Many prominent theories of moral responsibility rely on the notion of “tracing,” the idea that responsibility for an outcome can be located in (i.e., “traced back to”) some prior moment of control, perhaps significantly antecedent to the proximate sources of a considered action. In this article, I show how there is a problem for theories that rely on tracing. The problem is connected to the knowledge condition on moral responsibility. Many prima facie good candidate cases for tracing analyses appear to (...) violate the knowledge condition on moral responsibility. So, either we need to dispense with tracing approaches or we must refine our understanding of the knowledge condition or we are responsible less frequently than we suppose. (shrink)

I argue against the claim that morally ignorant wrongdoers are open to blame only if they are culpable for their ignorance, and I argue against a version of skepticism about moral responsibility that depends on this claim being true. On the view I defend, the attitudes involved in blame are typically responses to the features of an action that make it objectionable or unjustifiable from the perspective of the one who issues the blame. One important way that an action can (...) appear objectionable to us is that it expresses a judgment with which we disagree about the significance of the interests of those affected by the action. A morally ignorant wrongdoer’s actions may express such judgments even if it is not her fault that she is unaware of the moral status of her behavior, and even if it would be unreasonable to expect her to be aware of its status. (shrink)

First Published in 1999. Routledge is an imprint of Taylor & Francis, an informa company.

This first volume in the four-volume series The Moral Limits of the Criminal Law focuses on the "harm principle," the commonsense view that prevention of harm to persons other than the perpetrator is a legitimate purpose of criminal legislation. Feinberg presents a detailed analysis of the concept and definition of harm and applies it to a host of practical and theoretical issues, showing how the harm principle must be interpreted if it is to be a plausible guide to the lawmaker.

This superbly crafted account of the notion of moral responsibility and of its relations to freedom, control, ignorance, negligence, attempts, omissions, compulsion, mental disorders, virtues and vices, desert, and punishment fills that gap. The treatment of character and luck is particularly sophisticated and well-argued.

Moral judgments, we expect, ought not to depend on luck. A person should be blamed only for actions and outcomes that were under the person’s control. Yet often, moral judgments appear to be influenced by luck. A father who leaves his child by the bath, after telling his child to stay put and believing that he will stay put, is judged to be morally blameworthy if the child drowns (an unlucky outcome), but not if his child stays put and doesn’t (...) drown. Previous theories of moral luck suggest that this asymmetry reflects primarily the influence of unlucky outcomes on moral judgments. In the current study, we use behavioral methods and fMRI to test an alternative: these moral judgments largely reflect participants’ judgments of the agent’s beliefs. In “moral luck” scenarios, the unlucky agent also holds a false belief. Here, we show that moral luck depends more on false beliefs than bad outcomes. We also show that participants with false beliefs are judged as having less justified beliefs and are therefore judged as more morally blameworthy. The current study lends support to a rationalist account of moral luck: moral luck asymmetries are driven not by outcome bias primarily, but by mental state assessments we endorse as morally relevant, i.e. whether agents are justified in thinking that they won’t cause harm. (shrink)

In “The Trouble with Tracing,” Manuel Vargas argues that tracing-based approaches to moral responsibility are considerably more problematic than previously acknowledged. Vargas argues that many initially plausible tracing-based cases of moral responsibility turn out to be ones in which the epistemic condition for moral responsibility is not satisfied, thus suggesting that contrary to initial appearances the agent isn’t morally responsible for the action in question. In the present paper, I outline two different strategies for responding to Vargas’s trouble with tracing. (...) I then show how further consideration of the epistemic condition for moral responsibility renders tracing significantly less problematic than Vargas claims. (shrink)

What is the relation between the concept good and more specific or ‘thick’ concepts such as admirable or courageous? I argue that good or more precisely good pro tanto is a general concept, but that the relation between good pro tanto and the more specific concepts is not that of a genus to its species. The relation of an important class of specific evaluative concepts, which I call ‘affective concepts’, to good pro tanto is better understood as one between a (...) determinable and its determinates, whereas concepts such as courageous can be analysed in terms of affective concepts and purely descriptive concepts. (shrink)

Recent writers on negligence and culpable ignorance have argued that there are two kinds of culpable ignorance: tracing cases, in which the agent’s ignorance traces back to some culpable act or omission of hers in the past that led to the current act, which therefore arguably inherits the culpability of that earlier failure; and non-tracing cases, in which there is no such earlier failure, so the agent’s current state of ignorance must be culpable in its own right. An unusual but (...) intriguing justification for blaming agents in non-tracing cases is provided by Attributionism, which holds that we are as blameworthy for our non-voluntary emotional reactions, spontaneous attitudes, and the ensuing patterns of awareness as we are for our voluntary actions. The Attributionist explanation for why some non-tracing cases involve culpability is an appealing one, even though it has limited scope. After providing a deeper account of why we should take the Attributionist position seriously, I use recent psychological research to argue for a new account of the conditions under which agents are culpable for straightforward instances of blameworthy acts. That account is extended to blameworthiness for non-voluntary responses. I conclude that even when the agent’s failure to notice arises from a nonvoluntary objectionable attitude, very few such cases are ones in which Attributionism implies that the agent is blameworthy for her act. (shrink)

Doug Husak suggests that sometimes an actor should be deemed reckless, and not merely negligent, with respect to the risks that she knowingly created but has forgotten at the moment of action. The validity of this conclusion, he points out, depends crucially on what it means to be aware of a risk. Husak’s neutral prompt and counterfactual actual belief criteria are problematic, however. More persuasive is his suggestion that we understand belief, in this moral and criminal law context, as a (...) concept whose meaning is determined by its function as a culpability standard. Husak concludes that inadvertent actors are often less culpable than knowing-but-later-forgetful actors; this is plausible, but there are also numerous counterexamples. Holly Smith focuses on negligence cases in which an agent’s failure to notice a risk stems, not from a prior culpable choice, but from an objectionable attitude or set of attitudes. She is right to emphasize that genuine moral culpability does not depend on conscious choice. However, Smith also asserts that decisions that flow from an actor’s objectionable attitudes are only rarely culpable, because they often do not arise from a reasonably full configuration of the actor’s motives. This last requirement is, I fear, an unrealistic and unnecessarily demanding criterion of culpability. Even when many of the actor’s evaluative attitudes are inactive in Smith’s sense, the actor might deserve blame for not bringing them to bear on his decision. Michael Moore and Heidi Hurd thoroughly explore, and find deficient, H.L.A. Hart’s unexercised capacity theory of negligence. They are correct that that theory requires a further judgment: an actor’s inadvertence is culpable only if he had the capacity to have adverted if X where X is the source of the actor’s moral desert. They overstate, however, in suggesting that the capacity issue falls out of the picture once we identify that underlying desert basis. The authors also worry that if desert is grounded on an underlying vice, we lack a reliable way of ranking the different vices that might explain the actor’s inadvertence; this is not a fatal objection, however, because negligence determinations are quite feasible even in the absence of clear rankings. Moore and Hurd conclude by identifying eight distinct categories in which criminal liability for negligence is justifiable. Negligence is indeed a surprisingly complex and pluralist concept. The three articles in this symposium brightly illuminate some of the most fundamental conceptual and normative issues in the debate over whether it is just to blame and punish the negligently inadvertent. (shrink)

Theories of moral responsibility rely on tracing principles to account for derivative moral responsibility. Manuel Vargas has argued that such principles are problematic. To show this, he presents cases where individuals are derivatively blameworthy for their conduct, but where there is no suitable earlier time to which their blameworthiness can be traced back. John Martin Fischer and Neal Tognazzini have sought to resolve this problem by arguing that blameworthiness in these scenarios can be traced back, given the right descriptions of (...) these agents’ later conduct. I contend that this strategy may succeed against Vargas’s particular examples, but that it fails to resolve the larger problem. After clarifying some key issues about derivative responsibility and tracing principles, I develop a case that isn’t amenable to Fischer and Tognazzini’s treatment. I then suggest the outlines of a compromise solution to the problem for tracing principles. (shrink)

Ignorance usually excuses from responsibility, unless the person is culpable for the ignorance itself. Since a lot of wrongdoing occurs in ignorance, the question of what makes ignorance culpable is central for a theory of moral responsibility. In this article I examine a prominent answer, which I call the ‘volitionalist tracing account,’ and criticize it on the grounds that it relies on an overly restrictive conception of responsibility‐relevant control. I then propose an alternative, which I call the ‘capacitarian conception of (...) control,’ and on the basis of it I advance an account of culpable ignorance that avoids the skeptical upshots of the volitionalist proposal. If correct, my account establishes three important truths: agents can be directly in control of their ignorance, they can be directly responsible for more than actions and omissions, and their moral obligations extend beyond the performance of intentional actions and omissions. (shrink)

The paper has dual aim: to analyse the structure of negligence, and to use it to offer an explanation of responsibility (for actions, omissions, consequences) in terms of the relations which must exist between the action (omission, etc.) and the agents powers of rational agency if the agent is responsible for the action. The discussion involves reflections on the relations between the law and the morality of negligence, the difference between negligence and strict liability, the role of excuses and the (...) grounds of duties to pay damages. (shrink)

In this paper, we focus on whether and to what extent we judge that people are responsible for the consequences of their forgetfulness. We ran a series of behavioral studies to measure judgments of responsibility for the consequences of forgetfulness. Our results show that we are disposed to hold others responsible for some of their forgetfulness. The level of stress that the forgetful agent is under modulates judgments of responsibility, though the level of care that the agent exhibits toward performing (...) the forgotten action does not. We argue that this result has important implications for a long-running debate about the nature of responsible agency. (shrink)

My primary target in this paper is a puzzle that emerges from the conjunction of several seemingly innocent assumptions in action theory and the metaphysics of moral responsibility. The puzzle I have in mind is this. On one widely held account of moral responsibility, an agent is morally responsible only for those actions or outcomes over which that agent exercises control. Recently, however, some have cited cases where agents appear to be morally responsible without exercising any control. This leads some (...) to abandon the control-based account of responsibility and replace it with an alternative account. It leads others to deny the intuition that agents are responsible in these troublesome cases. After outlining the account of moral responsibility I have in mind, I look at some of the arguments made against the viability of this theory. I show that there are conceptual resources for salvaging the control account, focusing in particular on the nature of vigilance. I also argue that there is empirical data that supports the control account so conceived. (shrink)

Negligence is a problematic basis for being morally blamed and punished for having caused some harm, because in such cases there is no choice to cause or allow—or risk causing or allowing—such harm to occur. The standard theories as to why inadvertent risk creation can be blameworthy despite the lack of culpable choice are that in such cases there is blame for: (1) an unexercised capacity to have adverted to the risk; (2) a defect in character explaining why one did (...) not advert to the risk; (3) culpably acquiring or failing to rid oneself of these defects of character at some earlier time; (4) flawed use of those practical reasoning capacities that make one the person one is; or (5) chosen violation of per se rules about known precautions. Although each of these five theories can justify blame in some cases of negligence, none can justify blame in all cases intuitively thought to be cases of negligence, nor can any of these five theories show why inadvertent creation of an unreasonable risk, pure and simple, can be blameworthy. (shrink)

The article examines what has come to be known as "the risk analysis" in Anglo-American tort law and contract law. The risk analysis essentially consists of: viewing negligence as a relational concept, so that a defendant is never simply negligent tout cour, but is negligent only with respect to certain persons and certain harms — other harms suffered by other persons are said not to be "within the risk" that makes the defendant negligent; and the supplanting of proximate cause doctrine (...) with doctrines of duty, the duty question being determined by the question of whether a certain person and a certain harm are within the risk that makes a defendant negligent. The article aims to explode entirely the risk analysis. After beginning with an examination of the historical roots of the risk analysis, we then seek to show that the risk analysis is: conceptually incoherent because it seeks to isolate a risk that makes someone negligent; normatively undesirable because it allows quite blameworthy actors not to pay for the harms they culpably cause; and descriptively inaccurate of the cases decided on the more traditional, proximate cause bases. (shrink)

It is popularly believed that if A owes B a duty of care in negligence, A will not actually have a legal duty to be careful: A will merely be required to pay damages to B if she suffers loss as a result of A's being careless. We can call this the cynical view of duties of care and those who adopt it, cynics. However, it is possible to take a different view of duties of care in negligence, according to (...) which if A owes B a duty of care of some description, A will actually have a legal duty to be careful. We can call this the idealistic view of duties of care in negligence and those who adopt it, idealists. This article explains the importance of the debate between idealists and cynics over the nature of duties of care in negligence and goes on to argue that the cynical view of duties of care in negligence is, in fact, wrong and that the idealistic view of such duties should be preferred. (shrink)

Moral philosophers and psychologists often assume that people judge morally lucky and morally unlucky agents differently, an assumption that stands at the heart of the Puzzle of Moral Luck. We examine whether the asymmetry is found for reflective intuitions regarding wrongness, blame, permissibility, and punishment judg- ments, whether people’s concrete, case-based judgments align with their explicit, abstract principles regarding moral luck, and what psychological mechanisms might drive the effect. Our experiments produce three findings: First, in within-subjects experiments favorable to reflective (...) deliberation, the vast majority of people judge a lucky and an unlucky agent as equally blameworthy, and their actions as equally wrong and permissible. The philosophical Puzzle of Moral Luck, and the challenge to the very possibility of systematic ethics it is frequently taken to engender, thus simply do not arise. Second, punishment judgments are significantly more outcome- dependent than wrongness, blame, and permissibility judgments. While this constitutes evidence in favor of current Dual Process Theories of moral judgment, the latter need to be qualified: punishment and blame judgments do not seem to be driven by the same process, as is commonly argued in the literature. Third, in between-subjects experiments, outcome has an effect on all four types of moral judgments. This effect is mediated by negligence ascriptions and can ultimately be explained as due to differing probability ascriptions across cases. (shrink)

One way in which fact finders are supposed to determine the reasonableness of a defendant is via a counterfactual test that personifies the reasonable person. We are to imagine the reasonable person being in the defendant’s circumstances. Then we are to determine whether the reasonable person would have done as the defendant did. This paper argues that, despite its prevalence, the counterfactual test is a hopeless guide to determining defendant reasonability. In brief, the test is of the wrong sort to (...) give fact finders the requisite guidance. What we are after is not a counterfactual judgment but instead is a question of possibility. However, since the only thing impossible of the reasonable person is being unreasonable, personifying the reasonable person cannot offer any useful guidance on this question. (shrink)

Commentators seemingly agree about what negligence is—and how it is contrasted from recklessness. They also appear to concur about whether particular examples (both real and hypothetical) portray negligence. I am less confident about each of these matters. I explore the distinction between recklessness and negligence by examining a type of case that has generated a good deal of critical discussion: those in which a defendant forgets that he has created a substantial and unjustifiable risk of harm. Even in this limited (...) kind of example, no single perspective on blame and liability proves to be defensible. Nonetheless, a discussion of this type of case is helpful because it enables us to appreciate the difficulties in understanding the nature of negligence and the ensuing uncertainty about whether penal liability for negligence is ever warranted. (shrink)

Non-moral ignorance can exculpate: if Anne spoons cyanide into Bill's coffee, but thinks she is spooning sugar, then Anne may be blameless for poisoning Bill. Gideon Rosen argues that moral ignorance can also exculpate: if one does not believe that one's action is wrong, and one has not mismanaged one's beliefs, then one is blameless for acting wrongly. On his view, many apparently blameworthy actions are blameless. I discuss several objections to Rosen. I then propose an alternative view on which (...) many agents who act wrongly are blameworthy despite believing they are acting morally permissibly, and despite not having mismanaged their moral beliefs.1. (shrink)

The author first argues against the view that an agent is morally blameworthy for performing an action only if it is morally wrong for that agent to perform that action. The author then proposes a replacement for this view whose gist is summarized in the principle: an agent S is morally blameworthy for performing action A only if S has the belief that it is wrong for her to do A and this belief plays an appropriate role in S’s Aing. (...) He focuses on explicating the role an agent’s belief that a prospective action, A, of hers is wrong must play in the production of her A-ing in order that she be blameworthy for A-ing. Towards this end, the author makes use of cases involving akrasia and self-deception. (shrink)

Control-based models of moral responsibility typically employ a notion of "tracing," according to which moral responsibility requires an exercise of control either immediately prior to the behavior in question or at some suitable point prior to the behavior. Responsibility, on this view, requires tracing back to control. But various philosophers, including Manuel Vargas and Angela Smith, have presented cases in which the plausibility of tracing is challenged. In this paper we discuss the examples and we argue that they do not (...) in fact impugn an attractive and natural tracing component. Our discussion can function in part as a defense of a control-based account of moral responsibility, but also as simply a defense of tracing. (shrink)

Recent research in moral psychology has attempted to characterize patterns of moral judgments of actions in terms of the causal and intentional properties of those actions. The present study directly compares the roles of consequence, causation, belief and desire in determining moral judgments. Judgments of the wrongness or permissibility of action were found to rely principally on the mental states of an agent, while judgments of blame and punishment are found to rely jointly on mental states and the causal connection (...) of an agent to a harmful consequence. Also, selectively for judgments of punishment and blame, people who attempt but fail to cause harm more are judged more leniently if the harm occurs by independent means than if the harm does not occur at all. An account of these phenomena is proposed that distinguishes two processes of moral judgment: one which begins with harmful consequences and seeks a causally responsible agent, and the other which begins with an action and analyzes the mental states responsible for that action. Ó 2008 Elsevier B.V. All rights reserved. (shrink)

Chomsky proposes a reformulation of the theory of transformational generative grammar that takes recent developments in the descriptive analysis of particular ...

Drunk drivers and other culpably incapacitated wrongdoers are often taken to pose a problem for reasons-responsiveness accounts of moral responsibility. These accounts predicate moral responsibility upon an agent having the capacities to perceive and act upon moral reasons, and the culpably incapacitated wrongdoers lack exactly those capacities at the time of their wrongdoing. Many reasons-responsiveness advocates thus expand their account of responsibility to include a tracing condition: The culpably incapacitated wrongdoer is blameworthy despite his incapacitation precisely because he is responsible (...) for becoming incapacitated. As some skeptics have suggested, it is not clear that we need tracing. Here, however, I make a stronger case against tracing: I show that tracing gets things wrong. I consider a new sort of case, the case of the Odysseus agent, whose incapacitation is non-culpable (sometimes merely permissible and sometimes praiseworthy). Tracing would have us hold responsible and therefore blame unlucky Odysseus agents, Odysseus agents who commit a wrongdoing in the throes of their non-culpably induced incapacitation. But we should not hold these unlucky Odysseus agents responsible for their incapacitated wrongdoing. Because tracing gets these cases wrong, we should reject tracing. (shrink)

Philosophers have long agreed that moral responsibility might not only have a freedom condition, but also an epistemic condition. Moral responsibility and knowledge interact, but the question is exactly how. Ignorance might constitute an excuse, but the question is exactly when. Surprisingly enough, the epistemic condition has only recently attracted the attention of scholars, and it is high time for a full volume on the topic. The chapters in this volume address the following central questions. Does the epistemic condition require (...) akrasia? Why does blameless ignorance excuse? Does moral ignorance sustained by one’s culture excuse? Does the epistemic condition involve knowledge of the wrongness or wrongmaking features of one’s action? Is the epistemic condition an independent condition, or is it derivative from one’s quality of will or intentions? Is the epistemic condition sensitive to degrees of difficulty? Are there different kinds of moral responsibility and thus multiple epistemic conditions? Is the epistemic condition revisionary? What is the basic structure of the epistemic condition? (shrink)

In this book Michael McKenna advances a new theory of moral responsibility, one that builds upon the work of P. F. Strawson. As McKenna demonstrates, moral responsibility can be explained on analogy with a conversation. The relation between a morally responsible agent and those who hold her morally responsible is similar to the relation between a speaker and her audience. A responsible agent's actions are bearers of meaning--agent meaning--just as a speaker's utterances are bearers of speaker meaning. Agent meaning is (...) a function of the moral quality of the will with which the agent acts. Those who hold an agent morally responsible for what she does do so by responding to her as if in a conversation. By responding with certain morally reactive attitudes, such as resentment or indignation, they thereby communicate their regard for the meaning taken to be revealed in that agent's actions. It is then open for the agent held responsible to respond to those holding her responsible by offering an apology, a justification, an excuse, or some other response, thereby extending the evolving conversational exchange.The conversational theory of moral responsibility that McKenna develops here accepts two features of Strawson's theory: that moral responsibility is essentially interpersonal--so that being responsible must be understood by reference to the nature of holding responsible--and that the moral emotions are central to holding responsible. While upholding these two aspects of Strawson's theory, McKenna's theory rejects a further Strawsonian thesis, which is that holding morally responsible is more fundamental or basic than being morally responsible. On the conversational theory, the conditions for holding responsible are dependent on the nature of the agent who is responsible. So holding responsible cannot be more basic than being responsible. Nevertheless, the nature of the agent who is morally responsible is to be understood in terms of sensitivity to those who would make moral demands of her, thereby holding her responsible. Being responsible is therefore also dependent on holding responsible. Thus, neither being nor holding morally responsible is more basic than the other. They are mutually dependent. (shrink)

Neil Levy presents a new theory of freedom and responsibility. He defends a particular account of consciousness--the global workspace view--and argues that consciousness plays an especially important role in action. There are good reasons to think that the naïve assumption, that consciousness is needed for moral responsibility, is in fact true.

Part I: Building blocks. 1. Folk convictions -- 2. Doubts about libertarianism -- 3. Nihilism and revisionism -- 4. Building a better theory -- Part II. A theory of moral responsibility. 5. The primacy of reasons -- 6. Justifying the practice -- 7. Responsible agency -- 8. Blame and desert -- 9. History and manipulation --10. Some conclusions.