Prima facie, so-called ‘quality of will’ accounts of responsibility are better placed to deal with troublesome cases such as pure omissions. But, as I am going to argue, they face the important additional task of spelling out precisely which kind of faults or mistakes on the agent’s part make the agent the appropriate target of specifically moral blame. In this paper, I will try to fill out what I take to be an important lacuna in ‘quality of will’ approaches, by providing at least the beginning of an answer to this question. As I will argue, the most promising way to fill out this lacuna is to take up a version of what Joseph Raz has called the Rational Functioning Principle, according to which we are responsible for conduct – and omissions – if this conduct “is the result of the functioning, successful or failed, of our powers of rational agency, provided those powers were not suspended in a way affecting the action.” (2011, 231). While this account will need some further qualification, I do think it provides, in outline, the best approach to understanding responsibility in general and for pure omissions specifically. However, making good on this claim will require some argument for why our behaviour or our omissions’ being the result of a failed or deficient functioning of our rational powers is precisely what makes us morally responsible for them. The argument I will develop will be based on the idea that moral blame involves essentially judging an agent by reference to a specific set of norms which are inescapable and binding him in a characteristic way (i.e. the way which is characteristic for specifically moral norms). And the rational powers whose failed or deficient exercise was responsible for the behaviour or omission will have to be precisely those powers whose possession makes moral norms inescapable and binding for us.

A well-known tradition in private law theory says that one is responsible for the outcomes of one’s negligence when those outcomes are connected with one’s agency in the right way. Though they differ on the detail, theorists within that tradition (exemplified in the work of Tony Honoré, Stephen Perry, Joseph Raz, and John Gardner) tend to agree that a story about what we are responsible for must be grounded on a story about who we are, and what we are like as agents. In their view, you are responsible to make repair for the consequences of your careless driving insofar as not ascribing such responsibility to you would fail to treat you appropriately as an agent who has certain general capacities and commands the normal range of rational powers, including the power to take up driving and to make driving decisions. This chapter identifies three problems with such ‘agency’ accounts. First, those accounts have difficulty explaining why the connection with agency seems to matter more in some contexts, e.g., in blaming, and less in others, e.g. in the allocation of substantive burdens among persons. Second, they lack the resources to help us decide whose responsibility it is to deal with some outcome when more than one agents are connected to that outcome in the ‘right’ way, e.g., when a malicious attacker and the speaker he targets could both have avoided the speaker’s injury by choosing appropriately. Third, their implicit claim that our ideas about agency are more basic or fundamental than our ideas about responsibility is not obviously correct.

The standard way to distinguish between negligence and recklessness is in terms of the agent’s awareness of the risk he is taking. An agent who knows that there is a risk of harm is reckless, an agent who does not know (leaving aside for now whether the belief is reasonable or not) is negligent. Antony Duff argues that we should amend this slightly – What renders an agent reckless is not caring enough about a risk. Duff’s amendment suggests, very plausibly, that mere lack of awareness is not what really matters morally. What matters, rather, is why an agent is not aware. This is taken for granted in the background conditions for negligence – which, for example, should be distinguished from stupidity. An agent may not be aware of a risk because she is not cognitively capable of such awareness. The background condition for negligence is that an agent could have been aware of the risk, but is not. So if an agent could have been aware of a risk, but is not because she was too lazy to look out the window, or check her calendar, or whatever, if, in other words, the reason that she is not aware of the risk is that she does not care enough, she should count as acting recklessly rather than negligently. I argue that there is something in Duff’s view to be rescued here. The rapist who does not understand or accept sexual refusal is not reckless if he has no awareness at any level of the relevant descriptive and normative facts. However, he should not be seen as negligent either. The structure of the situation is such that his ignorance is systematic, not one off. I argue that it is an important feature of negligence that it is one off, that it is not connected to a system of oppression. This gives us a justification for moralizing the ‘reasonable belief’ requirement in sexual consent cases. Even when a belief is reasonable by epistemic standards, it may be unreasonable by moral standards. The overall point here is that in a society riven by sexism, the essential definition of rape must advert to reasonable moral beliefs rather than reasonable epistemic beliefs.

In explaining why an instance of negligence is a case of culpable wrongdoing, it is natural and common to cite missing features of the agent’s behavior or mental state. “She failed to notice the stop sign,” “He did not check the water temperature before putting the baby in the bath.” In general, it can seem puzzling to ground judgments of wrongdoing and culpability not in the qualities that the agent’s mind and behavior possess but, instead, in the qualities they lack. After all, the class of people lacking the relevant feature is much larger than the class who are guilty of the culpable wrongdoing to which we are responding in cases of negligence. The passenger in the car, as well as the driver, failed to notice the stop sign. The houseguest also did not check the temperature of the baby’s bath. Why are they not guilty of culpable wrongdoing if these respective failures are what supports the charge in the case of the driver and the father? This chapter argues, first, that an account of why cases of negligence are ever cases of culpable wrongdoing must solve this problem by providing an explanation for why some absences are instances of culpable wrongdoing and others are not. Several quick efforts to solve the problem are shown to be inadequate. The chapter then goes on to offer a general theory of culpability that explains why absences – failures to notice or to attend, failures to take precautions – can be instances of culpable wrongdoing, and also why such absences sometimes fail to ground claims of culpable wrongdoing. Along the way, the chapter also draws a distinction between moral and criminal culpability and demonstrates that there can be instances of criminally culpable negligence in the absence of moral culpability.

This chapter examines the influence of Magna Carta on the development of rights and liberties in the Anglo-American common law tradition. Originally issued by King John of England in 1215, Magna Carta and several later medieval sources set forth numerous prototypical rights and liberties that helped to shape subsequent legal developments in England, America, and the broader Commonwealth. Magna Carta inspired sixteenth-century Puritan dissenters in Elizabethan England and seventeenth-century English jurists like Sir Edward Coke and Puritan pamphleteers like John Lilburne, who advocated sweeping new rights reforms on the strength of the Charter. Magna Carta also inspired more directly the new bills of rights and liberties of several American colonies, including notably the expansive 1641 Body of Liberties of Massachusetts crafted by Nathaniel Ward, and many of the rights provisions in the American Declaration of Independence, the original state constitutions, and the US Constitution and Bill of Rights.

Legal scholars often prescind to moral philosophy to try to solve legal puzzles or paradoxes and to shape the positive law by reference to the seemingly pure and uncluttered lessons derived from within first-order moral theory. This chapter aims to do something quite close to the opposite. By looking at the structure of negligence law and certain concepts within it and by exhibiting their principled bases, it generates possible solutions to some of the problems about negligence that have troubled moral philosophers. These include: whether conduct that would ordinarily be called “negligent” can qualify as a breach of moral duty even if it was solely the product of inadvertence; whether it matters to the blameworthiness of a negligent actor that her conduct caused no harm; and whether a person whose negligent conduct is purely a product of inadvertence can properly be blamed or held responsible for injuring another. In the domain of negligence law, which contains “negligence,” “duty,” and “legal responsibility” in the form of legal liability, the answer to all three analogous questions is emphatically “yes,” and tort law explains why. Moving back to moral questions, we see our way to defensible answers to those questions and we also see why the questions present themselves as so difficult.

This chapter examines the influence of Magna Carta on the development of rights and liberties in the Anglo-American common law tradition. Originally issued by King John of England in 1215, Magna Carta and several later medieval sources set forth numerous prototypical rights and liberties that helped to shape subsequent legal developments in England, America, and the broader Commonwealth. Magna Carta inspired sixteenth-century Puritan dissenters in Elizabethan England and seventeenth-century English jurists like Sir Edward Coke and Puritan pamphleteers like John Lilburne, who advocated sweeping new rights reforms on the strength of the Charter. Magna Carta also inspired more directly the new bills of rights and liberties of several American colonies, including notably the expansive 1641 Body of Liberties of Massachusetts crafted by Nathaniel Ward, and many of the rights provisions in the American Declaration of Independence, the original state constitutions, and the US Constitution and Bill of Rights.B1:L8

The eighteenth-century American founders believed that religion is special and deserves special constitutional protection, and that all peaceable faiths must be drawn into the constitutional process and protection. The founders introduced six constitutional principles for the protection of religious freedom – freedom of conscience, free exercise of religion, religious pluralism, religious equality, separation of church and state, and no federal establishment of religion. Since the 1940s, the US Supreme Court has upheld these religious freedom principles in more 170 cases, albeit unevenly of late. Moreover, in recent years religious freedom has come under sharp popular and academic attack, particularly as religious pathologies have come to light and religious freedom claims have clashed with sexual liberty claims. This chapter calls for a return to the first principles of religious freedom for all, at home and abroad, and for a new balance between religious freedom and other fundamental rights claims.

The Supreme Court has devoted nearly a third of its religious freedom cases to questions of religion and education. While government has the power to mandate basic education for all children, the Court has held, parents have the right to choose public, private, or homeschool education for their minor children, and government may now facilitate that choice through vouchers and tax breaks. While the First Amendment forbids most forms of religion in public schools, it protects most forms of religion in private schools. While the First Amendment forbids government from funding the core religious activities of private schools, it permits delivery of general governmental services, subsidies, scholarships, and tax breaks to public and private schools, teachers, and students alike. While the First Amendment forbids public-school teachers from offering religious instruction and expression in public-school classes and events, it permits public-school students to engage in private religious expression free from coercion. The amendment further requires that religious parties have equal access to public facilities, forums, and funds that are open to their nonreligious peers.

In response to several contemporary scholars who criticize human rights paradigms as inadequate or incompatible with Christian faith and practice, these reflections argue that rights should remain a part of Christian moral, legal, and political discourse, and that Christians should remain a part of pluralistic public debates about the appropriate scope and substance of human rights and religious freedom protections.

According to the Doctrine of Doing and Allowing, there is a moral difference between doing something and allowing it to occur. Its defenders and critics both assume the existence of an ontological difference that the purported moral difference is said to supervene upon. This difference – between so-called positive acts of doing and negative acts of not-doing – was famously introduced by Gilbert Ryle, who argued that the latter (which include neglect) were not really actions at all. He is opposed by Davidsonians who, by contrast, maintain that negative act tokens are just positive acts under negative characterisations. In this chapter, I argue that both the moral and the metaphysical debates rest on the mistaken belief that actions and/or their characterisations can be neatly divided into those that are positive and those that are negative. I use a wide range of examples to demonstrate how all action contains inaction, and vice versa. Moreover, ontological perceptions of what is positive and what is negative cannot be neatly separated from evaluative ones. None of this entails that there can never be any moral difference between doing x and allowing x to happen. But it is not one that can be captured by any principle, not least because any given instance of doing x will involve the not-doing of some other thing (a, b, or c …), and any case of of allowing x to happen will be inseparable from doing some such other thing, where the doing of a involved in allowing x may be morally worse than the allowing of a which occurs in doing x. I conclude that the Bhagavad Gita is right in proclaiming that the ability to reliably perceive one’s action in inaction, and vice versa, eludes us.

This chapter analyzes the gradual and escalating development of human rights and religious freedom protections over the past two millennia. The chapter surveys the discovery and accumulation of rights and liberties in biblical texts and their interpretations over the centuries; in classical Roman law and the medieval civil, canon, and common law sources that built on the Bible and Roman law; in the Protestant Reformation and the Protestant–Catholic conflicts and revolts that followed; in Enlightenment liberalism and modern constitutional reforms born of democratic revolution; and in twentieth-century international human rights documents beginning with the 1948 Universal Declaration of Human Rights. Setting up the more detailed studies that follow, the chapter identifies several essential and enduring questions about the intersections of religion, human rights and religious freedom that still confront states and churches today.