George Sher, Who Knew? Responsibility Without Awareness (Oxford University Press, 2009). Kimberly Ferzan 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. Continue reading "Shining the Light on Negligence"
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