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George Sher, Who Knew?  Responsibility Without Awareness (Oxford University Press, 2009).

I’m no fan of punishing the negligent.  Here are a few reasons.  First, when a negligent actor fails to notice, remember, and the like, she lacks the requisite control over her failure.  Her consciousness is not directed to the risk, and thus, she can control her failures only indirectly by, say, taking a prior action to remember.  Second, the reasonable person strikes me as a worrisome construct.  How do you craft the idealized vantage point?  Third, because we are always forgetting, failing to notice, or underestimating risks all the time, these behaviors exhibit no moral defect.  These failures have myriad causes, including the lack of background beliefs, momentary or permanent incapacities, or lack of motivation.  And, we need arguments for why those prior failures are blameworthy.  Notably, although some criminal law theorists defend punishing the negligent, almost no one wants to punish every actor who falls below some objective standard.  Rather, proponents often seek to narrow negligence’s reach to only the “culpably indifferent” and not the stupid and the clumsy.  Yet, we are not given a fair basis for drawing this distinction.

Enter “Who Knew?”  George Sher’s book defends that we can be responsible without being aware.  Although I do not believe that this book ultimately undermines my concerns about punishing the negligent, it refines the state of the debate.  It is beautifully argued and carefully constructed.  Criminal law theorists truly ought to read this book.    

Sher’s foil is the “searchlight view.”  When an agent performs an action, she is conscious of some potential consequences – those consequences are the ones on which the beam of light shines.  However, the beam may also be too dim or too narrow to illuminate all the consequences and aspects of the act.  The searchlight view rejects that we can be responsible for those aspects and consequences of which we are not conscious (or at least passively aware).

Sher believes this view is popular but wrong.  He introduces a range of hypothetical cases to reveal our “ground-level judgments” are inconsistent with the searchlight view.  For example, he offers Alessandra, who picks her kids up from school but leaves her dog in the car, despite it being a hot day.  Although this is usually a quick errand, Alessandra faces problems with her children when she enters the school and forgets the dog.  After a few hours, the dog is unconscious in the car.  We also meet Scout, who while babysitting a colicky baby, decides to calm the baby with fruit juice and vodka.  Scout does not know alcohol is bad for babies.  The child is rushed to the hospital for alcohol poisoning.  Sher argues that we blame both Alessandra and Scout. 

Sher then returns to the “searchlight view.”  His central argument against the view is that it gains its appeal from looking to our practical reasoning, the first-person standpoint about what we ought to do.  Sher argues, however, that responsibility is not comprised of only this view, but rather, that we make responsibility attributions from the third-person standpoint and we look at actions retrospectively.  Alessandra may forget the dog is in the car, and thus this fact has no bearing on her practical reasoning.  But, we can (and she can) look back at what happened, and say that she is responsible for the harm to her dog. 

Sher also takes on the argument that it is unfair to hold people responsible when their lack of foresight deprived them of the requisite control.  Sher rejects this argument because agents are “constantly being influenced by normative demands of which they are not conscious at all.” (66).  These demands range from the rules of logic and physics to situations in which individuals do not even consider lying or act kindly reflexively.  In these cases, the demand’s reach extends beyond the conscious self to the agent’s cognitive and motivational systems.

Sher ultimately defends a capacious view of responsibility.  He claims that we are responsible when are actions fall below an objective standard and our unawareness is “caused by the interaction of some combination of [the actor’s] constitutive attitudes, dispositions, and traits.” (p. 88).  In reaching this conclusion, Sher moves through two problems that perplex criminal law theorists:  can an individual be responsible for what she “should have known?” and how and when should be individualize the reasonable person test?

Sher analyzes the “should have known” framework.  This is an extraordinarily careful chapter and should be required reading.  Sher searches through different formulations of the “should have known” standard to see how and whether we can tie this abstract objective standard to the agent in a way that makes it appropriate to say that failing to meet the standard brings the agent “into close enough relation to its wrongness…to justify us in …punishing [him]….” (76).  Ultimately, “should have known” is not enough; it substitutes one standard (the underlying wrongfulness of the behavior) for another standard (what the actor should have known) but fails to connect either demand to a fact about the agent.

Sher therefore looks to facts about the agent that will supplement the objective standard.  Sher argues that “a responsible agent is best identified not only with his subjectivity or rationality but also with their causes.” (121).  This is a very broad view of the “responsible self.”  This leads to the question of what counts as the agent (the root of responsibility) and what counts as the situation (the facts which must be taken into account).  Here, Sher, briefly taking on some feminist legal literature, defends a fully objective view.  The answer to the question is that all traits that belong to the agent and make her who she is are not aspects of the situation that we ought to individualize.  However, to curb concerns that, say, the blind cannot see and the paranoid cannot act rationally, Sher introduces a capacity requirement.   The epistemic requirement of what one should be aware of is actually an “ought” from morality.   Hence, when an agent lacks the capacity to comply, morality cannot mandate otherwise.  An agent only “should have known” if he “could have known.”

At the end of the day, I’m still worried about punishing negligent actors.  First, I am not quite sure how we are to parse the relationship between responsibility and culpability and blameworthiness.  When Alessandra takes responsibility for harming her dog, in what sense do we blame her?   Given that Sher allows responsibility attributions for any deviation from the reasonable person caused by Alessandra’s causal systems, are we blaming her character?  Her action?  Her constitutive make up?  The mechanistic account of responsibility that Sher offers seems to me to be a far cry from what criminal law ought to care about.  In addition, Sher relies on causal mechanisms and moves the analysis of negligence to an analysis quite on par with the free will/determinism debate.  Our analysis is shifted far back to reason responsiveness.  But there are questions here, too.  What explains the difference in how we treat mistakes of fact and mistakes of morality?  (Consider the difference in punishment between the actor with the “unreasonably” mistaken belief that the gun was not loaded and the “unreasonably” mistaken belief that murder is not wrong.)  Where does this leave us?  There is much work left to be done, but Sher certainly shines the searchlight on the where we ought to look for answers.

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Cite as: Kimberly Ferzan, Shining the Light on Negligence, JOTWELL (October 8, 2010) (reviewing George Sher, Who Knew?  Responsibility Without Awareness (Oxford University Press, 2009)), https://crim.jotwell.com/shining-the-light-on-negligence/.