Abstract
Commentators seemingly agree about what negligence is—and how it is contrasted from recklessness. They also appear to concur about whether particular examples (both real and hypothetical) portray negligence. I am less confident about each of these matters. I explore the distinction between recklessness and negligence by examining a type of case that has generated a good deal of critical discussion: those in which a defendant forgets that he has created a substantial and unjustifiable risk of harm. Even in this limited kind of example, no single perspective on blame and liability proves to be defensible. Nonetheless, a discussion of this type of case is helpful because it enables us to appreciate the difficulties in understanding the nature of negligence and the ensuing uncertainty about whether penal liability for negligence is ever warranted.
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Notes
See Model Penal Code, Sections 2.02(2)(c) and 2.02 (2)(d).
Raz remarks, however, that “vindication of responsibility for negligence is far removed from vindication of the law of negligence as we, or some other countries, have it.” Op.Cit. Note 1, p. 7.
For a similar point in the context of debates about the exculpatory significance of ignorance of law, see Husak (1994).
See Robinson (1999, pp. 132–142).
Alexander et al. (2009, p. 77).
Admittedly, any example—including my own example of Joe—may be under-described. It is always proper to demand more detail about a case from which moral philosophers purport to generalize. Some matters that might make a difference to intuitive judgments about this example are not specified. For example, has Joe committed similar negligent acts in the past? We expect persons to learn from their mistakes and are less sympathetic to those who repeat them.
Juries may not be adept at distinguishing persons who forget from those who remember a material fact. See Kassim et al. (2009).
Model Penal Code, Section 202(2) (d).
See Horder (1993). One of Horder’s central complaints about given general theories of culpability is that they “marginalise” liability for negligence. Id., p. 196.
See Sher: Op.Cit. Note 1, especially Chapter Two.
Michael Moore is perhaps the most prominent choice theorist. He claims that choice theorists should resist liability for negligence since the negligent actor “does not choose to do the kind of complex action forbidden by morality and law because his mind was not adverting to that aspect of his action.” Moore (1997). Significantly, however, Moore proceeds to allow for negligence liability by recognizing a distinct mode of culpability that consists in inadvertent risk-creation. Id., p. 592. For more recent thoughts, see Hurd and Moore (2011).
See, for example, Tadros (2005).
As Simester expresses the point, “the fact that an action is harmful or to be avoided generates two types of moral reason: a reason not to do that action, and a reason to take care lest that action be done.” Simester (2000, p. 89).
Duff (1990, p. 163).
Alexander and Ferzan (2010).
See Valdman (2010).
See Husak (1996).
Op.Cit. Note 7, p. 79.
For a discussion of whether beliefs are under our control, see Vitz (www.iep.utm.edu/doxa-vol).
See Hart (1968).
For an account of indirect control and a sustained critique of liability for true negligence, see Zimmerman (2008).
Cases in which culpability for negligence can be derived from culpability for a prior act or omission might be deemed tracing cases. For a nice discussion, see King (2009).
Hence these rules are called adjudication rules rather than decision rules in a useful piece by Dan-Cohen (1984). Dan-Cohen does not deny that adjudication rules can guide conduct. He only asserts that they are not addressed to defendants.
Sher: Op.Cit. Note 1.
See People v. Goetz, 497 N.E.2d 41 (1986).
See Westen (2008).
Op.Cit. Note 7, p. 85.
Alexander and Ferzan (2009).
I owe this point to Mary Salvaggio.
For an exception, see the discussion of “latent” knowledge in Horder (1997).
For a nice discussion, see Simons (2003).
Model Penal Code, Section 2.02(2)(b)(i).
I oversimplify in respects I hope to be irrelevant for my purposes. I omit a discussion of deviant causal chains and of Gettier-type counterexamples to justified true belief analyses of knowledge.
Reckless endangerment is an exception. See Model Penal Code, Section 211.2.
I put aside those cases in which the defendant possesses special expertise and has a basis to know more than what reasonable persons in his situation would know.
See Simons (2009, p. 290).
Some philosophers (who are not hard determinists) hold that persons rarely believe the propositions that would make them blameworthy for their acts. For a defense of this position, see Rosen (2004).
In contending that cases of forgetting involve negligence, Sher remarks that “we all know what it is to be assaulted by an urgent problem that drives all other thoughts from our minds.” Op.Cit. Note 1, p. 25. Sometimes it is our very awareness of the risk that drives the occurrent thought from our minds.
See, for example, Schwitzgebel (2001).
See Lycan (1986).
Dispositional analyses need not be ontological theses about what beliefs are, but rather epistemological accounts of why belief ascriptions are warranted.
Some of the difficulties in inferring the existence of beliefs from behavior are described by Gendler (2008).
See Uhlmann et al. (2008).
Or so I stipulate, since it may not even be clear that given examples involve forgetting. In presenting a hypothetical similar to my example of Joe, Alexander and Ferzan write that the parents “forget about the child, with tragic consequences.” Op.Cit. Note 7, p. 77. But they also say that the parents “both go downstairs to greet the guests, both realizing that the child would be in grave danger if they failed to return and turn of [sic] the water, but both correctly believing that at the rate the tub is filling, they will have plenty of time to return to the child after they have welcomed the guests.” Id., p. 77. This latter description need not involve forgetting at all. A mistaken estimate of the amount of time that has elapsed is not a case of forgetting.
Hall (1947, p. 116).
Psychologists have long debated the cause of our deterioration in memory when we become distracted or our attention is diverted. See Unsworth et al. (2010).
See Kelman (1981).
Perhaps third options are available. The epistemology of remembering is explored by Senor. I invite penal theorists to describe and defend such alternatives.
Again, this contrast is not easily drawn. Trial judges, however, have lots of experience deciding whether given questions should not be allowed because they improperly lead witnesses.
Sher proposes a similar test but expresses no reservations about unduly influencing the person whose belief is solicited. See Op.Cit. Note 1, p. 91.
Of course, in many circumstances even this supposedly neutral question may give Joe grounds for suspicion that something is amiss—a complication not replicated in my example of the singer. In some situations, a purely neutral question may be impossible to formulate.
Joe might believe the relevant proposition even though the question leads him to the answer. Sometimes we are unable to recall the name of a singer without assistance but are immediately able to appreciate that someone is correct when he identifies the artist.
See Schwitzgebel: Op.Cit. Note 40.
Op.Cit. Note 7, footnote 25.
And why must the defendant advert to the risk that he would forget about his child? Unless the defendant fails to make the relevant inference, the only propositions Joe must believe are that babies left alone in tubs are at risk and that his child has been left alone.
Some of this ambivalence may be explained by the fact that loving parents have already suffered a horrible tragedy. For a discussion, see Husak (2010, p. 433).
See Simons (1992), especially pp. 497–498.
This admission does not show that Joe and Jill must be guilty of different grades of homicide (or that Joe should escape liability altogether). Instead, it might simply reveal that the single offense of manslaughter encompasses offenders with different degrees of culpability. But we knew that already. See, for example, the several essays in Horder (2007).
This hypothesis assumes that beliefs are distant from actual consciousness along a single dimension. The hypothesis becomes much more complex if this assumption cannot be supported.
Arguably, Charlie is an even worse parent than Blair. But his defect may be more stupidity, not greater moral culpability. Admittedly, this intuition is not universally shared.
I withhold judgment on a category of cases that have attracted considerable publicity recently—those in which a parent deviates from his routine and forgets his baby has been left in the car. If asked “Where is your baby?” many such parents have answered: “At the day-care center.” For a balanced treatment, see Weingarten (2009).
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Acknowledgments
Thanks to Holly Smith, Ken Simons, Alex Guerrero, Ken Levy, Fellows of the Straus Institute for the Advanced Study of Law and Justice at N.Y.U., members of the Philosophy Department at Davidson College, and philosophy graduate students (especially Preston Greene) at Rutgers University for very useful comments on earlier drafts.
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Husak, D. Negligence, Belief, Blame and Criminal Liability: The Special Case of Forgetting. Criminal Law, Philosophy 5, 199–218 (2011). https://doi.org/10.1007/s11572-011-9115-z
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DOI: https://doi.org/10.1007/s11572-011-9115-z