In my previous post, Gardner and Duties to Succeed (Part 1), I suggested that Gardner's argument that there may be duties to succeed relies on the following claim:
(G2**): That I am aware that the man needs to be rescued (and horrified by my inability to rescue him) entails that I have a reason to rescue him.In this post, I will argue that (G2**) is much too strong to constitute a plausible premise in Gardner’s argument.
According to (G2**), the fact that I am aware of a need, and horrified by my inability to fulfil it, is sufficient for me to have a reason to succeed in fulfilling that need. This remains true, according to Gardner, even if I have no reason to try because it is impossible for me to succeed in doing so. By parity of reasoning, the fact that I am aware that my daughter has an inoperable brain tumour, and horrified by my inability to cure her, entails that I have a reason to succeed in curing her. Consequently, as far as Gardner is concerned, the sense in which I may be said to have a reason to succeed in rescuing the drowning man (a la the clifftop example) is the same as the sense in which I may be said to have a reason to succeeding in curing my child of an incurable cancer. Undeniably, there is a usage of the locution “I have a reason to…” according to which both of the preceding claims amount to nothing short of platitudes. To wit, there is a sense in which I clearly have a reason to both save the drowning man and to cure my child of cancer. However, I submit that the sense of “I have a reason to…” in which these claims are obviously true is not the sense that Gardner needs for his argument in favour of strict liability wrongdoing to work.
The problem with (G2**) is that it makes the sufficiency condition for possessing a reason to succeed so low that the notion of reasons to succeed is no longer able to play the type of normative role Gardner wants it to play. In his paper, Gardner’s strategy is to argue that failing to live up to one’s reason to succeed represents a certain type of rational shortcoming. He then attempts to generalise from reasons simpliciter to reasons that are both categorical and mandatory (i.e., duties); with the upshot of his argument being that there are duties to succeed. Such duties to succeed are then supposed to form, not only a rational basis, but also a moral justification for the legal notion of strict liability. But before we can get to the conclusion that there is strict liability wrongdoing, we must first buy into the idea that, in the clifftop example, I am guilty of some rational shortcoming. However, once we generalise the point to cases like the inoperable tumour example, the claim that I am guilty of a rational shortcoming begins to seem much more tendentious. The conclusion that I am guilty of a rational shortcoming because I am unable to cure my child of an incurable disease seems surprising, if not counterintuitive.
Gardner attempts to ameliorate the unpalatableness of the above conclusion by drawing a distinction between “performing a morally deficient action” and “being a morally deficient person”. Having extended the notion of reasons to succeed to include duties, he maintains that not all failures to fulfil one’s duty reflect poorly on the agent. By his lights, the clifftop agent performs a morally deficient action but does not, therefore, constitute a morally deficient person. Presumably, Gardner would take this distinction to apply to rational conduct as well; so we may suppose that a distinction may also be drawn between performing a rationally deficient action and being a rationally deficient person. On this view, by failing to cure my child of cancer, I have performed a rationally deficient action, but I do not, therefore, constitute a rationally deficient person.
While the above distinction seems plausible in its own right, it only seems to push the present objection one step back. Insofar as performing a rationally deficient action is supposed to implicate some type of blame (however small), it would be a mistake—perhaps even offensive—to call my inability to cure my child’s cancer a rationally deficient action. However, if we hold that rationally deficient action implicates no blame at all, then it is not clear that it can serve as a basis or justification for strict-liability wrongdoing. For even if we hold that the transgression of the strict liability tortfeaser do not reflect negatively on his standing as an agent, we nevertheless hold the agent liable (and, where possible, expect him to make restitution) for the consequences of his actions. Otherwise, there would be no reason for strict liability torts. It follows that, on this picture, my inability to cure my daughter of cancer would entail that I am liable for her death, albeit free of rational or moral reproach. But this conclusion seems patently absurd. We do not hold (nor would we think it appropriate to do so) a parent liable, if their child died of an incurable disease. Thus, Gardner seems confronted with a dilemma. On the one hand, if he defines reasons to succeed in such a way that their violation engenders any type of blame, then his account fails to give a plausible characterisation of cases like the inoperable tumour example. On the other hand, if he characterises reasons to succeed in such a way that they implicate no blame at all, then they no longer lend support to the claim that there is strict liability wrongdoing.
The problem with (G2**) is that it makes the sufficiency condition for possessing a reason to succeed so low that the notion of reasons to succeed is no longer able to play the type of normative role Gardner wants it to play. In his paper, Gardner’s strategy is to argue that failing to live up to one’s reason to succeed represents a certain type of rational shortcoming. He then attempts to generalise from reasons simpliciter to reasons that are both categorical and mandatory (i.e., duties); with the upshot of his argument being that there are duties to succeed. Such duties to succeed are then supposed to form, not only a rational basis, but also a moral justification for the legal notion of strict liability. But before we can get to the conclusion that there is strict liability wrongdoing, we must first buy into the idea that, in the clifftop example, I am guilty of some rational shortcoming. However, once we generalise the point to cases like the inoperable tumour example, the claim that I am guilty of a rational shortcoming begins to seem much more tendentious. The conclusion that I am guilty of a rational shortcoming because I am unable to cure my child of an incurable disease seems surprising, if not counterintuitive.
Gardner attempts to ameliorate the unpalatableness of the above conclusion by drawing a distinction between “performing a morally deficient action” and “being a morally deficient person”. Having extended the notion of reasons to succeed to include duties, he maintains that not all failures to fulfil one’s duty reflect poorly on the agent. By his lights, the clifftop agent performs a morally deficient action but does not, therefore, constitute a morally deficient person. Presumably, Gardner would take this distinction to apply to rational conduct as well; so we may suppose that a distinction may also be drawn between performing a rationally deficient action and being a rationally deficient person. On this view, by failing to cure my child of cancer, I have performed a rationally deficient action, but I do not, therefore, constitute a rationally deficient person.
While the above distinction seems plausible in its own right, it only seems to push the present objection one step back. Insofar as performing a rationally deficient action is supposed to implicate some type of blame (however small), it would be a mistake—perhaps even offensive—to call my inability to cure my child’s cancer a rationally deficient action. However, if we hold that rationally deficient action implicates no blame at all, then it is not clear that it can serve as a basis or justification for strict-liability wrongdoing. For even if we hold that the transgression of the strict liability tortfeaser do not reflect negatively on his standing as an agent, we nevertheless hold the agent liable (and, where possible, expect him to make restitution) for the consequences of his actions. Otherwise, there would be no reason for strict liability torts. It follows that, on this picture, my inability to cure my daughter of cancer would entail that I am liable for her death, albeit free of rational or moral reproach. But this conclusion seems patently absurd. We do not hold (nor would we think it appropriate to do so) a parent liable, if their child died of an incurable disease. Thus, Gardner seems confronted with a dilemma. On the one hand, if he defines reasons to succeed in such a way that their violation engenders any type of blame, then his account fails to give a plausible characterisation of cases like the inoperable tumour example. On the other hand, if he characterises reasons to succeed in such a way that they implicate no blame at all, then they no longer lend support to the claim that there is strict liability wrongdoing.
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