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Nobody’s Perfect: Moral Responsibility in Negligence

Published online by Cambridge University Press:  08 February 2019

Ori J. Herstein
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Abstract

Given the unwittingness of negligence, personal responsibility for negligent conduct is puzzling. After all, how is it that one is responsible for what one did not intend to do or was unaware that one was doing? How, therefore, is one’s agency involved with one’s negligence so as to ground one’s responsibility for it? Negligence is an unwitting failure in agency to meet a standard requiring conduct that falls within one’s competency. Accordingly, negligent conduct involves agency in that negligence is a manifestation of agency failure. Now, nobody’s perfect. Human agency is innately fallible, and a measure of agency failure is, therefore, unavoidable. The more one’s negligence manifests failure in one’s agency as an individual, the more one is responsible for it. In contrast, the more one’s negligence involves the shortcomings innate to all human agency the less responsible one becomes, because one’s agency as an individual is less and less involved in one’s failure. Determinative of the measure of individual and of human failings mixed into an instance of negligent phi-ing is the background quality of one’s agency at meeting one’s competency at phi-ing. That is, how able one is at delivering on what one is able to competently do. The more able, the less one’s occasional instances of negligence involve manifestations of failures of one’s agency as an individual—nobody’s perfect—and are more manifestations of one’s agency’s innate human fallibility, making one less and less responsible for one’s negligence.

Keywords

responsibilitymoral responsibilitynegligence
Type
Research Article
Information
Canadian Journal of Law & Jurisprudence , Volume 32 , Issue 1 , February 2019 , pp. 109 - 125
Copyright
Copyright © Canadian Journal of Law and Jurisprudence 2019 

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Footnotes

For written notes on previous drafts I am grateful to Antony Duff, David Enoch, Anna Finkelstern, Alon Harel, Miguel Herstein, Uri D Leibowitz, Ofer Malcai, Re’em Segev, Sandy Steel, and a reviewer for the CJLJ. I am also grateful for the helpful comments of the participants of the workshop on Negligence, Omissions and Responsibility: Reflecting on Philosophy of Action (University of Birmingham, 2016); UK Analytic Legal and Political Philosophy Conference (University of Manchester, 2016), and the research group on Legitimization of Modern Criminal Law Research Group (Hebrew University Centre for Advanced Studies, 2016).

References

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5. This third category often—although not necessarily—overlaps with one of the previous two.

6. For more on the puzzle of responsibility in negligence, see Herstein, Ori J, “Responsibility in Negligence: Why the Duty of Care is Not a Duty ‘To Try’” (2010) 23:2 Can JL & Jur 403;CrossRefGoogle Scholar Zimmerman, Michael J, “Moral Responsibility and Ignorance” (1997) 107:3 Ethics 410.CrossRefGoogle Scholar

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9. Legal negligence is typically not conditioned on competency. SeeVaughan v Menlove, [1837] 132 ER 490.

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11. A “layup” is considered the easiest shot in the game of basketball.

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18. I say reasonably “foreseeable” because one is obviously not responsible for all the outcomes of one’s conduct.

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