Chapter

The Culpability of Negligence

Michael S. Moore and Heidi M. Hurd

in Crime, Punishment, and Responsibility

Published in print July 2011 | ISBN: 9780199592814
Published online September 2011 | e-ISBN: 9780191729034 | DOI: http://dx.doi.org/10.1093/acprof:oso/9780199592814.003.0018
The Culpability of Negligence

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Negligence is a problematic basis for being morally blamed and punished for having caused some harm, because in such cases there is no choice to cause, allow, or risk causing or allowing, such harm to occur. The leading two theories as to why inadvertent risk creation can be blameworthy despite the lack of culpable choice are that in such cases there is blame for: (1) an unexercised capacity to have adverted to the risk; or (2) a defect in character explaining why one did not advert to the risk. Neither of these is found to be an adequate basis for blaming inadvertent harm-causing. Three additional theories are briefly mentioned, according to which blame is assigned for: (3) culpably acquiring or failing to rid oneself of defects of character at some earlier time (the ‘tracing strategies’); (4) flawed use of those practical reasoning capacities that make one the person one is; or (5) chosen violation of per se rules about known-to-be-available precautions. Although each of these five theories can justify blame in some cases of negligence, none can justify blame in all cases intuitively thought to be cases of negligence, nor can any of these five theories show why inadvertent creation of an unreasonable risk, pure and simple, can be blameworthy.

Keywords: negligence; recklessness; advertence; capacity; inadvertence; character

Chapter.  20489 words. 

Subjects: Criminal Law

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