Tuesday, 8 November 2011

Morality and Strict Liability

Most legal systems recognise offences of ‘strict liability’. These are offences which are defined in such a way that they can be committed regardless of whether the perpetrator shows any ‘faulty’ intentions or character traits. A case in point is that of plagiarism – or, to give it its proper legal name, breach of copyright: a person breaches copyright if they pass off the words of another as their own regardless of whether they do so intentionally or knowingly.

Although it is primarily a legal term, it is interesting to speculate on whether there is anything akin to strict liability in the moral realm. Nagel, in his classic article on moral luck, is sceptical, remarking that strict liability ‘may have its legal uses’ but seems ‘irrational as a moral position’. Presumably what he means by this is that a person (such as the unwitting plagiariser) cannot be subject to moral criticism on the basis of their ‘external’ conduct alone – what always matters are their intentions, motives and traits of character.

However, I wonder whether this is an oversimplification. To be sure, in the vast majority of cases, what matters are intentions, motives and traits of character, but couldn’t there be some exceptions where external conduct alone is sufficient to warrant moral blame?

To focus attention on this possibility, imagine that I have promised to be present at your daughter’s christening. Knowing how important this is to you, I have given a cast-iron guarantee that I will attend. Unfortunately, on the day itself, my car breaks down en route to the ceremony, meaning that I don’t make it in time. This isn’t due to negligence or bad planning on my part; it’s just that sometimes the best laid schemes of mice and men go awry.

To my mind, it isn’t outlandish to suggest that I am morally blameworthy in this case. Of course, I haven’t disclosed a character flaw or bad intention, nor have I been negligent in my planning. Nonetheless, I have failed to keep a promise and, by implication, I have failed to fulfil a moral obligation, and normally the non-fulfilment of obligations is taken to be good grounds for moral criticism.

It therefore seems plausible to me to suppose that there is at least one form of strict liability in morality – namely, the strict liability that is associated with promise-keeping.

I wonder what readers think. Do you share my response to the promising example, and, if so, do you think that this yields any insights into broader topics in philosophy, such as the nature of moral appraisal and the problem of free will and moral responsibility?


  1. Jeremy, thanks for the interesting post. I think that some cases of promise keeping can be ones that provide counterexamples to Nagel' suggestion. However, I don't think the counterexample can be generated as easily as you suggest. Your suggested formula for counterexample takes the following form: a case where X makes a promise to Y but through no fault of X's own, X fails to keep the promise to Y. You seem to think cases of this structure will be ones where: X is morally blameworthy (in virtue of failing to keep the promise) even though X hasn't disclosed a character flaw, bad intention or negligence of planning. The reason I think this structure for getting the result you want needs modified is because, plausibly, promise-making generates prima facie obligations that are themselves defeasible. Also, plausibly, the conditions under which the prima facie obligations can be defeated will vary. Sometimes (but not always) facts about what we are unable to do will be sufficient to defeat the prima facie obligations generated by promise-making (or so I think). Consider the following: suppose I promise you I'll be at a relevantly unimportant meeting tomorrow, a meeting to see your new car (which I can easily do any subsequent day that week). Now suppose that (through no fault of my own), I am drastically hurt in a car accident and am in intensive care, unable to move. I'd say this is a case where my breaking a promise isn't sufficient for making me morally blameworthy because my prima facie obligation to keep my promise is overridden on the basis of considerations about both the unimportance of keeping the promise and the extent to which my breaking it was unavoidable for me. Other cases where I make promises but break them through no fault of my own will (I think) more plausibly generate a counterexample to Nagel. This sort of case is one where the prima facie obligation to not break the promise is one I break through unavoidable circumstances, though nonetheless, am morally blameworthy. An example would be if I promise you I will come change the batteries to your life-support machine at noon but don't make it in time because I was unfairly pulled over by an officer and questioned for an hour. In this case, I think my prima facie duty to keep my promise is not overridden simply by the fact that my being pulled over was something out of my control. Given the importance of the promise to your well-being, I think the burden on me to plan much better is higher, so that my prima facie duty to keep my promise would only be overridden if I was prevented from keeping it 'despite' appropriate planning (for example, if I was shot dead by a sniper at the hospital door). So, in sum: I think that you're right that in some cases, one can be morally blameworthy due to purely external factors in cases where one fails to keep a promise, but these will always be cases in which the prima facie duty to keep a promise is NOT undercut by considerations about the importance of keeping the promise and the extent to which failing to do so was unavoidable.

  2. I work as a volunteer coordinator for a nonprofit and I run into situations frequently in which people fail to fulfill obligations due to some accident or competing obligation. Sometimes this causes a great deal of trouble. I think that making a promise creates an obligation to take all reasonable steps to fulfill the promise, and that some moral fault attaches to a conscious choice to do or not to do something such that fulfilling the promise becomes impossible - such as offering a person transportation and then ignoring the oil warning light on your car. By this analysis no moral fault occurs if the interfering factor is truly unforseeable, and the degree of moral fault is less than if the promise itself were idly made or deliberately broken