By In Oxford Studies Discussions, Political Philosophy Comments (15)

“The Moral Neglect of Negligence” by Seana Valentine Shiffrin, with a critical précis by Ekow Yankah

[MOVING TO FRONT, AS SEANA SHIFFRIN IS POSTING REPLIES TO HER COMMENTATORS]

We are excited to host a discussion of Seana Valentine Shiffrin‘s article “The Moral Neglect of Neglicence,” Ch. 8 of Oxford Studies in Political Philosophy Vol.3. Shiffrin’s article is available here, with kind permission from OUP. We expect the article to be available here permanently.

The discussion thread will be open May 2-4 for an initial round of questions and comments, after which Shiffrin will post a set of responses, probably by May 6 or 7. The discussion thread will then immediately open for another couple of days, after which Shiffrin will send a final round of responses.

We are thrilled to kick off the discussion with a critical précis by Ekow Yankah, below. Join us!

Despite our “best efforts,” on most mornings – ok, fine, nearly every morning – my eldest child is late to pre-school. Living in a community where the most sanctified parental norm is signaling overinvestment in a child’s educations at all turns, our failures are met with slight yet meaningful sanction; in our case, the well-earned disapproving and eventually exasperated looks of grade school teachers, surprisingly effective these many decades later.

It is into such quotidian failures, or more precisely, their analogous, that Seana Shiffrin turns her attention in The Moral Neglect of Negligence. The brevity of this précis cannot fully address the many strands woven together; most unfortunately, it constrains the kind words the piece is owed. In brief, Shiffrin’s piece is characteristically excellent. It is wide-ranging, inspecting the under estimation of negligence as a moral fault. Without insisting on the counter-intuitive claim that negligence is necessarily worse than intentional wrong-doing, Shiffrin invites readers to reconsider the reflexive belief that negligence is best understood as a lesser type of wrong. She inspects negligence in various settings – personal failings, political duties, as a cousin of the doctrine of double effect – concluding with legal observations. Focusing on the moral indifference negligence reveals is of course not novel; criminal theorists in particular have highlighted the relevance of the motivating reasons for negligence. But Shiffrin presents a distinctive vision, illustrating negligence is connected to ways one may culpably over or under estimate their agential responsibilities.

Given Shiffrin seeks to rethink the place of negligence, she consciously flattens out distinctions that typically mark out negligence. Her goal is to understand the core, only later testing if a finer grain undermines her analysis. She also sensibly worries that hewing too closely to legal categories imports intuitional baggage, creating resistance born out of familiarity. Perhaps I am guilty of just such conventional inertia. I fear her flattening already submerges distinctions that are important not only in law but in ordinary morality.

Take for example the standard legal definition of negligence as failing to recognize a substantial and unjustified risk that would have occurred to a reasonable person as opposed to recklessness, defined as the conscious disregard of a substantial and unjustified risk. Shiffrin elides the distinction, arguing that negligence need not be inadvertent. But this distinction does not seem to be merely a legal artifact. Rather, it seems to me to recognize an important moral consideration as well.

I worry that some of Shiffrin’s examples rely on the intuitions pumped by our internalization of this distinction. Take one of Shiffrin’s opening examples, Elonis v. United States. Defendant Elonis, in the midst of a divorce, repeatedly published on social media self-described “rap lyrics,” describing horrific violence he fantasized about visiting onto his wife. He explicitly discussed whether posting such content as “therapeutic” poetry shielded him from criminal liability. He also described how any member of the public could blow up his wife’s home without being caught. Critically, he continued to do so even after he was visited by F.B.I agents. The Supreme Court reversed his conviction for making threats across state lines because a lower court allowed for the possibility of punishment if Elonis should have realized he was threatening his wife even if he in fact did not; i.e. if Elonis threatened her negligently. Shiffrin asks us to assume that Elonis is in fact only negligent to highlight that an Elonis who failed to notice the risk his threats posed would suffer from an equally monstrous even if different character failing.

But even recasting Elonis as merely negligent taxes the imagination. Given the striking details, it borders on the impossible to think he, and more importantly, similarly placed persons do not see or at least disregard the risk their behavior threatens. (Indeed, it is striking that Elonis was convicted in a subsequent trial not merely under a standard requiring that he recklessly threated his ex-wife but that a jury found he intentionally threated her.) Considering other situations where others perilously flirted with similar inflammatory language, it is the unshakeable intuition that they intentionally or at very least recklessly disregarded the threat to others shapes my outrage.

I wish not to belabor this point because ultimately, I agree with Shiffrin that the “purely” negligent can be seriously blameworthy in ways that are underappreciated. Further, the “type” of negligence shown, knowing or inadvertent, may shape both the judgment and practical response to the actor but needn’t necessarily mean we find the wrong slighter. Yet I remain uneasy about grouping them. Let me join Shiffrin in considering political negligence, turning my attention to the recent American election. For the overwhelming number of racial minorities and many women, the election of Donald Trump was shocking not because of his policies but his vicious language and his causal contempt. Trump frightened many who understood his language both symbolically excluded people of color and loosened real world restraints against discriminatory language and acts. Still, I when encountering Trump supporters, I found two distinct types. Some could be described as reckless as to Trump’s racism; that is, they professed that his words were problematic, even dangerous but thought some combination of “refreshing honesty” or political gains were worth ignoring them. Another group were what we might label “classically negligent;” they simply were unable to see Trump’s racists words at all. I don’t mean that they disagreed that Trump’s words were racist. When confronted with them, they would stammer, shift and struggle to explain them away. This second group managed somehow to consistently “miss” coverage of Trump’s words, were incurious when they would become aware of them and quickly push them away without weighing their import.

I share with Shiffrin deep frustration with those we could describe as classically negligent. The inability to so much as notice the risks fellow citizens, even those you attest are your friends, face across race and gender lines, is a persistent source of racial and gender inequity. Undoubtedly, realizing that those you considered friends are insufficiently sensitive to danger aimed at you can be painful. Yet my response to the politically reckless meaningfully differed. Though I keenly feel Shiffrin’s point of how dispiriting blindness can be, to see others, from a position of relative safety, acknowledge and then shrug off dangers aimed at you or your family felt somehow more visceral. Thus, it is not only that Shiffrin’s early examples (Elonis) borrowed some of their intuitive power from cases of recklessness but that by blurring the lines between inadvertence and knowing risk taking, she confuses not only a legal but a moral distinction, reducing negligence to a sort of ordinary version of “super-recklessness.” This confusion is unfortunate because it obscures Shiffrin’s core point, which remains true; that negligence is a particular and serious kind of wrongdoing on its own.

If I agree with Shiffrin that the blindness represented by negligence can be its own serious fault then what profit is there in disentangling it? My concern is that running together recklessness and negligence borrows outrage from one to color the other not because, as Shiffrin suggests, our over-familiarity with negligence has dulled our senses but because we correctly understand the ordinariness of negligence differently.  Return to my family’s daily struggle with school drop off. There are two reasons, cutting in opposite directions, to question whether we are truly negligent with our children’s education. The first and most obvious is that the nearly daily failure makes it impossible to believe there is anything inadvertent about our behavior. We occasionally shift some plan but our reasons (excuses) for lateness continue; we tell ourselves it is our other worthy commitments and work that keep us up late and so on. We (are very least) conscious of the risk of lateness in the morning. But notwithstanding Shiffrin’s point that both inadvertently and knowingly (but not intentionally) failing our duties shows a blameworthy failure to take their measure, it seems to me it is the repetitive nature of our lateness – the willingness to knowingly tolerate it – that is reflected in the teacher’s scolding looks.

Once we isolate pure negligence, however, I worry that Shiffrin’s point, if not muted, is quieted. Remember the issue is the moral neglect of negligence. One way I might deflect accusations of negligence is by downplaying the actual harm done; despite the neurotic nature of the educated class, I suspect even consistent lateness by a pre-kindergarten does not substantially threaten his future prospects. But shift the example slightly, stipulate that we took such daily efforts that we were truly surprised at each tardiness. Self-interest aside, why would we tolerate this daily mistake and why do so many other parents give us a look of knowing sympathy rather than echo the official scolding?

My thought is that inspecting ordinary negligence gives insight into the tolerant attitude as against which Shiffrin warns. Other parents are too vividly aware of the daily ways we fall short of ideal or even excellent parenting. They know too well the strain and complications of not just meeting one’s obligations but of even following Shiffrin’s sage advice of instituting mechanisms, systems and the help of others to ensure we meet our obligations. Even when such help is enlisted, it can feel overwhelming to maintain and monitor these myriad systems.

As against our tolerance for negligence, bring to mind the friend who seems to never fall short of her obligations. Now imagine that each time you did so, she gently, even lovingly, admonished you, pointing out how your failure could have been avoided. I doubt the problem is the scolding; imagine if you prefer that she were simply silently disapproving. There seems a severity in such a person, a lack of understanding about the limits of our capacities, even our extended capacities. Nearly all of us know how we have fallen prey to unexpected traffic by being insufficiently careful; relating the cold panic of thinking you will be late to your own talk or an interview typically elicits compassion from others who recall their failures.

To be sure, none of this is foreign to Shiffrin. She points out that sometimes we object to charges of negligence because we believe the demands made are too high or unavailable to ordinary agents. She urges that the seriousness of negligence means approaching failures with a spirit of generous forgiveness and renewed resolve. Indeed, the point of her piece is to recognize and celebrate the difficulty of consistently acting non-negligently.

Still once we focus on pure negligence, particularly inadvertence, we see why we are so tolerant of it. School tardiness might be a case of minor negligence, far from the kind of serious risks that typically attract our attention. Yet my familiarity with my failings there (and elsewhere) are instantly accessible such that when I hear of more serious negligent acts, I often see how to extend my forgiveness.

Further, intimately relating to all too human gaps in due care disrupts the link Shiffrin draws between negligence and the blameworthy character inferences she draws. We recognize too well the myriad reasons we fall short of our duties of care. The roof-tiler may lack care because he is arrogant but his caution may also be sapped by exhaustion because his baby was crying all night. The appointments chair may neglect to check references not dismissively but because she is running late to support a student event or to show professional graciousness by attending a colleague’s housewarming. Many of us sign up to one too many projects, promise one too many talks and sign our children up for one too many classes.

Shiffrin is surely right that maturing means internalizing our responsibility as agents to curtail extending ourselves unreasonably and enlisting help to meet our obligations. She is further correct that we should celebrate the everyday foundational masonry in meeting our obligations. Yet it is the intimate understanding of the myriad ways we fail to meet our duties or fall short of the relentless need to marshal the resources to do so that endows sympathy. It is the hard to shake feeling that such shortfalls are not (always) because we fail to take others seriously but rather just fail in predictably human ways; ways that generate a humility that tolerates a surprising amount of negligence in others.

15 Responses to “The Moral Neglect of Negligence” by Seana Valentine Shiffrin, with a critical précis by Ekow Yankah

  1. Hille Paakkunainen (on behalf of Steve Sverdlik) says:

    Comments on Seana Shiffrin’s “The Moral Neglect of Negligence”
    Steve Sverdlik
    SMU

    Seana Shiffrin’s article is full of ideas. It also contains some excellent cases of negligence to think about. (I especially liked the Snowden example.) I will comment on what I take to be the most important arguments of hers.

    *What is the “standard moral hierarchy”?* One of the main goals of Shiffrin’s paper is to criticize what she calls the “standard” or “traditional” “moral hierarchy”. For most of the paper, she discusses a simplified version of this hierarchy, and contrasts malice and negligence. Below, I’ll say more about the types of objects that belong to this hierarchy. But first, I think readers will find it helpful to know where this hierarchy came into being and what sorts of claims it incorporated. Shiffrin is referring to the four types of culpable mental attitude that are defined and used in the Model Penal Code of the American Law Institute. Some of these attitudes were called, in the common law tradition, types of mens rea, or ‘guilty mind’.

    The MPC was published in 1962. One of the goals of its authors was to produce a penal code that employed clear and uniform terminology for penal statutes, which would replace the various words and phrases used in the common law and in older statutes. We might wonder how ‘traditional’ or ‘standard’ the MPC’s terms and scaling are, but they are now well known among writers in the US on the criminal law. Note that the set of terms they developed were meant for use in a legal context and, specifically, for criminal laws. (Negligence is also an important concept in tort law.)

    I will say a little more about the MPC’s ‘hierarchy’. The four types of culpable mental attitude in the MPC scheme are: purpose, knowledge, recklessness and negligence. Here are simplified versions of its definitions; they focus on the results of a criminal act. To act purposefully is to act intentionally with regard to a result, whether intermediate or final. That is, one’s means or end constitute one’s purposes. To act knowingly with regard to a result is to believe that it is practically certain that it will occur. To act recklessly is consciously to disregard a substantial and unjustifiable risk of some result. To act negligently is to be unaware of a substantial and unjustifiable risk of a result of which the agent should be aware. Shiffrin claims that the moral conception of negligence that she is describing is somewhat different in its details from the corresponding MPC definition (200, n. 14).

    I will assume in what follows that we could reformulate the four MPC definitions so as to yield four concepts suitable for discussing moral issues. For example, where the MPC speaks of an ‘offense’, we could substitute the word ‘wrongdoing’. And I will assume that the four moral concepts form a ‘hierarchy’ in this sense: the worst or most culpable attitude is purpose, and the least bad or culpable is negligence. Shiffrin has something like this hierarchy in mind.

    *Malice, motive, and mens rea.* The first of my comments concerns the two concepts Shiffrin contrasts throughout her paper: negligence and malice. I take it that these are meant to be the ends of the standard hierarchy. But malice is not the uppermost culpable attitude; purpose is. And these are different concepts. ‘Purpose’ picks out those results that an agent is trying to bring about by her action, whether as a means or an end. But malice is one sort of motive. An agent’s motive is her ultimate goal in acting; it never refers to her means. If an agent acts from malice, then she is trying to produce harm or loss to some being as her end. While an agent may have a malicious purpose in acting, she may have many other purposes in acting. For example, she may be acting from self-interest. Malice is thus one (fairly unusual) sort of purpose, not a synonym of it. Shiffrin sometimes uses ‘malice’ in its correct and narrow meaning, for example, when she says on p. 219 that malicious harm involves a “direct embrace of evil”. But elsewhere (e.g., p. 222) she implies that the uppermost rung of the hierarchy is intention, which is a close relation of purpose. If this is correct (as it is), then that rung is not malice.

    Shiffrin’s recurrent apparent conflation of malice and purpose is important, because it makes it harder to understand what the point of the hierarchy is supposed to be. Shiffrin states that she will distinguish the phenomena of interest to her “with respect to the agent’s motive” (200) and she thus implies that negligence, too, is a motive. But the MPC hierarchy is supposed to be a set of distinct culpable attitudes, none of which is a motive. I would say that ‘culpable volitional attitude’ is the best way to characterize the genus of psychological stances that the MPC hierarchy is ranking. The four ranked types of volitional attitude are the ones that make an agent culpable to some degree or other for performing a wrongful action. They constitute four different attitudes that an agent can have toward the wrong-making results of her own action. Roughly speaking: she can intend to bring these results about; know that she will bring them about; believe that she is likely to bring them about; or be ignorant of them, in spite of their obvious importance. The MPC scheme leaves room for the relevance of an agent’s motive with regard to her culpability, but it is not focusing on that consideration. We can see that motive is a separate consideration by imagining two agents who each intentionally or (purposefully) kill a victim for different motives: one from malice, the other for money. The MPC scheme would say that they each acted with the same culpable volitional attitude toward the victim’s death, namely, purpose. But they had different motives for killing the victim.

    *Wrongness and culpability.* When Shiffrin comes to explaining the significance of malice and negligence, she generally speaks of how these two kinds of psychological state contribute to different kinds or degrees of wrongness. She eventually considers a finer-grained hierarchy, and continues to speak about how they contribute to different kinds or degrees of wrongness (219-22). This way of speaking conflates wrongness and culpability. Moral theory (like legal theory) requires us to think of the categories of wrongful behavior in fairly broad terms, so that one kind of wrongful act can be performed from various motives or in any one of the four culpable attitudes or, indeed, non-culpably. Killing or rape, for example, can be performed from various motives, and with any of the four culpable attitudes. Given our rich and complex set of terms for wrongdoing, it is likely that some of them rule out acting from some motives or with some attitudes. Elonis’ behavior, in fact, seems to raise the question of whether a person can unwittingly or negligently threaten another person. Still, in general it seems that moral theory calls for broad categories of wrongness that make it possible for an agent to act wrongly with any of the four culpable attitudes. This is because it is very plausible to think that what makes a kind of action wrong is based largely on how it affects the victim. If this is correct, then it is not true that a purposeful (or malicious) killing, say, and a negligent killing are different wrongs, or that one is more wrong than the other. A Kantian might say that each of them destroys a rational being. A consequentialist might say that each of them produces less good than refraining from them would. Neither type of theory seems to favor Shiffrin’s notion that the killings are different types of wrong. What the MPC hierarchy was meant to capture was four types of volitional attitude that establish four levels of legal culpability, ceteris paribus. We should thus take the moral hierarchy based on it to establish four levels of moral culpability, ceteris paribus. We need the ‘ceteris paribus’ qualification since other considerations like motive and duress can also affect an agent’s culpability.

    *Is the standard moral hierarchy inadequate?* Shiffrin’s main aim is to emphasize the moral significance of negligence, and to do this she emphasizes the inadequacy of the standard moral hierarchy. Through much of her paper, she focuses on the truncated hierarchy of malice and negligence, but at the end she considers a finer-grained hierarchy and maintains that it is also inadequate. (Her remarks about the finer-grained hierarchy still tend to focus on comparisons of the top and the bottom rungs of the hierarchy.) I think it is fair to say that Shiffrin is committed to asserting that the following statement is true:

    Inadequacy of the Standard Moral Hierarchy (ISMH): When other things are equal, an agent who negligently performs a certain kind of wrongful act is sometimes more culpable morally than an agent who performs that kind of act purposefully.

    I say that Shiffrin is committed to the truth of ISMH because (i) the correct contrast in the hierarchy is negligence vs. purposefulness or intention; (ii) the hierarchy being judged must be understood as making ceteris paribus claims about (iii) the moral culpability of agents who act with the two volitional attitudes.
    Is ISMH true? I believe that Shiffrin has not shown that it is; that is, she has not shown that the standard moral hierarchy is false.

    The main passages in Shiffrin’s article where she explicitly tries to support ISMH are pp. 216-7 and 219-23 (where she considers the finer-grained hierarchy). If we examine these passages carefully, I think we find the following problems with Shiffrin’s arguments.

    Pp. 216-7 are not relevant to ISMH for two reasons. First, as I noted, Shiffrin here contrasts malice and negligence, rather than purpose and negligence. Second, she is here considering the relative dangerousness of malicious and negligent characters. But this comparison is not relevant to ISMH, which concerns the culpability of agents for particular actions.

    Pp. 219-23 contain more relevant remarks. Some of them consist, in fact, in sharpening the sort of comparison that must be done to test ISMH. We must be sure that both acts are either in character, or out of character (220-1). Both acts must present equal difficulties for the agent in ascertaining whether her act is morally wrong (221-2).

    It seems that the main argument that Shiffrin makes for ISMH occurs in the first full paragraph on p. 221. She says this:

    “Returning to the example of Mr. Elonis, I resist the idea that it would have been morally worse if Mr. Elonis intended to threaten his wife than if he intended to vent his all-consuming anger publicly but, paying no attention to who would read his online posts, he was unaware that his online rantings ran a substantial risk of threatening his wife. These are different but both scary, forms of moral monstrosity.”

    Here Shiffrin seems to take the uppermost rung of the standard hierarchy to be intention. To be charitable I will grant that it is possible to threaten a person negligently. And I agree that both sorts of volitional attitude would have been very culpable, given the obvious and enormous risks that Elonis’ behavior created. But if he really did act in unawareness of these risks he would not, I believe, have been more culpable than if he intended to threaten his wife. I think that it is fairly clear that Elonis would have been less culpable if he acted while unaware of the risks. Shiffrin has not shown here that the standard moral hierarchy is inadequate.

  2. Scott Hershovitz says:

    Seana Shiffrin’s paper, “The Moral Neglect of Negligence,” is masterful and much needed. Shiffrin is right: negligence can be culpable, and some negligent acts are more culpable than some malicious acts. There are beautiful illustrations and sharp observations throughout. I might comment on some of them later. But I want to start with a worry about Shiffrin’s account of negligence.

    Shiffrin aims to explicate the moral conception of negligence, not the legal conceptions, which she worries might reflect “institutional and remedial concerns” that are not applicable in non-legal contexts. But I want to juxtapose Shiffrin’s account of negligence with the way that tort law treats it, because doing so might help us get a grip on the moral concept.

    According to Shiffrin, “negligence is distinctively characterized by the agent’s motive-how her reasoning motivates her action (and what her reasoning omits).” “The negligent agent,” she says, “implicitly or explicitly demotes the practical significance of her actions regarding matters that do not occupy her primary focus of concern.” The negligent person, on Shiffrin’s picture, does not act for the purpose of inflicting harm or risking it, as the malicious person does; rather she fails to give proper weight to the harms she inflicts or risks imposes as she pursues her purposes, whatever they might be.

    For Shiffrin, then, negligence is more about what is in your head than about what you did. Tort takes the opposite view. In tort, you can be judged negligent even if you were trying to be careful. Indeed, you can be judged negligent notwithstanding the fact that you were motivated by–and gave adequate weight to–your victim’s well-being. (Think here of the pharmacist who is motivated by and attentive to her customer’s interests, carefully constructs procedures to catch mistakes, but on one fateful day confuses two similarly named drugs and never notices her error.) In tort, the only question is whether you acted as a reasonable person would have acted in the circumstances. Your motives don’t matter. (Or, to be more precise: they do not matter if the question is whether you are liable for negligence; they do matter if the question whether you are subject to punitive damages.)

    Shiffrin puts motive at the center of the moral conception of negligence. To the extent we are focused on reactive attitudes, like blame, that makes sense. As Strawson explained, the reactive attitudes reflect a “demand for the manifestation of a reasonable degree of goodwill or regard.” Negligence, as Shiffrin conceives it, fails to respond to that demand. But there is more to morality than reactive attitudes, and we are entitled to demand more of each other than goodwill and regard. In particular, we may demand that others–at least some others, on some occasions–act reasonably when our interests are at stake. And we may hold them responsible when they fail to do so, even if we ought not blame them, on account of their good motivations.

    Shiffrin has given us an account of the sort of negligence that is blameworthy, and a sterling one at that. ButI worry that she has not given us a sufficiently capacious account of what negligence is. To my thinking, the moral conception of negligence is–or at least ought to be–as broad as tort’s conception. Or to turn the point around: tort’s conception of negligence is a moral conception (and not, as some of Shiffrin’s comments might suggest, an administratively driven extension of it).

  3. Scott Hershovitz says:

    In relation to Ekow and Steve’s comments above, I wanted to say a bit more about the law. Both Ekow and Steve draw on the Model Penal Code. Ekow tells us that an actor is negligent if she imposes a serious and unjustifiable risk, of which she ought to be aware. According to the MPC, negligence “involves a gross deviation from the standard of care that a reasonable person would observe in the actor’s situation.” Tort law takes a sterner view; negligence is simply the failure to do something that a reasonable person would do. What the Model Penal Code calls “negligence” would be typed “gross negligence” by a tort lawyer, and the difference might have consequences. Some public employees, for instance, are immune from suits for simple negligence, but subject to liability for gross negligence. In any event, I suspect that Model Penal Code focuses on gross negligence in effort to pick out the sort of negligence that is culpable–which both reinforces Shiffrin’s point that negligence can be culpable and underscores Ekow’s worry that not all negligence is.

    Steve also draws on the Model Penal Code, suggesting that it is the source of the hierarchy that to which Shiffrin objects, and he observes a mismatch. Where the Model Penal Code speaks of purpose, Shiffrin speaks of malice, which is just one sort of purpose. But again, a perspective from tort law might help. Tort does have a hierarchy of wrongful conduct. In ascending order: simple negligence, gross negligence, and recklessness. For liability purposes, all of these are species of negligence–that’s the name of the tort one pleads, regardless of how far the defendant deviated from the standard of care. For that reason, I wasn’t bothered by Shiffrin’s inclusive understanding of negligence, on which reckless conduct is just an extreme form of it. That’s tort’s view too. The difference between these sorts of negligence could matter in a number of ways–for purposes of immunity, the possibility waiver, or most prominently, for punitive damages. A plaintiff is eligible for punitive damages when the defendant’s conduct was willful or wanton. In most jurisdictions, that’s taken to require malice or recklessness on the part of the defendant. Some students mistakenly think that all intentional torts–like battery–will qualify. But that’s not true. You can batter someone with the best of intentions. (If you want an example, look up Mohr v. Williams.) So it would be a mistake to put intention–or even purpose–at the top of the hierarchy. Tort puts malice at the top, even though it is never the standard for liability. Tort, then, reflects the hierarchy to which Shiffrin objects.

    Is Shiffrin right to object to it? I am not yet sure. She is clearly right that some negligence acts are more culpable than some malicious acts. Indeed, I think some acts that are merely negligent–as opposed to grossly negligent or reckless–are more culpable than some malicious acts. But if we hold the interest affected and the harm caused constant, then it may well be that malice is worse than negligence in all its forms.

  4. Matt King says:

    I want to begin by thanking Hille for inviting me to participate, and to Seana for the excellent paper. In that spirit, I will join the chorus of voices above in praising Shiffrin’s paper. It contains many insights and worthwhile observations, and despite having previously published my skepticism regarding responsibility for negligently produced outcomes, there is much in her paper that I agree with. After all, as my worries about negligence targeted traditional negligence, they tended to stem from its inadvertent nature. So, to the extent that Shiffrin seeks to reconceptualize negligence (or, if one prefers, reveal its true nature), I am happy to accept a number of her claims. In particular, I applaud her calls for more attention to be paid to the more quotidian kinds of failures, and that the ordinariness of negligence does not imply non-seriousness. (I also want to add how well-written the paper is, and how delightful it was to read, virtues less frequently recognized in philosophical papers.)

    I want to confine my initial comments to exploring two questions about Shiffrin’s characterization of negligence. First, I wonder whether, if we accept it, we don’t just collapse a firm distinction between negligence and recklessness, but also with malice as well. In the end, then, we may be left with a single central and common moral failure. That failure is to show proper concern for others (or for legitimate moral considerations).

    One way to get at this idea is to think about a narrow conception of malice and indifference. If I aim to hurt you because I want to hurt you, then I’m malicious. But it’s also true, it seems, that I don’t care much about your feelings, since I’m more than just willing to hurt them, I’m out specifically to hurt them. If we ought to have appropriate concern for others, then I clearly don’t have that concern if I’m out to hurt you. I may also fail to have that concern if I don’t see the potential effects and risks as being significant enough to refrain from acting or take additional precautions. If what matters is failing to give such moral concerns their proper weight, this is true at all levels of the traditional MPC hierarchy, as well as reflected, I think, in ordinary morality. But that means that recklessness isn’t the limiting case of negligence, as understood principally as a failure to take seriously enough a legitimate moral concern, rather malice is (or, alternatively, purposefully acting against that legitimate moral concern).

    Second, I wonder whether some features that supposedly distinguish traditional understandings of negligence might still be relevant to Shiffrin’s motive-centric conception. In particular, I worry that advertence might be relevant to whether (or how much) an agent has shown insufficient concern.

    Traditionally, negligence is distinguished from recklessness at least in part because the latter involves a conscious awareness of risk whereas the former did not. Shiffrin rejects this understanding of the difference, relying instead on the ways in which the negligent fails to show adequate “respect or appreciation” (201) for legitimate moral considerations. While we can support the counterfactual that had the agent shown adequate respect or appreciation for the relevant object she wouldn’t have done what she did (and so not been negligent), the opposite doesn’t obviously hold true. Just because someone acts in a way which, had they the proper concern they would have acted differently, does not by itself show that they had improper concern.

    It is clear that what we notice or fail to notice can reflect our cares and concerns, what we take to be important. But it is less clear that everything we fail to notice reflects our care and concerns to the same degree. How one develops this point will depend a bit on how one understands conscious attention and the role it ought to play, both morally and legally. Since I don’t want to digress to widely, I’ll make the point generally (but lose some precision).

    It is plausible to suppose that what occurs in consciousness is (in general) more reflective of the agent than what occurs unconsciously. Though not unanimous, an emerging consensus takes conscious contents to be those that are ‘globally broadcast’ – that is, made widely available to a variety of consuming systems in the mind. We are aware of information that has been made available in this way. If such a view in on the right track, then whether or not an agent has adverted to some information might be relevant for how much concern he gave its content. In particular, only when globally broadcast does such information interact with the full (or at least fuller) suite of values, cares, and attitudes of the person. When the person acts from such interaction, those actions plausibly better or more fully reflect the person’s “moral architecture” than when they don’t.

    This leaves open whether non-broadcast contents are still the stuff for which we can be morally evaluated. But even if they can, the role of advertence against a background theory of consciousness and its integrative role in both deliberation and action, might renew the relevance of the traditional hierarchy (even on Shiffrin’s view).

    There remains an attractive core insight, however, and one that perhaps cuts against the sting of either of these worries (whatever sting they might have). A central component to Shiffrin’s discussion, I take it, is advocating for a more proactive engagement with negligence. Not just academically, in giving it closer and more sustained scrutiny, but in privileging and developing non-negligence in our own lives. If we are to avoid a “culpable indifference to…moral failure” (205), this requires not just vigilance in responding to the situations in which we find ourselves, but actively aiming to take seriously the various moral ends and values around us. It represents a shift in stance, from reacting to failures and the search for culpability, to the cultivation of a distinct moral virtue. This may be a large part of Shiffrin’s motivation to minimize the impact of the law and its concern for remedies. In any case, as I read it, the essence of the paper lies in making more room for consideration of this virtue and its significance.

  5. In The Moral Neglect of Negligence, Seana Shiffrin revives an old debate about negligence and its relationship to responsibility, but she sees it through a fresh lens. Seana reignites this debate with an aim “to wrest the topic of negligence away from the monopolistic grip of legal commentators and to enliven a discussion about it within moral and political philosophy” (Shiffrin at 200). In particular she wants to draw attention to the “motives that characterize moral negligence” (Id.). I share Seana’s general ambition and thus welcome this discussion.
    I belong to the category of what Seana calls the “negligence skeptics,” (Shiffrin at 199), by which she seems to have in mind those of us who think that negligence is not a “real” category of responsibility. To clarify the position I defended roughly fifteen years ago (Finkelstein, Responsibility for Unintended Consequences, 2005), my view was that we cannot make sense of negligence as a form of culpability, by which I understood a state of mind, comparable to the other categories of criminal mens rea, such as purpose, knowledge and recklessness. Further, I thought, if neglience is not a state of mind, it is a form of strict liability, meaning responsibility irrespective of fault.
    This position still makes sense to me: Given that we think about both criminal liability and moral responsibility in terms of a combined state of mind, on the one hand, and a prohibited act, on the other, it is hard to make sense of negligent responsibility as a form of moral culpability, and this has certain implications for the law, particularly for criminal liability where the connection to ordinary morality is significant. There is no state of mind of failing to be aware of a risk of which one should have been aware. In this regard, negligence is quite different from recklessness, which involves conscious awareness of a risk. It seems reasonable to say that whereas recklessness is a distinct state of mind, negligence is the absence of a state of mind. It is precisely the failure to bring to mind, or to have in mind, awareness of factors that might cause a reasonable person to behave differently. Recklessness is worse, and should be distinguished from negligence, because it couples awareness of the risk with the failure on the agent’s part to take action to avoid the eventuation of the risk. The reckless person is thus more highly culpable than the negligent person: in his case we already know the answer to the question whether he would behave differently if he were aware of the risk. The answer, in his case, is “no.”
    Having said this, the motivation for Seana’s article, and the perspective she presents, is of undeniable importance. I even share many of her intuitions. First, I agree that we often have very strong intuitions that a person is to blame for a failure to take care, regardless of whether she perceived the possible consequences of not taking care. Second, I agree that an agent can be negligent with regard to moral ends other than harm imposition, and also that to talk about someone’s being negligent with respect to some bad outcome does not necessarily mean that the outcome occurred. I can be morally negligent with regard to failing to fulfill a promise, as Seana points out, or even, I would say, with regard to the cultivation of my own character or the character development of my children. It may be that the agent can only be identified as negligent in virtue of some defined outcome she is risking, but that outcome need not eventuate in order for us to identify her as negligent. Third, I agree, as Seana puts it, that agents can err by failing “to take and exercise appropriate responsibility for [their] agency” (Shiffrin, at 213), and that this kind of failure sometimes constitutes an important collaboration with another person’s or group’s evil enterprise, to paraphrase Seana paraphrasing Hannah Arendt (Shiffrin, at 213-214). This aspect of negligence, and the role that failure to oppose has played in further conspiracies with evil has been overlooked in contemporary discussions of moral and legal responsibility.
    Despite these basic points of agreement, and Seana’s interesting and eloquent reframing of the traditional categories of culpability to include negligence, I remain unconvinced that her aims could not be just as well accomplished within the account of responsibility I and other “negligence skeptics” have defended in our work on this topic. Furthermore, I think the intuitions on which she trades are in fact not about negligence at all, but about other aspects of our judgments of responsibility, and that the concept of negligence as a distinct state of culpability is not necessary to explain these intuitions. Some of the cases involve what is known as “willful blindness.” Examples abound, such as the dreaded parents who turn a blind eye to what their children are doing because they don’t want to have to discipline them, or even perhaps Snowden, who ignored, or was willfully blind, to many avenues of democrat and political dissent from which to lodge his objection. Willful blindness is not normally treated as a matter of negligence or recklessness. It is a form of knowledge in most cases, and so has nothing to do with risk per se. This is a confusion between epistemic risk versus probabilistic risk. The person who is willfully blind is normally shielding himself from knowledge that would require him to take action, and that is quite different from playing with probabilities, for example, by texting while driving.
    I have commented on the importance of maintaining the distinction between recklessness and negligence, as well as on the importance of distinguishing both from willful bindness. There are a few other conceptual points that seem to me to need clarifying, and that with a more precise ontology of responsibility in place, we may bring Seana’s insights into better focus. First, as Steve Sverdlik has pointed out, Seana seems to conflate states of mind with outcomes. She talks about negligence as a wrong,” or as “wrongdoing.” This confuses the state of mind with what the germans call the Tatbestand, meaning the wrongful act. In the US we just refer to this as the offense definition. In morality, we might talk about this as the prohibitory norm – the thing that constitutes wrongdoing. Then the question is whether that thing (act, omission) was performed with the right state of mind. Where negligence is concerned, once again, we have a puzzle, because there is no state of mind that involves negligence. There is an absence of a state of mind, a failure to live up to a norm of attentiveness. But that is not itself a state of mind.
    Some of the cases involve ones in which the prohibitory norm that has been violated is itself violated intentionally, such as texting while driving. In such cases, the agent is either negligent or reckless with regard to the outcome, but intentional with regard to the act that causes the outcome. Space is too short for me to provide a detailed analysis of such cases (though I have done so elsewhere), but suffice it to say that we cannot say that we have a clear account of negligence until we sort out these different cases, which differ considerably from one another.
    I like Matt King’s idea that “what occurs in consciousness is (in general) more reflective of the agent than what occurs unconsciously.” I have always thought this was the case, and defending that view was part of why I was a “negligence skeptic.” But reading Seana’s article did open my eyes to a way I which I agree with her, against the negligence skeptics. Who you are as a person, your character, your claim to integrity, seems to me to depend not only on what occurs in consciousness, but what fails to occur in consciousness, which should occur there. This I take it is the heart of Seana’s suggestion, and here I think she is quite right. The egoist who never thinks of anyone else cannot just be assessed by what creeps into the recesses of his tiny, selfish brain, but what should creep in there that doesn’t, such as thoughts about other people. But this suggests yet another reason to me for thinking that Seana’s article is simply not about negligence in the sense that is meant in discussions of moral and legal responsibility.
    Seana seems primarily concerned to address assessments of character, not responsibility for deeds or acts. In fact, she says as much in a number of places, namely that she is concerned about states of character, whether or not a harm eventuates from the agent’s risky conduct. Assessments of agents are quite different from assessments of acts. The former has to do with virtue or character; the latter has to do with permissibility and culpability. The topic of negligence belongs to the latter. To be sure, it remains puzzling in that context as well. But the difficulties accounting for negligence within an act-based system are not the same as the difficulties making sense of failure to own one’s agency and character.
    Hopefully the clarity we gain from this collective discussion will go some distance towards remedying our own neglect of negligence, to paraphrase Seana’s clever title.

  6. Steve Sverdlik says:

    Thanks to Scott for explaining the hierarchy contained in tort law. I didn’t know it.

    I take the moral hierarchy in question (whether it be one modelled on the MPC and criminal law, or on tort law) to be one applying to agents in virtue of committing comparable specific wrongful acts.

    In other words, in order to test one of Seana’s main claims we should not ask: is any negligent act more culpable than some malicious or intentional act? The answer to that is clearly ‘yes’. Negligently burning down Chicago, as Mrs. O’Leary was said to have done, made her more culpable morally than someone who, say, maliciously or intentionally makes a biting and sarcastic remark in conversation.

    The right questions is: if someone performs a given kind of wrongful action negligently and every other relevant factor is the same, is she more culpable than if she performs that kind of action intentionally (or maliciously)? In this version of the test we need to compare, say, two tokens of the action of putting an oil lamp near a cow’s hoof, or two tokens of making a sarcastic remark, where every other relevant feature of the two tokens is the same.

  7. Hille Paakkunainen (on behalf of Seana Shiffrin) says:

    Response from Seana Shiffrin:

    I want to thank the organizers of Pea Soup for this special opportunity to discuss moral negligence with these wonderful contributors. In addition, I am grateful to the contributors for their thoughtful and generous remarks. They have offered a great deal to think about. I should chew over some of their points for longer, so I will only offer a few reactions for the present. Given our timeline, even these are still preliminary and tentative. They concern the ambitions and targets of my article, the relevance of motive to assessing moral action, and the scope of understanding and forgiveness.

    1. In the article, I advance three major contentions about the importance of the topic, about what constitutes negligence, and about the seriousness of the wrong of negligence. To elaborate:

    (a) Importance: First, we should pay substantially greater moral attention to negligence as a moral phenomenon, related to but distinct from the legal conceptions and legal treatments of negligence. While legal approaches may be morally instructive, the law is not a straightforward moral guide here. The legal treatment and characterization of negligence may be driven by distinctly legal institutional considerations associated with finding liability and also by the constraints and purposes associated with remedying the consequences of negligence.

    (b) Characterizing negligence: Second, morally, we should characterize negligence as: “a failure to take due care (or to perform due diligence) with respect to an applicable moral end, restraint, or duty, where the relevant failure does not involve a deliberate attempt to bring about the specific consequences occasioned or risked by the lapse in due care, whether as an end-in-itself or as a means.” This characterization is distinctive, as Claire notes, in not focusing only on failures that result in harm and, as Matt notes, in not being limited to inadvertent failures.

    (c) Taking negligence seriously as a wrong: Third, we should take negligence seriously as a significant moral wrong and we should resist any simple hierarchy of moral significance that reflexively places negligent action at the bottom. As Matt points out, my eye is not solely on our retrospective moral judgments about particular episodes of negligence and our assessment of the agents responsible for them. It is also, and mainly, trained on where prospectively, we should direct our moral training and moral education.

    2. Gratifyingly, I take everyone to agree with (a) – my claim that negligence is worthy of greater attention by moral philosophers. Then again, what else might you expect from a group of scholars interested in negligence?

    3. Results were more mixed with respect to (b) – my suggestion about how to characterize the moral wrong of negligence as distinct from the legal wrong(s). Many of the comments deploy different characterizations of negligence that hew more closely to legal characterizations, whether from torts or criminal law. Ekow, for instance, begins by discussing one legal characterization of negligence as a failure to recognize (and respond appropriately to?) a substantial and unjustified risk. (As I allude to below, the ‘substantial’ part might account for his later ambivalence about the tardiness case.)

    Criminal law has its reasons, I am sure. But, from the moral point of view, I’m less sure that we should exclude from the umbrella of negligence moral failures that involve the failure to respond appropriately to moderate risk. It depends, for me, on whether our moral duty to take care in the relevant context extends to attention and responsiveness to moderate risks. If it does, then a failure to recognize and respond appropriately to a moderate risk could be negligent.

    Claire seems to agree that what I call ‘negligence’ may represent a serious wrong, although she is disinclined to label it that way. I suppose that, in the end, agreement about the phenomena is what matters most. For those who resist the label ‘negligence,’ I think it imperative to try to give it a name. One of the many ways we can fail to pay adequate attention to a moral failing is by not having the vocabulary and concepts for its identification and tracking. I agree that ‘willful blindness’ covers some of the cases but I am not sure it covers all of them. Here our difference in characterizations may be rearing its head. With Scott, I want to say that some forms of negligence involve agential failures – not trying hard enough or not trying in the right way or trying while doing too much (trying while distracted). I don’t know that these are forms of willful blindness (though sometimes agential failures result from a willful blindness to one’s agential deficiencies). I do think (to answer Scott’s actual challenge here) that agential failures ultimately trace back to a defective motive; there is action on a package of reasons that is defective for not containing the commitment to act on those reasons that would have improved one’s agency or gotten one the help necessary to succeed.

  8. Hille Paakkunainen (on behalf of Seana Shiffrin) says:

    Response from Seana Shiffrin continued:

    4. Much of the action in the commentaries concerns (c) – my view of how seriously to take negligence as a wrong. In some cases, that disagreement is tangled up with our different conceptions of what moral negligence is. I take the distinction between intentional wrongful action and negligent wrongful action to inhere in whether the wrongful act and/or its consequences are sought as such by the agent or not. I am skeptical that this distinction correlates in any regular and consistent way with respect to how important the wrongs are, but I take the distinction to matter in other ways.

    Whether a wrongful action is negligent or intentional bears on what sort of moral failure it is, what its meaning is to its victim, where the agent’s moral defect may lie, and how to work toward preventing and repairing like actions in the future. Intentional wrongful action may reveal a defective misevaluation of something that is wrongful as instead something choiceworthy, whether as an end or a means. Negligent wrongful action may reveal a different sort of defect in the agent’s deliberation or in her values – whether failing to consider what one’s action will do or who it will affect in some cases. In others, it may involve not failing to appreciate why what is regarded as a side-effect is a sufficient reason to act differently. In other cases, negligent action may reveal an agential failure – whether a failure to pay adequate attention while acting, to build and apply the appropriate skill base, or to solicit help when needed. The diagnosis of why due care was not applied will often matter to what criticism is appropriate, to what remedy the victim needs, and to how to help the agent do better in the future. What I question is whether strong generalizations may be made that the intentional form of the failure to take due care is in itself more serious than the negligent form.

    With respect to my claims about the seriousness of the wrong of negligence, Ekow notes that some of my examples are ones he would regard as examples of recklessness, not negligence. Even were he open to my suggestion that recklessness is a particular form of negligence, he may still think my criticism of negligence is better pegged to the reckless part of those cases. I am unconvinced, though perhaps we might find common ground with the idea that the degree of recklessness may have a non-accidental relationship to the degree of culpability which I regard as different than the question of the wrong of the action and which I touch on below.

    With respect to the standard hierarchy that ranks negligence low on the list of wrongs, my target was not, as Steve suspects, the Model Penal Code or even the tort hierarchy. That’s, in part, why I didn’t articulate the hierarchy using legal categories. I am more interested in how our moral culture tends to evaluate moral negligence, downplaying or even dismissing its significance. There is a sort of indulgence of moral failure when the agent’s affirmative ends were innocuous enough. But, to me, this casualness toward failures to take due care strikes me as mysterious. It troubles me in part because a major part of moral life involves the cultivation and implementation of habits and abilities as well as conscientious exercises of effort, attention, and noticing; the absence of affirmative bad motives is only a part of it and it is not clear to me why their presence or absence should take pride of place.

    As I signal at the end, I suspect that the persistence of some forms of discrimination and the legacy of the effects of past discrimination are related to our casualness about negligence. That is what drives my curiosity about the neglect of a robust discussion of the wrong of negligence. It is true that, in different ways, tort law and criminal law reflect the traditional hierarchy. To the extent the legal hierarchy depends upon the moral hierarchy, I would question it. But, there may be strong institutional reasons for the hierarchy in the legal case that would not apply in the moral case and so I did not advocate for any conclusions about the legal hierarchy.

    Further, I did not claim (or claim to argue for) — as Steve takes me to have — that negligent action is worse than comparable, but purposive action. (That is, I do not defend or claim Steve’s ISMH.) I see that one thing I said may have been susceptible to misreading. In the third paragraph of the first page of the article (p. 197), I said that “I regard culpable negligence as a more significant moral wrong…,” gesturing at a contrast with those, described in a prior paragraph who seem to regard negligence as “a rather slight,” “petty,” or “paltry” wrong. But, I can see that ‘more significant moral wrong’ may have been read in another register – as more significant than malicious wrong. My thesis may be more clearly put at pp. 198, 213, and 219. I hope this clarification helps to settle that my ambitions with respect to the traditional hierarchy were more modest than the ones Steve takes me to have aimed for.

    My main claim is that there are different varieties of wrongful acts. In some cases, even holding “the interest affected and the harm caused constant,” I am unsure that these different failures of enacting proper values submit to a clear ranking. Acting because one values gender inequality as an end, acting because one values it as a means, and regarding it as not one’s concern and contributing to it as a side effect all strike me as wrongs that are difficult to rank. I should add that we don’t need to rank them. We need to understand and address them. Ranking is often associated with prioritizing and then with triage and then with letting the lowest priority go.

  9. Hille Paakkunainen (on behalf of Seana Shiffrin) says:

    Response from Seana Shiffrin continued:

    5. One theme in the comments –especially those of Steve and Claire — is that my focus on the agent’s motive indicates a confusion of wrongness with culpability and perhaps wrongness with character assessments. I disagree, although there is a real difference here. I submit that what triggers these reactions isn’t so much a confusion on my part as a marker of a different philosophical divide about the relevant components of an action for the purposes of the moral assessment of that action. To wit, I take the motive for an action to be a component of that action; so the motive is relevant to the moral assessment of the action itself. Sometimes, the motive alone is a sufficient explanation of an action’s wrongfulness. For example, in contexts where vendors have a general right to refuse service but refuse service for a racially discriminatory reason, I take it their action is wrong because of its motive. Of course, in many contexts, that action will also be wrong because it contributes to a social structure that has other, profound material consequences for the victims of systematic discrimination, but those consequences and that context are contributory, but not necessary, conditions of the action’s wrongfulness.

    In most cases, when an action is wrong, the explanation of its wrongness will refer both to its (likely) external effects and the motive behind the action. For example, the roofer’s tossing of the tiles is wrong because it risks harm to passersby and because it is propelled by a motive that reflects an indifference or insensitivity to the safety of others. Even among those who think motive matters to the assessment of an action, there is disagreement about whether successful attempts are morally worse than unsuccessful attempts. But, everyone agrees that part of what makes an attempted assault wrongful, whether successful or not, is the bodily harm that may result from success. So, here I want to agree with something Scott suggests is an insight within tort, namely that both external effect and motive can matter. But, I hasten to add, as I suggested above, that the agential failures that qualify as wrongs can be described as themselves attributable to a defect in the reasons one acted on, whether in the moment or in the past when one could have addressed one’s agency.

    Some of those who suggest I confuse wrongfulness with culpability are on the other side of this divide, I suspect. They think the wrongfulness of an action inheres only in its external effects and whether the action itself complies with the behavioral demands of duty, whereas the motive of the agent only speaks to her culpability. I demur. The discrimination case where there is no specific behavioral demand of duty serves as a difficult counterexample for the behavior-only view. To serve or to refuse to serve is, by hypothesis, discretionary; what makes the discriminatory act wrongful is the motive for doing what would, on other motives, be permissible.

    There are other examples. As Barbara Herman has argued, one only fully complies with one’s duty to keep a promise when one performs the promised act with the intention of keeping the promise. When one only keeps a promise for convenience or to avoid censure, one has acted wrongfully even if there is distinct and superior external action that would have been preferable. It would be wrong not to perform the promised external action; it would be wrong to perform the promised external action for the wrong reason; it is not embarrassment to concede that in some cases, the former might be worse than the latter – although where sincerity is an important component of the moral significance of the action, I do not think it will always be true that the importance of the external behavior dominates the importance of the relevant motive.

    So, I partly agree with Matt’s description of my position. In many cases, there is a single required external action or single required omission; when the requirement is not met, there may be a range of reasons, but there is a single failure. Yet, what those reasons are will render it appropriate to call an agent negligent, reckless, or malicious – to take a few examples. What I want to add that I believe some commentators disagree with is that the reasons or motives the agent acts on are relevant to the moral evaluation of the agent’s action and that the full account of what made that action wrongful will be different depending upon which defective motive drove the action.

    I draw attention to this divide not to settle it but to situate my position with respect to it and to suggest that this divide has surfaced in our exchange.

    I agree that wrongfulness and culpability are not identical notions. For instance, one’s action may be wrongful in light of its motive but still excused; grief or duress or some other pressure may get the better of one in ways we think are relevant to an agent’s culpability but which, at the same time, do not make the action less wrongful. Culpability (and relative culpability) may also turn on character, experience, whether there have been sufficient opportunities to learn how to do otherwise, and, perhaps, how difficult compliance may have been for the agent. (With respect to the latter is where I think I may find more common ground with the commentators with respect to recklessness.) Both negligent action and malicious action may be in character or out of character – so I take character to yet a third notion. Avoiding negligent action and malicious action both require training and opportunities to learn to do better, albeit in different ways.

    As Claire’s comments bring out, there are yet other dimensions to this disagreement. Whether with respect to the wrong or culpability, Claire’s focus is on the agent’s state of mind which I think, for her, involves its positive contents. She takes responsibility as attached to a prohibited act and a faulty state of mind. Hence, she reiterates her concern about holding someone responsible for her negligence, at least when it is understood as resulting from an absence of a state of mind, e.g. an overlooking. As she says “There is no state of mind of failing to be aware of a risk of which of which one should have been aware.”

    In response, I’ll make three points. First, on my understanding of negligence, not all negligence involves a failure of awareness of something morally significant. It sometimes involves agential failures and it sometimes involves the conscious but improper valuation of the incidental effects of one’s action relative to one’s given aims. Second, I’m not sure we shouldn’t hold people responsible for the absence of a state of mind, in her sense. As I mention in the article, it’s what we do all the time when we set tests. Of course, that’s academic responsibility, not moral responsibility but I’m not sure why that difference should matter. Third, when we evaluate an action in terms of its motive, I think we evaluate the package of reasons the agent regarded as making the action choice worthy. That’s the relevant state of mind and it isn’t an empty one. When it has the wrong components, or the components are wrongly calibrated, or the package is missing relevant components, then I think we can assess that it is defective and that its product is wrongful. (From there, we might assess culpability by asking what excuses there are, whether it is in or out of character, etc.)

    6. Let me conclude by turning to Ekow’s opening points about compassion and negligence. I agree with the leading spirit of Ekow’s points about forgiveness and understanding. The combination of temporal pressure and human weaknesses make it easy to empathize with all sorts of moral failures. A combination of accountability, acknowledgement of error, striving to improve ourselves and to support others striving to improve, and a more generous posture of forgiveness (whether to oneself or to others) seems like the better cocktail than the one served in our currently more punitive culture. But, I am not sure why a more generous attitude should attach uniquely to negligent failures rather than more intentional failures.

    It is easy to sympathize with and forgive the negligence of overwhelmed parent who lose track of time so that their children are late to school because, in their distracted attention to other matters, they left no wiggle room for the possibility of a traffic delay. But, why shouldn’t we also sympathize with and forgive with the parent who makes the deliberate, if mistaken, decision to drop off his children late so he could get an extra 20 minutes of sleep? Or, what about the parent who, crazed and overburdened with obligations from saying ‘yes’ too much, makes the deliberate, if punch-drunk, decision to drop off his children late to school so that they might, through the laboratory of experience, learn to say ‘no’ by internalizing the lesson that one can survive others’ disappointed expectations? If we are assuming in all the cases that getting one’s children to school late is a wrong, why is the negligent parent who allows himself to lose track of time while under a variety of pressures more forgivable than the parent who, in the face of those same pressures, deliberately chooses to be late to give himself more sleep or, in the wacky case, to ensure his children will learn a different life lesson? Don’t parents in each case do wrong; at the same time, if they are chagrined and later regret their actions, aren’t they all worthy of compassion and forgiveness?

    A parallel: Ekow worries that some of my reactions to Elonis sneak in a sense that in the hypothetical, Mr. Elonis was more than merely negligent. I worry that Ekow’s cases sneak in the sense that perhaps a late drop-off really isn’t a wrong at all and that’s why forgiveness seems so easy. The fact that you can offer your own children some compensatory extra life lessons in the evening might be operating as some sort of subtle compensation. But, if we take the rules to be more prophylactic than strict, it should be the same for the parent who deliberately bends the rules but also stays within their spirit. And, I think it’s harder to let either parent off the hook when it comes to late pick-up and the ability of underpaid caregivers to catch their long ride home. Being invisible to parents and one’s recognized interests being dispensable are both rather terrible statuses to occupy. It’s easy to forgive the occasional lapse due to myopia or a sudden flare of egoism; where either go untreated, both can, understandably, rankle.

    To return to Elonis, perhaps there are some wrongs that it isn’t possible to commit negligently in Ekow’s sense of negligence because their significance is so severe and salient that one would have to be aware of their risks and to act anyway in their face would be reckless. Although I think of recklessness as a gross form of negligence, perhaps this isn’t a typical case. Then again, I am struck by often speakers on the internet regard it as a forum for blowing off steam and allow themselves to think of it as a diary that may happen to have some sympathetic viewers who understand the venting ‘in the spirit with which it was intended’ rather than absorbing that what they say may seem sincere and have profound effects on viewers who are frightened. It’s of a piece with the rather extravagant self-permissions that seem to accompany the prefatory remarks “I’m just saying.” (These may be good cases of Claire’s ‘willful blindness.’)

    What I mean to draw most attention to with that case is that indulging oneself with indifference to how one affects others (and frightening them) is a serious failing and that it is not clear to me that indulging one’s desire to frighten them is necessarily worse. Both represent serious wrongs. Both represent serious failures of respect for other people. Both represent insults to the victim – in one case that one is not important enough to register to the agent in ways that would influence action in the appropriate direction; in the other case, one’s value does not register in the appropriate way to the agent in ways that would guide action in the appropriate direction.

    I have gone on too long but yet not said enough. I look forward to Round 2 and again, I’m very grateful to the commentators for their terrific thoughtfulness.

  10. Hille Paakkunainen says:

    Comments are still open on this thread, so feel free to take part!

  11. Matt King says:

    I’m grateful to Seana for her replies, and for continued engagement on these matters from all our participants. I’m learning a lot. (It is especially commendable given that most everyone is either in the grips of end-of-term busyness or recently freed from such busyness!)

    One recurring theme in the paper and this discussion is the relative seriousness between malice and negligence. I’d like to return to two contrasting ideas on this theme. The first is that negligence is often more serious than we treat it (or, at least, than presented in traditional hierarchy). The second is Ekow’s observation of our tolerance regarding negligence. We often allow, accept, or understand a certain degree of forgetfulness or carelessness in others.

    I’m interested in two separate strands that emerge from these two ideas, and I apologize for not having had enough time to put these strands together more neatly.

    The first is that much of the forgetfulness or carelessness we accept might not, for that very reason, count as negligence (even by Seana’s view’s standards). Negligence is perjorative – I take it there’s really no such thing as non-culpable negligence. So if we accept a certain degree of the kinds of neglect that Seana highlights, those might not thereby count as negligence. (As Scott’s invocation of the reasonable person reminds us, perhaps the reasonable person can still forget or lack some care – it just won’t be due care.) What due care requires of us is surely short of all the care one can possibly muster.

    So, what’s interesting to me about this acceptance is that it also suggests the possibility of a kind of complacency. The bigger we expand the set of allowable neglects, the lower we set the bar for due care, the easier it is for us to comply. The boundaries of negligence will shrink the more we tolerate a lack of care or concern. One lasting question for me, then, is how much care or concern should we require? Or, perhaps a more fitting version for Seana might be, how much care or concern should we strive for?

    (As an incidental aside, I don’t find the reasonable person helpful on this score, since the reasonable person will simply embody whatever the answer to this question is, rather than helping us address it.)

    Not unrelatedly — and this may just be repeating Seana’s point — the ordinariness of (at least potential) negligence seems more worrisome for that reason. We need no special vigilance against our own malice. Of course, we can be tempted by meanness or the occasional spite, but, in general, I think we expect malice to be unusual. It’s easier to spot. But detecting where we may be failing to notice or failing to care, unsurprisingly, can be trickier. More proactive steps may be required to guard against such failures than for more intentional wrongs.

    This leaves open whether malice is always the graver wrong (other things equal). But, I suppose I’m somewhat sympathetic to the idea that a wrong’s being more serious doesn’t necessarily make it more worthy of attention or concern (at least in a relevant sense).

  12. Steve Sverdlik says:

    I want to follow up on one of the many points in Seana’s thoughtful responses. This occurs in section 5.

    I do not think that motives generally are relevant to the question of an act’s rightness or wrongness. (I defend this position elsewhere.) In other words, we have a largely objective conception of the deontic status of actions. If a particular action is wrong, for example, it would be wrong whatever motive we performed it from. I believe that this sort of objective conception is accepted by most deontologists and consequentialists. There are a very few exceptions to this generalization, and I elsewhere try to explain what their basis is.

    But Seana implies in sec. 5 that motives often determine whether an action is wrong. She writes:

    “When one only keeps a promise for convenience or to avoid censure, one has acted wrongfully…”

    This is incorrect, in my view. Kant was right to say that if one gives the correct change to a customer from self-interest, one has acted rightly, not wrongly. He also was right to say that one is not morally praiseworthy for giving the correct change from self-interest.

    These points about the objectivity of our deontic categories carry over to the four volitional attitudes, as I called them, as far as I can see. Generally, a given kind of act could be performed with any one of the four attitudes; and if it is wrong to perform it with one attitude it would be wrong to perform it with another. If, for example, it is wrong to intentionally kill someone it is wrong to negligently kill her.

    And, once again, the four attitudes are relevant to some moral judgments (culpability or praiseworthiness, above all), but not to rightness or wrongness.

    I grant that occasionally it may be that a kind of act would be wrong if performed intentionally but not if it were performed negligently, say. I doubt that this is generally true. And if it is ever true, we would need some explanation for why it is.

    Finally, as Seana agrees, it may be that some verbs of action are such that it does not make sense to say that a person can perform a token of that kind of action in one or more of the four volitonal attitudes. (One cannot negligently threaten someone, it seems.) But I think that the great majority of our basic terms for wrongdoing allow for performing an example of them in any one of the four volitional attitudes.

    This suggests another way in which our concept of wrongness is largely objective: the volitional attitudes do not generally have any bearing on whether a given action is wrong.

  13. Scott Hershovitz says:

    This has been a terrific conversation, and I’ve learned a lot from it. Thanks to everyone who has participated-especially to Seana for providing the occasion and to Hille for providing the forum.

    In her comment, Seana says that the agential failures that constitute negligence “ultimately trace back to a defective motive; there is action on a package of reasons that is defective for not containing the commitment to act on those reasons that would have improved one’s agency or gotten one the help necessary to succeed.” I think negligence often traces pack to those sorts of failures. But I’m not convinced that it always does. As Tony Honore once observed, “It is not true that a person who undertakes a task for which he is not up to scratch need be at fault in failing to realize that fact. Lack of skill often goes hand in hand with lack of the nous to recognize one’s incompetence.” A negligent agent might have pristine motives. She might be committed to taking due care, to improving her agency as necessary to allow her to do it, to getting help when she can’t do it on her own, and so on. But she could make a mistake at any point along that path-about her competence, the need to improve her agency, or the sorts of help that are warranted. If she does, she won’t take due care, but the defect in her action won’t trace back to a faulty commitment. Now, you can repeat the strategy a meta level-perhaps she is not sufficiently committed to rooting out her incompetence, improving her ability to do so, and in getting help to recognize it. Sometimes, this might work: you may find a faulty (lack of) commitment at a metal level. But there is no guarantee you will.

    The question is what to call the person who does not take due care, notwithstanding the fact that she was motivated to do so, to put herself in a position to do so, to get help to do so, and so on. I would call that person negligent, and I would insist (following Seana, but perhaps not with her) that this sort of negligence could be wrongful (though it would not be culpable). That’s because I think we are entitled to demand of one another that we take adequate care, not just that we are motivated do so.

    When my older son was four or five, he would sometimes crash into his younger brother. Instantly, he’d defend himself: “I was trying to be careful.” And I’d tell him, “That might be true, but you weren’t careful.” Over the years, he certainly did improve his agency. He is more careful now, partly because his competence to act carefully has increased and partly because he is more attentive to the need to be careful. But the measuring stick for whether he acts wrongly remains whether he takes appropriate care (keeping his distance, not moving too fast in a small space, etc.) not whether he is trying to do so.

    Or at least that’s how things seem to my possibly tort-addled mind. Before I close, I want to call attention to one further feature of Seana’s article, peripheral to her main concern but important nonetheless. There’s a passage (p. 224), in which Seana suggests that the proportionality principle for punishment does not (as many suppose) require that punishment be proportional to the significance of the wrong. Rather, she suggests that it requires that punishment must not amount to an overreaction to a wrong, that it be a fitting response to it. Whether it is a fitting response, she says, depends not just on the nature of the wrong, but on the purposes of punishment. So, properly conceived, the proportionality principle would have us take into account educative, rehabilitative, and preventive purposes of punishment too. Two equally serious offenses may warrant different punishments once these purposes are taken into account. That sounds right to me, and though it is an aside in this article, I think it a helpful correction to much of the conversation about proportionality and punishment.

  14. Hille Paakkunainen says:

    Comments are now closed, except that Seana Shiffrin will post some responses soon. Thanks, everyone, for a fantastic discussion!

  15. Hille Paakkunainen (on behalf of Seana Shiffrin) says:

    Thanks to Matt, Scott, and Steve for continuing the conversation in such constructive ways and further crystallizing some key issues. I’ll be fairly brief in reply and focus on exploring a few issues that are relatively fresh in our discussion.

    Proportionality and Remedies

    I’m grateful to Scott for calling attention to my position about proportionality and, as with other commentators, putting some points much better than I did. He and I agree that proportionate remedies are to be understood as remedies that are neither an under reaction or an over reaction to a wrong. Further, what remedy seems appropriate for any particular wrong will depend a great deal on one’s theory of remedies. If forward-looking ends such as rehabilitation and education loom large in the grounding principles to justify and craft remedies, and especially to justify and craft appropriate punishment, then actions with the same degree of moral significance may not necessarily call for the same remedy. The punishment that may effectively rehabilitate and educate a negligent person may take a different cast than the one fits the challenged posed by a malicious actor. Thus, to agree with me that other things equal, such as the consequences, negligence may be as morally serious as malice does not require thinking that the punishments for comparable negligent behavior and malicious behavior should be the same. That may take some of the sting (and for some, perhaps, the zing) out of my position.

    Motives

    Still, the defense of my position does involve comparing and evaluating the motives that are the components of negligent and malicious actions performed in relevantly comparable circumstances with relevantly comparable consequences. As my position on remedies makes clear, I regard these motives as importantly different; what I question is why it is obvious why the one motive is always necessarily more innocuous than the other, making the resultant action better than the other. Steve insists that it’s a mistake to evaluate actions in light of the agent’s motives in performing them. I persist in disagreeing. I do think that keeping a promise for the wrong reasons, e.g. merely to avoid controversy when one’s breach would lead to embarrassing exposure is wrongful. This is consistent with thinking that it is better to keep a promise for the wrong reasons than it is to breach the promise. Still, what one should do is keep the promise for the right reasons. The behavior involved in satisfying the promise is one crucial component of the right action alongside the right motives. I’ll take it as a mutual victory that through this conversation, we uncovered a somewhat submerged issue about the relevance of motive to the evaluation of action that may underlie our disagreement about the significance of negligence.

    To different degrees, both Scott and Steve stress that there may be objective components to negligent actions that cannot ultimately be traced to an individual agent’s defective motive. I need not disagree, depending on how we put that point. A few rushed thoughts: I can certainly agree that what due care requires in some contexts may be fixed upon a certain threshold of accomplishment and behavior within contexts that may be described independent of the agent’s motive. For some agents, that accomplishment may be beyond their individual reach and they may be faultless for failing to achieve it and for failing to gain the help they need to do so. We might say their action failed to provide due care nonetheless and that they were morally blameless; although, perhaps in some contexts, we might hold them financially responsible and in other cases, like in the case of children, we may hold out supplying due care as the goal toward which we will come to expect agents to achieve. One way to understand these cases is to say that the agents failed in their duty of due care but they were not negligent. Another way to understand them is to think of them as peripheral cases that are downstream from the core cases. How the behavioral requirement is determined – exactly what due care requires – depends upon people’s needs and what agents can be expected to do – specifically what reasons a sensitive, reasonable agent would respond to and what she could be asked to do given constraints and competing demands on her energies, attentions, abilities, and access to assistance. In core cases, a failure of due care will involve the failure to perform the behavioral component for a morally defective reason (whether a negligent motive, a malicious motive, or something described in a more fine-grained way) and the action will be morally classified in a way that marks both the behavioral failure and the defective motive. In peripheral, downstream cases, there may be a behavioral failure that is not quite an accident but the explanation for the failure does not conform fully to the pattern of the core cases. We may coherently call these cases of negligence in the sense that the agent did not regard failure as an end and in the sense that for some purposes, the agent may be held partly responsible for the consequences. While these are important cases to contemplate, I resist thinking that they are the core cases of negligence, that they should be assimilated to those cases in which we think agents bear full moral responsibility for their failures to supply due care, and that they should be the cases that drive our moral assessments of negligence.

    Difficulty of Control

    Matt returns to a point that he initially made that I did not directly address in the last set of replies. He speculates that the traditional hierarchy may reflect a sense that malicious motives are more unusual and require less vigilance to suppress. This is connected to the sense of some that it may be easier to control our malicious motives than our negligent motives; if so, this fact might serve as a source of support for the traditional hierarchy.

    I return to a general skepticism about whether we can generalize here and whether we really do believe as a general matter that malicious motives are unusual or easier to control than to put the hard work in to pay adequate attention, exert one’s agency carefully and adeptly, and otherwise assure one shows due care. As a counterpoint, I am struck by the fact that some aspects of our culture are driven by assumptions to the contrary. Many defenses of capitalism rehearse the difficulty of controlling one’s selfish and greedy motives even when their satisfaction involves inflicting losses on others or taking as much as one can from a cooperative venture, rather than taking only a fair share; likewise, many defenses of neo-liberalism rehearse the difficulty of controlling one’s political ambitions to gain power even when such gains involve exploiting others’ vulnerabilities. Rather than expecting people to refrain from exploiting their market partners for maximum advantage, many defenders of capitalism claim that social forces and institutions must be structured so as to harness these venal motive to social advantage. It is too much to expect people to control them for themselves. Notice that according to these theories, these venal motives are daily affairs, not atypical anomalies. Similar points are made about mitigating the effects of political ambition through institutional checks and balances. I mention these examples not to embrace them, but rather to make three points.

    First, these examples indicate at least some cultural ambivalence about whether malicious motives are atypical or easier to control than avoiding negligence. I don’t endorse them. Quite the contrary. But, I take their familiarity and their plausibility to many to reinforce my sense that generalities may be difficult to come by in this arena. Second, they connect to a point Matt made, namely that what you think of the traditional hierarchy and the significance of negligence is tied up with your baseline theory of what actions are wrongful and how much effort due care requires. I would add that one’s thoughts are also tied up with which motives we take for granted as beyond effective control and which we hold agents accountable for controlling. This point might be extended to a third, namely that how demanding various forms of good behavior are for individual agents may have a great deal to do with social design, social structure, and social expectations. These points of interdependence and context may lend further credence to my sense that the traditional hierarchy is difficult to defend as a general matter.

    As with any intriguing issue, there’s a great deal more to explore here. I hope to take up these and other issues the contributors raised on another occasion in greater detail. For now, I’d like to reiterate my gratitude to the organizers of this discussion – especially David Sobel and Hille Paakkunainen –, to the contributors – Ekow Yankah, Scott Hershovitz, Steve Sverdlik, Matt King, and Claire Finkelstein- for their challenging and constructive comments, and to Oxford University Press for facilitating access to the article.