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Nobody’s Perfect: Moral Responsibility in Negligence

  • Ori J. Herstein
Abstract

Given the unwittingness of negligence, personal responsibility for negligent conduct is puzzling. After all, how is it that one is responsible for what one did not intend to do or was unaware that one was doing? How, therefore, is one’s agency involved with one’s negligence so as to ground one’s responsibility for it? Negligence is an unwitting failure in agency to meet a standard requiring conduct that falls within one’s competency. Accordingly, negligent conduct involves agency in that negligence is a manifestation of agency failure. Now, nobody’s perfect. Human agency is innately fallible, and a measure of agency failure is, therefore, unavoidable. The more one’s negligence manifests failure in one’s agency as an individual, the more one is responsible for it. In contrast, the more one’s negligence involves the shortcomings innate to all human agency the less responsible one becomes, because one’s agency as an individual is less and less involved in one’s failure. Determinative of the measure of individual and of human failings mixed into an instance of negligent phi-ing is the background quality of one’s agency at meeting one’s competency at phi-ing. That is, how able one is at delivering on what one is able to competently do. The more able, the less one’s occasional instances of negligence involve manifestations of failures of one’s agency as an individual—nobody’s perfect—and are more manifestations of one’s agency’s innate human fallibility, making one less and less responsible for one’s negligence.

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For written notes on previous drafts I am grateful to Antony Duff, David Enoch, Anna Finkelstern, Alon Harel, Miguel Herstein, Uri D Leibowitz, Ofer Malcai, Re’em Segev, Sandy Steel, and a reviewer for the CJLJ. I am also grateful for the helpful comments of the participants of the workshop on Negligence, Omissions and Responsibility: Reflecting on Philosophy of Action (University of Birmingham, 2016); UK Analytic Legal and Political Philosophy Conference (University of Manchester, 2016), and the research group on Legitimization of Modern Criminal Law Research Group (Hebrew University Centre for Advanced Studies, 2016).

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1. For such approaches to responsibility, see Fischer, John M & Ravizza, Mark, Responsibility and Control: A Theory of Moral Responsibility (Cambridge University Press, 1998); Victor Tadros, Criminal Responsibility (Oxford University Press, 2007)

2. Hart, HLA, Punishment and Responsibility (Oxford University Press, 1968) at 154-55, 227-30. A view further developed and extrapolated on by, for example, Tadros, supra note 1 at 227-51 Joseph, Raz, From Normativity to Responsibility (Oxford University Press, 2011) at 55-57, 138.

3. Antony, Duff, “Legal and Moral Responsibility” (2009) 4:6 Philosophy Compass 978.

4. Smith, Holly M, “Non-Tracing Cases of Culpable Ignorance” (2011) 5:2 Crim & Philosophy 115 at 121.

5. This third category often—although not necessarily—overlaps with one of the previous two.

6. For more on the puzzle of responsibility in negligence, see Herstein, Ori J, “Responsibility in Negligence: Why the Duty of Care is Not a Duty ‘To Try’” (2010) 23:2 Can JL & Jur 403; Zimmerman, Michael J, “Moral Responsibility and Ignorance” (1997) 107:3 Ethics 410.

7. Coleman, Jules L, Risks and Wrongs (Cambridge University Press, 1992) at 217-20; Honoré, Tony, “The Morality of Tort Law—Questions and Answers” in Owen, DG, ed, Philosophical Foundations of Tort Law (Clarendon Press, 1995) 73; Rosen, Gideon, “Culpability and Ignorance” (2003) 103 Proceedings of the Aristotelian Society 61; Finkelstein, Claire O, “Responsibility for Unintended Consequences” (2005) 2 Ohio State Crim LJ 578; Alexander, Larry & Ferzan, Kimberly, “Against Negligence Liability” in Robinson, P & Ferzan, K, eds, Criminal Law Conversations (Oxford University Press, 2009) 273-80; King, Matt, “The Problem with Negligence” (2009) 35 Soc Theory and Practice 577; Hurd, Heidi M, “Finding No Fault with Negligence” in Oberdiek, John, ed, Philosophical Foundations of the Law of Torts (Oxford University Press, 2014) 387.

8. Hart, supra note 2 at 147-52 Ayer, AJ, Philosophical Essays (Macmillan, 1954) at 27; Fletcher, George, “The Theory of Criminal Negligence: A Comparative Analysis” (1971) 119:3 U Pa L Rev 401; Duff, Anthony, Answering for Crime: Responsibility and Liability in the Criminal Law (Hart, 2007) at 71; Gardner, John, “The Purity and Priority of Private Law” (1996) 46:3 UTLJ 459; Gardner, John, “Obligations and Outcomes in the Law of Torts” in Cane, Peter & Gardner, John, eds, Relating to Responsibility: Essays for Tony Honoré on His 80th Birthday (Hart, 2001) 111.

9. Legal negligence is typically not conditioned on competency. SeeVaughan v Menlove, [1837] 132 ER 490.

10. Raz, supra note 2 at 243-51; Herstein, Ori J, “Responsibility in Negligence: Discussion of From Normativity to Responsibility” (2013) 8:1 Jerusalem Rev Legal Studies 167.

11. A “layup” is considered the easiest shot in the game of basketball.

12. Raz, supra note 2 at 227-50.

13. On the historicity of agency and responsibility, see Fischer & Ravizza, supra note 1 at 194-201; Scanlon, Thomas, What We Owe To Each Other (Harvard University Press, 1998) at 278-79; Tadros, supra note 1 at 140-42; McKenna, Michael, “A Modest Historical Theory of Moral Responsibility” (2016) 20:1 J Ethics 83.

14. Williams, Bernard, “Moral Luck” in Statman, D, ed, Moral Luck (State University of New York Press, 1993) 35.

15. On victim resentment, see Heyd, David, “Resentment and Reconciliation: Alternative Responses to Historical Evil” in Gosseries, A & Meyer, LH, eds, Justice in Time (Oxford University Press, 2004).

16. On the “lottery paradox”, see Henry, Kyburg, Probability and the Logic of Rational Belief (Wesleyan University Press, 1961).

17. On the “preface paradox” see Makinson, DC, “The Paradox of the Preface” (1965) 25:6 Analysis 205-07.

18. I say reasonably “foreseeable” because one is obviously not responsible for all the outcomes of one’s conduct.

19. See Dobbs, Dan B, The Law of Torts, vol 1 (Westgroup, 2000) at 493-550; Restatement (second) Torts § 283 (1965). For a case involving an epileptic seizure while driving, see People v Decina, 138 NE (2d) 799 (1956).

20. See, e.g., Fischer, John M & Tognazzini, Neal A, “The Truth About Tracing” (2009) 43:3 Nous 531; Zimmerman, supra note 6.

21. On the distinction between attributionism and volitionism see, e.g., Smith, supra note 4.

22. See, e.g., Scanlon, supra note 13 at 268-69 Smith, Angela M, “Responsibility for Attitudes: Activity and Passivity in Mental Life” (2005) 115:2 Ethics 236; Sher, George, “Out of Control” (2006) 116:2 Ethics 285; Tadros, supra note 1; Hieronymi, Pamela, “Responsibility for Believing” (2008) 161:3 Synthese at 357; Smith, Angela, “Control, Responsibility and Moral Assessment” (2008) 138:3 Philosophical Studies 367; Smith, ibid.

For written notes on previous drafts I am grateful to Antony Duff, David Enoch, Anna Finkelstern, Alon Harel, Miguel Herstein, Uri D Leibowitz, Ofer Malcai, Re’em Segev, Sandy Steel, and a reviewer for the CJLJ. I am also grateful for the helpful comments of the participants of the workshop on Negligence, Omissions and Responsibility: Reflecting on Philosophy of Action (University of Birmingham, 2016); UK Analytic Legal and Political Philosophy Conference (University of Manchester, 2016), and the research group on Legitimization of Modern Criminal Law Research Group (Hebrew University Centre for Advanced Studies, 2016).

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Canadian Journal of Law & Jurisprudence
  • ISSN: 0841-8209
  • EISSN: 2056-4260
  • URL: /core/journals/canadian-journal-of-law-and-jurisprudence
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