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.1