Recklessness, Agent-Relative Prerogatives, and Latent Obligations: Does Belief-Relativity Trump Fact-Relativity with Respect to Our Rights?

Abstract

Are our rights—to our bodily integrity, to our possessions, to the goods and services promised us, and so on—matters of fact, or are our rights functions of others’ beliefs about how their acts will affect our rights? The conventional view states that subjective oughts—based on what we believe—determine culpability, whereas objective oughts—based on the facts—determine permissibility. After all, the idea that our beliefs about how our acts would affect others’ rights might affect the contours of those rights themselves appears deeply paradoxical. For how can others’ rights be based on our beliefs when those beliefs have as their objects not themselves but others’ rights? Nonetheless, paradoxical as that position may appear, a strong case can be mounted in its defense, not by focusing on the rights themselves, but by focusing on the acts that imperil those rights. It is the burden of this essay to make a case for the belief-relativity rather than the fact-relativity of rights.

1 Prelude: Deontological Constraints and Agent-Relative Prerogatives

Assume what I believe to be true, that we may not be coerced by others to serve as the means for furthering the general welfare. Indeed, apart from whether others may coerce us to do so, we are not obligated to serve as the means of others’¹ welfare or even of our own welfare (Alexander, 2019; Walen, 2019).²

The flipside of the Means Principle is an agent-relative prerogative to pursue ends of our choosing irrespective of whether those ends further the general welfare. Even if, had we chosen, we could have benefited society a lot by, say, becoming an accomplished surgeon, we are at liberty to choose instead to be, say, a less than mediocre artist.

Of course, the liberty our agent-relative prerogative grants us is not unlimited. Far from it. For some—the fact-relativists–the basic limitation on that liberty is this: We may not act in a way that harms others’ morally protectable interests–their physical wellbeing, their property, or their exercises of their prerogatives. For a belief-relativist, on the other hand, the basic limitation of the liberty granted by our agent-relative prerogative is that we must not act in a way that imposes what we believe are undue risks to others’ morally protectable interests. What counts as an undue risk will be a function of the degree of risk to others’ interests, the nature of the interests put at risk, and the reason or reasons of which the actor is aware for acting in the risk-imposing manner. And the risk in question will be the actor’s estimate of it, not someone else’s estimate nor some objective notion of it.³

For example, Sam is driving to a business meeting. He is doing so in a way that would be considered quite safe: He is observing the speed limit; his car is in fine condition; visibility is excellent; and he is staying in the right-hand lane, which is proper. Nonetheless, like almost any activity, driving, even doing so as safely as possible, imposes risks on others. And so as Sam approaches a blind curve, around the curve, Agatha has had a seizure and has fallen unconscious in the right-hand lane. Sam naturally would estimate the risk of his killing anyone by driving around the curve in the right-hand lane to be extremely low. But an observer, Paul, situated at the apex of the curve and able to see both Sam and Agatha, would estimate the risk of Sam’s killing Agatha to be quite high. Paul can also see that there is no oncoming traffic, so that had Sam driven around the blind curve in the left-hand lane, he would not have endangered anyone—though because he did not know this, he would have been highly culpable for doing so. If Sam does, in fact, kill Agatha, he will not be culpable for having done so. It would appear that he was exercising his prerogative properly. But was he?

This example illustrates the distinction between risks, which are belief-relative (i.e., credences), and the outcomes that are risked, which are fact-relative. Risk itself, apart from quantum phenomena, is belief-relative. It depends on the information the risk-taker possesses and how he processes that information. There is no such thing as objective risk or true risk. Risk is subjective and epistemic, not objective and ontic. And that is why Sam’s estimate of the risk that he would kill someone would differ from Paul’s; the information each possesses is different.

So does our agent-relative prerogative demand that we not harm others’ morally protectable interests? Or rather, does it demand that we not put those interests at undue risk of harm, with the level of risk we are imposing being our subjective estimate of that level?⁴ (The same question applies to the reasons we have for acting as we do: We assign a probability for realizing the benefits we are seeking in so acting, benefits that might justify the risks we are imposing on others, but benefits that may not, in fact, be realized despite our estimate of their high probability.)

2 The Case for the Belief-Relativity of Agent-Relative Prerogatives

2.1 The Agent-Relative Prerogative and Obligations to be the Means for Others’ Welfare

If one never made promises to others, never owed others compensation for past wrongs, never had a spouse or children, and never had an opportunity to effect an easy rescue, then the only limitation on one’s agent-relative prerogative might be the one described above, namely, not to impose undue risks of harms on others. But the scope of the Means Principle and its agent-relative prerogative flipside can be reduced in the ways the previous sentence suggests. One may voluntarily choose to be the means for another’s welfare. For example, one can commit to being a lifeguard, being another’s bodyguard, being a babysitter or guardian, helping another move furniture or paint a house, and so on in an indefinite number of ways. Or one can marry and have children, in which case one acquires an obligation to act as the means for furthering the welfare of the spouse and children. And many believe that the Means Principle is overridden by a duty to effect easy rescues. To the extent one acquires these duties to further others’ welfare, to that extent the scope of one’s agent-relative prerogative is reduced. When your child needs rescuing from a dangerous situation, you must rescue her if you can.⁵ You have no prerogative to refuse. The same is true when your friend, whom you promised, needs her furniture moved. And so on. You exercised your agent-relative prerogative to have children and to make a promise to a friend, and now your agent-relative prerogative has been limited by the duties you have acquired.

2.2 Agent-Relative Prerogatives and Latent Duties to Others

Suppose Amos has promised Jan to help her move furniture at 1:00pm. How does the duty Amos has acquired to Jan affect Amos’s exercise of his agent-relative prerogative? For instance, suppose Amos would like to take a drive in the country in the morning. Normally, he would have the prerogative to do so. But if he takes that drive, there is a risk that his car will have mechanical trouble and will become stalled in the country, or that he will be involved in an unavoidable accident, or that he will get caught in an unexpected traffic jam. If these or other such risks become actual, Amos will not be able to keep his promise to Jan. But as Amos thinks about such risks, he estimates that they are quite low–so low, that it would seem to be quite unreasonable to deny that he has the prerogative to take the country drive. Just as Sam, the careful driver, may exercise what appears to be his agent-relative prerogative in ways that impose risks of harming others’ morally protectable interests, we should assume Amos may exercise what appears to be his prerogative in ways that impose risks of violating the duties to others Amos has voluntarily acquired. When such risks become “undue” and thus culpably reckless to impose will be, as with Sam’s driving around a blind curve, a function of the interests of others put at risk, the magnitude of the risks to those interest, and the benefits the actor seeks to realize in so acting (discounted by the probabilities that he estimates of their being realized).⁶ And again, the notion of risk here is that of the probability estimated by the actor, not the probability other actors with different information and reasoning abilities would estimate,⁷ and not the “objective” probability of either one or zero, depending on what actually happens as a result of the act in question.

Now, Amos’s duty to Jan is an actual duty, one acquired when Amos promised to help her. But some of our duties to aid others may be latent at the time one acts. Suppose, for example, Al has a 12-year old child, Fred. Fred can swim but is not a strong swimmer. Were Fred to be in danger of drowning, and were Al in position to rescue Fred, Al would have a duty to do so or at least attempt to do so. After all, Fred is Al’s child.

Fred has told Al that he plans to go to the beach and swim in the ocean. Al believes that Fred will not swim out far from shore. However, Al also knows that there are occasional strong riptides, and because of that possibility and others, there is a small but real chance Fred could find himself in danger of drowning, a danger that would be greatly diminished were Al at the beach.

Al, however, does not wish to spend his time at the beach watching Fred swim in the ocean. Al would rather play golf, go to a baseball game, read a second-rate novel, or a number of other things. May he exercise an agent-relative prerogative to engage in activities other than serving as Fred’s lifeguard? Al’s duty to rescue Fred is only latent at the time Al must decide how to spend the time while Fred is at the beach. But, of course, that latent duty may become actual if Fred ends up in danger of drowning, and if it does, Al will not be able to fulfill that duty if he is on the golf course, at the ball game, or at home reading a novel. Surely, however, if Al estimates the risk of Fred’s drowning to be sufficiently low and the pleasures of playing golf, etc., to be sufficiently high, it would be unreasonable to fault Al for leaving Fred to swim on his own. And it would be unreasonable to do so even if Al’s estimate of the probabilities involved proved wrong, and he had a miserable golf game while at the same time Fred drowned. (If the probabilities proved wrong–as probabilities always will–but in the other direction, so that the golf was better than expected and Fred swam without incident, we would not fault Al, given the probabilities he estimated, for playing golf. But for that reason, it would seem we should not fault him if the golf were miserable and Fred drowned.)

So, take another latent duty that might become actual but incapable of being fulfilled if the actor in question exercises his agent-relative prerogative in a certain way. Suppose Alice’s agent-relative prerogative is limited by her having a duty to engage in easy rescues. And suppose in a situation in which Betty faces a harm of a certain magnitude unless rescued, but Carla faces a harm of twice that magnitude, Alice would have a duty of easy rescue to save Carla rather than Betty when she cannot rescue both. Further suppose, then, that at a time when neither Betty nor Carla is in need of rescue, Betty seeks to employ Alice as her bodyguard. And according to the terms of employment, in a situation in which Betty needs an easy rescue and Alice is available, Alice must rescue Betty, even if Carla needs a rescue more than Betty—unless, that is, Betty herself would have a duty to rescue Carla from the harm she faces rather than save herself from the lesser harm. In other words, Alice, in becoming Betty’s bodyguard, is obligating herself not to act (and save Carla) as she would be obligated to act in the absence of being so employed.⁸ (The same analysis would apply if Alice gives birth to a child, Diana, whom she is then obligated to rescue instead of Carla, even if Carla has the greater need. At the time Alice’s duty to Carla is merely latent, Alice’s agent-relative prerogative would seem to permit her to have a child, despite putting Carla at greater risk by doing so.)

If Alice’s latent duty to rescue Carla prohibited her from becoming Betty’s bodyguard, then latent duties to aid others would narrow the scope of agent-relative prerogatives considerably. Al could not play golf during Fred’s swim but would have to accompany him to the beach and constantly monitor Fred’s situation. And in cases in which one has an actual duty, such as Amos’ promise to Jan, one could not take any action that might increase the risk that he would later fail to perform.

Finally, we rightly believe that if someone has a child, he or she has the prerogative to have additional children. Notice, however, that fulfilling the latent duty to aid or rescue to the first child is jeopardized by creating such duties to additional children. Al’s once latent but now actualized duty to rescue Fred may conflict with his once latent but now actualized duty to rescue Fran, Al’s second child.

2.3 Recklessness, Belief-Relativity, Fact-Relativity, and the Agent-Relative Prerogative

One might have noticed that the analysis I gave of Sam’s driving around the blind curve and killing the unconscious Agatha lying in the right-hand lane–the analysis, I said, should perhaps apply to all cases of exercises of one’s agent–relative prerogative in which there’s a risk of harming others’ morally protectable interests–turns out to be exactly the same as the analysis I argued should perhaps apply to exercises of the agent-relative prerogative that put at risk the ability to fulfill actual duties (Amos’s promise to Jan) or to fulfill duties that are only latent at the time one exercises the prerogative but may become actual at a later time (Al’s duty to rescue Fred; Alice’s duty to rescue Carla). In all of these situations, we ask whether the exercise of the putative agent-relative prerogative was reckless. That is, we ask whether given the actor’s estimate of the risk–-of harming others; of violating a duty to aid one has already acquired; of violating a duty that is latent now but could become actual later–-is such that, given his reasons for acting and what he believes is their likelihood of being realized, his imposing the risk that he estimates will be reckless and, by virtue of being reckless, ordinarily culpable. We do not and cannot wait to see whether the actor’s assessment of the risk was correct. Because risk is subjective and epistemic, it will always turn out either to be too low when the harm occurs (or the offsetting benefits fail to occur) or too high when the harm does not occur (or the offsetting benefits do occur). An actor’s recklessness must be determined at the time he acts and on the basis of his estimate of the risk, not someone’s else’ estimate based on different information and reasoning ability. Sam was not reckless and culpable for assuming it was safe to drive around the blind curve in the right-hand lane observing the speed limit, even though Paul would have known it was not safe for Sam to do so. And despite the fact that the “probability” of Sam’s killing Agatha will turn out to be 100% if he does kill her, Sam arguably exercised his agent-relative prerogative correctly. He was not reckless, and for that reason, his driving was a proper exercise of his agent-relative prerogative–or so a belief-relative conception of the agent-relative prerogative would conclude.

If recklessness sets the limit of one’s agent-relative prerogative in the case of harming others, it would seem that it should also set the limit of one’s agent-relative prerogative in the case of duties to aid others. If one acts nonrecklessly with respect to the risks of not fulfilling affirmative duties to aid, then one is acting within the scope of one’s agent-relative prerogative, whether those “risks” turn out to be 100% or zero, as they always will.

Therefore, on the belief-relative conception of agent-relative prerogatives, if one is not reckless, one can drive around blind curves; take a drive before a promised assignment; let one’s child swim alone; become a bodyguard, babysitter, or guardian; and have one or more children. Some people will be harmed, and some who will require aid will not be aided. But those baleful results will not gainsay the fact that nonreckless actors act within the scope of their agent-relative prerogatives.

Here is another reason that counts against those who believe that the scope of agent-relative prerogatives must be fact-relative rather than, as the above analysis concludes, belief-relative: A fact-relative approach will provide absolutely no guidance and can do no useful moral work. If Sam kills Agatha by driving in the right-hand lane, a fact-relativist must deny that he had the prerogative to do so. But because he is not reckless, and because we think all future Sams should drive around blind curves in the right-hand lane, the denial that our Sam had an agent-relative prerogative to act as he did is an inert claim when it comes to Sam.⁹ It leaves everything for him unaffected. And the same is true if Amos gets stuck in traffic, if Al’s golf is terrible and Fred drowns, and if Carla suffers because Alice rescues Betty. If how things actually turn out (fact-relativity) rather than actors’ estimates of the probabilities of these results (belief-relativity) determines the scope of actors’ agent-relative prerogatives, then denying that the reckless actor had an agent-relative prerogative to act as he did tells us nothing useful. It furnishes no guidance to actors and no basis for assessing their culpability. Only the recklessness criteria do so, and nothing else appears to matter.

A final point. Not only is fact-relativity incapable of providing guidance to those who, like the actors in my various hypotheticals, do not know what fact-relativity prescribes and must rely on their fallible credences regarding the facts. Sometimes it will be culpable for an actor not to act in a manner that he knows is contrary to what fact-relativity prescribes. An example is this: The actor knows that either pill A or pill B will provide a 100% cure and the other will cause certain death, but he does not know which pill is the cure and which pill is deadly. He also knows that pill C will provide a 90% cure and is completely safe. In such a situation, it will be culpable for the actor not to choose pill C, even though the actor knows pill C is not fact-relative permissible.¹⁰ And if it can be culpable to choose what one knows is not fact-relative permissible, that by itself should cause one to doubt that permissibility is fact-relative.

2.4 Recklessness, Culpability, and Excuses

I have to this point stressed the belief-relative conception of recklessness and the lack of culpability of those whose acts are not reckless. Here, however, I want to point out that the belief-relative conception of the agent-relative prerogative tracks lack of recklessness and not lack of culpability. For some actors can be reckless, and therefore acting beyond the scope of their agent-relative prerogative, but not be culpable. This is true not only for those who lack culpability because of some incapacity, such as insanity. It is also true for those who are subject to duress–who act because they are threatened by others, or who face other great dangers to themselves or their family members. An actor may be reckless–taking a risk of harming others that he believes is of sufficient magnitude to render his act unjustifiable–and yet not be culpable for doing so. For example, the threat he perceives he is faced with if he does not take the reckless act may be sufficient to excuse him for taking it but not sufficient to justify him for doing so. His act may use another as a means for his escaping the threat and thus be unjustifiable for that reason. Or he may choose the greater, not the lesser evil, to avert a threat. At the same time, the threat he perceives if he does take such acts may be such that, in the terms used by the Model Penal Code,¹¹ a person of reasonable firmness in the actor’s situation would succumb to it. His act will therefore be unjustifiable and hence reckless, but it will not be culpable. And it is lack of recklessness, not lack of culpability, that defines the scope of the agent-relative prerogative on the belief-relative conception of it.¹²

3 The Case for the Fact-Relativity of the Agent-Relative Prerogative

I have set out the case for denying the relevance of fact-relativity. But an opponent of this view will argue that permissibility, as opposed to culpability, must be fact-relative, and that if an act is not permissible, it cannot correctly be said to be within the agent’s agent-relative prerogative. Permissibility, she will argue, turns on the facts, not beliefs, and exercises of the agent-relative prerogative are acts that must be permissible. We possess no agent-relative prerogative to act impermissibly. So Sam is not acting permissibly and within his agent-relative prerogative when he drives around the blind curve in the proper lane and within the speed limit. That is because Agatha is in that lane and will be killed by Sam. Although Sam is surely not culpably reckless, the proponent of fact-relativity will contend that recklessness and her fact-relative conception of the agent-relative prerogative are two different things.

What, if any, are the practical implications of separating recklessness, which is belief-relative, and permissibility, which is fact-relative? Here’s an example of the type that the fact-relativist might have in mind. Al is about to flip on a light switch. He believes it is an ordinary light switch and extraordinarily unlikely to be rigged to explode a bomb. Alice, however, believes that the switch is rigged to explode a bomb, one that will kill several people. She can, let us assume, stop Al from flipping on the switch by tasing him, causing him severe pain, but preventing several deaths. Because Al will not be acting permissibly, though nonrecklessly, on a fact-relative account of permissibility if the light switch is in fact rigged to a bomb, Al can be forcibly prevented from flipping the switch by Alice.

Does this show that a fact-relative account of agent-relative prerogatives has practical implications? It is not clear. Alice believes that the switch is rigged to a bomb. And she may be correct. But suppose she is wrong. Suppose the switch only appears to be rigged to a bomb. In that case, Alice would still believe she should taser Al, and she will not be culpably reckless for doing so. In some circumstances, she might be culpable if she does not taser him. In such circumstances, on the fact-relativist account of permissibility, she will be culpable for acting permissibly, as would Sam were he to drive recklessly around the blind curve in the left-hand lane!

The fact-relativist would concur but say Alice, if she is mistaken about the bomb, does not act permissibly and within her agent-relative prerogative. But what does the fact-relativist believe turns on that conclusion? Must Alice apologize to Al for acting as we would hope she would act given what she believed? Must the apology depend on whether experts agree that the rigging of the bomb was done well enough so that it was possible—but not certain—that it would have exploded?

Take another example. Suppose you always drive to work on Elm Street. It is, by two minutes, a faster route than Maple Street. Suppose there is a pond next to Maple Street. And suppose one day a small child drowns in that pond. You would have noticed that child and been able to rescue him had you driven down Maple Street to work, had you left your house at eight pm sharp, and had you glanced out your car window at the pond. None of these requirements—the route, the time of the trip, the looking at the pond, and the rescuing the child from the pond—in combination, deny that this would have been an easy rescue, and thus not within your agent-relative prerogative to avoid if the agent-relative prerogative is fact-relative. Would you then be required to apologize to the child’s parents for not rescuing the child? You did not act permissibly by driving to work on Elm Street, or so the fact-relativist must argue, even though you did not believe you were shirking an easy rescue on Maple Street. But many would think an apology would be undeserved in such a case, which, if correct, would render the fact-relative view of agent-relative prerogatives practically inert in such a situation.¹³

Still, proponents of a fact-relative conception of permissibility may not be satisfied. They might concede that belief-relativity is true of agent-relative prerogatives when it comes to duties to aid. Perhaps the duty of easy rescue limit on agent-relative prerogatives is quite different from the other limits, such as those created by promises and avoiding physical injuries to others. For if Amos acts non-recklessly but nevertheless gets caught in traffic and fails to meet Jan for lunch, will he not owe her at least an apology despite his lack of culpability? Similarly, will Sam not owe Agatha’s parents an apology despite his lack of culpable recklessness? And surely, if Amos had not merely made a promise to Jan but had actually contracted with her and caused her to lose money when Amos failed to appear, then would Amos not owe Jan more than just an apology? Nonrecklessness does not relieve contractors of their contractual obligations. Do these examples not demonstrate that permissibility in such scenarios is fact-relative rather than belief-relative?

Perhaps, but perhaps not. Let me take up the apology issue first. It is true that in our culture, there are occasions when an apology is expected, even when the one offering the apology acted nonrecklessly and thus nonculpably. Often, as for example, when a crowded subway car shakes and causes a person to jostle the person next to her, the former will often utter “I’m sorry” or “I apologize.” And perhaps just as often, the latter will reply, “no apology’s necessary.” The apology, rather than conceding impermissibility, indicates that the apologist regrets the event and any discomfort caused.

So let me turn then to cases such as that of a nonreckless breach of contract or a nonreckless misreading of another’s consent. The latter consists of cases such as when one takes property that one nonrecklessly believes, erroneously, that another has abandoned, or when one sexually touches another and nonrecklessly believes, erroneously, that the person touched had consented. In these cases, does the fact that the actor is not acting recklessly mean, as the belief-relativist maintains, that the act falls within the actor’s agent-relative prerogative despite its being a breach of contract, an appropriation of an other’s property, or a non-consented-to sexual touching? Even if an affirmative answer seems plausible in the case of the duty of easy rescue, does it not seem less plausible in these cases?

I think the reason it seems less plausible is because we think people can take defensive and restorative action against nonreckless actors whose beliefs differ from the beliefs of those taking the defensive and restorative actions, particularly when the beliefs of the latter turn out to be correct. In the cases of Sam’s driving around the blind curve, or Al’s flipping the light switch, we can imagine that Paul, who is at the apex of the bind curve and believes Sam will kill Agatha if not stopped, and Alice, who believes the light switch is rigged to a bomb and will cause an explosion if switched on, may act to stop Sam and Al. But their beliefs, like Sam’s and Al’s, can be mistaken. Agatha may get out of Sam’s way in time. Or the light switch may only appear to be rigged to a bomb but not actually be so. Paul and Alice, like Sam and Al, may be acting nonrecklessly. But their beliefs can be mistaken. And because they act preemptively, the facts regarding what would have happened had they not acted may never be known with certainty. Fact-relativity can do no work in such cases.

In the cases in which one’s rights turn on a past fact, such as a contract, or on facts about which one is unlikely to be mistaken, such as the mental states determinative of abandonment and consent, fact-relativity might seem to play an essential role in delimiting the scope of others’ agent-relative prerogatives. That role, however, will be a remediable one, not one that can guide the nonreckless agent and preclude her violating the contract, taking the property, or touching without consent. She will be obligated to pay damages for the contractual breach, return the property she erroneously believed to have been abandoned, and perhaps make some amends for the nonconsensual sexual touching. But I see no role for fact-relativity beyond this remediable one, and not even that role when it comes to the duty of easy rescue limitation on the agent-relative prerogative.

Nevertheless, does not this remediable role for fact-relativity demonstrate that the rights in question are independent of others’ beliefs about them? After all, in these cases, the remedies are imposed because the rights were violated regardless of whether the violators acted recklessly. On the other hand, at the time the remedy is imposed, the beliefs about the rights and the facts about the rights are in accord. “I now believe I did not perform the contract.” “I now believe this item I took is really your property.” “I now believe you did not consent to my touching.” “And during the times I was acting nonrecklessly, I always believed that if I failed to perform a contract, or innocently took another’s property or touched another who had not consented, I would be obligated to pay damages, return the property, and at least apologize.” So the remediable role in such cases does not disprove the belief-relativity of the rights and the agent-relative prerogatives that affect their contours. And, of course, it is doubtful that there is a role for remedies in cases of nonrecklessly forgone easy rescues and nonrecklessly forgone duties to members of one’s family, or, as I shall argue below, in nonreckless preemptive acts. Finally, as I point out in Part IV, the law itself does not reflect the fact-relativity of rights.

The fact-relativist might also object that belief-relativity runs afoul of the well-supported (but not uncontroversial) idea that the permissibility of an act cannot depend on the intention of the actor. Recklessness, however, does not turn on the actor’s intention but on his beliefs. So long as Sam did not believe that his driving posed an undue danger to Agatha, he was not acting recklessly, even if coincidentally his purpose in driving safely as he did was to kill her. The fact-relativist might reply that even if the actor’s intention doesn’t matter, basing the permissibility of his act on his beliefs is objectionable for the same reason that basing it on his intention is objectionable. But such a reply would beg the very question at issue here, which just is whether agent-relative prerogatives can be belief-relative.

Still, the fact-relativist has one more arrow in her quiver. Yes, she might concede, people can only act based on what they believe are the facts, beliefs that will often prove erroneous. And if they do not act recklessly, then if their acts do transgress others’ fact-relative rights, they are surely blameless for having done so. But that is not to deny that they acted impermissibly. They are excused for having acted as they did. But they did not act permissibly. They were subjectively justified but not objectively justified.

So the fact-relativist’s strategy on this account is to give blanket excuses to all actors who violate fact-relative rights but do so nonrecklessly. This strategy may succeed, but at a very high price. Consider the missed rescue on Maple Street. Did you really act impermissibly in driving to work on Elm Street? Or if a parent decides to have a second child, who then needs an easy rescue at the expense of a rescue of the first child, did the parent act impermissibly in having the second child? Would the sacrifice of not having the second child mean the rescue of the first child would not have been an easy one? These are the kinds of questions the fact-relativist would have to answer.

Moreover, will this strategy for saving fact-relativity work when it comes to preemptive acts, such as acts in self- or other-defense, or acts that cause harm but are taken to avert a feared greater evil? The one who acts in self- or other-defense acts before the one against whom she is acting has committed the act the defense is intended to avert. But would the putative attacker have actually attacked, as the defender feared? Would the attack have been successful? Successful self- or other-defense prevents us from ever knowing with certainty. So whether the defender’s act was fact-relative permissible, as opposed to belief-relative nonreckless, is something we will never know¹⁴—just as Paul cannot know if he harms Sam to avert the feared greater harm to Agatha whether the latter harm would actually have occurred had he not acted, and just as we cannot know at the time we do so whether having the second child, signing up to be Alice’s bodyguard, or driving to work on Elm Street is permissible.

Indeed, this point about preemptive acts generalizes, as the previous sentence indicates. The fact-relativist will have to give an account of what the facts would be in the counterfactual world in which the nonreckless actor acts differently. If Al had gone to the beach with Fred, would Fred have swum even farther out than he did, so when he begins to drown, Al would have been unable to reach him? Similarly, if Alice had not agreed to be Betty’s bodyguard, would she even have been in Carla’s vicinity when Carla needs rescuing? And if you hadn’t driven to work on Elm Street, would you have driven there on Maple Street? Or would the reason you were not driving on Elm Street be that you were at home with the flu?

The fact-relativist must perforce engage in the murky enterprise of conjuring up nearest possible worlds and telling us what’s in them. In the nearest possible world in which Sam does not kill Agatha, what does he do, and with what consequences? The fact-relativist turns out not to engage with the factual but with the counterfactual. That in itself, aside from the point about normative guidance, is a good reason to tether agent-relative prerogatives and permissibility to actors’ beliefs.

Finally, here is a point not generally recognized if permissibility is to be tethered to the facts and not to actors’ beliefs about the facts. For if one is a threshold deontologist and believes that consequences of a certain magnitude can override rights, then one can never be certain about an act’s permissibility apart from the worry expressed above about preemption and counterfactual worlds. For future consequences, even those in the distant future, can reveal that an act deemed permissible today is actually impermissible. In other words, if we are threshold deontologists, we can never tell on a fact-relativist account of permissibility which acts are actually permissible and which are not.

4 The Curious Shape of Rights on a Belief-Relative Account of Agent-Relative Prerogatives

If agent-relative prerogatives are, as I have been suggesting, relative to the beliefs of the agents whose prerogatives they are, and not to the facts about how their acts will turn out, what does this say about the rights of those whom the exercises of the prerogatives might affect? Does Agatha not have a right not to be run into by Sam’s car? Does Jan not have a right that Amos show up for lunch as promised? Does Fred not have a right to be rescued by Al? Does the drowning infant in the Maple Street pond not have a right to be easily rescued? Does one who has not abandoned one’s property not have a right not to have that property taken by another? Does one who has not consented to a sexual touching not have a right not to be so touched? And so on and so on.

The answer the proponent of the belief-relativity account of agent-relative prerogatives must give is this: The boundaries of the rights we have are not fixed. They are relative to others’ beliefs about how their acts risk crossing those boundaries. Of course, this looks paradoxical: The risks in question are risks to fixed boundaries and yet the boundaries, per hypothesis, are not fixed. Yet paradoxical or not, this is what the above analysis suggests is the case.

Consider, for example, how the law of torts treats the property and persons involved in auto accidents. If in driving, Alice culpably takes undue risks of damaging Sue’s car and injuring Sue, and the result is that Alice does damage Sue’s car and injures Sue, Alice will be liable to Sue for the damage she caused. On the other hand, if Alice drives without taking undue risks, but she nonetheless damages Sue’s car and injures Sue, she will not owe Sue a penny. What does this show about how tort law regards Sue’s rights regarding her property and her person? The risks Alice perceives are risks of damaging Sue’s car and injuring Sue, suggesting Sue’s rights have fixed boundaries. But so long as the risks Alice perceives do not render her at fault for taking them, Sue must suffer any losses Alice’s driving imposes – which suggests Sue’s rights are relative to the risks to them Alice perceives.¹⁵ Or at least that is what tort law implies.

I do not think one should be troubled by this apparent paradox. Our rights have fixed boundaries insofar as they figure in others’ calculations of the risks to those rights they are imposing. But our rights have fluid boundaries in that they are responsive to the others’ risk calculations, calculations that will vary from actor to actor and that will always be either too high (if the risked harms do not eventuate) or too low (if they do). If the actors are not reckless; if their perception of the risks to others’ rights and the reason they perceive for taking those risks do not render them reckless for doing so; then if their acts eventuate in harm, they have not violated the rights of those harmed. Those rights are belief-relative, not fact-relative.¹⁶

5 What About Negligence?

A reviewer of an earlier draft criticized the emphasis on the actor’s beliefs as the key to permissibility on the ground “ that beliefs can be, not only false, but formed lazily, cavalierly, myopically, self-servingly, etc.,” and that “negligence doesn’t make an appearance.” In short, beliefs that would render an actor negligent should negate the permissibility of his act—or so the critic implies.

My response to this criticism is two-fold. First, and most important, even if we were to exempt negligent acts as well as reckless ones from permissible exercises of agent-relative prerogatives, this would not suffice to establish that permissibility is fact-relative. For if the actor’s beliefs do not make his act either reckless or negligent, then his act would be permissible on a belief-relative account no matter how the facts turn out. Excluding negligent acts does not suffice to establish the fact-relativity of permissibility.

Second, and somewhat as an aside, at any given time, one can act only on the beliefs one has at that moment, no matter how those beliefs were formed. One might have acted culpably in forming those beliefs. One might have skipped an important lecture for no good reason, or failed to set up a reminder of an important meeting out of laziness, and so on.Such failures might be reckless and thus not belief-relative permissible were one cognizant of their riskiness. But the fact that one’s present beliefs owe their origin to past reckless conduct does not mean that acting on those beliefs is itself impermissible. Nor does the fact that the negligent actor has “evidence” that his estimate of the risks he is imposing render his acting on that estimate criticizable, a point I elaborate in the Appendix. This is why many scholars deny that negligence, as opposed to recklessness, is culpable (Moore & Hurd, 2011; Alexander & Ferzan, 2009). In any event, to repeat my earlier point, even if negligence were culpable, this would not vindicate the fact-relativity of permissibility.

6 Conclusion

The fact-relativist regarding permissibility and the agent-relative prerogative may not be satisfied by my case for belief-relativity. She may insist that when Sam hits Agatha, when Amos gets caught in traffic and stands up Jan, when Fred and the infant in the pond drown, and so on through my other examples, the ones whose acts led to those results, despite not having been reckless and thus culpable given their beliefs, acted impermissibly and not within the scope of their agent-relative prerogatives. The fact-relativist may admit that her verdict has no practical payoff, and that she would have acted no differently from how Sam and the others acted. But she will insist that none of the actors had a prerogative to act as they did.

I humbly disagree. Facts do play a role. They are what our beliefs are oriented towards. But ultimately, we can only act on our beliefs. Whether our acts are permissible in a fact-relative sense are what we hope for,¹⁷ but whether our acts are reckless, which is belief-relative, is all of which we can be certain. Tethering our agent-relative prerogative to a fact-relative notion of permissibility would have few practical implications that I can foresee. And because the agent-relative prerogative is a practical notion, I think it is generally proper to define its scope by recklessness. And thus defined, it and in some sense the rights it collides with are belief-relative.¹⁸

Appendix

1.1 The Misleading Contrast between Belief-Relative and Evidence-Relative

Much of the literature distinguishes among three relations between a person and a particular state of the world. One is what the person believes about that state of the world, whether with certainty or with a degree of credence less than certainty. That state of the world is thus said to be belief-relative. Another is what that state of the world actually is in fact. That state of the world is thus said to be fact-relative. But a third relation is also said to exist, namely, what the person should believe about that state of the world given the evidence he possesses. That state of the world is thus said to be evidence-relative.

My focus here is on this last relation, evidence-relativity. I contend that what evidence a person possesses that is different from what the person actually believes and also different from what is true is inherently indeterminate and can only be specified arbitrarily. And because it can only be specified arbitrarily, it cannot be normative for the believer. In other words, we cannot morally criticize a person for believing X by virtue of pointing to the evidence he possessed that X was not true.

I shall illustrate this point with a few examples. Suppose Joe observes a large dark mole on Ann’s back. Does Joe have evidence that Ann has melanoma? Well, if Joe were a dermatologist or had otherwise learned the signs of skin cancers, Joe would recognize that Ann’s mole was indeed melanoma. But, if Joe never learned the signs of skin cancer, the mole would not appear to him to be anything of concern. In other words, whether Joe possessed evidence of Ann’s melanoma is completely dependent on the information Joe already possesses.

Of course, it might be the case that Joe would have recognized the signs of melanoma had he attended a cancer screening clinic held near his home. Or perhaps Joe had known the signs of melanoma but had forgotten them, and had he taken certain steps to avoid forgetting them, he would not have done so. The point, however, is that regardless of whether Joe can be criticizable for not having attended the clinic or for not taking steps to avoid forgetting the signs of melanoma, at the time he observes the mole on Ann’s back, the information he possesses or can access at that time does not cause him to see it as evidence of melanoma.

The same point that applies to information also applies to skill at processing information. Suppose Jane, a schoolteacher, does not understand how to calculate probabilities. So, she is asked what the chance is that two children in her classroom of forty children have the same birthday. She divides forty into three hundred and sixty-five and concludes the chance is approximately one in nine. In fact, the chance is better than even. Did Jane have evidence of that? I believe we must say that although a mathematician would have evidence of that, Jane, given her skill set, did not.

The more general point is that at the time the actor forms a belief, that is how the evidence appears to the actor, irrespective of how it would appear to someone with different occurrent information and skills. Even if in some sense one possesses the relevant information and skill, one may be unable to access or process them appropriately because of a lapse of memory, fatigue, distraction, anxiety, and any number of other factors. In such cases, the information and skill are not occurrent.¹⁹

Evidence is thus relative to occurrent information and skills. For that reason, there is no person-neutral conception of evidence. And that is why evidence-relative beliefs either are just the actual beliefs of the person in question or else are the beliefs some arbitrarily constructed person with different occurrent information and skills would have formed. We would do best to dispense with the notion of evidence-relative beliefs. And because the putatively culpable concept of negligence is based, not on what the actor believes, but on the actor’s failure to advert to “evidence” he possesses, we should dispense with it as well.²⁰