Legal Obligation and Ability

ABSTRACT

In Wilmot-Smith’s recent ‘Law, “Ought”, and “Can”,’ he argues that legal obligation does not imply ability. In this short reply, I show that Wilmot-Smith’s arguments do not withstand critical scrutiny. In section 1, I attack Wilmot-Smith’s argument for the claim that allowing for impossible obligations makes for a better legal system, and I introduce positive grounds for thinking otherwise. In section 2, I show that, even if Wilmot-Smith had established that impossible obligations make for a better legal system, his subsequent attack on OIC fails.

KEYWORDS:

• Ought implies can
• legal ought implies can
• debt obligations
• duties of care
• legal coercion
• legal guidance

Disclosure statement

No potential conflict of interest was reported by the author(s).

Notes

1. (Wilmot-Smith 2023, 543).

2. My silence on the arguments in the second part of Wilmot-Smith’s article should not be interpreted as endorsement.

3. (Wilmot-Smith 2023), p. 537: ‘in seeking to ensure that all norms are feasible the ideal motivating that ambition would become indirectly self-defeating: the norms would be less effective as guides… I will offer examples of this at the individual and institutional levels… if legal standards were systematically leveled to each individual’s abilities, certain facts about the content of those legal obligations would be harder to ascertain. This would make it harder for individuals to be guided by law.’

4. (Wilmot-Smith 2023, 538).

5. (Wilmot-Smith 2023, 534).

6. Note that the ex hypothesi here is on Wilmot-Smith’s part: if it were possible for the person to comply with her duty of care in this case, then the example falls apart: there is no longer a violation of LOIC.

7. My reconstruction above is a paraphrase of the following paragraph from Wilmot-Smith’s article.

In Vaughan v. Menlove, the defendant – a man of below-average intelligence – put his hayrick at the edge of his land. The hayrick spontaneously ignited, and his neighbor’s house burned down. The claimant sought damages from the defendant and succeeded at a trial before Patteson J. The defendant argued that this should be set aside on the grounds that he ‘ought not to be responsible for them is fortune of not possessing the highest order of intelligence.’ Tindal CJ rejected this argument. ‘Instead…of saying that the liability for negligence should be co-extensive with the judgment of each individual,’ he said, ‘we ought rather to adhere to the rule which requires in all cases a regard to caution such as a man of ordinary prudence would observe.’ The defendant’s argument was that this standard was more difficult for the court to apply than their proposed subjective standard. But the opposite is true for the same reason that the objective standard of care is easier for the insurer to apply (Wilmot-Smith 2023, 538).

I note two things in passing.

First, Wilmot-Smith’s defense of the claim that ensuring possible compliance with duties of care undermines guidance in this case is remarkably thin (it is contained entirely in the assertion in the final sentence of the excerpt above), remarkable given that this is precisely what he needs to show, the crux of his argument. In my view, the argumentative burden of proof lies firmly on Wilmot-Smith, and he has not met it – and this is so entirely independently of the failure of the insurance example to which Wilmot-Smith appeals in that sentence.

Second, Wilmot-Smith’s analogy (in the final sentence of the excerpt above) between the court and the insurance agency does not work. For the court, there is no question of physical ability; the question is purely epistemic (i.e. there is no question of whether defendant was able to move his hayrick; the question is whether it should have occurred to defendant that his placement of the hayrick posed a risk to his neighbor’s property). By way of contrast, for the insurance agency, there is, perhaps, an epistemic question (Wilmot-Smith does not fill in the details of the case sufficiently to determine this one way or another), but there is also, more obviously and more pertinently, a question of physical ability. This breakdown of Wilmot-Smith’s analogy is deeply problematic for his argument inasmuch as, in debate about OIC, only a small minority of OIC defenders argue that ability must be indexed to epistemic ability (rather than merely to physical ability). Indeed, Wilmot-Smith himself does not seem to think that OIC requires epistemic ability; he asserts that ‘an agent is “able” to [fulfill their duty] only if they are physically and psychologically able to do so and have the relevant opportunity’ (Wilmot-Smith 2023, 532). (Some might think that psychological ability includes epistemic ability. But, generally, psychological ability in this context refers to things like desires and (absence of inner) compulsion or coercion.)

8. Once again, the ex hypothesi here is on Wilmot-Smith’s part: if it were possible for defendant to comply with his duty in this case, then the example no longer contains a violation of LOIC.

9. Some might object that the burden of proof is on me to provide evidence that this implicit premise is false: if I merely assert that there might be other reasons for subscribing to the LOIC, without evincing any such reasons, then my first criticism is weak. However, I have met this burden of proof via the coerceability proviso.

10. Similarly, we are likely to get different results if we consider all humans that ever have lived on earth up until the time of the application of the standard as opposed to, say, all humans that have gone through the public school system in the last five years in the country (or locale) where the standard is applied.

11. Indeed, we might reject the decision in Vaughan v. Menlove, the case Wilmot-Smith appeals to for his liability for negligence example (see note 7 above), as unjust on precisely these grounds. More, this decision is often cited as having first introduced the ‘reasonable person’ standard and, therefore, may be cited as the progenitor of a tradition of irresponsible legal reasoning and decisions.

I might be told (and, indeed, have been told) that the objections I raise in this footnote are pure assertion. However, that is not so. Indeed, the point I am making is that, to date, claims about the reasonable person standard, used to justify legal decisions in the tradition of Vaughan v. Menlove, are pure assertion, and that they are so in a context in which this assertion cries out for defense.

To make this concrete: I see no reason to accept that it would occur to a ‘reasonable person’ that a hayrick, parked near a neighbor’s house in hot weather, is a fire hazard. Of course, I might be wrong about this (i.e. about whether a reasonable person would take a hayrick to be a fire hazard). But, that is illustrative of, and not a problem for, the point I am trying to make. We do not seem to have infallible epistemic access to what should (or should not) occur to a reasonable person in a given context, and, because the legal decisions that have been based on this standard have so much consequence, at least for those involved in the trials, it seems to me that more work needs to be done to justify what heretofore have been pure assertions about what follows from this standard.

12. (Wilmot-Smith 2023, 540),‘[T]he OC critique must hold that all debts which are impossible to perform are, for that reason, morally indefensible. This places substantial intuitive pressure on the OC critique. That pressure is increased by the wider counterintuitive implications the OC critique seems to warrant when applied to debts. If an individual cannot pay their debts at t, the OC critique suggests that the individual cannot, morally, have a duty to pay at t. The obligation ought, therefore, to be canceled. This would render incoherent legal institutions – like bankruptcy, insurance, and guarantee – which presuppose the validity of such obligations. I have already discussed obligations of insurance; let me, then, turn to bankruptcy and guarantee.’

I note in passing that Wilmot-Smith’s reference to his previous discussion of obligations of insurance is quite awkward inasmuch as there is no obvious way to bring his insurance example, which was used to illustrate duties of care, to bear on the present issue. For that reason, I have declined to include the legal institution of insurance in premises 3 and 4 of my reconstruction above.

13. (Wilmot-Smith 2023, 540).

14. (Wilmot-Smith 2023, 541).

15. (Wilmot-Smith 2023, 542).

16. (Wilmot-Smith 2023, 542).

17. (Wilmot-Smith 2023, 542).

18. (Wilmot-Smith 2023, 545).

19. (Wilmot-Smith 2023, 542–545).

20. (Wilmot-Smith 2023, 543).

21. Wilmot-Smith gives no examples to illustrate this claim, nor is it clear how unappealing (and, thus, how weighty the cost of) this is supposed to be.

22. (Wilmot-Smith 2023, 544).

23. (Wilmot-Smith 2023, 544).

24. (Wilmot-Smith 2023, 545).

25. (Wilmot-Smith 2023, 545). Although I have no intention of dwelling on it here, it is worth pointing out that this conclusion is false. Wilmot-Smith considers only versions of OIC for which ought logically entails ability. However, some philosophers defend a version of OIC which says that ought conversationally implicates ability, and this would obviate the problems he raises.

26. (Wilmot-Smith 2023, 545).

27. The argument in this paragraph can be sharpened. The fact that OIC has come under widespread and sustained attack is not an explanatory or a theoretical cost. Indeed, given how philosophy journals and presses work, attacking OIC probably would not be popular and publishable if the principle were not widely held. So, not only does citing this widespread and sustained attack on the principle not evince a theoretical or explanatory cost associated with it, but it also does not show that the principle is unpopular (which itself would not be a theoretical or explanatory cost), and, in fact, may be cited as prima facie evidence to the contrary.