We ordinarily suppose that there is a difference between having and failing to exercise a rational capacity on the one hand, and lacking a rational capacity altogether on the other. This is crucial for our allocations of responsibility. Someone who has but fails to exercise a capacity is responsible for their failure to exercise their capacity, whereas someone who lacks a capacity altogether is not. However, as Gary Watson pointed out in his seminal essay ’Skepticism about Weakness of Will’, the (...) idea of an unexercised capacity is much more difficult to make sense of than it initially appears. The aim of ’Rational Capacities’ is to provide the needed explication of this idea. (shrink)

The question of when a person is culpable for taking an unjustified risk of harm has long been controversial in Anglo-American criminal law doctrine and theory. This survey of the approaches adopted in England and Wales, Canada, Australia, the United States, New Zealand and Scotland argues that they are converging, to differing extents, around a 'Standard Account' of culpable unjustified risk-taking. This Standard Account distinguishes between awareness-based culpability and inadvertence-based culpability for unjustified risk-taking. With reference to criminal law theory and (...) philosophical literature, the author argues that, when explained appropriately, the Standard Account is defensible and practical. Defending the Standard Account involves analysing in depth a number of controversial matters, including the meaning of advertence/awareness, the role of attitudes such as indifference in culpable risk-taking, and the question of whether negligence should be used in the criminal law. (shrink)

I discuss two problems for the standard Anglo-American account of recklessness, and the distinctions between intention, recklessness, and negligence. One problem concerns the over-breadth of recklessness as thus defined—that it covers agents whose actions display different kinds of culpability. The other problem concerns the importance attached to awareness of risk in distinguishing recklessness from negligence—that one who is unaware of the risk that he takes or creates sometimes displays just the same kind of fault as an (...) advertent risk-taker. We can work towards solutions to these problems by contrasting the Anglo-American schema with the German schema: this distinguishes intention from negligence. Dolus eventualis, properly understood, constitutes a distinctive kind of fault, which should be distinguished from advertent negligence within the category of what the Anglo-American schema counts as recklessness: this helps to solve the first problem, of over-breadth. As for the second problem, we can see why the difference between advertent and inadvertent risk-taking is not always normatively significant by noticing that an agent’s failure to realise the risk he is creating can itself display a significant fault in the structure of the practical reasoning that informs his action—just the same kind of fault as that displayed by an advertent risk-taker. The upshot of this discussion is a new schema of types of criminal fault; I finally note some problems with the practicability of such a new schema. (shrink)

Intellectual courage requires acting to promote epistemic goods despite significant risk of harm. Courage is distinguished from recklessness and cowardice because the expected epistemic benefit of a courageous action outweighs (in some sense) the threatened harm. Sometimes, however, inquirers pursue theories that are not best supported by their current evidence. For these inquirers, the expected epistemic benefit of their actions cannot be explained by appeal to their evidence alone. The probability of pursuing the true theory cannot contribute enough to (...) the expected epistemic benefit for the action to count as courageous rather than reckless. Thus, there must be some other epistemic consideration which favors their action, besides evidence for their theory. I argue that the proper account of intellectual courage requires recognition of inquisitive reasons: a distinct category of epistemic reasons which concern successful inquiry. This category includes reasons to think a theory itself is promising, e.g., that the theory suggests potentially fruitful new research. It also includes social epistemic reasons, e.g., that pursuing a theory will improve the distribution of cognitive labor. Inquisitive reasons help explain why researchers who pursue improbable theories count as intellectually courageous, rather than reckless. The expected epistemic benefit of an action is partially determined by the inquisitive reasons in its favor. On my account, intellectually courageous inquiry requires acting in a way that is sensitive to inquisitive reasons. (shrink)

The media hoop-la about Edward Snowden has obscured a less flashy yet more vital – and philosophically relevant – part of the story, namely the moral and political seriousness with which he acted to make the hitherto covert scope and scale of NSA surveillance public knowledge. Here I argue that we should interpret Snowden’s actions as meeting most of the demanding tests outlined in sophisticated political thinking about civil disobedience. Like Thoreau, Gandhi, King and countless other grass-roots activists, Snowden has (...) in fact articulated a powerful defense of why he was morally obligated to engage in politically motivated law-breaking. He has also undertaken impressive efforts to explain how his actions are distinguishable from ordinary criminality, and why they need not culminate in reckless lawlessness. In fact, his example can perhaps help us advance liberal and democratic ideas about civil disobedience. First, it highlights sound reasons why, pace the orthodox view, the acceptance of punishment by those engaging in civil disobedience should not be seen as a precondition of its legitimacy. Second, Snowden reminds us that ours is an era in which intensified globalization processes directly shape every feature of political existence. Defenders of civil disobedience need to update their reflections accordingly. (shrink)

Because they track the Model Penal Code, current criminal law formulations of risk offenses typically fail to distinguish the rule of conduct question—What risks does the criminal law prohibit?—from the adjudication question — When is a particular violator’s conscious disregard of, or his inattentiveness to, a risk in a particular situation sufficiently condemnable to deserve criminal liability? Instead, the formulations address only the second question — through their definition of reckless and negligent culpability — and fail to provide a (...) rule of conduct provision to define a prohibited risk. This reliance upon culpability definitions as the core of risk-creation offense definitions is problematic because it fails to announce a useable conduct rule that describes those risks the law prohibits. Instead, this approach subjectivizes the definition of prohibited risks. What may be held "reckless" or "negligent" for one person may not be "reckless" or "negligent" for another person in the identical situation — an effect that strips case adjudications of their value in educating the community as to risks that the rules of conduct prohibit. Current risk-creation offenses also are problematic because they make results — including the creation of a prohibited risk — irrelevant to criminal liability. While this is consistent with the Model Code’s view that resulting harm is insignificant, that only culpable state of mind ought to affect liability, it is inconsistent with the view of most state code drafters. Thus, while the Model Code grades offenses without regard to whether a prohibited risk in fact is created, most state codes logically would want to grade lower in the absence of a prohibited risk. These two fundamental problems—the failure to distinguish conduct rules and adjudication rules and the confusion over the significance of results — are related. The Model Penal Code’s general failure to distinguish conduct and adjudication rules made it less likely that state code drafters would notice what they would have seen as the Code’s inappropriate subjectivization of risk and risk offenses. If the Model Code had systematically segregated conduct and adjudication rules, it would have been more obvious to state code drafters that the Code’s formulation of risk-creation offenses was one that they could not accept. (shrink)

In lieu of an abstract, here is a brief excerpt of the content:THE ACTUAL INFINITE IN ARISTOTLE Prolegomena: Philosophy and Theology Related HENEVER PHILOSOPHY is taken to be the handmaiden of theology, then the autonomy of reason is destroyed." Such a daim should be distinguished from a still 1stronger thesis. Compare: " A philosopher may not legitimately try to fortify an argument by bringing in new premises from another discipline which has a special aura of authority." Quite how Aristotle would (...) have reacted to the first generalization, if it had been suitably translated for his scrutiny, is a question on which commentators might agree to differ. But Aristotle would have been as!'eluctant as Aquinas, or Maimonides, or later Monotheists who treasured the Physics, to leave the second general claim unquestioned. Natural and revealed theology, like physics or mathematics, are domains where extremely subtle reasoner1s have studied and published widely for a very long time. So an elementary respect for induction suggests that philosophers should e:x;pect to benefit from,applying some premises and some ways of arguing, which are found in theology, to their own issues. I speak of premises and ways of arguing that philosophers qua philosophers have not provided before. Thinkers in all four disciplines could thus profit from each body of work. Even the law of averages is set pitilessly against the second general claim.1 1 The late Father F. C. Copleston, S.J., covers many important topics regarding theology and philosophy in Aquinets (Baltimore: Peng11in, 1955), pp. 12-14, 19, 54-63, 65-68, 74, 116, etc. But the point put forward here about human power to strengthen intuition in one field seems to be partly missed. Copleston also fails to dwell enough on infinity in various passages. See John King-Farlow, "The First ·way in Physical and Moral Space", The Thomist 427 428 JOHN KING-FARLOW By focussing on some arguments of Aristotle's against the admissibility of an,actual infinite, we shall find deeper, less obvims reasons for rejecting that second claim. Other philosophical points of intrinsic value should emerge as well foom the short investigation. But this one is especially interesting because of its curious pertinence to perennial disagreements among those who address the relations of theology, theism and philosophy. At any rate, the search for such deeper reasons will involve the application to Aristotle's texts of a somewhat modern way of using the term " intuition ". Introduotion: A Relevant Kind of Intuitive Thinking Diss,atisfaction with modern Platonism in higher mathematics may be added to disenchantment with Platonism's modern opponents. Such opposition may seem too technical for issues of intuition or, indeed, of common reason. And so one is led back to consider certain rightly famous arguments of Aristotle. But before turning to Aristotle and his grapplings with ideais and claims about an actual infinity, let us 1ook at a few very ordinary uses of the sometimes charismatic word "intuition." Webster's Dictionary (1978) offers: "immediate and instinctive perception of a truth; direct understanding without reasoning." In his classic study Evolution of JJ;Jathematieal Concepts, Wilder writes at least once in the spirit of Webster: "Counting with fingers (and toes) clearly involves intuitive recognition of (1-1)-correspontreme, excessive gene:msity, and, next, irion unwillingness to give ·anything to others, lies usually much closer to the first extreme. Between utter recklessness and self-paralyzing caution the Mean may oscillate in relative distance, according to the demands of the context. Near recklessness may offer the only means to win one kind of battle and a stubborn refusal to move may be needed for the nex>t victory. By pursuing such a nonmechanical and variably positioned ideal of a Mean, a really wise father usually oould show special favor to one specially deserving child in some ways and some contexts, yet generally show very satisfying love to a;ll his children. 11 Richard Bosley, " What Is a Mean? The Question Considered Compara· tively and Systematically." PhiloB. (shrink)

In this piece, I argue that promises need not be kept just because they were made. This is not to say, however, that unwise, unhappy, and unfortunate promises do not generate obligations. When broken promises will result either in wrongful gains to promisors or wrongful losses to promisees, obligations of corrective justice will demand that such promises be kept if their breach cannot be fully repaired. Thus, when a broken promise will constitute a deliberate loss transfer for personal gain, the (...) duty not to exact unjust enrichment will require a promisor either to honor her promise or craft a means of ensuring that the promisee’s impoverishment is not traded for her enrichment. And when a broken promise will constitute the culpable imposition of a reliance-based injury on a nonculpable promisee, the duty to make others whole when one has purposefully, knowingly, or recklessly injured them will require one either to keep one’s promise or to fashion a remedy for its breach that ensures that the promisee is left no worse off than he would be had the promise not been made. This account explicitly parts ways with normative powers theories of promising. It places no weight at all on the raw fact that a promise has been made. Instead, it locates the gravamen of a promissory violation in the harm that is caused to a promisee who nonculpably relies upon and changes her position in anticipation of the prediction about the promisor’s future conduct that is embedded in his promise. Absent any adverse reliance on the part of a promisee, there is nothing that gives rise to an obligation of performance or repair on the part of the promisor. But this account is also to be distinguished from utilitarian theories that take promises to be instruments of wealth maximization that properly give way whenever the reason for honoring them speaks in favor of violating them. On my account, the balance of reasons for action that determines the morality of performance includes deontological rights and duties, agent-relative permissions, and Hohfeldian liberties. As I shall argue, even if one rightly concludes that one has no duty either to keep a promise or to craft a remedy for its breach, one must nevertheless remember that virtue requires one to be or become the kind of person who often goes beyond the call of duty. But the fact that virtue often requires us to do what we have no duty to do should not cause us to confuse its conditions with the conditions of right and wrong action. We have a duty to keep promises or to otherwise protect the reliance interests that they generate only when failing to do so will lead either to our own unjust enrichment or to others’ unjust injury. And this means that we have a duty to keep promises in far fewer circumstances than is commonly believed. (shrink)

Slavoj Zizek is no ordinary philosopher. Approaching critical theory and psychoanalysis in a recklessly entertaining fashion, Zizek's critical eye alights upon a bewildering and exhilarating range of subjects, from the political apathy of contemporary life, to a joke about the man who thinks he's a chicken, from the ethicial heroism of Keanu Reeves in speed , to what toilet designs reveal about the national psyche. Tony Myers provides a clear and engaging guide to Zizek's key ideas, explaining the main influences (...) on Zizek's thought, most crucially his engagement with Lacanian psychoanalysis, using examples drawn from popular culture and everyday life. Myers outlines the key issues that Zizek's work has tackled, including: * What is a Subject and why is it so important? * The Imaginary, the Symbolic and the Real * What is so terrible about Postmodernity? * How can we distinguish reality from ideology? * What is the relationship between men and women? * Why is Racism always a fantasy? Slavoj Zizek is essential reading for anyone wanting to understand the thought of the critic whom Terry Eagleton has described as "the most formidably brilliant exponent of psychoanalysis, indeed of cultural theory in general, to have emerged in Europe for some decades.". (shrink)

This article focuses on the ethical implications of so-called ‘collateral damage’. It develops a moral typology of collateral harm to innocents, which occurs as a side effect of military or quasi-military action. Distinguishing between accidental and incidental collateral damage, it introduces four categories of such damage: negligent, oblivious, knowing and reckless collateral damage. Objecting mainstream versions of the doctrine of double effect, the article argues that in order for any collateral damage to be morally permissible, violent agents must comply with (...) high standards of care. In order for incidental harm to be permissible, an agent must take pains to avoid such harm even at higher cost to him- or herself. It is argued that accidentally but negligently caused collateral damage may be just as difficult to excuse as incidental harm. Only if high precautionary standards of care are met, can unintended harm to innocents – incidental or accidental – be permissible. In practice, such a strong commitment to avoiding harm to civilians may well lead us to question more generally and rethink more radically how violent conflicts ought to be fought, how military violence ought to be used and whether there are better ways of achieving those aims that we think are legitimate than those we are currently using. (shrink)

Developmental psychologists have long argued that the capacity to distinguish moral and conventional transgressions develops across cultures and emerges early in life. Children reliably treat moral transgressions as more wrong, more punishable, independent of structures of authority, and universally applicable. However, previous studies have not yet examined the role of these features in mature moral cognition. Using a battery of adult-appropriate cases (including vehicular and sexual assault, reckless behavior, and violations of etiquette and social contracts) we demonstrate that these (...) features also distinguish moral from conventional transgressions in mature moral cognition. Each hypothesized moral transgressions was treated as strongly and clearly immoral. However, our data suggest that although the majority of hypothesized conventional transgressions also form an obvious cluster, social conventions seem to lie along a continuum that stretches from mere matters of personal preference (e.g., getting tattoos or wearing black shoes with a brown belt) to transgressions that are treated as matters for legitimate social sanction (e.g., violating traffic laws or not paying your taxes). We use these findings to discuss issues of universality, domain-specificity, and the importance of using a well-studied set of moral scenarios to examine clinical populations and the underlying neural architecture of moral cognition. (shrink)

In lieu of an abstract, here is a brief excerpt of the content:Reviewed by:The Ethics of Revenge and the Meanings of the Odyssey by Alexander C. LoneyEmily P. AustinAlexander C. Loney. The Ethics of Revenge and the Meanings of the Odyssey. New York: Oxford University Press, 2019. Pp. xii +265. Hardcover, $78.00. ISBN 978-0-190-90967-3.The Ethics of Revenge and the Meanings of the Odyssey places Odysseus' climactic act of revenge where it belongs: at the center of our interpretation of the Odyssey. (...) With admirably clear prose, Loney traces out the recurring pattern of tisis narratives woven through the poem. The accumulation of these revenge stories demonstrates that, in Loney's words, "tisis breeds endless further plots, making an epic of revenge fatally open-ended" (225, emphasis mine). Although the focus is simple, Loney's comprehensive account of the workings of revenge narratives commands the reader's interest. I, for one, was unprepared to recognize how systematically the poet sets up its readers to be disturbed by the ending—although I have long found the final books of the Odyssey troubling. On Loney's reading, the Odyssey sets up the terms of revenge's justice such that, on those very terms, the execution of vengeance is always ambivalent. For anyone with interests in Homer or revenge narratives, Loney's book has much to offer.The Ethics of Revenge begins with archaic conceptions of vengeance (tisis) (chap. 1). Loney distinguishes between "positive" reciprocity, which aims at balance through the ostensibly free exchange of benefits; and "negative" reciprocity, which is blatantly transactional: tisis is a form of negative reciprocity, where harm is met with immediate and (supposedly) equivalent harm. But as Loney shows, the returning harm is equivalent to the initial harm only insofar as someone judges it to be so. This insight is essential to understanding the inconclusive quality of vengeance: one person's retributive act is, potentially, another person's harm received. The justice achieved by such retributions is limited to the perspective of the one judging.Loney turns to such overlapping stories of tisis in the Odyssey in chapter 2. These overlaps prime the audience to notice ethical complexities among different characters' claims about wrongdoings and merited punishments. For Loney, Zeus' story of Orestes in Book 1 is the paradigmatic tisis narrative of the Odyssey. From this story, Loney distills the elements of all tisis narratives in the poem: absence (Agamemnon away) → unheeded warning / recklessness (Aigisthos ignores Hermes' warning) → preparation for offense (Aigisthos woos Klytaimnestra) → offense (Aigisthos commits adultery with Klytaimnestra and murders Agamemnon) → preparation for retribution (Orestes returns to Mycenae) → retributive act (Orestes kills Aigisthos and Klytaimnestra) → just order restored (Aigisthos has repaid in full). [End Page 535] Loney emphasizes how the unheeded warnings contribute to the ideal of immediate equivalence in tisis: when an offender chooses to perpetrate harm despite a warning (often marked by the term ἀτασθαλίαι), he or she effectively chooses to suffer retribution. The narrator of the tisis story moreover stresses equivalence—in the Orestes paradigm, killing for killing.In the next four chapters, Loney masterfully applies this theoretical and philological work to his interpretation of the poem. Chapter 3 follows three narratives of divine vengeance: Zeus avenging the companions' offense against Helios; Poseidon avenging Odysseus' blinding of Polyphemos; and Poseidon taking vengeance on the Phaiakians, who helped Odysseus. With clear analysis of story patterns and intratextual resonance, Loney shows how these stories evoke latent meanings through their parallels, echoes, or mutual implications. So, for example, Odysseus complicates the narrative of Poseidon avenging Polyphemos with his own story of Polyphemos' wrongs against him and his companions; and the vengeance of Poseidon on the Phaiakians is left literally open-ended, with the poet never telling us if Zeus destroys the island or not. As a result, by the time we get to the central tisis narrative of the poem (chap. 4), Odysseus' vengeance against the suitors comes to us against a varied backdrop of inconclusive and intertwined stories of retribution.In chapter 4, Loney explicates the key aspects of tisis in Odysseus' "terrifying revenge" (cf. Plato's Ion 535c7). For example, the suitors receive five of the poem's nine attributions of ἀτασθαλίαι, marking their wrongdoings as "precipitating harm" that... (shrink)

Comprendre les mécanismes sous-jacents de la «nouvelle économie» permet d'augmenter ses chances de gagner au jeu. Un rapide survol des conditions de naissance et de développement de la nouvelle économie montre que le passage de l'économie industrielle à l'économie du savoir a été accompagné par des malentendus similaires à ceux qu'a soulevés l'avènement de l'industrie dans les sociétés agraires. Dans cet article, nous montrons qu'il faut bien distinguer la nouvelle économie, l'économie des services et l'économie du don. Nous évaluons la (...) pertinence des grandes théories économiques pour rendre compte de la nouvelle économie. En examinant les sources des revenus qu'elle peut fournir, nous montrons les dangers qu'une gestion imprudente et non orthodoxe risque d'engendrer. Le temps romantique des pionniers est révolu; la crise de croissance est dépassée. Il reste que la nouvelle économie offre à l'homme du nouveau millénaire l'occasion de se réinventer.Understand the underlying mechanisms of the "new economy" to increase his chances of winning the game A quick overview of the conditions of birth and development of the new economy shows the transition from the industrial economy to the knowledge economy has been accompanied by misunderstandings similar to those that were raised the advent of industry in agrarian societies. In this paper, we show that it is necessary to distinguish the new economy, the service economy and the gift economy. We evaluate the relevance of major economic theories to account for the new economy. In examining the sources of income it can provide, we show that the dangers reckless and unorthodox management may cause. Romantic time of the pioneers are gone, the growth crisis is exceeded. It remains that the new economy offers to man the new millennium opportunity to reinvent itself. (shrink)

This article explores different dimensions of the concept of negligence in the law. The first sections focus on the fundamental distinction between conduct negligence, a conception that dominates tort law; and cognitive negligence, a conception that is much more important in criminal law. The last major section identifies five significant institutional functions served by a legal negligence standard: expressing a legal norm in the form of a standard rather than a rule; personifying fault; empowering the trier of fact to give (...) content to the standard; creating a secondary legal norm parasitic on a primary legal norm; and distinguishing grades of fault. These functions reveal the distinctive significance of negligence, but also disclose numerous problems that the use of such a legal standard can pose. Careful analysis of these different dimensions of negligence clarifies certain misconceptions and has important implications. For example, the question whether "negligence" is an appropriate minimum standard of liability is unanswerable until we identify the type of negligence at issue and its role in norm-definition. Similarly, comparing negligenceto supposedly "more serious" forms of fault, such as recklessness, knowledge, and purpose, is treacherous and sometimes amounts to comparing apples and oranges. A better understanding of the different conceptions of negligence and of the distinctive institutional functions of a legal negligence standard can facilitate the development of more coherent, and more justifiable, fault criteria in criminal law, torts, and other legal domains. (shrink)

Willful blindness is not an appropriate substitute for knowledge in crimes that require a mens rea of knowledge because an actor who contrives his own ignorance is only sometimes as culpable as a knowing actor. This paper begins with the assumption that the classic willfully blind actor—the drug courier—is culpable. If so, any plausible account of willful blindness must provide criteria that find this actor culpable. This paper then offers two limiting cases: a criminal defense lawyer defending a client he (...) suspects of perjury and a pain doctor who suspects his patient may be lying about her pain. The paper argues that each of these actors is justified in cultivating ignorance about his client’s or patient’s truthfulness. If this is right, then a good theory of willful blindness must distinguish these cases. The article argues that neither Husak & Callender’s motivation-based account of willful blindness nor the recklessness account is able to do so. The paper proposes the following alternative: contrived ignorance constitutes culpable blindness when the decision to remain blind or to cultivate blindness is not itself justified. This Justification approach meshes with our intuitions about willfully blind drug couriers as well as willfully blind lawyers and doctors. (shrink)

In 2014, American doctor Ian Crozier chose to travel to Sierra Leone to help fight the West African Ebola epidemic. He contracted Ebola himself and was evacuated to the US, where he received hospital treatment for 40 days. Crozier knowingly chose to expose himself to a risk of contracting Ebola, and thus appears to be at least somewhat morally responsible for his infection. Did this responsibility weaken his justice-based claim to publicly funded treatment? On one influential view—luck egalitarianism—the answer is (...) ‘yes’. Or so Albertsen and Thaysen suggest in this issue.1 According to luck egalitarianism, justice requires the elimination of inequalities between people, but only when the relative harm borne by those on the wrong end of the inequality is a matter of luck. Albertsen and Thaysen understand luck egalitarianism to entail that, when one is responsible for befalling a harm, one has no claim in justice to the mitigation of that harm. On this view, they suggest, Crozier’s claim to treatment would be similar to that of a reckless Alpine skier who is injured in a skiing accident, and would be weaker than that of those with a normal claim to treatment—those who bear no responsibility for their illness. Both of these implications seem implausible, however. Intuitively, Crozier’s claim to treatment is no weaker than those with normal claims, and certainly stronger than the reckless skier’s. Can luck egalitarianism be ‘adjusted or interpreted’ so as to avoid these implausible implications? The authors suggest that it can. Their innovation is to distinguish heroic doctors like Crozier from reckless skiers by invoking a distinction between being responsible for creating harm and for incurring harm. Their thought is that one creates harm when one brings harm on oneself without also preventing at least as much harm to others. Thus, the harm that …. (shrink)

In lieu of an abstract, here is a brief excerpt of the content:Reviewed by:Prudence: Classical Virtue, Postmodern PracticeFrancis A. BeerPrudence: Classical Virtue, Postmodern Practice. Ed. Robert Hariman. University Park: Pennsylvania State University Press, 2003. Pp. xi + 337. $65.00, cloth."Would it be prudent?" The phrase echoes in memory, linking Dana Carvey from Saturday Night Live to the presidency of the first George Bush. Robert Hariman has been wrestling with prudence for over a decade, and he has now produced a powerful (...) volume that brings together not only his thoughts but also those of a number of other distinguished authors. The result is a book that will become a standard reference for those interested in prudence.The subtitle, Classical Virtue, Postmodern Practice, and the title of the first chapter, "Theory without Modernity," give some idea of the subtexts that drive the book. This is a book about prudence, and more. It is about virtue in classical, modern, and postmodern settings. It is about the dynamic complexity of practice—decision, judgment, and action in public and private life.Hariman gives us a definition: "Prudence is a mode of reasoning about contingent matters in order to select the best course of action" (5). That would be too easy. He also surrounds prudence with a penumbra of related words to broaden our understanding of the complex lattice of semantic meaning. Our legacy from the Greek and Roman lexicon includes words like phronesis and prudentia. Contemporary nouns involve cautiousness, circumspection, and care. Related adjectives are "careful, judicious, tactful, discerning, sensible, frugal, wise, sage, level-headed, balanced, moderate, politic, practical pragmatic, expedient" (vii). These synonyms, for Hariman, describe a narrow, modern form of prudence, part of the calculative tradition inherited from Aristotle, that ultimately leads to the saddle points of rational choice. They are, however, only a part of the story. Hariman aims to relieve their "stodginess" by recovering the performative tradition of prudence from Cicero. Prudence, from this perspective, is defined not just abstractly as a set of rules but more dynamically as a set of roles. Prudence includes character, and is performed by characters. Pericles in Athens is an iconic example of superb political leadership that blends the honor of the leader with the glory of the state. Prudence combines integrity of the self with respect for others. This is a broad, ambitious interpretation [End Page 176] of prudence. It recuperates not only a classical vision of prudence but also one of politics. It rearranges other virtues to revolve in a constellation around prudence. In this reconstituted form, prudence reemerges to shine as "a crucial element of political leadership," the central political virtue.The book is divided into three parts: "Conceptual Frameworks," "Rhetorical Structures," and "Provisional Networks." All three of the sections are identified in structural terms, which is interesting since Hariman's conception of prudence as a primary political virtue is very agent-centered. The structures, however, provide the settings in which the political observers and actors perform. The first section provides a sample of the rich literature that focuses on philosophical concepts of prudence in earlier times and places. It begins with a chapter by Robert W. Cape Jr. that discusses "Cicero and the Development of Political Practice in Rome." This chapter is critical to the book, since it lays a part of the foundation. It is the first substantive essay and it must also make the case for combining calculative and performative prudence. Cape gives us a fine exposition of prudentia in the Roman context. Interestingly, he suggests that "prudentia is a contraction of providentia, "'foresight.'" (37).The virtue of prudence was typically associated with age and experience. Imprudence, on the other hand, was associated with youth, recklessness, and impropriety (37). Prudence involved knowledge of practical matters, law, and custom as well as proper speech, including rhetoric, and behavior. Prepon mattered. Prudence for Cicero, however, was much more than simply knowing how things work: it was ultimately the extended performance of justice on the public stage. The next chapter, by Eugene Garver, entitled "After Virtù: Rhetoric, Prudence, and Moral Pluralism in Machiavelli," moves the story of prudence from the late classical to the early modern period. As the title indicates, Garver's concern is also with the relation of... (shrink)

The law inevitably draws lines. These lines distinguish, for example, whether certain conduct reflects ordinary recklessness constituting manslaughter or more extreme recklessness constituting murder. There is no way to meaningfully draw such lines, however, absent shared ways of representing amounts of recklessness or at least knowledge of the consequences of drawing lines in particular places. Yet legal actors frequently draw lines in the dark, establishing cutoffs along a spectrum with little or none of the information required (...) to do so in a way that suits the law’s goals. For example, jurors must decide whether some conduct constitutes extreme recklessness without knowing prior precedent nor the sentencing consequences of drawing cutoffs in particular places. Judges and lawyers cite line drawing precedents from other jurisdictions without considering whether the lines drawn in prior cases had the same consequences as those in the case at bar. And scholars argue about how to classify conduct without making clear what consequences they believe ought to attach once the classification is made, leaving it hard to tell when scholars have substantive or simply superficial disagreements. In this Article, I discuss some line drawing problems and briefly suggest ways we can add meaning to cutoffs. More generally, I argue, we can “smooth” certain features of the law to both reduce our vulnerability to line drawing in the dark and improve the fit between the law and what our best theories of law recommend. Even when we cannot easily smooth the law, thinking about the law in a smoother fashion can help reduce the jurisprudential pathologies I describe. (shrink)

ABSTRACTThere are two distinct types of legal wrongdoing: civil and criminal. This article demonstrates in three ways that Immanuel Kant's Universal Principle of Right, properly interpreted, offers a plausible and resilient account of this important distinction. First, Kant's principle correctly identifies attempted crimes as crimes themselves even when they do not violate the rights of any individual. Second, it justifies our treatment of reckless endangerment as a crime by distinguishing it from ordinary negligence, traditionally thought to be only civilly wrong. (...) Third, it explains and justifies differences between the features of traditional criminal punishments and the features of civil remedies. Moreover, the Universal Principle of Right yields a Kantian standard for criminal wrongdoing that is compelling enough to inform future philosophical inquiries into the nature and limits of the state's criminal lawmaking authority. (shrink)

Action theory has given rise to some perplexing puzzles in the past half century. The most prominent one can be summarized as follows: What distinguishes intentional from unintentional acts? Thanks to the ingenuity of philosophers and their thought experiments, we know better than to assume that the difference lies in the mere presence of an intention, or in its causal efficacy in generating the action. The intention might be present and may also cause the intended behavior, yet the behavior may (...) not be an intentional action; it may not be an action at all. The classic example is that of the nervous nephew who intends to kill his uncle to inherit his estate, and whose intention makes him so nervous as to drive recklessly, thereby running over a pedestrian... who happens to be his very uncle. The intention to kill is present and it causes the killing, yet the killing is not an intentional action. Rather, what appears to distinguish intentional from non-intentional action is voluntary control of the proper sort, and what distinguishes action from non-action is behavior caused in a particular manner. But spelling out the sort and specifying the manner have proven vexing tasks. (shrink)

There can be no disputing the proposition that doctors and nurses should be held accountable for their professional activities. In most circumstances this accountability should be achieved through appropriate and effective complaints and disciplinary procedures, but there will be cases where the criminal law should become involved. The criminal law, however, is a serious weapon, and should only be used to punish those whose conduct is truly criminal; it should not be used against those who have merely made a human (...) error. The task of the law should therefore be to identify those situations where a doctor or nurse has behaved in a way which demonstrates a criminally culpable state of mind. In NZ recently the law has failed to do this and has been used as a weapon against those who may be in no sense morally blameworthy. -/- In New Zealand recently the law has failed to do this and has been used as a weapon against those who may be in no sense morally blameworthy. In this respect, NZ has been out of step with other comparable jurisdictions and has demonstrably failed to distinguish between cases where death is caused accidentally (through the making of an ordinary human error) and cases where it is caused criminally (through recklessness or culpable negligence). This is a surprising situation in a jurisdiction which has prided itself on its willingness to adopt a reformist legal agenda. (shrink)

Current debates over inductive risk and the role of values in science have largely revolved around the question of the moral responsibilities of scientists: Do scientists have the duty to consider the potential non-epistemic consequences of theories they advocate and, if yes, what values should be taken into account in decision-making? The paper discusses two different – though potentially complementary – responses to this question: a) H. Douglas’s view that scientists should avoid causing reckless or negligent harm to others as (...) a result of the decisions they make and b) K. Elliott’s Multiple Goals Criterion. Drawing from the case of potential coronavirus transmission by sharing the Holy Communion that recently divided Greek society and medical experts, it shows the tensions emerging between autonomy and the moral responsibilities of scientists, when the boundaries of science are blurred and the epistemic goal of truth is inconsistent with alternative goals. It argues that the balance attempted between scientific principles and religious beliefs was unattainable and concludes that the need to distinguish between epistemic and non-epistemic values, which is traditionally related to the ideal of value free science, should be reconsidered and even prioritized among the responsibilities of scientists. (shrink)

This book contains programmatic essays that focus on broad-ranging proposals for re-envisioning a discipline of comparative philosophy of religions. It also contains a number of case studies focussing on the interpretation of particular religio-historical data from comparatively oriented philosophical perspectives.

Examines interrelated topics in Medieval and Renaissance Latin literature: the status of women as writers, the status of women as rhetorical figures, and the status of women in society from the fifth to the early seventeenth century.

Moral responsibility theorists and legal theorists both worry about what negligence is, and how it might be a ground of blameworthiness. In this paper I argue that negligence suitably understood, can be an appropriate grounds for mens rea in rape cases. I am interested in cases where someone continues with sex in the mistaken belief that the other person consents. Such a mistaken belief is often unreasonable: a wilfully blind agent, one who deliberately ignores evidence that there is no consent, (...) is clearly not exculpated by his ignorance. However, there may be circumstances in which a man’s mistaken belief in consent is reasonable in the circumstances, then he is not culpable. Thus it is important to be clear about what we mean by a reasonable mistake. Many critics (e.g. Duff, Baron and others) have argued that it is not possible to make a reasonable mistake about consent, that any such mistake must involve culpable carelessness. Consent is so important that we should always double check. Not to do so is reckless, and in that case there is clearly culpability. In this paper I argue that it is possible to make a mistake that is reasonable, at least in one sense. Someone in the grip of sexist ideology might not understand how important consent is, and not through carelessness, but through sexist ideology that they have non-culpably and non-voluntarily absorbed. In that case it is not obvious that the man is culpable. I go on to argue that so far as the law is concerned, there is good reason to hold that even those who have ‘reasonable’ beliefs culpable. Having a reasonable belief in consent may be, but is not always exculpatory. We usually think a reasonable mistake does not count as negligence because a reasonable mistake is not failing to know something that you should have known. I argue that we should understand negligence—not knowing something you should have known—in a moralized sense, so that people who are ignorant through being ideologically blinded can be held to have the mens rea requisite for rape conviction. -/- . (shrink)

Is normative uncertainty like factual uncertainty? Should it have the same effects on our actions? Some have thought not. Those who defend an asymmetry between normative and factual uncertainty typically do so as part of the claim that our moral beliefs in general are irrelevant to both the moral value and the moral worth of our actions. Here I use the consideration of Jackson cases to challenge this view, arguing that we can explain away the apparent asymmetries between normative and (...) factual uncertainty by considering the particular features of the cases in greater detail. Such consideration shows that, in fact, normative and factual uncertainty are equally relevant to moral assessment. (shrink)

The 2016, the UK Supreme Court case of Jogee confirmed a long-standing convention in English law. In cases where D is assisting or encouraging P to commit an offence, D will only be liable as an accessory for that offence if she intentionally assists or encourages P and if she knows the essential features of the offence. In this paper, I discuss and develop some of the arguments from Sanford Kadish’s 1996 article “Reckless Complicity.” I argue that a special sub-category (...) of complicity, namely ‘enabling’, can be done recklessly, and is sufficiently blameworthy to ground criminal liability. (shrink)

In Ignorance of Law, Douglas Husak’s main thesis is that ignorance of the law typically provides an excuse for breaking the law, but in the case of recklessness he claims that the excuse it provides is only a partial one, and in the case of willful ignorance he claims that it provides no excuse at all. In this paper I argue that, given the general principle to which Husak appeals in order to support his main thesis, he should revise (...) his position on the exculpatory significance of both recklessness and willful ignorance. (shrink)

Existing and proposed provisions of the Model Penal Code refer to believing something “recklessly.” In this chapter, we examine the notion of reckless beliefs and determine what that notion cannot be and what it might be.

Criminal attempts require intent to commit an offence. But what constitutes such intent? Some cases are fairly straightforward. I act with intent to convert stolen goods if I intend that the goods I purchase be stolen. A man acts with intent to commit rape if he intends that the sexual intercourse be non-consensual. Other cases leave room for reasonable disagreement. Did a man intend to convert criminal property when he purchased goods which he suspected might be stolen? And did a (...) man intend to rape a woman when he tried to have intercourse with her and was reckless about consent? Does recklessness as to the circumstance elements of an offence suffice for intent? Building on the view that attempts are failed attacks (as opposed to acts of endangerment), I argue that recklessness about circumstances is not enough for intent since such recklessness amounts to an act of endangerment. This is not to suggest that a man does nothing wrong in trying to have sex with a woman while being reckless about consent; it is to argue that he should be convicted of an endangerment offence, rather than an attempt. If we take seriously the idea that attempts are failed attacks, and that attacks and endangerments constitute different types of moral wrong, we have good reason to preserve this distinction in our offence labels by insisting that the fault element for attempts should require at least knowledge or belief as to the relevant circumstances of an offence. (shrink)

Recklessness involves unreasonable/unjustified risk-taking. The argument here is that recklessness in the criminal law is best understood as nevertheless containing an element of reasonableness. To be reckless, on this view, the defendant must reasonably believe that she is exposing others to a risk of harm. If the defendant’s belief about the risk being imposed by her conduct is unreasonable, she should not be considered reckless. This point is most important in relation to offences of endangerment where recklessness (...) sets the outer limits of criminal liability. (shrink)

Since the 1970’s there has been a major increase in adventure sports participation but it seems that engagement in such sports comes with a stigma: adventure sports participants are often regarded as reckless ‘daredevils’. We approach the questions about people’s perception of risk and recklessness in adventure sports by combining empirical research with philosophical analysis. First, we provide empirical evidence that suggests that laypeople tend to assess the danger of adventure sports as greater than more mundane sports and judge (...) adventure sports participants as more reckless than participants in non-adventure sports. We contextualise these findings within existing psychological risk perception paradigms and outline new philosophical explanations of the identified pattern in laypeople’s risk perception. (shrink)

After an initial period of popularity in the 1960s and 1970s, André Malraux’s works on the theory of art, "The Voices of Silence" and "The Metamorphosis of the Gods", lapsed into relative obscurity. A major factor in this fall from grace was the frosty reception given to these works by a number of leading art historians, including E.H. Gombrich, who accused Malraux of an irresponsible approach to art history and of "reckless inaccuracies". This essay examines a representative sample of the (...) art historians' arguments and contends that they reveal serious misreadings of Malraux’s texts and a recurring tendency to confuse matters of interpretation with matters of fact. The article suggests that the charge of irresponsibility might well be levelled at the critics themselves, and that the myth of Malraux as guilty of ‘reckless inaccuracies’ needs to be debunked. (shrink)

Risk is at the core of criminal recklessness, but its exact constitution comes into focus only in unusual cases. In rethinking criminal law, Larry Alexander and Kimberley Kessler Ferzan say that risk in criminal recklessness ought to be constituted by the subjective belief of the person whose action is being evaluated: the gravity of the harm risked and its probability of resulting is what the person believed it to be, not what it actually was. This means that (...) class='Hi'>recklessness can be found in the absence of any “real” risk. This article critiques the authors’ argument for subjective risk in recklessness. They exaggerate the arbitrariness in identifying risk non-subjectively and do not sufficiently acknowledge risk as an inter-subjectively constituted practical concept. Fixing risk subjectively, as advocated by the authors, nonetheless may appear useful for inchoate criminal liability. The article considers and rejects this idea of occasionally subjectivising risk in recklessness. (shrink)

Risk is at the core of criminal recklessness, but its exact constitution comes into focus only in unusual cases. In rethinking criminal law, Larry Alexander and Kimberley Kessler Ferzan say that risk in criminal recklessness ought to be constituted by the subjective belief of the person whose action is being evaluated: the gravity of the harm risked and its probability of resulting is what the person believed it to be, not what it actually was. This means that (...) class='Hi'>recklessness can be found in the absence of any “real” risk. This article critiques the authors’ argument for subjective risk in recklessness. They exaggerate the arbitrariness in identifying risk non-subjectively and do not sufficiently acknowledge risk as an inter-subjectively constituted practical concept. Fixing risk subjectively, as advocated by the authors, nonetheless may appear useful for inchoate criminal liability. The article considers and rejects this idea of occasionally subjectivising risk in recklessness. (shrink)

Sometimes persons are legally responsible for reckless behavior that causes criminal harm. This is the case under the newly drafted provisions of the U.S. Model Penal Code (MPC), which holds persons responsible for “simple” rape (nonconsensual sex without proof of force or threats of force), where the offender recklessly disregards the risk that the victim does not consent. In this paper we offer an explanation and corrective critique of the handling of reckless rape cases, with a focus on the U.S. (...) criminal justice system, although our analysis is applicable more broadly. We argue that a wider group of reckless rapists are criminally responsible than is captured by the MPC and claim criminal punishment of reckless rapists must be justified by looking to both moral desert and instrumental aims achieved by criminal punishment. Part of the law’s job is to communicate and enforce society’s expectations regarding unacceptable behavior. In punishing reckless rape, we are not just giving people what they deserve, but also reinforcing and shaping norms regarding sexual behavior. (shrink)

Are our rights—to our bodily integrity, to our possessions, to the goods and services promised us, and so on—matters of fact, or are our rights functions of others’ beliefs about how their acts will affect our rights? The conventional view states that subjective oughts—based on what we believe—determine culpability, whereas objective oughts—based on the facts—determine permissibility. After all, the idea that our beliefs about how our acts would affect others’ rights might affect the contours of those rights themselves appears deeply (...) paradoxical. For how can others’ rights be based on our beliefs when those beliefs have as their objects not themselves but others’ rights? Nonetheless, paradoxical as that position may appear, a strong case can be mounted in its defense, not by focusing on the rights themselves, but by focusing on the acts that imperil those rights. It is the burden of this essay to make a case for the belief-relativity rather than the fact-relativity of rights. (shrink)

This paper introduces the Special Issue on Recklessness and Negligence. It highlights the main issues and controversies that surround these concepts and then briefly introduces each of the papers that comprise the Special Issue.