To truly understand all the nuances and textures in Verónica Rodríguez-Blanco’s rich argument in her recent book, Responsibility for Negligence in Ethics and Law: Aspiration, Perspective, and Civic Maturity, a reader would likely need full fluency with the methodology and language of moral and ethical philosophy: terms like akrasia, proleptic, and phenomenology dance with Hume, Aristotle, and Kant throughout the chapters. Yet the book has much to offer even the non-philosopher kings and queens of tort law. It takes on the perpetually vexing question of whether there is an actual moral justification (as opposed to a mere policy one) for negligence liability, and, through nine chapters of careful argumentation, offers its own distinct answer. Eschewing previous theories, Rodríguez-Blanco argues that negligence liability is justifiably grounded in a defendant’s failure to adopt a deliberative-aspirational perspective, when that failure has caused injury to another.
Negligence has long been a bugaboo for theories of responsibility. By definition, negligence assigns legal liability even to those whose mere inadvertence has caused injury. Whereas culpability is relatively easy to assign in the case of intentional torts— purposefully or knowingly causing injury is clearly blameworthy and deserving of deterrence and sanction—the basis for ascribing blame and liability to inadvertent actions and results is less clear, and theorists have spilled much ink offering various attempts at justifications—and refutations —of the practice.
One of the book’s many strengths is its painstakingly clear engagement with the various answers to this puzzle that have been previously proposed. Grappling with contemporary corrective justice and civil recourse theorists like John Goldberg, Ben Zipursky, Gregory Keating, John Gardner, Ernest Weinrib, and Arthur Ripstein, the book cogently articulates the sometimes subtle distinctions between these theories, and argues that all either have particular shortcomings in their explanations or instead simply skirt the question.
Through categorizing and critiquing these various proffered theories of negligence, Rodríguez-Blanco clears the path for her own intervention. She begins her argument with the premise that articulating a general theory of how people act and understand their own actions (which she calls “doings” and “making sense” of those doings) will illuminate the defective version of these processes that negligence law targets. (P. xxiii.) The early chapters are thus devoted to studying, in a “psychologically realistic” way, how exactly people act and understand their actions.
As with many valuable works of moral philosophy, vignettes perform much of the work. Here, Hot Dog, borrowed from Gregory Sher, recounts a woman, Alessandra, who leaves her dog in the car while picking up her children from a sports practice one day. After she returns to the car following a delay caused by her two children squabbling, she discovers the dog has died from heatstroke. Rodríguez-Blanco argues that like looking at Wittgenstein’s famous duck/rabbit picture, when she sees her dead dog, Alessandra is able to inhabit two perspectives simultaneously: she can at that moment “‘see’ both the forward-looking perspective of her action,” meaning “the deliberative and intentional action” of what she was trying to accomplish and why, at the precise time she was doing it (trying to give her children a healthy activity and trying to incorporate the dog in family life), as well as the “backward-looking perspective of her action (i.e. the lack of precaution and practical knowledge that produced the death of her dog).” (P. 13.) For Rodríguez-Blanco, Alessandra has not engaged in an omission or “a lapse owing to the absence of a mental state.” (P. 17.) Rather, she has engaged in a “defective exercise of practical reason.” (P. 17.) Alessandra has suffered what Rodríguez-Blanco terms an “akratic” problem: there has been “an uneven or defective integration of [Alessandra’s] character and intelligent thinking in acting.” (P. 25.) On learning of the dog’s death, Alessandra will experience regret and see “that she had, or perhaps still has, a deprived or lacking perspective” in her unduly narrow deliberations surrounding her actions. (P. 90.) If she can face this flaw, she can move forward into a deliberative-aspirational perspective and transform her thinking. She can learn from her error, and adapt better practices in the future, and through this move into a state of civil maturity.
For Rodríguez-Blanco, negligence law plays an important role in triggering such a transformation. She describes the law of negligence as proleptic, meaning that negligence law provides citizens with a way of thinking and manifesting values like “security and physical integrity” as they deliberate and engage in action across different circumstances. In judicial decisions like Donoghue v. Stevenson,1 for example, “judges present the realizability of specific values by describing them from a forward-looking perspective, similar to that of a citizen,” as Lord Atkin does when he writes as though he is in the moment of placing a particular food product into the chain of commerce: “[a] manufacturer puts up an article of food in a container which he knows will be opened by the actual consumer. There can be no inspection by any purchaser and no reasonable preliminary inspection by the consumer”2 (P. 211.) Lord Atkin describes the complexity of the values at stake “as if he acted from the forward-looking perspective,” in order to model for citizens how they are to engage in deliberative aspirational reasoning. (P. 211.)
Rodríguez-Blanco also usefully argues that her version of grounding negligence can account for the problem of moral luck. Another vignette, this one picked up from Jeremy Waldron’s work Moments of Careless and Massive Loss and threading throughout much of the latter half of the book, illustrates the problem. In this vignette, two independent drivers (named Fate and Fortune) are each momentarily distracted by a sales sign in a store window, but the inattention of one driver (Fate) results in a collision that harms another roadway user, while the inattention of the other driver (Fortune) does not.
In keeping with many theorists who have gone before, Rodríguez-Blanco wrestles with the issue of moral luck that this scenario raises, but proposes a different solution. She argues that ethically and morally, Fate and Fortune have acted equally carelessly, but Fortune escapes negligence liability while Fate bears it because, if no tangible harm is produced by defective reasoning, negligence liability offers people “opportunities to learn” and progress toward better deliberative-aspirational processing in the future (which we will hopefully do out of alarm at experiencing such close calls). If, on the other hand, we find ourselves in Fate’s shoes, with a similar failure on the deliberative-aspirational front this time creating tangible harm to another, the lesson will be reinforced through legal sanctions.
This explanation for the difference in liability consequences arising from the same underlying wrongful conduct illustrates some of the implications of her arguments and the additional avenues of inquiry they generate. This is not a book that ends when you finish reading its last page, but one that evokes repeated engagement as it works to embed itself within already existing networks of knowledge and doctrine. For example, the negligence in the Fate and Fortune scenario can involve additional layers of negligence in interesting ways, as illustrated in the case of Thompson v. White, another instance where a distracted driver caused a collision and resulting injury.3 The source of the distraction in Thompson, however, was not advertised store bargains: instead it was ridiculously distracting clowns on the side of the road, which a gas station had employed to attract customers. The gas station was found potentially liable in negligence for distracting the driver, opening up questions surrounding the interactions between the deliberative-aspirational perspective of parties like the gas station, and anticipation of another person’s reactions or responses, akratic or not.
Additionally, the vignette surfaces deep questions about the interplay between public and private law. While negligence law requires a manifestation of harm to ground liability, leading to the difference in treatment of Fortunate and Fate, criminal law often punishes reckless conduct even absent such a result, through offenses like reckless endangerment and driving under the influence of alcohol. The role of public law in encouraging the deliberative-aspirational perspective, along with the application of this deliberative-aspirational perspective to corporate and public bodies, are further avenues of inquiry that attest to the richness of this intriguing new work, which will linger long after its covers have been closed.
