Negligence and Culpability: Reflections on Alexander and Ferzan

Criminal Law & Philosophy, Forthcoming

U of Penn Law School, Public Law Research Paper No. 22-17

18 Pages Posted: 25 Feb 2022 Last revised: 17 Mar 2023

See all articles by Mitchell N. Berman

Mitchell N. Berman

University of Pennsylvania Carey Law School

Date Written: July 3, 2021

Abstract

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.

Keywords: Law & philosophy, criminal justice, desert, punishment, severity, proportionality, fault, blame, culpability, criminal liability, responsibility-based constraint, wrongdoing, negligence, Ferzander

Suggested Citation

Berman, Mitchell N., Negligence and Culpability: Reflections on Alexander and Ferzan (July 3, 2021). Criminal Law & Philosophy, Forthcoming, U of Penn Law School, Public Law Research Paper No. 22-17, Available at SSRN: https://ssrn.com/abstract=4042906

Mitchell N. Berman (Contact Author)

University of Pennsylvania Carey Law School ( email )

3501 Sansom Street
Philadelphia, PA 19104
United States

Do you have a job opening that you would like to promote on SSRN?

Paper statistics

Downloads
78
Abstract Views
412
Rank
580,975
PlumX Metrics