The counterfactual mental state of negligent criminal activity invites skepticism from those who see mental states as essential to responsibility. Here, I offer a revision of the mental state of criminal negligence, one where the mental state at issue is actual and not merely counterfactual. This revision dissolves the worry raised by the skeptic and helps to explain negligence’s comparatively reduced culpability.

Criminalizing unintentional mistakes in medicine as the offence of gross negligence manslaughter has always been a contentious issue. The threshold of prosecution is not well-defined, and even less clear when faced with a situation in which an intern doctor is held liable. This commentary attempts to review the current legal position of holding an intern doctor liable for gross negligence medical manslaughter.

This is a draft of my chapter on Negligence for the forthcoming Oxford Handbook in Moral Psychology. It discusses philosophical, psychological, and legal approaches to the attribution of culpability in cases of negligent wrongdoing.

Negligence and omission are closely related: commonly, in cases of negligent action, the agent has failed to turn her attention to some pertinent fact. But that omission is itself typically unwitting. A sufficient condition for blameworthiness for an unwitting omission is offered, as is an account of blameworthiness for negligent action. It is argued that one can be blameworthy for wrongdoing done from ignorance even if one is not blameworthy for that ignorance.

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)

Negligence is both an important concept and an ambiguous one. Here I concentrate upon the sense of creating an unjustifiable, low-probability risk of future harm. This essay attempts to dispel theprevalent view that only a maximizing, utilitarian approach can render intelligible certain features of negligence analysis—its focus on the marginal advantages and disadvantages of the actor's taking a specific precaution, its consideration and balancing of the short-term effects of different actions, and its sensitivity to a multiplicity of factors. (...) Perhaps certain absolutist deontological perspectives are inconsistent with these features; but other deontological perspectives can easily accommodate them. Careful examination of the concept of negligence helps resolve an important debate about the nature of tort law, supporting the view that fault, rather than corrective justice, is the better interpretation and justification of Anglo-American tort doctrine. (shrink)

Why are we accountable for negligent wrongdoing? This paper develops a contractualist account of accountability for negligent wrongdoing rooted in maintaining self-trust. Displays of negligence threaten the self-trust needed to exercise planning agency. People thus have reason to take responsibility for being negligent to defeat higher-order evidence about the unreliability of one’s planning agency. Individuals are rationally required to take responsibility for negligence in virtue of the demands of planning agency. One novel implication of this view is that (...) taking responsibility for negligence grounds our holding others responsible for negligence. (shrink)

It is widely agreed that the top three Model Penal Code culpability levels suffice for criminal liability, but the fourth is controversial. And it isn’t just the particular MPC wording; that negligence should be on the list at all is controversial. My question is: What makes negligence so different? What is it about negligence that gives rise to the view that it should not suffice for criminal liability? In addressing it, I draw attention to how we conduct (...) the debate, and how our framing of the issues is shaping it. My hope is to prompt thought and discussion on just what we want the element of mens rea to provide, and to draw attention to background assumptions that shape our views of what it should take for negligence to count as a species of mens rea. (shrink)

Dr Bawa-Garba, a senior paediatric trainee who had been involved in the care of a child who died shortly after admission to hospital, was convicted of gross negligence manslaughter and subsequently erased from the medical register. We argue that criminalisation of doctors in this way is fraught with ethical tensions at levels of individual blameworthiness, systemic failures, professionalism, patient safety and at the interface of the regulator and doctor. The current response to alleged manslaughter during clinical care is not (...) fit for purpose because of its narrow focus on criminalisation and punishment of individual doctors. The justice system fails to take into account systemic issues in a sufficiently proper and informed way particularly in respect of human factors involved in decision-making. It is easier to convict individual doctors for gross negligence manslaughter than it is to effect legal accountability upon organisations. If educational reflections are used to apportion blame, then this could impact detrimentally on honesty and the duty of candour, with negative implications for patient safety. Regulatory processes should not be deployed without consideration of context. There is an urgent need for a fresh and open evaluation of professional and societal expectations from the regulator that should include positive action as well as those that are proportionately punitive. Justice and patient safety would be served better by more sophisticated contextualisation through an approach that balances accountability in healthcare with failures that can occur within complex systems, and by working to a radical shift towards a just culture. (shrink)

My aim in this paper is to defend negligence as a legitimate basis for moral and criminal culpability. In so doing, I also hope to demonstrate how philosophical and jurisprudential perspectives on responsibility can mutually inform each other. While much of the paper focuses on criminal negligence, my aim is to show how attention to certain doctrines and concepts in criminal law can shed light on our understanding of moral culpability including culpability for negligence. It is often (...) taken to be a fundamental principle of criminal law that an act cannot be guilty unless it is accompanied by a culpable state of mind or mens rea. This has led to scepticism regarding negligence as a legitimate basis for desert-based criminal sanction because it is not clear that negligence picks out any mental state at all, much less a culpable one. In this paper I articulate and defend a unified account of moral and criminal culpability that rejects the standard view of mens rea that underlies negligence-skepticism. Specifically, I hold that the mens rea element of a crime does not function to inculpate, as is standardly held, but to partly determine the description under which an action counts as wrongful. While I agree that we should be especially cautious about criminalizing negligence, the relevant question, on my view, is not whether a given mens is sufficiently culpable but whether the mens-cum-actus is sufficiently wrongful to warrant the attention of criminal justice. (shrink)

When a plaintiff has been negligent in the sense that he should have acted otherwise, should the same criterion of negligence apply that would apply if he were creating risks only to others? Indeed, are there any persuasive reasons not to apply a radically different criterion of negligence? Moreover, should the plaintiff's recovery be diminished, outside the category of assumption of risk, even when the plaintiff has not been negligent? What are the justifiable criteria and limits of such (...) plaintiff strict responsibility? There are reasons for caution before concluding that a victim's self-regarding conduct is negligent. A victim often deserves special sympathy in the light of his special predicament, choosing between two evils, the immediate costs of which he must personally bear. Indeed, it might appear that the law is unfair or unduly onerous when it places significant demands on a victim with respect to his own self-regarding behavior. On the other hand, we should not forget that the victim's “duty” to use reasonable care is merely conditional: it applies only in case the victim seeks a remedy against the tortfeasor. (shrink)

Ordinary morality judges agents blameworthy for negligently produced harms. In this paper I offer two main reasons for thinking that explaining just how negligent agents are responsible for the harms they produce is more problematic than one might think. First, I show that negligent conduct is characterized by the lack of conscious control over the harm, which conflicts with the ordinary view that responsibility for something requires at least some conscious control over it. Second, I argue that negligence is (...) relevantly indistinguishable from inadvertence, which is ordinarily thought to excuse agents from responsibility. I argue that the parallels between negligence and inadvertence suggest that negligent agents are not responsible for the harms they produce, while proposing an alternative model for distinguishing between negligence and inadvertence that does justice to our intuitions. (shrink)

This collection of essays represents a ground-breaking collaboration between moral philosophers, action theorists, lawyers and legal theorists to set a fresh research agenda on agency and responsibility in negligence. The complex phenomenon of responsibility in negligence is analysed from multi- and interdisciplinary perspectives, shedding light on key ethical and legal issues related to agency and negligence to impact substantive law and policy-making in different jurisdictions. The volume introduces new debates and questions old assumptions, inviting the reader to (...) rethink substantive law and practical ethical reflection. (shrink)

This collection of essays represents a ground-breaking collaboration between moral philosophers, action theorists, lawyers and legal theorists to set a fresh research agenda on agency and responsibility in negligence. The complex phenomenon of responsibility in negligence is analysed from multi- and interdisciplinary perspectives, shedding light on key ethical and legal issues related to agency and negligence to impact substantive law and policy-making in different jurisdictions. The volume introduces new debates and questions old assumptions, inviting the reader to (...) rethink substantive law and practical ethical reflection. (shrink)

In this paper, I suggest that the wrongness of many—though not at all—cases of microaggressions can be captured as cases of negligence. A case of negligence holds when, regardless of an actor’s intentions, he or she wrongs another in a manner that is both reasonably foreseeable and reasonably avoidable. Thinking of microaggressions as negligence answers some objections of skeptics who focus on the possibility that the alleged microaggressor “meant no offense”. It does so while retaining language explaining (...) why a wrong was committed and suggesting what sort of corrective behavior can reasonably be demanded to avoid these wrongs in the future. I also argue that a negligence framework does a better job of phenomenologically explaining most microaggressions—both why they occur and why they are perceived as the sort of conduct that subjects the microaggressor to agent-level moral criticism. Indeed, I believe that negligence-style logic permeates many accounts that already exist regarding microaggressions, albeit without fully being recognized. Finally, in cases where it applies, the negligence framework has an advantage over alternate accounts in that it provides for consideration of both the moral culpability of the perpetrator as well as the tangible impact of microaggressions on the victim. (shrink)

The purpose of this paper is to discuss and to relate to each other two topics: the admissibility of ignorance and mistake of fact as defences against negligence in crime; and the inadmissibility of ignorance and mistake of law as defences against criminal charges. I am in not concerned at all with torts negligence, only with criminal offences which can be committed negligently, where negligence suffices for liability, as in the law of homicide. This produces an untidy (...) classification of elements, one or other of which is needed to provide the required mens rea : intention, knowledge, recklessness and negligence. It is untidy, because the last does not belong on the same list as the other three, each of which can appropriately be called a state of mind in what we might say to be a positive sense, for each of them includes some degree of awareness of and/or attitude to relevant facts. If negligence is to be called a state of mind, it is so in a very stretched and negative way: to be told that a person was not attending to, thinking of or noticing something that he should have been is to be given some information, of a negative sort, about his state of mind, but it tells us very little, for it eliminates only one of an unlimited range of states of mind. His not attending, noticing, etc., is equally compatible with his daydreaming and with his concentrating hard on something else. If negligence requires inadvertence, as is commonly maintained, then there was a state of mind which the agent should have been in but was not; if, as I would argue, it does not require inadvertence, then there was a state of mind which the agent should have been in, and maybe he was not in it, maybe he was in it. would not require it; the definition runs, ‘a person is negligent if he fails to exercise such care, skill or foresight as a reasonable man in his situation would exercise’. However, that is only a proposal; at present advertent negligence is rare in criminal law, although common in torts.) On this view, the questions are whether his performance fell below scratch, what are to be the excusing conditions for such a performance, and if the answer to is yes, whether his performance was covered by the excusing conditions. (shrink)

This article considers the issue of expanded access to innovative treatments in the context of recent legislative initiatives in the United Kingdom and the United States. In the United Kingdom, the supporters of legislative change argued that the common law principles governing medical negligence are a barrier to innovation. In an attempt to remove this perceived impediment, two bills proposed that innovating doctors sued for negligence should be able to rely in their defence on the fact that their (...) decision to innovate was “responsible.” A decision to innovate would be regarded as responsible if it followed a specified process. Although these changes to the law of medical negligence were not passed, this article argues that the idea of a process-based approach was sound. In the United States, a number of states have passed “Right to Try” laws that permit doctors to prescribe and companies to provide investigational products without the need for FDA approval. These laws do not purport to and nor are they able to alter the obligations of individuals and companies under federal law. They are consequently unlikely to achieve their stated aim of expanding access to investigational products. This article argues that they nevertheless have a cogent rationale in so far as they highlight the need for rights-based reform to federal regulations governing access. (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)

1. ‘Agency, Negligence and Responsibility’ is a collection of essays edited by Veronica Rodriguez-Blanco and George Pavlakos on the fascinating topic of negligence. The collection contains twelve p...

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)

Recent interest in the epistemic condition on moral responsibility has raised a new challenge to the view that persons are directly responsible for negligent conduct. According to an influential ar...

The use of machine learning algorithms has become ubiquitous in hiring decisions. Recent studies have shown that many of these algorithms generate unlawful discriminatory effects in every step of the process. The training phase of the machine learning models used in these decisions has been identified as the main source of bias. For a long time, discrimination cases have been analyzed under the banner of disparate treatment and disparate impact, but these concepts have been shown to be ineffective in the (...) context of AI. This paper examines the possibility of studying algorithmic discrimination from the perspective of negligence law. Negligent selection and validation of datasets and classifiers is a salient cause of improper training in machine learning. It is a breach of an employer’s duty to protect others, a failure of its exercise of due care in the manner of choosing employees. Adopting negligence to algorithmic discrimination requires a reformulation of what is foreseeable and reasonable within the context of black box algorithms, and a shift in the burden of proof to the employer, who must present evidence of its efforts to avoid bias. (shrink)

The tendency for judges to respond positively to negligence claims advanced by those who have rendered assistance to accident victims has recently come into collision with the judicial impulse to limit the range of circumstances in which recovery can be made for psychiatric injury. The upshot of this collision is identified as a reduction in the range of circumstances in which those rendering assistance to accident victims can recover for psychiatric harm. This development is criticized on the ground that (...) it has compromised pursuit of what is identified as one of the law's subsidiary purposes: namely, the promotion (in a narrow range of circumstances) of strongly altruistic activity. The ground for making this criticism is found in a body of doctrine that supports the claim that the law is informed by a commitment to the altruism principle. This principle is contrasted with the narrower rescue principle and is identified as supporting not only the claims of rescuers but also those of persons who render assistance in the aftermath of particularly harrowing accidents. While the House of Lords» decision is identified as exhibiting insensitivity to the altruism principle, it is none the less concluded that the position staked out by their Lordships is defensible. Support for this conclusion is found in the ideal of distributive justice, which provided one of the grounds for the House's decision in White. Further, the relationship between the ideal of corrective justice and the ideal of distributive justice is identified as a source of significant tension in the law of negligence. (shrink)

The purpose of this paper is to discuss and to relate to each other two topics: the admissibility of ignorance and mistake of fact as defences against negligence in crime; and the inadmissibility of ignorance and mistake of law as defences against criminal charges. I am in not concerned at all with torts negligence, only with criminal offences which can be committed negligently, where negligence suffices for liability, as in the law of homicide. This produces an untidy (...) classification of elements, one or other of which is needed to provide the required mens rea : intention, knowledge, recklessness and negligence. It is untidy, because the last does not belong on the same list as the other three, each of which can appropriately be called a state of mind in what we might say to be a positive sense, for each of them includes some degree of awareness of and/or attitude to relevant facts. If negligence is to be called a state of mind, it is so in a very stretched and negative way: to be told that a person was not attending to, thinking of or noticing something that he should have been is to be given some information, of a negative sort, about his state of mind, but it tells us very little, for it eliminates only one of an unlimited range of states of mind. His not attending, noticing, etc., is equally compatible with his daydreaming and with his concentrating hard on something else. If negligence requires inadvertence, as is commonly maintained, then there was a state of mind which the agent should have been in but was not; if, as I would argue, it does not require inadvertence, then there was a state of mind which the agent should have been in, and maybe he was not in it, maybe he was in it. would not require it; the definition runs, ‘a person is negligent if he fails to exercise such care, skill or foresight as a reasonable man in his situation would exercise’. However, that is only a proposal; at present advertent negligence is rare in criminal law, although common in torts.) On this view, the questions are whether his performance fell below scratch, what are to be the excusing conditions for such a performance, and if the answer to is yes, whether his performance was covered by the excusing conditions. (shrink)

In this paper we attempt to reply to the thoughtful comments made on our book, Responsible Brains, by a stellar group of scholars. Our reply focuses on two topics discussed in the commenting papers: first, the issue of responsibility for negligent behavior; and second, the broad claim that facts about brain function are normatively inert. In response to worries that our theory lacks normative implications, we will concentrate on an area where our theory has clear relevance to law and legal (...) policy: juvenile responsibility. (shrink)

What is the proper role of cost-benefit analysis in understanding the tort concept of negligence or reasonable care? A straightforward question, you might think. But it is a question that manages to elicit groans of exasperation from those on both sides of the controversy. For most utilitarians and adherents to law and economics, the answer is obvious: to say that people should not be negligent is to say that they should minimize the sum of the costs of accidents and (...) the costs of preventing accidents. Under the economic formulation of the famous Learned Hand test, they should take a precaution if but only if the marginal costs (or burden, B) of that precaution are less than its marginal benefits (in the form of reduced risks of injury, measured by multiplying the probability (P) of the injury times the magnitude (L) of the injury if it occurs). If B>PxL, it would be absurd to require the greater expenditure, B. For many advocates of a fairness, corrective justice, rights-based, or contractualist perspective, the opposite answer is equally obvious. Permitting a person to impose risks of harm on others merely because he would thereby obtain a benefit (or would otherwise incur a burden) greater than the discounted value of the harm he might inflict, amounts to authorizing him to dump the costs of his risky activities on innocent victims. To permit this type of sacrifice of individuals on the altar of aggregate social welfare is morally abhorrent. Both sets of criticism have important elements of truth. Neither an unqualified cost-benefit analysis nor an unqualified rights-based rejection of tradeoffs is defensible - either as a description of tort doctrine and practice or as a normative prescription. However, a qualified (sensitive) consequentialist approach can accommodate legitimate criticisms of cost-benefit analysis: the consequentialist can launder preferences, and can consider the distribution of risk both in the social welfare calculus and in determining whether to compensate. At the same time, a qualified (tough-minded) deontological approach can accommodate the legitimate need to recognize tradeoffs: the deontologist can permit intrapersonal but not interpersonal aggregation of risks and benefits, can apply the concept of threshold deontology to risky activity, and can consider individual rather than population risk. I conclude that the formulation of the Learned Hand test found in the Restatement Third of Torts is broad enough to encompass each of these qualified approaches. (shrink)

Faced with the choice between creating a risk of harm and taking a precaution against that risk, should I take the precaution? Does the proper analysis of this trade-off require a maximizing, utilitarian approach? If not, how does one properly analyze the trade-off?These questions are important, for we often are uncertain about the effects of our actions. Accordingly, we often must consider whether our actions create an unreasonable risk of injury — that is, whether our actions are negligent.

The Supreme Court of California held, in Delaney v. Baker, 82 Cal. Rptr. 2d 610, that the heightened remedies available under the Elder Abuse Act, Cal. Welf. & Inst. Code, §§ 15657,15657.2, apply to health care providers who engage in reckless neglect of an elder adult. The court interpreted two sections of the Act: section 15657, which provides for enhanced remedies for reckless neglect; and section 15657.2, which limits recovery for actions based on “professional negligence.” The court held that (...) reckless neglect is distinct from professional negligence and therefore the restrictions on remedies against health care providers for professional negligence are inapplicable.Kay Delaney sued Meadowood, a skilled nursing facility, after a resident, her mother, died. Evidence at trial indicated that Rose Wallien, the decedent, was left lying in her own urine and feces for extended periods of time and had stage I11 and IV pressure sores on her ankles, feet, and buttocks at the time of her death. (shrink)

In the context of clinical and non-clinical biomedical practices, negligence is usually understood as a lapse of a specific professional duty by a healthcare worker or by a medical facility. This paper tries to delineate systemic negligence as another kind of negligence in the context of health systems, particularly in developing countries, that needs to be recognized and addressed. Systemic negligence is not just a mere collection of stray incidences of medical errors and system failures in (...) a health system, but is proposed in this paper as a more pervasive kind of neglect. Several non-medical factors, such as lack of social and political will, also contribute to it and hence is more difficult to address in a health system. This paper argues that recognizing systemic negligence and including it research agenda have special moral importance for researchers in developing world bioethics, public health ethics and for health activists in the developing world. For, it can be a potent health system barrier, and can seriously impair efforts to ensure patient safety, particularly in the weaker health systems. As it erodes accountability in a health system, addressing it is also important for the twin goals of ensuring patient safety and improving health system performance. Above all, it needs to be addressed because the tolerance of its persistence in a health system seems to undervalue health as a social good. (shrink)

Didymus, in modern works of reference, gets rather a good press. It is conceded on all sides that he was not an original researcher and that his remarks often betray a certain want of common sense. But the general estimate is favourable: more recent works do not substantially dissent from Sandys’ verdict : ‘The age of creative and original scholars was past and the best service that remained to be rendered was the careful preservation of the varied stores of ancient (...) learning; and this service was faithfully and industriously rendered by Didymus.’ His industry is, of course, beyond question. But it is perhaps surprising that his reputation for accuracy did not drop sharply with the publication of the Berlin papyrus of the,the defects of which cast grave doubt on his reliability and general competence. (shrink)

Philosophers of criminal punishment disagree about whether infliction of punishment for negligence can be morally justified. One contending view holds that it cannot be because punishment requires culpability and culpability requires, at a minimum, advertence to the facts that make one’s conduct wrongful. Larry Alexander and Kim Ferzan are prominent champions of this position. This essay challenges that view and their arguments for it. Invoking a conceptual distinction between an agent’s being _blameworthy_ for an act and their _deserving punishment_ (...) (or suffering) for that act, it explains that an agent can be blameworthy for negligent conduct, and thus liable to reasonable blaming practices, even if negligence is not culpable, hence not sufficient to ground negative desert. Turning from conceptual inquiry to substantive questions of political morality, it then argues that a faulty actor’s lack of culpability does not render them immune from just punishment, but does significantly limit the severity of punishment that may be inflicted, for punishment should not be disproportionately severe relative to an agent’s culpability in relation to wrongdoing. (shrink)

Wrongful birth actions aim to compensate litigants who are negligently deprived by health professionals of their right to reproductive choice. Access to safe and legal abortion is integral to the action and wrongful birth claims in the United Kingdom have been facilitated by the Abortion Act 1967 (as amended). The recent Australian case CES v Superclinics (1995) 38 NSWLR 47 shows how judicial confusion about the legality of abortion can result in judges condoning medical negligence. The Superclinics case also (...) suggests that doctors are not required to provide pregnant women with the same standard of care as other patients. These developments show that law can become incoherent and health professionals can act negligently with impunity when reproductive choice does not have a secure legal foundation. (shrink)

This paper is an assessment of the conclusion that negligent agents are not morally responsible for the damages they cause, reached by Matt King in “The Problem with Negligence”. King’s argument involves two difficult issues that are often disregarded in discussions about moral responsibility. One is that it is not clear why we usually attribute responsibility in cases of negligence but not in cases of inadvertence even though both phenomena are characterized by the absence of conscious mental elements. (...) The other is that any explanation of the responsibility attributed in cases of negligence and in paradigmatic cases should shed light on the features that both cases share. I will review these issues involved in King’s argument in order to avoid his conclusion and to clarify some important matters of our attribution of responsibility in cases of negligence and in cases of inadvertence. (shrink)

Didymus, in modern works of reference, gets rather a good press. It is conceded on all sides that he was not an original researcher and that his remarks often betray a certain want of common sense. But the general estimate is favourable: more recent works do not substantially dissent from Sandys’ verdict : ‘The age of creative and original scholars was past and the best service that remained to be rendered was the careful preservation of the varied stores of ancient (...) learning; and this service was faithfully and industriously rendered by Didymus.’ His industry is, of course, beyond question. But it is perhaps surprising that his reputation for accuracy did not drop sharply with the publication of the Berlin papyrus of the,the defects of which cast grave doubt on his reliability and general competence. (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)

This book review essay discusses Birth Rights and Wrongs: How Medicine and Technology Are Remaking Reproduction and the Law (2019), by Dov Fox.

First Published in 1988. Routledge is an imprint of Taylor & Francis, an informa company.

Negligence reminds us that we often do and cause things unawares, occasionally with grave results. Given the lack of foresight and intention, some authors argue that people should not be judged culpable for negligence. This paper offers a contrasting view. It argues that gaining control is itself a fundamental responsibility, with both collective and individual elements. The paper underlines both sides, focussing on how they relate as we ascribe responsibility or culpability. Following the introduction, Section 2 argues that (...) conscious awareness is neither necessary nor sufficient for control. Control is not a property of deliberate choice, so much as a practical achievement. Section 3 stresses the collective aspects of non-negligence: creating knowledge about risks, structuring environments to guard against them, and developing standards of care. Failings in the collective task, rather than lack of individual control, mean it can often be unfair to pin culpability on a single individual. Section 4 suggests that a basic duty of a responsible person is to acknowledge the ways in which we may do more or less than we mean to, often in ways that create risks. It then sketches an approach to culpability as part of a collective exercise: as we take responsibility for standards of care, and for our own and others’ agency. (shrink)

Even though it offers a compelling account of the responsibility-component in the negligence standard—arguably the Holy Grail of negligence theory—Professor John Gardner is mistaken in conceptualizing the duty of care in negligence as a duty to try to avert harm. My goal here is to explain why and to point to an alternative account of the responsibility component in negligence. The flaws in conceiving of the duty of care as a duty to try are: failing to (...) comport with the legal doctrine of negligence and failing as a revisionary account for the law; overly burdening autonomy and restricting the liberty of thought; adversely affecting the prevention of negligent harm—the essence of the negligence standard—; and, raising severe probative difficulties. Moreover, the duty of care also does not give rise to what I call a de facto duty to try. The duty of care is better construed to require only certain conduct and not trying. Returning to the primary appeal and motivation for exploring the validity of equating the duty of care with a duty to try—searching for the responsibility-component in the negligence standard—I argue that the responsibility-component in negligence does not take the form of an obligation to try but rather has a conditional form, manifested in the conditions of applicability of the negligence standard. In other words, the negligence standard comprises a conduct-based as opposed to a combined action-/intent-based duty (such as a duty to try) as its duty of care, a duty that only applies to actors who possess the capacity to intentionally or knowingly comply with it, or, put differently, possess the capacity to try. (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)

'The law imposes the duty of care: but the standard of care is a matter of medical judgment'. So says Lord Scarman, outlining the hitherto accepted 'Bolam' standard, in his recent speech in the House of Lords decision of Sidaway v Bethlem Royal Hospital, reflecting earlier judicial dicta suggesting that it is for the medical profession rather than the courts to determine whether or not a medical practitioner has achieved the required standard of care (1). It is suggested here that (...) this concept is bad in principle, and that the weight of judicial authority is against it. (shrink)