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Review Essay

Unconscious negligence and responsibility

1. Introduction

‘Agency, Negligence and Responsibility’ is a collection of essays edited by Veronica Rodriguez-Blanco and George Pavlakos on the fascinating topic of negligence. The collection contains twelve papers from philosophers and lawyers and aims to explore the overlapping influence and interdependence of the two disciplines. Negligence is the focus of much attention in contemporary scholarship but Rodriguez-Blanco and Pavlakos posit that a real conversation between philosophers and lawyers could help make existing theories more precise, frame answers on what is unknown and illuminate new lines of inquiry.

The collection is rich and packed with interesting arguments making good on the initial claim that ‘negligence is fertile territory for exploring the complexity of the role of knowledge, evaluation, character, practical reason and responsibility in our actions.’Footnote1

Negligence has intriguing features. At first glance, the negligent agent has no control over her action. A false belief, inattention or forgetfulness usually plays a key role in the reason she adopts her behaviour. Moreover, the negligent agent does not recognise, in terms of awareness, the moral dimension of what she is doing. Nor is she aware that she ought to do something else at the time of her action. In other words, she sees her action as trivial.Footnote2 Still, we intuitively qualify the negligent agent’s action as wrongful and blame her for it. At the same time, we have the natural intuition that some control and awareness are necessary for moral blame and responsibility.

The difficulty arises when we try to reconcile these two sets of intuitions. It seems that if we characterise the negligent action as voluntary, we lose the distinction between responsibility for negligence and intentional action. On the other hand, if we describe negligence as involuntary, we seem to lose the agent herself and the importance of her own experience.Footnote3 How are we, then, to set the conceptual space for negligence? More generally, what is negligence? These are the main questions the authors of the collection aim to address from various angles.

The collection is divided into three parts. Part I is about the will and blameworthiness. In chapter 1, Gideon Rosen talks about what he calls ‘pure negligence’ and invites the reader to rethink our moral practice around it. In chapter 2, Erasmus Mayr focuses on omissions. In chapter 3, Gideon Yaffe talks about obliviousness and how understanding its moral value can help make sense of the distinction between negligence and recklessness. In chapter 4, William J. FitzPatrick distinguishes different kinds of negligence and argues that they might not call for a unified account.

Part II of the collection focuses on agency, reasons and inadvertence. In chapter 5, Gary Watson defends the possibility of underivative responsibility and underivative blame for negligence. In chapter 6, George Pavlakos argues that we ought to drop the control condition and explains the agent’s moral responsibility through a reasons framework, where what matters is the agent’s normative relations with others. In chapter 7, Matt King focuses on unconscious evaluative processes and how they may reflect what the agent cares about. In chapter 8, Veronica Rodriguez-Blanco talks about first-person and third-person perspectives on negligence. In chapter 9, Emmanuel Voyiakis focuses on the moral opposability of the negligent agent's failures to others (or conversely how far others can require better behaviours from the agent) in tort liability.

Finally, Part III of the collection sheds light on the significance of action in negligence. In chapter 10, Constantine Sandis talks about the ontology of inaction and doing nothing using a Hegelian perspective. In chapter 11, Elinor Mason focuses on the reasonableness of some mistakes and their link with moral responsibility. In chapter 12, Ben C. Zipursky highlights the importance of collaboration between lawyers and philosophers in understanding the concepts used to assess the normative status of our responses to the conduct of others, including negligence.

I could not possibly do justice to all of the topics developed. I will instead discuss one thread that is woven into many of the chapters: moral responsibility for negligence resulting (exclusively) from false beliefs or ignorance that arise from unconscious cognitive processes. I proceed as follows. First, I recall some of the critical elements around negligence and the variety of situations this word may cover (leading to different kinds of negligence) using the insights in William FitzPatrick’s chapter. I then turn the focus on negligence due to unconscious cognitive processes and look at two strategies to understand moral responsibility in this case: Matt King’s strategy, which revolves around unconscious evaluations; and Gideon Yaffe’s argument, which consists of identifying the values behind obliviousness to distinguish negligence from other phenomena.

As we will see, it is likely that there are different kinds of negligence. The topic of moral responsibility for negligence resulting from false beliefs or ignorance due to unconscious cognitive processes is both challenging and topical. First, because it is far removed from awareness and control, it clashes strongly with available theories of moral responsibility. Moreover, it takes seriously the findings in cognitive sciences that many of our brain activities are unconscious. Finally, it moves toward creating a framework for legal responsibility that can address cases of ignorance and false beliefs due to disinformation, an increasingly significant social and political issue.

2. The puzzles of moral responsibility for negligence

Philosophers have traditionally taken moral responsibility to require that an agent must be in control of what she is doing in order to be responsible for it. It is also often assumed that, to have control, the agent must be aware of what she is doing under a relevant description. Accordingly, an awareness condition is taken to be embedded in the control condition.Footnote4 Thus, in the orthodoxy, one can be morally responsible only for the action(s) one is aware of. I call this view the ‘volitionist thesis.’Footnote5 Under the volitionist thesis, the agent’s awareness is a necessary (but insufficient) condition for blame and must relate not only to the content of the action but also to its consequences and moral valence.Footnote6

When an agent acts out of ignorance or based on a false belief, the person is unaware of these elements. Consequently, the volitionist thesis contends, she cannot be held morally responsible for that relevant action. For this reason, ignorance appears to obviate moral responsibility, and we generally consider the unaware agent to be excused.Footnote7 In negligence, the agent is precisely ignorant of all or some of these elements of her situation, and her action typically appears to her as trivial.Footnote8 Thus, the intuition that negligent agents are blameworthy and morally responsible clashes with the volitionist thesis. This has led some philosophers to be sceptics about responsibility for negligence altogether.Footnote9 Most, however, have tried to reconcile the two sets of intuitions.

To avoid dropping the volitionist conditions for responsibility altogether, the natural way to start is to search for a prior moment where the agent was aware and had necessary control. This strategy gives rise to a group of theories called ‘tracing views,’ where the focus is on such an earlier awareness-laden mental state. The main alternative strategy to tracing views is to argue that our actions may express some of our values even when we act in ignorance of the relevant features of the situation. The idea behind this alternative strategy is that the agent is generally responsible for her character, as expressed through her actions, even when that action is not fully conscious or controlled. This is so because even unconscious or uncontrolled actions are the results of our evaluative processes. These types of theories are generally referred to as ‘character views.’

As I will see shortly, we might think of responsibility for negligence differently depending on the theory we adopt (tracing or character views). An additional and important complexity in the notion of negligence must however be addressed before we delve into further detail. Given the wide variety of negligence-making features, it is possible that there are different types of negligence rather than only one. These two points lean towards the idea that it is probably not possible to make simple generalisations about moral blame for negligence.Footnote10 FitzPatrick’s chapter ‘Varieties of Negligence and their Significance for Moral Blameworthiness’ proposes an interesting framework to appreciate the different kinds of negligence and the entanglement between types of negligence and theories of moral responsibility.

In his chapter, FitzPatrick suggests distinguishing four categories of negligence: 1) partially advertent negligence (cases where the agent do not take long-term precautions, which are close to recklessness but ‘given the low probability and less blatant disregarding (less salient) of the risk’Footnote11 are better defined as negligent);Footnote12 2) negligence due to ignorance/false beliefs;Footnote13 3) thoughtless or careless ignorance;Footnote14 and 4) negligence due to cognitive equipment failures (for example memory lapses).Footnote15 After categorising these four types of negligence, Fitzpatrick shows that they may bear differently on moral blameworthiness.

Let us consider first partially advertent negligence (category 1). A typical example is a parent who never installs a fire alarm because she keeps postponing the work. FitzPatrick argues that in this case, the agent has a general awareness of long-term risk.Footnote16 This suggests that what the agent does (or omits to do) is not completely outside her voluntary control. Similarly, in cases of thoughtless or careless negligence (category 3), for example in the case of a driver who knows that he should check the mirror and look over his shoulder but who thinks the risk is low and does not bother to do so, the agent’s action or inaction seems again in some sense under his voluntary control. Since both of these types of negligence involve some reasonable control on the part of the agent, FitzPatrick argues that it is reasonable to expect the agent to have done better or exercised more care. For this reason, the agent is blameworthy.Footnote17

In contrast, in cases of negligence due to cognitive equipment failures (category 4), for example, memory lapses which do not involve voluntary failures to exercise care similar to laziness or carelessness, the negligence is the result of the agent being let down by sub-agential processes on which she relies in exercising agency.Footnote18 Because people cannot reasonably be expected to avoid being victims of these failures, FitzPatrick argues that the agent is not blameworthy.Footnote19 Finally, in cases of negligence involving ignorance or false beliefs (category 2), the agent is blameworthy only when the ignorance could reasonably have been expected to have been avoided or remedied given the agent’s circumstances – or so FitzPatrick argues.Footnote20 For example, the parents who do not know that soft pillows and thick bedding constitute a risk for the baby could have avoided their ignorance given the widespread knowledge and advertisement around babies’ cribs and thus are blameworthy. However, the parents who do not immediately see that their baby has developed a rare and severe illness, and who could not reasonably have avoided their ignorance, are not.Footnote21

FitzPatrick concludes that in categories 2 and 4 of types of negligence that he advanced – some cases of negligence due to ignorance or false beliefs and all the cases of negligence due to cognitive equipment failure – it is wrong to think that the agent is blameworthy on the ground that negligence always defeats excuses (and a reduction of all the cases of negligence to the ones that are indeed blameworthy).Footnote22 His framework shows that it is more likely that the agent is not blameworthy.Footnote23

In this paper, I am interested in these two categories of negligence, which together correspond to what I referred to above as cases of unconscious negligence. As we have just seen, FitzPatrick rules out moral responsibility in these cases because he considers that an agent is blameworthy only when it was reasonable to expect her to know better under her circumstances.Footnote24 What FitzPatrick really does is look for an earlier moment of control and awareness where a form of voluntarism can be attributed to the agent. In other words, he adopts a tracing account of moral responsibility in which blame and moral responsibility is traced to an earlier culpable mental state which is itself vicious. Such culpable mental states are present in partially advertent negligence where the agent fails to take prudent long-term safety precautions despite a general awareness of the risk. In cases of thoughtless or careless negligence, what is involved is a lack of thought or care where it ought to have occurred due to occasional laziness, laxness, or habitual carelessness. Since no initial culpable mental state appears to be present in the case of negligence due to unconscious cognitive processes, and in some cases of ignorance and false beliefs, it is logically correct, under this view, to conclude that the agent in such circumstances is not morally responsible.

However, the tracing strategy constitutes merely one side of the debate. Character views, the second type of strategy (theory) for explaining moral responsibility, precisely propose to bypass the control and awareness conditions and attribute blame to the agent in certain circumstances due to the agent's character. According to character views, in some cases, control and awareness over ignorance or mental processes are not necessary for blame and ascriptions of moral responsibility. Could we get the agents of categories 2 and 4 under character views?

This is the question I will try to answer in the rest of the review. In the next section, I explore the basis of character views and specifically of quality of will views. I then discuss Matt King and Gideon Yaffe’s chapters, where both suggest using a quality of will view to explain why some of the negligent agents are morally responsible even if they did not control their mental states leading to their negligence.

3. Quality of will views of moral responsibility

Character views of moral responsibility are based on the idea that moral responsibility depends on the manifestation of the person’s true self, sensitivity to judgment, or character expressiveness. They contend that a subset of attitudes in a person’s psychology is fundamental to her practical identity. This subset constitutes the person’s true self and belongs to her in a distinctive way that carries significance for her agency and moral responsibility. The relevant subset of attitudes varies from theory to theory, but they share the idea that moral responsibility requires the expression of one’s fundamental practical self in action, rather than control over one’s action.Footnote25

The dominant thread of character views is the quality of will strategy. In general, quality of will strategies contends that what is wrong in wrongdoing is that the agent expresses a lack of moral engagement. We may call it a ‘defective will.’ The idea is that responsibility practices are structured by an interest in the will of the agent as expressed through our actions and attitudes.Footnote26 When we blame the agent, our blame targets her defective will. The term ‘will’ refers to the everyday notion of the motivations that lead to action.Footnote27 Thus, saying that what matters for moral responsibility is the quality of the will of the agent means focussing on how the agent was motivated.Footnote28 These motivations may include judgements or evaluations, as well as appraisals.

Since under quality of will theories control is unnecessary for moral responsibility, they are in stark contrast to tracing views. Moreover the lack of moral concern that underlies quality of will views can be instantiated not only in actions but also in attitudes.Footnote29 According to quality of will philosophers, when we criticise someone for an attitude, we are generally not responding to some facts about either the origin of that attitude in the person’s voluntary choices, or the susceptibility of the attitude to influence the person’s future voluntary choices. Instead, we are responding to the content of that attitude and consider the agent to be directly morally responsible for.Footnote30

For example, fear often involves a judgement that something is dangerous or threatening; resentment involves a judgement that one has been wronged; the desire to do something involves a judgement that this thing is good.Footnote31 Non-intentional mental states such as what we notice and neglect, what does and does not occur to us, and what we see as relevant in our practical deliberations, can also reflect our judgements, evaluative commitments, and appraisals.Footnote32 Indeed, quality of will philosophers usually think that there is at least a rational connection between these unreflective patterns of awareness and what we care about or regard as important or significant.Footnote33

Finally, quality of will philosophers drop the reflexivity requirement for moral responsibility. That is, the agent does not need to be self-conscious of her will, and the will can be defective without the agent being conscious of what she is doing. In other words, it is not required that the agent understands her own behaviour,Footnote34 and she can be blameworthy for actions that stem from her unconscious motivations. Therefore, departing from control and reflexivity, the quality of will of will strategy seems a promising strategy to account for the agent's moral responsibility in case of negligent actions due to unconscious processes.

In their chapters, Matt King and Gideon Yaffe both propose variants of quality of will views. I will address each argument successively.

4. Matt King’s argument on unconscious evaluative processes

In his chapter ‘The Boundaries of Negligence,’ Matt King focuses on the extent to which advertence signifies the engagement of our agential capacities and on how much that is relevant in paradigmatic cases of responsible agency as well as the consequences for culpable negligence. His idea is that culpable negligence is best understood as a positive mental process where the agent neglects something – does not give it its due consideration – albeit an unconscious one.Footnote35 This mental process, which involves agential capacities, is different from a pure form of inadvertence, explaining why the negligent agent is culpable.

King starts from the quality of will theories’ point that culpability is grounded in the lack of care of the agent for the interests of others. His idea is that care involves properly prioritising the relevant considerations at play and responding accordingly.Footnote36 In contrast, insufficient care in the treatment of information can lead to inadequate attention and thus to wrongful actions. In this case, the agent’s wrongful action reflects this deficient evaluation. In other words, what an agent attends to is a product of her evaluative process, and this evaluation reflects her priorities. When the agent fails to make an adequate evaluation of her environment, it demonstrates that she did not care sufficiently about the relevant considerations at play and, with that, the interests of others.

Then, King investigates how insufficient care can be manifested in inadvertence. To do so, he looks more closely at the evaluative processes that cause the agent to engage in negligent wrongful conduct. Usually, he says, we assume that an agent is morally responsible only when she adverts what she is doing because only then she engages her agential capacities. However, our evaluation of the relevant information in our surrounding environment typically works via unconscious processes assessing contents relating to our environment against our current activity and promoting them into conscious attention.Footnote37 This opens the possibility that we can be aware of things that are not attended to consciously and that there may be agential capacities outside of attention.Footnote38 Moreover, there is nothing mysterious in this since it is the mechanism that allows us to navigate the world without constant conscious attention to details successfully.

To support his argument, King uses distinctions from cognitive psychology according to which we treat information based on two types of processes: a top-down attentional network and a bottom-up relevance network.Footnote39 These distinctions are more or less equivalent to the well-accepted Type 1 and Type 2 processing. The point is that when we are engaged in an attentive activity, our top-down conscious network helps keep our attention directed at the task at hand and actively suppresses other stimuli to avoid turning our focus away or otherwise frustrating our actions.Footnote40 At the same time, our bottom-up unconscious network monitors the surrounding environment and continually assesses its relevance with the help of memories and other internal contents. Footnote41

Based on these specifications, King is then able to distinguish between two types of inadvertent actions.Footnote42 In the first type, the agent fails to be aware of some risks because the relevant content was never cued. For example, her eyes never looked in the right direction. He calls this ‘pure inadvertence.’ In the second type, the relevant content is present in the person's mind, but the agent fails to be aware because her evaluative processes suppress that content in favour of her current activities.Footnote43 This second group of agents shows insufficient care regarding the risk.Footnote44 In these cases, indeed, the agents have the relevant information, but their top-down attentional network suppresses it, showing that they do not prioritise things adequately. This is (culpable) negligence.Footnote45

To sum up, in King’s view, moral responsibility for inadvertent actions targets the evaluation of whether a risk is worth redirecting one’s attention to, thus what the person cares about. This can happen outside of attention (conscious awareness) but remains guided by the agent’s mental processes.

While the interaction between moral philosophy and cognitive sciences (and how the brain functions) is extremely interesting, I see some difficulties with the argument. First, it seems that King’s strategy amounts to identifying a form of control on the agent's part, albeit unconscious control. In his theory, in the case of negligence (that is, the second type of inadvertent action he mentions), an unconscious evaluative process makes the agent blind to risk. What the agent seems to be doing is suspecting albeit unconsciously the relevance of the content and suppressing it, choosing not to do anything further with it. This looks very similar to wilful blindness or strategic ignorance, which can be defined (in a broad sense) as cases where the agent has a suspicion but chooses not to investigate further to remain in the dark.Footnote46

Put differently, on King’s account, the negligent agent and the wilfully blind seem to do the same thing. Is it then that King thinks that negligence collapses with wilful blindness or would he still distinguish the two notions? And, since we often assume that wilful blindness is morally worse than negligence, what is the impact of King’s view on moral responsibility? Perhaps, King has in mind that what makes the difference is that one is a conscious phenomenon and the other is unconscious – wilful blindness is when the agent consciously decides to remain in the dark whereas negligence is when the agent unconsciously does so. However, this is not an evident point.

Second, the extent to which the person really has any control over her unconscious processes and whether these processes tell something about what the agent really cares about is less clear than is implied. Take the example of a mother who is self-deceived about her daughter’s anorexia and consequently fails to take her to the doctor. Assume that she is self-deceived about her daughter’s anorexia because she has a belief that good mothers do not raise children with eating disorders, which conflicts with her strong commitment to being a good mother. Other than in this specific situation, she indeed is an outstanding mother. It is not clear that the mother’s self-deception says anything about what she cares about deep down. Rather, it may only be that she fails by her own moral standards. It may also constitute a tragic case in which she becomes a bad mother because of her commitment to being a good mother, and she is unaware of that. In these circumstances, it seems not accurate to conclude that such a mother has a defective will because her actions and inactions reveal insufficient care.

Even if we do not agree that the mother has a good underlying will, cases such as those of the mother show that there is a tension between whether certain actions are best analysed in them being alien or, on the contrary, honouring the underlying values of the agent. The whole point of self-deception is exactly for the person to avoid doing things against her underlying values. So, the person distorts her beliefs, in order to make everything look coherent.Footnote47 Based on that, is self-deception in line with the agent’s underlying values? The answer is both yes and no. In a sense yes, as it is exactly because the person does not want to give up on those underlying values. To such that extent, it honours her underlying values. In a sense no, because it is the person telling lies in order to get around the requirement. To that extent, what more subversive attitude against the underlying values could there be than to deliberately get around it?

More generally, some philosophers have argued that it is not clear whether people in the grip of biases (for example, those embedded in a sexist conceptual framework since childhood) can express defective will in their situations.Footnote48 According to these philosophers, such behaviours show a flaw in the nature of the person’s agency rather than a lack of care on her part. There are also more mundane cases of bad actions in which one can question the presence of a defective will. When we make mistakes in good faith, or when we forget things we care a lot about, these do not seem to betray a defective will. Insisting that all these cases indicate carelessness may show an over-readiness to attribute a Freudian slip rather than an accurate assessment of the situation.

In addition, in certain situations, unconscious processes that manifest what King treats as a lack of care may sometimes be good for the agent herself.Footnote49 In these cases, good moral values (being good for the agent herself) concur with the presumed lack of care. Return to cases of self-deception and consider this time a cancer patient who believes strongly that she will live a long life despite an extremely bad prognosis. The belief is false but helps her to fight against the deadly illness (then she might, based on this false belief, take a wrongful action). Two sets of values are in opposition: on the one hand, the self-deceived cancer patient abuses the value of truth but, on the other hand, she is doing so because it is good for her and might save her. It is plausible that there are similar conflicting values behind most of our actions. If so, defective will framework is an oversimplistic reduction of what is happening inside our minds.

Finally, I wonder whether King’s theory could be applicable in practice. How do we know what happens below the agent’s consciousness? King concedes that it may be difficult to discriminate cases where the person showed a lack of care relevant for her negligent action.Footnote50 Still, he argues that it is not a problem for his theory specifically because it is similarly challenging to know what is happening inside the conscious thoughts of the wrongdoer.Footnote51 This, to me, seems to be an argument against quality of will views in general rather than a defence of his theory, and King puts his finger on a real concern. Cognitive sciences evidence that human minds are messier and much less transparent than we have long supposed. It becomes overwhelmingly unclear that we can ever be sure of our motivations,Footnote52 let alone the motivations of others.Footnote53 Could this be a reason to find another way to ground moral responsibility altogether, more objective than subjective? For that, we may want to ask whether there are more transparent, more available criteria that we might use to attribute blame and moral responsibility.

5. Gideon Yaffe’s argument on obliviousness

Gideon Yaffe, in his chapter ‘How Could You?’ The Moral Import of Obliviousness,’ is concerned with what a negligent act reveals about a person despite her being unaware of morally relevant facts. He takes as starting point the question of why the negligent agent, who does not notice the risk and thus is, he says, ‘oblivious,’ is less culpable than the person aware of the risk who commits the wrong. The oblivious person seems to violate two norms, an epistemic norm and a norm of behaviour, whereas the aware person would only violate one norm, the norm of conduct.Footnote54 Based on this, both agents do not care enough about other people, Yaffe says, but the oblivious person seems to care about others’ interests less than the aware does.Footnote55 In turn, the oblivious person’s will seems more defective than the aware person’s.

So why do we blame the oblivious person less? Yaffe’s argument comprises three moves. In the first move, Yaffe tries to show that obliviousness can be the effect of a virtuous disposition. He argues that in personal relationships, we seek the company of people who are unable to engage in some forms of wrongdoing since this will make for better relationships. This is shown in the rebuke ‘how could you’, where it is apparent that part of what is morally problematic when the agent does something wrongful is the agent’s possession of the ability to engage in the wrongful act.

We want the people with whom we want to engage in personal relationships have a deliberative disposition: they treat wrongful conduct as ‘so ineligible as never even to deliberate about.’Footnote56 This is possible when the agents are ‘disabled by their consciences’Footnote57 to even think of committing a wrong.Footnote58 This is valuable, Yaffe argues, mainly because it makes intimacy safe and frees people to act without taking into consideration that they might be wronged.Footnote59 Since our deliberative processes are limited, not having to think of some things, such as that people around us may wrong us, constitutes a significant advantage.Footnote60 Based on this, Yaffe concludes that in personal relationships, obliviousness, understood as the exclusion of wrongful conduct from the menu of potential actions (by the agent), has positive moral value.Footnote61

In a second move, Yaffe recognises that we cannot intuitively require from strangers that their consciences disable them from wronging us in all situations.Footnote62 In most circumstances, that strangers do not engage in wrongful action towards us for more pragmatic reasons, like fear of moral or legal repercussions, is sufficient.Footnote63 In other words, what we require from strangers is not equivalent to what we require in our personal relationships. But, Yaffe says, there may be specific contexts operating as exceptions to this rule in which we demand even to strangers not to place the potential wrongful conduct on the deliberative scale.Footnote64 This should be the case at least when deliberation could itself cause wrongdoing.Footnote65 To put it differently, we may demand from strangers that they do not deliberate when deliberation distracts them in a way that can cause a wrong. It is the case in large and coordinated group activities, for example driving.Footnote66

In large and coordinated group activities indeed, participants play their parts less well if they are consciously aware of potential features of their acts that might make these acts wrong.Footnote67 If they take the time to deliberate about what to do, due to the speed at which we want them to act, they often perform not well or even constitute a danger to the rest of the people (think of a driver who takes time to consider whether he should stop or not at a stop sign).Footnote68 Yaffe concludes that in these situations, just like in personal relationships, being unaware of the risks gets one closer to playing one’s assigned or expected role in the activity.Footnote69

Yaffe then applies the observations from his first and second moves to negligence. He argues that the positive moral value of obliviousness explains why an oblivious person is less blameworthy than someone who commits a wrong while aware of the risks. The oblivious person has engaged in wrongdoing, but she manifested a type of unawareness which is often valuable to others, making her a better person than the aware.Footnote70 Moreover, although the oblivious person has engaged in wrongdoing, she remains fit for many forms of association with other people and joint activities where we value such obliviousness.Footnote71 In contrast, people who are aware of the potential harm, deliberate about it, and choose to take the risk show that they are people with whom these large group activities as well as more personal relationships are impossible.Footnote72

To illustrate this with an example, if it does not cross the mind of an agent to say something hurtful to her partner, this form of blindness is generally a good thing because it enables a form of intimacy that we want in our personal relationships. The downside is that this person may overlook that she could say something that hurts her partner. In these cases, her conduct reflects a good disposition. The problem, according to Yaffe, is merely that this good disposition is present in excess, turning it into a vice. Still, this is less bad than knowingly harming someone, which reflects only a vice.Footnote73

Finally, Yaffe concludes that his argument supports the intuition in criminal law that criminal liability should be reserved for the aware person. In most cases, the oblivious actors should be free to assert that they do not care about the virtue they have in excess.Footnote74 But this also supports exceptions to this rule that there should be culpability for being too oblivious in the specific domains where we want just the right amount of obliviousness.Footnote75 He seems to suggest that for these activities, we need to allow some obliviousness as it allows their smooth running, but we need the right amount of it. Thus, we regulate where it might go wrong. These constitute the domains which attract criminalisation for negligence. In other words, in places where we need a certain amount of obliviousness, we also have culpability for negligence where there is too much of it.Footnote76 This explains, for example, why a core realm for negligence-based liability is road traffic offences.

To sum up, Yaffe argues that obliviousness is a good feature of the agent’s character – a virtue. This feature consists in the disposition to being blind to risk, which is something we want people to have in circumstances where it allows them to act well. In case of culpable negligence, the agent shows that disposition in excess, and virtue in excess are vices, thus she expresses a vice. As the disposition is both good and bad, the agent is blameworthy, but less blameworthy than an agent who did not have that disposition at all.

One powerful element of Yaffe’s perspective is that he underlines the significance of the idea that we want people to have their unconscious minds and automatic behaviours shaped in a way that leads them to act well and arrange culpability around that in certain circumstances. Doing so, he builds a view of negligence which takes into account what might happen below the agent’s consciousness. It is also a refreshing argument as Yaffe takes the debate upside down, starting from the idea that obliviousness may be a value rather than a vice. However, a problem with his argument is that he starts with a common definition of obliviousness – that of not noticing (the risk) – and then seems to slip to a different definition – that of the risk not being a live possibility for the agent. It is not clear which of these two definitions operates when an agent acts negligently. Does the agent act the way she does because she does not take the risk as a possibility or because she just does not notice the risk?

There are difficulties if we adopt either of these definitions. If we take obliviousness to mean ‘not taking the risk to be a live possibility’, we lose the distinction between negligence and wilful blindness. We generally consider that someone is wilfully blind when she looks away from something that she suspects might be relevant to her situation, thus when she closes herself to the risk. For example, someone who accepts a gift from a friend that seems to be a stolen item, without asking about the provenance of the thing she is offered, suspecting that it may be relevant but nonetheless preferring not to investigate further closes herself to the risk. Furthermore, and more fundamentally, it seems simply unlikely that ‘not taking a risk as a possibility’ defines obliviousness.

On the other hand, if we take being oblivious as ‘not noticing the risk,’ obliviousness may not say anything about the person's character. Has the agent not noticed the risk because she is the kind of person who does not notice risks in relevant situations, or did she not notice that risk for a more mundane reason? Let us assume the agent is the kind of person who does not notice the relevant sorts of risk. We could be thinking about two different things: she may be the kind of person who does not notice the risk in general, or she may be the kind of person who does not notice the risk in the situation at hand. Both options are problematic. If we are talking about not noticing the risk in general, we may think that it says something about the kind of person that the agent is. However, I argued in the last section that some people do not notice risks and yet do not show defective wills (some self-deceivers, some biased people), so not noticing risks is not necessarily connected to the quality of the person’s will.

On the other hand, if what we are after is that the person is the kind of person who does not notice the relevant risk in the specific situation, it does not seem to fit cases of culpable negligence. Take the example of a doctor who does not see the risk and administers an inappropriate medicine, believing that it is an appropriate one. It is the kind of situation where we demand vigilance, and we reproach the doctor precisely for not noticing the relevant risk. In addition, assuming that the agent did not notice the risk in the specific situation, there seem to be still a long way to conclude that the agent is the kind of person who would usually act well (and thus be a better person than the aware). At least, this does not seem to be something that we can directly deduce from the act itself. If she acted for more mundane reasons, how do we know that she would have acted well otherwise?

These objections make Yaffe’s account difficult to accept. However, his underlying idea is significant: we want people to act appropriately without them being conscious of it in certain situations. To hold on this idea, is the quality of will framework really needed? What Yaffe illuminates seem to be situations where a relationship of trust is created. We trust people to act adequately to an extent unconsciously in certain circumstances (for example when driving), and what we reproach the person for when they do not is the damage to that relationship of trust. The idea I want to suggest is that blame may not be targeting the person’s character in Yaffe’s view, but rather the fact that the trust relationship is damaged. Trust creates some expectations, and in case of negligence, they are not met. If that is true, moral responsibility could be grounded in a more externalist element and akin to role responsibility.

In conclusion, Matt King’s view and Gideon Yaffe’s framework are very innovative contributions. King tries and go more in-depth into the realms of our brain processes and Yaffe proposes to turn the debate completely upside down in a very refreshing way. Moreover, they both propose frameworks that allow judgment of blame in some cases of unconscious negligence, which is a topical issue. I raised some objections to their views; however, I am sure that they would have many responses to offer. Finally, both contributions ultimately led me to suggest that leaning towards a more external account of moral responsibility may provide some solutions to some objections. This would be an interesting topic to investigate further.

For other novel proposals on other topics in negligence, more established views by renowned scholars, as well as in-depth debates between competitors, I recommend (highly) opening the book and reading each of its excellent chapters.

Acknowledgements

I am grateful to my supervisor Professor Richard Holton for the valuable discussions on the topic and for his helpful comments on the draft article. I am also grateful to my advisor Professor Findlay Stark for his help and comments and to my supervisor Professor Antje du Bois-Pedain for her encouragement.

Disclosure statement

No potential conflict of interest was reported by the author(s).

Notes

1 Veronica Rodriguez-Blanco and George Pavlakos, ‘Introduction’ in Veronica Rodriguez-Blanco and George Pavlakos (eds), Agency, Negligence and Responsibility (CUP 2021) 4.

2 Rodriguez-Blanco and Pavlakos (1) 2.

3 ibid 2.

4 Elinor Mason, ‘Respecting each other and taking responsibility for our biases’ in Katrina Hutchison, Catriona Mackenzie, and Marina Oshana (eds), Social Dimensions of Moral Responsibility (New York, 2018; online edn, Oxford Academic, 19 Apr. 2018) 164.

5 Mason (4) 164.

6 Fernando Rudy-Hiller, ‘The Epistemic Condition for Moral Responsibility’ [Winter 2022 Edition] The Stanford Encyclopedia of Philosophy, Edward N. Zalta & Uri Nodelman (eds.) <https://plato.stanford.edu/archives/win2022/entries/moral-responsibility-epistemic/>.

7 Rudy-Hiller (6).

8 Rodriguez-Blanco and Pavlakos (1) 2.

9 For example, Larry Alexander and Kimberly Kessler Ferzan, Crime and Culpability: A Theory of Criminal Law (CUP 2009); Michael S Moore, Heidi M Hurd, ‘Punishing the Awkward, the Stupid, the Weak, and the Selfish: The Culpability of Negligence’ (2011) 5(2) Criminal Law and Philosophy 147.

10 William J FitzPatrick, ‘Varieties of Negligence and Complications for Moral Blameworthiness’ in Veronica Rodriguez-Blanco and George Pavlakos (eds), Agency, Negligence and Responsibility (CUP 2021) 88.

11 FitzPatrick (10) 79 and reference cited.

12 Ibid 79–80.

13 Ibid 80–84.

14 ibid 84–85.

15 ibid 85–87.

16 ibid 85.

17 ibid 89, 93.

18 ibid 94.

19 ibid 94.

20 ibid 91–92.

21 Presumably, reasonableness might always enter this equation. This is because the parents could, presumably, have learned about the rare illness. Presumably they can read, have the mental capacity to learn how to interpret the relevant data. However, FitzPatrick does not treat this issue.

22 ibid 96.

23 ibid 88.

24 ibid 88.

25 Thus, a broad range of views may be classified into this category of views; for example, Susan Wolf, Harry Frankfurt, Watson, Tim Scanlon, Nomy Arpaly, Angela Smith, and George Sher’s views are all considered to be proponents of deep-self views.

26 Rudy-Hiller (6).

27 Mason (4) 164.

28 ibid 164.

29 Angela Smith, ‘Responsibility for Attitudes: Activity and Passivity in Mental Life’ [2005] Ethics 236, 251.

30 Smith (29) 251.

31 ibid 253.

32 ibid 242–45.

33 ibid 251.

34 Elinor Mason, Ways to be Blameworthy: Rightness, Wrongness, and Responsibility (OUP 2019) 84.

35 Matt King, ‘The Boundaries of Negligence’ in Veronica Rodriguez-Blanco and George Pavlakos (eds), Agency, Negligence and Responsibility (CUP 2021) 145, 150.

36 King (35) 140.

37 ibid 146.

38 ibid 147.

39 ibid 146.

40 ibid 146.

41 ibid 146.

42 ibid 153.

43 ibid 153.

44 ibid 153.

45 ibid 153.

46 Eric Funkhouser, Self-Deception (Routledge 2019, from the ‘New Problems of Philosophy’ series, edited by José Luis Bermúdez) 78. In criminal law, the concept of willful ignorance departs from the philosophical definition. It generally refers to the phenomenon in which the defendant has a suspicion about some elements of her action, but intentionally avoids learning the facts.

47 I have developed elsewhere a model of self-deception.

48 Mason (4) 170.

49 Again, in cases of self-deception, it has been argued that from an evolutionary point of view, self-deception may be good for the agent, see Robert Trivers, The Folly of Fools: The Logic of Deceit and Self-Deception in Human life (Basic Books 2011), who argues that self-deception helps the agent to deceive other which and deceiving others is an evolutionary feature that we find everywhere in nature.

50 King (35) 152.

51 ibid 152.

52 It seems that we often rationalise our motivations afterwards, but it is unclear that we are aware of them at the time we act, see John M. Doris, Talking to Our Selves, Reflection, Ignorance and Agency (OUP 2015).

53 This is an important point regarding the hope that philosophers could help lawyers.

54 Gideon Yaffe, ‘“How Could You?” The Moral Import of Obliviousness’ in Veronica Rodriguez-Blanco and George Pavlakos (eds), Agency, Negligence and Responsibility (CUP 2021) 59.

55 Yaffe (53) 60.

56 ibid 61.

57 ibid 61.

58 ibid 62.

59 ibid 63.

60 ibid 67.

61 ibid 67.

62 ibid 67.

63 ibid 67.

64 ibid 67.

65 ibid 67.

66 ibid 68.

67 ibid 67–68.

68 ibid 68.

69 ibid 69.

70 ibid 70.

71 ibid 61.

72 For example, we would presumably not trust an intentional run driver.

73 Yaffe (53) 70.

74 ibid 73.

75 ibid 73.

76 ibid 74.