Collective liability is the legal responsibility of a group for the actions of one or more of its members. In the case of families, one speaks of kin liability . It contradicts the enlightened basic attitude of European cultural tradition, according to which everyone bears an individual responsibility for their actions.
Cases of collective detention , which have been known since ancient times, have been taken hostage by people in high positions as bargaining chips to guarantee that treaties between peoples are observed.
The term “collective liability” does not play a significant role in jurisprudence and is of limited use because of its vagueness. In civil and criminal law, “collective liability” is not a common legal term. In no way can he give up the title for a legal basis for claims.
Mostly the term is used colloquially in the sense of an inadmissible punishment or disadvantage of a group of people due to generalizing blame ( collective guilt ) for the misconduct of individuals.
The term is also used in some areas of political discussion (sometimes polemically).
Collective liability from an ethical-philosophical point of view
The ethical question behind the collective responsibility is basically the whether any one person can take responsibility for the actions of another person, because such approach to the principle of self-responsibility all human activities and the ideas of free will comes into conflict. With the question of whether there is collective liability, a philosophical-ethical standard is applied to an object of law.
The starting point of the review is that a person as a human subject, through his willful action , sets a new causal chain in motion, for which he is directly responsible. A case of collective liability that can be ethically problematized always occurs when a person is supposed to be jointly liable for damage caused by another person's actions, whereby a collective liability is artificially created.
Collective liability from a legal point of view
Since collective liability results in the liability of a person - be it under civil law in the sense of an obligation to recourse , be it criminal law in the sense that the collective member is punished instead of the actual, possibly escaped perpetrator - for third-party guilt and without own responsibility, it is not compatible with the rule of law .
It follows from the rule of law violation of collective liability that there is no legal definition of collective liability, rather that it is not standardized at all by law . The term collective liability is therefore mostly used in the legal context as an accusation that a certain legal regulation is ultimately presented as inadmissible collective liability.
The inadmissibility of collective liability, however, only describes the incompatibility of a corresponding liability norm with the rule of law if the person concerned is actually not responsible for the liability. Responsibility means a legal possibility of attributing the success to the responsible subject.
Conceptually, the problem of collective liability does not cover such cases in which groups of persons are themselves legal subjects .
A liability obligation of a legal person , for example a registered association or a stock corporation , does not present itself as a problem of collective liability as long as the legal person is liable with their (company) assets , because this is about the individual liability of the legal person. The question of whether there is collective liability could be discussed at the earliest if the creditors should be able to access the private assets of the members of the legal person, which is precisely why this is usually not the case.
In criminal law , on the other hand, the association penalty is a bigger problem, since the penalty , at least according to the traditional view, is particularly related to the subjective guilt of the “perpetrator”. However, a stock corporation cannot act with intent, nor is it “guilty” in the sense that it could be accused of not having acted in accordance with the law. Nevertheless, the criminal liability of legal persons is not only widespread in the Anglo-American area, but also e.g. B. was also recently introduced in Switzerland.
The fact that the assessment of the question of whether there is inadmissible collective liability ultimately depends on whether liability is attributed to a person who is not responsible, also makes it clear that not every obligation to take responsibility for third-party actions is a case of Collective liability established. This can be demonstrated using the following examples:
- Liability for third-party debt has nothing to do with collective liability if such liability is established by the debtor as a result of his own declaration of intent , such as a guarantee . Theoretically, one could speak of a liability collective consisting of the surety and the debtor , but such a term would not gain knowledge and is not used in practice. The attribution connection between the guilt and the surety results here easily from the own assumption of liability. Claims against the surety are therefore at their own responsibility.
- Likewise, most cases of strict liability recognized by the legal system cannot be understood as collective liability . The owner of a motor vehicle may also be liable to a third party who has committed a criminal offense due to his position as a keeper , but here, too, he is called upon out of his own responsibility, which consists in the danger of keeping a motor vehicle in front of him. However, he is equally liable for incorrect parking by another driver, which simply has nothing to do with the particularly dangerous nature of the vehicle.
- The fact that in criminal law the individual accomplices of an act must mutually account for their actions is not a case of collective liability, because in addition to this allocation rule it is expressly stated that each participant is only punished according to his (individual) guilt (Section 29 (1) StGB .)
- “Participation in a brawl” (Section 231 of the Criminal Code) is most likely to be assigned to the area of collective liability. According to the government draft (p. 35) for the 6th Criminal Law Reform Act of 1998, the provision should u. a. because of constitutional and criminal law objections of the legal literature are deleted without replacement. On the recommendation of the Federal Council, however, it was retained as a catch-all offense that cannot be replaced by other provisions.
In international law , the term is related to a state liability for damage caused by actions contrary to international law, in particular for acts of war that may result in reparations . This example is also controversial. Even here the term seems to be wrong, because initially an individual subject of international law, the state concerned, is liable for behavior that can also be individually attributed to it according to international law rules.
A collective allocation of obligations to pay damages against states is considered problematic, because they ultimately harm natural persons economically who could not choose their affiliation to a state or a people, but to whom it was attributed by origin and birth. Only liability based on voluntary participation in a community of responsibility can be legitimized.
The access of foreign powers, disguised as a liability for damages, to added value, which did not even exist at the time of the misconduct giving rise to the claim, but which must first be worked out by uninvolved subsequent generations, cannot hope for approval.
The Israeli NGO HaMoked criticized the resumption of the practice of destroying bombers' houses as a collective punishment , which was resumed in 2014 on the occasion of the murder of three schoolchildren .
- School law: regulatory measures and educational means - collective punishments against students are not permitted. Retrieved on November 9, 2019 (German).
- After the murder of students: Israel destroys the houses of the suspects , Tages-Anzeiger of August 18, 2014