“How Could You?”
Gideon Yaffe
Abstract
In explaining why an instance of negligence is a case of culpable wrongdoing, it is natural and common to cite missing features of the agent’s behavior or mental state. “She failed to notice the stop sign,” “He did not check the water temperature before putting the baby in the bath.” In general, it can seem puzzling to ground judgments of wrongdoing and culpability not in the qualities that the agent’s mind and behavior possess but, instead, in the qualities they lack. After all, the class of people lacking the relevant feature is much larger than the class who are guilty of the culpable wrongdoing to which we are responding in cases of negligence. The passenger in the car, as well as the driver, failed to notice the stop sign. The houseguest also did not check the temperature of the baby’s bath. Why are they not guilty of culpable wrongdoing if these respective failures are what supports the charge in the case of the driver and the father? This chapter argues, first, that an account of why cases of negligence are ever cases of culpable wrongdoing must solve this problem by providing an explanation for why some absences are instances of culpable wrongdoing and others are not. Several quick efforts to solve the problem are shown to be inadequate. The chapter then goes on to offer a general theory of culpability that explains why absences – failures to notice or to attend, failures to take precautions – can be instances of culpable wrongdoing, and also why such absences sometimes fail to ground claims of culpable wrongdoing. Along the way, the chapter also draws a distinction between moral and criminal culpability and demonstrates that there can be instances of criminally culpable negligence in the absence of moral culpability.