18

The Culpability of Negligence*

Michael S. Moore and Heidi M. Hurd

1. Introduction

Whatever its status within the civil law of torts, negligence is a problematic basis for
criminal liability.1 On both utilitarian and retributive grounds it is suspect as mens
rea because in the case of merely negligent behaviour, there is no choice to do some
act prohibited by law, nor even an awareness that some act risks being of a kind
prohibited by the criminal law. In the case of negligence there is only the counter-
factual judgement that a reasonable person would have foreseen the risk and the
normative judgement that this defendant should have foreseen the risk. But these, it
is argued, are insufcient for either deterrence or retributive purposes.
This is the question we shall examine. Preliminarily, however, we will in this
introduction rst, describe how negligence is conceived; second, describe how
criminal negligence is distinguished from ordinary civil negligence; third, state
the standard objection to negligence being the basis for criminal liability; and
fourth, outline one well-known response to the standard objection, that of Herbert
Hart. The body of the paper is organized in terms of two sorts of on-the-merits
replies to Harts defence of negligence as a proper basis for criminal punishment.

* This paper was written during our tenure as Fellows at the Fleming Centre for Advancement of
Legal Research at the Australian National University College of Law, Canberra, Australia. A longer
version of this paper will be published as Punishing the Awkward, the Stupid, the Weak, and the
Selsh: The Culpability of Negligence, in a forthcoming issue of the journal Criminal Law and
Philosophy. Our sincere thanks to the Centre and the ANU College of Law, together with their Director
and Dean, Peter Cane and Michael Cooper, respectively, for providing us with such a congenial
location in which to do this work. Our thanks also go to Larry Alexander, Peter Cane, Kim Ferzan,
Doug Husak, Holly Smith, Jonathan Schaffer, and Ken Simons, for providing us with helpful
comments on earlier drafts of the present article. In addition to those thanked above, we would also
like to thank our expert Faculty Librarian Liaison, Stephanie Davidson, and our energetic research
assistant, Emily Norris (J.D. 2011) for their conscientious accumulation of relevant literature and their
thoughtful ideas on the topic. We are grateful, as well, to the University of Illinois and to those who
endowed our faculty positions for supporting our research. We owe a special thanks, nally, to our son,
Aidan Moore, both for providing us with extensive eld-experience on the topic of negligence and for
regaling us over recent months with countless Darwin Award stories that have repeatedly refuelled our
discussions of this topic.
1
This is a long-running debate. For early antecedents, see Hall 1963; Williams 1961: 1223.

The Culpability of Negligence. Michael S. Moore and Heidi M. Hurd.

Oxford University Press 2011. Published 2011 by Oxford University Press.
312 Criminalization

1.1. Negligence
There is a lively debate in contemporary Anglo-American tort law scholarship about
whether the concept of negligence essentially involves risk-taking that is not cost
justied; or the behaviour of a hypothetical reasonable person; or a duty not to risk
others solely for ones own benet; or something else.2 This is both a normative
debate about what is the best concept of negligence to use in deciding torts cases,
and an empirical debate about what concept of negligence is in fact used by the
courts in deciding such cases. We shall prescind from these debates, adopting a risk-
based notion of negligence. We do this because negligence is standardly understood
in the criminal law in terms of risk, so that the question of justifying the punish-
ment of negligence devolves into the question of justifying the punishment of
unreasonable risk-taking.
All behaviour that causes harm to some victim is, of course, ex ante, behaviour
that imposed some risk of that harm.3 Yet such risking, by itself, is not constitutive
of negligence; being liable on the basis of such riskings, without more, is accurately
enough described as strict liability. Negligence, by contrast, involves unreasonable
risking. As the Model Penal Code puts it, negligence is the imposition of a
substantial and unjustiable risk, the latter being dened as a risk the taking of
which would violate the standard of care that a reasonable person would observe in
the actors situation.4 This denition leaves open whether unreasonable is further
cashed out in cost-benet terms, whether asymmetries in who receives upside
benets and who suffers downside risks is part of such cost-benet calculations,
whether risk-neutrality is assumed, and other like questions that so occupy con-
temporary torts scholars. Sufcient for our purposes is to conceive of negligence as
unreasonable risk-taking.

1.2. Criminal negligence

Criminal negligencethat is, the kind of negligence sufcient for conviction of a
crimeis usually conceived as being ordinary, civil negligence, only more of it.
That is, criminal negligence is equated with gross negligence, grossness being
recognized for the degree-vague term that it is. (As Judge Magruder once put it, if to
be ordinarily negligent is to be something of a fool, then to be grossly negligent is to
be a damned fool.5) Where the risks are serious and obvious and the justications
for running them are minimal, the negligence is gross.
It is often assumed that negligence of any kind, including criminal negligence,
must involve risk-taking that is inadvertent as well as unreasonable. As Alexander

2
See, e.g., Wright 2002a; Wright 2002b; Wright 2003.
3
This is a version of the view that whatever was actual must have been possible. It probably
presupposes some objective notion of probability and risk. For an introduction to objective versions of
the semantics of the probability calculus, see Gilles 2000.
4
Model Penal Code 2.02(2)(d).
5
A much quoted saying from the late Judge Calvert Magruders Torts class at the Harvard Law
School, reported in his retirement farewell. Features Staff 1959: 7.
 The Culpability of Negligence 313

and Ferzan put it: True negligence is inadvertent creation of unreasonable risks.6
The idea is that if the actor adverts to the risk, then (in criminal law terms) he is
reckless (or willful and wanton) and not merely negligent. Because it matters to
our later discussion, it is important to see now that there is an alternative interpre-
tation of negligence, one that allows for the possibility of there being advertent
negligence.
Suppose the difference between recklessness and negligence was two-fold, in that
to be reckless: (1) the actor must advert to the unreasonable risk taken; and (2) the
risk taken must not only constitute gross negligenceit must be gross, gross
negligence; i.e. negligence of an even higher degree. ( Judge Magruder continued
his colourful characterizations of ordinary and gross negligence by distinguishing
recklessness from both; recklessness was a risk taken only by a god-damned fool.7)
Something like this two-fold distinction between negligence and recklessness is
suggested by the Model Penal Codes denition of recklessness, which requires a
risk the taking of which involves a gross deviation from the standard of care that
a law-abiding person [not merely a reasonable person] would observe in the
actors situation.8
We have considerable sympathy for this expanded view of negligence. Consider
the case of the San Francisco cable car brakeman and conductor at the top of
Russian Hill in San Francisco on a rainy day; before starting down the hill, the
brakeman said to the conductor, Ive lost the cable. This meant that the car would
not be xed to the cable and limited because of that to the cables speed; instead,
the car would have to rely on its brakes alone to slow its descent, which meant that
the friction between the wheels and track would have to be great enough to hold the
mass of the car and its passengers. It turned out that wet steel did not have a
sufcient coefcient of friction to hold a car of that mass at that angle of steepness,
and several passengers died in the resulting uncontrolled descent.
The brakemans comment to the conductor to our minds indicates an awareness
of some risk that the brakes would be insufcient to hold the car. Even so, it may
well have been that the objective imbalance between the risk taken and the reasons
for taking it was not so large as to be that which a law-abiding person would not
take. The risk seems a stupid one, given the design of the cable cars and the degree
of inconvenience involved in reattaching the car to the cable in the rain. Still, the
risk taken by the employees was a risk to themselves as well as to their passengers,
and it may well have been a small one, given the relative effectiveness of the braking
system. Were this the case, we would classify the employees as negligent and not
reckless, despite their apparent awareness that some elevated risk attached to their
conduct.
Alexander and Ferzan seemingly disagree about such a case. By conning
negligence to inadvertent risk taking, they implicitly claim that if defendants have
any awareness of a risk, and yet choose to take it, they are not negligent but

6
Alexander and Ferzan 2009a: 69.
7
Features Staff 1959, 7.
8
Model Penal Code } 2.02(2)(c).
314 Criminalization
reckless9opaquely reckless, perhaps, but reckless nonetheless.10 This would be
one way to preserve the objection that negligence requires inadvertence and that
one cannot advert to what one has not already adverted to. Yet this is a counterin-
tuitive and unnecessary defence. It is counterintuitive because it uses a small
differenceany scintilla of awareness of a riskto mark a signicant breakpoint
in culpability. We think, by contrast, that one needs Magruders objective magni-
tude of imbalance, in addition to awareness, to mark this signicant breakpoint in
culpability.
The Alexander/Ferzan defence is unnecessary because their objection to the
criminalization of negligence survives intact even if they were to envisage advertent
negligence as possible. True, the objection is now directed to but one kind of
negligence, inadvertent negligence. But the force of the objection, and the clarity of
its application, are undiminished.
Conceived our way, the criminal law could properly characterize as negligent
both advertent as well as inadvertent risk-taking. This narrows the concern about
punishing negligence to one kind of negligence, inadvertent negligence. It does not
of course eliminate that concern.

1.3. The standard objection to punishing inadvertent negligence

The standard worry about inadvertent negligence is that inadvertent actors never
choose to cause the harms for which they are held liable.11 And choice, the objection
continues, is the touchstone of both culpability and deterrability.12 Culpability is
generally conceived of as wrongdoing in the mind of the actor.13 That is, if an act
would be wrong to do, then seeing oneselfthrough ones minds eyeas doing
such an act is what makes one culpable. And that mental representation of the
action in its wrongful characterization is just what is missing from the mind of
the inadvertent actor.
Choice is seemingly also needed for deterrability. The incentive effects of legal
sanctions work though the minds of actors. The dominant point of opportunity for
deterrence to do its work is thus the realization by those actors that they are doing
(or at least risking the doing of ) something that the law forbids. This realization,
again, is just what is missing in the mind of merely negligent actors.

1.4. H. L. A. Harts response to the standard objection

In his discussion of criminal liability for negligence Herbert Hart recognized that
such liability was often imposed on actors who did not choose to do wrongful acts.
Yet, he argued, there is a culpability of unexercised capacity in addition to there

9
Alexander and Ferzan 2009a: 69, 78 n. 25.
10
Ferzan 2001.
11
See, e.g., Hall 1963; Williams 1961: 122123.
12
Moore 1997: 54892.
13
Moore 1997: 40411.
 The Culpability of Negligence 315

being a culpability of choice; i.e. one can justly be blamed for wrongful failure to
exercise a capacity not to have done a wrongful act, just as one can justly be blamed
for having chosen to do such an act.14 Indeed, as Hart and others have urged,15 one
can view the culpability of choice as being but a special case of the culpability of
unexercised capacity: if one adverted to the likely consequences of ones action, and
if one nonetheless chose to go forward, one must have had the capacity not to have
so acted (because one had a capacity not to have so chosen).
Likewise, this argument goes, deterring negligence is possible for the same sort of
reason. If negligent actors have the capacity not to do wrongful acts, then it is
possible that legal sanctions can induce them to exercise that capacity.16 True, such
sanctions have more work to do to incentivize negligent actors, as opposed to
reckless or intentional actors. Such sanctions must direct the attention of the merely
negligent actor to the aspects of his action that make it negligent, whereas in a case
of intentional or reckless wrongdoing, sanctions do not have this preliminary
cognitive task. In the latter kind of case, sanctions need only provide further
motivation to avoid intentional wrongdoing or known risk-taking; they need not
overcome the actors preoccupations or distractions in order to direct his attention
to the risk of wrongdoing to begin with. But if negligent actors have the capacity to
advert to the risks of their behaviour, then sanctions might induce them to do so,
much like the proverbial string on the nger can succeed in inducing remembrance
of an important appointment or obligation.
Hart eshed out his view that unexercised capacity is the true touchstone of
culpability and deterrability by noting the role of true incapacities as excuses. If
youth, for example, prevents that maturity of judgement needed for accurate risk
assessment, then an accused possessed of that incapacity should be excused; such
youths cannot do better, and their comparative inability in this regard is not their
fault, so they should be excused. Only if they have the capacity to do better in this
regard than they actually didas measured by their own capacities, not those of
more mature adultsshould they be held responsible. Hart famously urged an
individualization of the negligence standard to relativize negligence judgements to
the individual capacities of each defendant17as one should certainly do if unex-
ercised capacity is indeed the touchstone of culpability and deterrability.
For over half a century Harts account of how inadvertent creation of unreason-
able risks makes one culpable has dominated criminal law theory. Antony Duff s
long-held position, for example, explicitly follows Harts in this regard.18 (As Duff
recognizes, Moores account of the culpability of negligence also followed Harts,

14
Hart 1968. Many others have adopted Harts view that there is a culpability of unexercised
capacity in negligence. See, e.g., Horder 1993; Moore 1997: 41114, 58892.
15
Hart 1968: 1503; Horder 1993.
16
Hart 1968: 1567.
17
Hart 1968: 1546.
18
Duff 2009: 702. One interpretation of Joseph Razs recently published account of the
culpability of negligence is that it is a do-over of Harts unexercised capacity view, although Raz
substitutes his own vocabulary by speaking of negligence as a malfunctioning competence (Raz 2010).
If Razs view is not just that of Harts, then it is a do-over of the account provided by George Sher
(2009), which we discuss in the longer version of this paper.
316 Criminalization
for a time.19) Duff forthrightly states Harts position: When I am blameworthy for
negligently causing or failing to prevent a harm, it must be true of me that I could
have noticed, and averted, the risk (and thus avoided causing the harm), by paying
more attention and by acting differently.20 Duff divides the capacity I must have in
such cases into two kinds: (1) the physical capacities needed to control the move-
ments of my body; and (2) the rational capacities needed to advert to the reasons
I have to control those bodily movements in one way rather than another, speci-
cally including those reasons that consist solely in the fact that my acts impose risks
of harm on others.21

1.5. Organization
There is logical space for two sorts of queries about Harts culpability/deterrability
of unexercised capacity. One is to ask whether persons really do have the capacity
not to have caused some harm when they did not realize that their actions even
risked such a harm. The second is to ask whether the non-exercise of such a
capacityassuming negligent actors possess itmakes one culpable, or at least,
culpable in a way that makes them deserving of criminal punishment. We have
organized the discussion in the body of this paper into two sections corresponding
to these two queries. Preliminarily, however, we shall address a question that we
need to answer if we are to properly frame the capacity question: What is it to advert
to a risk? If we answer this question, that should help us get at what it is to have a
capacity to advert to a risk.

2. Adverting To, Believing In, and Being Aware Of a Risk

Before we get to the question of having a capacity to advert, we need to be clear

about what it is that is the object of that capacity. What is it, in other words, to
successfully advert to a risk? The law gives us the near synonyms we are to use
here:22 to advert to a risk is to believe (or know) that the risk existswith the caveat
that only conscious beliefs or knowledge constitute advertence, so that the answer
can be put as a requirement that an actor be aware of the risk as he acts.
The hard question is when we should be said to be aware of a risk (equivalently,
when we should be said to consciously believe that a risk exists).23 There is a knot of
messy questions here. We disentangle them as follows:

19
Duff 2009: 71 n. 41, citing Moore 1997: 41119, 58892. Duff accurately notes that Moore
has changed his mind on this from his position in Moore 1990: 568.
20
Duff 2009: 71.
21
Duff 2009: 72.
22
Model Penal Code } 2.02(2).
23
Doug Husak nds this to be a pivotal topic that is radically undertheorized by those engaged in
the debate about the punishability of negligence, a situation he deplores as scandalous (Husak
forthcoming). Although we would be happy to pretend that our examination of this question in this
section is all new, in fact what follows is a summary of our own and others work on just what
awareness does mean.
 The Culpability of Negligence 317

(1) First, there is the ambiguity in the object of the belief needed to characterize
an actor as having adverting to the risk that his act will be a wrongful one. Need he
advert to the wrongness of his act, so that he sees not only that he might be doing an
act of type A, but also see that A-ing is wrong? Or it is enough to advert to the fact
that he risks doing an act of type A, with A-ing being wrong (irrespective of whether
he believes A-ing to be wrong or not)? Without arguing the point, we will here
assume that current criminal law is correct in its stipulation that culpability for
recklessness/foresight/intent only requires advertence to the fact that A is being
done, not to the moral fact that A is wrong.24
(2) This rst stipulation raises the question of what factual aspects of A one must
be aware of in order to be aware of some risk that A imposes on some occasion.
Using the Model Penal Codes categories,25 to be aware of a risk, must one be aware
of: (a) a risk of this type? (b) the substantiality of such a risk? (c) the unjustiability
of taking a risk of this magnitude, including an awareness of both the seriousness of
the harm risked and the value of the reason for running the risk? The right moral
answer is (a), and (we think) the law also only requires (a) for the culpability of
recklessness.
(3) Third, there is the typing of risk problem. How accurately, and with what
degree of specicity, must an actor type the risk in order to be said to be aware of the
risk that makes him culpable? Is the mother who leaves her infant in the tub while
she answers the front door aware of the risk her baby will drown, if she frames the
risk involved with leaving the child as the risk that the baby could fall out of the tub
if unattended? Is she aware of the risk of drowning if she frames the riskiness of her
conduct simply as a risk that something bad could happen? Is she aware of the risk if
she simply has a free-oating foreboding?
(4) Fourth, if we mean for the notion of awareness to designate a phenomeno-
logical experience, how clear and vivid must the experience be to constitute
awareness? A silent soliloquy, my baby might drown, or a visual image of her
baby drowning, would be sufcient, but are these necessary? Would a dim aware-
ness, an inkling, a suspicion, sufce for the advertence required for recklessness if
present in consciousness as she leaves the baby? Would such dim awareness sufce
even if her mind is mainly focused on something else, such as the social invitation at
the door? Or should there be a threshold of vividity in ones awareness of a risk to
mark this line separating negligence from recklessness? 26

24
Model Penal Code } 2.02(7). George Fletcher points out that this leaves room for some
inadvertence in intentional wrongdoing, viz, that the actor need not advert to the wrongness of what
he does but only to the factual nature of what he does (Fletcher 1971: 4203).
25
Model Penal Code } 2.02(2)(c). Ken Simons points out that resolving this ambiguity the way we
dowhich is to require awareness only of the type of risk but not of its magnitude or lack of justication
for running itleaves room for some inadvertence in recklessness (Simons 2009: 2901).
26
Stephen Garvey thinks of these as negligence cases (so long as the belief is the product of a
desire over which the actor has doxastic self-control). See Garvey 2006: 3378; Garvey 2009: 286
8. Alexander and Ferzan would class them as reckless. Alexander and Ferzan 2009b: 2923. We
think there is a threshold of vividity that divides recklessness from negligence, although it is a sliding
318 Criminalization
(5) Fifth, should any phenomenological experience be required in order to
constitute awareness of a risk? The philosophy of mind has long distinguished
standing beliefs from occurrent beliefs, consciously experienced beliefs from
dispositional beliefs.27 And many of the beliefs that we rightfully attribute both
to ourselves and to others are standing or dispositional beliefs. Moreover, these
beliefs are not just idly standing around, so to speak; they are beliefs that we act on
and make inferences from without consciously calling them to mind.28 Freudians
call these preconscious beliefs, to be distinguished from the conscious beliefs
that occupy our phenomenological experiences.29 A preconscious belief is one
that the holder can direct his attention to if need be, including the stating of
what is so believed if asked. Awareness too, has this preconscious sense.30 When
one drives a curvy mountain road with ones mind on something else, one is not
experientially aware of the physical features of the road and the risks that they
impose but one is dispositionally aware; the latter, because one can direct ones
conscious attention if needed by encounter with a surprising feature or emergency,
and because one can state what one is doing if asked.
Has one adverted to a risk if one dispositionally believes (or is dispositionally
aware) that it exists? This is not a psychological question but a moral/legal one. Once
we are clear about the psychology, it is a moral question as to where the signicant
break points in culpability occur. We think that some instances of dispositional
awareness/belief can constitute advertence. This kind of awareness/belief is all any
actor ever has as he exercises well-honed habits and skills, such as driving an
automobile or ironing clothes or mowing a lawn or executing a repetitive task on
an assembly line.31 Yet we are responsible for the way that we do these activities.
The acts that constitute such performances are rightly regarded as chosen despite the
lack of conscious experience of the choice. Still, the culpability is lesser than it would
be with fully vivid, phenomenologically conscious, occurrent beliefs,32 so that
some of such dispositionally-aware-of-the-risk cases should probably be classed

scale threshold, varying with the degrees of imbalance between risk and the reason for running
of the risk.
27
e.g., Dennett 1987. See also Husak (forthcoming). As Sher writes, even if the contents of an
agents consciousness include both what an agent is focusing on and what he is passively aware
of . . . these items still represent only the tiniest fraction of the information to which he must take
himself to have access in order to carry out his task (Sher 2009: 127).
28
For an argument that these beliefs are also the product of active construction, see Pillsbury 1996:
14150.
29
For an extended discussion of the Freudian topographical metapsychology in terms of con-
scious, preconscious, and unconscious, see Moore 1983, revised and reprinted in Moore 1984:
12637; Moore 1988, reprinted in Moore 1997: ch. 10.
30
Dennett 1969: 11431. Dennett calls these awareness1 and awareness2.
31
An old and well-known observation of William James: It is a general principle in psychology that
consciousness deserts all processes where it can no longer be of use. . . . We grow unconscious of every
feeling which is useless as a sign to lead us to our ends, and where one sign will sufce others drop out,
and that one remains to work alone. James 1890: Vol. 2, 496.
32
A conclusion Doug Husak too reaches about such cases. See Husak (forthcoming).
 The Culpability of Negligence 319

as negligent (so long as the objective imbalance between the risk and the reason for
running the risk is not too egregious).33
The last two points can of course be combined. Sometimes, at least when a
dispositional belief is executed in our behaviour, we have some dim (experiential)
awareness that this is so. But we neednt have such awareness, and we seem to have
culpably chosen to do some wrongful acts in light of such beliefs nonetheless.
(6) Sixth, there is the question of how we should classify the phenomenon the
criminal law calls willful blindness. On the common laws conception of this
phenomenon, this occurs when: (a) the actor has the inkling or suspicion (discussed
in (4) above) of the existence of some risk; and (b) he does not want to know for
sure that there really is such a risk, so he avoids steps that he knows to be available to
verify its existence, including even thinking more about it. The criminal law
classies this as adverting to the risk because it equates the culpability of suspect-
ing-and-choosing-not-to-know as equivalent to the culpability of straight-out
choosing to take an acknowledged risk.34 Judges put the rst of these as an almost
knowing of the risk,35 and in this we think they are right. Such cases should be
treated as exhibiting the culpability of recklessness, i.e., adverting to the risk.
(7) Seventh, there are situations of cognitive dissonance, where an actor sort of
believes both that there is a risk and that there is not a risk. Suppose one is
approached in a bar in Tijuana and asked to drive a car across the border into the
United States for $100.00.36 Suspicious that there are drugs in the car, one looks in
the secret compartment in the trunk, in the rocker panels, and everywhere else
where one thinks drugs could be, and there are no drugs. Yet the deal in the bar
makes sense only if there are drugs in the car. Ones psychological state could
be one of cognitive dissonance: one both believes that there is a risk that drugs are in
the car, and one believes there cannot be any drugs in the car. Has one adverted to
the risk that there are drugs in the car? The answer presumably is in the afrmative,
despite the countervailing belief of the cognitively dissonant actor.
(8) Eighth, conicting beliefs are endemic in cases of true self-deception.37 To
be self-deceived about something is both to know and not to know that thing. One
who is self-deceived is both deceived (and so, is unaware of a salient fact), and is the
deceiver (and so, is aware of that fact). In cases of true self-deception, unlike in cases
of wilful blindness or cognitive dissonance, there is no inkling or suspicion on the

33
As with the threshold of vividity for phenomenological awareness, here too we would think a
sliding scale would be appropriate, the scale trading off between the kind of awareness the actor has of
the risk, and the degree of imbalance there is between the risk and the reason for running the risk.
34
The criminal law distinguishes result elements from circumstance elements of the actus reus for
purpose of applying its wilful blindness doctrines. Model Penal Code } 2.02(7) regards wilful blindness
with respect to results as recklessness, not knowledge (as it is with respect to circumstance elements).
35
A court can properly nd willful blindness only where it can almost be said that the defendant
actually knew. United States v. Jewell, 532 F.2d 679 (9th Cir. 1976).
36
A version of the facts in Jewell.
37
The locus classicus of self-deception remains Fingarette 1969.
320 Criminalization
part of the passively deceived self, yet there is more than an inkling by the actively
deceiving self.38
True cases of self deception are more active than cases of mere wishful thinking.
In the latter sort of case, ones desire (e.g., that there be no risk) causes a belief (that
there is no risk). Yet there is nothing in mere wishful thinking to tempt one to
conclude that the wishful thinker has adverted to the risk he wishes (and believes)
does not exist. In cases of self-deception, by contrast, there is a desire not to know
there is a risk (rather than a belief that there is no risk), and while that desire, too,
causes a belief that there is no risk, the causing of the belief is something the person
does himself. He actively keeps himself from knowing.
Despite the active nature of self-deception, a nature not shared by wishful
thinking, our sense is that such cases are not to be classied as cases of advertence.39
The deceiving self operates unconsciously, and although there are unconscious (not
preconscious) beliefs (both in general and in self-deception), these should not count
as advertence.
(9) Ninth, there are simple cases of unconscious beliefcases in which there is
no active deceiving but only something believed of which the actor is not (either
phenomenologically or dispositionally) aware.40 These we should classify (as does
the law) as cases of inadvertence. Clarity is served by such classication. Even if one
were to disagree with present law and conclude that one is recklessly culpable for
what one unconsciously believes about a risk, that conclusion would be better put
as one dispensing with advertence as a prerequisite for the culpability of reckless-
ness, not one nding advertence in unconscious beliefs.
We come, then, to a ragged and, in places, fuzzy line. To advert to a risk is to be
either dispositionally or phenomenologically aware (over some threshold of vivid-
ity) that there is some risk of roughly the type that was realized, even if one has
contrary beliefs about that risk and even if ones belief that there is no risk is caused
by ones desire that there be no such risk, but such advertence does not exist with
truly unconscious beliefs that there is a risk, even if such beliefs are part of self-
deception about the existence of such a risk. To advert to a risk in this sense is to
have the culpability of recklessness (so long as the imbalance between the risk and
the justication for running the risk is sufciently high); not to advert to a risk in

38
As another commentator has concluded, in this content, self deception [consists of] the neat but
real mental trick of being aware and not being aware of something at the same time (Taslitz 2009:
289).
39
Stephen Garvey too classies such cases as negligence and not as recklessness (Garvey 2006;
Garvey 2009).
40
On the idea of unconscious mental states generally, see Moore 1984: 12642, 24980; on the
idea of unconscious beliefs specically, see Moore 1984: 2958, 32531. The idea of unconscious
belief that Moore defends is one whereby a mental state: (1) is a mental state of a person because of its
(in principle) recapturability in conscious experience; and (2) is a belief state because it both plays the
functional role of beliefs in the explanation of behaviour, and shares the physical structure(s) of such
functionally specied states.
 The Culpability of Negligence 321

this sense, when one should, is to be negligent (leaving open whether there is a kind
of culpability consisting of such negligence).

3. The Capacity to Advert

Once we are clear about what it is to advert, the next question concerns what it
means to say that one either has or lacks the capacity to advert. This involves us
directly in what many regard as one of the most difcult questions in philosophy,
namely, the question of just what capacities are.41 That this question is so difcult
is surprising, because it seems at rst blush that capacity statements are familiar
items of everyday discourse that wear their meaning right on their surface. Yet the
more one thinks about capacities, the harder they are to elucidate.42
There is, rst of all, difculty in even specifying the domain of an enquiry about
capacity. Capacity is one of a family of concepts that are closely related to one
another. One can ask whether the negligent actor had the capacity to have adverted
to the risk(s) his behaviour posed. But equally well one could ask: whether he had
the ability to have adverted; whether he could have adverted (or can advert, in the
present tense); whether it was possible for him to have adverted; whether it was
within his power to have adverted; whether he possessed the skill or competence to
advert; whether he was able to advert. Whatever may be the subtle differences
between these notions,43 our working hypothesis will be that abilities, powers,
capacities, skills, competences, and possibilities do not differ in ways that need here
concern us.
Second, there is the basic ontological question of what kinds of things capacities
are. Are they what they are and no other things? That is, are they metaphysically
primitive? Or are they to be identied with, or reduced to, other entities, properties,
or relations, e.g., the truth-makers for certain counterfactuals? It is not that we
lack views on this issue. It is rather that any such views are philosophically
controversial,44 and it is a needless controversy here because the important issues
about capacities can be raised by those who are either primitivists or reductionists
about capacities.
Third, there is a potentially clarifying distinction commonly drawn between
general and specic capacities.45 This is not a distinction between capacities
possessed by all people and those possessed by some one particular person; nor is
it a distinction based on the range of activities that are the objects of a given

41
Peter van Inwagen nds the question of how can (in the relevant sense) should be analyzed to
be one of the most difcult questions in philosophy (van Inwagen 1975: 185).
42
Gary Watson nds that the idea of an unexercised capacity is much more difcult to make sense
of than it initially appears (Watson 1977: 317).
43
Or not so subtle differences. J. L. Austin, for example, purported to discover an ability sense of
could, an opportunity sense of could, and an all-out sense of could (Austin, 1961: 129). Could in
the last two senses would not of course be synonymous with ability. John Maier (2010) explores some
differences between powers and abilities.
44
For one side of this debate, see Molnar 2003; for a mixture of views, see Marmodoro 2010.
45
See, e.g., Mele 2003.
322 Criminalization
capacity. Rather, it is the distinction between a given individual possessing an
ability (such as an ability to run a mile in under four minutes) over some stretch of
time but on no particular occasion, on the one hand, and that same individual
possessing the ability to do that thing (run a mile in under four minutes) on some
particular occasion, either past, present, or future.
Fourth, there is considerable confusion introduced by the connection of our
questionabout the nature of capacitieswith general issues of determinism and
free will. This means that often in the background of capacity judgements will lurk
very general judgements about how all or some events are causally determined (by
antecedent events and the causal laws connecting the past to the present).46 The
crux of the confusion lies in what we shall call the contra-causal theory of capacity
(or, alternatively, the causal theory of incapacity).47 On this view, one lacks the
capacity to have done otherwise if ones act was caused by events in the past, when
causation is conceived of in terms of sufcient conditions. The idea is that if those
antecedent events were sufcient to have caused the act in question, then the actor
could not have done otherwise; he lacked the capacity or ability to do otherwise; it
was not possible for him to do otherwise; etc. On the same view, one has a capacity
to do other than one did only when that act was not caused (or not sufciently
caused); only then was an alternative to that act really possible; etc.
Whether there is an idiomatic sense of can, could, power, ability, possibili-
ty, and capacity that corresponds to the usage of these terms by the contra-causal
theory of capacity, is a much disputed matter. (One of us doubts that there is very
much.48) However one comes out on that debate, incontestably the sense wanted
here is not that contra-causal sense of those words. When the coach says to his track
star, you could have won the race, he does not mean that there were no factors
sufcient on that occasion to cause the loss of the race; he might mean that the
runner would or could have won the race if he had tried harder, for example.
Analogously, when we say of the negligent motorist, you could have adverted to
the risk, we are not suggesting that there were on that occasion no factors sufcient
to have caused him not to advert. We might mean that he would have adverted if
just one of those factors had not been present, say that he just cared more about the
welfare of other people, for example.
If one combines the contra-causal theory of capacity with a belief in determin-
ism, this produces a very Pickwickian sense of capacity, could have done other-
wise, etc. For notice what results is a kind of actualism about capacities. An
actualist collapses the possible into the actual. On this view there never are any
possibilities other than the one thing that happened. All historical speculation
about what was possible is senseless, on this view. Considering what is possible in
the future is also senseless when interpreted literally, because only one thing on this

46
Keith Lehrers classic article, Lehrer 1976, is very good in its exploration of this.
47
The name is close to the causal theory of excuse, discussed in Moore 1985, reprinted as ch. 12 of
Moore 1997.
48
See Moore 1985.
 The Culpability of Negligence 323

view is really possible, everything else being relegated to the epistemic status of
seemingly (even though not really) possible.
We thus put aside the contra-causal sense of could, capacity, etc., even if there
is such a sense to such words. But even so, keeping the contra-causal sense from
slipping back into our judgements is not easy. When somebody denies that any of
us ever possesses a certain capacityas Alexander and Ferzan deny that anyone ever
has a capacity to advert to a risk in fact not adverted toit may be tempting to
interpret capacity contra-causally. It is a temptation to be resisted, because it
makes such theses trivial. Such a thesis would then become no more than an
instance of the actualists general view that nothing that was not actual was ever
possible.
Fifthly, the main difculty about capacities is their apparent conditionality. As
J. L. Austin breezily put the question, Are cans constitutionally iffy?49 On the
surface, our usages of could, can, etc., are not conditional but categorical; we say
things like, Smith could have won the race, and Jane could not have won the race,
at out, as it were. Yet if we press these expressions, they all become iffy.
Consider a coach who tells his track star, you could have won the race. One can
imagine contexts of utterance in which what is meant is: you would have won the
race if: (1) you tried harder; (2) you got more sleep last night; (3) you hadnt argued
with your girlfriend last night; (4) you kept your head down as I told you; (5) you
lengthened your stride; (6) you got a better start, . . . etc., etc. Is there any context
of utterance where none of these thingsand nothing like theseis meant?
Imagine this conversation: Coach: You could have won the race. Track Star:
How? I tried as hard as I could. Coach: You just could haveyou had the
capacity to win. Track Star: What do you mean? I did everything right, in terms of
stride, arm position, head position, start, length of pace, sleep, lack of stress, etc.,
etc. Indeed, everything you ever told me to do, I did. Coach: Even so, you could
have won.
We nd this conversation unintelligible on the coachs part. If the track star had
the capacity to win the race, that means he would have won it if some condition(s)
or other had obtained. Surely if one could have won the race, one would have won
the race if certain conditions had obtained. Capacity statements at least require that
certain counterfactual conditionals (about what would have happened if certain
conditions obtained) be true.50
Admittedly, to translate all could have . . . statements into would have . . . if . . .
statements is to put our point in a non-neutral way with respect to the primitivism/
reductionism debate about capacities. For this way of putting things reduces
capacities to the truth-makers for counterfactual conditionals. While we think
such reductionism is correct, nothing turns on that issue in this context.

49
Austin 1961: 109. Austins answer was that cans are not implicitly conditional, but the matter
has been hotly debated. Compare Austin 1961, Pears 1972, Lehrer 1976, with Nowell-Smith 1960,
Moore 1912, Chapter VI, Aune, 1967, Kratzer 1977.
50
This depends on the plausible supposition that to have an ability to A requires that one would
succeed in A-ing under some conditions. As Lehrer (1976) points out, the converse supposition is
perhaps not as obvious.
324 Criminalization
The point is that capacity statements are implicitly conditional, no matter whether
capacity statements reduce to, would have . . . if . . . , or whether they remain,
primitively, could have . . . if . . . . We shall thus frame the discussion that follows
in the reductionist framework that we in fact accept. But nothing turns on this. The
point is that one must conditionalize capacity judgements under either interpreta-
tion of them. That insight requires both primitivists and reductionists about
capacity to ll in the conditions that alone can make sense of capacity judgements.
It may seem that when we ascribe general capacities to people, we dont
conditionalize the could judgements. He can run a mile in under four minutes
may seem unconditionally to be true only when the runner of whom it is said has
certain physical equipment. Yet conditions are there, even if vague and quite
suppressed. A runner with such a general capacity need not run a mile in under
four minutes on every occasion where the opportunity to run presents itself.
Rather, he can run such a speedy mile, if he tries hard, if the conditions of the
track, the level of the competition, the weather, etc., are standard, if nothing
distracts him, etc. The speaker knows that this feat by him is possible, in other
words, only under certain conditions, and not others, and he means to include such
conditions, no matter how vaguely specied, in his capacity ascription.
Sixth, it is notoriously difcult to specify the appropriate conditions to be
supplied to make sense of capacity judgements. If, he could have A-ed, requires
the truth of, he would have A-ed if C, we need some sense of how to ll in the C
in this formula. And this is a notoriously difcult task,51 given the apparent
context-sensitivity of capacity judgements. In context, any of the conditions
labelled (1) to (6) above could be meant when one tells the track star, you could
have won the race. In fact, the possibilities seem endless here. Such possibilities
multiply without end if we expand our talk to include capacities of inanimate
objects such as a bridge or an earthquake, speculating for example why a given
bridge (that in fact collapsed) could have held, or how a given earthquake could
have destroyed a city.
If one xes on a particular context in which we use capacity termssay, their use
to divide excused from responsible actorswe do gain some determinacy in the
implicit conditions. Take the well-worn principle of alternative possibilities that is
said to separate all those who are responsible from those who are excused: on this
principle, an actor is responsible for some action only if he could have done
otherwise; if he could not have done otherwise, he is excused.52
On the conditional interpretation of this principle, standard with compatibilists
since Hume, we should translate this principle as follows: He would (or could)
have done otherwise if he had chosen to do otherwise. Compatibilists choose this
interpretation of the principle for two reasons. First, it does conditionalize on
something morally relevant to blameworthinessnamely, the causal efcacy of
ones will. If an actors will would not have changed her actionbecause her bodily
movements were involuntary, or because her will was overborne by the fear induced

51
A feature noted early on by Richard Taylor (1960).
52
See, e.g., Fischer 2006.
 The Culpability of Negligence 325

under the duress of threats or natural necessity, by the anger induced by provoca-
tion, or by the craving induced by addictionthen her will was not the source of
the wrongful action and the actor is not culpable. Second, the condition is
compatible with determinism. A principle that tests whether an actors will did
some causing is silent about whether the will is itself caused.
We shall not pause to examine whether this condition provides an interpretation
of the principle of alternative possibilities adequate to separate all cases of excused
actions from cases of responsible actions, even when limited to intentional/reckless
wrongdoing.53 For however such a condition applies to intentional wrongdoing,
surely it is unhelpful in the context of negligent wrongdoing. To begin with, the
principle of alternative possibilities (when conditioned on choice) gets at the power
of the will to effect changes in the world. This is not the capacity specically at issue
for negligent (as opposed to intentional) wrongdoing. Rather, specically at issue
for negligent wrongdoing is the capacity of an individual to have adverted to
something that would give him a reason to will one act or another. His capacity
to effectuate his willings is not in question: unquestionably the typically negligent
actor could have done other than he did, if he had adverted to the risk. Moreover, if
we were to transplant the condition, if he had chosen differently, to the relevant
capacity question herenot whether one could have acted differently but whether
one could have adverted to a risk not in fact adverted towe get a trivial question.
For choosing to advert to something is already to have adverted to that thing. If
I choose to think about Michaelangelo, I am already thinking about Michaelangelo.
So asking whether one could advert to a risk if one chose to advert to that risk, is
like asking whether one could advert to a risk if one adverted to that risk. Sure
and a rose is a rose, too, for whatever thats worth.
What is wanted in the case of negligence is some condition C that is like choice
for intentional wrongdoing: something that is a morally plausible desert basis for
blame by itself, and that is general enough to separate those who are responsible
from those who are excused because they could not have done better. Yet choice
itself will not do. What is needed is some condition that is like choice (in its general
moral relevance) and yet is not choice (because it must ground culpability where
there is no choice).
Before examining some thoughts about possible conditions, there is a seventh
difculty about capacities to which we should attend. This is the vagueness
inherent in any counterfactual of the form, would have A-ed if C. Even when

53
We in fact have our doubts, for there seem to be too wide a class of excuses (like ignorance,
mistake, insanity, diminished capacity, intoxication, infancy) to be accounted for by the if he had
chosen otherwise condition. The constraint excuses have long been the favorite of followers of Hume
on this conditional (for example, Schlick 1962). Yet even for duress and natural necessity, there are lack
of opportunity versions of these defences that do not easily get separated out by the choice condition.
Someone who is not at all unhinged by the fear a threat arouses (but who nonetheless does have very
high opportunity costs attached to not doing what the threatener wants) can make causally efcacious
choices; what he lacks is the ability to make the choice that he wants. This suggests a could have done
(or chosen) otherwise if he had wanted to do (or choose) otherwise principle.
326 Criminalization
we know what C is, there is a notorious fuzziness about the truth conditions for
such counterfactuals.54
The indeterminacy lies in specifying what possible world(s) we are to use in
testing whether the actor does the thing in question (here, adverts). In the actual
world, he did not advert; but he would have adverted if C. Obviously the possible
world in which we test this differs from our actual world at least in the respect that
C was not present in the actual world but is present in this possible world. How else
do such possible worlds differ from the actual world?
Consider this indeterminacy by way of two examples provided by Michael
Smith.55 In his elucidation of a capacity to call a thought to mind, Smith urges
that an actor has such a capacity when he has success in calling that thought to
mind in possible worlds that are: (1) close to the actual world; (2) constituted by
certain brain states of the actor; and (3) clustered together by a common structure
in the psychological/brain states of the actor. Thus, for Smith, when an actor did
not summon up a thought on a given occasion when there was some obligation to
do so, and this failure was due to the actor blanking because of the nervousness
aroused by the pressure of the moment, Smith concludes that the actor could have
summoned up the thought: because the actor would have summoned up the
thought in a variety of conditions close to those present when he blanked, and
those conditions are underlain and unied by a common psychological/brain state
structure of the actor. By contrast, Smith supposes another actor who also did not
summon up a thought in a like situation of obligation. This actors failure in this
regard was due to his not having read sufciently widely so as to acquire the
information base needed to infer the answer to the question asked. Of this ignorant
actor Smith concludes that he could not have summoned up the thought: he would
not have done so in any possible world where the conditions are such that they both
share a common underlying structure in the brain/psychology of the actor and are
only minor variations from the conditions that obtained when the actor failed to
produce the thought required in the actual world.
Smith is trying to capture two features he believes capacity judgements to
possess. First, when some actor has a capacity to arrive at some particular belief,
he will generally arrive at that belief in situations quite close to those prevailing
when the actor in fact did not arrive at that beliefin situations of this general sort
he usually gets there, in other words, even though he did not happen to do so on
this one occasion. Second, the actor does (or will or would) have this success
because he has the psychological/neurological equipment to do so. Whatever
structures of these kinds may be required for the formation of beliefs of this
kind, this actor had them.
The problem for this account lies in the indeterminacy in this idea of closeness
of possible worlds in which we are to see whether the belief in question is elicited.

54
See the discussion and citations in Moore 2009, ch. 16. Specifying the value of C, and specifying
the other features of the possible world we construct in which to test the counterfactual, can be seen as
one problem, not two.
55
Smith 2004.
 The Culpability of Negligence 327

In the example of the blanking actor, Smith obviously must not regard the blanking
mechanism that was present in the actual case, as something that must be kept as
we construct possible worlds close enough to the actual worldbecause if he did,
that mechanism would still be present in those worlds and it would still blank the
formation of the belief that needed summoning. In the example of the ignorant
actor, Smith obviously must regard that actors lack of information as something
that must be kept as we construct possible worlds close to the actual world,
because if we excluded that condition as we looked at those possible worlds to
see what happens, the belief would be formeda better read, more informed actor
would summon up the thought on a regular basis. Neither of these is an obvious
judgement, because of the vagueness inherent in judgements of closeness of
possible worlds. In some contexts of utterance, surely it is idiomatic to say that
the actor who blanks out of nervousness could not have summoned up the thought;
and in other contexts of utterance, it seems equally idiomatic to say of the ignorant
actor, that he had the capacity to have summoned up the thought.56
These seven difculties may convince some that our talk of capacities/incapa-
cities is hopelessly indeterminate, maybe even senseless. Yet our use of capacity
judgements is far too common to be written off lightly. Among other things, we
need various incapacity judgements to make sense of the excuses we recognize for
intentional wrongdoing.57 So a more sensible conclusion is simply cautionary. We
must tread more carefully here than have the generations of criminal law scholars
who have condently asserted either that we do, or that we do not, have the
capacity to advert to risks that our behaviour unreasonably imposes.
Let us look at the negative assertion rst, that no one can advert to risks not
actually adverted to. What is the condition C being attached here? It seems that
Alexander and Ferzan (and the many whom they echo here) regard the assertion as
categorical, not hypothetical. It is easy to see why, since one might base this
assertion on two necessity claims: rst, that we can advert to a risk only if we can
choose to advert to that risk; second, that choosing to advert to something is a
contradiction in terms, because the act of choosing to advert to a thing implies that
one has already adverted to that thing (and one cannot notice what has already been
noticed). One might buttress the second of these necessity claims with the perhaps
more plausible (although contingent) claim that as a matter of psychological fact,
adverting to a risk (or coming to a belief) is not within our act-repertoires; usually
we cannot simply will our beliefs into existence.58
The real problem for the argument is with its rst step, the step that substitutes a
capacity to choose to advert, for the capacity to advert that Hart thought he was
talking about. Surely this substitution begs the question against an unexercised
capacity theorist about negligence like Hart who introduced unexercised capacity as
an alternative to choice as a basis of culpability. Putting choice back in as the object

56
This perhaps plays on the general capacity the actor has.
57
See Moore 1997, chs 12 and 13.
58
See generally Winters 1978; Winters 1979.
328 Criminalization
of the real capacity one has to have (in order to have the capacity Hart was actually
talking about) guarantees an easy but empty victory over Hart here.
To see the question-begging nature of Alexanders and Ferzans cant advert
objection, consider this scenario. Some theorist (call him Kant) urges that it is not
choice that makes us culpable for our wrongful actions; rather, it is the reasons that
motivate our choices that are the true basis of desert. Now suppose a critic of Kant
were to object, But no one can choose the reasons that motivate his choices; no one
has such a capacity. Surely this objection squarely begs the question, for it supposes
that one can be culpable only for what one chooseswhen the thesis being
attacked holds just the opposite. While one can certainly argue on the moral merits
that it is choice and not reasons for choice that makes one culpable, one does not
mount such an argument by just supposing from the start that the Kantians are
wrong.59
True enough, Hart and his ilk owe us their condition(s) C that can make sense of
there being, for most people most of the time, a capacity to advert to risks not in
fact adverted to. We turn to that shortly. But it is no criticism of Harts unexercised
capacity theory to say that it is false because the culpability of choice is not central
to it.
In any reasonable construal of the condition(s) implicit in the could have
adverted capacity judgement, surely in many senses of capacity, each of us does
have the capacity to advert, do we not? Not because we can choose to advert; but
because we can advert without choosing to do so.60 Indeed, we advert to risks with
great frequencywe call it recklessness (when the risks are very unreasonable ones).
Return to the analogy drawn earlier, to the debate about reasons for choice being
the locus of culpability rather than choice itself. Urging that we cannot advert (to
risks in fact unadverted to) just because we cannot choose to advert, would be like
urging that we cannot make choices motivated by good reasons rather than by bad
reasons just because we cannot choose the motivating reasons for our choices. In fact
we do make choices for good reasons all the time, meaning we can do sothis,
irrespective of the fact that we cannot choose to do so.
One cannot reply that just because we can advert in cases where we did advert,
that does not show that we could have adverted in cases where we did not in fact
advert. Such a reply would be actualism again rearing its ugly head. If we have the
capacity to advert when we do advert, we (sometimes at least) must have
the capacity to advert when we do not advert. The possible is like a symmetrical
halo around the actualif something did happen, and it was possible that it would
not have, then if something did not happen, it also must be possible that it
would have.

59
Joseph Raz so argues on behalf of Kants right reason culpability criterion, specically against
the objection (raised by Moore) that no one can choose the reasons that motivate his choices. Compare
Raz 1989: 11748, with Moore 1989: 87883.
60
This is assumed by Smith in his Rational Capacities article (2004). If an actor has an adequate
information base, Smith thinks, he could have adverted to a thought that he in fact did not advert to.
For Smith, recall, this is even true of the actor who blanks on the thought when asked a question
where the thought would have been an appropriate answer.
 The Culpability of Negligence 329

We still have not specied the implicit condition(s) making sense of these last
capacity-to-advert judgements. But since proponents of there being a capacity to
advert need to supply such conditions no less than do their opponents, we shall deal
with this as we deal with the conclusion of Hart and his followers, that there is a
culpability of unexercised capacity.
Whatever the appropriate conditions are that make sense of a persons (in)
capacity to advert, in order to show that there can be no culpability of unexercised
capacity, it is enough to show that judgements of such capacity are (1) implicitly
conditional, (2) context-sensitive as to what conditions are appropriate, and (3)
vague in the way that counterfactual judgements are generally vague (in terms of
closeness of possible worlds).61 What is needed to make moral sense of such
capacity judgements is a condition (or set of conditions) that itself is a desert-
determinersomething like choice, but not itself choice. That means that such a
desert-determiner (call it X) would itself be the source of culpability for negli-
gence. If it exists, X would ground the culpability of negligence directly, the
capacity to advert if X judgement being a mere implication of the independent
moral signicance of X.
Hart thought the relationship between unexercised capacity and X to be just the
reverse. One can see this in his treatment of choice for intentional wrongdoing. It
was because we have the capacity to have done otherwise in cases of intentional
(and unexcused) wrongdoing, Hart thought, that choice is a source of culpability.62
Yet this is just the reverse of what is true: it is because choice makes one culpable
that one can give sense to there being a capacity to have done otherwise in terms of
the implicit conditional, if one had chosen to do otherwise. And the same has to be
true of negligent wrongdoing. Whatever the X is that is like choice, one will have
the capacity to have adverted (if X) only because X is itself an independent source of
culpability.
So what conditions are plausible candidates for the implicit condition X that
makes moral sense of there being, or there not being, a capacity to advert? Return to
the negligent motorist who hits a child because he is speeding in a residential
neighbourhood when he did not advert to the risk to pedestrians that his speeding
created. It is easy to come up with conditions yielding either the judgement that the
motorist could not have adverted or that the motorist could have adverted. Easy
negative answers could be obtained with the following conditionals.
Even if he would otherwise have adverted:
(a) He would not have adverted if he was unconscious.
(b) He would not have adverted if he was dead drunk.

61
Even if one is not a conditionalist about capacity judgements, we think analogous context-
sensitivities and possible-worlds-induced vagueness will infect these (supposedly unconditional) capac-
ity judgements. Thus, Keith Lehrer argued against conditions being implicit in can and could, yet
ended up having to nd restrictions on possibilities, and accessibility of possible worlds, to make
plausible his account of capacities in terms of possibilities. Lehrer 1976. See Fischer 1979.
62
Hart 1968; see also Horder 1993.
330 Criminalization
(c) He would not have adverted if he were an obsessional neurotic just then
preoccupied with his ide xe.
Easy positive answers could be obtained with the following conditionals:
(d) He would have adverted if a sign had said in neon lights, children present.
(e) He would have adverted if he had been a child care provider constantly
thinking of children.
(f ) He would have adverted if he had had training in the right trafc school.
We assume that just about everyone would rule these conditions out as being at all
relevant to the capacity to advert question about the negligent motorist. For the
context in which we are making a capacity judgement is with respect to blaming or
excusing him for imposing an unreasonable risk to pedestrians including the child
that he hit. This context of assessing moral blame demands conditions that
themselves are relevant to the moral blameworthiness of the actor. And these
conditions all have to do with very different situations, or a very different actor,
than was the case in actual fact. Contrast such irrelevant conditions with these:
(1) He would have adverted to the risk if he had not been so selshly indifferent
to the welfare of other people or if he had not been so desirous of getting
home in time for his favourite television show (that he never looked for
warning signs, for example).
(2) He would have adverted to the risk if he had not been so forgetful, not so poor
at inference-drawing, not so unperceptive, not so stupid (as not to infer the
presence of children from the character of the neighbourhood, for example).
(3) He would have adverted to the risk if he had not been so weak of will as to
regularly succumb to immediate temptations (so as to have been distracted
from his driving, for example).
(4) He would have adverted to the risk if he had not been so clumsy (as to drop
his cigarette just as he was passing the warning sign about children being
present, for example).
These could each be true of the negligent motorist, in which case he had the
capacity to advert in each such sense. And these senses of what he could have done
seem more relevant to assessing his culpability because they, unlike the previous
conditionals, have to do with morally relevant features of him. They ascribe
motivational, cognitive, conative, or motor skill failures to him, failures that hold
out the possibility of being morally culpable. Indeed, these four conditions have
been selected in light of a theory about what might be of moral relevance here.
There are four basic kinds of facts about rational agents: what they desire or care
about; what they believe is true; what they intend to do in light of what they desire
and believe; and how they intend to execute their more general intentions in the
bodily movements that are our common means for moving the world. There is a
presumptive moral relevance to conditions having to do with the four kinds of
states that constitute our practical rationality and our moral agency.
 The Culpability of Negligence 331

One might object that even these senses of he could have adverted presuppose
some changes in who he is. And of course they do. But as we have seen, all capacity
judgements are counterfactual in this way. They suppose a world different from the
actual world and ask, what would have happened in that possible world? There is
no unchanged-actual-world capacity judgements, except the hopelessly off the
mark, determinist judgement that we all had the capacity to do just what we did
and nothing else.
The question yet to be examined is whether the capacities involving changes in
motivation, cognition, conation, or motor skills are indeed desert bases for assessing
moral culpability. That is the topic we examine in the next section. But before we
turn to it, notice the implications of this section for the debate about negligence:
contrary to H. L. A. Harts supposition, there simply is no defence to make of the
blameworthiness of negligence in terms of there being a culpability of unexercised
capacity. But equally there is no objection to raise to the blameworthiness of
negligence in terms of a lack of capacity to advert to risks in fact unadverted to.
What the defence and the objection both depend on are capacity judgements
that themselves depend on morally relevant factors that explain why an actor did
not advert to the risk on the occasion in question. Was it because he was selsh,
stupid, weak, or clumsy, either in general or at least on this occasion? If he can be
blamed for these general defects or momentary lapses, then the relevant counter-
factuals can be framed in which he lacks those defects, and in those possible worlds
he would have adverted. And thus, one could infer, he could have adverted, in the
relevant sense(s). But all the work here will be done by the blameworthiness of these
traits and lapses, not by some general capacity or incapacity to advert to risks.

4. Blaming the Selsh, the Stupid, the Weak, and the Clumsy

It is important to see where we are. The result of the last section was entirely
negative. It was that there is no culpability of unexercised capacity that can be
suggested as a substitute for the culpability of choice when an actor is a negligent,
rather than an intentional or reckless, wrongdoer. But neither is there any knock-
down objection to blaming actors for negligence, an objection phrased in terms of
some alleged incapacity to advert to risks not adverted to. That leaves us back where
we started: searching for a basis for culpability in negligence cases analogous to
choice as a basis of culpability in intentional and recklessness cases. If we nd such a
basis, we can phrase the conclusion in terms of a capacity to have advertedjust as
we can phrase the culpability of choice as a capacity to have done otherwise (if we
had chosen to do so). Yet in neither case is the capacity phrasing doing any of
the work. What is doing the heavy lifting is what goes into the antecedent of the
capacity conditional that makes the actor blameworthy. Choice is one answer,
good for intentional/reckless wrongdoing. Is there another, equally good but
different answer for negligent wrongdoing?
In seeking an independent ground on which culpability for negligence could be
based, we suggested towards the end of the last section that a plausible place to look
332 Criminalization
for such a ground would be at those characteristics of the inadvertent agents
practical rationality that explain his inadvertence on the occasions on which he
was negligent. The general idea motivating this thought starts with the insight that
practical rationality is intimately connected to moral blameworthiness. More
specically, the idea is that it is the (relatively) awless use of our practical rationality
that makes us blameworthy for intentional/reckless actions (when they aim at or
tolerate known evils); analogously, it might be thought, it is the awed use of these
same practically rational faculties that makes us blameworthy for negligent wrong-
doing. The nerve of this thought is that we are blamable for the aws in our
faculties of practical rationality no less than for the excellences of such faculties, and
that this blame for such aws carries over to the inadvertent wrongdoing that those
aws produce.
We shall spend this section trying to make more precise this general thought. We
shall do so, rst, by delineating in greater detail the four-part taxonomy of aws in
practical rationality that explains inadvertence; these are the aws of clumsiness in
ne motor skills, weakness of will, bad motivation, or cognitive ineptitude that
were mentioned at the close of the last section. Second, we shall examine the
question of whether there is any blame attached to the mere possession of such
aws, leaving aside questions as to how such aws are produced or what harms such
aws may themselves produce. Third, to the extent that there is any moral
opprobrium attached to the possession of such aws, we shall ask whether such
moral opprobrium is of the kind or degree that a well conceived criminal code in a
liberal society would punisheither by punishing the possession of such aws by
themselves, or by punishing the inadvertently caused harms that result from a
person having such aws in her practical rationality.

4.1. The four aws of practical rationality that may cause inadvertence
We will not do justice to the task of giving a complete taxonomy of the many ways
in which aws in motor control, cognition, motivation, or conation can cause
inadvertence, but let us summarize some of the ways in which these aws produce
the failure to appreciate what any reasonable person would appreciate. We will then
be in a better position to pursue the principal question of this section, which is
whether the expression of such aws in actions that inadvertently cause harm is
morally blameworthy, and, if so, whether it ought to be legally punishable.
There is a range of physical impairments that might interfere with, or prevent, a
defendant from adverting to the possibility that his actions will result in an
unjustied harm to another. Some of these are impairments in the formation of
perceptual beliefsblindness, deafness, or other sensory defects or deprivations, for
example. Possessing these impairments is more a failure in cognition, so they are
not our immediate concern here. More interesting for our purposes is that tendency
to awkwardness going by the name of clumsiness. What exactly accounts for the
fact that some people simply seem to be accident-prone? Do their muscles fail
them or otherwise malfunction, so as to make ensuing harms inadvertent? Do they
experience neurological glitches or have neurological conditions that affect their
 The Culpability of Negligence 333

muscle movements in ways that commonly result in unforeseen harms? Or, if they
applied themselvesif they cared enough, concentrated enough, or disciplined
themselves enoughcould they navigate through this busy world with as much
grace as the next person, so as to make their apparent clumsiness more a function of
motivation than of neurological or physical limitations?
Our guess is that clumsiness in its most generic sense is simply a behavioural
term: a clumsy person in this sense is one who is prone to having more accidents (of
the motor skills kind) than the base rate for the population. Such motor skill
awkwardnesses can have motivational, cognitive, or conative bases, yet to keep this
taxonomy at least marginally exclusive in its categorization, we should exclude these
here. This would give us clumsiness in a narrower sense not overlapping with the
other three categories. Clumsiness in this special sense is poorly developed motor
control. This relative lack of control could be located anywhere in the chain from
volition to bodily movement: either in the muscles themselves, or in their co-
ordination between exor/tensor pairs, or in the motor plates connecting the
afferent and efferent nerves to the muscles, or in those nerves of the lower
motor pathway, or in one of the two upper motor pathways (the pyramidal and
the extra-pyramidal), or in the motor strip of the primary motor cortex, or in
the supplementary and pre-supplementary motor areas of the brain. Wherever
located structurally, clumsiness will be functionally manifested by a lesser ability
to execute successfully ones general intentions via discrete, volitionally-caused
bodily movements.
Turning to cognitive sources of inadvertence, these are of a vast and heteroge-
neous sort. One sort of cognitive decit that can generate failures to perceive risks is
an inadequate stock of pre-existing beliefs. If one has got gravity wrong (to pick an
improbable but clear example), that will seriously skew ones perception of certain
kinds of risk. Second, we have already remarked on failures of perceptual equip-
ment, such as blindness, colour-blindness, deafness, etc., which can be obvious
causes of failings to properly appreciate risks. Third, people can also suffer from
conditions that cause short attention spans (crack baby syndrome, for example,
that in serious cases produces Attention Decit Hyperactivity Disorder (ADHD)),
making it difcult for those affected to pay attention to what they are doing so as to
advert to the possible consequences of their actions. Fourth, some people may be
prone to memory lapses (extreme versions of which can be caused by such forms of
dementia as Alzheimers Disease), making it impossible for them to draw on the
lessons of the past as they draw inferences about the riskiness of their conduct in the
present. Fifth, actors can be prone to any number of cognitive biases (for example,
what are called the biases of over-optimism, self attribution, and steep time
discounting), which cause them to mis-assess the probability that their actions will
cause harm to others, or to improperly inate the benets of their actions when
assessing the relative defensibility of imposing a known probability of risk on
others. Sixth, people can have their perceptions distorted by their desires, as in
cases of wishful thinking. Seventh, they can freeze up in their inference-drawing
capacities, a phenomenon often due to the inuence of strong emotions, such as
fear or intense craving. And, eighth, people can simply be slow in drawing
334 Criminalization
inferences about their circumstances and the possible consequences of their actions
within those circumstances. They can be like the defendant in the famous torts case
of Vaughn v. Menlove 63 who insisted that his actions ought to be judged by the
standard of a farmer who had the misfortune of not possessing the highest order of
intelligence.
As in the case of clumsiness, it is perfectly possible to doubt whether some of
these characteristics are not more matters of motivation than cognition. It seems
not just evidentially but conceptually difcult to say where stupidity ends and
laziness begins, or where over-optimism about risks gives way to raw greed and
selshness. For our purposes, however, we need not resolve these ambiguities at this
point. Once again, if these are cognitive failures, their blameworthiness will turn on
the bases, if any, upon which we can blame people for cognitive decits. If they are
motivational aws, their blameworthiness will turn on whether people can be
blamed for their desires, emotions, and other motivations.
To be distinguished from cognitive defects and biases that result in an agents
failure to insert true premises into her practical syllogisms, are certain conational
defects that manifest themselves in an agents failure to act on the conclusions of
(accurately constructed) practical syllogisms. One who suffers from akrasia, or
weakness of will, is prone to succumbing to short-term temptations in a way that
sabotages his own well-reasoned goals. He thus possesses a conational decit that
may well be a reason why his actions result in inadvertent harm to others.64 One
who is impulsive or impetuous is prone to acting before doing any thinking at all.
By denition, such a person possesses a defect that causes inadvertence and
manifests itself in unforeseen harms to herself and others. Someone who has a
low pain threshold may feel herself unable to tolerate certain physical or psycho-
logical impositions that others could readily bear, and so she may adopt hasty
means of relieving herself from her discomfort that impose inadvertent harms on
those around her. Someone who fails to fasten either her own or her childs seatbelt,
despite believing sincerely that she should and could do so on a given occasion, may
exhibit weakness of will not only in not taking the precaution but also in not even
adverting to the risk.
As we move from motor-movement to cognitive to conational defects we seem to
edge closer to what many people will simply describe as motivational aws. To talk
of someone having a low pain threshold may well just be another means of
describing someone who is hypochondriacal. To characterize someone as weak of
will may shade into describing her as gluttonous. Still, until such controverted
matters become uncontroverted, we will remain agnostic about the taxonomical
autonomy of conational defects. And once again, if conational defects are concep-
tually and empirically distinct, our ability to blame people for the inadvertent
harms that such defects cause will turn on whether the possession of conational
defects is itself blameworthy. If, on the other hand, conational defects are but a

63
132 English Reports 490 (C.P. 1837).
64
For an interesting debate about the relevance of akrasia to responsibility, see Garvey 2008;
Bergelson 2009. See also Simester 2000: 98.
 The Culpability of Negligence 335

species of bad motives, then our inquiry into the blameworthiness of unfortunate
motivations will exhaust the question of the blameworthiness of conational traits.
The fourth category of personal defects that might account for instances of
inadvertence, then, is the category of motivational attributes most commonly called
character traits, in a narrow sense of that phrase. In many cases in which people
impose unjustiable but unforeseen risks on others, it is tempting to think that they
manifest one or more common vicese.g., narcissism, selshness, jealousy, sloth,
indifference, extravagance, gluttony, envy, lust, greed, wrath, pride, vainglory,
despair, cowardliness. Of course, one could easily imagine that inadvertence
could be a product of pursuing virtue (rather than vice) monomaniacally
or overly-enthusiastically. One who is eager to aid another, anxious to be self-
sacricing, generous with regard to parting with her time, talents, or property,
meticulous in her planning, and so forth, might well be so absorbed in the effort to
do good that she fails to advert to the prospect of doing bad. Imagine Mother
Theresa running over a child in her rush to aid another. Whether this would
constitute a compliment paid by virtue to vice, or a separate cognitive or conational
failing may be hard to say. And as we said above, one only needs to sort this out if
one can blame for one, but not for the other.
We have surveyed four sources of inadvertence located in the practical rationality
of agents. We have described such sources in general terms treating each of the four
sorts as general, long-term (and perhaps permanent) characteristics of negligent
actors. Actors can be, characteristically for them, stupid, hasty, awkward, lazy,
weak, indifferent, etc. But the inadvertence constitutive of negligence need not
have its source in such general traits of the negligent actor. Lapses of these four
kinds can be out-of-character, one-off events for an actor, and yet still be
explanatory of why she was inadvertent to a risk on a given occasion. A generally
skilful performer can have an awkward moment, a generally smart and perceptive
person can experience the odd failure of inference, those who are strong of will can
have their weak moments, and the generally empathetic and caring individual can
once in a great while be indifferent to the welfare of others. In assessing the
blameworthiness of these four kinds of aws, and of the inadvertence that is due
to them, we thus must distinguish between being to blame for general traits
(character in a broader sense than motivations alone), and being to blame for
uncharacteristic lapses.

4.2. The blameworthiness of being clumsy, stupid,

weak, and indifferent
Let us suspend momentarily the familiar distinctions in ethics between the (afr-
matively) obligatory and the supererogatory, and between the (negatively) obliga-
tory and the suberogatory.65 This is to suspend any distinction between the deontic

65
For extended discussions of the general difference between deontic morality and aretaic morality
and the autonomy of the separate categories of permitted, obligatory, supererogatory, and suberogatory
acts, see Hurd 1998; 2002; 2005.
336 Criminalization
and the aretaic parts of morality. This allows us to ask, very generally, whether there
is anything morally untoward in being awed in the four ways we have just
described. This is not (yet) to ask whether we might have moral duties to prevent
these aws from resulting in inadvertently causal harmswe shall address that
question in a longer version of this paper. Rather the question is whether there is a
moral taint to being awed in these ways. This is also not (yet) to ask the question
of whether one is blameworthy for the inadvertence that results from these aws.
We shall ask that question too (section 4.3), but not here. The question here is
whether morality condemns in any way simply being someone who is clumsy,
stupid, weak, or indifferent, in the ways we have described.
The answer is surely something of a mixed bag. We do make negative moral
evaluations of some motivations, such as an indifference to others or a selsh
preoccupation with ones own interests. Indeed, numerous motivational tendencies
are the subjects of daily moral appraisal, such as enviousness, greediness, jealousy,
lustiness, etc. Such appraisals seem at the core of anyones theories of virtue
and vice.
We also make such motivational appraisals on given occasions, irrespective of
whether these are in character for an actor or not. Indeed, Antony Duff s long-held
view is that when we blame for bad choices we are blaming implicitly for more than
just the literal choice (intention) itself; on Duff s view we are also blaming for the
motivational factors (desire, emotions) that cause such choices.66 These motives
usually will speak from far within the actors character, but they need not, as Duff
also recognizes.
Weakness of will is almost as intuitively the subject of moral appraisal as is
motivation. When St Paul complains of himself in Romans vii that he wills the
good, but does the opposite, he is seemingly condemning himself morally. To do
evil out of weakness, rather than from base motives, has a avour of the contempt-
ible that strongly willed evil lacks. Yet both are rightly condemned in a person.
Cognitive defects are more troublesome. Being generically stupid is not a
plausible vice, however undesirable such a characteristic might be. Ignorance
about the world, a short attention span, poor memory, defective perceptual
equipment, biased inference-drawing tendencies, wishful thinking, susceptibility
to emotional disruption of inference, and other similar deciencies are likewise not
obvious subjects of moral appraisal. The cognitively ungifted may bore us, we may
well not invite them to dinner, we may pity them for the more difcult life they
must live, and so forth. But none of these seem in any way morally condemnatory.
Clumsiness is also problematic as a subject of moral appraisal. Angry as one
might get at someone who stumbles around ones house like the proverbial bull in a
china shop, once one strips away any blameworthy motivational or conative
componentsonce one concludes, that is, that our guest is trying to be careful,
that he does care about ones things, and so forththen moral condemnation

66
Duff 1993; Duff 2009.
 The Culpability of Negligence 337

seems ill-placed. Being (simply) clumsy looks more like a blight or a curse on a
person than something for which he can be morally judged.

4.3. Can we blame inadvertent wrongdoing that is caused by physical

or psychological aws that are morally condemnable?
We now need to reinvigorate the distinction previously suspended between the
deontic and the aretaic, and ask ner-grained moral questions. Supposing that at
least some of the aws that cause inadvertence are to be condemned morally, is the
inadvertent harm-causing that results from these aws therefore blameworthy in
the way and to the degree that warrants criminal punishment? That is the question
which we wish to pursue in this subsection. We shall do so only with regard to
motivational aws, since those are the most clearly condemnable of the four kinds
of aws that we have examined.
As we search in this section for means of predicating the blameworthiness of
inadvertence on the blameworthiness of its causes, it is tempting to believe that
whatever cases of culpable inadvertence cannot be explained by reference to
culpably-caused or mismanaged motor skill, cognitive, or conational traits can
well be explained by reference to the actors possession of blameworthy motiva-
tional traits. The question to be examined in this section is this: When inadver-
tently-caused harms are the product of such poor character, is it justiable to blame
and punish a defendant for those harms, because it is justiable to blame and
punish him for his poor character?
Criminal law theorists have forcefully disputed the claim that poor character can
be a legitimate object of legislation, and we have, ourselves, contributed to the
theoretical cacophony. Many have insisted, or manifestly assumed, that we both
can and do justiably blame people for unfortunate character traits.67 Others have
argued, or taken it for an obvious truism, that the criminal law can legitimately
concern itself only with actions, but not with standing dispositions.68
Let us begin by recounting some of the arguments that we have ourselves
mustered in the past against using criminal sanctions to punish people for their
character. We shall then be in a position to take up specic counter-arguments that
have been offered by those who believe that their grounds for blaming people for
particular kinds of character attributes survive or surmount the reasons for our
general scepticism about the wisdom of punishing vice.
There are two levels of arguments against the punishment of character. The rst-
order level is constituted by arguments concerning why people do not deserve
punishment for, or in part because of, their standing dispositions. The second,

67
See, e.g., Pillsbury 1996: 150 (We judge persons according to their choices, on the assumption
that they are responsible for the motivations which drive those choices. If we were not responsible for
our motivations, individual responsibility would be impossible.) See also Fletcher 1971: 417, for the
claim that retributivism requires the law to fathom the kind of a man someone is in order to assess his
just deserts.
68
See, e.g, Simons 2002: 273.
338 Criminalization
meta-level consists of arguments concerning why it is institutionally, administra-
tively, or politically unacceptable to predicate punishment on character, whatever
the moral merits of so doing might be. For organizational reasons, we are going to
invert our examination of these arguments, summarizing, rst, the sorts of meta-
concerns that the punishment of character arouses, and then backing up to the rst-
order moral problems posed by punishing for poor character when it is to blame for
a defendants inadvertence to the riskiness of his conduct.

4.3.1. Administrative and political problems with punishing for character

There are at least two meta-level arguments against employing the criminal law in
the service of encouraging virtue and discouraging vice. Such arguments will be
arguments against negligence liability if negligence liability ultimately amounts to
punishing persons for the character aws that caused their inadvertence. The rst
meta-argument against the punishment of character rests on the apparent impossi-
bility of harmonizing the goal of punishing for bad character with the goal, reected
in traditional legality doctrines, of ensuring that the criminal law honours core rule
of law virtues such as clarity, consistency, predictability, and prospectivity. Such
rule of law virtues, of course, protect rule of law valuesliberty (which is enhanced
when citizens can predict the consequences of their actions), fairness (which is
outed when citizens are surprised by unforeseen penalties that thwart reasonable
reliance interests), and equality (which is maximally assured when judges can know
and predict how past and present cases have been adjudicated so as to treat like cases
alike in the present).
If punishment should be made proportionate to culpability (as is generally the
aspiration behind Anglo-American criminal law), and if inadvertence is not itself
culpable, but derives its culpability from the blameworthiness of the character traits
(and other blameworthy motor skill, cognitive, and conational defects) that cause it,
then it would seem that punishment for inadvertently-caused injuries should track
the relative blameworthiness of the character aws that were at the root of the
defendants inadvertence. But can we rank in order of their blameworthiness or
culpability the following vices: greed, jealousy, self-absorption, impetuousness,
hastiness, indifference, arrogance, narcissism, foolhardiness, cowardice, and glut-
tony? If we cannot do so, either cardinally or ordinally, then it would seem that we
must be prepared to admit that on some occasions inadvertence caused by jealousy
is worse than inadvertence caused by self-absorption, or hastiness, or cowardice, or
excitability; but on other occasions one or more of these latter vices will be more
blameworthy causes of inadvertence than is jealousy.
The implications of this admission for the criminal laws ability to protect the
rule of law values that have long been at the root of its legality doctrines are
signicant. First, no legislature could codify the conditions or prerequisites of
punishment so as to make clear and predictable to citizens when and how much
they will be punished if they inadvertently invade others protected interests. No
provisions within the general part of the criminal law could be enacted that could
 The Culpability of Negligence 339

mimic Model Penal Code } 2.02 69 in dening and rank-ordering these character
traits in terms of their comparative culpability, and provisions within the special
part of the criminal law that concern particular kinds of inadvertent wrongs could
not be re-written so as to specify with any clarity the culpability conditions that
would account for when, why, and how long punishment could be inicted for the
commission of the prohibited wrong. For in one case an inadvertent act of arson
might be deemed particularly blameworthy if committed because of anger, while in
another case, the character aw might not appear to be as culpable a cause of
distraction as would, say, greed.
Some might be motivated to seek a common denominator that allows us to say
that in all instances in which a given wrong (say, arson) has been caused as a result
of inadvertence that can be traced to character defects (hastiness, greed, jealousy,
etc.), defendants in fact manifest a shared vice and should thus fairly face a shared
fate. If plausible, such a strategy would permit punishment to vary with the
seriousness of the wrong done, rather than with the seriousness of the myriad
character traits that explain the defendants inadvertence to the riskiness of their
actions. Thus, for example, just as some criminal theorists have sought to collapse
the seemingly different motivations behind different acts of criminal assault to a
single motivationthat of humiliating the victim70so it might be tempting to
suggest that all those whose poor character is to blame for their inadvertence share a
singular unfortunate dispositionsay, indifference to the interests of others. Yet
this claim appears as implausible as is the claim that a desire to humiliate under-
writes all assaults. Someone who renders another unconscious so as to pick his
pocket is clearly not motivated by a desire to humiliate; and someone who enjoys
embarrassing others is clearly not as culpable as someone who enjoys physically
torturing others, even though both may be said to be motivated by a desire to
humiliate. Similarly, someone who is distracted from the risks of the road by her
ongoing preoccupation with how to better the lives of those within her community
is hardly someone whose inadvertence can plausibly be redescribed as indifference;
and someone whose inadvertence to the risks of the road is a product of hypochon-
dria is arguably not as culpable as someone whose inadvertence is a product of
greed, even though both may be said to possess character aws that prompt them to
minimize others interests to a point that motivates an indifference to them.
Some theorists might conclude, conversely, that character aws cannot be rank
ordered because they are so different as to be incommensurable.71 We nd this
suggestion equally implausible, not only because the concept of incommensurability
is itself troublesome. If all blameworthy character traits were incommensurable,
there would be no easy cases of comparison. But there are. Someone who is sadistic is
plainly more culpable than someone who is generous to a fault, and inadvertence

69
American Law Institute, Model Penal Code Ofcial Draft, 1962, } 2.02.
70
See Murphy 1992: 223.
71
Alon Harel and Gideon Parchomovsky have made such an argument with regard to the
impossibility of rank-ordering motivations. See Harel and Parchomovsky 1999: 513.
340 Criminalization
that owes its genesis to the latter character aw would seemingly always be less
culpable than inadvertence that owes its genesis to the former tendency.
In our view, the likely reason that character traits resist cardinal classications
and even ordinal rankings is that they are highly context-sensitive. To distil and
assess the character traits revealed in a given instance of inadvertence requires one to
determine the nature and relative weight of an inevitably complex set of disposi-
tional desires, emotions, beliefs, and fears and to assess the overall merit of their
combination. Compare the person whose inadvertence to the risks of the road was a
product of a complex amalgam of hastiness (in pushing the speed limit), selshness
(resulting in an over-eagerness to get home to the comforts of his family), and
impatience (prompting him to feel vexed at fellow drivers for perceived slowness
and timidity), with the person whose inadvertence to the same sorts of risks
reected laziness (which resulted in her dismissing the need for her driving glasses),
gluttony (prompting her to dig into the French fries that were buried in the bag in
the passengers seat, toward which she had to lean over awkwardly), and jealousy
(leading her to lose herself in envious thoughts about the recent success of a
colleague). However one would rank-order the culpability of these drivers when
their inadvertence results in the materialization of obvious risks, it is clear that such
a rank-ordering would require nuanced assessments that would not lend themselves
to taxonomic classicationsany more than determinations of reasonable beha-
viour in tort law lend themselves to the sorts of judicial per se rules (for example,
Stop, look, and listen) to which Justice Oliver Wendell Holmes famously as-
pired.72 As such, it appears difcult to say that particular character defects, say,
indifference or cowardice, are per se worse than other defects: As between some
persons they probably are; as between others, they probably are not. And this means
that they cannot function as culpability conditions within criminal provisions, for
their culpability varies considerably across actors and circumstances in a way that
defeats the ability of legislators to clearly codify them, and the ability of judges to
ensure the like treatment of cases that are morally alike.
The second meta-argument against punishing people for bad character (and
therefore, against punishing people for harms that are the product of character-
related inadvertence) appeals to the incompatibility of doing so with the philosoph-
ical tradition of political liberalism to which American law generally pays homage.
Political liberals classically distinguish a theory of the Right from a theory of the
Good, and conne the state to legislating in accordance with a theory of the Right.
They maintain that the state may properly use its power only to construct and
protect a fair framework of cooperation, dened as a system of rights that allows all
citizens maximal equal liberty to pursue their own unique conceptions of the good
life. Common to contemporary liberalism is the claim that reasonable people can,
in principle, agree to disagree and can, in practice, agree to peaceable institutional
means by which to disagree, even when they cannot agree on the merits of some
issue in dispute. That is, they can agree on, and thus give consent to, state action

72
See Baltimore & Ohio R.R. Co. v. Goodman, 275 U.S. 66, 70 (1927).
 The Culpability of Negligence 341

that preserves their ability to pursue their own unique conceptions of a good life,
but they cannot, and will not, agree on any singular conception of the good life.
Inasmuch as state action is both theoretically unjust and practically impotent unless
it can command the consent (if only hypothetically) of reasonable persons, state
action is illegitimate if it pursues a particular conception of the good life.73
Liberals have long believed that theories concerning virtuous and vicious charac-
ter traits (and how to cultivate or eliminate them) belong to the province of the
Good, rather than the Right. Consider three arguments for this conclusion.
First, it appears that one persons vice is anothers virtue. That is, vices and
virtues are not among the things about which people agree, whatever else they agree
about. Reasonable people can seemingly disagree over whether persons should
worship God, or honour blood ties, or adopt a vigorous work ethic, or be so
honourable as to keep very burdensome promises, or elevate truth over others
emotional well-being. If reasonable disagreement is the signature of matters related
to the Good, rather than the Right, then this fact alone suggests that attributes of
character ought to be considered outside the jurisdiction of the criminal law.
Second, people can seemingly agree to disagree without settling the question of
the sorts of character traits that persons ought to cultivate or suppress. While people
no doubt disagree about the relative culpability of acts of spite, jealousy, vengeance,
and racism, few have disagreed that purposeful harms are more culpable than harms
committed only knowingly, and that harms committed knowingly are more
culpable than harms committed recklessly. Inasmuch as contemporary liberalism
is wedded to the view that our peaceable coexistence requires the state to limit its
scope to matters upon which we can agree, it is committed to the view that criminal
legislation exceeds its proper bounds if it constitutes, overtly or covertly, an effort to
affect peoples moral character.
Third and nally, political liberals have classically been wary of governmental
action that chills liberty. Inasmuch as people do not choose their character, and
cannot directly choose to change their character (even as they may be able to affect
it indirectly), punishment for poor character smacks of strict liability. And because
strict liability threatens to chill liberty, liberals are wary of its legitimacy. Of course,
it is precisely the nature of negligence liability that it is liability for unchosen
consequences. As we argued earlier, one can hardly complain of it on that basis
alone, for so doing presupposes, rather than argues for, the claim that choice is a
prerequisite for liability. Still, one who is prepared to punish bad character by
criminalizing negligence has to be prepared to do battle with those who ferociously
defend the limits on state action prescribed by the powerful tradition of political
liberalism.

73
For John Rawlss updated defence of this version of contemporary liberalism, see Rawls 1993.
For a critique of this political vision, see Hurd 1995.
342 Criminalization

4.3.2. Moral problems with punishing for character

Let us now step down a level and ask about the rst-order moral problems that
confront any theory that licenses the punishment of poor character. Those who
consider inadvertence blameworthy when it is the causal result of an attribute of
personal character must have an answer to two essential questions: First, if motiva-
tional aspects of character are blameworthy, why would we not blame and punish
for their possession alone? Put differently, what makes sense of the criminal laws
requirement that a wrongful action must be performed before punishment can
properly be administered? And second, if bad character is the true touchstone of a
punishable blameworthiness, why do we not excuse intentional wrongdoing that is
out of character? When Mother Theresa brutally kills her sister for money, should
we say that she is not blameworthy because her act is so out of character?
Turning to the rst worry about blaming for character, those who would
predicate the blameworthiness of inadvertence on the blameworthiness of character
must be able to account for why the criminal law should wait for poor character to
result in harmful actions before imposing punishment. Why not punish people for
character alone? Responsibility for inadvertent harms is, for such theorists, deriva-
tive of responsibility for the character traits that caused the inadvertence, and as
such, it would seem that the locus of a defendants just deserts is his character, and
not his deeds.74
Theorists can, of course, always take refuge in evidential arguments. They can
insist that we can never be sure of a defendants character until it has shown itself in
action; and that we can never be sure that a defendant has not successfully changed
his character until we witness a deed that is inconsistent with new-found virtue. But
evidential claims are always contingent at best, false constructs at worst, and hollow
on average. The theorist who takes inadvertence to be blameworthy when and
because it manifests poor character has to have an argument for why poor character
is not itself sufcient for punishment if it is condently known (if, that is, we have
developed a character-detector that reliably indicates dispositional traits). And
equally counter-intuitively, she has to have an argument for why a defendant
who has served his time for a crime ought nevertheless to stay locked up if his
time behind bars has not been character-alteringif, that is, his dispositions
remain unchanged so as to make his recidivism predictable.
We shall not attempt to construct a response to our own challenge, for we simply
do not have one. The problem is clear, however. If inadvertence is blameworthy
when and because it is the product of unfortunate character, it would seem that
inadvertence is morally irrelevant. As such, the explanation for the blameworthiness
of negligence undercuts, rather than supports, the claim that negligence is (itself)
blameworthy.

74
See Simons 2002: 259, for a similar rejection of the notion that a free-oating incapacity or
incompetence is ever relevant to criminal liability.
 The Culpability of Negligence 343

The second problem for regarding bad character as punishable is just as worri-
some. It is that intentionally wrongful actions that are out of character for an actor
should go unpunished because the desert-basebad characteris absent in
such cases.
One cannot nesse this worry by simply identifying bad character with bad
actions, so that there can be no acts out of character. As Antony Duff rightly insists,
to make sense of an appeal to character, it must be that character is to be identied
with something lasting or stable so that a purely momentary feeling or impulse is
no part of the persons character . . . . 75 It has to be at least possible for there to be
thoughts, feelings, desires, omissions, and actions that are out of character for a
person, and crucially, it has to be that any blameworthiness that they possess must
then rest on something other than their connection to a persons character.
On one theory of characterwhat one of us has alternatively called the back-
ward-looking behavioural theory and the vericationist theory76character traits
are simply general descriptions of past actions. For a person to be courageous is for
her to have acted courageously in the past; for a person to be honest is for him to
have acted honestly in the past. While actions are often our best evidence of
character, this account collapses the distinction between the two. As such, it entails
that one cannot be thought to possess a character trait unless one has manifested it
in action. We take such an account of character to be unduly parsimonious. In our
view, it makes perfect sense to say of someone that she is really generous or
courageous, even if her life circumstances have never permitted her to reveal such
traits in actions. One who is too poor to part with anything may still be properly
thought of as generous in nature; one who is never faced with an emergency that
requires her to put her life on the line may nevertheless be thought courageous.
We again shall not attempt to construct a response to our own challenge, for
again we do not have one nor do we know of any plausible possibilities. That
intentionally wrongful action deserves punishment even when out of character
shows that bad character cannot be a necessary part of the desert-base for punish-
ment. That it is not a sufcient part of such a desert-base is shown by the rst worry
above.
If the possession of character traits is not itself blameworthy, it is difcult to see
how inadvertence caused by the possession of such traits could be blameworthy.
Remember, there is no culpability of unexercised capacity to ground such blame-
worthiness here. For whether there is such capacity turned on whether there was
some condition C that was itself morally condemnable. Bad character is the best
candidate for such a condition C, making sense of the judgement, he could
(would) have adverted if C. Yet because bad character is not itself morally
condemnable (in a way deserving of punishment), it is ineligible to be the condition
making sense of the capacity judgement needed for inadvertent wrongdoing to be
blamable and punishable.

75 76
Duff 1993: 364. Moore 1997: 56364.
344 Criminalization

5. Conclusion

This has been an honest exploration for us. We (like just about everyone we know)
have strong, bottom-line intuitions that blame can rightly be attached to many of
the examples of negligent conduct that have become staples of our profession. We
would have been pleased to have developed a new, unifying theory of why
negligence is culpable, to be added to the considerable parade of such theories
proposed by criminal law theorists over the years. But we cannot accept any
unifying theorynot Harts unexercised capacity theory nor the blaming for bad
character theory. It is true that these two leading theories as to the culpability of
negligence do not exhaust the possibilities here. A popular third theory is what is
commonly called the tracing strategy, so called because one traces back in time
from the moment of inadvertent carelessness to some earlier time when the actor
did advert to the risk that would be posed by his later behaviour. A fourth and
recent entry is that put forward by George Sher, and seconded (apparently) by
Joseph Raz. On this fourth theory negligent actors are culpable in that it is their
practical reasoning capacities (and the structures that realize them) that caused the
harm, even if those capacities were awed or otherwise faulty. And one can even
tease out a fth view that seems implicit in many common judgements of negli-
gence; such a view conceives of negligence, not in terms of unreasonable risk, but in
terms of thousands of mini-maxims, the knowing violation of which is (said to be)
culpable. In a longer version of the present article we also reject each of these last
three alternatives.
Despite the rejection of all such theories that purport to make sense of negligent
wrongdoing generally, we retain our bottom-line intuitions of blameworthiness in
most cases that are conventionally labelled as negligence cases. As we have argued,
we believe that the notion of negligence within the criminal law reects a dogs
breakfast. Negligence is, on our view, the residual category of culpability sweeping
up a diverse set of situations having little in common with one another, save that
they do not meet the requirements of the higher levels of culpabilityintent,
foresight, or recklessness. Some of these situations we have mentioned in the course
of this article. One is advertent negligence, where an actor possessed full awareness
of the risk created by his conduct, but the imbalance of detriment to benet is not
so great as to make his risk-taking reckless. Another is where the actor was less than
fully aware of the risk created by his conduct, but he did possess a dim awareness,
an inkling, or a mere suspicion that his conduct might create peril. A third is where
the actor possessed a dispositional awareness of the risk created by his conduct, but
had no phenomenological awareness of that risk. A fourth is where the actor
possessed either phenomenological or dispositional awareness of general types of
risk associated with his conduct, even though the particular risk taken by him was
not the subject of his awareness on the occasion of his action. In the longer version
of this paper we shall encounter four more such situations rightly judged to be
culpably negligent. These include situations where the actors inadvertence was
caused by aws in his character against which he took no precautions; situations
 The Culpability of Negligence 345

where the actors inadvertence was caused by physical or psychological defects that
are not aws of character, but against which precautions could have been, but were
not, taken; situations where the actor adverted at some earlier time to risks that
were created by later behaviour; and situations where the actor may have deliber-
ately violated a known (to him) mini-maxim, the spirit of which is to protect
against the risks his ensuing conduct created.
These eight categories account for most of the unreasonable risk-taking punished
as negligence in the criminal law. But not for all. When there is no advertence to
risk in any sense (vivid, dim, preconscious, or general) at the time of the action, and
when there was no advertence (at an earlier time) to dangerous defects of personali-
ty against which there were available precautions known to the actor, and when
there was no advertence (at an earlier time) to the risk some later behaviour will
pose if done, and when no internalized mini-maxim was knowingly violated, courts
may still nd that an actor engaged in grossly unreasonable risk-taking that they
characterize as negligent. Parents who in no way adverted (in any sense, to any
degree, at any level of generality, at any time) to the deadly risk posed by the bad
odour coming from their childs mouth, may face criminal liability when their child
loses his life to gangrene.77 Punishment in such a case, we think, is in error. It
reveals the error of thinking that there is some unconditional sense in which these
parents could have done better (section 3); or it rests on the error of thinking that in
not adverting to this obvious risk, the parents revealed some punishable aw in
their character, such as not loving their own child enough (section 4); or it reects
the error of substituting for a liability that requires true culpability, a liability that is
strict. Whichever of these subspecies of error motivates such an adjudicative
conclusion, we take such a conclusion to go too far in placing criminal liability.
Freud once wrote that the property of being conscious or not is in the last resort
our one beacon-light in the darkness of depth-psychology.78 Psychology may have
supplemented this lantern with other tools that are useful for plumbing the depths
of our mental states. But in morality, consciousnessin the extended senses and
removed temporal locations that we described aboveis still such a beacon light.
Without it, there is no culpability for negligence.

References
Alexander, Larry and Ferzan, Kimberly; with Stephen Morse (2009a). Crime and
Culpability: A Theory of Criminal Law. Cambridge: Cambridge University Press.
and Ferzan, Kimberly (2009b). Reply, in P. Robinson, S. Garvey, and K. Ferzan
(eds). Criminal Law Conversations. New York: Oxford University Press, 1602.
Aune, Bruce (1967). Hypotheticals and Can: Another Look. Analysis, 27: 1915.

77
This is a plausible construal of the facts in the well-known case of State v. Williams, 484 P.2d
1167 (Washington Court of Appeals 1971). Such is the construal also given of the facts by Husak
(forthcoming): 3.
78
Freud 1923: 18.
346 Criminalization
Austin, J. L. (1961). Ifs and Cans. Proceedings of the British Academy, 42: 10932.
Bergelson, Vera (2009). The Case of Weak Will and Wayward Desire. Criminal Law and
Philosophy, 3: 1928.
Dennett, Daniel (1969). Content and Consciousness. New York: Humanities Press.
(1987). Beyond Belief , in The Intentional Stance. Cambridge, MA: MIT Press,
117212.
Duff, R. A. (1993). Choice, Character, and Criminal Liability. Law and Philosophy, 12:
34583.
(2009). Answering for Crime: Responsibility and Liability in the Criminal Law. Oxford:
Hart Publishing.
Features Staff (1959). Judge Magruder: Ave Atque Vale. Harvard Law Record, 28: 69.
Ferzan, Kimberly (2001). Opaque Recklessness. Journal of Criminal Law and Criminology,
91: 597652.
Fingarette, Herbert (1969). Self-Deception. London: Routledge.
Fischer, John Martin (1979). Lehrers New Move: Can in Theory and Practice. Theoria,
45: 4962.
(2006). Responsibility and Alternative Possibilities, in My Way: Essays on Moral
Responsibility. Oxford: Oxford University Press, 3862.
Fletcher, George (1971). The Theory of Criminal Negligence: A Comparative Analysis.
University of Pennsylvania Law Review, 119: 40138.
Freud, Sigmund (1923). The Ego and the Id (Reprinted in 1960). New York: Norton.
Garvey, Stephen (2006). Whats Wrong with Involuntary Manslaughter? Texas Law
Review, 85: 33383.
(2008). Dealing with Wayward Desire. Criminal Law and Philosophy, 3: 117.
(2009). Fatally Circular? Not!, in P. Robinson, S. Garvey, and K. Ferzan (eds),
Criminal Law Conversations. New York: Oxford University Press, 2868.
Gilles, Donald (2000). Philosophical Theories of Probability. London: Routledge.
Hall, Jerome (1963). Negligent Behavior Should Be Excluded from Penal Liability.
Columbia Law Review, 63: 63244.
Harel, Alon and Parchomovsky, Gideon (1999). On Hate and Equality. Yale Law Journal,
109: 50739.
Hart, H. L. A. (1968). Negligence, Mens Rea and Criminal Responsibility, in Punishment
and Responsibility: Essays in the Philosophy of Law. Oxford: Oxford University Press,
13657.
Horder, Jeremy (1993). Criminal Culpability: The Possibility of a General Theory. Law
and Philosophy, 12: 193215.
Hurd, Heidi (1995). The Levitation of Liberalism. Yale Law Journal, 105: 795824.
(1998). Duties Beyond the Call of Duty. Annual Review of Law and Ethics, 6: 139.
(2002). Liberty in Law. Law and Philosophy, 21: 385465.
(2005). Tolerating Wickedness: Moral Reasons for Lawmakers to Permit
Immorality. Annual Review of Law and Ethics, 16793.
Husak, Douglas (forthcoming). Negligence, Belief, Blame and Criminal Liability: The
Special Case of Forgetting. Criminal Law and Philosophy (forthcoming).
James, William (1890). The Principles of Psychology. Cambridge, MA: Harvard University
Press, Vol. 2.
 The Culpability of Negligence 347
Kratzer, Angelika (1977). What Must and Can Must and Can Mean. Linguistics and
Philosophy, 1: 33755.
Lehrer, Keith (1976). Can in Theory and Practice: A Possible Worlds Analysis, in
M. Brand and D. Walton (eds), Action Theory. Dordrecht: D. Reidel, 24170.
Maier, John (2010). Abilities. Stanford Encyclopedia of Philosophy (Winter 2010 Edition),
Edward N. Zalta (ed.), <http://plato.stanford.edu/archives/win2010/entries/ability>.
Marmodoro, Anna (2010). The Metaphysics of Powers. New York: Routledge.
Mele, Alfred (2003). Agents Abilities. Nous, 37: 44770.
Molnar, George (2003). Powers: A Study in Metaphysics (ed. Stephen Mumford). Oxford:
Oxford University Press.
Moore, G. E. (1912). Ethics. Oxford: Clarendon Press.
Moore, Michael (1983). The Nature of Psychoanalytic Explanation, in Larry Laudan (ed.),
Mind and Medicine: Explanation in Psychiatry and the Biomedical Sciences, Vol. 8 of the
Pittsburgh Series in the Philosophy and the History of Science. Berkeley: University of
California Press.
(1984). Law and Psychiatry: Rethinking the Relationship. Cambridge: Cambridge
University Press.
(1985). Causation and the Excuses. California Law Review, 73: 1091149.
(1988). Mind, Brain, and Unconscious, in P. Clark and C. Wright (eds), Mind,
Science, and Psychoanalysis. Oxford: Basil Blackwell.
(1989). Law, Authority, and Razian Reasons. Southern California Law Review, 62:
82796.
(1990). Choice, Character, and Excuse. Social Philosophy and Policy, 7: 2858.
(1997). Placing Blame: A General Theory of the Criminal Law. Oxford: Oxford
University Press.
(2009). Causation and Responsibility. Oxford: Oxford University Press.
Murphy, Jeffrie (1992). Bias Crimes: What Do Haters Deserve?. Criminal Justice Ethics,
11: 203.
Nowell-Smith, P. H. (1960). Ifs and Cans. Theoria, 26: 85101.
Pears, David (1972). Ifs and Cans. Canadian Journal of Philosophy, 1: 36991.
Pillsbury, Samuel (1996). Crimes of Indifference. Rutgers Law Review, 49: 105218.
Rawls, John (1993). Political Liberalism. New York: Columbia University Press.
Raz, Joseph (1989). Reply. Southern California Law Review, 62: 1153235.
(2010). Responsibility and the Negligence Standard. Oxford Journal of Legal Studies,
30: 118.
Schlick, Moritz (1962). Problems of Ethics. New York: Dover Publications.
Sher, George (2009). Who Knew?: Responsibility Without Awareness. Oxford: Oxford
University Press.
Simester, A. P. (2000). Can Negligence Be Culpable?, in J. Horder (ed.), Oxford Essays in
Jurisprudence, Fourth Series. Oxford: Oxford University Press.
Simons, Kenneth (2002). Does Punishment for Culpable Indifference Simply Punish for
Bad Character? Examining the Requisite Connection Between Mens Rea and Actus
Reus. Buffalo Criminal Law Review, 6: 219316.
(2009). The Distinction Between Negligence and Recklessness is Unstable, in
P. Robinson, S. Garvey, and K. Ferzan (eds), Criminal Law Conversations. New York:
Oxford University Press, 2901.
348 Criminalization
Smith, Michael (2004). Rational Capacities, Or How to Distinguish Recklessness,
Weakness, and Compulsion, in Ethics and the A Priori. Cambridge: Cambridge
University Press, 11435.
Taslitz, Andrew (2009). Cognitive Science and Contextual Negligence Liability, in
P. Robinson, S. Garvey, and K. Ferzan (eds), Criminal Law Conversations. New York:
Oxford University Press, 28890.
Taylor, Richard (1960). I Can. Philosophical Review, 69: 7889.
Van Inwagen, Peter (1975). The Incompatibility of Free Will and Determinism.
Philosophical Studies, 27: 18599.
Watson, Gary (1977). Skepticism About Weakness of the Will. Philosophical Review, 86:
31639.
Williams, Glanville (1961). Criminal Law: The General Part (2nd edn). London: Stevens
and Sons.
Winters, Barbara (1978). Acquiring Beliefs at Will. Philosophy Research Archives, 4: 4335.
(1979). Believing at Will. Journal of Philosophy, 76: 24356.
Wright, Richard (2002a). Justice and Reasonable Care in Negligence Law. American
Journal of Jurisprudence, 47: 14396.
(2002b). Negligence in the Courts: Introduction and Commentary. Chicago-Kent
Law Review, 77: 42587.
(2003). Hand, Posner, and the Myth of the Hand Formula . Theoretical Inquiries in
Law, 4: 145274.