There are some interesting things to say about the state of mind of the rights violator, and about how this state of mind leads to rights violations and subsequent liability and punishment. There’s malevolence, of course, but that’s just one extreme of a wide spectrum of states of mind that can cause rights violations. We’ll have a look at that spectrum here, and classify states of mind according to the degree of liability and the severity of punishment that should attach to them. (By some accident of the English language, all states have a name that ends in -ence. Makes it easier to remember).
A malevolent violator acts intentionally. She knows the harmful consequences of her actions and acts anyway. In fact, she acts precisely because of those consequences. The notion of mens rea is applicable here. An example of malevolence is premeditated murder.
A non-benevolent or negligent violator also acts – or omits an action – intentionally. She also knows the harmful consequences of her actions or omissions and proceeds anyway, not because she wants the consequences but because she doesn’t care enough about them. An example of non-benevolence is the failure to help persons in need (the classic case of the drowning child). An example of negligence is the factory owner failing to install safety measures for her workers. (There may be a problem with the notion of “failure to help persons in need”: given the large number of people in the world that are in some sense “in need”, we may not be able to help them all without radically changing our own lifestyles. All of us who are not now in Africa working to end poverty may then be liable. Perhaps we can avoid this excessive burden by limiting this liability to face-to-face situations such as the drowning child, but it’s not clear that there’s a sound moral basis for this limitation).
An unintelligent violator acts unintentionally. She doesn’t know the harmful consequences of her actions, but she could have known them without much effort. Because she could have known them, she should have known them. And because she should have known them she is liable for them. It’s a form of negligence: the actor is intellectually negligent. She is not negligent in the sense that she does not care about consequences but in the sense that she does not reflect on them or does not care enough to reflect on them. An example of an unintelligent actor is the bar fighter.
A coincidental violator also acts unintentionally, and also doesn’t know the harmful consequences of her actions. The difference is that she couldn’t have known them, or couldn’t have been expected to know them, within reason. Because she couldn’t have known them, we can’t demand that she should have known them. And yet, in some cases we may still hold her liable. An example is fraternal incest between brother and sister separated at birth. Another example is the drug company selling a product that has been thoroughly tested but still has some unforeseen and unforeseeable harmful effects. Obviously this is a reduced form of liability.
An ascendental violator also acts unintentionally. She may or may not know the harmful consequences of her actions. The nature of this type of state of mind is that she doesn’t know her actions. We’re dealing here with unconscious rights violations. People may violate rights but don’t realize that they do. They may act because of tradition, because certain rules or biases were instilled in them in early childhood etc. In some cases, they can be held responsible for their actions. The word “ascendence” therefore refers to what goes above and comes before. An example is here.
An incidental violator is just there. We don’t know anything about her state of mind. We don’t know whether she acts intentionally or not, knowingly or not, willingly or not. We don’t know whether she could or should have known or done something. For example, we see patterns of discrimination in society, and someone must be discriminating. We may be able to identify that someone and hold her responsible even when we lack all other knowledge about her. An example would be a company systematically paying female employees lower wages.
Here’s a summary representation of the spectrum of states of minds, according to the degree of liability :
More posts in this series are here.
- Accident Liability | eLocal (elocallawyers.com)