Stubborn cases: a precautionist account of negligence

Abstract

Negligence poses a puzzle for theories of moral responsibility: how can agents be responsible for conduct whose morally relevant features were not before their minds at the moment of action? When a devoted father forgets his child in a hot car, blame seems warranted; yet the connection between agent and outcome that ordinarily grounds it appears absent. Three strategies resist a sceptical conclusion. Capacitarianism holds that an agent who had the capacity and opportunity to advert to the risk is an eligible target of blame, but tells us only that the agent may be blamed, not why the failure is the agent’s own. Where capacitarianism leaves the ground of blame open, tracing locates it in culpable prior conduct; attributionism locates it in deficient evaluative judgments that the lapse reflects. A residual class remains, however: cases where neither culpable prior conduct nor deficient evaluative commitments can be identified. To address these stubborn cases, the paper develops precautionism: the agent is blameworthy for violating second-order epistemic duties to maintain her cognitive architecture (habits, routines, safeguards) through which existing knowledge can reliably reach deliberation. These duties govern the availability of knowledge the agent already possesses, rather than its acquisition. The resulting account is pluralist. Tracing, attributionism, and precautionism each address a different dimension of the gap between agent and negligent act: the volitional, the evaluative, and the epistemic.