Last Updated on March 23, 2024 by Ranking
Respondeat superior is a legal doctrine that transfers liability from one party to another because the latter remains in a certain relationship of authority over the former. Although originally a tort law doctrine, it has been used in criminal law over the last century, particularly to secure corporate criminal liability. Here I argue that, under at least one dominant conception of criminal liability, we have no basis for applying the doctrine in this way. Companies are not responsible for crimes committed by their employees because they cannot answer the question of why the crime was committed; they do not have the authority to provide the employee with reasons for action. Although this excludes the general principle of respondeat superior, I show the contexts in which vicarious liability is still appropriate in criminal law, and respond to a number of other concerns arising from this picture.
The most important information
- A superior responder is a legal doctrine that transfers responsibility from one party to another because the latter has some authority over the former.
- Many people opposed the use of Respondeat Superior in particular to secure corporate criminal liability, which was questioned from the beginning.
- Moral responsibility justifies holding someone criminally responsible only if the punishment is deserved because of the crime committed. This is already at odds with more instrumental concepts of criminal law, but it opens the way to recognizing the respondeat as a superior, because we can ask ourselves whether the master really deserves punishment for the offenses of his protégés.
- We should quickly point out two points that are valid even if I’m wrong: first, if nothing can be non-metaphorically attributed to the companies themselves, and they can’t really have reasons, the stronger the case is for saying that it is unreasonable to using respondeat Superior to end your criminal liability.
- I hope I have shown that respondeat Superior is an invalid doctrine; it cannot adequately be applied to secure the liability of one agent in authority over another agent for his misconduct.
- What is required for due diligence, and how is it impacted by changing technology?32 We may worry about the effectiveness of this type of approach – is it right to rely so heavily on compliance?33 There is a healthy tradition of scientists proving We hope that other ways of investigating corporate criminal liability will make readers more comfortable in recognizing that the parent answer is invalid and should be abandoned.
Respondeat superior (“please answer”) is a legal doctrine that transfers liability from one party to another because the latter remains in a certain relationship of authority over the former.
Claims for vicarious liability under a parent license, a form of strict liability where the agent is held liable for the actions of another person and without requiring proof of fault on the part of the principal.
This was a doctrine of tort law where it could be found in many contexts.
Prosecutors use Respondeat Superior to hold employers and companies criminally liable for what their employees do, what happens within the scope of their employment and with the intent to benefit the company.
This has become the dominant means of holding corporations criminally liable.
Many forms of criminal liability would require proof of mens rea in connection with the crime committed, and it is controversial how authors could prove a company’s mens rea or whether companies themselves are even capable of manifesting a culpable state of mind3.
This is a way to hold companies accountable without having to take anything for granted about their mentality.
Authors can immediately infer their guilt based on the employees’ demonstrable misconduct.
Despite this appeal, many people opposed the use of Respondeat Superior specifically to secure corporate criminal liability, which was questioned from the beginning.
Even apart from these challenges, authors may worry that it punishes too harshly (Weissmann 2007) or that it focuses on pursuing goals inappropriate for criminal law (Luskin 2020).
In addition to these concerns, the author would like to focus on whether it is really justified to refer to it as a doctrine of criminal law, and in particular to the image of criminal responsibility requiring desert.
In part (V), the author concludes by highlighting ideas on how best to hold companies criminally liable without appealing to the authorities.
Basics of criminal liability
The authors talk about responsibility in both the moral and legal spheres. One might therefore hope that there is a coherent notion of responsibility between them, or that the authors can understand the relationships between them or their differences in terms of the differences between these fields. At least there is a clear overlap here – authors are criminally responsible for many things for which authors consider themselves morally responsible, and authors may believe that there is a moral obligation (at least prima facie) to obey the law.
While it is appropriate to hold someone morally responsible only to the extent that the sanctions to which that person is exposed are deserved because of his wrongdoing, linking criminal responsibility with moral responsibility justifies holding someone criminally responsible only if the punishment is deserved due to the crime committed.
This is already in contradiction with more instrumental concepts of criminal law, but it opens the way to assessing the respondeat as superior, because the authors can ask themselves whether the master really deserves punishment for the offenses of his protégés.
Duff (2007, 2009, 2018, 2019) himself has in many places advocated understanding criminal responsibility in terms of what authors writing on moral responsibility refer to as responsibility.
The key to what responsibility means in the sense of responsibility is that it is appropriate to ask the person responsible for an act why it was committed.
The accused must answer for what happened, and in response he pleads guilty or provides sufficient explanations.
This illustrates how criminal law is primarily concerned with holding perpetrators accountable (Duff 2010).
Given that the authors linked criminal liability for certain conduct to the concept of liability as responsibility, whether respondeats are the more valid doctrine depends on whether employers are generally liable for what employees do.
This would allow them to infer corporate liability from employee liability.
The authors can assess the validity of the supervisor’s respondeat by assessing whether it is indeed true that employers are liable when employees are.
Is the higher answer justified?
For an overarching response to be a valid criminal law doctrine, it must be appropriate to attribute criminal liability to an authoritative party based on the criminal liability of the person(s) subject to its authority.
Assume that it is clear that the employee is himself responsible for his crime.
This is an action she took for various reasons and the authors can expect that she will be able to answer the question of why she decided to use blackmail instead of bidding honestly.
(Claiming that the action was necessary would constitute her response as potential justification). She presented herself as responsible for her behavior as an employee in general and is responsible for managing the company’s activities within the limits of the law.
In such a case, the respondeat’s superior would order the company to be held criminally liable.
Much work exists to meet this challenge (Silver 2022), and those who believe that companies are agents with distinct values can be assured that the reasons companies negotiate are different from the set of reasons that influence the behavior of individual employees.
By already arguing that the authors cannot properly question the company as to why it committed certain employee crimes, this suggests that the employee’s actions cannot, after all, be imputed to the company, even if its conduct can be.
This is probably the best way to deny companies’ criminal liability in such cases.
The authors do not have to decide whether the employee’s criminal act cannot be imputed to the company or whether it can, but the company is to be excluded for the reason that it is unable to answer for the crime.
Either way, this has the effect of allowing them to deny corporate criminal liability through a principal respondeat, although these would be cases in which the authors have adopted this doctrine for paradigmatic application.
Considering this to be obvious, the author wants to move on to consider the question of how the author justified the claim that those in authority are generally not responsible for the actions of those subordinated to them, while superiors are not responsible for the actions of their agents.
Answer to further doubts
The author suggests that respondeat superior is not a valid doctrine at all, as it cannot lead to the conclusion that the superior is responsible for the actions of his or her subordinates.
The author suggested that corporations as agents may be responsible – they have reasons to behave as they do and can respond to them – but are not responsible for the conduct of their employees.
Authors should quickly point out two points that hold true even when the author is wrong: first, if nothing can be non-metaphorically attributed to the companies themselves and they cannot actually have reasons, the stronger the case is for saying that the authors have no justification for using a superior’s response to establish their criminal liability.
In this case, no reasons are available because the company has unintentionally committed a crime, but the company would still be liable for the crime.
However, this will not save the superior, because the liability in this case will not be vicarious, even if it is severe.
When this happens – when one agent sufficiently controls another – it seems plausible to think of that agent as responsible for what he does.
Let us consider another setting of vicarious liability that seems more appropriate to the author: in the law of military conduct there is much talk of “command liability.”
When the authors think about how superiors can be guilty of criminal offenses because of the conduct of their subordinates, they may find that they are guilty in some stronger sense.
He may have expressly directed a subordinate to act illegally, which could constitute an involuntary offense such as solicitation, conspiracy or incitement.
Superiors are responsible – not in the sense that they can answer the question, but because they generally accept responsibility for the conduct of their subordinates.
If this kind of control is necessary for an agent to be truly responsible for the actions of someone acting under his authority, it is clear that merely having some kind of power over someone does not guarantee responsibility for his conduct.
Since liability for a person in authority cannot, in principle, be derived from the fact that a crime has been committed by a person under his authority, the defendant’s superior doctrine is invalid.
Going beyond higher answers
The author hopes to demonstrate that respondeat Superior is an invalid doctrine; it cannot be properly used to secure the liability of one agent in authority over another agent for his wrongful conduct.
It is clear that if any agent is vicariously liable for an employee’s conduct because he or she is responsible for that conduct, it is more likely to be the official and not the company itself.
When control is so tight, companies may be held responsible.
This provides some means of pursuing vicarious liability in a corporate context on a case-by-case basis, although it would certainly be better if companies did not dominate their workforce.
When thinking about significant entities such as companies, it is important to see that abandoning a supervisor does not have to lead to abandoning all avenues of blame when their employees behave inappropriately.
A focus on due diligence is not new (e.g., Fisse 1983; Busy 1991) and allows a company to be held liable for criminal negligence where it failed to exercise reasonable standards of due care to discourage illegal conduct.
This suggestion of appealing to negligence is already quite well established (Fisse and Braithwaite 1988: 486; Weissmann 2007; Weissmann and Newman 2007; Sheley 2019).
This suggestion of appealing to negligence is already quite well established (Fisse and Braithwaite 1988: 486; Weissmann 2007; Weissmann and Newman 2007; Sheley 2019).28,29
This claim of negligence differs significantly from a claim for vicarious liability in terms of who has the burden of showing a lack of reasonable care.
Arguments against invoking the negligence of corporate officials in this context can be found in Buell (2018)
This explains why the authors keep talking about criminal guilt.
This requires much deeper consideration of how to formulate and justify an obligation that the company is not fulfilling. What is required for due diligence, and how is it impacted by changing technology? Authors may worry about the effectiveness of this type of approach – is it right to rely so heavily on compliance? There is a healthy tradition of scientists proving We hope that other ways corporate criminal liability investigations will make readers more comfortable in recognizing that the parent answer is invalid and should be abandoned.
Confirmation of previous arrangements
But this is an assumption we must make if we are to say that corporations can actually deserve punishment and be clearly criminally liable. (If we deny that companies are separate entities acting from their own point of view and for their own reasons, they are unlikely to be among those deserving of punishment.) Given this, we can also acknowledge that companies will not only have their own reasons, but also particular ways of appealing to them. Pettit (2017) discusses how companies can and often do have spokespersons who present the company’s reasons for action.
Even if this fails, I think we can still stick to the oft-suggested idea that companies can be criminally liable if they fail to exercise their duty of care. A focus on due diligence is not new (e.g., Fisse 1983; Busy 1991) and allows a company to be held liable for criminal negligence where it failed to exercise reasonable standards of due care to discourage illegal behavior.
Counterpoint to previous claims
Duty holders can be held accountable for their behavior if they are expected to be able to explain why they did a particular action, given the reasons available to them. More specifically, we might think that a contrastive element is required, where agents can be expected to answer why a certain action was performed and not another, or why the agent acted according to some of his reasons and not others (Shoemaker 2015: ch. .2)
If the company is able to satisfy the actus reus and mens rea elements of the offense and therefore the offense is undoubtedly attributable to the company, we can still treat its inability to answer why the offense was committed as dismissal. Although motive may not be important to a man, some argue that motive is important in establishing a defense to a crime (e.g., Binder 2002)13.
Arguments against invoking the negligence of corporate officials in this context can be found in Buell (2018). I wonder whether we can understand a company to have acted negligently when employees act inappropriately, and whether, in this case, we can understand the company’s executives to have been negligent, is a separate question.
Source: Kenneth Silver
