Recent writers on negligence and culpable ignorance have argued that there are two kinds of culpable ignorance: tracing cases, in which the agent’s ignorance traces back to some culpable act or omission of hers in the past that led to the current act, which therefore arguably inherits the culpability of that earlier failure; and non-tracing cases, in which there is no such earlier failure, so the agent’s current state of ignorance must be culpable in its own right. An unusual but (...) intriguing justification for blaming agents in non-tracing cases is provided by Attributionism, which holds that we are as blameworthy for our non-voluntary emotional reactions, spontaneous attitudes, and the ensuing patterns of awareness as we are for our voluntary actions. The Attributionist explanation for why some non-tracing cases involve culpability is an appealing one, even though it has limited scope. After providing a deeper account of why we should take the Attributionist position seriously, I use recent psychological research to argue for a new account of the conditions under which agents are culpable for straightforward instances of blameworthy acts. That account is extended to blameworthiness for non-voluntary responses. I conclude that even when the agent’s failure to notice arises from a nonvoluntary objectionable attitude, very few such cases are ones in which Attributionism implies that the agent is blameworthy for her act. (shrink)

People are often responsible for what they do, but they also often possess an excuse. One of the most common excuses is ignorance. Not all ignorance constitutes an excuse, however, for some ignorance is culpable and culpable ignorance is no excuse. But what about group agents? In our everyday practices, we blame group agents constantly. But if groups can be blameworthy, they plausibly can also be excused. Surely one such excuse is ignorance. But, as with individual agents, some group ignorance (...) is also surely culpable. How should we understand the culpable ignorance of group agents? In this paper, I argue for two conditional claims that together constitute what I call the Group Justification Thesis, which is a group-agent adaptation of the Justification Thesis put forth by Biebel [(2018). ‘Epistemic Justification and the Ignorance Excuse.’ Philosophical Studies 175 (12): 3005–3028]: (i) A group agent is excused because of ignorance only if that ignorance is justified, and (ii) a group agent is culpable despite being ignorant only if that ignorance is not justified. One interesting upshot of this view is that a group agent can be culpably ignorant even though none of the members are culpable for their ignorance. (shrink)

Capacitarianism says that an agent can be non-derivatively blameworthy for wrongdoing if at the time of their conduct the agent lacked awareness of the wrong-making features of their conduct but had the capacity to be aware of those features. In this paper, I raise three objections to capacitarianism in relation to its verdict of the culpability of so-called “slips” and use these objections to support a rival (“accessibility internalist”) view which requires awareness of wrong-making features for non-derivative blameworthiness. The objections (...) are that (1) the rival internalist view is just as capable of explaining the culpability of paradigm cases of slips; (2) there are some cases of slips without dispositional awareness of wrong-making features that capacitarians wrongly deem culpable; and (3) capacitarianism cannot adequately ground the reasonable expectation to avoid slips (as Fernando Rudy-Hiller has argued). I then argue that an internalist can simultaneously ground a reasonable expectation to avoid slips and account for slips’ culpability by pointing to the satisfaction of a novel epistemic condition: it is (dispositionally) obvious to the slipping agent that they need to pay enough attention to what they are doing, and how to pay enough attention, to reliably achieve the goal that they have set out to achieve. (shrink)

In a series of ten preregistered experiments (N=2043), we investigate the effect of outcome valence on judgments of probability, negligence, and culpability – a phenomenon sometimes labelled moral (and legal) luck. We found that harmful outcomes, when contrasted with neutral outcomes, lead to increased perceived probability of harm ex post, and consequently to increased attribution of negligence and culpability. Rather than simply postulating a hindsight bias (as is common), we employ a variety of empirical means to demonstrate that the outcome-driven (...) asymmetry across perceived probabilities constitutes a systematic cognitive distortion. We then explore three distinct strategies to alleviate the hindsight bias and its downstream effects on mens rea and culpability ascriptions. Not all are successful, but at least some prove promising. They should, we argue, be taken into consideration in criminal jurisprudence, where distortions due to the hindsight bias are likely considerable and deeply disconcerting. (shrink)

Recent decades have witnessed tremendous progress in artificial intelligence and in the development of autonomous systems that rely on artificial intelligence. Critics, however, have pointed to the difficulty of allocating responsibility for the actions of an autonomous system, especially when the autonomous system causes harm or damage. The highly autonomous behavior of such systems, for which neither the programmer, the manufacturer, nor the operator seems to be responsible, has been suspected to generate responsibility gaps. This has been the cause of (...) much concern. In this article, I propose a more optimistic view on artificial intelligence, raising two challenges for responsibility gap pessimists. First, proponents of responsibility gaps must say more about when responsibility gaps occur. Once we accept a difficult-to-reject plausibility constraint on the emergence of such gaps, it becomes apparent that the situations in which responsibility gaps occur are unclear. Second, assuming that responsibility gaps occur, more must be said about why we should be concerned about such gaps in the first place. I proceed by defusing what I take to be the two most important concerns about responsibility gaps, one relating to the consequences of responsibility gaps and the other relating to violations of jus in bello. (shrink)

In this paper we attempt to reply to the thoughtful comments made on our book, Responsible Brains, by a stellar group of scholars. Our reply focuses on two topics discussed in the commenting papers: first, the issue of responsibility for negligent behavior; and second, the broad claim that facts about brain function are normatively inert. In response to worries that our theory lacks normative implications, we will concentrate on an area where our theory has clear relevance to law and legal (...) policy: juvenile responsibility. (shrink)

The counterfactual mental state of negligent criminal activity invites skepticism from those who see mental states as essential to responsibility. Here, I offer a revision of the mental state of criminal negligence, one where the mental state at issue is actual and not merely counterfactual. This revision dissolves the worry raised by the skeptic and helps to explain negligence’s comparatively reduced culpability.

In a series of ten preregistered experiments (N=2043), we investigate the effect of outcome valence on judgments of probability, negligence, and culpability – a phenomenon sometimes labelled moral (and legal) luck. We found that harmful outcomes, when contrasted with neutral outcomes, lead to increased perceived probability of harm ex post, and consequently to increased attribution of negligence and culpability. Rather than simply postulating a hindsight bias (as is common), we employ a variety of empirical means to demonstrate that the outcome-driven (...) asymmetry across perceived probabilities constitutes a systematic cognitive distortion. We then explore three distinct strategies to alleviate the hindsight bias and its downstream effects on mens rea and culpability ascriptions. Not all are successful, but at least some prove promising. They should, we argue, be taken into consideration in criminal jurisprudence, where distortions due to the hindsight bias are likely considerable and deeply disconcerting. (shrink)

An encyclopedia article on the epistemic or knowledge condition for moral responsibility, written for the SEP.

One popular theory of moral responsibility locates responsible agency in exercises of control. These control-based theories often appeal to tracing to explain responsibility in cases where some agent is intuitively responsible for bringing about some outcome despite lacking direct control over that outcome’s obtaining. Some question whether control-based theories are committed to utilizing tracing to explain responsibility in certain cases. I argue that reflecting on certain kinds of negligence shows that tracing plays an ineliminable role in any adequate control-based theory (...) of responsibility. (shrink)

In this paper I suggest that there is a way to make sense of blameworthiness for morally problematic actions even when there is no bad will behind such actions. I am particularly interested in cases where an agent acts in a biased way, and the explanation is socialization and false belief rather than bad will on the part of the agent. In such cases, I submit, we are pulled in two directions: on the one hand non-culpable ignorance is usually an (...) excuse, but in the case of acting in a biased way we feel some pull to find the agent blameworthy. I argue that agents are sometimes blameworthy, (where I really mean that they are blameworthy, and not just that it is permissible to reproach them), even if they do not have any bad will. I argue that although the paradigmatic account of blameworthiness is based on quality of will, we can and should be willing to allow that there are non-paradigmatic cases. I argue that the zone of responsibility can be extended to include acts that we are not fully in control of, and acts whose moral status we are non-culpably ignorant about at the time of acting. This extension of responsibility happens through a voluntary taking of responsibility. I argue that there are certain conditions under which we should take responsibility, and that when we do so, we genuinely are responsible. (shrink)

I argue that riskier killings of innocent people are, other things equal, objectively worse than less risky killings. I ground these views in considerations of disrespect and security. Killing someone more riskily shows greater disrespect for him by more grievously undervaluing his standing and interests, and more seriously undermines his security by exposing a disposition to harm him across all counterfactual scenarios in which the probability of killing an innocent person is that high or less. I argue that the salient (...) probabilities are the agent’s sincere, sane, subjective probabilities, and that this thesis is relevant whether your risk-taking pertains to the probability of killing a person or to the probability that the person you kill is not liable to be killed. I then defend the view’s relevance to intentional killing; show how it differs from an account of blameworthiness; and explain its significance for all-things-considered justification and justification under uncertainty. (shrink)

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. (shrink)

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. (shrink)

Moral responsibility for an action can only be ascribed if it allows inferences about the agent. In cases of negligence, such a connection appears absent, as the agent acts in ignorance of readily accessible relevant facts. Yet, we hold individuals accountable for their negligent actions. The literature presents two approaches to resolve this apparent contradiction: Derivative theories trace negligence back to prior culpable misconduct, while non-derivative theories view negligent actions as expressions of blameworthy attitudes. However, there are cases that neither (...) approach can adequately explain. This paper aims to justify the appropriateness of moral blame even in these stubborn instances. Central to such a justification is the manner in which the ignorance arises. Often, it results from the violation of epistemic duties, which obligate us to maintain awareness of the consequences our actions have for others. This misconduct thus establishes the necessary connection between the agent and the negligent action, providing a basis for attributing responsibility. (shrink)

It is widely agreed that ignorance of fact exculpates, but does moral ignorance exculpate? If so, does it exculpate in the same way as non-moral ignorance? In this paper I will argue that on one family of views explaining exculpating non-moral ignorance also explains exculpating moral ignorance. The view can be loosely stated in the following way: ignorance counts as an excuse only if it is not the result of a failure to meet some applicable reasonable epistemic standard—call this the (...) Reasonable Epistemic Standards Thesis and call views that accept some version of this principle reasonable standards views. I argue that any plausible reasonable standards view ought to allow that moral ignorance exculpates, at least sometimes, and defend such views against the charge that they are susceptible to clear counterexamples. (shrink)

Negligence reminds us that we often do and cause things unawares, occasionally with grave results. Given the lack of foresight and intention, some authors argue that people should not be judged culpable for negligence. This paper offers a contrasting view. It argues that gaining control is itself a fundamental responsibility, with both collective and individual elements. The paper underlines both sides, focussing on how they relate as we ascribe responsibility or culpability. Following the introduction, Section 2 argues that conscious awareness (...) is neither necessary nor sufficient for control. Control is not a property of deliberate choice, so much as a practical achievement. Section 3 stresses the collective aspects of non-negligence: creating knowledge about risks, structuring environments to guard against them, and developing standards of care. Failings in the collective task, rather than lack of individual control, mean it can often be unfair to pin culpability on a single individual. Section 4 suggests that a basic duty of a responsible person is to acknowledge the ways in which we may do more or less than we mean to, often in ways that create risks. It then sketches an approach to culpability as part of a collective exercise: as we take responsibility for standards of care, and for our own and others’ agency. (shrink)

Suppose that you are a doctor and that you prescribed a drug to a patient who died as a result. Suppose further that you could have known about the risks of this drug, and that you are blameworthy for your ignorance. Does the blameworthiness for your ignorance ‘transfer’ to blameworthiness for your ignorant action in this case? Many are inclined accept that such transfer can occur and that blameworthiness for ignorant conduct can be derivative or indirect in this way. In (...) this paper, we motivate a new problem for transfer proponents. Extant accounts cannot satisfactorily distinguish between agents who are blameworthy for their ignorance and their resulting ignorant conduct and agents who are blameworthy for their ignorance but not for their resulting ignorant conduct. We defend a solution that we call the ‘concern constraint’ that clearly distinguishes these cases. Our solution is distinct from the much discussed foreseeability constraint (according to which blameworthiness transfers only when the ignorant action is foreseeable), and it is less restrictive than Holly Smith's quality of will condition (according to which blameworthiness never transfers). We argue that any account of derivative or indirect blameworthiness for ignorant action should take the concern constraint on board. (shrink)

Sometimes ignorance is an excuse. If an agent did not know and could not have known that her action would realize some bad outcome, then it is plausible to maintain that she is not to blame for realizing that outcome, even when the act that leads to this outcome is wrong. This general thought can be brought to bear in the context of climate change insofar as we think (a) that the actions of individual agents play some role in realizing (...) climate harms and (b) that these actions are apt targets for being considered right or wrong. Are agents who are ignorant about climate change and the way their actions contribute to it excused because of their ignorance, or is their ignorance culpable? In this paper I examine these questions from the perspective of recent developments in the theories of responsibility for ignorant action and characterize their verdicts. After developing some objections to existing attempts to explore these questions, I characterize two influential theories of moral responsibility and discuss their implications for three different types of ignorance about climate change. I conclude with some recommendations for how we should react to the face of the theories' conflicting verdicts. The answer to the question posed in the title, then, is: "Well, it's complicated.". (shrink)

Commentators seemingly agree about what negligence is—and how it is contrasted from recklessness. They also appear to concur about whether particular examples (both real and hypothetical) portray negligence. I am less confident about each of these matters. I explore the distinction between recklessness and negligence by examining a type of case that has generated a good deal of critical discussion: those in which a defendant forgets that he has created a substantial and unjustifiable risk of harm. Even in this limited (...) kind of example, no single perspective on blame and liability proves to be defensible. Nonetheless, a discussion of this type of case is helpful because it enables us to appreciate the difficulties in understanding the nature of negligence and the ensuing uncertainty about whether penal liability for negligence is ever warranted. (shrink)

A longstanding puzzle about moral responsibility for negligence arises from three plausible yet jointly inconsistent theses: (i) an agent can, in certain circumstances, be morally responsible for some outcome O, even if her behavior with respect to O is negligent (i.e., even if she never adverted to the possibility that the behavior might result in O), (ii) an agent can be morally responsible for O only if she has some control over O, (iii) if an agent acts negligently with respect (...) to O, then she has no control over O. This paper is in two parts. First, I argue that reasons-responsiveness models of moral responsibility can be applied naturally to negligence scenarios; indeed, agents are intuitively responsible for the outcomes of their negligent behavior just when they meet the conditions for responsibility given by the best reason-responsiveness theories. Second, if the reasons-responsiveness conditions are applicable to negligence scenarios then one of two things follows: either agents can have direct control over outcomes they never adverted to, or reasons-responsiveness is not a condition of control but of something else connected to moral responsibility. Each possibility would be important in its own right—and each can solve the negligence puzzle. (shrink)

My aim in this paper is to defend negligence as a legitimate basis for moral and criminal culpability. In so doing, I also hope to demonstrate how philosophical and jurisprudential perspectives on responsibility can mutually inform each other. While much of the paper focuses on criminal negligence, my aim is to show how attention to certain doctrines and concepts in criminal law can shed light on our understanding of moral culpability including culpability for negligence. It is often taken to be (...) a fundamental principle of criminal law that an act cannot be guilty unless it is accompanied by a culpable state of mind or mens rea. This has led to scepticism regarding negligence as a legitimate basis for desert-based criminal sanction because it is not clear that negligence picks out any mental state at all, much less a culpable one. In this paper I articulate and defend a unified account of moral and criminal culpability that rejects the standard view of mens rea that underlies negligence-skepticism. Specifically, I hold that the mens rea element of a crime does not function to inculpate, as is standardly held, but to partly determine the description under which an action counts as wrongful. While I agree that we should be especially cautious about criminalizing negligence, the relevant question, on my view, is not whether a given mens is sufficiently culpable but whether the mens-cum-actus is sufficiently wrongful to warrant the attention of criminal justice. (shrink)