I never studied philosophy. Can someone kindly explain like I'm 5 the emboldened sentences below? What does "the defendant may benefit from considerations such as the effect on the community if everyone were prevented from behaving as did she" mean?

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

p 95

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.


Selfish behavior can often benefit the community. For example, most economic activities are selfish and also beneficial to the community.

You sell legal services for monetary gain; Your clients receive legal services at a drastically reduced price and/or increased quality than by producing those services for themselves.

If there is genuine disagreement about the morality of your profit seeking behavior, you could argue that the community would lack such services if everyone were prevented from charging for those services.

  • "If there is genuine disagreement about the morality of your profit seeking behavior, you could argue that the community would lack such services if everyone were prevented from charging for those services." What does this mean? can you explain like i'm 5 please? – Nai Aug 14 '20 at 15:52
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    @swansea if i'm not allowed to be paid for making bread I won't sell bread. If nobody is allowed to be paid for making bread then nobody will sell bread. Everyone will have to make their own bread at home, or they won't have bread. – user253751 Aug 19 '20 at 17:43
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    A community would try to set up rules so that people acting in a selfish way benefit the community. Well-run businesses will set up rules so that employees acting in a selfish way will benefit the company. – gnasher729 Aug 22 '20 at 0:12

From a liberal point of view, selfish behaviour motivates – per comparative advantage (and a few suppressed premises) – a division of labour which is economically beneficiary to each individual that participates in it and thus promotes a wealthier society.

The starting position of the argument is a society of self-catering people. Everybody does every work – most of which he probably don't like and is not particularly good at. Now, if everyone would (selfishly) concentrate on doing the things she likes because she is good at them (division of labour), most work would be done better. Better work is evaluated and compensated higher than worse work. So, by doing better work, each individual profits from this division of labour (comparative advantage).

All in all, society climbs to a wealthier level of living.


I'm a little stumped by the terminology.

Are we defining "selfish" as a mining company that cuts corners on safety, or is all economic activity inherently "selfish"?

And are we asking if a community "can" occasionally benefit from a selfish act, or are we asking if selfish behavior is OK as a norm?

Furthermore, which is the selfish party in this case, the mine or the legal system that (as far as I know) failed to compensate the victim's widow?

From a brief account of this particular mining incident:

Lord Reid held; the only way to make a roof secure against a slickenside fallappears to be shore it up, and, as the presence of slickenside cannot be detected in advance, full protection against this danger would require thatevery roof under which men have to pass or to work should be shored upor timbered. There is evidence that this is never done in gypsum mines and that in this mine the cost of doing it would be so great as to make the carrying on of the mine impossible.

So the argument might be a selfish attitude (e.g. safety over profits) would preclude ALL mining. However, one could also argue that a little less selfishness might have shut down this particular mine, saving one life.

It sounds like this was kind of a freak accident that was hard to predict, so we might give the mining company a break. On the other hand, it seems a little questionable that the widow of a miner who was killed on the job should receive no compensation.

We commonly hear the mantra that "greed is good" in the corporate sector, but whether corporate greed/selfishness on a whole is helping or hurting mankind is a hotly contested question.

As a general rule, I think everyone would be better off if corporations behaved as if they were part of the community, which implies a decrease in selfishness. In other words, they should act like the members of the community.

The people who would suffer under such a system (in the U.S., at least) would include the CEO and shareholders, who typically make outrageous fortunes, increasing the gap between the rich and the poor. However, those people don't constitute "the community."


Other answers have explained generally why selfish behavior can sometimes benefit the community. I will attempt to explain the phrase "the defendant may benefit from considerations such as the effect on the community if everyone were prevented from behaving as did she."

Let us use the author's example of the mining company which had an opportunity to take certain precautions to minimize the risk of a mine roof falling. The author explains that these precautions would be complex, expensive, and partial rather than comprehensive---meaning that even if the company took these complex, expensive precautions, the risk would only be partially reduced. The author says that the company decided to continue to mine without these precautions. Somehow it came to the House of Lords to rule on whether the company was negligent for mining without these precautions, and the House of Lords ruled that it was not negligent.

behaving as did she: In this case, mining without the precautions.
if everyone were prevented: Let us imagine a hypothetical community in which everyone were prevented from mining without the precautions. In other words, mining would be possible only with these complex, expensive precautions, which only partially reduce the risk of the mine roof falling.
the effect on the community: Comparing this hypothetical community to our own, we can begin to imagine the effect on the community: Mining would become more expensive overall. Some mines might go out of business and close. Coal or other mining products would become more expensive. The question is whether these effects would harm the community, and how much.
the defendant may benefit from considerations such as: If the court thought these effects would be benign, it would not affect the case. On the other hand, if the court thought these effects would harm the community, this could be a reason to accept mining without the precautions as justifiable and rule that the company was not negligent.

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