Culpability

About: Culpability is a research topic. Over the lifetime, 1775 publications have been published within this topic receiving 22654 citations. The topic is also known as: liability.

Risk and Responsibility

Abstract: level. Risks only exist when there are decisions to be taken, for reasons given earlier. The idea of responsibility also presumes decisions. What brings into play the notion of responsibility is that someone takes a decision having discernable consequences. The transition from external to manufactured risk is bringing about a crisis of responsibility, because the connections between risk, responsibility and decisions alter. This is a crisis of responsibility with negative and positive features, roughly corresponding to the negative and positive aspects of risk. Given the inherently ambiguous nature of most situations of manufactured risk, and the inherent reflexivity of these situations, responsibility can neither easily be attributed nor assumed. This applies both where responsibility means limiting risk (as in ecological risks, or health risks) and where risk is an energising principle (financial markets). Several consequences follow: 1. The emergence of what Beck calls ‘organised irresponsibility’. By this he means that there are a diversity of humanly created risks for which people and organisations are certainly ‘responsible’ in a sense that they are its authors but where no one is held specifically accountable. Various questions then come to the fore. Who is to determine how harmful products are, what side effects are produced by them, and what level of risk is acceptable? How can ‘sufficient proof’ be determined in a world full of contested knowledge claims and probabilities? If there are damages to be paid, or reparations made, who is to decide about compensation and appropriate forms for future control or regulation? Much of the ‘social interrogation’ of risk and responsibility takes place through the prism of external risk and simple modernisation. This is true, for example, of anyone who expects an actuary to predict risk, and therefore assess responsibility, on the basis of past trends; or of anyone who supposes that one can simply turn to experts to provide solutions. Coping with situations of organised irresponsibility is likely to become more and more important in the fields of law, insurance and politics, but this won’t be easy to do precisely because of the rather imponderable character of most circumstances of manufactured risk. The dilemma of scaremongering versus cover-ups is a direct indication of the deep seated nature of the problems involved here. 2. Some say that the most effective way to cope with the rise of manufactured risk is to limit responsibility by adopting the ‘precautionary principle’. The notion of the precautionary principle seems to have first emerged in The Modern Law Review [Vol. 62 8 s The Modern Law Review Limited 1999 Germany in the 1980s, in the context of the ecological debates that were carried on there. At its simplest, it proposes that action on environmental issues (and by inference other forms of risk) should be taken even though there is scientific uncertainty about them. Thus in the 1980s, in several Continental countries, programmes were initiated to counter acid rain, whereas in Britain lack of conclusive evidence was used to justify inactivity on this and other pollution problems too. Yet the precautionary principle isn’t always helpful or even applicable as a means of coping with problems of responsibility. The precept of ‘staying close to nature’, or of limiting innovation rather than embracing it, can’t always apply. The reason is that the balance of benefits and dangers from scientific and technological advance, and other forms of social change, is imponderable. We may need quite often to be bold rather than cautious in supporting scientific innovation or other forms of change. This having been said, variations on the precautionary principle can nevertheless be a significant way of reintroducing responsibility. One variant of the principle, for example, is that firms producing goods should think through the whole product cycle before those goods are released onto the market or relevant technical processes utilised. Thus in the Brent Spar episode, the company putting up the oil platform in the first place had not adequately thought through to the final point of effective and reasonably safe disposal. 3. Situations of manufactured risk shift the relation between collective and individual responsibility in many risk situations. Although in many circumstances individuals cannot be held culpable, this is not the same as non-culpability in conditions of organised irresponsibility. In the latter case, this results from viewing responsibilities through the lenses of external or passive risk. Consider, for instance, health risks. Many people get ill through no fault of their own. But a large proportion of illnesses are related both to lifestyle practises and to wider conditions of the ‘created environment’. It doesn’t make any sense to suppose that liability in these circumstances can remain wholly with the collectivity, whether this be government or an insurance company. The active assumption of responsibility, as in attempts to reduce levels of smoking, becomes part of the very definition of risk situations and therefore the attribution of responsibility. Something quite similar applies to our responsibilities towards future generations. When most risk was external, such responsibility was relatively limited: nature was largely intact. Our responsibilities to future generations now are thoroughly infused with decisions we have to take resulting from our transformation of nature. 4. These considerations are relevant to one of the major political issues of our times, the future of the welfare state. The history of the welfare state in all countries is a tangled one. The welfare state emerged in some part as a means of holding back the aspirations of the poor and of controlling them – it had some of its roots in the political right. In recent years, however, as described earlier, the left has appropriated the welfare state as its own project. The debate around the welfare state has therefore concentrated to a considerable degree upon its role in limiting or reducing inequality. But the welfare state is more correctly seen as a form of collective risk management. The idea that the welfare state should be understood as a ‘safety’ or ‘provident’ state has been raised most forcefully in the writings January 1999] Risk and Responsibility s The Modern Law Review Limited 1999 9 of the French thinker Francois Ewald. The welfare state is tied into the basic suppositions of modernity – that security comes from the ever more effective control by human beings of their material and social environments. The crisis of the welfare state is usually represented as a fiscal one. If the welfare state is in trouble, it is because people won’t pay the taxes needed to fund welfare systems properly. There is some validity to this, but it is more illuminating to see the crisis of the welfare state as a crisis of risk management. The welfare state was built up on the presumption of external or passive risk. If you become unemployed, fall ill, become disabled or lose your home, the welfare state will step in to protect you. Welfare systems must now confront large areas of manufactured risk, shifting the relation between risk and responsibility. It isn’t surprising that there is now a great deal of talk about the need to connect rights with responsibilities. Unconditional rights might seem appropriate when individuals bear no responsibility for the risks they face, but such is not the case in situations of manufactured risk. 5. Where a society hasn’t got effective means of dealing with organised irresponsibility, the result isn’t always that no one is held culpable. On the contrary, the price of manufactured uncertainty is probably closely associated with the emergence of the ‘litiginous’ society. Where a common ‘contract of responsibility’ has broken down, culpability can appear everywhere. Here indemnity has effectively been separated from causality. I might be held responsible, for example, if someone is hurt through slipping on my garden path. 6. The theme of responsibility has to be integrated with a concern for the two sides of risk. The negative and positive sides of risk are still often discussed as though they were separate from one another. This translates into a division between two large bodies of literature. It is a remarkable fact that most of those who write about environmental risk make no reference at all to the literature on financial or entrepreneurial risk, or vice versa. Two of the most influential books to have been written about risk over the past ten years, for example, are Risk Society by Ulrich Beck and Against the Gods written by Peter Bernstein. Yet these books make no reference at all to one another. The fact that risk is often a positive or energising phenomenon is relevant to most of the situations of risk and responsibility discussed above, not just to economic risk. Thus to create a more effective welfare state, it is important that in some situations people are psychologically and materially able to take risks albeit in a ‘responsible’ way. It isn’t a good outcome for the individual or the wider society where a person is stuck on benefits or unwilling to take the risk of plunging into the labour market. The same applies to someone caught up in a dysfunctional or violent relationship. Risk is not only closely associated with responsibility, but also with initiative and the exploration of new horizons – something which takes us back to our starting point when the notion was first developed in post-

Removing the Shadow of Suspicion: The Effects of Apology Versus Denial for Repairing Competence- Versus Integrity-Based Trust Violations

Abstract: Two studies were conducted to examine the implications of an apology versus a denial for repairing trust after an alleged violation. Results reveal that trust was repaired more successfully when mistrusted parties (a) apologized for violations concerning matters of competence but denied culpability for violations concerning matters of integrity, and (b) had apologized for violations when there was subsequent evidence of guilt but had denied culpability for violations when there was subsequent evidence of innocence. Supplementary analyses also revealed that the interactive effects of violation type and violation response on participants' trusting intentions were mediated by their trusting beliefs. Combined, these findings provide needed insight and supporting evidence concerning how trust might be repaired in the aftermath of a violation.

The Police on Skid-Row: A Study of Peace Keeping

Abstract: Following the distinction proposed by Banton, police work consists of two relatively different activities: "law enforcement" and "keeping the peace." The latter is not determined by a clear legal mandate and does not stand under any system of external control. Instead, it developed as a craft in response to a variety of demand conditions. One such condition is created by the concentration of certain types of persons on skid-row. Patrolmen have a particular conception of the social order of skid-row life that determines the procedures of control they employ. The most conspicuous features of the peace keeping methods used are an aggressively personalized approach to residents, an attenuated regard for questions of culpability, and the use of coercion, mainly in the interest of managing situations rather than persons.

The Empire of Trauma: An Inquiry into the Condition of Victimhood

Abstract: The Empire of Trauma: An Inquiry into the Condition of Victimhood makes a signal contribution to the genre of “the history of the present.” It uses the apparently unremarkable fact that victims of disasters as diverse as genocide, earthquakes, and industrial accidents are all brought together within the same framework of understanding centered on the diagnostic category of trauma. It asks, What does it mean that we take the concept of trauma as a given in these circumstances? The first part of the book provides a systematic examination of the archives of psychology and psychiatry to delineate the double genealogy of the diagnostic category of posttraumatic stress disorder (PTSD). This is followed by an examination of three specific cases that the authors see as emblematic of contemporary politics of trauma. These cases are emergency psychiatric counseling for victims of an industrial accident in Toulouse in September 2001, the boom in humanitarian psychiatry in France since the 1980s, and, the use of PTSD for evaluating and certifying the truth claims of asylum seekers in France. The detail and finesse with which theory and data are woven together for each case makes this book compelling. For reasons of space, though, I will content myself with discussing two major claims of the book The first claim concerns the emergence of PTSD in the post-Vietnam period in North America. Didier Fassin and Richard Rechtman argue that, faced with media revelations of brutalities committed by American troops on civilians in Vietnam, the U.S. government was confronted with an impossible choice—either punish its own soldiers for crimes in which the chain of responsibility was hard to disentangle or accept its own culpability for these “crimes.” The diagnosis of PTSD for Vietnam veterans came as a solution of sorts. It took any moral judgment out of the clinical encounter, since the main premise was that ordinary people when put in extraordinary circumstances were capable of committing atrocities by which they could be later traumatized. Thus it became possible to condemn the event without condemning the perpetrators. It also allowed the government to set in place policies of rehabilitation for the veterans. Outside the clinical space, anger at the veterans was still evident in public condemnation of soldiers or their portrayals in films or other media as brutal killers rather than heroes. That the Vietnam War continues to be treated as a spectral presence on questions of warfare and culpability in the United States shows how these issues still haunt the political culture of the country. The second major claim of the book is that the processes of person-

The Psychology of Confessions A Review of the Literature and Issues

Abstract: Recently, in a number of high-profile cases, defendants who were prosecuted, convicted, and sentenced on the basis of false confessions have been exonerated through DNA evidence. As a historical matter, confession has played a prominent role in religion, in psychotherapy, and in criminal law-where it is a prosecutor's most potent weapon. In recent years, psychologists from the clinical, personality, developmental, cognitive, and social areas have brought their theories and research methods to bear on an analysis of confession evidence, how it is obtained, and what impact it has on judges, juries, and other people. Drawing on individual case studies, archival reports, correlational studies, and laboratory and field experiments, this monograph scrutinizes a sequence of events during which confessions may be obtained from criminal suspects and used as evidence. First, we examine the preinterrogation interview, a process by which police target potential suspects for interrogation by making demeanor-based judgments of whether they are being truthful. Consistent with the literature showing that people are poor lie detectors, research suggests that trained and experienced police investigators are prone to see deception at this stage and to make false-positive errors, disbelieving people who are innocent, with a great deal of confidence. Second, we examine the Miranda warning and waiver, a process by which police apprise suspects of their constitutional rights to silence and to counsel. This important procedural safeguard is in place to protect the accused, but researchers have identified reasons why it may have little impact. One reason is that some suspects do not have the capacity to understand and apply these rights. Another is that police have developed methods of obtaining waivers. Indeed, innocent people in particular tend to waive their rights, naively believing that they have nothing to fear or hide and that their innocence will set them free. Third, we examine the modern police interrogation, a guilt-presumptive process of social influence during which trained police use strong, psychologically oriented techniques involving isolation, confrontation, and minimization of blame to elicit confessions. Fourth, we examine the confession itself, discussing theoretical perspectives and research on why people confess during interrogation. In particular, we focus on the problem of false confessions and their corrupting influence in cases of wrongful convictions. We distinguish among voluntary, compliant, and internalized false confessions. We describe personal risk factors for susceptibility to false confessions, such as dispositional tendencies toward compliance and suggestibility, youth, mental retardation, and psychopathology. We then examine situational factors related to the processes of interrogation and show that three common interrogation tactics-isolation; the presentation of false incriminating evidence; and minimization, which implies leniency will follow-can substantially increase the risk that ordinary people will confess to crimes they did not commit, sometimes internalizing the belief in their own culpability. Fifth, we examine the consequences of confession evidence as evaluated by police and prosecutors, followed by judges and juries in court. Research shows that confession evidence is inherently prejudicial, that juries are influenced by confessions despite evidence of coercion and despite a lack of corroboration, and that the assumption that "I'd know a false confession if I saw one" is an unsubstantiated myth. Finally, we address the role of psychologists as expert witnesses and suggest a number of possible safeguards. In particular, we argue that there is a need to reform interrogation practices that increase the risk of false confessions and recommend a policy of mandatory videotaping of all interviews and interrogations.