of the legal dimension, in his opinion objective and therefore stable.

According to Kelsen in fact, the main characteristic, especially when compared to morality having a similar objective and methodology, is that law is based on objective norms aimed at an “ought”, while morality, for instance, only follows subjective criteria. “Legal rules are indeed assertions – not assertions, however, to the effect that something actually will happen (like law of nature) but assertions to the effect that something ought to happen according to the law described by the science of law” [KEL 05, p. 87]. For Kelsen, one kind of transcendental point, a procedure in its case, is necessary in order to derive all the other rules. But, this detection of what he calls a grounding norm (Grundnorm) can be objectively possible only within the boundaries of law, because morality cannot embed a common perspective [KEL 05, p. 31]. Kelsen often stresses this aspect; the objectivity of a norm is the only reference point (Grundnorm) for grounding all norms2. To the point he states, that “the doctrine of a basic norm is not a doctrine of recognition”, because the latter “presupposes the ideal of individual liberty as self-determination, that is, that the subject ought to do only what he wants to do” [KEL 05, p. 218].

The freedom guaranteed by positive law is not the freedom to self-determine oneself. “The freedom left to the individual by the legal order simply by not prohibiting a certain behavior must be distinguished from the freedom which is positively guaranteed to the individual by that order. The freedom of an individual which consists in permitting him a certain behavior by not prohibiting him, is guaranteed by the legal order only to the extent that the order commands the other individuals to respect this freedom” [KEL 05, p. 42].

Morality is for Kelsen something subjective and therefore relative. He conceives moral systems as clashing because of the relativity of moral values, and feels the urge to establish a clear division between the two according to their forms and therefore to their relation to those values.

Thus, law must be preserved in its formal purity from all kinds of subjective influences in order to avoid the risks connected to instability. The assumption for which law is part of morality, coming all the way down from Kant, has to be rejected, because, in order for law to be valid, it should focus on its contents rather than its form. Morality and law differ not about what they command or prohibit, but on how they do it [KEL 05, p. 62]. It is clear what Kelsen tries to point out: “if a legal system is judged to be moral or immoral, just or unjust, these evaluations express the relation of the legal order to one of many possible moral systems but not to “the” moral system and therefore constitute only a relative not an absolute value judgment”. And that the “validity of a positive legal order do not depend on its conformity to some moral system” [KEL 05, pp. 66–67].

Kelsen is stating that moral systems cannot be stable unless they arise from religious beliefs – an option that would not suit a scientific standard – so any moral system must be seen as relative and so its evaluation-standard unstable. However, these criteria are not scientific and applying a moral judgment to a scientific discipline cannot determine its epistemic correctness. “Such a standard of evaluation simply cannot be found by scientific cognition. But this does not mean that there is no such standard – every moral system can serve as such. But one must be aware, in judging a positive legal system from a moral point of view […] that the standard of evaluation is relative and that an evaluation based on a different moral system is not excluded; furthermore, that a legal order evaluated on the basis of one moral system as unjust may well be evaluated as just on the basis of another moral system” [KEL 05, p. 67].

Moreover, morality cannot coincide with law and therefore “a legal norm may be considered valid, even if it is at variance with the moral order” [KEL 05, p. 68].

And he hints at political reasons behind moral justification by saying: “Such justification of positive law may politically be convenient, even though logically inadmissible” [KEL 05, p. 69].

Kelsen’s aim is to provide a standpoint from which to justify and at the same time criticize law. If law is preserved from political and moral influences, then the possibilities that such system can raise the level of justice are higher. Accordingly, if law was to be judged according to moral rules, i.e. subjective external factors, it could not be thought of as objective and stable, two fundamental criteria for a system of law for responding to its own purpose.

However, although law does not aim to teach anything but just command (or authorize or permit), legal norms and moral norms share similar methodologies and objectives.

From this strong demarcation between morality and law arises (only with the third part of the Pure Theory of Law) the definition of the relation between freedom and causality, which grounds the concept of imputation and responsibility.

The necessity to protect law from absolutism through a strict formalism also guides the logical reasoning adopted to define the relation between law and science. Also on this side, Kelsen emphasizes that either we deny that natural sciences can be distinguished from human sciences, or we need to acknowledge that they coincide. In the second case, however, we would not be able to accept any normativity, meaning that we could not detect any freedom. “Only if society is understood as a normative order of human behavior can society be conceived of as an object different from the causal order of nature; only then can social science be opposed to natural science. Only if the law is a normative order of mutual behavior can it be differentiated from nature, as a social phenomenon; only then can the science of law as a social science be differentiated from natural science” [KEL 05, p. 76].

And it is exactly this logical division that leads him to understand imputation only as belonging to a normative order. The criterion of imputation is analogous but different from the one of causality. It is analogous because it resembles the principle adopted in natural science, for which connections are made necessary between two states. However, it is different because natural science is built on the “is” whereas law is founded on the “ought”. The main difference then is that law, although coercive, has in principle a choice that can be made. Law, in this sense, is based on freedom that the “ought” always embeds as a logical and practical possibility. Nature is the domain of pure necessity and cannot be seen as conceiving any freedom.

At the basis of Kelsen’s theory of imputation, we thus find the marked dichotomy between imputation (normative) and causality (necessary). However, as Kelsen shows, the distinction has not always been so vivid in past societies. In his analysis on cause and imputation, Kelsen hypothesizes the adoption of causality to come from the principle of retribution [KEL 41, KEL 05, Chapter 3]. Describing the moral (and economic) relation that “primitive man” and the Greeks had with causality and nature in general, he highlights the general mental formula in force at the time: if “a” is, then “b” is (or will be). This framework comprised all events as an interweaving of causality and human interference, to the point that the word cause in Greek (aitia) meant guilt.

The liberation that occurred with science made it possible to differentiate natural causality from normative freedom, but not sufficiently, according to Kelsen, given the great confusion that still rages in social and natural sciences. Thus, Kelsen goes through the two crucial differences between the two principles, that of imputation and that of causality. First, imputation is a normative relation in which the relation between a cause and an effect is made by means of a man-made norm. Causality is independent of man’s interference. Second, the imputation chain, the number of causes and consequences, is limited and eventually clearly defined whereas the causal chain is unlimited in time and space. “The supposition of a first cause (causa prima) – analogous to the end point in the imputation chain – is incompatible with the idea of causality, or, at any rate, with the idea of causality as expressed in the laws of classical physics. The idea of a first cause which, as the creative will of God or as the free will of man, plays a decisive role in religious metaphysics, is likewise a residue of primitive thinking, in which the principle of causality is not yet emancipated from that of imputation” [KEL 05, p. 91].

Kelsen knows Kant’s theories extremely well and his allusion to the theological order proves it quite clear. The difference between the two principles of necessity and freedom does not appear within the framework of a religious-metaphysical view of the world, where cause and effect are connected by the will of a creator.

However, this dualism between causality and normativity, or rather causality and freedom, is not an irresolvable and perpetual clash. The two orders in fact can overlap and in a way are connected, because norms impose behaviors according to this causality to which human beings are subjected. It is this causality that is always taken into account by legal and moral orders and that tries then to provide the means to steer it. Kelsen does not oppose free will or freedom to causal processes, because this is for him a false statement developed in common sense. For Kelsen, norms are possible not because of a free condition against causality but because man is entrapped in causality and only through norms can he act in a social way, i.e. he can be free. Freedom, and therefore imputation, is only possible when man obeys the law. As clearly stated by Kelsen: “One does not impute a sanction to an individual’s behavior because he is free, but the individual is free because one imputed a sanction to his behavior” [KEL 05, p. 98].

Furthermore, imputation is conceived as the assignment of a sanction to an agent but has no other significance apart from this juridical one expressed by the punishment. Meaning that all moral acceptions of imputability are firmly denied by Kelsen. “Imputation, […] is therefore not the connection between a certain behavior and an individual who thus behaves – as assumed by traditional theory; […] Imputation, implied in the concept of responsibility, is the connection between a certain behavior, namely a delict, with a sanction” [KEL 05, p. 81].

And it is not surprising then that the understanding of responsibility does not differ at all in its conceptual understanding from that imputation. For Kelsen, responsibility does not assume a different meaning, but it is a different term for expressing the juridical capability of an agent to be subjected to the sanction. In other words, Kelsen introduces in his theory responsibility as a “new word” – needed in connection with imputability – but not as a “new concept”. In fact, Kelsen explains: “That an individual is responsible for his behavior means that he may be punished for his behavior; and that he is irresponsible, or not responsible, means that he, for the same behavior – because he is a minor or insane – may not be punished” [KEL 05, p. 81].

In reality, what Kelsen is retaining are those transcendental conditions of freedom that also characterize the Kantian practical reason. Responsibility for Kelsen is the series of cognitive capacities that enable an agent to understand the norm, the “ought”, and to follow it. The difference is that here what must be followed is not the imperative of a practical reason based on a moral character, but the “ought” imposed by law. The descriptive approach to law that Kelsen adopts resembling Kantian’s methodology is one that, however, cannot consider the cause– effect relation as mingling with moral freedom. Imputation is the necessary juridical connection, and responsibility defines the applicability of the sanction arising from imputation.

From here, Kelsen is also able to go further and define the criterion of liability. Liability and legal responsibility can, but not necessarily do, coincide as liability identifies the subject committing a crime, whereas legal responsibility also expresses a relation to the criminal as such, opening for the ocean of intentional action.

This point brings us back to the epistemic capabilities of an agent to be so, but it deepens this understanding connecting it with the recognition at the basis of every juridical order.

In fact, the strong accent put on the subjective stance of responsibility is closely connected to its recognition as a human being in possession of rational capacities and with consequent will. “Only the individuals qualified by the legal order can commit delicts – only they are enabled by the legal order to do so” [KEL 05, p. 146]. Kelsen here is demarcating the simple capacity to act proper of traditional theory, figured in transactions, from the capacity to commit a delict. However, he highlights the former as an important feature because it opens the possibility for a subject to contribute to the developments or creations of norms, so as to modify the legal order itself. “The capacity to act is mainly the capacity to conduct legal transactions (Geschäftsfähigkeit); but capacity to act also means “the capacity to influence judicial procedure by a law suit or an appeal (Prozessfähigkeit)” [KEL 05, p. 147]. This capacity to act is then seen as active because it not only allows the subject to be part of juridical realm but also to shape it. “The contract is an act whose subjective meaning is an ought” [KEL 05, p. 147]. Thus, the legal order, that in this way assumes the characteristics of a political order, confers to the subject the possibility of bringing his subjective stances to the legal community according to the objective structure proper of law. “The legal order in authorizing individuals by general norms to conclude contracts, elevates the subjective meaning of transaction to an objective one” [KEL 05, pp. 147–148].

At the root of this text, and of Kelsen’s thesis, we find a marked dichotomy between natural world and the normative dimension. Kelsen’s foundation of law upon a transcendental norm subsequently develops along this demarcation in order to define the possibility of imputability and freedom. For Kelsen, responsibility can be generated only by norms and therefore connected only to human beings. To think of the infraction of a norm within a natural event does not make sense. This because freedom does not dwell in nature, thus, Kelsen suggests, a man must emancipate himself from the natural dimension through the normative order in order to reach its freedom.

There are two main aspects that we need to emphasize in Kelsen’s conception.

The first is the distinction between the natural world and the realm of liberty. The natural world is driven by necessity and causality to which men are subjected.

In order to emancipate from causality, individuals adhere to the legal order, through the presence of the capacity to act. This is recognized by the legal order as a capability for the subject to understand the norms embedded that order. The realm of law makes individuals free because it allows them to act upon the causality by which they would have been restricted. This liberty acquired by the member of a legal order is then expressed in real terms by the chance that the legal order gives to subjective features to be expressed through objective norms in transactions.

The second aspect is that this relation between individuals within the legal order is not based on moral features that assert the validity of the system or the moral guilt of an individual. These aspects need to be kept out of the legal order because they arise from subjective and ideological attempt of justifying single perspectives in presumably objective way [KEL 05, p. 106]. Law is built, and develops, on its own, technical norms that, although they might overlap, do not a have a necessary relation with moral norms.

In this framework, Kelsen defines imputation, liability and responsibility. These criteria are the expressions of different nuances of a technical prosecution of an individual who infringes the laws and who has consequently to be punished. Responsibility is the connection of epistemic conditions of freedom with the actual crime committed by an agent.

I see two important points in this development. The first is that the term “responsibility” as such presupposes the intention of an agent to commit the crime. Although relegated to an epistemic dimension, it already highlights the necessity for the agent to be so by the freedom that his reason confers to him. In this way, Kelsen also connects liability and imputation to freedom given that these are only possible because the legal order allows an individual to be part of the community by recognizing him. This recognition being reciprocal is the basis for an individual to become a legal agent and therefore to gain his freedom. It is only with freedom that the possibility of responsibility is generated. Furthermore, freedom is not only a status but it is also expressed, and actualized by the capacity to act that implies the capacity to act on the legal order through transactions. This happens by the creation of what Hart would similarly develop as second-order norms that legitimate the first-order norms.

Thus, the connection between responsibility and freedom appears strong in Kelsen’s theorization. As it will not be difficult to detect, this understanding arises from a Kantian perspective but at the same time it protects it from a moral shade.

And this is the second point that Kelsen already stresses but is unable to define in depth. The moral assignment of guilt cannot be seen as a shared conception, given the pluralism conceptually embedded in morality. Different perspectives would only open the way to moral dilemmas or to ideological exploitation that do not provide responsibility with the sufficient degree of legitimacy. It is true that Kelsen admittedly loses the aspect of efficacy at least in the first edition of his masterpiece. Kelsen makes an explicit distinction between efficacy, justness and validity of a legal norm, pointing to the fact the consensus and factual adoption of a legal norm does not interfere with the validity of a norm, at least to a great extent [KEL 05, p. 68]. And the reason is that Kelsen is exactly concerned with the political usage of law in order to justify personal ideologies. The entire development of his architecture was meant to protect freedom and responsibility from exploitation and manipulation by the political dimension. I believe Kelsen perfectly understood the dangers of an illegitimate usage of morality for political purposes. He furthermore saw that the solution for avoiding an ideological objectification of subjective claims was to render the objective side immune from subjective contents by securing the procedural grounding of their dialectic. Surely, he had to conceive of the subjective contribution to objective structures but only to the extent that this could develop through a mere procedural and technical manner. Finally, Kelsen enforced their relationship by anchoring the possibility of individual freedom on an objective ground through means of reciprocal recognition.

However, apart from the shortcomings of this theoretical building [PAU 92, PAU 99], the limits of Kelsen’s theory for a conception of responsibility that can serve our purposes are evident in the identification of the objective structure as a procedure that precedes the subject. The empty formalism to which it ends does not allow us to completely agree with this perspective of responsibility. This understanding of law, although it wants to protect it from historical instrumentalization, ends up by making law the victim of itself and her absolutism. It is not only difficult to understand how a normative system could potentially be rejected by a rational community, a logical problem which we do not want to go into, but the reduction of law to a formal instrument deprives it of the functions of identification and conjunction with other spheres. The result is that we obtain a juridical system that is potentially alien to the social context in which it is embedded. If law is justified only according to formal criteria, without any connection to the society within which it operates, and responsibility is only the psychological conditions for being accountable, then we attain a concept of responsibility that is not sufficient to solve the problems related to the efficacy of its adoption. If the justification is only formal, excluding the living world, responsibility remains only the formal cognitive capacity of being actionable. The dangerous outcome is to pose an empty rationality as a reference criterion not only for law, but also and above all for responsibility and therefore for freedom. Furthermore, this understanding does not tell us much about the ways in which we could exploit the concept of responsibility in the field of research and innovation. Worse still for our analysis, Kelsen imprisons the development of science the inextricable maze of an isolated necessity that cannot open the way to responsible research and innovation.

Although we need to understand and keep the crucial insights provided by Kelsen, these must be reformulated in order not to make the subjective contribution a mere accident to the existence of the objective process.

So far, we have understood Ricoeur’s perplexities on how Kelsen’s methodology draws on Kant’s second Critique [RIC 00]. The notion of imputability sticks to a juridical and formal conceptualization, not conceiving any value judgment or free spontaneity. Causality is a process by which human beings are affected and entrapped, but positive law can liberate them. This clear demarcation made by Kelsen keeps science, and especially natural sciences, separated from society where norms guide agents. It is not difficult to see how this understanding remains in Kant’s second Critique losing the possibility of free spontaneous act. Furthermore, it clearly points to pursuing a dualistic perspective of society regulated by two different logics that cannot interact apart from conflicting with or imposing on each other. It is not curious to read in Kelsen of freedom as freedom from natural course, but this cannot help us in solving our problems through science and society conflict.

Juridical positivism and Kelsen’s thought have assumed a fundamental role in the development of the comprehension of responsibility, given the strong impact that the Austrian jurist has had on social sciences throughout the 20th Century3. It is not by chance then that responsibility is perceived with a certain degree of reluctance, as a sort of obstacle or hindrance to the development of research and innovation. Furthermore, if responsibility concerns only the cognitive aspects related to a legal imputation, for every innovation that occur, we just need to respect current legal codes in order to be able to affirm that we have acted responsibly. But, as emphasized by Ricoeur that does not change a lot in the resolution of the problems arising from extra-legal possibilities with respect to factors, products or processes not yet existent and therefore not already regulated by law. Moreover, this marked distinction between law, morality and society generates a sort of juxtaposition as if every relation among different dimensions should be perceived as interference.

The rise of legal responsibility will be developed, in a similar theoretical framework, but in a different manner, by one of the most influential figures of philosophy of law, H. A. Hart. Hart is fundamental for an analysis on responsibility because he extended Kelsen’s understanding, more precisely defining the way all the acceptions rotate around responsibility.

Hart’s close examination is praiseworthy in its accuracy and objectivity. Hart gives us a description of responsibility, especially in criminal law that can challenge several complex and thorny issues4.

Hart tried to respond to the criticisms that were meanwhile made of positivism that can be summarized in two main conceptual groups. The first one stating that an absolute positive system of law, decoupled by moral assumption, is not efficacious, or does not respond to its own purpose that is to guarantee a minimum level of justice among individuals. The second group, although sometimes the critiques are related, states that law must always presuppose some kind of moral validity even if it is implicit or at a meta-level.

Hart is perfectly conscious of these problems and tries to overcome them through a conceptualization that, although it does not cease on grounding morality, admits its decisive role. “The law of every modern state shows at a thousand points the influence of both the accepted social morality and wider moral ideals. […] No “positivist” could deny that these are facts, or that the stability of legal systems depends in part upon such types of correspondence with morals” [HAR 94, pp. 203– 204].

Hart defines the validity and therefore the efficacy of law, according to the authority that it needs to possess. This authority for Hart is obtained when the coercive system is recognized and “innerly” accepted by at least some of its members. “Without their voluntary co-operation, thus creating authority, the coercive power of law and government cannot be established” [HAR 94, p. 201]. He admits that this could lead to a situation where law is exerted “to subdue and maintain, in a position of permanent inferiority, a subject group” [HAR 94, p. 201]. However, a legal system “is a social phenomenon which always presents two aspects, to both of which we must attend if our view of it is to be realistic. It involves the attitudes and behavior involved in the voluntary acceptance of rules and also the simpler attitudes and behavior involved in mere obedience or acquiescence” [HAR 94, p. 201]. This statement is justified through the adoption of a two-level structure based on recognition. On a first level, we find direct rules and laws aimed at coercing individuals for the sake of regulation and justice. On a second level, we find instead other kinds of rules targeting the first-order ones in order to define their justness. Secondary rules may all be said to be on a different level from the primary rules, for they are all about such rules; in the sense that while primary rules are concerned with the actions that individuals must or must not perform, these secondary rules are all concerned with the primary rules themselves. They specify the way in which the primary rules may be conclusively ascertained, introduced, eliminated, varied, and the fact of their violation conclusively determined [HAR 94, p. 91 ff.]. Hart argues as well that what is necessary to the existence of a legal system is that the officials take the internal point of view toward the rule of recognition and its criteria of validity. All that is required of citizens is that they generally obey the primary rules that are legally valid according to the rule of recognition.

The morality of a rule or law plays a decisive role for the acceptance and thus the stability of a social system but this, according to Hart cannot define the necessary validity of a legal system. Because of the risk that the “system run in the interests of the dominant group” [HAR 94, p. 202], the often necessary connection between morality and law is established. However, “Many such assertions either fail to make clear the sense in which the connection between law and morals is alleged to be necessary; or upon examination they turn out to mean something which is both true and important, but which it is most confusing to present as a necessary connection between law and morals” [HAR 94, p. 202]. Hart, as we said, admits in several parts that the contribution offered by morality cannot be underestimated but this is not a necessary condition for the validity of law. Hart lists a series of objections that are usually raised against an “immoral” understanding of law in order to prove them wrong. He ends up stating their interweaving in a necessary way would impede us from understanding the complexity at stake in the domains. “A concept of law which allows the invalidity of law to be distinguished from its immorality enables us to see the complexity and variety of these separate issues; whereas a narrow concept of law which denies legal validity to iniquitous rules may blind us to them” [HAR 94, p. 211].

All the juridical, but after all, political problems requiring disobedience to moral imperatives show us that a necessary connection between morality and law cannot be claimed in a justified, i.e. scientific way. As J. Bentham stated: “Morality commands each individual to do all that is advantageous to the community, his own personal advantages included. But there are many acts useful to the community which legislation ought not to command. There are also many injurious actions, which it ought not to forbid, although morality does so. In a word, legislation has the same center with morals, but not the same circumference” [BEN 48, Chapter 12].

However, Hart points strongly to the internalization of rules and to the fact that rules have social aura. Some commentators stated the very morality of the conception grounding Hart’s perspective on law, emphasizing how recognition is in the end “the ultimate source of law’s normativity” [DWO 85, p. 170].

Due to this moderate understanding of juridical positivism, Hart is able to tackle the technical problems connected to responsibility and punishment. In the text written in 1968, the English jurist deals with the different interpretations and acceptions rotating around the validity and infraction of laws.

Hart immediately defines the criteria that identify the possibility of liability of an actor. Based on a negative definition, he states “that the individual’s liability to punishment, at any rate for serious crimes carrying severe penalties, is made by law to depend, among other things, on certain mental conditions” (emphasis added) [HAR 08, p. 28]. For Hart, when there are not impediments that determine the recklessness of the agent, one can rightly affirm the subject “to have acted of ‘his own free will’, ‘of his own accord’, ‘voluntarily’” [HAR 08, p. 28]. The juridical empirism that Hart adopts to describe the foundation of punishment and liability leads him to articulate neither the capacity of an agent in transcendental terms, nor its political effects, but only according to a perspective that Hart himself defines “psychological”. As previously emphasized by Kelsen, liability is possible only when an agent is able to understand the norm and its effects. This identification of the basic criteria for an act to be conceived as the actualization of one’s will is called mens rea. In spite of the multiple variations of meaning that this criterion has assumed throughout the years, the common characteristics of all variations of the mens rea is “the voluntary doing of a morally wrong act forbidden by penal law” [HAR 08, p. 36]. However, Hart detects in this voluntariety the confusing issue, and tries to clarify the notion of will. Will is often confused with moral will, prosecuting agents that have voluntarily committed a morally wrong action. For Hart instead, will and accordingly mens rea must be limited to an epistemic dimension. Hart describes the inner facts as necessary conditions for responsibility, which is the condition that must be satisfied for the efficiency of the system. But, these inner facts for Hart cannot be consist of a moral character but rather a psychological one. The mens rea cannot be conflated to moral criteria, criteria that for Hart do not represent a necessary condition to define objectively the excuses and thus legal responsibility. Mens rea cannot be considered as a moral disposition although the very possibility of mens rea could be understood as morally determined.

Hart’s intention is to emphasize the objective at the basis of law that is actualized with the adoption of mens rea. In this way, he can also comprehend the role of responsibility in the system of law. In fact, in spite of the fact that interpretations can differ in their definitions of mens rea, as capacity of controlling one’s physical movements, temporary of perennial dysfunctions, Hart nevertheless stresses the necessity to refer to this criterion, and to its absence, in order to talk of liability. The lack of such reference would lead to scenarios that Hart defines as “social hygiene”, where the limitations of future outcomes are based on criteria defined a priori, or of strict liability where every action that infringes the law must be punished. The criticism that Hart makes of these two positions (of which we have simplified the complexity) are of a different nature, but presume a main objection that accuses them to undermine the basic role of legal institutions, that is to guarantee freedom. As emphasized by Hart, the reason that generally motivates a legal system to place excuses as the basis of liability is to be able to guide individual behavior, presenting the agents reasons to exercise choices toward obedience, but leaving them the possibility to choose [HAR 08, p. 40]. In this sense, responsibility has to take into account discretional and interpretative criteria but always in a cognitive sense. “Thus a primary vindication of the principle of responsibility could rest on the simple idea that unless a man has the capacity and a fair opportunity or chance to adjust his behavior to the law its penalties ought not to be applied to him” [HAR 08, p. 181].

Taking as an example civil law, Hart shows how the scope of juridical institution is to make possible the actualization of individual preferences. Transactions, already analyzed by Kelsen as a medium of individual preferences translated into an objective structure, are now raised by Hart as instruments of the realization of freedom [HAR 08, p. 45]. Accordingly, the transactions regulated by the mens rea, by defining the cognitive will of the agent, also pinpoint his responsibility. “These institutions (transactions) provide individuals with two inestimable advantages in relation to those areas of conduct they cover. These are (1) the advantage to the individual of determining by his choice what the future shall be and (2) the advantage of being able to predict what the future will be” [HAR 08, p. 45]. Although he places a rationalistic matrix at the basis of his conception of society, Hart underlines in several parts how mens rea performs a precise and fundamental social function, which is that of protecting individuals from social claims.

To summarize, Hart wants to stress the necessity for law to respect its function of protection of individual freedom. The criteria contained in mens rea can be different but they all need to imply the fact that law “respects the claims of an individual as such, or at least as a choosing being” [HAR 08, p. 49]. Similarly to Kelsen, Hart believes that, in order to escape a series of logical and practical difficulties, the grounding point of mens rea cannot be morality. The fact that potentially a crime could go unpunished whereas a moral fault would be missing is for Hart an evident conceptual mistake. In other words, it cannot be the presence or otherwise of a moral fault that could excuse or justify the punishment, but the capacity itself to choose as a possibility. Hart refuses the primary role assigned by Austin and other thinkers to moral will as a founding element, as well as disagreeing with those who create a distance between ideal law and real law [HAR 08, p. 90 ff.].

The technicality of this perspective protects us from moral understandings of responsibility, connecting will to its cognitive presupposition. Hart’s objective is first to emphasize for law, not only the presence of the will but rather the conditions of exercising that same will, i.e. the psychological capacity of understanding and following it. The will surely represents the criterion for comprehending and assessing the concept of responsibility, but for Hart it is the consequence of a series of capacities and possibilities, which the juridical system must presuppose and that do not arise from a moral dimension.

Despite the differences that we infer in the criticisms of law that Hart summarizes in three distinct perspectives, the English jurist emphasizes the necessity to understand the criterion of responsibility as something different from that of strict liability. From all of the three perspectives, be it a retributive perspective (paying back moral evil with some, essentially retributive, fitting equivalent in pain), be it a deterrent or a moral one, responsibility is conceived as the examination of excuses and the possibility that a choice has been made. It is thus presupposed that the assumption according to which an action, even if not judgeable according to moral criteria, must be the result of a choice, at least to a certain extent.

On the one hand, this clarifies how the aspect concerning punishment and regulation needs to be interpreted as an instrument of guarantee of the negative freedom of the agents, meaning that it does not include a moral perspective. On the other hand, however, the distinction of the different understandings of responsibility is still too vague to work in all the potential applications. Only later will Hart feel the necessity of distinguishing all the different acceptions regarding responsibility.

In response to criticisms he received meanwhile, Hart then compiles a postscript in which he wants to clarify analytically all the differences of the acceptions belonging to responsibility, keeping in mind the criterion of mens rea [HAR 08].

In his celebrated essay, Hart distinguishes four dimensions of responsibility:

  1. 1) role responsibility;
  2. 2) causal responsibility;
  3. 3) liability-responsibility;
  4. 4) capacity-responsibility.

The first defines responsibilities that come with role assumptions like the example he gives of the ship’s captain. Here, Hart makes an important distinction between a duty as such, and a responsibility. The former embodies either a more specific task or a shorter one. Accordingly, responsibility can be ascribed only when an action requires some kind of care and attention protracted in time. “I think, though I confess to not being sure, that what distinguishes those duties of a role which are singled out as responsibilities is that they are duties of a relatively complex or extensive kind, defining a ‘sphere of responsibility’ requiring care and attention over a protracted period of time, while short-lived duties of a very simple kind, to do or not do some specific act on a particular occasion are not termed responsibilities” [HAR 08, p. 213]. Hart is not entirely sure in using this temporal criterion as distinctive, and I share this scepticism, because it is misleading to detect in complexity or time the parameters to distinguish duty from responsibility. In this way, we risk to falling back into the discretionality that Hart has tried to avoid until this point. Besides, the temporal extension cannot represent a stable criterion either, because it would exclude a whole series of decisions made according to roles assumed for a limited lapse of time. What seems to me to be the main characteristic of a duty, excluding the possibility of detecting a responsibility, is rather the absence of freedom that at least, in principle, characterizes a responsibility [GOO 95]. However, it is true that the daily use of the term “duty” causes several ambiguities, often connecting the idea of duty with that of moral duty (in the Kantian sense), which also presupposes a freedom.

The second acception of responsibility, causal-responsibility, considers an event for which an agent is considered the material cause without having a moral judgment connected to it. Hart also applies in this case a sort of temporal criterion in hinting to the importance of distinguishing between a living person and a dead one.

The third acception, liability-responsibility, requires a more extended and delicate analysis. If it is true that in the common language, the two terms are used indistinctively, it is also true, according to Hart, which we are talking of two different things. For Hart “the statement that a man is responsible for his actions, or for some act or some harm done, is usually not identical in meaning to the statement that he is liable to be punished or to be made to pay compensation for the act or the harm, but is directed to a narrower and more specific issue” [HAR 08, p. 217]. Responsibility in this case only defines the requisites, purely psychological, that must be satisfied in order for an agent to be considered responsible. Hart identifies three classes for defining responsibility as distinguished from liability: mental conditions, connections between agents and actions, and personal relations of the agent. The first of these classes that somehow recalls the question of mens rea is mixed up with the other of the four dimensions of responsibility proposed by Hart, that of capacity-responsibility. The meaning of what it means to be responsible is conceived in a different way by the two Western juridical traditions. English law does not distinguish between general capacities of an agent and the intentions related to a specific action, while this distinction is quite marked in the continental tradition.

However, it appears difficult to distinguish between the two aspects, considering the fact that specific knowledge is often the result of more general capacities. Furthermore, it would be necessary to better specify if Hart himself takes into account only psycho-physical conditions or even more structural relations. As we will see, this aspect often emphasized by Hart plays an important role in the definition of responsibility.

Also for Hart, the distinction between legal responsibility-liability and moral blame represents instead, as pointed out by Kelsen, a crucial piece in legal apparatus. The two aspects must not be considered in a relation of necessity. “The coincidence of legal responsibility with moral blameworthiness may be a laudable ideal, but it is not a necessary truth nor even an accomplished fact” [HAR 08, p. 223].

The relationship between liability and responsibility in the moral field traces out the relation in penal law. For this reason, Hart draws a parallel, emphasizing the potential applicability of the same formal criteria to both fields. “Thus, both in the legal and the moral case, the criteria of responsibility seems to be restricted to the psychological elements involved in the control of conduct, to causal or other connections between acts and harm, and to the relationships between legal and moral responsibilities arising from the differences in the particular criteria falling under these general heads” [HAR 08, p. 226]. The difference between moral and legal responsibility rises in the contents and the modalities of justification related to their respective objectives.

Accordingly, responsibility can be clearly distinguished according to the field of application and the rules connected to it. Responsibility, although responding to the same formal criteria, the conditions of possibility of action, finds different applications in the fields of morality and law. This aspect distinguishes responsibility from liability, where we have to rather comprehend a broader perspective on punishment as such. The legal rules, or parts of legal rules, that answer these various questions, define the various forms of connection, which are adequate for liability. “The legal rules the conditions for legal responsibility which forms only one part of the total conditions of liability for punishment, given that it also includes the definitions of the actus reus of the various crimes” [HAR 08, p. 222]. However, the last dimension of responsibility clarifies once again, and perhaps for good, the core idea of responsibility.

Capacity-responsibility, as emphasized, cannot be understood as one among the several meanings, but it is the activating mechanism of responsibility. For Hart, an argument around responsibility corresponds to understanding if a series of capacities were present or not when an agent committed an infraction. His idea is that responsibility can be identified only when those capacities can be traced. What are these capacities exactly composed of, however, is a definition on which Hart still falters.

In this passage, Hart enlarges its scope and his Kantian inheritance emerges with the rise of the libertarian root at the basis of responsibility understood as imputation.

To summarize, Hart develops Kelsen’s ideas in a direction that manages to cope with the role of morality and the social influences much more than Kelsen had done. By adopting “orders of recognition” and the social role as guarantee of individual freedom, Hart moves forward in the definition of the criteria of responsibility and punishment. Hart is much more careful than Kelsen in lashing out at the moral aspects necessary for the legitimacy of law. Through the escamotage of the functionaries, he acknowledges the validity of a law in its introjections, but he does not extend this to society in general but only to a limited though fundamental number of actors. In this way, he can propose a concept of responsibility that incarnates a bilateral concrete relation, between coercive law and free subject. Hart succeeds in this operation by emphasizing the primary objective of freedom at the basis of the law itself.

For Hart, the agent must be able to follow the law, to move within the boundaries established by law, to foresee the consequences of his action in the space of maneuver allowed by the juridical safeguard. For Hart, law is nothing other than the possibility and necessity to protect an individual from social claims and put him in the position to choose, a subject that chooses, that is free. This freedom is surely expressed in psychological terms, but it is so because framed in a neo-Kantian and positivist understanding of law. According to these terms, only the rationality of an agent can make him free as a subject of law.

Apparently, Hart does not provide us with any clear indication about the contents of responsibility that go beyond the realm of law. Even his sallies in the field of morality have often been interpreted as legalistic5.

However, what Hart seems to consider is not only a negative freedom, i.e. legal freedom understood in a formal sense. The English jurist also feels the necessity to defend himself from the hypothetical Marxist objection according to which the kind of freedom he advocates is in actual facts only formal, excluding other important understandings of it [HAR 08, p. 35 ff., NOR 91, p. 154 ff.]. This objection, which puts into question the whole rule of law, emphasizes the fact that positivism advocates only a “merely formal freedom, not real freedom, and leaves one free to starve” [HAR 08, p. 51]. I do not believe this interpretation, however common, to be entirely correct. I think that the opening to morality made by Hart generates an understanding of juridical freedom not only as a mere delimitation for its own sake. On the contrary, I believe that the freedom guaranteed by that space serves to form what will later be the actualization of the peculiarities of an individual. If I read between the lines, it is not an isolationist perspective, but rather a continuous dialectic between juridical freedom and the capacity of an agent to put himself in an active relation with other agents.

The freedom that emerges is a freedom that is needed for planning, for expressing our subjectivity within a social context thus. Although confined within legal boundaries, freedom seems to be already unveiling its connection with a moral freedom of a reflective nature. For law, if influences that modify its existence are possible, the recognition (although partial) that determines its validity is a reality; the task of offering the space where critical capacities can be exercised is a necessity.

Thus while not offering a determination of the moral responsibility because it would prescind from the juridical task, Hart proposes something very precious. The discretional element or criticism that the law does not completely ratify but that denotes how an exterior reality leads us to understand how the actualization of the law’s task is to guarantee a space of freedom in which the agent can reflect on issues that are not closely connected to the law itself. In this sense, therefore the law must foresee the conditions of possibility in order to freely realize one’s own interests, implying that legal freedom and moral freedom are highly correlated.

Without carrying out still more complex analysis of potential logical cracks in Hart’s construction that open to morality, it is sufficient to say that the identification of juridical responsibility as the capacity to comprehend norms opens the space to a rational dialectic between juridical freedom and reflective freedom. However much Hart wants to create ambiguities emphasizing the non-necessity of it, the medium of reason that Hart presupposes unveils a strong connection between legal and reflective freedom.

Kelsen had repeatedly emphasized the importance of the coercive aspect and the ontological primary of the objective over the subjective. In order to obviate to the several criticisms received by Kelsen, Hart ends up by conceding to the subject much more than a positivist conception would tolerate.

Hart, by opening to morality, falls into the snare set up by subjectivity. Thus Hart, though he wants to limit his conception of responsibility to a dimension of rational recognition, opens the way to a conception of responsibility that goes beyond this.

Hart showed us once again how the concept of responsibility is based on a corresponding criterion of freedom that responsibility is called on to protect. For the English jurist, freedom is already actualized with the presence of cognitive conditions, but it does not undermine the main objective of legal responsibility that is to guarantee the space of maneuver where agents can develop their preferences, interests and desires. The transactions are the exemplification of this basic idea, where the plural subjective, the relation between two agents, is mediated by an instrument aimed at guaranteeing not the reciprocal isolation but the reciprocal engagement in the actualization of one’s own peculiarities. The conceptual power of responsibility must go beyond the rigid boundaries of law toward the uncertain territory of social interactions, where legal responsibility represents only one of the several crucial institutional mechanisms. The plane of responsibility is not unique, as understood by Hart, but he develops multiple dimensions that mingle and overlap. It is thus not surprising that Hart himself, in analyzing responsibility as a role, looks at how the conditions of possibility, necessary to consider an agent as responsible, could not be limited to simple psycho-physical faculties, but instead needs to include all those dialogical and intersubjective activities that are necessary for understanding and exerting the norms (“fair opportunities”). “Such a doctrine […] would not only provide a rationale for most of the existing excuses which the law admits in its doctrine of mens rea, but it could also function as a critical principle to demand more from the law than it gives” [HAR 08, p. 181]. This aspect turns out to be fundamental for Hart, in order to be able to foresee the future and therefore to maximize freedom [HAR 08, pp. 181–182].

Responsibility means, in Kelsen and Hart, the presence of formal preconditions, mainly of psychological character, through which to formulate a judgment with regard to the relation between an agent and his actions in order to maximize individual freedom.

However, neither Kelsen, nor Hart, who inspired most of the current understanding of responsibility, wanted to exhaust a concept of responsibility that already in their understanding calls for more. Law, which represents a fundamental aspect or responsibility, does not, however, cover all its significance. Hart’s analysis of responsibility needs to reduce its polysemy to a spectrum of judicial, or formal, possibilities. The objective to be reached with the declinations made by Hart and Kelsen was that of protecting law from the manipulation made in the name of morality. The aim of Kelsen and Hart was to protect law in a foundational way, from the influences and strategies of politics. Also, from a logical point of view, it became necessary to distinguish between methodologies and above all the contents by analyzing the formal and therefore objective aspects of freedom. It is in this framework that we need to conceive the development of responsibility made by the two jurists.

Being mainly focused on the legal side, these theorizations cannot take into account, apart from hinting at them, other acceptions through which responsibility is equally understood. The argumentative strength of the two authors and the intensive use of the term responsibility in order to define liability and therefore the negative and retrospective relation of an agent to his action has contributed to settling this aspect of the concept.

It is not by chance in fact, that we find several conceptualizations of the term that recall the insights of positivism. The significative contribution offered by Nicole Vincent, for instance, attempts to create a map of the different acceptions. Recalling Hart’s explanation, Vincent lists six different possible acceptions of responsibility detectable in the current scenario [VIN 12]. “Capacity, causal, role, outcome, virtue and liability” according to Vincent exhaust the possible differentiations of responsibility, showing us how responsibility, far from being only a legal term, turns out to be a complex matter implying several issues.

Ibo Van de Poel also undergoes a complex operation of categorization of the meanings of responsibility in order to cut the Gordian knot [VAN 12a]. Van de Poel adds two acceptions to the concept of responsibility, and tries to introduce an overarching reference. According to his perspective, the linking function can be detected in the temporality that responsibility implies, and can be divided into backward and forward. These two typologies transform individual propensity and mark a distance between responsibility as a moral/legal judgment and, as care.

These two attempts, precious in their analytical depth, stand exactly on the level conceptualized by Kelsen and Hart. Both, Vincent and Van de Poel, offer us a precise depiction of the meaning of responsibility in its moral and juridical senses.

Recalling the conceptual roots of the two conceptions, Kelsen’s strict objectivity and Hart’s concessions to morality, enabled us to notice the importance of the reflective aspect of freedom and responsibility. We can also underline another aspect, implicitly suggested by the two authors. The analysis made by Kelsen and Hart had the objective of developing a conception of law and responsibility, which could be safe from political manipulation made by means of morality. But this indicates that this risk must be concrete, meaning that there is a political realm to which we need to pay attention when the term “responsibility” is mentioned. The exact meaning and implications of a political use of responsibility are indications that we can find in another theorization, the one by François Ewald.

2.3. The political implications of responsibility

If Kelsen’s theory of pure law, as well as Hart’s, expressed a description made through the science of law, aiming at depicting nature, role and functions of the legal system, François Ewald’s analysis throws light on another aspect often underestimated of responsibility, the political and economic one.

In order to once again stress the role of freedom in relation to responsibility, it is useful to briefly take into account another example of the relation between law, morality and society with regard to responsibility. The results are completely different and due to this comparison we will be able to proceed in the redefinition of the concept of responsibility.

François Ewald tries to respond exactly to the questions that emerged with the substantive side, historically given and determined political-economic aspects from which positivism was shying away. In this sense, according to Ewald, responsibility is a term that incarnates a specific political conception, aimed at using law itself to actualize a precise conception of the world (Weltanschauung). The French author makes a reconstruction showing how the political rationality across the 19th and 20th Centuries tried to actualize itself together with all the instruments and concepts aimed at providing legitimacy and efficacy.

For Ewald in fact, law is exactly an instrument for governing modulated by the dominant political rationality. Law is composed of two utilities according to Ewald. The first is a dogmatic one, which “enables to propose rigorous solutions to the problems posed by the practice of law” [EWA 86, p. 90]. But next to this first one, we always find another one that has a political character, which serves to bridge the gap between justice and the justness of a norm. “The fact that a solution appears inferable in a theoretical framework, does not impede that the practitioner questions about the justice of the solution, that is to say its justness, considering the interests, the circumstances, its effects on the political rationality. The juridical practice thus, requires another kind of reflection, which ensures to it a certain political intelligence. In the framework of the relations between law and politics in which social law is embedded, this second kind of reflection is as essential as the first one” [EWA 86, pp. 64–65].

Embedded in the political rationality of the time, responsibility captured the liberal spirit and its understanding of action. Ewald emphasizes the political use of law made in order to materialize and actualize within society an individualistic and liberal way of thinking. In particular, Ewald underlines how responsibility had represented the key-concept for the political rationality of the liberals during the 19th Century in France.

Mostly coming from the economic world, responsibility was seen as the judgment ascribed to men according to their reactions (management) when faced by accidents. Accidents were conceived as the unavoidable price to pay for progress. From a philosophical point of view, the interpretation that the liberal paradigm made of evil was to consider it as an accidental event that could and should have been understood and managed in a proactive way. The responsibility of an agent in this framework was his fault. The concepts of fault and merit exemplify the special relation between freedom and responsibility intended in an individualistic way. As summarized by Baron de Gerando, “Earth is for man not a place where he can rest but a scene of trials, a great education. Wellbeing and comfort are shown to him as the prize for his efforts; privation as a threat […] But, who says freedom says risk” [EWA 86, p. 105].

Responsibility was thus identified as the tool with which to judge individual behavior and regulate it accordingly without the need for concrete juridical measures. The liberal reason is distant from a mere procedural perspective of law aiming at increasing individual liberty due to a moral discourse that is much more flexible in the management of events thus liberal reason for Ewald, “is a certain way of managing the causality that obeys the rules of a morality” [EWA 86, p. 101]. This morality, emphasizes Ewald, develops on the relation, directly proportional, between freedom and responsibility. Surely, the kind of freedom and responsibility involved are individual ones because responsibility is necessarily individualistic. “The responsibility, individual in principle, makes it a duty for each to provide for himself his personal needs”. With liberty comes responsibility, according to which Ewald calls the “liberal diagram”, and the absence of one implies the impossibility of the other. “Responsibility is the most perfect regulator of human actions”, declared by Labbé in 18846. His statement summarizes, according to Ewald, the political, moral and economic conception that had been developing for over a century on the canvas of a liberal and individualistic conception. The liberal diagram was based on the assumptions according to which “no one can dump onto another the charges of its existence, of the flukes or indispositions he could undergo, excepting the case when these are caused by someone who broke the supreme rule of coexistence of freedoms: do not harm others” [EWA 86, p. 64]. In other words, it means that: “everyone must be considered responsible for his fate, for his life and for his destiny” [EWA 86, p. 64]. This idea entails a very specific idea of freedom according to which, each man must handle his life without external interferences as well as by not relying on others in case of necessity. Freedom as absence of bonds, and freedom as the possibility of managing events in favor of one’s self. “The principle of responsibility is given as a convertor of bad in good, […] and is given as a principle of progress, as a device of perpetual, individual and social perfection” [EWA 86, p. 102]. Responsibility becomes a regulatory principle that serves to guarantee two crucial assumptions: that no one dumps his charges on others, and the possibility of collaborating for economic purposes.

Ewald describes the principle of responsibility as a device aimed at justifying a specific idea of freedom and at providing the features for regulating its development.

For liberals, responsibility was that principle that could enable and steer individual mechanisms aimed at tackling insecurity and conflicts. “Responsibility enables to understand social life according to the model of harmony. The liberal idea of harmony consists of the fact that morality could jointly play with law, law with economy, that the directive principle of each field, far from opposing, refers to one another strengthening reciprocally” [EWA 86, p. 102]. Responsibility, enacted by freedom, was then supposed to develop by trying to establish that harmony among different social spheres. The principle of responsibility thus enabled, liberal rationality to disentangle from the tight meshes of law due to its polysemy and flexibility. Not only rigid juridical mechanisms, but also and above all the adoption of powerful moral motivators based on the concepts of fault and merit. In fact, it was necessary to “always make sure that men could find in themselves the principle of rectification of their conducts. The less men can dump on the others their fate the better it will go; and if it will not be enough, it is because there is not enough freedom” [EWA 86, p. 103].

So far, we have seen the idea, and ideology, of responsibility in the moral and political conceptions of liberals during the 19th Century. The principle of laissez faire implied this aspect of responsibility the omission of which was to be considered a personal fault.

However, the growing industrialization and the related technical innovation generated too many negative consequences and accidents, to call upon the principle of personal responsibility developed by the liberals. The industrial reality of the time did not allow an understanding so detached from the negative events that, in actual fact, had a certain systematic attitude. Ewald tells us that it was not possible to adopt an individualistic criterion of merit or fault in the domain of collective production like the industrial one. Evil was not the outcome of a personal moral choice, but a systematic occurrence of the error. “At the heart of industry appears the necessary regularity of evil” [EWA 86, p. 178]. This damage was not imputable to individuals because it was often caused by mechanical systems or by innovation in general. There was the strange situation of damage without a fault that was inscribed neither in the natural dimension of causality nor in that of personal responsibility. Accordingly, also the repartition of goods could not be ascribed only to personal merits. During this period there emerged, according to Ewald, an entity between the State and individuals, an entity that distributed good and bad according to its own logic, society. This concurred to put in question the same principle of liberal justice “in the measure in which negative outcomes were distributed according to laws indifferent to the good or bad conduct of each” [EWA 86, p. 147].

Therefore, starting from the end of the 19th Century, because of a rise in the number of negative consequences, the moral system based on liberal justice was supported and superseded by an ethical-political system based on the calculation of “risks”.

Through the computation of probability and statistics, a development occurred that aimed to identify the spectrum of possible outcomes rising from an innovation from the perspective of insurance. Insurance calculates the probabilities that an event could occur. “The risk is computable. This is essential, because it is for this reason that insurance is distinguished from lottery. For an event to be considered a risk, the possibility of estimating the probability is needed. Insurance has two bases. On the one hand the statistical table that establishes the regularity of certain events, while on the hand the probability computation applied to statistics, which entails to evaluating the possible occurrence of the same events” [EWA 86, p. 301]. Insurance is clearly distinguished from responsibility because it does not take into account the will or the true intention of an agent, even less does it consider the eventual guilt. The risk is collective says Ewald, and that there is not, properly speaking an individual risk which does not exist if not as part of a whole. On the contrary, the juridical reason starts from a “moral vision of the world” and from this individualistic perspective, isolates and judges the agent’s responsibility, innocent or guilty [EWA 86, p. 301].

Responsibility was then placed at the center of an intense debate that led to the institutionalization of a compromise with the redaction of the Civil Code in 1898. In the Civil Code, the necessity of assigning a certain degree of objectivity to damages was promulgated and also that the material consequences of damages had to be compensated. Thus, some articles specifically addressed the disputes between workers and entrepreneurs, in order to protect the former from the abuse of the latter. According to Ewald, at the basis of this introduction we can notice a shift in the understanding of enterprises and labor in general. What this Code contained was a normative understanding of the relationship between the entrepreneur and workers, based on what Ewald calls solidarity, in a framework of contractual rather than criminal law. Accordingly, the Code conceived two distinct, though linked, kinds of responsibility. The first kept the action tied to its agent in a moral sense, considering the damage as someone’s fault. The second, however, embedding the conceptual shift mentioned above, was more concerned with the reparation of damage independently of the cause. The fault was surely a fact to address and determine, but the solidarity that was highlighted in labor contracts between entrepreneurs and workers implied that this extra-legal trust should have been maintained no matter whose fault it was when a negative outcome occurred.

Ewald shows us that the development of the concept within civil law paved the way to an understanding of responsibility where causes and damage compensation were separated in a framework that he defines as right of accidents. Whereas in the former liberal mentality, we find a strict connection between causes and damage linked by the acception of moral responsibility, in the latter damage and causes are decoupled, opening for a kind of generalized responsibility (of each toward everyone) [EWA 86, p. 499]. In this sense, the right of accidents no longer considers who is responsible, but focuses on the victims (or on the damage itself) that need to be materially compensated. “(A) Purely material causality that cannot leave any longer space for the subjectivity of a fault” [EWA 86, p. 499]. The aim of the law in this sense is not really the judicial punishment of an agent but the material reparation of a victim’s suffering. A material, mechanic layer is added to complement the situational judgment of a moral subject, merging penal and civil law into the concept of responsibility.

Ewald also emphasizes how the short circuit that occurred within liberal thought, especially in relation to law and the possibility of institutionalizing the features, contributed to dissolving the liberal diagram. He underlines how, due to the change in the idea of justice, and because of the modification of the normative framework of reference, modifications to the institutional asset became necessary. However, this was not possible for a political rationality that conceives as its main objective freedom from institutional chains.

These conservative developments of society toward the management of risk represent a positive development for Ewald, because they contribute to eliminate liberal inequalities and injustices in favor of an egalitarian model that only needs to be actualized. Ewald imagines the substitution of the liberal paradigm by a model of civil right no longer focused anymore on fault but rather on damage. Through the conceptual shift from the punishment of the guilty to the compensation of the victim, Ewald tries to articulate a proposal able to learn from the political strategies of liberal thought and to avoid the injustices connected to its diagram.

Ewald defines the guidelines of a model that he names “social right” based not on personal responsibility and individual freedom but on life and equality. The criteria of liberty and responsibility, which Ewald considers as contradictory and aleatory, must make way for the ones of life and collectivity. It is necessary to start emancipating from individualistic models aimed at favoring ideological aspects, and instead to construct a social right aimed at the constant achievement of an equilibrium under the aegis of an insurance-based rationality. If liberal rationality understood the repartition of good and bad as the natural outcome of individual freedoms and responsibilities, and therefore unquestionable, the rationality figured by social right proposes a different idea of justice. The collectivity, and no longer the individual, will establish the criteria for the distribution of charges. We can no longer ground our norms on human freedom, where someones’ are always freer than others, but rather on the equality of life, where all forms of life can be included. Thus, for Ewald, insurance represents not only an economic and financial technique, but also and above all a moral technology and a modality of administration of justice that can and must be actualized in social law. “The idea of a social law is at the antipodes of the idea of law that was formulated by Kant, that is an ensemble of rational utterances which, detached from desires, interests and passions – also moral ones – could found an order of coexistence of freedoms” [EWA 86, p. 461]. The idea of social law is, according to Ewald, the expression of the preferences and desires of a collectivity, a group that he calls society. The tensions within a group would then be managed through the notion of equilibrium, which eliminates any reference to sovereignty and liberal disparity. “It is through the notion of equilibrium that we think the difference between the rule of judgment belonging to social law and the old rule of civil law, that which stood around the liberal political rationality, around the notions of guilt, will, freedom, in one word, responsibility” [EWA 86, p. 467].

However, according to Ewald, this social and wider interpretation of the Code of 1898 has never met with a great reception, neither by doctrine nor by practice. This general understanding of responsibility would have meant in fact to extend the labor-contract framing to all social relations. Nevertheless, the scenario imagined by Ewald is somehow fascinating. “In order to think the right of responsibility as the right of accidents, we need to conceive accidents not anymore the fact of a third person in front of another, but rather the result of the interdependence of relations, the exchange of services, of the pursuit of a common good. In other words, we need to suppose that we are all tied by a general contract and that we are multiples of solidarity” [EWA 86, p. 440].

He believes that this perspective, increasing the level of solidarity, could still open the way to a different conception of justice.

Ewald points out several important aspects connected to the concept of responsibility. The first aspect is the fact that responsibility by nature entails a political usage in order to implement certain moral and practical conditions.

The second aspect, I believe to be important, is that he shows how responsibility is (or can be) the exemplification of a crosscutting and normative understanding of society, where different dimensions are strictly dependent on each other even in unconscious or mechanical ways.

Furthermore, a limited understanding of responsibility has failed to exploit the ethical potential embedded in it. But, there are several other interesting aspects emerging from Ewald’s historical reconnaissance on civil law.

The first, as we have mentioned, is the role of responsibility as an expression of a specific political rationality. Far from being an empty notion, responsibility has always been closely connected to a precise political understanding of society and most of all of liberty. Ewald stresses this aspect several times. “To understand responsibility, the obligation at its heart, and the way to intend it, we need to think the twofold “social rule of judgment”, to say a) the type of political rationality through which is conceived at a certain time the regulation of social relations, b) what defines the authority/jurisdiction of right in the sphere of social obligation, i.e., what marks the threshold between right and not-right” [EWA 86, p. 436].

Ewald shows us the relations and the contradictions emerging in the interrelation between morality and law through the development of liberal thought. First, he demonstrates the close connection between morality and law in the explication of responsibility and how these two dimensions are mingled with the political sphere in the application of the dominant ideology at a certain time. In this sense, is interesting his historical demonstration of the possible consequences when the political dimension, through morality, makes an instrumental use of law. This assumption, always implicit in the analysis of Kelsen and Hart, emerges in a clear way with Ewald. To keep responsibility detached from concrete institutional devices means to generate a rhetorical use that could lead the concept of responsibility to function only as a tool of ideological legitimization. Those issues that at first glance might appear as simply philological or juridical disputes prove to be hermeneutical operations with a high political significance [EWA 86, pp. 78–79]. Responsibility, given its plasticity and potential application to several dimensions, can be used and exploited following different models of political rationality. Responsibility embodies a tool for the governance of the dynamics of the time in which it is used. Far from being solvable on a technical plane, the dilemma of responsibility has political characters that need to be solved by a shared institutional framework. “It (responsibility) depends on the government that makes her possible, by suppressing the administrative obstacles that impede its exercise, but also by creating the conditions of her enabling, and by guaranteeing and sustaining her during her existence” [EWA 86, p. 354]. But, if responsibility can be exploited for the sake of profit or other legitimization processes, we must not forget that responsibility is always connected to freedom and this aspect cannot be left in the hand of private subjects of society. As Ewald reminds us: “If the initiative could surely pertain to industrialists, freedom is a governmental function” [EWA 86, p. 354].

The implementation of the moral dimension, the rising socialization stimulated by the growth of collective labor processes, soon led to the overcoming of such a perspective in favor of more articulated forms of freedom. If responsibility is confined in one social dimension, or it does not develop according to institutional regulations, it becomes impossible to respond to the various social claims and historical evolutions.

However, this wished limitation of responsibility lies in the fact that the understanding of freedom mentioned above is limited to one dimension of it. Accordingly, it is exactly a reductive conception of freedom, mainly individualistic or negative, which has resulted in liberal thought being unable to respond to the social problems of the time.

Curiously, Ewald has shown us how in actual fact the idea of responsibility and the morality connected to it has been developing mainly in order to respond to the technological acceleration of the 19th Century, an epoch in which, for different reasons, the juridical apparatus was not considered the most suitable instrument to actively tackle unrestrained progress. Accordingly, responsibility represented a simulacrum where, all the norms and rules of conduct could have been potentially introjected, and due to which individuals could have oriented themselves in the angle generated by technical progress. Ewald has also pinpointed that the practices of technological development must be promoted and developed under an institutional aegis.

One of the merits of this conceptual framework is to have thematized the notion of error, common ground for causality and freedom. The error, potentially embedded in every action, is an ineludible factor for any theory of responsibility. Ewald rightly points out that the difficulty of assessing responsibility in the moral sense lies in the fact that it is extremely difficult to distinguish individual fault from more general (or social) causes. As emphasized by Ricoeur, a moral judgment is always a matter of choice of the moral criteria we adopt, and it is a selection among different aspects that concurred to generate the action. In this way, he warns us, responsibility will become a completely subjective matter that can ignore the criterion of proportion between fault and damage. For this reason, Ewald underlines the importance of conceiving the error as a constitutive trait of human beings. He sees difficulty in pursuing a moral framing within the right of responsibility exactly because it would eliminate the distinction between causality and fault that is at the core of the concept of responsibility. Responsibility, he states, “has its source in the decisive distinction between causality and imputation: it is not sufficient that someone had caused a damage to make him judged as responsible; he must have caused it on his fault” [EWA 86, p. 108]. He also rightly underlines that “bending imputation of damages only onto their causality would mean to suppress the very idea of responsibility”, and accordingly, “would mean to suppress the very principle of a government of freedom” [EWA 86, p. 69].

Coming to terms with human fallibility, intended as structural, must be done on the material plane. The role of compensation appears fundamental in society that wants to pursue ideals of justice.

At the same time, and with this I would like to emphasize a limit to the otherwise extraordinary analysis made by Ewald, put at the center of the ethical analysis the role of consequences cannot imply losing the deontological perspective. This means cancelling the serried relationship between actions and agents, as recognized by Ricoeur [RIC 00, MOY 12]. The cancellation of individual contribution, in favor of a collective system based on insurance, entails two potential orders of factors. The first, negative, does not impede us from thinking that, if there is not a reason for welshing from risky actions, the consequences could be worse than a probability calculus could foresee, and that a material compensation could hope to compensate. In the end, the problem with the insurance system, apart from the impossibility of making reliable predictions, is exactly that of generating a potentially disastrous chain of effects. If an action is quantified according to risk factors and potential damages, the feasibility of an action will only be proportioned to the possibility of compensating the damage in material terms. The quantification of responsibility entails that responsibility itself becomes an object, potentially a commodity for exchange. In this way, only commercial dynamics will determine the decision for action. Moreover, the majority of consequences or damage cannot be healed by material compensation.

The second order, in some sense negative, suggests that with the disappearance of individual contribution and with it the recognition of merit, also the importance of individual contribution to social development would disappear. In other words, every spiritual, material or cultural contribution through which individuals develop certain moral characteristics, without mentioning the identity formation, would turn out to be not more than a fortuitous surprise. These two orders of factors meet at the crossroads of the anonymous indifference toward social and intersubjective destinies in which Research and Innovation (R&I) would be relegated by an insurance-based system.

Ewald has emphasized the political role of a specific freedom, the one that I would define as economic freedom. On the basis of a strongly critical perspective, Ewald describes liberal assumptions, first by showing their peculiarities, and then their contradictions. He subsequently gets away from that sinister individuality toward a social law shaped and steered according to mathematical rules or of computation. His theory of justice, contrary to Kelsen’s, is based not on an individualistic idea of freedom but on a collective one that ends by assuming the form of an anonymous equality. Only the adoption of stable procedures, based on an incarnated objective medium, could guarantee equality according to Ewald. It is inevitable then, that he has to reject the criterion of responsibility as a symbol of a liberty that he identifies tout court first with the Kantian liberty and then with the utilitarian one; “Freedom is not an autonomous power of determination” [EWA 86, p. 953]. However, this represents a mistake that I think we should not commit considering the semantic and conceptual richness of responsibility. The description offered by Ewald of the concept of responsibility is highly interesting for our investigation because it shows several aspects that were only implicit in Kelsen and Hart, and provides us with a completely different scenario. Ewald has emphasized the political role in the adoption of responsibility warning us of the appeals to personal responsibility that hide political-economic instrumentalizations. However, this does not mean that we have to throw the baby out with the bathwater. The concept of freedom and therefore of responsibility that Ewald presupposes is limited and as such unable to face the challenge of the polysemy. The problem at its basis is not to reject responsibility because it is potentially exploitable or because it is connected to a mercantilist model of freedom. The challenge instead would be to unveil this relation as an exploitation and manipulation of an ethical discourse. The answer then must not be found in a refusal of responsibility and freedom in favor of an equality within a retributive system, but rather to discover a broader and deeper conception of responsibility. In other words, we need to construct a common understanding of responsibility that could be protected by political manipulations aiming at distorting its essence and function for the sake of ideological purposes.

Without continuing too long with the analysis of this interesting perspective, I wish to end by emphasizing once more the ultimate contribution offered by Ewald in the comprehension of an individualistic perspective of responsibility and its effects. Ewald has shown us several aspects of responsibility and its connection with freedom. With Ewald, we manage to get away from an analytical definition of the differences inherent in responsibility between morality and law. We can now better understand how responsibility, far from being a neutral category of attribution of an action to its agent, represents instead a multidimensional instrument that can incarnate a specific perspective of the world. We can also understand how the relation between law, morality and politics is not and must not be considered as exclusive but dialectical, aimed at actualizing concrete values and norms.

The concept of responsibility with its polysemy had to then undergo a sudden reshaping, enmeshed in the rigid tangles of juridical positivism. Nevertheless, responsibility has never ceased to represent the powerful instrument through which to respond to the challenges that progress has generated throughout the years. If we find its increasing mention or use in literature and policy-making, it is because in the meantime we have witnessed a development of the concept of freedom that is much more complex and articulated, and that has enabled us to rethink the concept of responsibility in a different way.

In addition to the perspective aimed at ensuring and incrementing objective forms of response to individual errors, during the 20th Century we find an opposite perspective, based on a subjective stance that, in its radicalization, turns out to be collectivist [HAB 15].

In particular, the contributions developed by Ulrich Beck and Hans Jonas have shown us a new way of thinking responsibility according to a perspective that we could define as existential [BEC 92, JON 79]. The shift of the temporal barycenter, the dissolution of responsibility from its contingent manifestations together with a universalistic comprehension have redrawn the contours of responsibility as a tool of governance. It is no longer sufficient to define responsibility as the condition of possibility of imputability or guilt. These conditions are already present and we need to take them in charge. We are already guilty, as emphasized in different ways by Sartre, Jonas and Beck. We must now react to the charge of freedom that technology development continues to produce, we must think of responsibility as a universal ethics.

Beck’s approach is surely that of a normative sociologist aimed at showing the effects on a large scale of “risk society” where the scenario depicted is described as “organized irresponsibility” [BEC 92]. The perspective of Jonas’s perspective instead develops along the lines of a Kantian morality together with an existentialist afflatus. The model proposed by Jonas is based on the normative assumption that, despite all the differences in the various moral conceptions, one basic presupposition can be agreed on, the fact that the existence of humanity must be guaranteed. Given the extremely rapid development of technology and its negative consequences, our task as responsible beings is to guarantee not only freedom, but also the very condition for freedom itself, existence. Also Jonas then adopts a perspective of responsibility that is to a certain extent transcendental and Kantian, according to which we are already responsible because we are humans, because we exist. To fulfill our humanity means to respond to a moral call of respect for the other that our freedom imposes on us. Revisiting the concept of responsibility from a post-modern perspective, Jonas, like Beck in a way, recaps several of the assumptions we have already found in the previous theorizations; the taking charge of events, together with the moral necessity to transform the bad into good. The shift of the temporal fulcrum toward the future and its prediction and the shift of the moral barycenter from the aspect of guilt to the one of compensation or reparation of damages are all aspects that have already emerged. Jonas, however, radicalizes these aspects through a perspective of universal care that makes it particularly interesting. The freedom/progress couple has at this time materialized itself in a cul de sac from which it is possible to go out only through a different interpretation of their meanings. Progress can no longer be understood as mere technical progress but needs to go back to the original meaning that Kant had proposed as “the act (or series of acts) of a being endowed with freedom” [KAN 79, p. 151]. Accordingly, the steering of progress implies a disciplining of freedom that in the end is the true task and objective of freedom as emphasized by Kant in the first Critique, the capacity to hold together the constrictions of causality with freedom’s articulations. For Jonas, it is no longer possible anymore to let it go in order to favor progress and increment negative freedom at the individual level. It is necessary to make sure that the condition of every liberty will be possible in the future. The weave of Kantian assumptions with an existentialist afflatus of Levinasian origins7 brings Jonas to propose a radical version of responsibility as expletation of freedom. We need to react not to respond to one problem or another arising from the developments of technology. We must change the entire attitude we place in our way of acting in order to ensure the possibility of existence. We must take care individually of our being and the possibility of life in the future. In this sense, Jonas adds a fundamental aspect to the concept of responsibility like the one of care, an aspect that has not emerged in the previous conceptions. Furthermore, Jonas stresses once again the fact that every responsibility, and the basic significance of it, derives from the one of freedom.

However, in an involuntarily way, Jonas also shows us that each acception of responsibility is connected to a correspondent dimension of freedom.

The fascination of his words does not have to make us lose sight of the fact that Jonas adopts an absolute perspective, though positive and transcendental, on freedom. Accordingly, not differently from a Sartrean point of view, Jonas cannot propose institutional solutions or practices that could concretely respond to the issues put in place with RRI. Jonas’ attempt, like Beck’s, is the translation of an appeal, a desperate scream that our very nature is emitting.

On the same wavelength, we can find some approaches aimed at emphasizing the existential aspects of responsibility. Adam and Groves, for instance, focus on finding paths that can escape from the bottleneck of a moral or legal perspective of responsibility [ADA 11]. The two authors concentrate on alternatives that could express that plus necessary to respond to the challenges posed by pluralism. Accordingly, through concepts lent from gender theory and phenomenology, Adam and Groves develop a conception of responsibility as care.

These two perspectives on responsibility, which summarize different emphases placed on this or that aspect, show us the doubts, perplexities as well as the fascinations emphasized by Ricoeur. We understood in actual terms the polysemy of responsibility, as well as the great difficulty of developing a conception that manages to tackle all the problems without losing the normative power of the concept. We are now stuck between two aspects that pull us. On the one hand, the need for objectivity that a criterion like the one of responsibility requires in order to be used in a shared way without being manipulated. On the other hand, the crucial necessity that responsibility embodies subjective contributions aimed at the articulation of the value to be preserved and implemented. We still need to find a reference that can keep together the legitimacy provided by an objective structure, and the efficacy incarnated in the subjective contribution to the understanding of the norms. In fact, these two perspectives do not manage to help us in solving the problem because they tend to lose one of the two aspects.

We must think then of the formulation of a conception of responsibility that can take the two dimensions and combine them in a meaningful shared structure. In order to do so, we need to think of responsibility in all its nuances and acceptions so as to be able to understand its main features. Each conceptualization has emphasized certain aspects and specific issues of responsibility that we now need to summarize. In this way, we can grasp the potentialities embedded in a concept full of hidden significance.

2.4. Responsibility as an overarching concept

All these conceptions of responsibility show us two fundamental factors. These are the lack of a relational dimension among the different acceptions and the explicit connection that each acception has with its equivalent of freedom.

The first point, that emerges, so to say in a negative form, is almost evident for the clamor generated by its absence. The semantic problem embedded in its polysemy has already been emphasized and it is quite evident in our daily usage. How do we define the sense of responsibility given the several possible interpretations? How can we choose, for instance, between the juridical criterion and the moral one? The solution proposed by Kelsen and Hart, also endorsed by several contemporary authors, is that the right acception is the one inherent in the field of application. This means that, for instance, juridical disputes must be resolved according to the criteria of liability, while moral diatribes must follow the indications arising from blameworthiness, and obstacles of an economic character should be managed in a dimension related to accountability.

This perspective is also implicitly assumed by those who understand responsibility as care, because the promotion of the criterion of care must go beyond juridical references, for instance, in order to respond to the claims with which law has not been able or did not want to cope. The conceptual framework proposed by Ewald goes even further by stating that responsibility must be abandoned tout court because by concept it is an expression of a biased perspective.

I do not believe that Ewald’s judgment must be entirely shared. To my knowledge, this optical illusion arises from considering one part as the whole, and from mistaking the concept itself for one of its applications. Although I agree with the high risk of instrumentalization that such a broad concept entails, I do not believe that this would be the most convincing strategy. On the contrary, to emphasize the partiality of an application as an expression of political inadequacy can help us to highlight in part the logical and ethical limits which it might incur.

This opinion assumes even more solidity if compared with the others we have analyzed. The reference framework of Kelsen, as well as that of Hart, is in clear antagonism with interdisciplinary approaches, in favor of a rigid and “pure” identification of the criteria pertaining to each social sphere. The objective in the three conceptions is not that different considering that the three of them were moved by the same cause, which is to avoid moral and universal justifications of political and partisan perspectives. The search for a law that would not have any kind of mooring, not even a vague one, in natural law and the need to ground law on the right to material equality, as social law, are both attempts to respond to political manipulations, of law potential or actual. In this scenario, the criterion of responsibility becomes the main “imputed” because the apparent difficulty, or impossibility, to define its meanings, is considered to be the conceptual ground from which arises the manipulations. The closure in front of the flexibility of plural subjectivity can be an approach, but I am not sure it would be efficient either from a logical or from a functional point of view as the apparent difficulty or impossibility of delimiting its meanings is considered the conceptual focus from which exploitation arises.

In general terms, every dualistic conception that divides spheres of responsibility tends to fall into the same conceptual mistake that we underlined previously. Responsibility has several layers of different depths. To isolate them could be a theoretical exercise in order to understand or define traits, but it can neither be extended nor crystallized in a wider proposition, nor applied in a practical domain. Instead of dividing spheres of responsibility, we will think of understanding how they are all part of one, wider conception.

From a practical point of view, the distinction among disciplinary fields or social dimensions does not help us in going beyond a knowledge that we already possess. In order to tackle the challenges of innovation, that by definition require an opening to interdisciplinary approaches, perhaps these approaches help us only to a certain extent. One of the knots of RRI is exactly the one of understanding how to steer innovation without blocking it, but rather stimulating it so as to achieve the double objective of legitimacy and efficacy already highlighted. Sticking to a single reference methodology does not appear promising for problems that entail complex aspects. For instance, following only some juridical regulations connected to responsibility and thus liability cannot provide us with any concrete indications with regard to innovations as the latter is turned toward the future whereas the former delimits the past [VON 93]. To rely on moral assumptions to understand the goodness of consequences connected to some innovation does not guarantee that the product or process will be accepted because one moral perspective might clash with others. Or perhaps because those moral criteria are not accepted in a specific context or for reasons that do not depend on moral criteria [FER 02].

A responsibility focused only on economic features, according to which it becomes the necessary response to the material expectations of a specific sector or group, cannot lead us very far on the plane of legitimacy because of the choices which by definition are sectorial with respect to the society that will have to bear their consequences. Moreover, this social sphere is the one generating most of the misgivings by a great number of Europeans because the perception is that innovation is driven only by economic criteria generating more inequality and injustice [STI 12, COH 12].

I will not go into details with regard to the problems that this last position entails because I will examine them hereinafter.

If the criterion of responsibility embodies the possibility to escape from a technical chokepoint, then I think we need to make a more productive use of it. I believe that we can take another path that is the one indicated by Ricoeur and already opened two centuries ago by Hegel.

This means that if we want to identify the conditions of possibility of a responsible approach this is possible only on the basis of an ethical foundation, i.e. an overarching perspective of all the different acceptions of responsibility.

The issue at the basis of responsibility is already clear when examining its polysemy. Accountability, liability, care, blameworthiness, etc., are all equally important acceptions of the concept of responsibility. Several authors have focused on the definition or description of this or that acception trying to shed light on the concept. My objective is to keep all these aspects that I have emphasized until now in order to delineate the main features of responsibility as the link of the different acceptions. At this stage of my investigation this remains a formal construction, short of a more substantive connection because these aspects will come in later in the analysis. Nevertheless, I believe this outline necessary in order to proceed further with the general construction.

On the one hand, responsibility embodies a status, a juridical or moral condition that inserts the individuals into a relational network. An individual is responsible because he is a recognized member of a juridical or moral community8, which expects the fulfilling of certain conditions and that pretends a “justification” or a compensation in case of their infringement. However, this first feature of responsibility already unveils another important aspect that is the one of capacity. As we have seen with Kant and juridical positivism, for an individual to be considered accountable or responsible we need to presuppose the fact that he is in possession of certain capacities. This means that inclusion in a community is based on the possession of capacities that enables an individual to understand what is actually asked of him. As we have seen, there are different interpretations of the extensions of these capacities.

Nevertheless, I presume that we can include in them not only the capacity of understanding as such but also the possibility of recognizing those external rules we are called on to respect. I am not talking of the will connected to an action, but of the presuppositions from which an action becomes frameable in a shared understanding. In other words, the capacity of being responsible implies not only the presence of rational capacities but also the epistemic recognition of the rules according to which we become members of a community and accordingly responsible.

Besides the status of responsibility, I believe we also find another aspect that is interesting to highlight. Apart from the status dimension, Van de Poel as well as the “existentialists”9 showed us how responsibility also embodies a dynamic nature directed to the future. We are responsible as human beings, being parts of intersubjective subsystems that we need to take in charge. Regarding this aspect, responsibility crosses the borders of what is already established in order to venture into the lands of what is not yet existent. The individual, without any specific need for recognition, alone within the spatial dimension in which he exists, external to a context in which he is not yet, engages himself to respond for the conditions that he himself will produce and determine. I believe that this aspect, surely less objectivable, based on care for the existence, makes a deeper side of responsibility emerge at least in its semantic and etymological roots. In fact, responsibility owns its origins to the verb respondere [OWE 13], a verb that implies a response to something or someone, or even more original meaning of giving account of something to someone [PAV 14, RIC 00]. Responsibility thus seems to imply a communicative structure based on the response we are called to give to someone or something. For Kelsen and Hart, we need to give account to a juridical community [KEL 05, HAR 08]; for Ewald to our societies [EWA 86], for Jonas to ourselves and the future as part of one same world [JON 79] [LEE 13, p. 147]. But, this prefix re contained in the word responsibility hides for me a deeper meaning related to the verb spondere of which re spondere represents a reaction to or at least a repetition. Spondere, which means to engage, to promise, implies an active dimension and not only a reactive one, that some authors such as Grinbaum and Groves [GRI 13] and Van de Poel [VAN 12a] have correctly grasped. Also other authors had implicitly based their analysis on this existential side, but its explicitation opens for exegetical paths that perhaps could lead us to the solution of the puzzling issue of the relation among different acceptions of responsibility. I not only find in the polysemy, but also in the close connection between spondere as an engagement and re-spondere as giving account, the integrative and complementary nature of responsibility. The two variations, backward and forward, represent two sides of the same coin, where our commitment as individuals inserts us in a network based on recognition that requires us to give account of that promise.

In order not to overlap my hypothesis with the rich framework proposed by Van de Poel, and in order to delineate more clearly my hypothesis, I believe that it would be better to articulate the two variations of responsibility in a different way from backward and forward. I believe in fact, that shifting our perspective a little could help us to unveil other aspects. I, therefore, prefer referring to these two sides as conservative and innovative, being both connected by a double operation of assumption and ascription.

The side that comprises the status of responsibility matches the conservative dimension. Here the idea is to preserve something, as we have seen, in its minimal version, the conditions of possibility of responsibility itself. It is usually understood as the negative imperative of not harming people or things other than us. In this sense, the static understanding of responsibility entails, in its minimum version, that we do no harm. This is the side that is usually addressed by the tradition inheriting the main feature of Kantian’s thought and focuses on the ascription of a potential capacity. There is no stimulus to an activity involved in this sense other than its potentiality.

Responsibility though also contains an innovative aspect. The linguistic root of spondere suggests the commitment to which we are called, the promise. We are talking then of an active and innovative dimension that I would define as the practice of responsibility. In this context, we cannot simply avoid to act, we cannot hide ourselves behind rules or laws. Here we must act, exert our taking charge. Accordingly, responsibility assumes an active and innovative significance that can be emphasized as the assumption of a charge. Responsibility becomes active and real. And it is this same practice, this commitment to which we must respond that places us in a relational context. We could say that the subjective aspect enables and guarantees insertion into a plural network. In fact, I would emphasize that commitment, if not embedded in an institutional dimension, could not be conceivable or actualizable. The objective dimension, the institutional one, provides us with the instruments and the horizons according to which we can exercise care. Thus, the activity of responsibility as a practice becomes real and effective because the subjective effort is translated into an objective discourse.

Articulating this assumption in Jonas’ terms, we could say that the status implicit in responsibility forces us to act in order to conserve at least the possibility of life. But I am not sure that we should limit the range of the conservation to its minimum level, i.e. to the existential dimension. It is true that several environmental situations force us to react with an urgency that calls into question our survival. But the conservation implicit in the status also entails all the conditions that make the exercise of responsibility possible. Without being able here to further define the contents, we can state that conserving means to preserve the actual conditions that enable us to take care for the future at an existential level, and that are to be found in all those institutional mechanisms able to translate single efforts into a collective process. Otherwise, responsibility would be diluted into merely singular or hyper-collectivist perspectives that would generate the sinister scenario prospected by Ricoeur [RIC 00]. If responsibility is left only to individuals, it becomes a subjective and relativistic effort to change an objective structure. Thus, conservation implies, according to my perspective, also those mechanisms, belonging to the juridical and moral dimension, which put us in the position of being responsible. It is due to the presence of an institutional dimension that we are enabled to take care of existence. It is due to the institutional dimension that places us in a relational structure that we can understand what and how to conserve and above all that what makes it real.

And it is here that another aspect emerges, previously diluted in or overlapping to the one of responsibility as a status, i.e. capacity. Capacity is the connection between conservative and innovative dimensions, where the possibility of innovating responsibly is due to the capacity of taking in charge the responsibilities, and at the same time the capacity of committing to something. Thus, capacity incarnates the connection between individual disposition and institutional conditions of possibility. In order to be responsible, I have be able to understand the structure of significance, behavioral norms and linguistic rules down to the intuitive perception of right and wrong. The capacity that generates the commitment is the key that enables us to pass from a first to a second nature [RIC 07], where the syntax of a common language interlaces with the semantics of subjective experiences, giving birth to narrations that are always original.

To summarize, the two “natures” of responsibility, conservative and innovative, merge in one dimension where status and practice are connected and kept together by capacity. Capacity embodies this twine of predisposition and disposition, of life-world and objective dimension, where the dialectic between status, guaranteed by insertion into a relational structure, and practice, moved by an individual impulse, winds in the immanence of its practical meanings.

For these reasons, I would say that we can already glimpse a part of its deep significance as an ethical responsibility, that is to say as the connection among different sides that must relate to each other through stable structures but with an opening to the immanence toward a reflective equilibrium. My hypothesis here is that all the acceptions of responsibility must be kept together in one conceptual framework. Only in this way, we can think of a concept that can contain on the one hand the accountability for a commitment taken with regard to a community in which we are recognized. But, on the other hand, a concept that is able to go beyond this due to commitment toward a future that is still not defined.

An engagement toward the reproducibility of the conditions of possibility of the community that recognize us is surely a basic and crucial criterion (for future generations). Nevertheless, I believe that we have to be more demanding and think of commitment not only as maintaining what it is, i.e. the mere possibility of survival. I think that it must also engage toward the improvement and implementation of the existent.

However, in order to be able to assess an improvement, we first need to comprehend which are these conditions of possibility of the existent. The comprehension of the contents of these conditions for responsibility will lead us on the path to implementation, namely progress.

This reasoning in fact does not yet clarify two fundamental aspects. The first is the reason for which we engage, and the second is to understand how to make sure that our commitment will succeed. In other words, we still have to define the criteria that enact, drive and assess our responsible actions. Responsibility as such cannot provide us with the normative references according to which judgments and actions can be qualified as responsible. For I. Malsch, “responsibility is not a substantial ethical concept: it needs further concretizations that involve other ethical concepts that make clear in what sense someone is responsible. Determining what an actor is responsible for requires substantial ethical concepts such as the good of individual human beings, the environment, and society as a whole” [MAL 13, p. 2].

What are the parameters by which we can choose among different fields of application? Where, are in other words, can we find a meta-criterion that could guide our judgment? What is the normative criterion that can enact responsibility and drive it out from its conservative side?

It is true that every author we have analyzed presupposes a condition of freedom, so that we could detect a common grounding reference in this concept. But, it is also true that each of them understands a different dimension of it, not equipping us with criteria that are useful for the broad understanding of responsibility that we have proposed. I believe that we then need to answer these questions through an investigation on freedom that could help us in understanding why, if all the authors presuppose freedom, they have so many different perspectives on it. It is at the heart of the modern declinations of freedom that we need to flush out a conception of responsibility that has been developing following this Carsic flow: implicit and therefore not always clear, visible or transparent. We need to start making it explicit.