Legal scholars often prescind to moral philosophy to try to solve legal puzzles or paradoxes and to shape the positive law by reference to the seemingly pure and uncluttered lessons derived from within first-order moral theory. This chapter aims to do something quite close to the opposite. By looking at the structure of negligence law and certain concepts within it and by exhibiting their principled bases, it generates possible solutions to some of the problems about negligence that have troubled moral philosophers. These include: whether conduct that would ordinarily be called “negligent” can qualify as a breach of moral duty even if it was solely the product of inadvertence; whether it matters to the blameworthiness of a negligent actor that her conduct caused no harm; and whether a person whose negligent conduct is purely a product of inadvertence can properly be blamed or held responsible for injuring another. In the domain of negligence law, which contains “negligence,” “duty,” and “legal responsibility” in the form of legal liability, the answer to all three analogous questions is emphatically “yes,” and tort law explains why. Moving back to moral questions, we see our way to defensible answers to those questions and we also see why the questions present themselves as so difficult.

I shall, first, adumbrate the sceptical challenge that arises from those views which argue that inadvertent action involves voluntariness in some deep sense of the concept. In a second step, I will suggest that we should not regard inadvertence as a block to a unified picture of moral responsibility. For, responsibility does not require voluntariness in a wholesale manner. Then I will draw on the theory and practice of the law of torts to suggest the plausibility of the distinction between responsibility and standards of fault. Subsequently, I trace a more principled foundation for this distinction in the philosophical literature: Tim Scanlon, drawing on the distinction between blame and permissibility, has demonstrated convincingly that the mental states of agents, which are relevant for determining blame, should not (in principle) feature among the grounds of the permissibility of actions. The argument submits that permissibility is determined by (objective) reasons for action while blame depends on the meaning of actions, which requires reference to (subjective) mental states of agents. I conclude by siding with authors who argue that among the grounds of responsibility is a reason not to act negligently. Notably, this displacement of negligence from voluntariness to the realm of reasons suggests that responsibility entails capacity for rational agency.

Harms brought about through negligence are typically morally blameworthy despite being unintended and often unforeseen. How is this best understood? A natural approach parallels a common approach to blameworthiness for unwitting wrongdoing, i.e., acts performed in ignorance of their wrongness: blameworthiness for the act or harm in question is taken to be derivative from more straightforward blameworthiness for relevant earlier failures. I have argued elsewhere for a derivative blameworthiness approach to unwitting wrongdoing that appeals to reasonable expectations about available steps the agent could have taken to avoid or remedy the ignorance in question; and contra Gideon Rosen and Neil Levy, such claims about reasonable expectations do not depend on there being episodes of clear-eyed akrasia in the agent’s past management of her beliefs, so that the account allows for blame in a much wider range of cases. My aim here is to extend this approach to a variety of forms of negligence, defending a similarly broad reasonable expectations version of a derivative blameworthiness view. In particular, I will distinguish and explore cases involving (i) self-conscious negligence, (ii) negligence involving false beliefs about relevant norms of due care, (iii) thoughtless negligence, and (iv) harms due to pure forgetting – though I will argue that the latter often turn out not to be cases of negligence at all, at least for purposes of moral blame.

This chapter defends three ideas. (1) That negligence is essentially a conative failure to exercise due care. The negligent agent doesn’t care enough about a relevant moral aim. (2) Resultantly, the potential cognitive failures of agents, whether they foresee or fail to foresee certain risks of harm, are only incidentally relevant to their negligence. In this way, (3) negligence is conceptually contiguous with recklessness. The hallmark of both reckless and negligence conduct is an insufficient regard for the legitimate interests of others, and what separates them is better understood in terms of conative differences in how each agent disregards those interests, rather than cognitive differences in advertence. I examine these claims in the context of a puzzle regarding negligence and foresight, and consider the implications of my conclusions for negligence culpability in morality and the traditional hierarchy of mens rea in the law.