Punishing the Awkward, the Stupid, the Weak, and the Selfish: The Culpability of Negligence

Criminal Law and Philosophy, 2011

64 Pages Posted: 31 May 2015

See all articles by Michael S. Moore

Michael S. Moore

University of Illinois College of Law

Heidi M. Hurd

University of Illinois College of Law

Date Written: April 17, 2011

Abstract

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

Keywords: Negligence, Recklessness, Advertence, Tracing, Inadvertence, Character, Capacity

Suggested Citation

Moore, Michael S. and Hurd, Heidi M., Punishing the Awkward, the Stupid, the Weak, and the Selfish: The Culpability of Negligence (April 17, 2011). Criminal Law and Philosophy, 2011. Available at SSRN: https://ssrn.com/abstract=2612117

Michael S. Moore

University of Illinois College of Law ( email )

504 E. Pennsylvania Avenue
Champaign, IL 61820
United States

Heidi M. Hurd (Contact Author)

University of Illinois College of Law ( email )

504 E. Pennsylvania Avenue
Champaign, IL 61820
United States
2172443446 (Phone)
2172441478 (Fax)

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