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The Personal Control Account • Agent X has caused E if X was in control of whether or not E occurred. • This is just a special case of the but-for account, since one causes an event if it would not have occurred but for some intentional act or omission under one’s direct control (a ‘basic action’).
Can purely negative conditions be causes? • On the continuous process account: definitely no. Negative conditions contain no energy or information. • On the INUS account: not so clear. Can a negative condition be “part” of a sufficient condition? Probably not. • There is a special case, however: preventing a preventer. In these cases, the absence of the preventer seems causally relevant.
Preventing a Prevention • Some Examples: • Moving an obstacle in the way of a falling boulder. • Removing the spark plugs from the only fire engine in the area. • Forcing air traffic controllers to be inactive, resulting in an air crash. • Should be distinguished from mere omissions - something positive is done.
INUS: Double Preventions are Causes • According to the INUS account, a preventer of a preventer (a double preventer) is a cause, since in the absence of the double preventer, the rest of the process would not have been sufficient in the actual circumstances for the effect. • Mere omissions (failing to prevent) are not causes, since such mere omissions do not form an actual part of any sufficient condition.
Double Preventers and Continuous Physical Processes • On the Continuous Physical Process account, preventers of preventers never cause anything,because there is no transfer of energy or force from the double preventer to its “effect”. • Example: shooting down a fighter that would have shot down a bomber. No process connects the AA missile to the bomber.
A Distinction between Pure Omissions and Active Refusals? • Since omissions are not real events, they cannot cause anything, according to the Mackie INUS definition. • Suppose the non-rescuer exerts mental energy in resisting an impulse to help? This is a positive event. It could be a cause on the INUS account (although not on the Process account).
A Paradox for the INUS view? • The normal non-rescuer who resists the impulse to help does cause the death. • The callous psychopath, who feels no such impulse in the first place, does not. • Yet, the psychopath’s indifference seems even worse, morally speaking.
Test Cases • Cause with back-up (inactive) potential causes. Potential assassins lurking in background. • Overdetermining causes. Firing squad (simultaneous impact). • Preempted would-be causes. Late shooter. • Double prevention.
Why is Causation Important? • Problem: how to define a zone of personal liberty? • If the law is determined solely by the maximization of social welfare, there is no principled boundary. • Common law approach: individuals are free (from both criminal and civil penalties) so long as they don’t cause harm to others.
The Responsibility Issue • When are we responsible for harm we did not cause? • The importance of special relationships: • parent/child • nurse/patient • jailer/prisoner • When harm is great, and cost of rescue low, is common humanity enough?
A Positive Duty? • Effect offenses: actions which are criminal because of the harm they cause. • Conduct offenses: actions which are criminal because they violate a clearly delineated duty.
Examples of Conduct Offenses • Failure to file income tax form. • Failure to register/report for military draft. • Failure to report for jury duty. • In some countries: failure to vote.
Kant’s Argument for a Right to be Rescued (from Weinrib) • We would not be willing to make it a universal law of nature that no one rescue anyone else. • We would gladly accept the rescue efforts of others. • Therefore, we must acknowledge that others have a right to be rescued by us.
An Argument from the Conditions of Freedom • Freedom of action presupposes life and bodily integrity. • Therefore, I cannot consistently demand a freedom to act in a way that entails a loss of life or health of another. • Therefore, my right to freedom is limited by a duty to rescue others.
A Right to be Rescued at What Cost? • Presumably, I don’t have a right to be rescued if the rescuer would experience an even greater peril than I am in. • I don’t have a right to be rescued by someone who is already rescuing someone else in the same or greater peril. • Can we justify any other limitations?
Consequentialist Considerations • Duty to rescue laws may save lives. • They may also encourage risk-taking, resulting in even more deaths. • Making the duty too onerous would make the law unenforceable. • Could rob love, friendship of meaning. • Fewer opportunities for heroism?
Economic considerations • Where possible, contract/exchange should be used. Victim should bear cost of securing voluntary rescue. • In “emergencies”, the transaction is impossible or extremely costly. • Should courts enforce a hypothetical contract? (Epstein’s objections)
Deontological Objections • Vagueness, indeterminateness. Benevolence is an “imperfect” duty -- can never be absolutely fulfilled. • Any line-drawing seems unprincipled. • Encourages further intrusion of the state into realm of personal freedom.
Specific Proposals • Macaulay’s rule: liable only when the omission violates some other rule. • Vermont's statute: must give "reasonable assistance" when there is risk of "grave physical harm" to another, provided there is no "danger or peril" to oneself.
Farwell v. Keaton • Should Siegrist be punished, or forced to pay civil damages? • If they had met only shortly before the attack, would this make a difference?
Hypothetical Cases • If only one potential bone marrow donor can be found, and the donor refuses, would punishment or damages be appropriate? • If multiple people fail to rescue - do any of them cause the harm? Should they be punished anyway?
Punishing Bad Samaritans • Would punishing bad samaritans fulfill Hampton’s educative purpose? • Would doing so eliminate an unjust form of free-ridership (Davis)? • Is it needed as a substitute for private vengeance? • Would it violate personal autonomy in an objectionable way?