The Fault of Not Knowing

Abstract

Despite the outpouring of interest in tort and criminal theory over the last thirty years, not much progress has been made toward understanding the basic concepts for analyzing liability. Common law theorists of torts and criminal law tend to accept the conventional distinction between objective and subjective standards and the view that objective negligence is not really fault in the way that subjective negligence is. The author’s view is that this distinction between objective and subjective standards is misunderstood and that, in fact, so-called objective negligence is a test of fault or culpability in the same way that subjective standards are. This paper seeks to defend inadvertent negligence as a proper basis for blaming someone for causing harm, whether in the context of tort law or criminal law, whether the standard is regarded as objective or subjective. The first part of the paper, the historical part, engages in an extended analysis of Oliver Wendell Holmes’ writings on negligence. The second part of the paper, the philosophical part, addresses the general question of how people can be considered at fault and be blamed for not knowing critical attributes of their conduct, which might be either matters-of-fact or matters of moral evaluation.