When is Negligent Inadvertence Culpable?

Criminal Law and Philosophy 5 (2):97-114 (2011)

Kenneth Simons
University of California, Irvine
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)
DOI 10.1007/s11572-011-9116-y
Edit this record
Mark as duplicate
Export citation
Find it on Scholar
Request removal from index
Revision history

Download options

Our Archive

Upload a copy of this paper     Check publisher's policy     Papers currently archived: 39,566
Through your library

References found in this work BETA

Non-Tracing Cases of Culpable Ignorance.Holly Smith - 2011 - Criminal Law and Philosophy 5 (2):115-146.
The Problem with Negligence.Matt King - 2009 - Social Theory and Practice 35 (4):577-595.

View all 9 references / Add more references

Citations of this work BETA

No citations found.

Add more citations

Similar books and articles

The Problem with Negligence.Matt King - 2009 - Social Theory and Practice 35 (4):577-595.
Non-Tracing Cases of Culpable Ignorance.Holly Smith - 2011 - Criminal Law and Philosophy 5 (2):115-146.
Willfully Blind for Good Reason.Deborah Hellman - 2009 - Criminal Law and Philosophy 3 (3):301-316.
Partial Desert.Tamler Sommers - forthcoming - In David Shoemaker (ed.), Oxford Studies in Agency and Responsibility. Oxford University Press.
Individualizing the Reasonable Person in Criminal Law.Peter Westen - 2008 - Criminal Law and Philosophy 2 (2):137-162.
Tracing Culpable Ignorance.Rik Peels - 2011 - Logos and Episteme 2 (4):575-582.
Responsibility in Negligence: Why the Duty of Care is Not a Duty “To Try”.Ori J. Herstein - 2010 - Canadian Journal of Law and Jurisprudence 23 (2):403-428.
Negligence.Kenneth W. Simons - 1999 - Social Philosophy and Policy 16 (2):52.


Added to PP index

Total views
46 ( #161,001 of 2,325,496 )

Recent downloads (6 months)
3 ( #523,443 of 2,325,496 )

How can I increase my downloads?


My notes

Sign in to use this feature