I explore the question of when an agent is derivatively, rather than directly, culpable for an undesirable outcome. The undesirable outcome might be a harmful incompetent or unwitting act, or it might be a harmful event. By examining various cases, I develop a sophisticated account of indirect culpability that is neutral about controversies regarding normative ethical issues and the condition on direct culpability.

The problem of feeling guilty about a pregnancy loss is suggested to be primarily a moral matter and not a medical or psychological one. Two standard approaches to women who blame themselves for a loss are first introduced, characterised as either psychologistic or deterministic. Both these approaches are shown to underdetermine the autonomy of the mother by depending on the notion that the mother is not culpable for the loss if she "could not have acted otherwise". The inability to act (...) otherwise is explained as not being as strong a determinant of culpability as it may seem at first. Instead, people’s culpability for a bad turn of events implies strongly that they have acted for the wrong reasons, which is probably not true in the case of women who have experienced a loss of pregnancy. The practical conclusion of this paper is that women who feel a sense of guilt in the wake of their loss have a good reason to reject both the psychologistic and the deterministic approaches to their guilt—that they are justified in feeling upset about what has gone wrong, even responsible for the life of the child, but are not culpable for the unfortunate turn of events. (shrink)

The "conservative" holds that mental disorder exculpates only if it is evidence of a standard excuse or justification, i.e., one that a mentally "normal" person could have. The Liberal holds that mental disorder sometimes exculpates in itself. I argue that moral culpability in the case of mental disorder is often moot, and that the real issue is what a court should be allowed to do with such individuals. This undermines the idea that culpability is a necessary condition for (...) sentencing, but we already have that in cases of strict liability, and there seems to be no viable alternative in any case. (shrink)

In this article, I examine Michele Moody-Adams’ critique of the ‘inability thesis’, according to which some cultures make the resources for criticizing injustice ‘unavailable’ to their members. I investigate Moody-Adams’ alternative ‘affected ignorance’ thesis. Using the example of slavery in ancient Greece, I consider two potential candidates for affected ignorance which involve, respectively, ‘unawareness’ and ‘mistaken moral weighing’; in neither, I hold, may one ascribe culpability to those involved.

I argue that culpable ignorance can be irreducibly collective. In some cases, it is not fair to expect any individual to have avoided her ignorance of some fact, but it is fair to expect the agents together to have avoided their ignorance of that fact. Hence, no agent is individually culpable for her ignorance, but they are culpable for their ignorance together. This provides us with good reason to think that any group that is culpably ignorant in this irreducibly collective (...) sense is non-distributively collectively responsible for subsequent unwitting acts and consequences. (shrink)

Courts commonly allow willful ignorance to satisfy the knowledge element of a crime. The traditional rationale for this doctrine is that willfully ignorant misconduct is just as culpable as knowing misconduct. But it is not obvious that this “equal culpability thesis” holds across the board. Is it true in all cases of willful ignorance or only some? This is the question I investigate here. -/- Specifically, I argue against several common versions of the equal culpability thesis before defending (...) my own restricted version. First, I argue that the broadest version of the thesis, adopted by many courts, is overinclusive. Then I argue against several restricted versions of the thesis offered by legal theorists including Doug Husak, David Luban, and Deborah Hellman. My own account, by contrast, is premised on a duty of reasonable investigation. If my account is on the right track, the widely employed willful ignorance doctrine stands in need of reform. (shrink)

In this paper, I respond to the following argument which several authors have presented. If we are culpable for some action, we act either from akrasia or from culpable ignorance. However, akrasia is highly exceptional and it turns out that tracing culpable ignorance leads to a vicious regress. Hence, we are hardly ever culpable for our actions. I argue that the argument fails. Cases of akrasia may not be that rare when it comes to epistemic activities such as evidence gathering (...) and working on our intellectual virtues and vices. Moreover, particular cases of akrasia may be rare, but they are not exceptional when we consider chains of actions. Finally and most importantly, we can be culpable for our actions even if we do not act from akrasia or from culpable ignorance, namely in virtue of our unactivated dispositional beliefs. (shrink)

My paper has two aims: to underscore the importance of differently time-indexed ‘ought implies can’ principles; and to apply this to the culpable inability problem. Sometimes we make ourselves unable to do what we ought, but in those cases, we may still fail to do what we ought. This is taken to be a serious problem for synchronic ‘ought implies can’ principles, with a simultaneous ‘ought’ and ‘can’. Some take it to support diachronic ‘ought implies can’, with a potentially temporally (...) distinct ‘ought’ and ‘can’. I will argue that this problem is not avoided by diachronic ‘ought implies can’. (shrink)

The question of when a person is culpable for taking an unjustified risk of harm has long been controversial in Anglo-American criminal law doctrine and theory. This survey of the approaches adopted in England and Wales, Canada, Australia, the United States, New Zealand and Scotland argues that they are converging, to differing extents, around a 'Standard Account' of culpable unjustified risk-taking. This Standard Account distinguishes between awareness-based culpability and inadvertence-based culpability for unjustified risk-taking. With reference to criminal law (...) theory and philosophical literature, the author argues that, when explained appropriately, the Standard Account is defensible and practical. Defending the Standard Account involves analysing in depth a number of controversial matters, including the meaning of advertence/awareness, the role of attitudes such as indifference in culpable risk-taking, and the question of whether negligence should be used in the criminal law. (shrink)

Some contemporary states are morally culpable for historically distant wrongs. But which states for which wrongs? The answer is not obvious, due to secessions, unions, and the formation of new states in the time since the wrongs occurred. This paper develops a framework for answering the question. The argument begins by outlining a picture of states’ agency on which states’ culpability is distinct from the culpability of states’ members. It then outlines, and rejects, a plausible-seeming answer to our (...) question: that culpability transmits from a past state’s action to a present state just if the two states share a numerical identity, for example as determined by international law. I advocate a different answer: culpability transmits from a past action to a present state to the extent that the present state ‘descends from’ the aspects of the past state that underpinned the past action. One potential upshot is that some present-day settler-colonies (such as Australia) are culpable for the centuries-ago invasion of their lands by European powers—even though these states did not perform these invasions and indeed did not exist at the time. (shrink)

This paper focuses on several issues that arise in Miranda Fricker?s book Epistemic injustice surrounding her claims about our (moral) culpability for perpetrating acts of testimonial injustice. While she makes frequent claims about moral culpability with respect to specific examples, she never addresses the issue in its full generality, and we are left to extrapolate her general view about moral culpability for acts of testimonial injustice from these more restricted and particular claims. Although Fricker never describes testimonial (...) injustice in such terms, I argue that the fundamental wrong done in acts of testimonial injustice is a form of negligence. Once we understand testimonial injustice in this way, it is easier to see when and why we are culpable for perpetrating such injustices. Indeed, explicitly recognizing testimonial injustice as a form of negligence solves several problems for Fricker?s view, which are elucidated briefly along the way. However, construing testimonial injustice as a form of negligence has a cost as well. It highlights the fact that the normative core of Fricker?s view is deontological, rather than virtue-theoretic. Fricker claims to be offering a theory of the virtue of testimonial justice along the model of current virtue theories in epistemology, yet it seems that there is no compelling reason to think of what she has offered as a virtue theory, at least not on the model of virtue theories that one finds in epistemology. This is not to say that her view is any less plausible for not being a virtue theory. But calling it a virtue theory affects how one interprets its various claims, and tends to lead one away from, rather than toward, a proper understanding of the deep deontological nature of her account. (shrink)

I defend the principle that a person is blameworthy for her action only if that action was morally wrong. But what should we say about an agent who does the right thing based on bad motives? I present three types of cases that have these features. In each, I argue, the agent is not culpable for her action; however, she violates the norm of moral responsibility, and thus acts in a morally irresponsible way. This analysis, I show, has several virtues. (...) It also has important theoretical ramifications: it allows for a more nuanced approach to moral luck and paves the way for an unexplored line of defense in favor of a particular norm of moral responsibility. (shrink)

Teza o "neskrivljenom neznanju" je instrument u okviru teorije pravednog rata koja sluzi da se moralno opravda ucesce u ratu za pripadnike one strane koja je porazena; uslovi za neskrivljenost su da su porazeni borci iskreno verovali da brane pravednu stvar i da su takodje iskreno verovali da imaju nekih izgleda da pobede. Bez ovog instrumenta teorija pravednog rata, jedna teorija koja opravdava rat preko pravednog uzroka rata, bi porazenoj strani narocito ako je slabija, morala da unapred pripise krivicu sto (...) je uopste usla u rat. Medjutim, u savremenoj situaciji rasirene kriminalizacije rata sam pojam rata se menja i postaje izuzetno neodredjen. Kako ratovi postaju sve vise i vise "asimetricni", pre svega u snazi sukobljenih strana, cini se da se teorija pravednog rata suocava sa teskocom da u svoje okvire uopste situira "neskrivljeno neznanje", ali to povlaci teskocu te teorije da pokaze da pravda ide sa pobedom, otvarajuci tako pitanje artikulacije pravednog mira. (shrink)

This paper explores types of organisational ignorance and ways in which organisational practices can affect the knowledge we have about the causes and effects of our actions. I will argue that because knowledge and information are not evenly distributed within an organisation, sometimes organisational design alone can create individual ignorance. I will also show that sometimes the act that creates conditions for culpable ignorance takes place at the collective level. This suggests that quality of will of an agent is not (...) necessary to explain culpable ignorance in an organisational setting. (shrink)

A point of contention in recent discussions of the epistemic condition of moral responsibility is whether culpable ignorance must trace to akratic belief mismanagement. Neil Levy has recently defended an akrasia requirement by arguing that only an akratic agent has the capacity rationally to comply with epistemic expectations the violation of which contributes to her ignorance. In this paper I show that Levy’s argument is unsound. It is possible to have the relevant rational capacity in the absence of akrasia. I (...) also argue that the internalist account of rationality that does much of the work in his argument is problematic. (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)

When a person acts from ignorance, he is culpable for his action only if he is culpable for the ignorance from which he acts. The paper defends the view that this principle holds, not just for actions done from ordinary factual ignorance, but also for actions done from moral ignorance. The question is raised whether the principle extends to action done from ignorance about what one has most reason to do. It is tentatively proposed that the principle holds in full (...) generality. (shrink)

This book presents a comprehensive overview of what the criminal law would look like if organised around the principle that those who deserve punishment should receive punishment commensurate with, but no greater than, that which they deserve. Larry Alexander and Kimberly Kessler Ferzan argue that desert is a function of the actor's culpability, and that culpability is a function of the risks of harm to protected interests that the actor believes he is imposing and his reasons for acting (...) in the face of those risks. The authors deny that resultant harms, as well as unperceived risks, affect the actor's desert. They thus reject punishment for inadvertent negligence as well as for intentions or preparatory acts that are not risky. Alexander and Ferzan discuss the reasons for imposing risks that negate or mitigate culpability, the individuation of crimes, and omissions. (shrink)

This paper raises four queries about Simester’s defective engagement with reason account of culpability found in his Fundamentals of Criminal Law: (1) the characterisation of the account in terms of moral ‘vices’; (2) the basis for identifying a vice as a ‘moral’ vice; (3) what is involved in an agent manifesting ‘insufficient care and concern’ for the interests of others; and (4) whether the account is an account of culpability generally, or is instead an account of criminal (...) class='Hi'>culpability, i.e., the type of culpability necessary for criminal conviction. (shrink)

Ethicists and legal theorists have proposed models of corporate culpability that shift the standard of guilt determination from vicarious attribution of individual action and intention to an assessment of culture, policies, as well as organizational action and inaction. This paper briefly reviews four prominent models of corporate culpability, arguing that each makes claims that extend well beyond the limits of existing law. As an alternative to these models, a constructive corporate fault is described that relies on both objective (...) and subjective reasonableness judgments. The paper concludes with a consideration of constructive corporate fault in relation to an Accountability model of corporate liability. (shrink)

This paper seeks to challenge principles of culpability transfer as they appear in both criminal law and moral philosophy. I begin by discussing the legal doctrine of substituted mens rea, focusing on Section 33.1 of Canada’s Criminal Code. I argue that this doctrine violates the principle of contemporaneity, which there are sound philosophical reasons to accept. I then argue that the same reasons apply to tracing accounts of moral responsibility. Finally, drawing on the moral luck literature, I argue that (...) cases of extreme intoxication are better analyzed in terms of harm-causation than culpability-transfer. (shrink)

Ignorance can excuse otherwise blameworthy action, but only if the ignorance itself is blameless. One way to avoid culpable ignorance is to pay attention when epistemic peers disagree. Expressed disagreements place an obligation on the agent to pay attention when an interlocutor disagrees, or risk culpable ignorance for which they might later be found blameworthy. Silence, on the other hand, is typically taken as assent. But in cases of suppressed disagreement, the silenced interlocutor has information that could save the agent (...) from ignorance in scenarios where that ignorance might lead to harmful action, and silence does not actually indicate assent. The problem is further complicated because the agent might not be aware of the fact that a silenced interlocutor has information that could prevent ignorance, and consequent harmful action. In this paper, I provide a new account of excuses from ignorance in situations of suppressed disagreement. I do this in the context of two cases; Kelly’s hypothetical case of the Tyrannical Dictator, and the real-world case of former South African President Thabo Mbeki and his AIDS denialist policies in the late 1990s and early 2000s. (shrink)

In The Age of Culpability, Gideon Yaffe argues that all minors who commit crimes should be treated more leniently by the criminal law than similarly situated adults. This core intuition – that “kid...

Knobe argues in his target article that asymmetries in intentionality judgments can be explained by the view that concepts such as intentionality are suffused with moral considerations. We believe that the “culpable control” model of blame can account both for Knobe's side effect findings and for findings that do not involve side effects.

This paper responds to recent work on moral blame, which has drawn attention to the ambivalent nature of our blaming practices and to the need to ‘civilize’ these practices. It argues that the project of civilizing blame must engage with a further problematic feature of these practices, namely, that they can be implicated in structures of social oppression, and distorted by epistemic and discursive injustice. The paper also aims to show that engaging with this problem raises questions about the Strawsonian (...) equation of moral responsibility with liability to praise or blame. (shrink)

I tackle the difficult problem of specifying how voluntary intoxication affects criminal culpability generally and recklessness in particular. I contend that the problem need not be conceptualized as an instance of actio libera in causa, namely the situation in which persons do something at t1 to culpably create the conditions of their own defense at t2. Instead, I argue that we need only consider intoxicated defendants at t2 in order to justify their punishment. In the course of defending my (...) view, I challenge conventional wisdom about both the nature of recklessness and the effects of intoxicants. I conclude by discussing a possible ground on which involuntary intoxication might be treated differently. (shrink)

In this paper I argue that selective abortion for disability often involves inadequate counselling on the part of reproductive medicine professionals who advise prospective parents. I claim that prenatal disability clinicians often fail in intellectual duty—they are culpably ignorant about intellectual disability. First, I explain why a standard motivation for selective abortion is flawed. Second, I summarize recent research on parent experience with prenatal professionals. Third, I outline the notions of epistemic excellence and deficiency. Fourth, I defend culpable ignorance as (...) the best explanation of inadequate disability counselling. Fifth, I rebut alternative explanations. My focus is pregnancies diagnosed with mild or moderate intellectual disability. (shrink)

In 2009 Larry Alexander and Kimberly Ferzan published Crime and Culpability: A Theory of Criminal Law. The book set out a theory that those who deserve punishment should receive punishment commensurate with, but no greater than, that which they deserve. Reflections on Crime and Culpability: Problems and Puzzles expands on their innovative ideas on the application of punishment in criminal law. Theorists working in criminal law theory presuppose or ignore puzzles that lurk beneath the surface. Now those who (...) wish to examine these topics will have one monograph that combines the disparate puzzles in criminal law through a unified approach to culpability. Along with some suggestions as to how they might resolve the puzzles, Alexander and Ferzan lay out the arguments and analysis so future scholars can engage with questions about our understanding of culpability that very few have addressed. (shrink)

In this paper, I offer a novel account of entrapment. This account suggests that the wrongness of pursuing punishment in cases of entrapment consists of two distinct components, one concerning the culpability of the entrapped defendant and the other concerning the legitimacy of the entrapping state to prosecute crimes that it has effectively created. Distinguishing these two components of entrapment, I explain, helps to clarify the moral issues at stake and to resolve some confusions and debates in existing legal (...) analyses of entrapment. (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)

In order to be properly applied, criminal law must determine what conduct warrants punitive action. Figuring out exactly how one must act to be criminally liable is a difficulty that faces any legal system. In many jurisdictions criminal recklessness is regarded as an important notion for liability. However, recklessness is difficult to define, and attempts at this exercise have been a problem in legal philosophy since the mid-twentieth century, and persist today. This thesis discusses accounts of recklessness with the aim (...) of defining it in a way that overcomes several problems which have arisen in recent legal history. It is widely accepted, as well as prima facie intuitive, that people can be culpable for acts committed recklessly. Despite this, whether or not a state of mind is reckless is difficult to define, let alone define in a way that is not only conceptually sound, but also pragmatically apt. Recklessness occurs when an agent engages in some risky activity, but factors like the agent’s attitude and whether the risk is foreseen have been cited as relevant when ascertaining their recklessness. I discuss some difficulties in legally framing recklessness, before criticising some definitional manoeuvres made by judges and scholars in the past. With some problems in previous accounts noted, I consider the foundations of culpability in general. I suggest that two accounts of culpability – the agency theory and the choice theory – are both plausible, and each correlates to a prominent contemporary position on recklessness. After serious consideration of both positions, I conclude that the position advocated by Antony Duff, which I see as in keeping with the agency theory of culpability, is both more generally useful for criminal law and much more coherent with our everyday practices of blaming and punishing. (shrink)

This chapter critically examines various proposals for liability of a person to defensive harm. Drawing on the idea that there is an important relationship between a person’s liability to be harmed and the enforceable duties that she incurs as a result of posing a threat to others, it demonstrates that no simple account of liability will be successful. As there are many considerations that bear on the duties that a person has, there are many considerations which bear on a person’s (...) liability to be harmed. This general claim is supported through a demonstration both that culpability without causation can ground liability, and that causal contribution without culpability can ground liability. (shrink)

In this article, I try to do two things. First I analyse critically the suggestion that the principles of criminal culpability can be explained by reference to a single, all-encompassing concept, such as “defiance of the law”. I then go on to explain the foundations of criminal culpability by reference to three interlocking theories — the capacity theory, the character theory, and the agency theory. I conclude that even these three theories may not be sufficient to explain the (...) complex structure of culpability, which is shaped as much by shared cultural understanding as by moral theory. (shrink)

In their article, Dylon McChesney & Mathieu Doucet argue that any viable account of the epistemic condition needs to account for the right scope of cases where an agent’s mental disorder results in exculpating ignorance. The authors then argue that this constraint on viability poses a serious problem for George Sher’s account of the epistemic condition, but not for quality of will views. In this discussion note, I do not challenge the viability constraint about mental disorder-based ignorance nor do I (...) challenge McChesney & Doucet’s argument that Sher’s account unjustly blames many cases of disorder-based ignorance. Instead, I argue against their position that quality of will views have the resources to accurately capture the scope of cases where mental disorders lead to exculpating ignorance. I argue that quality of will views fall short because they do not take into consideration the way that a non-culpably acquired difficulty, such as developing a mental disorder in childhood, can make an expectation that the agent avoid the disorder-based ignorance an unreasonably demanding expectation. This shortcoming results in quality of will views unjustly blaming agents for their disorder-based ignorance in some cases where the ignorance i) reflects a poor quality of will, but ii) it would be unreasonable to expect the agent to have avoided the ignorance. (shrink)

Ignorance is often a valid excuse for wrongdoing. But authors such as William FitzPatrick argued that ignorance is culpable if we could have reasonably expected the agent to take action that would have corrected or prevented it, given his capabilities and the opportunities provided by the context, but failed to do so due to vices such as laziness, indifference, disdain, etc. Guilty ignorance is still present in the debate and, in recent times, has become more pressing with the problem of (...) technological responsibility. In this paper, an internalist perspective of culpable ignorance is adopted to analyze a form of culpability distribution in the technological context based on dispositional beliefs. Thus, two types of responsibility are found. By examining the implications of culpable ignorance, we realize that we can respond to the unambiguous idea that an engineer is morally and epistemically responsible for certain facts. (shrink)

This paper focuses on the role of culpability in determining the degree of liability to defensive harm, and asks whether there are any restrictions on when culpability is relevant to liability. A natural first suggestion is that it is only relevant when combined with an actual threat of harm in the situation in which defensive harm becomes salient as a means of protection. The paper begins by considering the question of whether two people are equally liable to defensive (...) harm in a situation if both culpably intend to harm another, but due to circumstances outside the control of the two people only one has a chance of succeeding in causing harm. I argue that there is no difference in liability between the two. I then turn to a kind of slippery slope challenge that accepting this conclusion would lead to a vast over-inclusiveness in those liable to defensive harm, and consider a recent attempt at meeting it that requires that a person’s culpability can only affect liability if it concerns the very situation in which defensive harm is relevant. Finally, I put forward and assess a new way of meeting the challenge that appeals to a particular conception of culpability together with auxiliary theses concerning how culpability can decrease over time, among others. (shrink)

Consider the following argument: (1) Whether, or the degree, persons are morally culpable ultimately depends on the (final) reasons that motivate their actions; (2) The degree to which persons are morally culpable should be a central concern of criminal law; (3) Criminal law in many countries focuses more on the beliefs and intentions of agents and less on their motivating reasons; therefore (4) Criminal law in many countries is unjust and should be revised. The premises of this argument are appealing (...) and widely accepted, yet its conclusion is radical. Therefore, the argument is interesting and important. However, the argument is not entirely clear in several respects, and the attempt to clarify it reveals several significant (although not necessarily decisive) doubts regarding its soundness. In this paper, I examine these doubts as well as a related, more general, lesson concerning normative arguments about the law. (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 criminal law, the mental state of the defendant is a crucial determinant of the grade of crime that the defendant has committed and of whether the conduct is criminal at all. Under the widely accepted modern hierarchy of mental states, an actor is most culpable for causing harm purposely and progressively less culpable for doing so knowingly, recklessly, or negligently. Notably, this hierarchy emphasizes cognitive rather than conative mental states. But this emphasis, I argue, is often unjustified. When we (...) punish and blame for wrongful acts, we should look beyond the cognitive dimensions of the actor’s culpability and should consider affective and volitional dimensions as well, including the actor’s intentions, motives, and attitudes. One promising alternative mental state is the attitude of culpable indifference. However, we must proceed carefully when permitting criminal liability to turn on culpable indifference and similar attitudes, lest we punish vicious or unvirtuous feelings that are no.. (shrink)