Looking and Seeing

New Conversations in Philosophy, Law, & Politics, Forthcoming

U of Michigan Public Law Research Paper No. 21-032

18 Pages Posted: 18 Oct 2021 Last revised: 6 Feb 2022

See all articles by Nicolas Cornell

Nicolas Cornell

University of Michigan Law School

Date Written: October 15, 2021

Abstract

Negligence resides at the boundaries of ethics and perception. Consider a typical case: a driver fails to see an object in the road and causes an accident. In both law and moral life, we routinely hold people accountable for such failures. It is tempting to cast such failures in terms of a breach of duty, as the law of negligence does. We speak of a “duty of care” or about what a person “should have known.” And yet such failures are often not straightforwardly a matter of choice.

This problem leads theorists in various unsatisfactory directions. Some theorists—negligence skeptics—express the radical view that it is a mistake to hold parties accountable for mere negligence given their epistemic position. Other theorists—negligence tracers—suggest that negligence can be traced back to some earlier culpable act or omission and that accountability can be appropriately assigned on this basis. Yet others—negligence reflectors—contend that negligence matters because of what it reveals about character or will. And yet others—negligence externalists—try to understand duties in a way that detaches them from choice, maintaining that a duty may be breached simply by having the effect of interfering with another. While each of these views has some appeal, each seems quite far from accounting in satisfactory ways for ordinary features of interpersonal life.

In this paper, I attempt to chart a different course. There can be, it seems, a mismatch between our duties to one another and the complaints which we may have to answer. I suggest that a procedural conception of moral complaints fits with an interpersonal morality that is often about perception. We may sometimes appropriately be called upon to answer for not seeing, even though our duty may simply be to look.

Keywords: negligence, torts, duty, accident liability

Suggested Citation

Cornell, Nicolas, Looking and Seeing (October 15, 2021). New Conversations in Philosophy, Law, & Politics, Forthcoming , U of Michigan Public Law Research Paper No. 21-032, Available at SSRN: https://ssrn.com/abstract=3943602

Nicolas Cornell (Contact Author)

University of Michigan Law School ( email )

625 South State Street
Ann Arbor, MI 48109-1215
United States

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