In his new book Talking to Our Selves, John Doris (Reference Doris2015b) provides a comprehensive analysis of the age-old discussion about the existence of truly self-determined behavior, agency, and moral responsibility (Cary Reference Cary2007). Although throughout the book the author mainly focuses on the underlying philosophical assumptions and empirical data from the psychology literature that may justify his position (which he characterizes as anti-reflectivist, valuational, and dialogic), I believe that a proper discussion of the pragmatic implications of the paradigm defended by Doris is of paramount importance.
As once contended by Richard Weaver (Reference Weaver1948) in his famous work, Ideas Have Consequences. Therefore, if the philosophical position defended by Doris in his new book is to be taken seriously, it is expected that, similarly to past works on the issue (e.g., Duff Reference Duff1990), the proposed conceptual framework should be able to transcend the purely theoretical realm, ultimately bearing significant practical implications to other social sciences, including the field of legal studies. Here I provide an evaluation of the generalizability (or lack thereof) of Doris's valuational paradigm of agency for justification of moral responsibility by applying it to several distinct areas of the classic American common law tradition.
American tort law has assumed, since its inception, a clearly distinctive approach regarding culpability. The hallmark of such a departure from the strict liability paradigm sponsored by the English common law tradition is the classic Brown v. Kendall (1850) case decided by the Massachusetts Supreme Judicial Court. The circumstances of this legal dispute involve a fight between two dogs belonging to different owners, both of whom ended up getting involved in the animal fight in an attempt to separate them. During the effort to do so, the defendant beat the dogs with a stick and, in the process, accidentally wounded the plaintiff in the eye, causing him a severe bodily injury. The plaintiff brought suit against the defendant for assault and battery. During the arguments, the plaintiff's lawyers presented a persuasive argument requesting the Massachusetts Court to employ a strict liability standard for judging the defendant's actions based on a classic case of the English common law tradition decided in 1466, Hulle v. Orynge, best known as the “Case of Thorns” (King's Bench 1466). In this case, when attempting to retrieve thorns that dropped onto Plaintiff's property, the defendant entered the plaintiff's private field, ultimately damaging some crops. In its final decision, the English court ruled that, although the defendant had a reasonable justification to enter the plaintiff's property, he was nonetheless liable for trespass. According to the Case of Thorns' precedent, one who voluntarily performs an act that results in damages to another is responsible for the damages even if the act was itself lawful in nature. The American judges involved in the Brown v. Kendall case, however, proposed a quite different standard than the one advocated by their English peers centuries before. They basically ruled that if an accidental casualty arises from a lawful act, no tort action can be brought by the Plaintiff unless he is able to demonstrate that the Defendant acted with lack of “ordinary care.” Such judgment ended up becoming a legal cornerstone of the American tort law, ultimately generating a clear binding precedent that established the requirement of fault for all tort cases. Such a legal position is embodied in the classic Latin principle: nulla poena sine culpa (no punishment without fault).
Although a superficial analysis might lead some to conclude that Doris's valuational paradigm would be compatible with the U.S. tort law standards simply because his criteria would lead to the same result as the official Brown v. Kendall judgment, there is a deep degree of incompatibility between them. The official criteria employed in the Brown v. Kendall case for allocating moral responsibility and, therefore, for tort liability, involved two distinct prongs: the lawfulness of the activity under question and the presence (or absence) of negligence as defined by the criteria of the ‘ordinary care employed by the reasonable person.’ Neither one of these is properly taken into account by Doris's valuationist paradigm. In other words, while according to the U.S. tort law it is possible for individuals to be held legally liable for inflicted damages either because the original activity under question was illegal or because there was a substantial degree of negligence involved in the action which ultimately led to the harm, according to Doris's valuational paradigm neither one of these criteria (i.e., legality or negligence) would be enough to allocate moral responsibility as long as the individual caused the harm unintentionally.
Another example of how Doris's valuational paradigm for allocation of moral responsibility fails to address important legal issues (in this case with regard to criminal law) is the hypothetical case described in chapter 7 (Doris Reference Doris2015b). In this example a father, after an exhausting work day, forgets his child inside a locked car under a dangerously hot temperature. According to Doris, ascribing moral responsibility to such a parent would require invoking the concept of ‘strict liability.’ In criminal law, strict liability consists in a standard through which the individual can be found liable for a crime based only in the actus reus (the guilty action) regardless of the underlying state of mind (i.e., mens rea or guilty mind) (Carson & Felthous Reference Carson and Felthous2003). According to the traditional common law standards, strict liability would never be considered as a reasonable standard to be applied to the action described in this hypothetical case. In fact, in the American legal tradition, strict liability (which represents a form of absolute legal responsibility for an injury that can be imposed on the wrongdoer without proof of carelessness or fault) is mainly restricted to specific areas of the tort law, such as product liability (in which there is a collective social interest in protecting consumers against defective products) or in the case of minor criminal offenses or misdemeanors (such as traffic violations), which usually do not carry major social stigmas. The illustrative example presented by Doris would be better described as involving an essential element of negligence. According to the Model Penal Code, which has served as the theoretical basis for criminal statutory laws in several U.S. states, there are four different mens rea descriptors of culpability that can be used to qualify an individual's action (Robinson & Grall Reference Robinson and Grall1983): “purposely,” if the criminal act was the conscious objective of the agent's conduct; “knowingly,” if the result was not the agent's primary or conscious objective, yet he could be practically certain that his conduct would secondarily cause that harm; “negligently,” if the agent's conduct involves a gross deviation from the standard of care that the reasonable person would observe in the same situation; and “recklessly,” if the agent was aware that his conduct would involve a substantial and unjustifiable risk of causing the harm. It is opportune to recall that even when an individual acts purposely (e.g., an intentional crime) the law does not require (or seem to care about) the presence (or absence) of an adequate awareness of the underlying motives for such an action. Therefore, similarly to Doris (although for completely different reasons), most legal scholars would also simply reject the reflectionist position on the issue of moral responsibility and avoid any discussion of the reality of ‘incongruent parallel processing’ on grounds of irrelevance.
The main point of our discussion here is not to ascertain (or to deny) that the supposed parent who abandoned his child in the dangerously warm car acted negligently. That is the role of the prosecution attorney who will construct his legal argument on the specific details of the case under question. However, it seems clear from this example that by employing Doris's valuational paradigm, such a parent could never be considered morally responsible (and, therefore, legally liable) for his action apart from a strict liability basis, as the parent clearly did not act according to his “deepest and most cherished values.” In his book Doris also proposes a simple ‘test’ to determine if an action has been performed according to the agent's core values and, therefore, if the individual can be held morally accountable for such an action. “I say a behavior is an exercise of morally responsible agency when the actor is self-directed . . . when the nicotine addict guiltily succumbs to craving and lights up his behavior is not self-directed” (précis, sect. 5, para. 3). According to this rule, the parent cannot be held morally responsible (and, therefore, legally liable) for his negligent action, as he was not self-directed in his behavior, which can be ultimately traced to a tragic concurrence of unfortunate external circumstances (the exhausting workday, the dangerous warm weather, etc.) as well as a unintentional personal lapse.
A final cornerstone dogma of the American common law tradition that seems to be incompatible with Doris's valuational paradigm for allocation of moral responsibility is the concept of vicarious liability. The doctrine of vicarious liability represents a foundational doctrine of the Western legal tradition that finds expression in several distinct tenets, such as the concept of command responsibility in military law, the concept of employers' liability (i.e., doctrine of respondeat superior), the concept of principals' liability (through which the owner of an automobile can be held vicariously liable for negligence committed by a person to whom the car has been lent), and the concept of parental liability (through which parents can be held liable for tortious actions committed by their children due to their own negligent behavior expressed as a failure to supervise them). For example, according to the above-mentioned doctrine of respondeat superior (a Latin expression meaning “Let the master answer”), an employer is liable for the tortious acts of employees performed within the course of their employment (Gared Reference Gared1983). In the United States, due to the Supreme Court decision in Pinkerton v. United States (1946), individuals can even be considered vicariously liable for crimes committed by others if the offenses were performed in furtherance of an unlawful agreement or conspiracy (Alex Reference Alex2008). The words of U.S. president Ronald Reagan (Reference Reagan1987), in a speech in the Oval Office while commenting on the Iran-Contra scandal, expresses the depth and the importance of the respondeat superior doctrine: “First, let me say I take full responsibility for my own actions and for those of my administration. As angry as I may be about activities undertaken without my knowledge, I am still accountable for those activities. As disappointed as I may be in some who served me, I am still the one who must answer to the American people for this behavior. And as personally distasteful as I find secret bank accounts and diverted funds – well, as the Navy would say, this happened on my watch.” Nevertheless, according to Doris's valuational paradigm for allocation of moral responsibility, it would be impossible for an individual to be held, as in the Reagan's example, vicariously morally responsible for the action of others.
In summary, Doris's valuational paradigm of agency seems irreconcilable with key principles of the American common law tradition, ultimately failing to provide an adequate conceptual basis for allocation of moral responsibility, social accountability, and legal liability. In the same way that skepticism regarding moral responsibility may only be a feasible philosophical option at the personal level (Waller Reference Waller2011), ultimately failing to offer any reasonable alternative for the development of a viable legal code, if the interesting theoretical scheme developed by Doris fails to provide that type of practical and coherent conceptual framework that the professionals at the law school across the university campus require for proper exercise of their duties, there is a significant risk that such a well-written and delightful book may represent a mere exercise of intellectual digression, a classic epitome of the speculative literary output of isolated scholars “talking to our selves” inside our own ivory towers.
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In his new book Talking to Our Selves, John Doris (Reference Doris2015b) provides a comprehensive analysis of the age-old discussion about the existence of truly self-determined behavior, agency, and moral responsibility (Cary Reference Cary2007). Although throughout the book the author mainly focuses on the underlying philosophical assumptions and empirical data from the psychology literature that may justify his position (which he characterizes as anti-reflectivist, valuational, and dialogic), I believe that a proper discussion of the pragmatic implications of the paradigm defended by Doris is of paramount importance.
As once contended by Richard Weaver (Reference Weaver1948) in his famous work, Ideas Have Consequences. Therefore, if the philosophical position defended by Doris in his new book is to be taken seriously, it is expected that, similarly to past works on the issue (e.g., Duff Reference Duff1990), the proposed conceptual framework should be able to transcend the purely theoretical realm, ultimately bearing significant practical implications to other social sciences, including the field of legal studies. Here I provide an evaluation of the generalizability (or lack thereof) of Doris's valuational paradigm of agency for justification of moral responsibility by applying it to several distinct areas of the classic American common law tradition.
American tort law has assumed, since its inception, a clearly distinctive approach regarding culpability. The hallmark of such a departure from the strict liability paradigm sponsored by the English common law tradition is the classic Brown v. Kendall (1850) case decided by the Massachusetts Supreme Judicial Court. The circumstances of this legal dispute involve a fight between two dogs belonging to different owners, both of whom ended up getting involved in the animal fight in an attempt to separate them. During the effort to do so, the defendant beat the dogs with a stick and, in the process, accidentally wounded the plaintiff in the eye, causing him a severe bodily injury. The plaintiff brought suit against the defendant for assault and battery. During the arguments, the plaintiff's lawyers presented a persuasive argument requesting the Massachusetts Court to employ a strict liability standard for judging the defendant's actions based on a classic case of the English common law tradition decided in 1466, Hulle v. Orynge, best known as the “Case of Thorns” (King's Bench 1466). In this case, when attempting to retrieve thorns that dropped onto Plaintiff's property, the defendant entered the plaintiff's private field, ultimately damaging some crops. In its final decision, the English court ruled that, although the defendant had a reasonable justification to enter the plaintiff's property, he was nonetheless liable for trespass. According to the Case of Thorns' precedent, one who voluntarily performs an act that results in damages to another is responsible for the damages even if the act was itself lawful in nature. The American judges involved in the Brown v. Kendall case, however, proposed a quite different standard than the one advocated by their English peers centuries before. They basically ruled that if an accidental casualty arises from a lawful act, no tort action can be brought by the Plaintiff unless he is able to demonstrate that the Defendant acted with lack of “ordinary care.” Such judgment ended up becoming a legal cornerstone of the American tort law, ultimately generating a clear binding precedent that established the requirement of fault for all tort cases. Such a legal position is embodied in the classic Latin principle: nulla poena sine culpa (no punishment without fault).
Although a superficial analysis might lead some to conclude that Doris's valuational paradigm would be compatible with the U.S. tort law standards simply because his criteria would lead to the same result as the official Brown v. Kendall judgment, there is a deep degree of incompatibility between them. The official criteria employed in the Brown v. Kendall case for allocating moral responsibility and, therefore, for tort liability, involved two distinct prongs: the lawfulness of the activity under question and the presence (or absence) of negligence as defined by the criteria of the ‘ordinary care employed by the reasonable person.’ Neither one of these is properly taken into account by Doris's valuationist paradigm. In other words, while according to the U.S. tort law it is possible for individuals to be held legally liable for inflicted damages either because the original activity under question was illegal or because there was a substantial degree of negligence involved in the action which ultimately led to the harm, according to Doris's valuational paradigm neither one of these criteria (i.e., legality or negligence) would be enough to allocate moral responsibility as long as the individual caused the harm unintentionally.
Another example of how Doris's valuational paradigm for allocation of moral responsibility fails to address important legal issues (in this case with regard to criminal law) is the hypothetical case described in chapter 7 (Doris Reference Doris2015b). In this example a father, after an exhausting work day, forgets his child inside a locked car under a dangerously hot temperature. According to Doris, ascribing moral responsibility to such a parent would require invoking the concept of ‘strict liability.’ In criminal law, strict liability consists in a standard through which the individual can be found liable for a crime based only in the actus reus (the guilty action) regardless of the underlying state of mind (i.e., mens rea or guilty mind) (Carson & Felthous Reference Carson and Felthous2003). According to the traditional common law standards, strict liability would never be considered as a reasonable standard to be applied to the action described in this hypothetical case. In fact, in the American legal tradition, strict liability (which represents a form of absolute legal responsibility for an injury that can be imposed on the wrongdoer without proof of carelessness or fault) is mainly restricted to specific areas of the tort law, such as product liability (in which there is a collective social interest in protecting consumers against defective products) or in the case of minor criminal offenses or misdemeanors (such as traffic violations), which usually do not carry major social stigmas. The illustrative example presented by Doris would be better described as involving an essential element of negligence. According to the Model Penal Code, which has served as the theoretical basis for criminal statutory laws in several U.S. states, there are four different mens rea descriptors of culpability that can be used to qualify an individual's action (Robinson & Grall Reference Robinson and Grall1983): “purposely,” if the criminal act was the conscious objective of the agent's conduct; “knowingly,” if the result was not the agent's primary or conscious objective, yet he could be practically certain that his conduct would secondarily cause that harm; “negligently,” if the agent's conduct involves a gross deviation from the standard of care that the reasonable person would observe in the same situation; and “recklessly,” if the agent was aware that his conduct would involve a substantial and unjustifiable risk of causing the harm. It is opportune to recall that even when an individual acts purposely (e.g., an intentional crime) the law does not require (or seem to care about) the presence (or absence) of an adequate awareness of the underlying motives for such an action. Therefore, similarly to Doris (although for completely different reasons), most legal scholars would also simply reject the reflectionist position on the issue of moral responsibility and avoid any discussion of the reality of ‘incongruent parallel processing’ on grounds of irrelevance.
The main point of our discussion here is not to ascertain (or to deny) that the supposed parent who abandoned his child in the dangerously warm car acted negligently. That is the role of the prosecution attorney who will construct his legal argument on the specific details of the case under question. However, it seems clear from this example that by employing Doris's valuational paradigm, such a parent could never be considered morally responsible (and, therefore, legally liable) for his action apart from a strict liability basis, as the parent clearly did not act according to his “deepest and most cherished values.” In his book Doris also proposes a simple ‘test’ to determine if an action has been performed according to the agent's core values and, therefore, if the individual can be held morally accountable for such an action. “I say a behavior is an exercise of morally responsible agency when the actor is self-directed . . . when the nicotine addict guiltily succumbs to craving and lights up his behavior is not self-directed” (précis, sect. 5, para. 3). According to this rule, the parent cannot be held morally responsible (and, therefore, legally liable) for his negligent action, as he was not self-directed in his behavior, which can be ultimately traced to a tragic concurrence of unfortunate external circumstances (the exhausting workday, the dangerous warm weather, etc.) as well as a unintentional personal lapse.
A final cornerstone dogma of the American common law tradition that seems to be incompatible with Doris's valuational paradigm for allocation of moral responsibility is the concept of vicarious liability. The doctrine of vicarious liability represents a foundational doctrine of the Western legal tradition that finds expression in several distinct tenets, such as the concept of command responsibility in military law, the concept of employers' liability (i.e., doctrine of respondeat superior), the concept of principals' liability (through which the owner of an automobile can be held vicariously liable for negligence committed by a person to whom the car has been lent), and the concept of parental liability (through which parents can be held liable for tortious actions committed by their children due to their own negligent behavior expressed as a failure to supervise them). For example, according to the above-mentioned doctrine of respondeat superior (a Latin expression meaning “Let the master answer”), an employer is liable for the tortious acts of employees performed within the course of their employment (Gared Reference Gared1983). In the United States, due to the Supreme Court decision in Pinkerton v. United States (1946), individuals can even be considered vicariously liable for crimes committed by others if the offenses were performed in furtherance of an unlawful agreement or conspiracy (Alex Reference Alex2008). The words of U.S. president Ronald Reagan (Reference Reagan1987), in a speech in the Oval Office while commenting on the Iran-Contra scandal, expresses the depth and the importance of the respondeat superior doctrine: “First, let me say I take full responsibility for my own actions and for those of my administration. As angry as I may be about activities undertaken without my knowledge, I am still accountable for those activities. As disappointed as I may be in some who served me, I am still the one who must answer to the American people for this behavior. And as personally distasteful as I find secret bank accounts and diverted funds – well, as the Navy would say, this happened on my watch.” Nevertheless, according to Doris's valuational paradigm for allocation of moral responsibility, it would be impossible for an individual to be held, as in the Reagan's example, vicariously morally responsible for the action of others.
In summary, Doris's valuational paradigm of agency seems irreconcilable with key principles of the American common law tradition, ultimately failing to provide an adequate conceptual basis for allocation of moral responsibility, social accountability, and legal liability. In the same way that skepticism regarding moral responsibility may only be a feasible philosophical option at the personal level (Waller Reference Waller2011), ultimately failing to offer any reasonable alternative for the development of a viable legal code, if the interesting theoretical scheme developed by Doris fails to provide that type of practical and coherent conceptual framework that the professionals at the law school across the university campus require for proper exercise of their duties, there is a significant risk that such a well-written and delightful book may represent a mere exercise of intellectual digression, a classic epitome of the speculative literary output of isolated scholars “talking to our selves” inside our own ivory towers.