Seana Shiffrin

The moral significance of negligence is regularly downplayed in the legal and philosophical literature. Two common tenets about negligence diminish its perceived importance: first, culpable negligence is substantially less significant than malice (as well as other intentionally inflicted wrongs); second, considered apart from its consequences, culpable negligence is a rather petty moral wrong. This paper argues, by contrast, that culpable negligence can be a serious moral and political wrong and non-negligence is a significant moral virtue. The paper sketches an account of moral and political negligence that stresses the significance of the agent’s motives and canvasses many examples, including an extended discussion of Edward Snowden as an example of a politically negligent agent. The discussion encompasses the connection between negligence and the act/omission distinction, the doctrine of double effect, our remedial responses and reactive attitudes toward negligence, and the connection between anti-discrimination norms and negligence.

Samuel Scheffler's superb and original book provides important insights into individualism, human values, and how the meaning of our lives depends, surprisingly, on future generations. This comment pursues two further points. First, it asks whether our deep emotional investment in the future rests on the continuation of particular things, projects and activities or whether it rests predominantly on the continuation of the activity of valuing itself, even if future generations replace what we value with something else. Second, the comment argues that a reasonable asymmetry holds of our attitudes toward our prior collective non-existence on the one hand and our possible future non-existence on the other. This asymmetry parallels the Lucretian asymmetry between our attitudes about our individual past non-existence and our individual post-mortem non-existence.

Japa Pallikkathayil persuasively argues that abortion prohibitions treat impregnable people as less than equal citizens, subject to different treatment than other citizens whose bodies are protected from compulsory service for the benefit of others. Pallikkathayil's argument could be modified to avoid a tension with arguments for conscription, to stress that democratic equality is inconsistent with requisitioning a citizen's body to serve the needs of another specific citizen. Pallikkathayil also contends that ‘[t]he changes we would need to make to our other laws and practices to bring them into line with restrictive abortion laws are intuitively unattractive’. To complement her approach, I contend that consistency would require that if we subject minors to involuntary pregnancy and labor, then we should enfranchise minors. We lowered the voting age to 18 on the grounds that if military conscripts were ‘old enough to fight’, they were ‘old enough to vote’. Abortion restrictions conscript impregnable minors and subject them to involuntary bodily intrusions, major life disruptions, and responsibility over life and death decisions. Old enough to carry; old enough to vote. If that conclusion is unpalatable because minors seem too immature to vote, then perhaps they are too immature to be forced to carry a pregnancy and to give birth.

This chapter responds to the commentaries by Kolodny, Brooks, and Stilz by elaborating on and adding to points made in the first three chapters. In connection with Chapter 1, it addresses various aspects of the requirement to communicate respect, including the collective character of the required communication, the effectiveness and appropriateness of law as its form, the need for equal participation in crafting it, and the possibility of individual dissent from it. It also considers whether the communicative conception offers a plausible normative account of the motivations underlying democratic movements. In connection with Chapters 2 and 3, it expands on the democratic character of common law and defends the claim that states may pursue discretionary interests, arguing that this pursuit is compatible not only with specific requirements of justice but also with liberalism.

This chapter continues to explore consequences of the communicative conception of democratic law by considering an issue about constitutional balancing: When can a discretionary interest asserted by a state be balanced against a constitutional liberty interest? Criticizing the US Supreme Court’s decision in _Washington v. Glucksberg_, in which a ban on assisted suicide was upheld as constitutional on the basis of an asserted state interest in preserving human life, it argues that balancing requires more than the mere assertion of an interest; rather, the state must show a commitment to and investment in that interest by adopting consistent policies that further the interest. Failure to insist on this requirement undermines the idea, implicit in the communicative conception, that law must aspire to articulate a coherent set of moral commitments.

This chapter argues for a communicative conception of democracy and democratic law by appealing to a duty of respect that we owe to our fellow citizens. To nurture and sustain the social bases of self-respect, citizens must convey to each other their convictions of mutual equality, their commitments to respect essential human needs and moral rights, and their mutual commitment to cooperate and provide every member with a stable place of belonging. Fulfilling these duties of communication requires a public commitment authored by all of us, undertaken through articulate action. Law has qualities of substantive expression that mere discursive messages lack. Law is public and takes the form of an ongoing, articulate commitment. But for law to convey the message that citizens must convey, each of us must be able to contribute to its formation. Hence, for law to play this special function, it must be democratically forged and sustained.

This chapter explores the democratic character of the common law by examining the implied contractual duty of good faith and its dismissive treatment by the US Supreme Court in _Northwest v. Ginsberg_, a 2014 preemption decision. The decision was mistaken because it failed to recognize law’s morally indispensable role of publicly articulating and interpreting our shared moral commitments, treating law instead as a mere means of resolving disputes. The chapter also celebrates the democratic character of common law, which, although articulated by judges, responds to reasons and problems emerging from the citizenry and attends to moral expectations embodied in customary practices. The chapter underscores the importance of common law (and the doctrine of good faith) in publicly articulating reasons and drawing on the underlying values that law serves, democratic functions that are lost when litigation is replaced by private arbitration and overlooked by a narrow focus on elections.

The reversal of Roe v. Wade raises the prospect that other due process guarantees upon which individuals have organised their lives, including the constitutional rights to same-sex intimacy and marriage, will be overturned. These potential upheavals in the hard-won legal infrastructure of basic social status call for a careful look at reliance arguments for sustaining constitutional precedent. When does reliance on a judicial decision provide reason for a court to sustain a precedent in the face of substantial doubts or convictions that the original decision was importantly mistaken?Our commitments to democratic law pose distinctive challenges for reliance arguments in the public law domain that do not burden reliance arguments in the private law domain. A persuasive reliance argument in the public law context must offer a merits-independent rationale identifying limited circumstances in which reliance would justify honouring a prior (mistaken) decision and honouring it prospectively, into the future. I detail the challenges and offer a democratic account to identify when overturning a mistaken decision would impose an unfair and inequitable hardship. On this account, abortion, contraception, and same-sex intimacy rights warrant continued affirmation given reliance behaviours, but not other rights, including rights to gun ownership and freedom of contract.

Legal domains concerned with deception often recognize and regulate cases of negligent deception. The philosophical discussion of deception should follow suit, shifting from an exclusive focus on deception-as-wrongful-manipulation to a broader panorama that includes negligent deception and contemplates cases in which negligent deception may be wrong even when intentional deception about the same information may be permissible. Interesting philosophical questions then arise about what distinguishes negligent deception from mere misunderstandings and mistakes. Those questions require further thought about how relationships involve epistemic cooperation and interdependence, and when such relationships generate responsibility for others’ mental contents.