David Bourget (Western Ontario)
David Chalmers (ANU, NYU)
Rafael De Clercq
Jack Alan Reynolds
Learn more about PhilPapers
Criminal Law and Philosophy 5 (2):97-114 (2011)
Doug Husak suggests that sometimes an actor should be deemed reckless, and not merely negligent, with respect to the risks that she knowingly created but has forgotten at the moment of action. The validity of this conclusion, he points out, depends crucially on what it means to be aware of a risk. Husak’s neutral prompt and counterfactual actual belief criteria are problematic, however. More persuasive is his suggestion that we understand belief, in this moral and criminal law context, as a concept whose meaning is determined by its function as a culpability standard. Husak concludes that inadvertent actors are often less culpable than knowing-but-later-forgetful actors; this is plausible, but there are also numerous counterexamples. Holly Smith focuses on negligence cases in which an agent’s failure to notice a risk stems, not from a prior culpable choice, but from an objectionable attitude or set of attitudes. She is right to emphasize that genuine moral culpability does not depend on conscious choice. However, Smith also asserts that decisions that flow from an actor’s objectionable attitudes are only rarely culpable, because they often do not arise from a reasonably full configuration of the actor’s motives. This last requirement is, I fear, an unrealistic and unnecessarily demanding criterion of culpability. Even when many of the actor’s evaluative attitudes are inactive in Smith’s sense, the actor might deserve blame for not bringing them to bear on his decision. Michael Moore and Heidi Hurd thoroughly explore, and find deficient, H.L.A. Hart’s unexercised capacity theory of negligence. They are correct that that theory requires a further judgment: an actor’s inadvertence is culpable only if he had the capacity to have adverted if X where X is the source of the actor’s moral desert. They overstate, however, in suggesting that the capacity issue falls out of the picture once we identify that underlying desert basis. The authors also worry that if desert is grounded on an underlying vice, we lack a reliable way of ranking the different vices that might explain the actor’s inadvertence; this is not a fatal objection, however, because negligence determinations are quite feasible even in the absence of clear rankings. Moore and Hurd conclude by identifying eight distinct categories in which criminal liability for negligence is justifiable. Negligence is indeed a surprisingly complex and pluralist concept. The three articles in this symposium brightly illuminate some of the most fundamental conceptual and normative issues in the debate over whether it is just to blame and punish the negligently inadvertent
|Keywords||Negligence Recklessness Culpability Advertence Inadvertence Character Capacity|
|Categories||categorize this paper)|
|Through your library||Configure|
Similar books and articles
Michael Moore & Heidi Hurd (2011). Punishing the Awkward, the Stupid, the Weak, and the Selfish: The Culpability of Negligence. [REVIEW] Criminal Law and Philosophy 5 (2):147-198.
Matt King (2009). The Problem with Negligence. Social Theory and Practice 35 (4):577-595.
David R. Mandel (2010). Predicting Blame Assignment in a Case of Negligent Harm. Mind and Society 9 (1):5-17.
Holly Smith (2011). Non-Tracing Cases of Culpable Ignorance. Criminal Law and Philosophy 5 (2):115-146.
Deborah Hellman (2009). Willfully Blind for Good Reason. Criminal Law and Philosophy 3 (3):301-316.
Larry Alexander (2013). Causing the Conditions of One's Defense: A Theoretical Non-Problem. [REVIEW] Criminal Law and Philosophy 7 (3):623-628.
Douglas Husak (2011). Negligence, Belief, Blame and Criminal Liability: The Special Case of Forgetting. [REVIEW] Criminal Law and Philosophy 5 (2):199-218.
Edward C. Lyons (2005). Balancing Acts: Intending Good and Foreseeing Harm -- The Principle of Double Effect in the Law of Negligence. Georgetown Journal of Law and Public Policy 3 (2):453-500.
Tamler Sommers (forthcoming). Partial Desert. In David Shoemaker (ed.), Oxford Studies in Agency and Responsibility. Oxford University Press.
Wayne Riggs (2012). Culpability for Epistemic Injustice: Deontic or Aretetic? Social Epistemology 26 (2):149-162.
Peter Westen (2008). Individualizing the Reasonable Person in Criminal Law. Criminal Law and Philosophy 2 (2):137-162.
Rik Peels (2011). Tracing Culpable Ignorance. Logos and Episteme 2 (4):575-582.
Ori J. Herstein (2010). Responsibility in Negligence: Why the Duty of Care is Not a Duty “To Try”. Canadian Journal of Law and Jurisprudence 23 (2):403-428.
Toby Handfield & Trevor Pisciotta (2005). Is the Risk–Liability Theory Compatible with Negligence Law? Legal Theory 11 (4):387-404.
Kenneth W. Simons (1999). Negligence. Social Philosophy and Policy 16 (02):52-.
Added to index2011-04-18
Total downloads19 ( #73,492 of 1,008,729 )
Recent downloads (6 months)1 ( #64,702 of 1,008,729 )
How can I increase my downloads?