Abstract
Standard treatments of responsibility have been preoccupied with issues of blame and punishment, and concerns about free will. In contrast, Raz is concerned with problems about responsibility that arise from the “puzzle of moral luck,” puzzles that lead to misguided skepticism about negligence. We are responsible not only for conduct that is successfully guided by what we take to be our reasons for action, but also for misexercises of our rational capacities that escape our rational control. To deny this is to lose sight of the ways “moral luck” is an inescapable feature of our agential engagement in the world. The present essay attempts to set out Raz’s argument as sympathetically as possible. Raz’s shift of focus is a powerful counter to current tendencies and points us in new and promising directions. Nonetheless, as it stands, it may just relocate skepticism about negligence to a different place.
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Notes
Raz (2011). Nine of the 13 chapters are revisions of previously published material.
Raz elaborates: “An action is so guided and controlled if and only if, first, it is either done for (what the agent takes to be) a sufficient reason, or is done, knowing what one is doing, …by doing another action for (what the agent takes to be) a sufficient reason, and, second, in doing it one is not doing anything else which one believes that it would be better not to do…” (Raz 2011, 229–230). This principle states sufficient but not necessary conditions for responsibility, in Raz’s view. He aims to articulate a conception of responsibility for action “that generalizes and incorporates [the Guidance Principle], thus doing justice to its good sense, as well as explaining its limitations” (Raz 2011, 264).
In tort law, as in non-legal life, negligence is not necessarily “inadvertent”. For example, recklessness is an instance of negligence in the sense that reckless behavior violates the duty of reasonable care. In these comments, I focus on inadvertent negligence because responsibility in recklessness is explained well enough by the Guidance Principle; it is not a misperformance in the relevant sense. Moreover, negligence is only one sort of “misperformance” covered by RFP. I discuss others briefly in §10 below.
That both (2) and (3) can be expressed in sentences of the form “S is responsible for” may give rise to ambiguities. ‘He was responsible for waking the neighbors’ could express either (or both). To disambiguate, Raz consistently subscripts his analysandum as ‘responsibility2’. (For simplicity, for the most part, I drop the subscript in my exposition.) Later on, I say something about the question of the relation between (2) and (3).
For simplicity of exposition, I assume here that we can include omissions in the causal order. In any case, we certainly include them in our ordinary explanations.
This question is about the relation between responsibility2 and responsibility3, discussed earlier: whether my responsibility2 for damaging your property engenders a responsibility on my part to pay damages, to make amends, or to apologize.
Alexander and Ferzan (2009, 281).
Raz rightly observes that the predication of ‘negligence’ ascribes responsibility. Strictly speaking, then, the skepticism under consideration denies the possible occurrence of negligence, not our responsibility for it.
Rosen’s stipulation that responsibility is to be understood as liability to blame occurs on p. 2 of his article.
Although he chides the responsibility literature for its obsession with blame, I am fairly confident that Raz does not think Rosen and these other writers are correct about the control-conditions on blame or culpability. His discussion on 251–254 suggests to me otherwise.
There is a kinship here between Raz’s focal notion, and the notion of responsibility as attributability (in contrast to accountability as a kind of liability) that I attempted to analyze in Watson 2004.
I borrow this term from Perry (2001).
See Smith (2005). Smith writes here that “what makes an attitude ‘ours’ in the sense relevant to questions of responsibility and moral assessment is not that we have voluntarily chosen it or that we have voluntary control over it, but that it reflects our own evaluative judgments or appraisals” (237). See also Scanlon (1998, Ch. 6).
And see Raz (2011, 1–2, and 252).
See Raz (2011, 252). The lesson of moral luck is that blame and other evaluations of actions are not just about the intentions or emotions underlying them.
For cases of this sort, see Weingarten (2009).
‘Failure of care’ is ambiguous between a behavioral and an attitudinal (emotional/volitional) interpretation. The point is that not all failures of care involve emotional/volitional failures.
Recall one of Raz’s characterizations of moral luck quoted earlier: that people are sometimes “to blame for conduct that they do not control…” (2011, 251).
Unless, again, we construe ‘disregard’ in a purely behavioral sense.
The fact that the wrong remains in the family shapes our responses significantly. We tend to withhold blaming sentiments toward those who are blameworthy but clearly tortured by grief and guilt. Instead we feel sympathy for their loss and suffering. If the negligent actor were transporting the child for a friend, or as a hired caretaker, that would be another matter, morally and legally. The driver would have different amends to make.
Weingarten (2009, 15). The psychologist quoted here is Ed Hickling. The article cites a number of highly unsympathetic or retributive reactions by readers to reports of these cases. One reader wrote that “This is a case of pure evil negligence of the worst kind. He deserves the death sentence.” Another reader wondered whether “this was [the father’s] way of telling his wife that he really didn’t want a kid.” According to a third response, “If she had too many things on her mind then she should have kept her legs closed and not had any kids. They should lock her in a car during a hot day and see what happens.” Weingarten (2009, 15).
See Hart (2008, 152 and 156–157). Hart thought the view that criminal negligence involves an “odious form of strict liability” to rest on the “old mistaken identification of ‘the subjective element’ involved in negligence with ‘a blank mind’”; instead, he said, it should be identified simply with the agent’s “failure to exercise the capacity to advert to, and to think about and control conduct and its risks” (156–157). Hart noted that “In some cases at least we may say ‘he could have thought about what he was doing’ with just as much rational confidence as one can say of any intentional wrongdoing ‘he could have done otherwise’” (152). George Fletcher endorses this sort of reply. “From fourteenth century legal renaissance in Italy to H. L. A. Hart's analysis, the proponents of punishing negligence have relied upon the same reply: the culpability of negligence is not the culpability of choice, but rather of failing to bring to bear one's faculties to perceive the risks that one is taking” Fletcher (1971, 415).
This last clause echoes the proviso in RFP. I discuss this condition below.
The “success of our actions depends on factors beyond our control, but typically they are not matters of luck” (Raz 2011, 237).
As the following paragraph illustrates, even mental life requires reliance on processes that are not entirely under reflective control. .
Peter Railton (2009, 83). Railton’s main thesis is to the point here: “[All] action—including in particular paradigmatic premeditated intentional action—has and must have unpremeditated action at its source and core” (102). Raz notes the relevance of Railton’s illuminating essay to his own discussion of competence (Raz 2011, 244, note 29). .
There are obvious affinities between Raz’s argument and George Sher’s in Who Knew? (Oxford U. Press, 2009). See especially Ch. 8. But there are significant differences also, too complicated to spell out here.
Raz notes in passing that weakness of will is, like negligence, a counterexample to the Guidance Principle. “Besides [the Guidance Principle] fails to explain why we are responsible for weak-willed actions” (Raz 2011, 231). But he doesn’t spell this out. Certainly, some will challenge the notion that weakness of will is a “misperformance” in the relevant sense.
Smith (1993, 20).
Of course, it can be equally (or even more) embarrassing or shameful to lack the competence in question as to have but fail to exercise it. But these are distinct shortcomings.
Austin (1961, 166 note 1).
Of course, playing with the radio is in Rishi’s (and Raul’s) control, but it was a matter of luck that no one got hurt.
For example, see Perry (2001, in particular 93, note 27).
Furthermore, these writers disagree with Raz about strict liability. The reason the liability of dynamiters is strict is not that they are not responsible for the damage they cause but that their liability is independent of fault. Rather, it is based on the choice to engage in ultra-hazardous activity that involves “unilateral risk imposition. Perry (2001, 74). In contrast, Raz regards strict liability in law as a way of fairly distributing “risk of liability without attributing responsibility” (Raz 2011, 259).
Although Raz (scrupulously?) avoids the word ‘fault’ in these chapters, clause (b) in a clear sense expresses a fault standard.
The principle here is subject to interpretive dispute. What I say here is exceedingly condensed, as is Raz’s treatment of the principle of negligence.
Here is one place where Raz’s notion of responsibility for outcomes is bound up with the third use of ‘responsibility’: my duties to others by way of care.
In the brief discussion that follows, I cannot not do full justice to Perry’s subtle and closely argued writings on this subject, but I think my concerns would survive a fuller discussion.
Why does Perry use here the apparently pleonastic phrase “outcome-responsible for an outcome” rather than simply “responsible for an outcome”? Is there some other way of being responsible for an outcome than being outcome-responsible for it? On a non-pleonastic reading, being outcome-responsible for O might not entail being responsible2 for O (that is, being responsible in the sense that Raz is after), and outcome-responsibility theory would then be consistent with RFP after all.
Perry (2001, 81).
Outcome responsibility, Perry says, is “deeply rooted in the concept of moral agency itself” (Perry 2001, 93).
Negligence-skeptics might exploit the phenomenon of agent-regret to supplement their critique. They might agree with Raz that Rosa’s agent-regret is warranted or at least natural for outcomes for which she is not responsible and then argue that our reactions to so-called negligence and the like exemplify the same sentiment. We are apt, they might say, to confuse the regretful feeling of being “implicated” that is distinctive of agent-regret with guilt and the like. Thus, agent-regret turns out to be instructive in a way that debunks rather than supports Raz’s intermediate view. For it provides a way of explaining our susceptibility to the illusion of responsibility for negligence. Of course, the force of such an explanation depends upon having an independent reason for taking this sense of responsibility to involve an illusion, which is of course what is at issue in these chapters.
In an extended sense, the conduct of the first lorry driver can be described as a “misperformance” inasmuch as it frustrates her general aim not to cause harm. But this way of going wrong involves no misexercise of one’s powers of rational agency in the sense that concerns Raz.
The distance between Raz’s account of negligence responsibility and legal practice can be seen in the case of Vaughn v. Menlove, in which it was found that the defendant’s alleged lack of competence in the domain in question was not dispositive. The relevant standard was the capacities of the reasonable person, who would have had more sense than Menlove apparently had. Again, Raz’s discussion takes no stand on legal negligence doctrine. (Thanks to Greg Keating for reminding me of the relevance of this case).
Fletcher (1971, 415).
Many thanks to Stephen Bero, Erik Encarnacion, Gregory Keating and Aness Webster for wonderfully helpful discussions and comments.
References
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Watson, G. Raz on Responsibility. Criminal Law, Philosophy 10, 395–409 (2016). https://doi.org/10.1007/s11572-014-9312-7
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DOI: https://doi.org/10.1007/s11572-014-9312-7