Apologies make significant moral differences. They can warrant forgiveness and reconciliation, ev... more Apologies make significant moral differences. They can warrant forgiveness and reconciliation, even if nothing else has been done by way of repair. They can help restore relationships, sometimes even improving them. Failing to apologize, moreover, grounds continued resentment and worse, no matter what else is done to make things right. And yet, saying "I'm sorry" or "I apologize" hardly seems to repair the harm done by a wrongful act, or to compensate for it. At most, it seems to convey an attitude or acknowledgment, and it is not clear exactly what difference such conveyance alone makes, especially when the victim already knows the information relayed. How and why, then, does it matter so much whether a wrongdoer apologizes? In discussing the importance of apologizing, philosophers have largely focused on what the act reveals-that an offender commits or re-commits to a better way of treating the victim, 1 for example, or that he recognizes the wrongfulness of what he did, or that he renounces what was otherwise suggested or expressed by his wrongdoing. 2 For this I received very helpful input in thinking through and drafting this article, most of all from Barbara Herman, Herb Morris, Howard Wettstein, and especially Seana Shiffrin. I thank them, along with others who provided valuable feedback at crucial junctures, including, in particular
Although the standard of proof in criminal trials has been much debated, culminating in a variety... more Although the standard of proof in criminal trials has been much debated, culminating in a variety of proposals for reform in recent years, one central element has largely escaped scrutiny: does the standard refer to how much the jurors have been persuaded, or, instead, to how much has been established by the evidence? More particularly, does the canonical phrase "proof beyond a reasonable doubt" (BARD) refer to doubts jurors actually have, or to doubts a reasonable juror should or would have? Is the standard, in other words, subjective or objective? To date, no legal source or authority resolves this ambiguity, though much turns on which version jurors apply, as the two readings could yield opposing verdicts. Many jury instructions, nevertheless, favor a subjective notion of proof, directing jurors to consider the case proven just to the extent that they feel sure of the defendant's guilt. This article argues against that interpretation, drawing on the Supreme Court's landmark decision in In re Winship (1970), together with considerations from legal, ethical and epistemological theory. These considerations count decisively against equating proof with factors special to particular parties in particular cases, which -I will show -includes a juror's having no reasonable doubts. This argument reflects a more general observation about which kinds of reasoning are appropriate for the application of legal rules, and on the difference between proof and persuasion.
Apology has proven a dramatically effective means of resolving conflict and preventing litigation... more Apology has proven a dramatically effective means of resolving conflict and preventing litigation. Still, many injurers withhold apologies because they have long been used as evidence of liability. Recently, a majority of states in the United States have passed "Apology Laws" designed to shield apologies from evidentiary use. However, most of the new laws protect only expressions of benevolence and sympathy, like "I feel bad about what happened to you." They do not protect apologies that include expressions of remorse or self-criticism, such as "I should have prevented it." These laws thereby reinforce a prevailing legal construal of apologies as partial proof of liability. This Article argues that the tendency to interpret apologies as incriminating, a tendency entrenched in evidence law and reinforced by the new state measures, misreads apologetic discourse in a crucial way. Drawing on developments in ethical theory, it argues that full, self-critical apologies do not imply culpability or liability because they are equally appropriate for blameless, non-negligent injurers. Neither the statement nor the act of an apology is probative of liability, and their admission has been premised on a mistake. This Article closes with a proposed means of protecting apologies from evidentiary use, modeled on Rule 409 of the Federal Rules of Evidence.
We examine the question of how to determine negligence. In particular, how do we determine whethe... more We examine the question of how to determine negligence. In particular, how do we determine whether those who have caused injury failed to exhibit ‘reasonable care’ toward those they injured? The standard answer in contemporary legal doctrine involves probability—viz., whether the probability that some injurious activity would harm anyone was low enough, in light of both the severity of the harm risked and the burdens of preventing it. We argue that while this probabilistic standard works well enough for the kind of canonical, single-episode cases that have shaped negligence doctrine over the centuries, it leads to problematic consequences when it comes to large-scale and long-term enterprises-- “aggregative agents”, as we call them--where even the lowest probability of injury is sure to materialize, and the injurer can reliably foresee it. In particular, in such cases, the low probability of injury does not in itself show that the agent took due care not to inflict it; indeed, it is consistent with the low probability that the agent intended the harm or was entirely indifferent to it. This raises the question of how we might epistemically capture the due care that aggregative agents are meant to take to avoid inflicting harm. We argue that the solution lies not in adapting the classical legal standard for negligence, but rather in accepting that the best understanding of due care, at least as it extends to such large-scale cases, is to be understood along modal rather than probabilistic lines.
Truth and Trials: Dilemmas at the Intersection of Epistemology and Philosophy of Law
We examine the question of how to determine negligence. In particular, how do we determine whethe... more We examine the question of how to determine negligence. In particular, how do we determine whether those who have caused injury failed to exhibit ‘reasonable care’ toward those they injured? The standard answer in contemporary legal doctrine involves probability—viz., whether the probability that some injurious activity would harm anyone was low enough, in light of both the severity of the harm risked and the burdens of preventing it. We argue that while this probabilistic standard works well enough for the kind of canonical, single-episode cases that have shaped negligence doctrine over the centuries, it leads to problematic consequences when it comes to large-scale and long-term enterprises-- “aggregative agents”, as we call them--where even the lowest probability of injury is sure to materialize, and the injurer can reliably foresee it. In particular, in such cases, the low probability of injury does not in itself show that the agent took due care not to inflict it; indeed, it is consistent with the low probability that the agent intended the harm or was entirely indifferent to it. This raises the question of how we might epistemically capture the due care that aggregative agents are meant to take to avoid inflicting harm. We argue that the solution lies not in adapting the classical legal standard for negligence, but rather in accepting that the best understanding of due care, at least as it extends to such large-scale cases, is to be understood along modal rather than probabilistic lines.
Forgiving wrongdoers who neither apologized, nor sought to make amends in any way, is controversi... more Forgiving wrongdoers who neither apologized, nor sought to make amends in any way, is controversial. Even defenders of the practice agree with critics that such "unilateral" forgiveness involves giving up on the meaningful redress that victims otherwise justifiably demand from their wrongdoers: apology, reparations, repentance, and so on. Against that view, I argue here that when a victim of wrongdoing sets out to grant forgiveness to her offender, and he in turn accepts her forgiveness, he thereby serves some important ends of apology and reparation, no matter what else he didor did not doby way of repair. Although much overlooked, the simple act of accepting forgiveness joins victim and offender in affirming and acting upon some important shared background assumptions, including many of those expressed in standard apologies. Perhaps more surprisingly, I argue that accepting forgiveness also fulfills the duty to counteract any concrete harm wrongfully inflicted. The argument helps explain some otherwise puzzling features of forgiveness, including that a victim can change her offender's normative status, making him a less fitting target of the resentment, indignation and shunning of others, and even his own guilt pangs, simply by forgiving him.
Apologies make significant moral differences. They can warrant forgiveness and reconciliation, ev... more Apologies make significant moral differences. They can warrant forgiveness and reconciliation, even if nothing else has been done by way of repair. They can help restore relationships, sometimes even improving them. Failing to apologize, moreover, grounds continued resentment and worse, no matter what else is done to make things right. And yet, saying "I'm sorry" or "I apologize" hardly seems to repair the harm done by a wrongful act, or to compensate for it. At most, it seems to convey an attitude or acknowledgment, and it is not clear exactly what difference such conveyance alone makes, especially when the victim already knows the information relayed. How and why, then, does it matter so much whether a wrongdoer apologizes? In discussing the importance of apologizing, philosophers have largely focused on what the act reveals-that an offender commits or re-commits to a better way of treating the victim, 1 for example, or that he recognizes the wrongfulness of what he did, or that he renounces what was otherwise suggested or expressed by his wrongdoing. 2 For this I received very helpful input in thinking through and drafting this article, most of all from Barbara Herman, Herb Morris, Howard Wettstein, and especially Seana Shiffrin. I thank them, along with others who provided valuable feedback at crucial junctures, including, in particular
Although the standard of proof in criminal trials has been much debated, culminating in a variety... more Although the standard of proof in criminal trials has been much debated, culminating in a variety of proposals for reform in recent years, one central element has largely escaped scrutiny: does the standard refer to how much the jurors have been persuaded, or, instead, to how much has been established by the evidence? More particularly, does the canonical phrase "proof beyond a reasonable doubt" (BARD) refer to doubts jurors actually have, or to doubts a reasonable juror should or would have? Is the standard, in other words, subjective or objective? To date, no legal source or authority resolves this ambiguity, though much turns on which version jurors apply, as the two readings could yield opposing verdicts. Many jury instructions, nevertheless, favor a subjective notion of proof, directing jurors to consider the case proven just to the extent that they feel sure of the defendant's guilt. This article argues against that interpretation, drawing on the Supreme Court's landmark decision in In re Winship (1970), together with considerations from legal, ethical and epistemological theory. These considerations count decisively against equating proof with factors special to particular parties in particular cases, which -I will show -includes a juror's having no reasonable doubts. This argument reflects a more general observation about which kinds of reasoning are appropriate for the application of legal rules, and on the difference between proof and persuasion.
Apology has proven a dramatically effective means of resolving conflict and preventing litigation... more Apology has proven a dramatically effective means of resolving conflict and preventing litigation. Still, many injurers withhold apologies because they have long been used as evidence of liability. Recently, a majority of states in the United States have passed "Apology Laws" designed to shield apologies from evidentiary use. However, most of the new laws protect only expressions of benevolence and sympathy, like "I feel bad about what happened to you." They do not protect apologies that include expressions of remorse or self-criticism, such as "I should have prevented it." These laws thereby reinforce a prevailing legal construal of apologies as partial proof of liability. This Article argues that the tendency to interpret apologies as incriminating, a tendency entrenched in evidence law and reinforced by the new state measures, misreads apologetic discourse in a crucial way. Drawing on developments in ethical theory, it argues that full, self-critical apologies do not imply culpability or liability because they are equally appropriate for blameless, non-negligent injurers. Neither the statement nor the act of an apology is probative of liability, and their admission has been premised on a mistake. This Article closes with a proposed means of protecting apologies from evidentiary use, modeled on Rule 409 of the Federal Rules of Evidence.
We examine the question of how to determine negligence. In particular, how do we determine whethe... more We examine the question of how to determine negligence. In particular, how do we determine whether those who have caused injury failed to exhibit ‘reasonable care’ toward those they injured? The standard answer in contemporary legal doctrine involves probability—viz., whether the probability that some injurious activity would harm anyone was low enough, in light of both the severity of the harm risked and the burdens of preventing it. We argue that while this probabilistic standard works well enough for the kind of canonical, single-episode cases that have shaped negligence doctrine over the centuries, it leads to problematic consequences when it comes to large-scale and long-term enterprises-- “aggregative agents”, as we call them--where even the lowest probability of injury is sure to materialize, and the injurer can reliably foresee it. In particular, in such cases, the low probability of injury does not in itself show that the agent took due care not to inflict it; indeed, it is consistent with the low probability that the agent intended the harm or was entirely indifferent to it. This raises the question of how we might epistemically capture the due care that aggregative agents are meant to take to avoid inflicting harm. We argue that the solution lies not in adapting the classical legal standard for negligence, but rather in accepting that the best understanding of due care, at least as it extends to such large-scale cases, is to be understood along modal rather than probabilistic lines.
Truth and Trials: Dilemmas at the Intersection of Epistemology and Philosophy of Law
We examine the question of how to determine negligence. In particular, how do we determine whethe... more We examine the question of how to determine negligence. In particular, how do we determine whether those who have caused injury failed to exhibit ‘reasonable care’ toward those they injured? The standard answer in contemporary legal doctrine involves probability—viz., whether the probability that some injurious activity would harm anyone was low enough, in light of both the severity of the harm risked and the burdens of preventing it. We argue that while this probabilistic standard works well enough for the kind of canonical, single-episode cases that have shaped negligence doctrine over the centuries, it leads to problematic consequences when it comes to large-scale and long-term enterprises-- “aggregative agents”, as we call them--where even the lowest probability of injury is sure to materialize, and the injurer can reliably foresee it. In particular, in such cases, the low probability of injury does not in itself show that the agent took due care not to inflict it; indeed, it is consistent with the low probability that the agent intended the harm or was entirely indifferent to it. This raises the question of how we might epistemically capture the due care that aggregative agents are meant to take to avoid inflicting harm. We argue that the solution lies not in adapting the classical legal standard for negligence, but rather in accepting that the best understanding of due care, at least as it extends to such large-scale cases, is to be understood along modal rather than probabilistic lines.
Forgiving wrongdoers who neither apologized, nor sought to make amends in any way, is controversi... more Forgiving wrongdoers who neither apologized, nor sought to make amends in any way, is controversial. Even defenders of the practice agree with critics that such "unilateral" forgiveness involves giving up on the meaningful redress that victims otherwise justifiably demand from their wrongdoers: apology, reparations, repentance, and so on. Against that view, I argue here that when a victim of wrongdoing sets out to grant forgiveness to her offender, and he in turn accepts her forgiveness, he thereby serves some important ends of apology and reparation, no matter what else he didor did not doby way of repair. Although much overlooked, the simple act of accepting forgiveness joins victim and offender in affirming and acting upon some important shared background assumptions, including many of those expressed in standard apologies. Perhaps more surprisingly, I argue that accepting forgiveness also fulfills the duty to counteract any concrete harm wrongfully inflicted. The argument helps explain some otherwise puzzling features of forgiveness, including that a victim can change her offender's normative status, making him a less fitting target of the resentment, indignation and shunning of others, and even his own guilt pangs, simply by forgiving him.
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