Why "blame without legal judgment", but "no judgment without blame"? What do these even mean? I never studied philosophy. Can someone kindly explain like I'm 5 the emboldened sentences below?
Please see subject line.
AP Simester, ‘Can negligence be culpable?’, in Jeremy Horder (ed.), Oxford Essays in Jurisprudence: Fourth Series (Oxford: Oxford University Press, 2000), p 94.
Core cases are all very well, but others lie at a distance from the paradigm so far considered. Logically, it is possible for the values of a legal system and those of general morality to conflict, even explicitly. In Toledo, &c. Railway Co v Pindar,27 for instance, the plaintiff Pindar was held contributorily negligent for saving some horses rather than a sum of money when both were threatened by fire, on the ground that the former were much less valuable than the latter and that the suffering of the horses was of no legal account. While the decision may reflect considerations specific to tort, it is hard to see how that approach could be defended in contexts where culpability provides the rationale for judgment; especially in criminal law. If the defendant’s behaviour is morally acceptable it cannot be the subject of blame and, therefore, should not be subject to criminal condemnation or punishment.
To a large extent, the analysis offered here is content independent. It does not seek to identify which acts defendants are required (i.e. under a duty) to avoid. This is because, generally speaking, the moral constraints upon law are exculpatory not inculpatory. Let there be no judgment without blame. But there may be blame without legal judgment. My failure to rescue a stranger may be reprehensible, lawful, and properly so.28 Similarly, in the evaluation of reasonableness, not all considerations will be straightforwardly moral in character. It may be noble to prefer the interests of others yet, for reasons of convenience or self-interest, acceptable not to. Thus, in Marshall v Gotham Co Ltd,29 where measures required to minimise the risk of a mine roof falling were complex, expensive, and partial rather than comprehensive, the House of Lords ruled that the defendants were not negligent in continuing to mine without such precautions. It can be in the interests of a community that individuals be free to act selfishly; in turn, the defendant may benefit from considerations such as the effect on the community if everyone were prevented from behaving as did she.30
On the other hand, the justified content of law may depend on values over which there is genuine disagreement. This presents no particular difficulties for the analysis of negligence. When we criticise particular rules,31 as many of us do, we implicitly argue that the reasons for which the defendant is required to act should in some way
be modified. A committed anti-vivisectionist might argue that a reasonable person should want to prevent vivisection sufficiently strongly that he would consider it acceptable to bomb an animal testing laboratory; a devoted spouse, when denying that euthanasia is immoral, impliedly contends that the desire to preserve life should not always be overriding. Others will dissent. The disagreement simply manifests how difficult it can be to concur whether an outcome is morally desirable.