This is a preview of subscription content, log in via an institution to check access.
Notes
Antony Duff argues that moral responsibility is strict, so all that is required is causation, but the transition from moral responsibility (being called to answer for one’s act) to moral liability requires culpability. On the other hand, Duff argues that for the criminal law, criminal responsibility requires both causation and culpability (Duff 2007).
As Moore articulates the challenge:
This suggests something important about doing this kind of ethics, which is that one cannot do it without simultaneously doing the philosophy of mind, the philosophy of action and events, the metaphysics of causation, and the like. Such I have always thought in seeking to use metaphysics to moral advantage in my lifetime preoccupation with moral responsibility and blameworthiness. (42).
There is actually a fourth! scalarity that Moore endorses between causation and preventions. One example is his discussion of strangulation:
If I squeeze your neck blocking air from reaching your lungs, I have merely prevented air reaching your lungs. Yet what I had to cause to make the relevant counterfactual true is the state of closure of your wind pipe, a condition in which it is impossible for air to pass through. In such cases I cause a state of affairs to exist (wind pipe closure) that is very close to the type of state of affairs complained of, an absence of air passing to the lungs. Thus, I did not cause the absence; but what I did cause (to be a preventer of air) is so close to the absence of benefit that I may be as morally responsible as one who causes poised air to enter the lungs. (457).
For commentary on this scalarity question, see Rosen (forthcoming).
Alex Broadbent voices a similar worry about scalarity in his review of Moore’s book (Broadbent 2011).
See, e.g., 302 for reasons as causes.
Moore admits this in his forthcoming work: “The idea is admittedly underdeveloped in the book…” (Moore forthcoming).
Citing Moore p. 320.
Moore clearly has this goal: “The place to ask and answer these questions of fit is with respect to mental states, not causation. With respect to negligence, which is not a mental state, I shall urge … that we should not ask the fit question at all, anywhere.” (102 n. 69).
If D is the parent of the one worker in Trolley, then, like a stranger, he is permitted not to switch the Trolley from the five to the one. But like the stranger, he is also permitted to switch the Trolley, despite his obligation to his child. That obligation does not cancel out the balance of evils that favors switching from the five to the one any more than it permits D to switch the Trolley from the one—his child—to the five. Those five are, after all, the children of other parents. And if D does switch the trolley from the five to his child, the fact that it will save the five trapped workers is all the justification D requires. Even if D intends to use his child’s organs to save five additional people—that is, to use his child as a means—that does not de-justify his switching the Trolley; for the switching is already justified without the use of the child as a means.
Where D’s parental duties do come into play is in situations such as Trolley in which D can switch the trolley from the track leading to his child to one on which no one is trapped. In such situations, D is obligated to switch, whereas a stranger would be permitted but not obligated to switch. And if D does not switch to the vacant track because he wishes to harvest his child’s organs to save five strangers, his failure to switch is a wrongful using of his child as a means, whereas the stranger’s failure to switch for the same reason would not be a wrongful using.
References
Alexander, L. (forthcoming). Michael Moore and the Mysteries of causation in the Law. Rutgers Law Journal, 42.
Alexander, L., Ferzan, K. K., & Morse, S. J. (2009). Crime and culpability: A theory of criminal law. Cambridge, New York: Cambridge University Press.
Berry v. Borough of Sugar Notch, 43 A. 240 (Pa. 1899).
Broadbent, A. (2011). Book review. Ethics, 121, 669–674.
Duff, R. A. (2007). Answering for crime: Responsibility and liability in criminal law. Oxford and Portland, OR: Hart.
Hart, H. L. A., & Honore, T. (1985). Causation in the law (2nd ed.). Oxford: Oxford University Press.
Kessler, K. D. (1994). The role of luck in the criminal law. University of Pennsylvania Law Review, 142, 2183–2238.
Moore, M. S. (1993). Foreseeing harm opaquely. In J. Gardner, et al. (Eds.), Action and value in criminal law. Oxford: Oxford University Press.
Moore, M. S. (forthcoming). Causation revisited. Rutgers Law Journal, 42.
People v. Acosta, 284 Cal. Rptr. 117 (Cal. Ct. App. 1991).
Rosen, G. (forthcoming). Causation, counterfactual dependence and culpability: Moral philosophy in Michael Moore’s causation and responsibility. Rutgers Law Journal, 42.
Regina v. Dudley and Stephens, 14 Q.B.D. 273 (1884).
Author information
Authors and Affiliations
Corresponding author
Rights and permissions
About this article
Cite this article
Alexander, L., Ferzan, K.K. “Moore or Less” Causation and Responsibility. Criminal Law, Philosophy 6, 81–92 (2012). https://doi.org/10.1007/s11572-011-9127-8
Published:
Issue Date:
DOI: https://doi.org/10.1007/s11572-011-9127-8