This paper presents a series of studies (total N=579) which demonstrate that folk judgments concerning the reasonableness of decisions and actions depend strongly on whether they engender positive or negative consequences. A particular decision is deemed more reasonable in retrospect when it produces beneficial consequences than when it produces harmful consequences, even if the situation in which the decision was taken and the epistemic circumstances of the agent are held fixed across conditions. This finding is worrisome for the law, where (...) the reasonable person standard plays a prominent role. The legal concept of reasonableness is outcome-insensitive: whether the defendant acted in a reasonable fashion or not depends exclusively on her context of action, no matter how things play out. Folk judgments of reasonableness are thus inconsistent with the legal concept of reasonableness. Problematically, in common law jurisdictions, the decision whether a defendant’s behavior was reasonable or not is frequently (though not necessarily) delegated to a lay jury. (shrink)

Should we let personal responsibility for health-related behavior influence the allocation of healthcare resources? In this paper, we clarify what it means to be responsible for an action. We rely on a crucial conceptual distinction between being responsible and holding someone responsible, and show that even though we might be considered responsible and blameworthy for our health-related actions, there could still be well-justified reasons for not considering it reasonable to hold us responsible by giving us lower priority. We transform these (...) philosophical considerations into analytical use first by assessing the general features of health-related actions and the corresponding healthcare needs. Then, we identify clusters of structural features that even adversely affected people cannot reasonably deny constitute actions for which they should be held responsible. We summarize the results in an analytical framework that can be used by decision-makers when considering personal responsibility for health as a criterion for setting priorities. (shrink)

Are our rights—to our bodily integrity, to our possessions, to the goods and services promised us, and so on—matters of fact, or are our rights functions of others’ beliefs about how their acts will affect our rights? The conventional view states that subjective oughts—based on what we believe—determine culpability, whereas objective oughts—based on the facts—determine permissibility. After all, the idea that our beliefs about how our acts would affect others’ rights might affect the contours of those rights themselves appears deeply (...) paradoxical. For how can others’ rights be based on our beliefs when those beliefs have as their objects not themselves but others’ rights? Nonetheless, paradoxical as that position may appear, a strong case can be mounted in its defense, not by focusing on the rights themselves, but by focusing on the acts that imperil those rights. It is the burden of this essay to make a case for the belief-relativity rather than the fact-relativity of rights. (shrink)

Iconoclasts? Who, Us? A Reply to Dolinko Content Type Journal Article Category Original Paper Pages 1-7 DOI 10.1007/s11572-012-9143-3 Authors Larry Alexander, San Diego, CA, USA Kimberly Kessler Ferzan, Camden, NJ, USA Journal Criminal Law and Philosophy Online ISSN 1871-9805 Print ISSN 1871-9791.

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.

This is a draft of my chapter on Negligence for the forthcoming Oxford Handbook in Moral Psychology. It discusses philosophical, psychological, and legal approaches to the attribution of culpability in cases of negligent wrongdoing.

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)

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)

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)

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)

In this paper, we focus on whether and to what extent we judge that people are responsible for the consequences of their forgetfulness. We ran a series of behavioral studies to measure judgments of responsibility for the consequences of forgetfulness. Our results show that we are disposed to hold others responsible for some of their forgetfulness. The level of stress that the forgetful agent is under modulates judgments of responsibility, though the level of care that the agent exhibits toward performing (...) the forgotten action does not. We argue that this result has important implications for a long-running debate about the nature of responsible agency. (shrink)

The article explores the agreements and disagreements between the author and the authors of Responsible Brains on how neuroscience relates to moral responsibility. The agreements are fundamental: neuroscience is not the harbinger of revolutionary revision of our views of when persons are morally responsible for the harms that they cause. The disagreements are in the details of what is needed for neuroscience to be the helper of the moral sciences.

In this response to the review of Moore, Causation and Responsibility, by Larry Alexander and Kimberly Ferzan, previously published in this journal, two issues are discussed. The first is whether causation, counterfactual dependence, moral blame, and culpability, are all scalar properties or relations, that is, matters of more-or-less rather than either-or. The second issue discussed is whether deontological moral obligation is best described as a prohibition against using another as a means, or rather, as a prohibition on an agent strongly (...) causing a prohibited result that was not about to happen anyway while intending to do so. (shrink)

In this reply, I seek to summarize fairly the criticisms advanced by each of my four critics, Jonathan Schaffer, Gideon Yaffe, John Gardner, and Carolina Sartorio. That there is so little overlap either in the aspects of the book on which they focus or in the arguments they advance about those issues has forced me to reply to each of them separately. Schaffer focuses much of his criticisms on my view that absences cannot serve as causal relata and argues that (...) this commits me to the view that double preventions cannot be causal of events such as deaths. I deny that double preventions such as beheadings are not causal, while admitting that other double preventions are not causal but denying that this latter conclusion is unwelcome in its implications. Yaffe criticizes my view that a person substantially causing some harm H is sufficient for that person having performed the activity of H-ing, whereas I affirm that causing H is sufficient for doing the action of H-ing even if it is not sufficient for intentionally H-ing. Gardner takes issue with my “experiential argument” for the relevance of causation to moral blame; he urges that we cannot infer that we are more guilty from either the psychological fact that we feel more guilty or from the moral fact that it is virtuous to feel such heightened guilt, because it is viciously circular: we feel such guilt only because we have already judged that we are more guilty, and it is virtuous to feel such guilt only because we in fact are more guilty. I deny such circularity exists. Sartorio takes issue with my thesis that in omissive overdetermination cases neither omitter is morally responsible for the harm. I trade intuitions with Sartorio about a range of related cases that we each think bears on the issue. (shrink)

© The Author 2018. Published by Oxford University Press on behalf of The Analysis Trust. All rights reserved. For Permissions, please email: [email protected] article is published and distributed under the terms of the Oxford University Press, Standard Journals Publication Model...Philosophy of law was until recently dominated by abstract investigation into the nature of law, a pursuit known as ‘general jurisprudence’. In this way, it resembled a branch of metaphysics or mid-twentieth century philosophy of mind, seeking to uncover the essential properties (...) of a general and multiply realizable phenomenon. Today, philosophers study law with a sharper focus, and with a more specialized lens – that of ethicists, for example, or epistemologists, or philosophers of action.That is not to say there has been a drop in groundbreaking work in general jurisprudence (see, for... (shrink)

We seem to be responsible for our beliefs in a distinctively epistemic way. We often hold each other to account for the beliefs that we hold. We do this by criticising other believers as ‘gullible’ or ‘biased’, and by trying to persuade others to revise their beliefs. But responsibility for belief looks hard to understand because we seem to lack control over our beliefs. In this paper, I argue that we can make progress in our understanding of responsibility for belief (...) by thinking about it in parallel with another kind of responsibility: legal responsibility for criminal negligence. Specifically, I argue that that a popular account of responsibility for belief, which grounds it in belief’s reasons-responsiveness, faces a problem analogous to one faced by H.L.A. Hart’s influential capacity-based account of culpability. This points towards a more promising account of responsibility of belief, though, if we draw on accounts of negligence that improve on Hart’s. Broadly speaking, the account of negligence that improves on Hart’s account grounds culpability in a concern for others’ interests, whereas my account of epistemic responsibility grounds responsibility for belief in a concern for the truth. (shrink)

Imagine a citizen (call her Ellen) engages in conduct the state says is a crime, for example, money laundering. Imagine too that the state of which Ellen is a citizen has decided to make money laundering a crime. Does the state wrong Ellen when it punishes her for money laundering? It depends on what you think about the authority of the criminal law. Most criminal law scholars would probably say that the criminal law as such has no authority. Whatever authority (...) is has depends on how well it adheres to the demands of morality inasmuch as morality is the only authority we have. Thus if morality says that money laundering should not be a crime then the state wrongs Ellen when it punishes her. But if the criminal law as such does have authority, and if in the exercise of its authority the state has decided to make money laundering a crime, then the state does Ellen no wrong when it punishes her. (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)

This paper focuses on the question of whether and, if so, when people can be responsible for their self-deception and its consequences. On Intentionalist accounts, self-deceivers intentionally deceive themselves, and it is easy to see how they can be responsible. On Motivationist accounts, in contrast, self-deception is a motivated, but not intentional, and possibly unconscious process, making it more difficult to see how self-deceivers could be responsible. I argue that a particular Motivationist account, the Desire to Believe account, together with (...) other resources, best explains how there can be culpable self-deception. In the process, I also show how self-deception is a good test case for deciding important questions about the nature of moral responsibility. (shrink)