Nicolas Cornell, ‘Looking and Seeing’

Negligence resides at the boundaries of ethics and perception. Consider a typical case: a driver fails to see an object in the road and causes an accident. In both law and moral life, we routinely hold people accountable for such failures. It is tempting to cast such failures in terms of a breach of duty, as the law of negligence does. We speak of a ‘duty of care’ or about what a person ‘should have known’. And yet such failures are often not straightforwardly a matter of choice.

This problem leads theorists in various unsatisfactory directions. Some theorists – negligence skeptics – express the radical view that it is actually a mistake to hold parties accountable for mere negligence given their epistemic position. Other theorists – negligence tracers – suggest that negligence can be traced back to some earlier culpable act or omission and that accountability can be appropriately assigned on this basis. Yet others – what I call ‘negligence externalists’ – try to understand duties in a way that detaches them from choice, maintaining that a duty may be breached simply by having the effect of interfering with another.

In this paper, I attempt to chart a different course. There can be, it seems, a mismatch between our duties to one another and the complaints which we may have to answer. I suggest that thinking about moral complaints procedurally fits an interpersonal morality that is often as much about seeing as it is about choosing.

Cornell, Nicolas, Looking and Seeing (October 15, 2021). New Conversations in Philosophy, Law, and Politics, forthcoming; University of Michigan Public Law Research Paper No 21-032.

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