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Punishing the Awkward, the Stupid, the Weak, and the Selfish: The Culpability of Negligence

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Abstract

Negligence is a problematic basis for being morally blamed and punished for having caused some harm, because in such cases there is no choice to cause or allow—or risk causing or allowing—such harm to occur. The standard theories as to why inadvertent risk creation can be blameworthy despite the lack of culpable choice are that in such cases there is blame for: (1) an unexercised capacity to have adverted to the risk; (2) a defect in character explaining why one did not advert to the risk; (3) culpably acquiring or failing to rid oneself of these defects of character at some earlier time; (4) flawed use of those practical reasoning capacities that make one the person one is; or (5) chosen violation of per se rules about known precautions. Although each of these five theories can justify blame in some cases of negligence, none can justify blame in all cases intuitively thought to be cases of negligence, nor can any of these five theories show why inadvertent creation of an unreasonable risk, pure and simple, can be blameworthy.

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Notes

  1. This is a long-running debate. For early antecedents, see Hall (1963), Williams (1961, pp. 122–123).

  2. See e.g., Wright (2002a, b, 2003), Zipursky (2007), Simons (2008).

  3. This is a version of the view that whatever was actual must have been possible. It probably supposes some objective notion of probability and risk. For an introduction to objective versions of the semantics of the probability calculus, see Gilles (2000).

  4. Model Penal Code '2.02(2)(d).

  5. A much quoted saying from the late Judge Calvert Magruder’s Torts class at the Harvard Law School, reported in his retirement farewell, Magruder (1959, p. 7).

  6. Alexander and Ferzan (2009a, p. 69).

  7. Magruder (1959, p. 7).

  8. Model Penal Code '2.02(2)(c). The language quoted in the text was thought to be an alternative way of wording the requirement of Tentative Draft No. 4 of section 2.02 (2) (c), which required for recklessness a disregard of the risk that ‘involved culpability to a high degree.’ Model Penal Code and Commentaries, p. 237 n. 15. By contrast, the culpability judgment needed for negligence is only whether the failure of a defendant to perceive the risk ‘was serious enough to be condemned,’ revealed ‘fault,’ or ‘justifies condemnation.’ Id., p. 241.

  9. Alexander and Ferzan (2009a, pp. 69, 78 n. 25).

  10. Ferzan (2001).

  11. See, e.g., Hall (1963); Williams (1961, pp. 122–123).

  12. Moore (1997, pp. 548–592).

  13. Id, at pp. 404–411.

  14. Hart (1968). Many others have adopted Hart’s view that there is a culpability of unexercised capacity in negligence. See e.g., Horder (1993), Moore (1997, pp. 411–414, 588–592).

  15. Hart (1968, pp. 150–153), Horder (1993).

  16. Hart (1968, pp. 156–157).

  17. Id., pp. 154–156. Individualizing capacity judgments is discussed in Westen (2008).

  18. Duff (2009, pp. 70–72). One interpretation of Joseph Raz’s recently published account of the culpability of negligence is that it is a version of Hart’s unexercised capacity view, although Raz substitutes his own vocabulary by speaking of negligence as a ‘malfunctioning competence.’ Raz (2010). If Raz’s view is not just that of Hart’s, then it is a version of the account provided by George Sher (2009), which we discuss in section “Negligence Culpability for Uncharacteristic Failures in Practical Reasoning Capacities”.

  19. Id., p. 71 n. 41, citing Moore (1997, pp. 411–419, 588–592). Duff accurately notes that Moore has changed his mind on this from his position in Moore (1990, pp. 56–58).

  20. Duff (2009, p. 71).

  21. Id., p. 72.

  22. Model Penal Code '2.02(2).

  23. Doug Husak finds this to be a ‘pivotal topic’ that is ‘radically undertheorized’ by those engaged in the debate about the punishability of negligence, a situation he deplores as ‘scandalous.’ Husak (2011). Although we would be happy to pretend that our examination of this question in this section is all new, in fact what follows is a summary of our own and others’ prior published work on just what ‘awareness’ does mean.

  24. Model Penal Code '2.02(7). George Fletcher points out that this builds some inadvertence into intentional wrongdoing, viz, that the actor need not advert to the wrongness of what he does but only to the factual nature of what he does. Fletcher (1971, pp. 420–423).

  25. Model Penal Code '2.02(2)(c). Ken Simons points out that resolving this ambiguity the way we do—which is to require awareness only of the type of risk but not of its magnitude or lack of justification for running it—results in there being some inadvertence being built into recklessness. Simons (2009, pp. 290–291).

  26. Stephen Garvey thinks of these as negligence cases (so long as the belief is the product of a desire over which the actor has doxastic self-control). See Garvey (2006, pp. 337–338), Garvey (2009, pp. 286–288). Alexander and Ferzan seemingly would class them as reckless. Alexander and Ferzan (2009b, pp. 292–293). We think there is a threshold of vividity that divides recklessness from negligence, although it is a sliding scale threshold, varying with the degrees of imbalance between risk and the reason for running of the risk.

  27. E.g., Dennett (1978). See also Husak (2011). As Sher writes, even if the contents of an agent’s consciousness include “both what an agent is focusing on and what he is passively aware of . . . these items still represent only the tiniest fraction of the information to which he must take himself to have access in order to carry out his task.” Sher (2009, p. 127).

  28. For an argument that these beliefs are also the product of active construction, see Pillsbury (1996, pp. 141–150).

  29. For an extended discussion of the Freudian topographical metapsychology in terms of ‘conscious,’ ‘preconscious,’ and ‘unconscious,’ see Moore (1983), revised and reprinted in Moore (1984, pp. 126–137, 1988), reprinted in Moore (1997, chapter 10).

  30. Dennett (1969, pp. 114–131). Dennett calls the phenomenological and the dispositional senses of ‘awareness,’ ‘awareness1’ and ‘awareness2’.

  31. An old and well-known observation of William James: ‘It is a general principle in psychology that consciousness deserts all processes where it can no longer be of use….We grow unconscious of every feeling which is useless as a sign to lead us to our ends, and where one sign will suffice others drop out, and that one remains to work alone.’ James (1890, Vol. 2, p. 496).

  32. A conclusion Doug Husak also reaches about such cases. See Husak (2011).

  33. As with the threshold of vividity for phenomenological awareness, here too we would think a sliding scale would be appropriate, the scale trading off between the kind of awareness the actor has of the risk, and the degree of imbalance there is between risk/reason for running the risk.

  34. Admittedly the criminal law doctrines about willful blindness are focused on when we should classify such phenomenon as knowing (rather than reckless) wrongdoing. Yet the criminal law distinguishes result elements from circumstance elements of the actus reus for purpose of applying its willful blindness doctrines. Model Penal Code '2.02(7) regards willful blindness with respect to results as recklessness, not knowledge, which is why we find the criminal law to be in accord with our views here. See Model Penal Code and Commentaries, p. 248.

  35. ‘A court can properly find willful blindness only where it can almost be said that the defendant actually knew.’ United States v. Jewell, 532 F.2d 679 (9th Cir. 1976).

  36. A version of the facts in Jewell. See generally Johnson (2006) for a discussion of situations where an actor both believes and disbelieves some proposition.

  37. The locus classicus of self-deception remains Herbert Fingarette (1969).

  38. As another commentator has concluded, in this context, ‘self deception [consists of] the neat but real mental trick of being aware and not being aware of something at the same time.’ Tasiltz (2009, p. 289).

  39. Stephen Garvey too classifies such cases as negligence and not as recklessness. Garvey (2006, 2009).

  40. On the idea of unconscious mental states generally, see Moore (1984, pp. 126–142, 249–280); on the idea of unconscious beliefs specifically, see id., pp. 295–298, 325–331. The idea of unconscious belief that Moore defends is one whereby a mental state: (1) is a mental state of a person because of its (in principle) recapturability in conscious experience; and (2) is a belief state because it both plays the functional role of beliefs in the explanation of behavior, and shares the physical structure(s) of such functionally specified states. Jerome Hall explores briefly whether unconscious beliefs should make us consider the negligent actor as having (in some sense) adverted to the risk, concluding (as do we) in the negative. Hall (1963).

  41. Peter van Inwagen finds the question of ‘how “can” (in the relevant sense) should be analyzed’ to be ‘one of the most difficult questions in philosophy.’ Van Inwagen (1975, p. 185). Van Inwagen’s stab at a general, conceptual answer may be found in Van Inwagen (1983, pp. 8–13).

  42. Gary Watson too finds that ‘the idea of an unexercised capacity is much more difficult to make sense of than it initially appears.’ Watson (1977, p. 317).

  43. Or not so subtle differences. J.L. Austin, for example, purported to discover an ability sense of ‘could,’ an opportunity sense of ‘could,’ and an all-out sense of ‘could.’ Austin (1961, p. 129).‘Could’ in the last two senses would not of course by synonymous with ‘ability.’ John Maier (2010) explores some differences between powers and abilities. See also Van Inwagen (1983, pp. 8–13), for further distinctions.

  44. For one side of this debate, see Molnar (2003); for a mixture of views, see Marmodoro (2010).

  45. See, e.g., Mele (2003).

  46. Keith Lehrer’s classic article, Lehrer (1976), is very good in its exploration of this.

  47. The name is close to ‘the causal theory of excuse,’ discussed in Moore (1985), reprinted as chapter 12 of Moore (1997).

  48. See id.

  49. Austin (1961, p. 109). Austin’s answer was that cans are not implicitly conditional, but the matter has been hotly debated. Compare Austin (1961), Pears (1972), Lehrer (1976), with Nowell-Smith (1960), Moore (1912, Chapter VI), Aune (1967), Kratzer (1977).

  50. This, on the plausible supposition that to have an ability to A requires that one would succeed in A-ing under some conditions. Contrary to Austin (1961), such success-conditions need not guarantee success in all cases, because the list of such conditions will always be incomplete vis-à-vis ruling out possible preventers of success. ‘Sufficient’ in ordinary English is always incomplete in just this way too.

  51. A feature noted early on by Richard Taylor (1960).

  52. See e.g., Fischer (2006), Nelkin (2010).

  53. We in fact have our doubts, for there seem to be too wide a class of excuses (like ignorance, mistake, insanity, diminished capacity, intoxication, infancy) to be accounted for by the ‘if he had chosen otherwise’ condition. The constraint excuses have long been the favorite of followers of Hume on this conditional (e.g., Schlick 1962). Yet even for duress and natural necessity, there are lack of opportunity versions of these defenses that do not easily get separated out by the choice condition. Someone who is not at all ‘unhinged’ by the fear a threat arouses (but who nonetheless does have very high opportunity costs attached to not doing what the threatener wants) can make causally effacious choices; what he lacks is the ability to make the choice that he wants. This suggests that an additional principle, ‘could have done (or chosen) otherwise if he had wanted to do (or choose) otherwise,’ is required. See Kane (1998, pp. 53–54, 56–58).

  54. See the discussion and citations in Moore (2009, chapter 16).

  55. Smith, M. (2004).

  56. This perhaps plays on the general capacity the actor has.

  57. See Moore (1997, Chapters 12 and 13).

  58. See generally Winters (1978, 1979).

  59. Joseph Raz so argues on behalf of Kant’s ‘right reason’ culpability criterion, specifically against the objection (raised by Moore) that no one can choose the reasons that motivate his choices. Compare Raz (1989, pp. 1174–1178), with Moore (1989, pp. 878–883), reprinted in Moore (2000, chapter 5).

  60. This is assumed by Smith in his ‘Rational Capacities’ article (Smith, M. 2004). If an actor has an adequate information base, Smith thinks, he could have adverted to a thought that he in fact did not advert to. For Smith, recall, this is even true of the actor who ‘blanks’ on the thought when asked a question where the thought would have been an appropriate answer.

  61. Even if one is not a conditionalist about capacity judgments, we think analogous context-sensitivities and possible worlds-induced vagueness will infect these (supposedly unconditional) capacity judgments. Thus, Keith Lehrer argued against conditions being implicit in ‘can’ and ‘could,’ yet ended up having to find ‘restrictions’ on possibilities, and ‘accessibility’ of possible worlds, to make plausible his account of capacities in terms of possibilities. Lehrer (1976). See Fischer (1979).

  62. Hart (1968); see also Horder (1993).

  63. The neuroscience of voluntary motor movement is summarized in Moore (2011a).

  64. 132 Eng. Rep. 490 (C.P. 1837).

  65. For an interesting debate about the relevance of akrasia to responsibility, see Garvey (2008), Bergelson (2009). See also Simester (2000, p. 98).

  66. For extended discussions of the general difference between deontic morality and aretaic morality and the autonomy of the separate categories of permitted, obligatory, supererogatory, and suberogatory acts, see Hurd (1998, 2002, 2005), Moore (1998).

  67. Holly Smith examines the conditions under which we are justified in making such negative moral evaluations, Smith (2011).

  68. Duff (1993, 2009).

  69. See e.g., Pillsbury (1996, p. 150) (“We judge persons according to their choices, on the assumption that they are responsible for the motivations which drive those choices. If we were not responsible for our motivations, individual responsibility would be impossible.”) See also Fletcher (1971, p. 417), for the claim that retributivism requires the law to “fathom the kind of a man” someone is in order to assess his just deserts. See also Holly Smith (2011).

  70. See e.g., Simons (2002, p. 273). Compare Simons (1994).

  71. Model Penal Code Section 2.02.

  72. See Murphy (1992, pp. 22–23).

  73. Alon Harel and Gideon Parchomovsky have made such an argument with regard to the impossibility of rank-ordering motivations. See Harel and Parchomovsky (1999, p. 513).

  74. See Balt. & Ohio R.R. Co. v. Goodman, 275 U.S. 66, 70 (1927).

  75. For John Rawls’ updated defense of this version of contemporary liberalism, see Rawls (1993). For a critique of this political vision, see Hurd (1995).

  76. See Simons (2002, p. 259), for a similar rejection of the notion that a “free-floating incapacity or incompetence” is ever “relevant to criminal liability.”

  77. Duff (1993, p. 364).

  78. Moore (1997, pp. 563–564).

  79. American Law Institute, Model Penal Code Official Draft 1962. Section 2.08 (2). In our view this is the only place where the Code gets into this forfeiture-of-defense mode of reasoning. For self-defense (section 3.04) and for balance of evils (section 3.02), the apparent forfeiture provisions are better seen as applications of the principle that earlier culpable acts causing some prohibited harm are crimes in their own right, done at an earlier time when there was no need for a defense of oneself or the prevention of a greater evil. See generally, Robinson (1985). The sort of theory involved in these latter cases is discussed in the next section.

  80. Indeed, notice that the Model Penal Code goes further. Its threshold for the application of its ‘forfeiture doctrine’ in this section is remarkably low, for it allows negligence with regard to self-intoxication to be substituted for recklessness with regard to another’s harm!

    (5) Definitions.

    . . .

    (b) ‘self-induced intoxication’ means intoxication caused by substances which the actor knowingly introduces into his body, the tendency of which to cause intoxication he knows or ought to know, unless he introduces them pursuant to medical advice or under such circumstances as would afford a defense to a charge of crime[.]

    Thus, one who is unaware that what he is ingesting is intoxicating—but who should be aware, given the evidence available—will be held to be reckless in causing a subsequent harm to another, even if, at the time he ingested the substance, he had did not intend, did not know, did not believe that there was a risk, and had no reasonable basis for believing that there was a risk that he would find himself in a situation in which intoxication on his part would have harmful effects on another.

  81. Model Penal Code ' 3.04 (2)(b)(i).

  82. People v. Decina, 138 N.E.2d 799 (N.Y. 1956). The classic Decina move is discussed in Moore (1993, pp. 35–37).

  83. Id. at 803-04.

  84. This follows from our previously-published lengthy defense of the thesis that negligence can properly be “transferred”—or put differently, that to be negligent with regard to one type of harm is to be negligent with regard to all unjustified harms that proximately follow from that action. See Hurd and Moore (2002).

  85. For an account that considers inadvertently-caused injuries to be blameworthy only when actors have this kind of antecedent awareness of the possibility of their later inadvertence—what he titles ‘advertence-cum-inadvertence’—see Zimmerman (1986). Andy Simester also relies on this version of the tracing strategy in part. Simester (2000, pp. 97, 99).

  86. “It is rarely appreciated how well many handicaps can be compensated for.” Katz (1987, p. 192).

  87. Moore (2009, ch. 18); see also Moore (2011b).

  88. Sher (2009). As we mentioned in footnote 18, if Joseph Raz’s recently published account of negligence (Raz 2010) is not a reincarnation of Hart’s unexercised capacity view, then it can only be thought to be a less-developed version of Sher’s theory of negligence. Inasmuch as Sher’s book-length version of the account came first and is far more exhaustively articulated, we shall confine ourselves here to an exploration of his proposal.

  89. Sher (2009, p. 88).

  90. Id., p. 118.

  91. Id., p. 121.

  92. Id.

  93. Id.

  94. Id., p. 123.

  95. Sher attributes this theory to Scanlon (1998), Smith, M. (2004, 2005, 2008) and Smith, A. (2004).

  96. Sher (2009, p. 130).

  97. Id., p. 131.

  98. Alexander and Ferzan (2009a, pp. 77–78).

  99. To be clear, however, we do not intend here to be saying anything that contradicts our long-standing antipathy to construing rules of this sort as anything more than epistemic constructs. As we shall argue below, the most that well-known mini-maxims can be are particularly helpful sources of theoretical authority. For extended discussions of the authority that rules can possesses, see Hurd (1991, 1999). For lengthy defenses of the thesis that negligence cannot be translated into deontological “mini-maxims,” see Hurd (1994, pp. 196–98, 1996, pp. 266–268).

  100. Commonwealth v. Welansky, 316 Mass. 383, 55 N.E.2d 902 (1944).

  101. 275 U.S. 66 (1927).

  102. There are a number of caveats to this generalization, framed in terms of thresholds, scope limitations, and agent-relative (or strong) permissions. See generally Moore (2009, pp. 40–41, 42–76, 38), Alexander and Moore (2007). Each of these is distinct from the ordinary consequentialist justifications involved in the examples used in the text.

  103. Pokora v. Wabash Ry., 292 U.S. 98, 104 (1934).

  104. Regina v. Cunningham, [1957-2] Q.B. 396.

  105. Both points are argued in Moore (2009, chapter 18).

  106. This is a plausible construal of the facts in the well-known case of State v. Williams, 484 P.2d 1167 (Wash.Ct.App. 1971). Such is the construal also given of the facts by Husak (2011, p. 3).

  107. Freud (1923, p. 18).

  108. Hassin et al. (2005).

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Acknowledgments

This paper was written during our tenure as Fellows at the Fleming Centre for Advancement of Legal Research at the Australian National University College of Law, Canberra, Australia. Our sincere thanks to the Centre and the ANU College of Law, together with their Director and Dean, Peter Cane and Michael Cooper, respectively, for providing us with such a congenial location in which to do this work. Our thanks also go to Larry Alexander, Peter Cane, Kim Ferzan, Doug Husak, Jonathan Schaffer, Ken Simons, and Holly Smith, for providing us with helpful comments on earlier drafts of the present article. Thanks also go to the participants at the University of Chicago Law School Faculty Workshop, October, 2010, for their helpful comments. In addition to those thanked above, we would also like to thank our expert Faculty Librarian Liason, Stephanie Davidson, and our energetic research assistant, Emily Norris (J.D. 2011), for their conscientious accumulation of relevant literature and thoughtful ideas on the topic. We are grateful, as well, to the University of Illinois and to those who endowed our faculty positions for supporting our research. Thanks also go to the participants of the University of Illinois Philosophy Department Faculty Colloquium, February, 2011, for their helpful comments. We owe a special thanks, finally, to our son, Aidan Moore, both for providing us with extensive field-experience on the topic of negligence and for regaling us over recent months with countless Darwin Award stories that have repeatedly refueled our discussions of this topic.

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  1. Charles R. Walgreen Jr., University Chair, Professor of Law, Professor of Philosophy, Professor in the Center for Advanced Study, University of Illinois, Urbana, IL, USA

    Michael S. Moore

  2. David C. Baum Professor of Law and Professor of Philosophy, University of Illinois, Urbana, IL, USA

    Heidi M. Hurd

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  1. Michael S. Moore
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Correspondence to Michael S. Moore.

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Moore, M.S., Hurd, H.M. Punishing the Awkward, the Stupid, the Weak, and the Selfish: The Culpability of Negligence. Criminal Law, Philosophy 5, 147–198 (2011). https://doi.org/10.1007/s11572-011-9114-0

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