Published online by Cambridge University Press: 01 July 2015
According to the conventional view, causal and moral responsibility have a strict hierarchical relationship. Determining causal responsibility comes first; then we sort through the factors to which we have assigned causal responsibility and determine which, if any, should be assigned moral responsibility too. Moral inquiry accordingly stands not only apart but also above causal inquiry. But I am going to argue that this way of looking at causal and moral responsibility is a mistake. Rather than being separate and independent inquires with different purposes and concerns, I am going to argue that finding causal responsibility actually entails finding moral responsibility even when there is no evidence of what we would call traditional fault. Indeed, I am going to argue we cannot find someone causally responsible without finding them morally responsible too.
1. See, e.g., Nettleship v Weston  2 QB 691, a standard inclusion in English tort law casebooks and textbooks in the section on standard of care. In that case, despite driving at a slow rate of speed and being instructed exactly what to do, a learner driver managed to drive up over the curb, onto the sidewalk, and crash into a lamp post, injuring her passenger, the driving instructor. The issue on appeal was what standard of care should be applied—that of a reasonable driver or that of a reasonable learner-driver. As if this could have possibly made a difference. Even at the lower standard of care, it is difficult to believe that there was no fault here. Otherwise, we all take our lives in our hands anytime we go anywhere we may encounter learner-drivers on the road. For examples of the attention given the standard of care in American textbooks, see Dobbs, Dan B, The Law of Torts (St Paul: West Group, 2000)Google Scholar §§116ff.
2. For further discussion of this phenomenon and some of the empirical studies examining it, see Jeffrey J Rachlinski, “Misunderstanding Ability, Misallocating Responsibility” (2003) 68:4 Brook L Rev 1055.
3. Note that I take no position in this paper on the metaethical question of whether there are such things as moral facts, for nothing in my argument turns on this. True, the phrasing of my argument might need to be slightly different if there are such facts, but the substance of my claims would not change. If there are moral facts, then what I say about moral and causal judgments should be understood to include such judgments and the moral and non-moral facts on which they are based; if there are no moral facts, then what I say about moral and causal judgments should be understood to include such judgments and the non-moral facts on which they are based, which in that case would be the only kind of facts there are. When I refer to our moral or legal practice, in turn, I am referring to how we arrive at moral and causal judgments within that particular practice, whatever that may be.
4. Given this limitation, most of the cases that I will be discussing will be cases in which the claim being made (if it were being made as a legal claim) would be one of negligence, but it could include other kinds of claims as well. Sometimes serious personal injury is alleged to result from a breach of contract or promise or a trespass to property. In those cases, my argument would apply, and it would mean that if we were to find the alleged defendant causally responsible for these serious personal injuries, then he would necessarily be morally responsible too, even though no finding of traditional fault is required to make out a legal claim for either of these civil wrongs.
5. See, e.g., Moore, Michael S, Causation and Responsibility (Oxford: Oxford University Press, 2009)CrossRefGoogle Scholar; Hart, HLA & Honoré, Tony, Causation in the Law, 2nd ed (Oxford: Oxford University Press, 1985)CrossRefGoogle Scholar; Mackie, JL, The Cement of the Universe: A Study of Causation (Oxford: Oxford University Press, 1980).CrossRefGoogle Scholar
6. I say “often” and not “always” because some people think that for Immanuel Kant, causation is irrelevant to the determination of whether something constitutes a wrong. Others think that this is a misinterpretation of Kant’s theory. See, generally, Gardner, John, “Obligation and the Outcomes in the Law of Torts” in Cane, Peter & Gardner, John, eds, Relating to Responsibility: Essays in Honour of Tony Honoré on his 80th Birthday (Portland, OR: Hart, 2001)Google Scholar 111 at 141-42. Whether it is or it isn’t, however, is irrelevant to anything I am discussing. The point is simply that even though causal issues may be relevant to determining whether something is a wrong, this paper is not an argument about how we should identify what wrongs there are. It is an argument about how we decide who is morally responsible for such wrongs no matter how they are identified.
7. Mark R Reiff, “Terrorism, Retribution, and Collective Responsibility” (2008) 34:2 Soc Theory & Practice 209 esp at 239-40.
8. See, e.g., Wex S Malone, “Ruminations on Cause-In-Fact” (1956) 9 Stan L Rev 60; Mark Kelman, “The Necessary Myth of Objective Causation Judgments in Liberal Political Theory” (1987) 63:3 Chicago-Kent L Rev 579.
9. See RH Coase, “The Problem of Social Cost” (1960) 3 JL & Econ 1.
10. For an excellent description of the causal minimalist position and Hart and Honoré’s rebuttal of it, see Simmonds, NE, “The Dissolution of Law?” in Poore, Duncan, ed, Where Next? Reflections on the Human Future (Royal Botanic Gardens, Kew: 2000)Google Scholar 209 at 225-27.
11. See Hart & Honoré, supra note 5.
12. Especially, of course, because there are some big names taking the position that assigning strict liability is inconsistent with the idea of assigning moral responsibility. See, e.g., Hart, HLA, The Concept of Law, 2nd ed (Oxford: Oxford University Press, 1994)Google Scholar at 166, 173, 178, 179 (suggesting that there can be no ascription of moral responsibility without what I call traditional fault); Nagel, Thomas, “Moral Luck” in Mortal Questions (Cambridge: Cambridge University Press, 1979)Google Scholar 24 at 31: “strict liability … may have its legal uses but seems irrational as a moral position.”
13. See generally Restatement (Second) of Torts § 328D (1965).
14. See Pillars v RJ Reynolds Tobacco Co, 78 So 365 (Miss Sup Ct 1918). See also Byrne v Boadle (1863), 2 H & C 722, 159 ER 299 (Ex Ct), where a barrel of flour rolled out of the window of the defendant’s warehouse and fell on a passing pedestrian.
15. See, e.g., Tony Honoré, “Responsibility and Luck: The Moral Basis of Strict Liability” (1988) 104 Law Q Rev 530; Gardner, supra note 6.
16. I will use these terms interchangeably from here forward, so whichever one I use it should be understood as having the same meaning as the other.
17. See, e.g., Lord Denning’s remarks in Lamb v Camden London Borough Council  QB 625 at 636,  2 All ER 408 (Eng CA).
18. See, e.g., Vesely v Sager, 5 Cal (3d) 153, 486 P (2d) (Cal Sup Ct 1971); Barrett v Ministry of Defence,  EWCA Civ 7,  3 All ER 97. Note that in Barrett, the question addressed was phrased as one of duty of care, not causation. But all questions of causation can be phrased as questions of duty of care, and vice versa—this is ultimately just a matter of semantics, although some particularly stubborn academics pretend that it is not. In any event, while Barrett does not absolutely resolve the question of whether those who provide alcohol to others can be liable to those these others then injure in some way, I think any fair-minded English lawyer would consider such a claim a long shot, while any fair-minded California lawyer would not.
19. Nevertheless, for further discussion of the various ways that moral issues—or, as they are sometimes euphemistically referred to, “policy” questions—can enter into the proximate cause inquiry, see Moore, supra note 5 at 89-104.
20. Richard Wright, “Causation, Responsibility, Risk, Probability, Naked Statistics, and Proof: Pruning the Bramble Bush by Clarifying the Concepts” (1988) 73 Iowa L 1001 at 1019-20 [footnotes omitted]. See also Richard Wright, “Causation in Tort Law” (1985) 73 Cal L Rev 1735; Richard Wright, “Once More into the Bramble Bush: Duty, Causal Contribution, and the Extent of Legal Responsibility” (1996) 54 Vand L Rev 1071.
21. See, e.g., Sindell v Abbot Laboratories, 26 Cal (3d) 588, 607 P (2d) 924 (Cal Sup Ct 1980), which involved an indeterminate defendant (the plaintiff was allowed to recover a portion of her damages from each maker of the drug DES according to that defendant’s market share of sales of the drug at the relevant time, even though plaintiff could not prove which defendant had been the source of the drug that her mother had taken and which had caused her injury); Richard Delgado, “Beyond Sindell: Relaxation of Cause-In-Fact Rules for Indeterminate Plaintiffs” (1982) 70:4 Cal L Rev 881 (arguing for an extension of the Sindell approach to cases of where the identity of the injured plaintiff is indeterminate); David A Fischer, “Tort Recovery for Loss of a Chance” (2001) 36 Wake Forest L Rev 605 (discussing cases that have allowed recovery where the probability that defendant’s act caused plaintiff’s injury was less than 50% and advocating wider application of the doctrine).
22. There are so many theorists that now agree with this, see, e.g., Jane Stapleton, “Cause in Fact and the Scope of Liability for Consequences” (2003) 119 Law Q Rev 388, I think it is fair to regard this proposition as non-controversial.
23. See Restatement (Second) of Torts § 402A(1) (1965). Article 6(1) of EEC, Council Directive 85/374/EEC of 25 July 1985 on the approximation of the laws, regulations and administrative provisions of the Member States concerning liability for defective products,  OJ, L 210/29 incorporates a similar provision into EU law by requiring that the product is defective only if it does not provide the safety which a person is entitled to expect.
24. See Micheline Maynard & Martin Fackler, “Repairing Some Dents in an Image” The New York Times (5 August 2006); Hiroko Tabuchi, “1.5 Million Toyotas Recalled for Brake and Fuel Pump Problems” The New York Times (21 October 2010); Hiroko Tabuchi, “Toyota Recalls 1.7 Million Vehicles” The New York Times (26 January 2011).
25. For further discussion of the natural limits on our ability to shift the burden of the consequences of liability to others, see Reiff, Mark R, Punishment, Compensation, and Law: A Theory of Enforceability (Cambridge: Cambridge University Press, 2005)CrossRefGoogle Scholar at 215-21 [Reiff, Punishment].
26. I realize that some people deny that tort law is about punishment at all, especially those who seek to describe tort law as an instantiation of pure corrective justice. But I do not think this view is defensible for the reasons I have set forth in the text. For those who remain unconvinced, however, more extensive argument on this point is set forth in my Punishment, Compensation, and Law: A Theory of Enforceability, ibid at 75-98. The definition of punishment that I rely on in the text is found and defended on page 77 of that volume.
27. See Hart, supra note 12 at 168-76, esp 173.
28. See Reiff, Punishment, supra note 25 at 215-21.
29. See generally Antony Duff, “Towards a Theory of the Criminal Law?” (2010) 84 Aristotelian Society Supplementary Vol. 1; Husak, Douglas, Overcriminalization: The Limits of the Criminal Law (Oxford: Oxford University Press, 2008).Google Scholar
30. For the full version of this argument, see Reiff, Punishment, supra note 25.
32. See, e.g., Joshua Knobe, “The Concept of Intentional Action: A Case Study in the Uses of Folk Psychology” (2006) 130:2 Philosophical Studies 203.
33. See Fiery Cushman, Joshua Knobe & Walter Sinnott-Armstrong, “Moral Appraisals Affect Doing/Allowing Judgments” (2008) 108:2 Cognition 281 at 285-88.
34. For similar experimental findings, see Mark D Alicke, “Culpable Control and the Psychology of Blame” (2000) 126:4 Psychological Bull 556.
35. See, e.g., Rachlinski, supra note 2.
36. See Hume, David, A Treatise on Human Nature, 1896 ed by Selby Bigge, LA (Oxford, 1896)Google Scholar at bk 3 pt 1 sec 1 at 469: “In every system of morality, which I have hitherto met with, I have always remark’d, that the author proceeds for some time in the ordinary way of reasoning, and establishes the being of a God, or makes observations concerning human affairs; when of a sudden I am surpriz’d to find, that instead of the usual copulations of propositions, is, and is not, I meet with no proposition that is not connected with an ought, or an ought not. This change is imperceptible; but is however, of the last consequence. For as this ought, or ought not, expresses some new relation or affirmation, ‘tis necessary that it shou’d be observ’d and explain’d; and at the same time that a reason should be given; for what seems altogether inconceivable, how this new relation can be a deduction from others, which are entirely different from it.” [emphasis in original].
38. Note that this does not amount to a claim that moral judgments cannot exist independently of our recognition of them—mine is not an attack on moral realism. I am simply arguing that causal judgments are moral judgments, even though they may be made without a finding of traditional fault. The metaethical status of these causal judgments is accordingly open to debate just as the metaethical status of traditional moral judgments would be. I am not saying that moral judgments must be recognized as such by (at least some) people to exist. I am merely saying that recognizing a judgment as a moral judgment is some evidence that it is.
39. As David Lewis says: “Any particular event … stands at the end of a long and complicated causal history … the only question is whether [these causal chains] are infinite or merely enormous.” Lewis, David, “Causal Explanation” in Philosophical Papers (Oxford: Oxford University Press, 1987)Google Scholar vol 2 at 214.
40. To those not so familiar with the American game of baseball, an “at bat” is the opportunity a hitter has to hit the ball when it is his turn in the batting order to come to the plate to face the pitcher. A “strike out” occurs when the batter has three strikes. A strike, in turn, occurs when the batter swings and misses a pitched ball, or fails to swing at a pitch deemed in the strike zone, or fouls off a ball (hits the ball out of play) when he has less than two strikes on him already. Obviously, the fewer games the player plays, the fewer “at bats” he will have, and the fewer at bats he has, the fewer opportunities he will have to strike out.
41. For a discussion of this feature of causal inquiry, see Hart & Honoré, supra note 5 at 32-44 (referring to what I have called causal factors as “conditions” and causal factors to which causal responsibility is assigned as “causes”). See also Lewis, supra note 39 at 226-27, listing the ways in which causal explanations can fail, especially example 5 in that list.
42. Mackie, supra note 5 at xi.
44. For discussion of some recent empirical research into the effect that both temporal order and traditional fault have on our assignments of causal responsibility, see Kevin Reuter, Lara Kirfel, Raphael van Riel & Luca Barlassina, “The Good, the Bad, and the Timely: How Temporal Order and Moral Judgment Influence Causal Selection” (2014) 5:1336 Front Psychol 1.
45. For a similar idea, see Jonathan Schaffer, “Contrastive Causation and the Law” (2010) 16:4 Legal Theory 251 and the various works cited therein at 261, n 6.
46. Of course, I am not the first and I certainly won’t be the last to argue that a traditional finding of fault—i.e., that the alleged wrongdoer either knew or should have known he was creating a risk of injury—is neither necessary nor sufficient for assigning moral responsibility. For a recent example of such an argument, see Sher, George, Who Knew? Responsibility without Awareness (Oxford: Oxford University Press, 2009)CrossRefGoogle Scholar at 71-84.
47. Hart & Honoré, supra note 5 at 80, 179.
49. See, e.g., Dworkin, Ronald, Taking Rights Seriously (Cambridge: Harvard University Press, 1977)Google Scholar at 266-78, esp 267.
50. One reader of this paper suggested another possibility: that when I have acted in defense of another, I am morally responsible for the death of the potential assailant but not causally responsible for it (the assailant, presumably, being causally responsible in this case for his own death). But while the assailant may be causally (and indeed morally) responsible for his own death, the assignment of responsibility to the assailant does not reduce much less eliminate the responsibility of the Good Samaritan here for his righteous act. That is the whole point of my argument here—justifications change the character of the act for which one is causally and morally responsible; they do not reduce the degree of that causal and moral responsibility. Indeed, I do not see how the Good Samaritan could be morally but not causally responsible for the assailant’s death, for it makes no sense to say someone is deserving of moral praise for something for which they are not causally responsible. In any event, the issue I am addressing in this paper is not whether one can be morally responsible for something for which one is not causally responsible—for the reasons I have already given, I take it to be relatively uncontroversial that this could not be the case. The issue I am addressing in this paper is whether one can be causally responsible without being morally responsible. A lot of people assume this is possible and perhaps even common. It is this assumption that I am challenging in this paper.
51. Another reader of this paper suggested that the insanity defense may be an example of a defense where causal and moral responsibility come apart, for in cases where that defense is made out we would not assign moral responsibility to the insane person but we would still assign causal responsibility to him. After reflecting on this example, however, my view is that the causal responsibility we are referring to in this example is not the kind of causal responsibility I have been talking about throughout this paper. When someone is insane, just like when they are an infant or otherwise mentally incompetent, what we have decided is that they are not capable of bearing moral responsibility. In that sense they are like a special kind of thing, and when we assign causal responsibility to a thing we are doing something very different than when we are assigning causal responsibility to a being capable of bearing moral responsibility. In the latter case, we are not making a simple attribution of the metaphysical relation between two events; rather, we are making a far more complex determination about the relation between two people. So we might indeed assign causal responsibility to an insane person who kills another, but this is a different kind of causal responsibility than the causal responsibility we assign to those who are mentally competent. The insanity example therefore does not suggest that the kind of causal responsibility I have been talking about in this paper (the causal responsibility of a being that is capable of bearing moral responsibility) and moral responsibility come apart. Given the way I am using these concepts, they still rise and fall together.
52. For further discussion of what distinguishes a justification from an excuse and citation to some of the vast literature devoted to this topic, see Vera Bergelson, “Justification or Excuse? Exploring the Meaning of Provocation” (2009) 42:2 Tex Tech L Rev 307; Douglas Husak, “Partial Defenses” (1998) 11:1 Can JL & Jur 167. Note also that this same basis that I am proposing for distinguishing a justification from an excuse can also be used to explain the difference between blameworthiness and wrongfulness.
53. See Hart, supra note 12 at 173.
54. For a similar argument against the ought-implies-can principle, albeit one that proceeds by a slightly different route and reaches a slightly different but not inconsistent conclusion, see Matthew H Kramer, “Moral Rights and the Limits of the Ought-Implies-Can Principle: Why Impeccable Precautions are No Excuse” (2005) 48:4 Inquiry 307 esp at 328-31 (note that Kramer argues that proof of fault is not required to establish a moral wrong; I argue that it is always present even when it is not technically required).