The conception of legal responsibility in the opus of Hans Kelsen and Toma Živanović

Abstract

The concept of legal responsibility (liability) implies a violation of the dispositive norm and subjecting the offender to envisaged sanctions. Legal responsibility is based on three key elements: the subject, the object, and the legal grounds of responsibility. The legal state (Rechtsstaat) is inconceivable without responsibility, which is present in all areas of law. In constitutional law, it is reflected in the legal and political responsibility of the state authorities. Civil and criminal liability differ in terms of sanctions. In civil law, there is subjective liability based on culpability and objective (strict) liability. As a consequence of committing a crime, criminal liability includes two elements: sanity and guilt. While guilt is a subjective element of a crime which cannot be avoided, criminal liability can be avoided. According to Kelsen, the subject of legal responsibility and the legal obligation are equivalent. He distinguishes between subjective liability based on culpability and absolute (objective) liability. This distinction rests on the individualistic ideal of justice. Logically, the sanctions also differ in these two cases. Kelsen also recognizes collective responsibility (especially of legal entities), which is always absolute. In civil law, the subject of obligation and the subject of liability correspond. Živanović provides detailed accounts on the concepts of delict, delinquent, and sanction. According to Živanović, a delict (in all branches of law) is a violation or endangerment of a subjective right. A delinquent, i.e. the infringer of legal norms, is the object of sanction. In analyzing the concept of sanction, he identifies seven distinctive elements of a sanction. The comparison of Kelsen and Živanovic's conceptions of legal responsibility yields notable results. Both authors were aware of many aspects of legal responsibility. In spite of the obvious terminological differences, they essentially discuss the same legal issues. When observed jointly, these two authors provide a wide-branching "scheme" of both legal responsibility in general and area-specific liability in particular.

Keywords

• legal responsibility
• natural law
• positive law
• delict
• delinquent
• sanction