INSTALACIONES DE ENLACE 1. CAJA DE PROTECCIÓN Y MEDIDA

Sher’s book has been reviewed in a number of journals by various philosophers. Here, I introduce some remarks that I have come across in some of the reviews and that I think are noteworthy – in addition to the previous reviews by Michael J. Zimmerman and Angela Smith.

In his review, philosopher Bruce N. Waller asks that “even if we accept the claim of moral responsibility in searchlight cases, does it follow that because the same mechanism is involved in both there is moral responsibility in the more problematic cases?” Sher’s expansion of the searchlight view via PEC and ultimately FEC requires that we accept that there is some connection between claims of moral responsibility in searchlight cases and the nine example cases that he provides to illustrate why non-conscious aspects would also matter. However, this doesn’t seem to be the case, necessarily, and Waller presents a scenario as a thought experiment that would seem to indicate this.

(Waller 2014, 642.) Waller’s scenario tries to illustrate why Sher’s intuitions in his example cases may be too quick to judge:

“Imagine a runner who has just completed three eight-hundred meter sprints in quick succession, and now must run another. She runs the final sprint at a pace that is severely substandard compared to her usual swift pace, and we blame her for her dilatory effort. ‘That’s not fair’, she will reply. ‘I ran as fast as I could. It’s not fair to blame me for running less successfully when I’m exhausted from three hard sprints’. ‘You are still to blame’, we insist,

‘after all, the constitutive elements that were involved in your swifter first sprint are exactly the same elements involved in your last subpar effort’. ‘Of course they are’, she retorts, ‘I didn’t imagine that my last sprint was subpar because a demon had taken possession of the constitutive factors that enable me to run. It was subpar because those “constitutive elements”

were already run down. Of course the subpar effort was my own; but that doesn’t mean I deserve blame for it.’ This is precisely the situation some of Sher’s cases involve.”⁹⁷ (Waller 2014, 642–643.)

Via this example, Waller notes how similar problem may apply to several or all of Sher’s example cases. He discusses, as an example, Sher’s example case Hot Dog; the case where Alessandra drives to pick up her children at their elementary school, gets distracted by the school administrators’

bungling, and forgets the family dog Sheba in the hot van for several hours. Waller notes that settling the school administrators’ bungling requires substantial investments of rigorous deliberation on Alessandra’s part, and this makes her forget Sheba. Alessandra does not consciously recall Sheba being in the van, and, Waller notes, “of course the same constitutive elements that enable Alessandra to deliberate consciously (and usually very well) are in this instance the source of her deliberative failure (her failure to bring the important factor of Sheba into her conscious deliberations).” Thus, in Waller’s view, even though Sher may be right that intuitively we may feel that Alessandra deserves blame for forgetting Sheba, perhaps our intuitions shouldn’t be so quick to judge here. Sometimes our constitutive deliberative elements (of which we are largely unaware of) may, as a consequence of a particular situation, be compromised in an equivalent way to the ability of a runner to run three consecutive eight-hundred-meter sprints in the same quick pace. It becomes physically and psychologically impossible. (Waller 2014, 642–643.)

Waller notes that Alessandra may be in a state of what psychologist Roy Baumeister calls ‘ego depletion’: a state where her capacity for deliberation is severely limited due to her being mentally encumbered in the situation.⁹⁸ By making this overall notation, Waller is saying that the same constitutive deliberative faculties of an agent may function well in one situation, when the agent is well rested and in good health, but may function poorly in another, when the agent in encumbered or exhausted. As a result, it may not be so clear as Sher thinks that his example case(s) would require

responsibility – and hence blameworthiness – outside the confounds of some version of the searchlight view, when we take note of these kinds of cognitive boundaries in human deliberation, and consequently judge them more charitably.⁹⁹ (Waller 2014, 643.)

A somewhat similar sentiment of doubt about the limits of the searchlight view is also briefly echoed by philosopher Dana Kay Nelkin, stating as an example of Sher’s example case Jackknife that

“depending on whether Father Poteet’s case is filled out with details about what was likely to have happened if he had stopped abruptly instead, we might be tempted to absolve him of responsibility altogether” (2011b, 676 & 678; cf. sect. 3.3.2).¹⁰⁰ Likewise, philosopher Matthew Talbert echoes this sentiment, illustrating the point via Alessandra: we do not know anything about her background nor about the specifics of the situation, e.g. what the hassle at the school was about, which may contain further details that would affect our intuitions (2011, 147–148).¹⁰¹ Talbert also notes that as Sher doesn’t distinguish between a “moral wrongdoing” concerning a mental lapse from a wrongdoing concerning a deliberate negligence, it is not very clear how strong a wrongdoing the former would be in comparison (2011, 150–151). It can even seem tragic rather than blameworthy (Talbert 2011, 150–

151). Thus, overall, Sher’s intuitions about these cases do not necessarily enjoy such an infallible status as Sher seems to take them to enjoy. Even if we accept the agents in the example cases to be intuitively responsible, some version of the searchlight view may still suffice to explain those intuitions, after we specify further details – or background assumption – about the cases.

In Sher’s argument about the applicable standard in clause 2a of FEC – in which he endorses evaluating the agent against a similar situation via his own variant of the reasonable person standard (see sect. 4.1.2) – he encourages us to focus on the agent’s constitutive attitudes, dispositions, and traits, distinguished from the agent’s situation. Applying some of Nelkin’s thoughts to my own: the examination of where to draw the line between the agent and their situation may run into some trouble if we were to examine some relevant psychology. The trouble being that it may be very hard to define the constitutive properties of a person, psychologically, even if we find some demarcation intuitively appealing. In Sher’s account, there is no obvious reason why some aspects of the agent’s psychology would not be considered constitutive. Thus, Sher’s case further rests on arguments of what exactly should be considered constitutive of agent’s psychology and why. Unless further extrapolation is made, the constitutive features might be so expansive as to practically include the whole of agent’s psychological make-up. This might allow features such as moral blindness – and similar properties – to be counted as constitutive of an agent. At which point maybe the searchlight view (i.e., Sher’s clause 1), or as Nelkin says “what can fairly be expected of the person”, is all that matters. Sher even

himself notes that there is a lot of disagreement about where the line should be drawn, and is himself rather vague about the demarcation, but remains committed in his approach (see sect. 4.1.3.2).

Specifically, there is a lot of disagreement about the matter in the legal context, let alone in the moral context, into which Sher is bringing concepts from the legal context (most relevantly “similar situation” and “the reasonable person standard”). (see Nelkin 2011b, 677–679.)

Furthermore, Nelkin notes that Sher’s applicable standard states that moral demands are only directed at agents in their capacity as reason-responders (see sect. 4.1.2.2). The relevant cognitive capacities Sher takes to include, for example, the agent’s disposition to notice various features of their surroundings (ibid.). This, Nelkin notes, seems to be in tension with Sher’s demarcation of the boundary between the agent and their situation. For example, if we consider an agent’s habitual fear to limit their cognitive capacities, we cannot also consider it to be part of their constitutive features but rather a part of their situation. Thus, for example, it could be interpreted that the agents in the nine example cases are not responsible, insofar as their failure was due to their disposition to not notice relevant features of their surroundings (or if they fulfil the other criteria outlined at the end of section 4.1.2.2). (Nelkin 2011b, 679.)

However, having said everything in the last two paragraphs, we may charitably interpret Sher’s list of relevant cognitive capacities to refer to agents who are significantly limited in their abilities.

Thus, usual fear would not be included in the list, but, for example, features such as cognitive disabilities, clinical memory loss, and sever psychological illnesses would. All cognitive features not included in severe limitations would be considered constitutive. Of course, a grey area would still remain, but this interpretation would at least enable some clear distinctions. (see sect. 4.1.2.2; see also 4.1.3.2; Talbert 2011, 146–147.)

As a final critical point of Sher’s account, Nelkin (2011, 679–680) asserts that Sher is committed to a very controversial view of the control condition, in other words the “ought implies can” principle (see sect. 3.4.2 & 4.3). As Nelkin (2011, 679–680) summarizes, the principle states that one is obligated to do something only if one has control over it. Sher’s view goes directly against this as, in his view, one can have moral obligations to exercise certain psychological capacities even when those exercises are not consciously chosen (i.e., in a sense, even when one has no control over them).

Despite Sher’s attempt to justify abandoning the condition, the topic is left quite open (see sect. 4.3).

If Sher’s account requires us to abandon the control condition, and the control condition is closely connected to the searchlight view, Nelkin takes this to mean that the searchlight view or some variation of it might come on top after all.

Sher himself answers a question of might there be a double standard when he trusts his intuitions so strongly in formulating his case, but at the same time dismisses the strong intuitive appeal of the control condition: he claims the difference lies in that the example cases he uses to justify our (or his) intuitions about the role of non-conscious factors in responsibility are relatively uncontaminated by theory, whereas the control condition is deeply bound up with theoretical commitments that should be abandoned (Sher 2009, 152; see also sect. 4.3).