On the suppositions that criminal punishment requires blameworthiness and that blameworthiness requires culpability in addition to wrongdoing, the issue raised about punishment for negligently caused harm is whether and how inadvertent but unreasonable risk-taking (i.e., negligence) makes a wrongfully acting agent culpable. The concepts of negligence and of criminal negligence are initially examined, albeit very briefly, before the central problem is raised: how can inadvertent risk-taking be culpable when, by definition, there is no choice (intent or belief) by the wrongdoer to take such a risk? H.L.A. Hart’s answer to this is then introduced, namely, that there is a culpability of unexercised capacity in addition to the culpability of choice and that negligent actors have the former kind of culpability even though they lack the latter. A more extensive analysis is then undertaken, first, of what it means to advert to a risk, and second, what it means to have the capacity to advert to a risk. A familiar counterfactual notion of capacity is defended, raising the question as to the proper antecedent of such a counterfactual in the case where the consequent is, “would have adverted.” 

Michael Moore and Heidi Hurd (University of Illinois) isolate a plausible antecedent to the relevant counterfactual in terms of four defects of the negligent actor: clumsiness, stupidity, selfishness, and weakness of will. By examining the questions of whether all of these are moral defects, and whether, if they are, they are merely aretaic defects of character that are unlike the mental states of choice grounding deontic culpability, they defend the view that a properly liberal state should not punish merely aretaic defects and thus, not simply negligent actors, to then close their presentation by showing why this moral thesis is not as revolutionary of current criminal law practice as it might seem.

Michael Moore currently holds the Charles R. Walgreen Chair at the University of Illinois. He is jointly appointed as professor of law in the College of Law, professor of philosophy in the College of Liberal Arts and Sciences, and as a professor with the Centre for Advanced Study. He is regarded as one of the most prominent authorities on the intersection of law and philosophy and a leading theoretician of criminal law. 

Heidi Hurd is the Ross and Helen Workman Chair in Law at the University of Illinois and co-Director of the Program in Law and Philosophy. Her research covers such areas as criminal law, torts, environmental law, environmental ethics, and moral, legal, and political philosophy. Her expertise in these areas is highly sought after globally, and she has testified before the United States House Committee on the Judiciary on proposed criminal legislation.