Skip to main content
SpringerLink
Log in

Does excusable ignorance absolve of liability for costs?

  • Published:
Philosophical Studies Aims and scope Submit manuscript

Abstract

Excusable ignorance not only undermines moral culpability but also agent-responsibility. Therefore, excusable ignorance absolves of liability for costs. Specifically, it defeats liability that is meant to be derived from causal responsibility wherever strict liability cannot be justified. To establish these claims this paper (1) assesses the potential of arguments for liability of excusably ignorant agents and thereby demarcates the proper domain of strict liability and (2) traces the intuition that seemingly supports strict liability accounts to more general principles. The paper concludes that liability cannot be justified in cases of excusable ignorance. Finally, it (3) stresses that although excusable ignorance defeats the link from causal responsibility to liability for costs this does not imply that victims are left to fend for themselves.

This is a preview of subscription content, log in via an institution to check access.

Access this article

Log in via an institution

Price excludes VAT (USA)
Tax calculation will be finalised during checkout.

Instant access to the full article PDF.

Institutional subscriptions

Similar content being viewed by others

Notes

  1. The concept of excusable ignorance is discussed by, among others, Smith (1983), Zimmerman (1997), and Rosen (2008). For a classical reference see Aristotle, Nicomachean Ethics, bk. 3, ch. 1.

  2. See e.g. Coleman (1992), Shue (1999), Risse (2008), Bell (2011), and Zellentin (2015).

  3. For prominent discussions of the liability for historical emissions in the context of excusable ignorance see Shue (1999: 536), Neumayer (2000: 188), Singer (2002: 34), Gardiner (2004: 581), Caney (2010: 208–210), and Bell (2011: 394–396). However, note that reasons beyond liability for costs may make historical emissions matter. See Meyer (2013).

  4. In my understanding of excusable ignorance I build upon the account of Rosen (2003: 63, 2004: 300–301, 2008: 609). However, while Rosen focuses on moral culpability I develop the account to cut deeper and negate agent-responsibility as well (on that concept see Sect. 3.1). This is achieved by assuming ignorance that not only extends to wrong-making but to all relevant features of acts.

  5. I am disregarding rare cases where an agent is excusably ignorant although she did not fulfill her procedural epistemic obligations because fulfilling those obligations would not have yielded true belief.

  6. For informative discussions of the reasonable person and related concepts in the law see Peters (1981), Davies (1998), Wright (2002), as well as Miller and Perry (2012). For a well-known application see Rosen (2004). Peters (1981), Rosen (2004), and others actually refer to “reasonable prudence” or the “reasonably prudent person” as opposed to the “reasonable person”. Given that prudence is generally not taken to entail concern for others these terms may be misleading. In this paper I refer to the “reasonable person” or the “reasonable agent” upon the meaning of which I elaborate below.

  7. Zimmermann (1997: 423) and Rosen (2003: 64) reject the notion that moral importance attaches to the difference between empirical and normative ignorance. Fields (1994), Guerrero (2007), and Harman (2011) disagree. The exculpatory power of excusable empirical ignorance is seldom challenged. This is not true for the exculpatory power of moral ignorance. See Guerrero (2007) and Harman (2011).

  8. See e.g. Vallentyne (2009: 87).

  9. Note that this does not imply that the individual agent foresees that particular damages will result from her acts. Under those circumstances fault and strict liability would deliver the same result.

  10. For the related claim that excusable ignorance precludes moral culpability see, for example, Zimmermann (1997: 424) and Rosen (2003: 74–75, 2004: 300).

  11. These three conditions are related to, though not identical with, those developed by Vallentyne (2011: 177). See also Vallentyne (2008: 58–61; Vallentyne 2009: 87–88).

  12. Note, that in opposition to the objective interpretation of fault in standard legal fault liability, I rely upon a subjective interpretation of actual fault. This avoids establishing fault liability without actual fault and, therefore, integrating a form of strict liability into fault liability. See Coleman (1992: 228).

  13. On an extended notion of autonomy one may even claim that autonomous choices are undermined by the absence of true belief. For example, if I were to have exclusively false beliefs about the world in which I am to choose and act it may not be altogether clear that my choices and actions are autonomous in the relevant sense.

  14. An actual case of this sort is the metabolism deficiency phenylketonuria which makes a normal diet potentially toxic. See Hausman (2015: 11). However, due to the relatively high number of incidences, infant screening is commonly available in many countries.

  15. A similar rationale is reflected in Good Samaritan laws that significantly reduce the liability of bystanders who administer first aid so as to remove a disincentive to provide help. Such laws exist in many jurisdictions in the U.S. and Canada. As an example consider Ontario’s Good Samaritan Act, 2001.

  16. Reasonable care should not be understood as a simple reference to normality. Normal behavior may very well be unreasonable and the reasonably prudent person may well have good reasons to challenge the status quo.

  17. On the presumption against shifting harms see e.g. Holmes (1881) and McMahan (1994: 252–256).

  18. Here I am disregarding cases in which the legal body that disseminates this information is unreliable. The announcement of strict legal liability may either itself not be credible from the perspective of a reasonable person or, alternatively, the proclaimed risks associated with the regulated activity may be unrealistic.

  19. However, particular considerations—which are not critical to this discussion—such as which party has the burden of proof in the courts continue to distinguish strict legal liability from fault liability.

  20. Although I limit myself to the discussion of strict liability as a concept that either does or does not apply, there may be good reasons to make its application more context sensitive. Just as “foreseeability” and “abnormal dangerousness” come in degrees, strict liability may also be applied to varying extents. For example, an activity that is perceived to be only somewhat more dangerous than “usual” could be regulated under a regime of limited strict liability whereby one portion of the damages is regulated under strict liability and the other portion is regulated under fault liability.

  21. While nuclear power plant operators are usually strictly liable for damages they cause, that liability is capped e.g. in the U.S.A. See the Price–Anderson Nuclear Industries Indemnity Act.

  22. Note that I raise this point not against Caney in particular but in order to trace a specific intuition. Caney presents a principle of liability that is sensitive to poverty (Caney 2010: 218).

  23. For arguments in favor of the beneficiary-pays principle see e.g. Page (2012) and Lawford-Smith (2014). For a dissenting view see Caney (2006: 471).

  24. For an explication of the claim that examples used to elicit support for the beneficiary-pays account, lend support to luck egalitarianism just as well see Knight (2013).

  25. A complication may arise depending on how precisely one interprets “benefitting from an activity”. If such benefitting is, implausibly as I would argue, limited to “benefitting from engaging in that very activity” the case of the Devastating Jumping Jacks cannot shed light on the relevant distinction because Jill, in that sense, does not benefit from the activity of treading on that particular spot on the beach. If, however, one understands “benefitting from an activity” as including benefits derived from others engaging in the activity the case allows for an important differentiation. For evidence that the inclusive interpretation is relied upon in the discussion of the beneficiary-pays principle see e.g. Page (2012: 306–307) and Moellendorf (2012: 136). Note also that if, following Knight (2013), you prefer the broader luck egalitarianism over the beneficiary pays principle this complication does not even arise.

References

  • 85th United States Congress (1957): Price–Anderson Nuclear Industries Indemnity Act: Act to Amend the Atomic Energy Act of 1954, Pub. L. No. 85-256, 71 Stat. 576 (1957).

  • Bell, D. (2011). Global Climate Justice, Historic Emissions, and Excusable Ignorance. Monist, 94(3), 391–411.

    Article  Google Scholar 

  • Caney, S. (2006). Environmental Degradation, Reparations, and the Moral Significance of History. Journal of Social Philosophy, 37(3), 464–482.

    Article  Google Scholar 

  • Caney, S. (2010). Climate Change and the Duties of the Advantaged. Critical Review of International Social and Political Philosophy, 13(1), 203–228.

    Article  Google Scholar 

  • Coleman, J. L. (1992). Risks and Wrongs. Oxford: Oxford University Press.

    Google Scholar 

  • Davies, S. L. (1998). The Jurisprudence of Willfulness: An Evolving Theory of Excusable Ignorance. Duke Law Journal, 48, 341–427.

    Article  Google Scholar 

  • de Wijze, S., Kramer, M. H., & Carter, I. (Eds.). (2009). Hillel Steiner and the Anatomy of Justice: Themes and Challenges. London: Routledge.

    Google Scholar 

  • Fields, L. (1994). Moral Beliefs and Blameworthiness. Philosophy, 69(270), 397–415.

    Article  Google Scholar 

  • Gardiner, S. (2004). Ethics and Global Climate Change. Ethics, 114(3), 555–600.

    Article  Google Scholar 

  • Guerrero, A. A. (2007). Don’t Know, don’t Kill: Moral Ignorance, Culpability, and Caution. Philosophical Studies, 136(1), 59–97.

    Article  Google Scholar 

  • Harman, E. (2011). Does Moral Ignorance Exculpate? Ratio, 24(4), 443–468.

    Article  Google Scholar 

  • Hausman, D. M. (2015). Valuing Health: Well-being, Freedom, and Suffering. Oxford, New York: Oxford University Press.

    Book  Google Scholar 

  • Holmes, O. W. (1881/1991) The Common Law. New York: Dover Publications.

  • Klass, A. (2004). From Reservoirs to Remediation: The Impact of CERCLA on Common Law Strict Liability Environmental Claims. Wake Forest Law Review, 39, 903–970.

    Google Scholar 

  • Knight, C. (2013). Benefiting from Injustice and Brute Luck. Social Theory and Practice, 39(4), 581–598.

    Article  Google Scholar 

  • Knight, C., & Stemploska, Z. (Eds.). (2011). Justice and Responsibility. Oxford: Oxford University Press.

    Google Scholar 

  • Lawford-Smith, H. (2014). Benefiting from Failures to Address Climate Change. Journal of Applied Philosophy, 31(4), 392–404.

    Article  Google Scholar 

  • Legislative Assembly of Ontario. (2001). Good Samaritan Act, 2001. http://canlii.ca/t/1kbc. Accessed 15.2.2016.

  • McMahan, J. (1994). Self-Defense and the Problem of the Innocent Attacker. Ethics, 104(2), 252–290.

    Article  Google Scholar 

  • Meyer, L. (2013). Why Historical Emissions Should Count. Chicago Journal of International Law, 13(2), 597–614.

    Google Scholar 

  • Miller, A. D., & Perry, R. (2012). The Reasonable Person. The New York University Law Review, 87(2), 323–391.

    Google Scholar 

  • Moellendorf, D. (2012). Climate Change and Global Justice. Wiley Interdisciplinary Reviews: Climate Change, 3(2), 131–143.

    Google Scholar 

  • Neumayer, E. (2000). In Defence of Historical Accountability for Greenhouse Gas Emissions. Ecological Economics, 33(2), 185–192.

    Article  Google Scholar 

  • Page, E. A. (2012). Give it up for Climate Change: A Defence of the Beneficiary Pays Principle. International Theory, 4(2), 300–330.

    Article  Google Scholar 

  • Peters, B. M. (1981). The Application of Reasonable Prudence to Medical Malpractice Litigation: The Precursor to Strict Liability? The Journal of Law, Medicine & Ethics, 9(4), 21–24.

    Article  Google Scholar 

  • Risse, M. (2008): Who Should Shoulder the Burden? Global Climate Change and Common Ownership of the Earth. In: Harvard Kennendy School of Government Faculty Research Working Paper Seriesries.

  • Rosen, G. (2003). Culpability and Ignorance. Proceedings of the Aristotelian Society, 103(1), 61–84.

    Article  Google Scholar 

  • Rosen, G. (2004). Skepticism about Moral Responsibility. Philosophical Perspectives, 18(1), 295–313.

    Article  Google Scholar 

  • Rosen, G. (2008). Kleinbart the Oblivious and other Tales of Ignorance and Responsibility. Journal of Philosophy, 105(10), 591–610.

    Article  Google Scholar 

  • Rowe, C., & Broadie, S. (2002). Aristoteles: Nicomachean Ethics (1. publ). Oxford: Oxford University Press.

    Google Scholar 

  • Shue, H. (1999). Global Environment and International Inequality. International Affairs, 75(3), 531–545.

    Article  Google Scholar 

  • Singer, P. (2002). One World: The Ethics of Globalization. New Haven: Yale University Press.

    Google Scholar 

  • Smith, H. (1983). Culpable Ignorance. The Philosophical Review, 92(4), 543–571.

    Article  Google Scholar 

  • Vallentyne, P. (2008). Brute Luck and Responsibility. Politics, Philosophy and Economics, 7(1), 57–80.

    Article  Google Scholar 

  • Vallentyne, P. (2009). Responsibility and Compensation Rights. In S. de Wijze, M. H. Kramer, & I. Carter (Eds.), Hillel Steiner and the Anatomy of Justice: Themes and Challenges (pp. 85–97). London: Routledge.

    Google Scholar 

  • Vallentyne, P. (2011). Responsibility and False Beliefs. In C. Knight & Z. Stemploska (Eds.), Justice and Responsibility (pp. 174–186). Oxford: Oxford University Press.

    Chapter  Google Scholar 

  • Wright, R. W. (2002). Justice and Reasonable Care in Negligence Law. American Journal of Jurisprudence, 143, 143–196.

    Article  Google Scholar 

  • Zellentin, A. (2015). Compensation for Historical Emissions and Excusable Ignorance. Journal of Applied Philosophy, 32(3), 258–274.

    Article  Google Scholar 

  • Zimmerman, M. J. (1997). Moral Responsibility and Ignorance. Ethics, 107(3), 410–426.

    Article  Google Scholar 

Download references

Acknowledgments

I would like to thank Rüdiger Bittner, Frank Dietrich, Benjamin Huppert, Andrea Klonschinski, Peter Vallentyne, audiences at the universities of Bremen, Düsseldorf, and Manchester, as well as an anonymous reviewer, for their helpful comments.

Author information

Authors and Affiliations

  1. Department of Philosophy, Heinrich Heine University Düsseldorf, Düsseldorf, Germany

    Joachim Wündisch

  2. Institute for Advanced Study, Bielefeld University, Bielefeld, Germany

    Joachim Wündisch

Authors
  1. Joachim Wündisch
    View author publications

    You can also search for this author in PubMed Google Scholar

Corresponding author

Correspondence to Joachim Wündisch.

Rights and permissions

Reprints and permissions

About this article

Check for updates. Verify currency and authenticity via CrossMark

Cite this article

Wündisch, J. Does excusable ignorance absolve of liability for costs?. Philos Stud 174, 837–851 (2017). https://doi.org/10.1007/s11098-016-0708-1

Download citation

  • Published:

  • Issue Date:

  • DOI: https://doi.org/10.1007/s11098-016-0708-1

Keywords

Search

Navigation