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Expectations and attribution of responsibility

Sebastián Figueroa Rubio
p. 111–128
This article is a translation of:
Expectativas y atribución de responsabilidad

Abstracts

Under the hypothesis that every attribution of responsibility rests on the fact that an expectation has been breached, the author proposes to understand expectations as standards adopted by a community to evaluate specific events and allow the members of the community to search for an explanation of the events which breach expectations. After presenting this way of understanding expectations, their relationship with responsibility is analyzed, having in mind the mentioned hypothesis. To close the paper, the relationship between responsibility and expectations is explored as an alternative to the idea that every attribution of responsibility supposes the breach of an obligation, whether moral or legal, by who is held responsible.

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1 Introduction

  • 1 Strawson 2008. Michael McKenna (2012: 3–4, 31) says that a Strawsonian approach embraces three idea (...)

1This article proposes a way of viewing expectations and their role on processes of attribution of responsibility. Before I begin, some of the assumptions of the underlying perspective should be mentioned. First, a Strawsonian vision of responsibility is assumed, based on the ideas presented by Peter Strawson in his essay Freedom and Resentment.1 At the same time, in this work I differ from common interpretations of the essay, centering attention on places usually not considered, in particular, the significance of the essay is explored in the legal (not only moral) domain and the importance of expectations (not only reactive attitudes) is discussed in order to understand responsibility.

  • 2 Strawson points out that: “The personal reactive attitudes rest on, and reflect, an expectation of, (...)

2On the other hand, the hypothesis that every attribution of responsibility process starts with an expectation is embraced,2 specifically, considering a breached expectation, and that the event that breached the expectation is for what someone is responsible. In this context, one may always ask the one attributing responsibility: “What were you expecting to happen?” with the intention that she makes explicit what she is holding someone responsible for.

3With these assumptions, this work will show a way of understanding expectations in order to then, study how they are related to responsibility. Finally, this relationship is compared to the model that supposes that every process of attribution of responsibility implies the violation of an obligation from who is responsible.

2 Expectations

4Expectations are linked to the idea of expecting in several ways and here we are interested in two of them. First, when one talk about the expectations present in a community, one refers to what is expected from us, as well as what one can expect from others. They are presented as standards of what should happen. Second, people may adopt these standards and, according to what they say or do, this adoption is attributed to them. This attribution is expressed by saying that persons have expectations and having an expectation means to expect something. The reference to that something places expectations in the group of the propositional attitudes, with desires and beliefs.

5Therefore, expectations are related to two domains: the generation of standards (i.e. what is expected from the world, others and ourselves) and the adoption of those standards by persons (i.e. to say that someone has or can have an expectation). In this paper I understand expectations as standards which can be adopted (in a normative sense) by the members of a community in order to evaluate events and that allows those members to ask for an explanation of those events.

  • 3 Propositional attitudes are not separated from each other. On the contrary, they act in sets where (...)

6Over the next pages this approach is explained. In order to do so I take into account three of its characteristics: demands are expressed through expectations; they are reasonable or legitimate demands and; it is rational to ask for an explanation every time an event generates a dissonance with the standard that forms the expectation. These three characteristics will help us to distinguish expectations from other propositional attitudes like hopes, illusions and predictions,3 and to show the importance of expectations in understanding practices of attribution of responsibility.

2.1 Expectations, standards and demands

  • 4 See Galtung 1959: 214; Mellema 2004: 4.

7We deal with others expecting from them behaviors that have specific meanings. i.e. we face each other using standards which help us to identify and evaluate our actions. This is why expectations are usually defined as evaluative standards.4

8When we think of what is expected from us or what we expect from others as evaluative standards, we can understand that certain things are required from us or that there are things that we require from others in diverse degrees of intensity. Accordingly, expectations are demands, demands to others and to the world.

9Expectations may be more or less abstract. For example, if Juan expects Antonio’s arrival, the request could be understood as a general demand to the world (e.g. Juan demands the world that the cosmos brings Antonio in some way) or as a concrete request to a person to act in a certain way (e.g. Juan demands Antonio to come).

  • 5 There are two more ideas to consider. On the one hand, expectations are expressed using subjunctive (...)

10Expectations, as demands, are different from predictions yet both have a prospective character. Talking about both we can correctly say that they are formed before the relevant events occur, i.e. the predicted, expected or unexpected event. This makes it possible to compare the standard of the expectation with the event, and to make the dissonance or consonance between them explicit. But in predicting we do not express a demand, if Juan predicts Antonioʼs arrival, he is not demanding it.5

  • 6 This issue is considered by Luigi Ferrajoli in the legal domain: ““Las expectativas por otro lado, (...)

11Anyway, expectations cannot be reduced to desires. The fulfillment of an expectation does not suppose the satisfaction of a need or an interest. Sometimes we expect what we do not desire (e.g. Juan expects Antonioʼs arrival to a meeting which he does not want to have because they are committed to talk about something he would rather not to talk about).6 Commonly the standards which are part of interactions have validity independent of an individualʼs desires.

2.2 What is to be expected: expectations, legitimacy and error

12As expectations are standards which are part of a community, it is possible that a particular member of the community may adopt them correctly or incorrectly. Thus, someone can be mistaken about expecting something (i.e. she expects something, but she cannot expect it). The mistake can be the outcome of different things. For example, the lack of information possessed by the person, the wrong perception of the information (e.g. Juanʼs false belief that it is Tuesday on a Monday, can produce his expectation that Antonio arrives on a Monday because they had agreed to meet on Tuesday; also it can be the case that he expects Antonio to come because he believes Antonio promised to do it, but he really did not) or the result of a misunderstanding about the nature of her relationship with the person from whom she is expecting something (e.g. a boss who expects her employees to act as her friends). Here, the meaning of can is normative, and consists of the entitlement of individuals to make the demand, this is the reason why the demand can be assessed as legitimate or reasonable.

  • 7 Wittgenstein 2009: § 581. See also Mellema 1998: 479–481.
  • 8 The distinction between expectations and hopes and illusions can be understood as one between kinds (...)

13Having this in mind, an expectation can be distinguished by its legitimacy, and its illegitimacy may be due to various reasons. The reasons are context dependent. As Wittgenstein pointed out: “An expectation is embedded in a situation, from which it arises. The expectation of an explosion may, for example, arise from a situation in which an explosion is to be expected.7 Thus, to expect that my body will be attracted to the floor in a spaceship is not reasonable. We can distinguish expectations from hopes and illusions by their legitimacy or reasonability.8

  • 9 See Smith 1987.

14There is another way in which an individual may be wrong about expectations: having a false idea about her own expectations. Since expectations are propositional attitudes, occasionally they may be opaque to individuals. A person who has an expectation (i.e. an expectation can be appropriately attributed to her) is not always aware of that.9 In addition, sometimes individuals become aware of what they expect after the relevant event happens or after a discussion about how to understand specific events that have attracted particular attention.

  • 10 Galtung 1959: 214–215. A person’s awareness of an expectation that has been breached, as well as th (...)

15At first sight, the last affirmation in in conflict with the previously expressed one about the prospective character of expectations. But this conflict is apparent, expectations can be expressed in a postdictive (i.e. can be make explicit, after the relevant event occurs) and in a predictive way.10 To justify the possibility of having an expectation previously to the event is different from being aware of it or to expressing it before the relevant events occur.

  • 11 See Mellema 1998: 480–481; 2004: chs. 2 & 3. Although in some places, he apparently confuses both k (...)

16Therefore, there are two ways through which it is stated that a person is wrong regarding expectations. First, it is assumed that the determination of what may be expected in a context is done independently from the concrete beliefs of such individual. Gregory Mellema states that the existence of an expectation does not depend on its possession by the concrete individuals, but what is relevant is the legitimacy to adopt them. In the second case, the determination of the concrete expectations that a person has may be carried out independent of the perception that such a person has regarding her own expectations.11 In the first case, attention is centered on expectation as a standard, in the second one, on expectation as a propositional attitude. In both cases determination of what might be expected or of what someone expects is carried out independently of the concrete beliefs of an individual regarding the situation, and assumes the possibility that they might err.

2.3 Unfulfillment of expectations and the search of explanations

  • 12 Sometimes a person goes beyond the call of expectation ‘by doing more than what is minimally requir (...)

17So far, we have proposed understanding expectations as standards that members of a community may adopt, in the sense that it is legitimate to adopt them under certain circumstances. At the same time, it has been pointed out that expectations present themselves as demands to the world and others. The third characteristic that will be pointed out here involves the relationship between expectations and the events that unfulfill them:12 when having legitimate requirements from the world and others, in the case that they are unfulfilled, searching for an explanation of what has happened is rational.

  • 13 The dissonance (or consonance) between the event and the expectation may take place in a variety of (...)

18Johan Galtung notes that expectations, as standards, may be compared to various events. This comparison can have three different results: a consonance between event and expectation, a dissonance between them, or that the event is not consonant nor dissonant, but neutral. In the last case, the expectation is irrelevant as a standard to assess the event (e.g. the expectation of Juan arriving at certain time appears irrelevant, in principle, to asses that a child stole a candy three years before, in another country). On the other hand, the difference between the other two cases is gradual, that is, depending on the expectation. It can be more or less unfulfilled and more or less fulfilled, while also cases of complete consonance or dissonance may be found.13

19As legitimate requirements, the search of an explanation is a rational reaction in the case of dissonance between an expectation and what has happened, (i.e. to ask oneself “Why did it happen?”) and makes the pertinent inquiries.

  • 14 Thus, concerning beliefs, Ludwig Wittgenstein writes: “Ask yourself: What does it mean to believe G (...)
  • 15 On this see Narváez 2006; Smith 1987; 1994: ch. IV. This model does not define propositional attitu (...)
  • 16 Having this in mind, we may distinguish expectations from beliefs, at least under the model that un (...)

20It is possible to identify differences between propositional attitudes through a dispositional-normative model. In this model, to be disposed to (i.e. to be willing to) is characterised by commitments to a certain way of behaving faced with a specific situation that are attributed to a subject.14 The relevant situation, usually, is precisely the occurrence of something opposed to the content of the propositional attitude and what establishes the type of propositional attitude is the response to that.15 In this order of things, the search of an explanation is characteristic of expectations in the case of dissonance with an event.16

  • 17 By saying that the unfulfillment of an expectation entitles us to search for an explanation, I am n (...)
  • 18 All this things can be discussed. For example, we can debate whether the break of the promise is im (...)

21Applying these ideas to the mentioned example, if Juan is expecting Antonio to arrive at a certain time legitimately (e.g. Antonio promised him), a delay of Antonio allows Juan to ask himself: “Why hasn’t Antonio arrived?” If the situation is considered, Juan had a standard of Antonio’s behavior (e.g. that he would be present in certain place at certain time); by comparing that standard with a relevant event (e.g. that an hour after of what was established, Antonio has not arrived to the meeting place), it may be the case that the mentioned expectation has been unfulfilled (e.g. Antonio is not at the established place and time). This leads to the possibility of searching for an explanation (e.g. Juan may reflect in this manner: “Why hasn’t Antonio arrived? Maybe he had an accident, maybe he didn’t want to meet me, etc.”),17 as well as an evaluation (e.g. Antonio has broken his promise, and that is morally wrong). With regards to the latter, as will be seen, the type of evaluation chosen will depend on the origin of the expectation (in this example, it is judged from the moral expectation of keeping one’s promises, assuming that it is morally wrong).18 This is the entrance to a process of attribution of responsibility that may end in the manifestation of blaming from Juan, in the case of ascribing Antonio the unfulfillment of the expectation. This will be further discussed in the following section.

3 Varieties of expectations and responsibility

22A great variety of expectations that people may adopt has been mentioned: to be attracted to the floor, for another person to keep her promise, for another person to act according the law, that people will act expressing good will, etc. Three characteristics that allow treating them all as expectations have also been mentioned: that they suppose a demand; that they are about legitimate requirements; and that, in case of dissonance with an event, an explanation can be sought.

  • 19 Different ways of seeing the distinction between normative expectations and cognitive expectations (...)

23Beyond these common characteristics, in this wide group, it is possible to make some distinctions. A classic distinction, although formulated in different ways, differentiates between cognitive and normative expectations.19

  • 20 This clarification is due to the comments of Diego Papayannis, Matias Parmigani, and an anonymous r (...)

24Before analyzing such a distinction, it must be considered that all the expectations mentioned above are normative, this is precisely manifested in the idea that they are legitimate demands that can be expressed as evaluative standards, and distinguishing them from predictions, illusions, and hopes, their normativity has been highlighted. Normativity is a characteristic of them all, not of only a class of them and, viewed this way, there are no non-normative expectations. The label “normative” to classify them may lead to misunderstanding, but it is used in this work due to its widespread use, this is why in the following paragraphs the sense of referring to “normative expectations”, as different from cognitive expectations, will be explained.20

3.1 Normative and cognitive expectations

25Bearing in mind the previous observation, a distinction between expectations will be espoused based on the reactions adopted when facing the unfulfillment of an expectation that have become unbearable. These are different reactions from the search of an explanation, a common reaction to all expectations whether or not the unfulfillment is unbearable.

  • 21 Paprzycka 1999: 632; Galtung 1959: 215–218.
  • 22 In this sense, some can say that we are dealing with predictions. As has been said, when we have an (...)

26The fact that the dissonance becomes unbearable has as a consequence that people commit to an activity directed to achieve consonance. This leads to changes, either in the expectation, or in what explains that the dissonance occurred (ensuring that a similar event doesn’t happen again). In this sense, both Johan Galtung and Katarzyna Paprzycka, define the distinction between normative and cognitive expectations by using the notion of direction of fit.21 More specifically, cognitive expectations have a mind-to-world direction of fit while normative expectations a world-to-mind one. This means that if an event unfulfills a cognitive expectation, the expectation is usually abandoned or redefined, because it is considered false.22 On the contrary, when a normative expectation is unfulfilled, ways of changing the world are looked for. Galtung points out that in the case of unfulfillment of normative expectations formed when facing other people, politics of social control are taken or simply the individual to whom the event that causes the dissonance has been attributed is ignored, all these actions have the goal of avoiding future dissonances.

  • 23 See Jakobs 1997: 10–11. In a similar way, Paprzycka links normative expectations directly with sanc (...)

27Günther Jakobs, in his approach to Criminal Law, says that normative expectations are reaffirmed by punishment, emphasizing the expressive function of the latter.23 According to this interpretation with punishment, people are not trying to change the world (at least, not always), but to reaffirm an expectation facing it.

28Mellema and Galtung highlight that the whole range of expectation fluctuates between both types of reactions and that it is usual that both types of reaction are adequate in different measures. Both in our interaction with others, and with the natural surroundings, we are willing to intervene with different degrees of intensity in order to avoid unbearable dissonances, and/or in order to modify our expectations of what will happen. This is not a dichotomic distinction, but a gradual one.

3.2 Rule expectations

29Another criterion that helps us to understand the differences between expectations is their origins. The origin of an expectation affects its legitimacy, the type of evaluation at stake and the resistance that expectations present when facing their unfulfillment. Expectations may be formed by personal observation of certain regularities, by what our parents tell us, what we see on television, what we learn on the street, what we are taught in school, what the law says, and what scientific knowledge states as established, among many other things. The origin of an expectation, together with the reasons that support its adoption, allows the identification of the kind of evaluation carried out when expectations are used as standards (e.g. moral/immoral; legal/illegal, etc.).

  • 24 Mellema 2004: 4–6.

30Considering this, there is a group of expectations that Gregory Mellema identifies as rule expectations.24 These are the ones that are created inside normative systems that are beyond spontaneous interpersonal relations and that are generally created by specialized authorities. Mellema points out that a characteristic of this type of expectations is that the language of obligation appears appropriate to express them. At the same time, in the case of unfulfillment, a punishment is considered a suitable reaction. Cases of such expectations are the ones formed by the rules of a club, religious institutions, or legal codes.

  • 25 The same event can be assessed using different expectations. Thus, for example, an action can be co (...)
  • 26 Rules expectations (and some normative expectations) may be adopted in spite of our knowledge about (...)

31If the three characteristics of every expectation are considered, in the case of rule expectations, their legitimacy is usually due to the legitimacy of the authority that dictates them and/or to the possibility to impute their acceptance to the persons whom expectations are applied (i.e. from whom something is expected). This, also, assumes many times requirements are far from what can reasonably be carried out (e.g. to expect that citizens respect a legal norm even if it does not make sense or when following it may lead to immoral results),25 or that are contrary to what usually happens (e.g. even though it is common that in a particular neighborhood assaults occur, an individual may expect not to be assaulted).26 At the same time, depending on the authority who formulates the expectation, it is possible to identify the appropriate kind of evaluation linked to the content of the expectation (e.g. legal and illegal in the case of legal institutions). Finally, in this kind of expectations, the most common explanation of the event that unfulfills it is its attribution to a person (i.e. the event is explained by ascribing it to someone), although other explanations may be found. This way in which the three characteristics are manifested is not the only one. A similar analysis can be done of the other expectations that have been mentioned.

  • 27 See Jakobs 2006: 127; Kelsen 2009: 74.

32Expectations are central to act and interact with others and with the natural and cultural environment in general. They are one of the most common ways of normalizing reality, allowing us to orientate our conduct.27 This does not mean that every person is aware of every expectation, but that, one way or another, they can be made explicit.

3.3 Expectations, reactive attitudes and responsibility

  • 28 Gardner 2008: 132. In the quoted article, Gardner comments H.L.A Hartʼs proposal about the differen (...)

33In responsibility processes, people look for the person responsible for an event that excites their interest, to make him respond for that. As John Gardner puts it: “Those who are responsible are those who are singled out to bear the adverse normative consequences of wrongful (or otherwise deficient) actions”.28

34In this context, expectations, as normative standards, settle the existence of wrongs. This is what we have in mind when we say that the dissonance between an expectation and an event is always present in responsibility processes. Therefore, when a person holds another responsible, she does it under the appreciation that an expectation has been breached and that the breach is explained by attributing the event to the person held responsible.

  • 29 To some authors there is a stronger connection between reactions and the unfulfillment of expectati (...)

35This is in consonance with the idea that the unfulfillment of an expectation may be linked to the adoption of a reactive attitude.29 Reactive attitudes, such as resentment and indignation, are triggered by the occurrence of an event, and are adopted towards others, specifically to whom the event is attributed.

  • 30 Wallace points out that: “Reactive attitudes as a class are distinguished by their connection with (...)
  • 31 About this, from his second person’s perspective, Stephen Darwall says that: “Reactive attitudes th (...)

36As Jay Wallace says, in responsibility processes, the triggering event of a reactive attitude is one related to an expectation.30 In this way, expectations work as standards that help us to identify the relevant events and to identify the kind of evaluative judgments involved as well.31 Persons are responsible for something that occurs, and this is recognizable by means of expectations.

37In consequence, in responsibility practices, a reactive attitude is triggered by an event which unfulfilled an expectation. The unfulfillment of an expectation, in addition with an explanation of that unfullfilment, may result in the attribution of an event to a person and the attitudes which are appropriate to adopt for that unfulfillment and/or attribution, generates the entitlement to call them to respond for that event. Therefore, we can say that the dissonance between an expectation and an event is always present in responsibility processes. Nonetheless, not every dissonance results in holding someone responsible. Not every relevant event can be ascribed to a person. If the breach of an expectation cannot be attributed to someone, then we do not have someone responsible for it.

  • 32 See Williams 1995: 40. To consider that only moral expectations are relevant to responsibility lead (...)
  • 33 Consequently, it is possible that a specific expectation (and the commitments adopted by identifyin (...)

38In addition, the attribution of responsibility is not always based on the unfulfillment of moral expectations, nor on expectations whose unfulfillment may only occur by performing an action. On the contrary, a broad range of expectations, can lead to processes of attribution of responsibility.32 The connection between the unfulfillment and the person to whom it is attributed is diverse and can be obtained through causal, intentional, and magical explanations, among others. As has been pointed out, expectations have diverse origins and find support in different kinds of reasons. In fact, the same event can be related to different kinds of expectations, and be evaluated in different manners.33

  • 34 Feinberg 1970b: 130–131. The same point in Darwall 2006: 80–82 and Mackie 1985: 29–30.

39Therefore, it is recommendable to assume a broad notion on expectations that considers everything that is legitimate to expect and whose unfulfillment encourages the search of an explanation. Also, in principle, this broad range can be related to practices of attribution of responsibility. In Joel Feinbergʼs words: “The point is this: we do not ordinarily raise the question of responsibility for something unless that something has somehow excited our interest”.34

4 Final considerations: expectations, conduct rules, and obligations

  • 35 The discussion of this point is due to some comments from Claudio Michelon and Maribel Narváez. Ind (...)

40It has been noted that expectations are evaluative standards and that, in consequence, in a basic sense, every expectation is normative (i.e. there are no non-normative expectations), beyond the classification of normative and cognitive expectations that may be carried out. At the same time, the breach of such standards would trigger reactive attitudes, justifying the search for a person that is responsible. To finish this work, I would like to examine what seems a legitimate question in this context, Why not simply talk of obligations or conduct rules instead of expectations?35

  • 36 Kindhäuser 2009: 500. It is worthy to note that Kelsen’s thinks that this is not indispensable. See(...)

41In criminal law doctrine, a similar role to the one which has been attributed to expectations in the section above, is carried out by general conduct rules. They are understood as “the rules under which something is judged as right or wrong, good or bad, they have a directive (prescriptive) or evaluative (axiological) character”.36 This rules are addressed to citizens (i.e. people from whom certain conducts are expected) and they have the structure of a categorical standard. They are usually manifested as criminal offences.

  • 37 In fact, in Criminal Law the rule of law requires rules expectations to conform crimes,
  • 38 Hruschka 2005: 28.
  • 39 Hruschka 2005: 28.

42Following what has been mentioned in the previous pages, conduct rules can be understood as rules expectations.37 In fact, expectations fulfill the functions that Hruschka attributes to conduct rules. According to this author, conduct rules have, first, a configuration function, being its mission to influence on and to shape people lives.38 This is done by indicating them what they must or must not do or what is allowed to be done and/or to stop doing (i.e. what is expected from them and what can they expect from others). The other is a measurement scale function, directed to the judge (in a broad sense) who evaluates the events ex post facto, using the measure given by the norms.39 To Hruschka, both are two sides of the same coin.

  • 40 Thus, for example, expectations can refer to events which do not suppose directly the performance o (...)

43Considering what has been said in the above paragraphs, to some extent the distinction between conduct rules and expectations is merely terminological. But there are reasons that can make us inclined to talk about expectations rather than conduct rules in the context of attribution of responsibility practices. One of those reasons concerns the scope of the approach defended in this work. My concern is with standards that are present not only in criminal law, but in other areas of law and morals as well. The domain of expectations is broader than that of conduct rules, at least in the way in which they are understood by the quoted authors.40

  • 41 A more detailed analysis of these examples in Mellema 2004: ch. 9.

44To this, Mellema adds that the domain of moral expectations is even broader than the one of moral obligations, and that the unfulfillment of any of these expectations, in certain contexts, can derive in a process of attribution of responsibility. A couple of examples to illustrate this idea can be useful.41 At a long queue waiting for a table at a restaurant, one can legitimately have the expectation that people who have finished their meal and are aware of others, will stand up and give their place to others within a reasonable amount of time, so it is expected from someone that has committed to write a letter of recommendation to say only positive things about the person he is recommending. Although having these expectations, legitimate in both cases, it cannot be said that the people sitting at a table, or the person writing the recommendation are morally obliged to do what is expected from them. Mellema points out that this type of expectations, which are not comparable to moral duties, can be recognized because, when facing them, the correct reaction (in terms of sanction) is usually less intense. Thus, for example, instead of being expressed through blaming, it is expressed through disappointment. But a less intense reaction, does not mean that the one to whom the unfulfillment of the expectation is ascribed is not being held responsible.

  • 42 Another reason to talk about expectations rather than rules is that we say naturally that a person (...)

45The point is that what is required in terms of expectations is broader than what can be recognized as someone’s moral (or legal) obligations. So, not every expectation that generates responsibility is an obligation.42

  • 43 This makes room to the possibility of translating conduct rules and obligations into expectations. (...)

46By talking of expectations, we hold a weaker normativity than the one held when speaking of conduct rules and obligations. One can be responsible of things to which one does not have a duty, or at least, it is better to make room for this possibility.43 The difference is, without a doubt, gradual, and if the reader wants to understand conduct rules and moral obligations in a weak sense, the difference between both and expectations becomes imperceptible.

  • 44 Kelsen (1967: 114–119).

47Finally, another way of arguing can be considered, having in mind the difference that Kelsen establishes between having an obligation and being responsible. According to Kelsen, obligations determine the existence of delicts, and only the person who has an obligation can commit a delict. Although the sanction is connected to the delict by imputation, the responsible person and the person with the obligation do not have to coincide. In fact, it is precisely this distinction what allows to explain cases of vicarious responsibility, where the one held responsible is a different person than the one that commits the delict.44 This way, Kelsen states that:

  • 45 Kelsen (2009: 78).

There is an obligation to act in a determinate way when the oppose conduct is the condition of a sanction /…/ on the contrary an individual is responsible for a determinate conduct (his own conduct or another person’s conduct) when, in case of the opposite conduct, it is directed a sanction towards she. So, responsibility may be related with someone else’s conduct, while obligations have always as object the conduct of the obligated person.45

48Not having in mind the distinction between obligation and responsibility can explain the need of some authors for there always to be an action in order to have responsibility. On the contrary, on many occasions, people are held responsible on the basis of their relationship with objects and others, or only considering causal relations that link them to the event in question, independent of their actions.

49Then it is plausible to assert that appealing to the unfulfillment of an expectation as a starting point of judgment of attribution of responsibility has a wider explanatory power than appealing to the unfulfillment of an obligation or conduct rule. One can be responsible even when not having unfulfilled any duty with one’s own actions, as it is in cases of strict responsibility. In these cases, relevant expectations do not refer to actions of individuals, but to certain facts that are considered harmful o dangerous, e.g. the level of environmental pollution.

  • 46 An event may be ascribed to a person (i.e. it is charged to her record. See Feinberg 1970b) without (...)

50Understanding expectations as standards that can be adopted by members of a community in order to evaluate some events and that entitles such members to search for an explanation of those events, allows us to understand their link with responsibility, precisely because people are held responsible due to the occurrence of a wrong, which does not have to be directly linked with the breach of an obligation. Also, the search for an explanation allows us to open the door to the ascription of the event that unfulfills the expectation to a person, whether that person who has or has not the one that commits an illicit conduct.46 To that person, the reactive attitudes will be directed from whom is holding them responsible.

51In a process of attribution of responsibility, before discussing excuses and justifications, one can question if the person attributing responsibility is justified in having a certain expectation or if he only had an illusion; also, considering the context, one can question the type of evaluation that is being carried out from the said expectation (e.g. legal/illegal; moral/immoral); whether the adopted expectation is appropriate (e.g. many times expectations with origins in legal norms do not entitle us to hold someone responsible because of its unfulfillment in extra-legal contexts). Also, one can discuss about the event: what are its relevant characteristics (e.g. how is it described) or whether or not it occurred under the relevant description in terms of the expectation. In addition, whether the event has really a sufficient relation (i.e. dissonance) with the expectation can be questioned, and if such a relation does exist, how should it be evaluated, and so on. When faced with an accusation, one can always ask “what did you expect would happen?”

Acknowledgment.— The author thanks Sebastián Agüero, Luís Duarte d’Almeida, Lucas Miotto, José Juan Moreso, Nicola Muffato, Maribel Narvaéz Mora, Juan Ormeño, Diego Papayannis, Matías Parmigiani, Lorena Ramírez, Pablo Rapetti, Jorge Sendra, Javiera Sepúlveda, Camila Spoerer and Ilsse Torres for their useful comments and conversations on the topics here treated. I also wish to thank all those who participated in the discussions on these topics in Girona, Edinburgh and Barcelona. Finally, I wish to thank two anonymous referees of Revus for their penetrating and useful comments.

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Luigi FERRAJOLI, 1997: Expectativas y garantías. Primeras tesis de una teoría axiomatizada del derecho. Revista DOXA, Cuadernos de Filosofía del Derecho 20 (1997). 235–278.
John FISCHER & Mark RAVIZZA (Eds.), 1993: Perspectives on Moral Responsibility. USA: Cornell University Press.

Johan GALTUNG, 1959: Expectations and interaction Processes. Inquiry: An interdisciplinary Journal of Philosophy 2 (1959) 1–4. 213–234.
John GARDNER, 2008: Hart and Feinberg on Responsibility. The Legacy of H.L.A. Hart: Legal, Political, and Moral Philosophy. Eds. Matthew Kramer, Claire Grant, Ben Colburn & Antony Hatzistavrou. Oxford: Oxford University Press Pons. 169–193.
John GOLDBERG, 2015: Inexcusable Wrongs. California Law Review 103 (2015) 3. 467–512.

Peter HACKER, 2000: Wittgenstein: Mind and Will. USA: Blackwell.
Herbert L.A. HART, 1967: Varieties of responsibility. Law Quarterly Review 83 (1967). 346–364.
——, 1982: Commands and Authoritative Reasons. Essays on Bentham. Oxford: Clarendon Press. 243–268.
Joachim HRUSCHKA, 2005: Reglas de comportamiento y reglas de imputación. Imputación y derecho penal. Estudios sobre la teoría de la imputación. Navarra: Aranzadi. 27–39.

Gunther JAKOBS, 1997: Derecho Penal parte general. Madrid: Marcial Pons

——, 2006: Culpabilidad y prevención. Dogmática penal. Estudios compilados. 2a ed. México/Argentina: Porrúa.119–153.

Hans KELSEN, 1967: Pure Theory of Law. English transl. by Max Knight. Berkeley: University of California Press
——, 2009: Teoría Pura del derecho. Buenos Aires: Editorial Universitaria de Buenos Aires.
Urs KINDHÄUSER, 2009: La lógica de la construcción del delito. Revista de Análisis Especializado de Jurisprudencia 14 (2009). Trad. castellana de Juan Pablo Mañalich. 499–509.

John MACKIE, 1985: Responsibility and Language. Persons and Values. Selected Papers II. Oxford: Clarendon Press. 28–45.
Gregory MELLEMA, 1998: Moral Expectation. The Journal of Value Inquiry 32 (1998). 479–488.
——, 2004: The Expectations of Morality. Amsterdam: Rodopi.
Michael McKENNA, 2012: Conversation and Responsbility. New York: Oxford University Press.

Maribel NARVÁEZ MORA, 2006: Las Expresiones de lege lata en tanto que creencias ajustadas a derecho. Observar la ley. Ensayos sobre metodología de la investigación. Ed. Christian Courtis. Madrid: Trotta. 231–258.

Katarzyna PAPRZYCKA, 1999: Normative Expectations, Intentions, and Beliefs. Southern Journal of Philosophy 37 (1999) 4. 629–652.

Michael SMITH, 1987: Humean Theory of Motivation. Mind 96 (1987). 36–61.
——, 1994: The Moral Problem. Oxford: Blackwell.
Peter STRAWSON, 2008: Freedom and Resentment. Freeedom and Resentment and others Essays. Oxon: Routledge. 1–28.

R. Jay WALLACE, 1994: Responsibility and Moral Sentiments. Cambridge & London: Harvard University Press.
Bernard WILLIAMS, 1995: Internal reasons and the obscurity of blame. Making sense of humanity. Cambridge: Cambridge University Press. 35–45.
Ludwig WITTGENSTEIN, 2009: Philosophical Investigations. 4a ed. English Trans. By G.E.M Anscombe, Peter Hacker & Joachim Shulte. UK: Blackwell Publishing.

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Notes

1 Strawson 2008. Michael McKenna (2012: 3–4, 31) says that a Strawsonian approach embraces three ideas: (a) Responsibility is essentially interpersonal; (b) There are some elements of our social life which are constitutive of responsibility (e.g. reactive attitudes) and; (c) Considerations about the nature of "holding responsible" are more important than those about the nature of "being responsible". In order to understand responsibility, we have to start from the judgments and actions of the person who holds another responsible rather than from the characteristics of the one who is responsible.
This work is centered on the second postulate, specifically, on expectations as an element of social life.

2 Strawson points out that: “The personal reactive attitudes rest on, and reflect, an expectation of, and demand for, the manifestation of a certain degree of goodwill or regard on the part of other human beings towards ourselves; or at least on the expectation of, and demand for, an absence of the manifestation of active ill will or indifferent disregard”. Strawson 2008: 15.

3 Propositional attitudes are not separated from each other. On the contrary, they act in sets where one implies the others (See Davidson 2001). Besides, the exact limits between different propositional attitudes are far from clear and cases which challenge those limits may always appear. Therefore, the distinctions between propositional attitudes presented in this work are not strict and definitive.
Finally, the discussion about whether all propositional attitudes are reducible to beliefs and desires is not treated here. See Smith 1994: 118–125.

4 See Galtung 1959: 214; Mellema 2004: 4.

5 There are two more ideas to consider. On the one hand, expectations are expressed using subjunctive mood (e.g. “I expect it to rain tomorrow”), while predictions the indicative mood (e.g. “I predict it will rain tomorrow”). On the other hand, we usually we require to make the predictions explicit before the relevant event occurs, but we do not require this in the case of expectations.

6 This issue is considered by Luigi Ferrajoli in the legal domain: ““Las expectativas por otro lado, no tienen necesariamente por argumento prestaciones (omisivas u comisivas) ventajosas para sus titulares: son, en efecto, expectativas también la exposición a sanciones o a anulaciones”. Ferrajoli 1997: 240.

7 Wittgenstein 2009: § 581. See also Mellema 1998: 479–481.

8 The distinction between expectations and hopes and illusions can be understood as one between kinds of expectations: legitimates (i.e. those we are entitled to adopt) and no-legitimates. Therefore, if we prefer, we can understand hopes and illusions as no-legitimate or unreasonable expectations.

9 See Smith 1987.

10 Galtung 1959: 214–215. A person’s awareness of an expectation that has been breached, as well as the specification of what expectation has been breached, does not have to occur at the same time in which the relevant event occurs. Both things can take place after a (posterior) personal or interpersonal reflection. Besides, it can be the case that a person expresses expectations and individualizes possible future events that breach them (e.g. Juan may say that he will meet Antonio and that he expectation will be breached if Antonio does not arrive after certain time). Here, the important thing is the possibility to make explicit the dissonance between the event and a legitimate demand. Then, the dissonance can be evaluated from the expectation.

11 See Mellema 1998: 480–481; 2004: chs. 2 & 3. Although in some places, he apparently confuses both kinds of error.

12 Sometimes a person goes beyond the call of expectation ‘by doing more than what is minimally required to satisfy or fulfil it’ (Mellema, 2004: 64). These cases are usually qualified as supererogation (See Feinberg, 1970, Mellema, 2004: 64–66). In these cases, as well as in cases of unfulfillment, there is a dissonance between the event and the standard, but the evaluation of the dissonance varies. The difference is not relevant enough to what is discussed in this article, so I will continue to talk about unfulfilled or breached expectations.

13 The dissonance (or consonance) between the event and the expectation may take place in a variety of forms, depending on the expectation in question. For example, if Antonio expects Juan to clean his bedroom, Juan may clean it in different ways, and may leave the bedroom more or less clean. On the other side, if Antonio expects Juan to replace a light bulb, he only can satisfy the expectation by replacing the electric bulb. See Mellema, 200: ch. 6.

14 Thus, concerning beliefs, Ludwig Wittgenstein writes: “Ask yourself: What does it mean to believe Goldbach’s conjecture? What does this belief consists in? /…/ I should like to ask: how does the belief engage with this conjecture? Let us look and see what are the consequences of this belief, where it takes us. “It makes me search for a proof of the conjecture.” – Very well; and now let us look and see what your searching really consist in! Then we shall know what believing the conjecture amounts to.” (Wittgenstein 2009: § 578. More details in Wittgenstein, 2009: I §438–453, 465, 572–586; II: x. And in the next notes).

15 On this see Narváez 2006; Smith 1987; 1994: ch. IV. This model does not define propositional attitudes as dispositional properties of the individuals, that’s why it is identify as dispositional-normative.
Therefore, following Robert Brandom, we can think that theories about propositional attitudes offer accounts of when it is proper to attribute them (See Brandom 2000: 117–118). So, the quest is for the proper attribution of commitments, not for the properties of individuals. Thus, for example, Brandom points out about knowledge that: “In calling what someone has ‘knowledge’, one is doing three things: attributing a commitment that is capable of serving both as premise and as conclusion of inferences relating it to other commitments, attributing entitlement to that commitment, and undertaking that same commitment oneself. Doing this is adopting a complex, essentially socially articulated stance or position in the game of giving and asking for reasons”, being a central issue in this game “the possibility of extracting information from the remarks of others” (Brandom 2000: 119–120). Moreover, when talking about assertion, he says: “Specifically linguistic practices are those in which some performances are accorded the significance of assertions or claimings — the undertaking of inferentially articulated (and so propositionally contentful) commitments.5 Mastering such linguistic practices is a matter of learning how to keep score on the inferentially articulated commitments and entitlements of various interlocutors, oneself included”. (Brandom 2000: 164–165).

16 Having this in mind, we may distinguish expectations from beliefs, at least under the model that understands beliefs by the direction of fit metaphor. According to that model, facing a discrepancy between a belief and the events relevant to its satisfaction, the rational reaction is to abandon the belief.
The metaphor of the direction of fit was adopted by G.E.M Anscombe in her book Intention (Anscombe 1953) in order to distinguish between having an intention and observing it. She explains this through an example: a man goes shopping with a shopping list on his hand, and he is followed by a detective who records what he buys. After the shopping, if the list and what he actually buys do not agree, “then the mistake is not in the list, but in the man’s performance /…/, whereas if the detective’s record and what the man actually buys do not agree, then the mistake is in the record” (Anscombe 1953: § 32). From that, Maribel Narváez indicates that: “Conocemos nuestros propósitos sin observarlos y los manifestamos mediante acciones, que permiten laadscripción de los propósitos en cuestión: de ahí que tenga sentido una concepción disposicional acerca de deseos y creencias. Adscribir a un sujeto la intención de comprar bacon cuando trae bacon a casa en el cesto de la compra no se hace solo a partir de la base de lo que ha traído (podía haberlo comprado por error) sino que además se asume el contrafáctico “Si al llegar a casa el cesto no hubiera contenido bacon habría estado dispuesto a volver al supermercado a comprarlo”, dado que atribuir la intención de comprar bacon apoya la verdad de este contrafáctico” (Narváez 2006: 245). Therefore, in the case of beliefs: “creer que p” se define como aquel estado o actitud que al adscribirse a un sujeto apoya el contrafáctico “si percibiese que no p abandonaría la creencia de que p””. Narváez (2006: 232 n.3). With this model, it is possible to attribute propositional attitudes to others and to explain our own attitudes, and this supposes the possibility of disagreement between both activities in every concrete case.

17 By saying that the unfulfillment of an expectation entitles us to search for an explanation, I am not asserting that every search for an explanation is justified by the unfulfillment of an expectation.

18 All this things can be discussed. For example, we can debate whether the break of the promise is immoral, also we can use another kind of expectation to evaluate the event (and the assessment can result in a positive evaluation of the event), etcetera. Besides, the person can be mistaken about his expectation, as we have seen previously.

19 Different ways of seeing the distinction between normative expectations and cognitive expectations can be found in Coleman 1992: 279–281; Ferrajoli 1997: 245; Galtung 1959: 215–218; Jakobs 2006: 125–130; Mellema 1998; Paprzycka 1999; Wallace 1994: 20–21.

20 This clarification is due to the comments of Diego Papayannis, Matias Parmigani, and an anonymous reviewer to whom I am very thankful

21 Paprzycka 1999: 632; Galtung 1959: 215–218.

22 In this sense, some can say that we are dealing with predictions. As has been said, when we have an expectation, we make a demand to the world and we can search for an explanation in case of unfulfillment. We do not do that when we make a prediction. However, these distinctions are very difficult to settle and they are not definitive.

23 See Jakobs 1997: 10–11. In a similar way, Paprzycka links normative expectations directly with sanctions. In contrast, I think it is plausible to link sanctions with different kinds of expectations, not only with normative ones. On the other hand, in contrast with Jakobs, the explanatory scope of this work is wider than his, and I distinguish the justification of punishment (for Jakobs is to affirm the identity of society) from the existence of punishment as a reaction in a process of attribution of responsibility.

24 Mellema 2004: 4–6.

25 The same event can be assessed using different expectations. Thus, for example, an action can be considered immoral, but legal, and vice versa.

26 Rules expectations (and some normative expectations) may be adopted in spite of our knowledge about how the world is. For example, based on the rules of an institution (or in moral principles) we can expect that Antonio will not lie to us, although, we know he usually lies.

27 See Jakobs 2006: 127; Kelsen 2009: 74.

28 Gardner 2008: 132. In the quoted article, Gardner comments H.L.A Hartʼs proposal about the different uses of expressions as “responsible” and “responsibility” and in the quoted passage he is specifically talking about liability-responsibility. See Hart 1967.

29 To some authors there is a stronger connection between reactions and the unfulfillment of expectations. They define normative expectations as those which unfulfillment leads to a reactive attitude (Wallace 1994) or to a sanction (Papryzcka 1999). The way in which the distinction is understood in this article does not suppose this strong connection.

30 Wallace points out that: “Reactive attitudes as a class are distinguished by their connection with expectations, so that any particular state of reactive emotion must be explained by the belief that some expectation has been breached. It is the explanatory role of such beliefs about the violation of an expectation that is the defining characteristic of the states of reactive emotion as a class, and that provides them with their distinctive propositional objects; beliefs of this sort will therefore always be present when one is in one of the reactive states” Wallace 1994: 33. The point is also expressed by Joel Feinberg (1970a) in what he calls responsibe attitudes.

31 About this, from his second person’s perspective, Stephen Darwall says that: “Reactive attitudes thus concern themselves not with a person’s overall agency, but specifically with his conduct with respect to claims or demands that other persons have standing to make of him.” Darwall 2006: 80.

32 See Williams 1995: 40. To consider that only moral expectations are relevant to responsibility lead us to what John Goldberg, in tort law, calls the moralistic fallacy. In his words: “The error in the supposition is its insistence on an unjustifiably rigid or narrow conception of what can count as a wrong. The ideas of committing a wrong, and being held responsive for a wrong, can vary with context without collapsing into vacuity. It is a fallacy – call it the moralistic fallacy – to suppose that the essence of wrongdoing is a strong form of culpability or blameworthiness. To fall prey to this fallacy is to treat all wrongdoing as a species of sin; as a transgression that leaves a stain on the wrongdoer’s soul and warrants strong condemnation.” Goldberg 2015.
This point is important in order to see the possible consequences of a
strawsonian account in the legal domain. As we can see in note 2, Strawson is thinking in one moral expectation (the expectation that other expresses goodwill towards us).

33 Consequently, it is possible that a specific expectation (and the commitments adopted by identifying its origin) leads us to a disagreement about the evaluation of some event. In this sense, in a process of attribution of responsibility may be discussed the adopted principles by the one who is holding responsible another, and may be discussed the relationship between the origin of the expectation and the way in which the event is evaluated using the expectation.
Another consequence is that an event may breach an expectation, while satisfying another.
For this, we can think on what Hart calls insincere commands. For example, “a sadistic sergeant-major, finding an incompetent and absent-minded recruit whom delighted in punishing, gave him command after command hoping, as was often the case, that the recruit would forget or fumble over what he was told to do and would thus provide the sergeant with the opportunity which he sought for inflicting punishment” (Hart 1982: 247). In the example, the sergeant, based on his knowledge about the capacities of the recruit, can expect that he will not comply the commands, but, at the same time, in the military context (the army life in Hart’s words), he is entitled to expect that the recruit will fulfill the commands. So, if the recruit forgets the commands or does not comply the commands, one of the sergeant’s expectations will be satisfied and the other will be breached.

34 Feinberg 1970b: 130–131. The same point in Darwall 2006: 80–82 and Mackie 1985: 29–30.

35 The discussion of this point is due to some comments from Claudio Michelon and Maribel Narváez. Indeed, this apparently is an idea defended by Jules Coleman (1992: 281), but I think he is referring only to rules expectations, which is compatible with what is proposed in this article, as we shall see.

36 Kindhäuser 2009: 500. It is worthy to note that Kelsen’s thinks that this is not indispensable. See Kelsen 2009: 60; 1967: 111–113.

37 In fact, in Criminal Law the rule of law requires rules expectations to conform crimes,

38 Hruschka 2005: 28.

39 Hruschka 2005: 28.

40 Thus, for example, expectations can refer to events which do not suppose directly the performance of an action like in some cases of strict or vicarious responsibility (See int.al. Cane, 2002: ch. 5). These issues exceed what is regulated by conduct rules. I will return to this in the next paragraphs.

41 A more detailed analysis of these examples in Mellema 2004: ch. 9.

42 Another reason to talk about expectations rather than rules is that we say naturally that a person has an expectation (talking about who is holding another responsible), but we do not say that a person has a rule.

43 This makes room to the possibility of translating conduct rules and obligations into expectations. Ferrajoli (1997: 240–247) apparently agrees with this idea.

44 Kelsen (1967: 114–119).

45 Kelsen (2009: 78).

46 An event may be ascribed to a person (i.e. it is charged to her record. See Feinberg 1970b) without the consequence of ascribing responsibility to that person for that event. We can (and should) distinguish between the ascription of events and the ascription of responsibility. This does not suppose the denial that every time we ascribe responsibility we are ascribing an event. The event is for what someone is responsible, more specifically, the event which breaches an expectation. The point is that the ascription of an event to someone is not enough to say that she is held responsible.

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References

Bibliographical reference

Sebastián Figueroa Rubio, « Expectations and attribution of responsibility », Revus, 26 | 2015, 111–128.

Electronic reference

Sebastián Figueroa Rubio, « Expectations and attribution of responsibility », Revus [Online], 26 | 2015, Online since 22 February 2016, connection on 25 June 2017. URL : http://revus.revues.org/3371 ; DOI : 10.4000/revus.3371

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About the author

Sebastián Figueroa Rubio

Lecturer in legal theory at the University of Chile and the University Diego Portales in Santiago (Chile) & a researcher at the Cátedra de Cultura Jurídica at the University of Girona (Spain).

Sebastian Figueroa
Universidad de Chile, Facultad de Derecho
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E-mail: figueroa.sebastian@gmail.com

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