This book is about the role causation plays in the attribution of both moral responsibility and legal liability (in the law of crimes, torts, and to a lesser extent, contracts). The book strips away many of the usages of the word ‘causation’ in law and legal theory, on the grounds that such usages have little to do with causation itself. What remains is the law's use of ‘causation’ to name a natural relation that is at the heart of both ordinary and scientific explanations of the world. Some normative defense is offered as to why causation in this sense is a proper basis for assessing degrees ... More
This book is about the role causation plays in the attribution of both moral responsibility and legal liability (in the law of crimes, torts, and to a lesser extent, contracts). The book strips away many of the usages of the word ‘causation’ in law and legal theory, on the grounds that such usages have little to do with causation itself. What remains is the law's use of ‘causation’ to name a natural relation that is at the heart of both ordinary and scientific explanations of the world. Some normative defense is offered as to why causation in this sense is a proper basis for assessing degrees of both culpability and permissibility in morality and also in law. A more extended metaphysical defense is also offered, as to the nature of the causal relation and as to the nature of the things related by the causal relation. This normative and metaphysical analysis is used as the springboard from which to critique much of what the law currently says about causation, including the law's counterfactual test for cause in fact, its notions of intervening cause, foreseeability, harm within the risk, accomplice liability, the causal status of omissions and of non-omissive allowings, and more besides. The result is a rethinking of causation's nature and role in our legal and moral practices of assigning blame and responsibility.
Keywords: criminal law, counterfactuals, accomplices, proximate causation, legal theory, culpability, permissibility
|Print publication date: 2009||Print ISBN-13: 9780199256860|
|Published to Oxford Scholarship Online: May 2009||DOI:10.1093/acprof:oso/9780199256860.001.0001|
Writing about guilt feelings can open the floodgates to readers' own painful and unresolved guilt, but also to outrage at those who should feel guilt, but don't. The probing and rich comments I received on line and in email about my essay, "The Moral Logic of Guilt," touched on both responses and set me thinking more about the appropriateness of various guilt feelings.
With a focus on soldiers' narratives, the gist of my claim was that blaming oneself for the luck of surviving or for accidents where there is no culpability or negligence seems, in one sense, irrational, and yet, in another, perfectly morally reasonable. The irrationality hangs on the fact that culpability, and so justified blame or reproach, requires voluntary agency--deliberate wrongdoing or failure to prevent harm where one could have. Feeling guilt in the circumstances of non-negligent accidents or in the luck of merely surviving doesn't track culpability in that objective sense.
But what the guilt does track, or get right, is the sense of betrayal in not being able to bring a buddy home, perhaps because of a tactical, operational decision with tragic, unforeseen consequences, as one commenter writes or simply because others' luck ran out and yours didn't. Another commenter, who served as an artillery forward observer assigned to an infantry company in Vietnam, speaks hauntingly to that point: "Forty-one years since I came back from Vietnam, but I still have to deal with survivor guilt almost every day...The guys took care of me." And, in turn, he said, "I felt responsible for them." But, "no matter how good I was, no matter how many shells I called in, no matter how fast and accurate the guns were-we kept losing them."
The tacit thought here, perhaps, is that no matter how good he was it still wasn't good enough to save lives. And so there is the replay of the gnawing counterfactual: "If I could have done something more, or done this rather than that, I should have." This is a thought I have heard from many soldiers. They feel they that they have fallen short of an idealized sense of courage or valor or performance skill. And guilt and self-blame, the taking on of responsibility where one has strictly speaking done no wrong, becomes a way of coping with that harder-to-uncover feeling of shame, and its companion feelings of impotency and helplessness.
Shame didn't come up by name in the comments, but it lurked in the insightful remarks of one lieutenant colonel, when he writes that some soldiers even those who have seen combat, want that opportunity "that very few are given, to do something truly heroic...something truly significant with their lives. For example, throw themselves on a grenade to save their comrades." At at time when President Obama bestowed the Medal of Honor to Sgt. 1st Class Leroy Petry who had done close to that and survived to shake the President's flesh and blood hand with his own prosthetic, the comment resonated deeply with me.
But the flip side of wanting indisputable proof of courage under fire is that we are vulnerable to doubts about our goodness and to fears that if tested hard, we might be found wanting. This is what shame is about. It is the fear of naked exposure, not just before others but before ourselves. You don't have to be in an "honor culture," such as the military, to be susceptible to it. Narcissistic injuries run deep in all of us. And they underlie survival guilt, as a survivor implies: the realization of "absolute powerlessness" in survival guilt "must have a devastating effect on one's confidence and heroic self-image."
Empathy is one healer of shame and perhaps, as I reflect on it now, why I appealed to it in cases where guilt can subtly mask shame. Guilt, as I suggested earlier, can be a socially respectable, indeed, redemptive and humanizing response. It presumes agency and responsibility, and so in the case of war, makes the experience of war, for those who carry it out, more than merely a scourge or tragedy. It accords blame, even if, as many commentators duly noted, those who should take blame often don't. But shame is a different kind of emotion. It focuses not on what you did as participant and agent, but on who you are and your failure at being what you hoped you would be. In severe and corrosive forms, it can undo an ego. Empathy, from others and from a benevolent self, is a way to begin to glimpse at lost and recoverable goodness. I say recoverable here, as a critical reminder that in the past two years, there have been more troop deaths due to suicide than to combat. Presidential condolence notes to the families of military suicides is one to begin to lift the stigma of mental health, but far more needs to be done to convince troops that seeking mental health counseling is not a sign of moral weakness. The myth of the invincible, stoic warrior, as I have written before in The Stone, is hard to shatter.
There is a final point that several commenters raised and that needs mention. And that is the guilt felt, often justifiably so, for killing innocents in war. In population-centric wars, such as those in Iraq and Afghanistan, fought in and amongst civilians, troops daily transfer risks from civilians onto themselves to protect those civilians. That is the nature of counterinsurgency operations and the current rules of engagement reflect its principles. Still innocents are killed, and massively so, whether by drones, by miscalculations and accidents on the ground or in the air, or collaterally, as the unintended but foreseen consequence of actions aimed at critical military targets. In my book, "The Untold War," from which the Stone essay draws, I write of an interview I conducted with a Marine colonel who told me how devastated his troops became when Iraqi children were injured or killed when cars ran the "trigger lines" at checkpoints. One incident he described took place in the early days of the war in Iraq when rules of engagement were more permissive than they are now: "Many times, at the trigger lines, they waited and waited before they fired, putting themselves at risk with cars skidding to a halt right in the middle of their position. And I would yell at them for it, because had there been a bomb in there, they would have been dead. But having said that, when a child was killed, they would be emotionally upset by it." They were more vulnerable. They couldn't shake what they had done. In some cases, units had to be taken off line.
It may be easier, psychologically, for troops to accept the transfer of risk when children are the civilians. The marines are vulnerable precisely because children are vulnerable. As boy-warriors, not much older than those they killed or injured, the marines can easily regress to become those children. But there are also moral reasons at work, here, for accepting, greater transfer of risk. And this takes us back to war fought amongst the people. Soldiers need to win hearts and minds. But one way of doing that is by a readiness, at times, to be more police than warfighter. At such moments, they need to be the good cop, who restrains deadly force, develops a situation without risking innocent lives, and acts as overall social healer and protector in a scene of violence. To fail to do that, especially in the eyes of a child, desperate for moral order and a way out of war's chaos, is morally devastating. That kind of guilt is one more awful injury of war.
Copyright Nancy Sherman
This first appeared in The New York Times