Moral rights and the limits of the ought-implies-can principle: Why impeccable precautions are no excuse

Inquiry

Volumn 48, Issue 4, 2005, Pages 307-355

  Kramer, Matthew H ^a,b  

^a UNIVERSITY OF CAMBRIDGE   (United Kingdom)

^b CHURCHILL COLLEGE   (United Kingdom)

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EID: 33748526479     PISSN: 0020174X     EISSN: 15023923     Source Type: Journal    
DOI: 10.1080/00201750510022844     Document Type: Review

References (128)

1. H.L.A. Hart (1961) The Concept of Law (Oxford: Clarendon Press), pp. 168-76,
2. hereinafter cited as Hart, Concept. I should note two points of terminology at the outset. First, I use the terms "duty," "obligation," and "requirement" interchangeably. Second, the phrase "strict liability" refers to liability that is imposed without regard to the presence or absence of culpability. Further terminological points - such as my distinction between "wrongful" and "wrong" - will become apparent as this essay unfolds. For very helpful comments I wish to thank Andrea Baumeister, Rowan Cruft, Antony Duff, Bernard Gert, Dudley Knowles, Sandra Marshall, James Murphy, Walter Sinnott-Armstrong, Hillel Steiner, and Victor Tadros. I am grateful to audiences at Dartmouth College and the University of Stirling, where I presented an abridged version of this article.
3. My distinction between wrongness and wrongfulness clearly overlaps with Heidi Hurd's distinction between wrongdoing and culpability in her (1999) "Justification and excuse, wrongdoing and culpability", in: Notre Dame Law Review, 74, pp. 1551, 1557-72,
4. hereinafter cited as Hurd, "Justification". However, despite the terminological similarity between the two distinctions, they are substantively different in certain respects (which need not be recounted here).
5. Philip Soper's dichotomy between moral error and culpability, drawn at a number of junctures in his (2002) The Ethics of Deference (Cambridge: Cambridge University Press), is roughly similar terminologically to my wrongness/wrongfulness distinction. In fact, however, Soper adopts a Hartian position on the exonerative effect of good intentions.
6. See, e.g., Philip Soper's dichotomy between moral error and culpability, drawn at a number of junctures in his The Ethics of Deference ((2002) ibid., at pp. 61, 75, 85, 96.
7. I agree here with Ruth Barcan Marcus (1996) "More about moral dilemmas", in H.E. Mason, Moral Dilemmas and Moral Theory (Oxford: Oxford University Press), pp. 23, 28,
8. hereinafter cited as Mason, Dilemmas. Note, incidentally, that the structure of a conflict between moral duties does not consist in one's being obligated to do X and to abstain from doing X. Rather, it consists in one's being obligated to do X and one's being obligated to abstain from doing X.
9. Note, incidentally, that the specified sense of "cannot" goes beyond stark physical impossibility. Some outcomes that cannot be attained through the scrupulous exercise of care and good will are nonetheless attainable as a sheer matter of physical possibility. For instance, a mountain climber might not be able to avoid a fall even if he ascends a slope with meticulous circumspection and skill, yet he could have avoided the accident by altogether forgoing the activity of climbing mountains. Suppose that everyone is morally required not to become involved as a driver in any automobile accident. Although a person might not be able to live up to such a requirement through punctiliously careful driving, he can live up to it by declining to get behind the steering wheel of an automobile at all. What he can achieve as a matter of sheer physical possibility is more expansive than what he can achieve as a matter of impeccable precautions.
10. Hart, Concept, p. 173.
11. In a discussion of a somewhat different point in his (1968) Punishment and Responsibility (Oxford: Clarendon Press), pp. 35-40
12. (hereinafter cited as Hart, Punishment), Hart similarly took as given that strict liability is excluded from morality.
13. Hart, Concept, pp. 174-75;
14. Hart, Punishment, pp. 13-14.
15. See also J.L. Austin (1956-57) "A plea for excuses", Proceedings of the Aristotelian Society, 57, pp. 1, 2-3,
16. hereinafter cited as Austin, "Plea";
17. Peter Cane (2002) Responsibility in Law and Morality (Oxford: Hart Publishing), p. 90,
18. hereinafter cited as Cane, Responsibility;
19. Joshua Dressler (1984) "New thoughts about the concept of justification in the criminal law: A critique of Fletcher's thinking and Rethinking", U.C.L.A. Law Review, 32, pp. 61, 66-68;
20. Kent Greenawalt (1984) "The perplexing borders of justification and excuse", Columbia Law Review, 84, pp. 1897, 1899-900,
21. hereinafter cited as Greenawalt, "Borders";
22. Walter Sinnott-Armstrong (1988) Moral Dilemmas (Oxford: Basil Blackwell), p. 42,
23. hereinafter cited as Sinnott-Armstrong, Dilemmas. The justification/excuse distinction is drawn somewhat differently by George Fletcher, the legal theorist who has written most extensively on it.
24. See his (1978) Rethinking Criminal Law (Boston, MA: Little, Brown and Company), chap. 10,
25. hereinafter cited as Fletcher, Rethinking;
26. (1979) "Should intolerable prison conditions generate a justification or an excuse for escape?", U.C.L.A. Law Review, 26, pp. 1355,
27. hereinafter cited as Fletcher, "Conditions";
28. (1985) "The right and the reasonable", Harvard Law Review, 98, pp. 949, 954-55, 977-78,
29. hereinafter cited as Fletcher, "Right". I do not here need to challenge Fletcher's understanding of the justification/excuse diremption. Nor do I need to consider the bearings of jurisdictional immunities, which operate in the law alongside justifications and excuses as liability-precluding factors.
30. See, e.g, Austin, "Plea," p. 3;
31. Philip Pettit and Michael Smith (2004) "The truth in deontology", in: R. Jay Wallace, Philip Pettit, Samuel Scheffler, and Michael Smith (Eds.) Reason and Value (Oxford: Oxford University Press), pp. 153, 163. Because both justifications and excuses fully exclude criminal liability, quite a few criminal-law theorists do not attach very much importance to the justification/excuse distinction.
32. For a recent example of such an attitude, see A.P. Simester and G.R. Sullivan (2000) Criminal Law: Theory and Doctrine (Oxford: Hart Publishing), pp. 537-40.
33. Sometimes the content of a moral duty pertains not to the duty-bearer's conduct but to the occurrence of some state of affairs (which will obtain or not obtain independently of his conduct). For example, if I earnestly and knowledgeably assure you that the sun will shine on a certain day, and if you reasonably rely upon my assurance, I shall have to apologize or otherwise make amends if the specified day turns out to be rainy. Purely for ease of exposition, I leave such duties out of consideration here.
34. For my view, see my (1998) "Rights without trimmings", in: Matthew H. Kramer, N.E. Simmonds, and Hillel Steiner, A Debate over Rights (Oxford: Oxford University Press), pp. 7, 24-60,
35. hereinafter cited as Kramer, "Rights". For citations to many writings that deny the thoroughgoing correlativity of rights and duties,
36. see Kramer, "Rights". For citations to many writings that deny the thoroughgoing correlativity of rights and duties, ibid., at p. 25 n. 11.
37. See Kramer, "Rights", pp. 49-70;
38. Matthew H. Kramer (2001) "Getting rights right", in: Rights, Wrongs, and Responsibilities (Basingstoke: Palgrave), pp. 28, 29-57,
39. hereinafter cited as Kramer, "Getting".
40. See, e.g., Judith Jarvis Thomson (1990) The Realm of Rights (Cambridge, MA: Harvard University Press), pp. 91-93 et passim,
41. hereinafter cited as Thomson, Realm; Walter Sinnott-Armstrong, "Moral dilemmas and rights", in: Mason, Dilemmas, pp. 48, 54,
42. hereinafter cited as Sinnott-Armstrong, "Rights".
43. See also Terrance McConnell, "Moral residue and dilemmas", in Mason, Dilemmas, pp. 36, 42,
44. hereinafter cited as McConnell, "Residue".
45. Among the philosophers who have recognized the importance of conventionally established remedial arrangements are Jules Coleman (1992) Risks and Wrongs (Cambridge: Cambridge University Press), pp. 296-98,
46. hereinafter cited as Coleman, Risks;
47. and Thomson, Realm, p. 95. When I designate the arrangements as conventional, I do not mean to suggest that all of them are introduced extra-legally. On the contrary, many such arrangements are required or authorized by legal norms. Because law itself is inherently conventional, the legally required or authorized status of various remedial schemes is fully consistent with their conventionality.
48. For a recent account of vicarious liability in English tort law, see W.V.H. Rogers (2002) Winfield & Jolowicz on Tort (London: Sweet & Maxwell) (16th ed.), chap. 20.
49. An exception to this general point arises when a wrongdoer W has died or has undergone some thorough and permanent mental incapacitation (perhaps as a result of the same event that has harmed his or her victim). In such circumstances, especially when the occurrence of the wrong is known or is quite readily ascertainable, the executor of W's estate or someone else who stands as a pertinent representative of W will be morally obligated to furnish an apology to the victim. However, such an apology is to be delivered strictly on behalf of W and is to be an acknowledgment of his or her wrongdoing. It is decidedly not an acknowledgment of any wrongdoing on the part of the representative, who is to initiate and present the apology only because W is utterly incapable of doing so. Through some amplification, the Remedy Principle* and the Remedy Principle could overtly take into account the potential for the descent of an obligation-to-apologize upon somebody who occupies a strictly representative role in the event of a wrongdoer's death or complete mental incapacitation. Yet the requisite elaboration of each principle would introduce only a minor substantive modification at the cost of some considerable stylistic gnarls. Hence, although each principle should be understood as carrying the qualification outlined in this note, I have opted - in the interest of stylistic convenience - to forgo the explicit incorporation of that qualification.
50. Cane, Responsibility, p. 249.
51. For an excellent discussion of the inappositeness of insurance in the context of criminal law (as opposed to tort law), see Cane, Responsibility, ibid., at pp. 245-49. As Cane observes, there are borderline cases of punishment. For example, some regulatory fines imposed on corporations cannot correctly be deemed morally justifiable unless they are understood as taxes on the corporations' activities rather than as punishments. In such cases, insurance covering the likely imposition of the fines is probably legitimate.
52. This point is missed in Peter Railton, "The diversity of moral dilemma", in: Mason, Dilemmas, pp. 140, 154,
53. hereinafter cited as Railton, "Diversity".
54. However, for a valuable corrective, see Railton, "Diversity". ibid., at p. 166, n. 23.
55. Philippa Foot (1983) "Moral realism and moral dilemma", Journal of Philosophy, 80, pp. 379, 387,
56. hereinafter cited as Foot, "Realism".
57. Simon Blackburn, "Dilemmas: Dithering, plumping, and grief", in: Mason, Dilemmas, pp. 127, 131-32,
58. hereinafter cited as Blackburn, "Dilemmas". In addition to the example that I discuss in the text, Blackburn offers an example that involves the comforting of a lad by a coach who has not selected the lad for some team.
59. See Blackburn, "Dilemmas". In addition to the example that I discuss in the text, Blackburn offers an example that involves the comforting of a lad by a coach who has not selected the lad for some team.ibid., at pp. 135-36. My approach to this latter example would be essentially the same as my approach to the example of Alice and Bertha. However, instead of distinguishing between apologies (or other moral remedies) and expressions of gratitude - the appropriate dichotomy for my analysis of the situation concerning Alice and Bertha - I would distinguish between apologies (or other moral remedies) and expressions of encouragement and solace. Like expressions of gratitude, expressions of encouragement and solace do not in themselves constitute any acknowledgment of wrongdoing.
60. See, e.g., Karl Llewellyn (1931) "Some realism about realism - Responding to Dean Pound", Harvard Law Review, 44, pp. 1222, 1244.
61. It should go without saying that my chief claims in this paragraph are substantive moral contentions rather than conceptual analyses.
62. W. David Ross (1939) Foundations of Ethics (Oxford: Clarendon Press), p. 108,
63. hereinafter cited as Ross, Foundations.
64. For a view broadly similar to Ross's, albeit focused more on the guidance-providing and dignity-upholding roles of moral precepts, see Thomas E. Hill, Jr., "Moral dilemmas, gaps, and residues: A Kantian perspective", in Mason, Dilemmas, pp. 167, 175-79,
65. hereinafter cited as Hill, "Dilemmas".
66. For some much more favorable views of strict liability in morality, see, e.g., Fletcher, "Conditions", pp. 1362-63;
67. Railton, "Diversity", pp. 143-44;
68. Thomson, Realm, pp. 171-73, 175.
69. For the former accusation, see, e.g., Coleman, Risks, p. 316.
70. For the latter accusation, see, e.g., Jules Coleman (2001), The Practice of Principle (Oxford: Oxford University Press), pp. 47-48.
71. Under this construal of the statement that an action is justified if and only if the actor reasonably believes that it is justified, the qualifier "reasonably" attaches not only to the actor's drawing of inferences from the known facts but also to his being unaware of other relevant facts. An otherwise impermissible action will never be rendered permissible if the choice made by the actor is based on an unreasonably circumscribed grasp of the situation confronting him.
72. See Judith Jarvis Thomson (1986) Rights, Restitution, and Risk (Cambridge, MA: Harvard University Press), chaps 3-5,
73. hereinafter cited as Thomson, Restitution;
74. Thomson, Realm, p. 122;
75. Joel Feinberg (1980) Rights, Justice, and the Bounds of Liberty (Princeton: Princeton University Press), pp. 229-32,
76. hereinafter cited as Feinberg, Rights.
77. See also Cane, Responsibility, p. 107;
78. Coleman, Risks, pp. 282-83, 299-302;
79. Fletcher, "Right", p. 977;
80. George Fletcher (1993) "The nature of justification", in: Stephen Shute, John Gardner, and Jeremy Horder (Eds.) Action and Value in Criminal Law (Oxford: Clarendon Press), pp. 175, 177;
81. McConnell, "Residue", p. 42;
82. Sinnott-Armstrong, Dilemmas, pp. 51-52.
83. Some very closely related distinctions are brought to the fore in an illuminatingly perspicacious and sustained fashion in Sinnott-Armstrong, Dilemmas. Although the term "overriding" is much more common than "overtopping" in discussions of these matters, I disfavor the former term because it conveys the impression that less important duties are eliminated or canceled in conflicts with more important duties.
84. Many highly sophisticated philosophers endorse the Permissibility Theorem. See, e.g., Earl Conee (1982) "Against moral dilemmas", Philosophical Review, 91, p. 87,
85. hereinafter cited as Conee, "Dilemmas"; Feinberg, Rights, pp. 235, 237;
86. Hill, "Dilemmas", p. 177;
87. G.E. Hughes and M.J. Cresswell (1996) A New Introduction to Modal Logic (London: Routledge), p. 43;
88. Hillel Steiner (1998) "Working rights", in: Matthew H. Kramer, N.E. Simmonds, and Hillel Steiner, A Debate over Rights (Oxford: Oxford University Press), pp. 233, 268 n. 55;
89. Peter Vallentyne (1987) "Prohibition dilemmas and deontic logic", Logique et Analyse, 30, pp. 113, 117-18, 119-20;
90. Peter Vallentyne (1989) "Two types of moral dilemmas", Erkenntnis, 30, p. 301.
91. For a fine critique, to which I am much indebted, see Sinnott-Armstrong, Dilemmas, pp. 156-61.
92. See also Sinnott-Armstrong, "Rights", p. 52.
93. Several such cases are discussed in Coleman, Risks, chaps 14 and 15;
94. Thomson, Restitution, chaps 3-5;
95. and Thomson, Realm, chaps 3-7.
96. See also Fletcher, Rethinking, pp. 774-98.
97. One of the most famous examples of a case of desperation is offered in Feinberg, Rights, p. 230.
98. If the father is much less wealthy than Joe, his remedial obligation might not require him to pay the full market value of the antidote that has been taken.
99. For a classic exposition of this approach, see Robert Keeton (1959) "Conditional fault in the law of torts", Harvard Law Review, 72, pp. 401, 418-44.
100. The need for some restrictions is recognized in Sinnott-Armstrong, Moral Dilemmas, pp. 165-66, but the restrictions have to be more far-reaching than Sinnott-Armstrong suggests.
101. The main discussion by David Ross is in his (1930) The Right and the Good (Oxford: Clarendon Press), chap. 2,
102. hereinafter cited as Ross, Right.
103. However, the notion of prima-facie duties and rights also appears recurrently in Ross, Foundations.
104. For some writings that invoke or discuss the distinction between prima-facie duties/rights and all-things-considered duties/rights, see Robert Audi, (1996) "Intuitionism, pluralism, and the foundations of ethics", in: Walter Sinnott-Armstrong and Mark Timmons (Eds.) Moral Knowledge? (Oxford: Oxford University Press), pp. 101, 103-06;
105. Conee, "Dilemmas";
106. Jonathan Dancy (1993) Moral Reasons (Oxford: Blackwell), chap. 6;
107. Alan Donagan, "Moral dilemmas, genuine and spurious: A comparative anatomy", in: Mason, Dilemmas, pp. 11, 18-21;
108. Joel Feinberg (1970) "Supererogation and rules", in: Doing and Deserving (Princeton: Princeton University Press), pp. 3, 8-9;
109. J.N. Findlay (1961) Values and Intentions (London: George Allen & Unwin), pp. 336-38;
110. Fletcher, "Right", pp. 978-79;
111. Foot, "Realism", pp. 385-86;
112. William Frankena (1973) Ethics (Englewood Cliffs, NJ: Prentice-Hall) (2nd ed.), pp. 26-27 et passim;
113. Hill (1983) "Dilemmas";
114. W.D. Hudson, Modern Moral Philosophy (Basingstoke: Macmillan) (2nd ed.), pp. 95-96;
115. S.L. Hurley (1989) Natural Reasons (Oxford: Oxford University Press), chap. 7 et passim,
116. hereinafter cited as Hurley, Reasons;
117. Peter Jones (1994) Rights (Basingstoke: Macmillan), pp. 195-98;
118. David McNaughton and Piers Rawling (2000) "Unprincipled ethics", in: Brad Hooker and Margaret Little (Eds.), Moral Particularism (Oxford: Oxford University Press), pp. 256, 266-71;
119. A.I. Melden (1977) Rights and Persons (Oxford: Basil Blackwell), pp. 4-16;
120. Mary Mothersill, "The moral dilemmas debate", in: Mason, Dilemmas, pp. 66, 77-78;
121. Frederick Schauer (1991) Playing by the Rules (Oxford: Oxford University Press), pp. 5-6, 113-14;
122. Sinnott-Armstrong, Dilemmas, pp. 97-102;
123. W.J. Waluchow (2003) The Dimensions of Ethics (Peterborough, ON: Broadview Press), chap. 8;
124. Bernard Williams (1973) Problems of the Self (Cambridge: Cambridge University Press), p. 176;
125. Bernard Williams (1985) Ethics and the Limits of Philosophy (Cambridge, MA: Harvard University Press), pp. 176-77. Especially valuable for my purposes are the discussions by Audi, Foot, Jones, Melden, and Sinnott-Armstrong.
126. I have previously drawn the distinction between two meanings of "prima-facie" in my (1999) In Defense of Legal Positivism (Oxford: Oxford University Press), p. 267.
127. This distinction is missed by Joseph Raz when he draws a parallel between (i) the liberty of courts in some circumstances to overrule precedents which they would in other circumstances be obligated to apply and (ii) the overtopping duty of a promisor to decline to abide by her promissory obligation in some circumstances. See Joseph Raz (1979) The Authority of Law (Oxford: Clarendon Press), p. 114.
128. Of course, nothing just said is meant to imply that every hardship imposed on an innocent victim must be remedied. Sometimes the occasioning of detriment to another person is not wrong, by any tenable reckoning. For example, if John falls in love with Mary, and if she has done nothing to encourage his love, she is not morally obligated to apologize for its unrequitedness. She is probably obligated to communicate regret over his disappointment - here the difference between expressing sorrow and apologizing is crucial - but she is not obligated to take any step that would constitute an acknowledgment of wrongdoing.