CARELESSNESS AND RECKLESSNESS— A REJOINDER
| Date | 01 July 1962 |
| Author | ALAN R. WHITE |
| DOI | http://doi.org/10.1111/j.1468-2230.1962.tb00688.x |
| Published date | 01 July 1962 |
CARELESSNESS AND RECKLESSNESS-
A
REJOINDER
IN
a
recent note
I
ventured to criticise several legal theories of
carelessness, negligence, recklessness
on
the grounds that they arose
from confused analyses of, or assumptions about, the meaning of
these terms
in
ordinary extra-legal use. Professor
P.
J.
Fitzgerald and Dr. Glanville Williams raised certain objections.
In
reply
LEGAL
AND
NON-LEGAL
LANGUAGE
The general objection raised by Dr. Williams that the legal use of
words such as
"
careless
"
and
"
reckless
')
is exempt from any
criteria applicable to their ordinary use
is
too large
a
question to
consider here. But three remarks are relevant
:
(a)
It
is
clear from the cases that lawyers do frequently try to
argue for the application
of
particular concepts, like carelessness,
to
particular instances by appealing to the criteria
of
the ordinary
use of these concepts. Otherwise, it would be di5cult to under-
stand their frequent references to ordinary use and even to the
dictionary instead
of
merely to what other lawyers have said.
(b)
It
is clear that the particular views which jurisprudents take
of
particular concepts are often influenced by their (sometimes
mistaken) analyses
of
the ordinary meaning of these concepts.
When Salmond defines the
"
careless
"
man as
"
he who does not
care," is it more plausible to argue,
as
Williams does, that he is
attempting, with at least partial success, to define a technical legal
concept or that he has misunderstood a concept in ordinary use?
Let me exemplify further from Dr. Williams' criticism of my
analysis of recklessness. He thinks there is
a
contradiction in
my
saying that a person behaving recklessly could be careless since, on
my own analysis, a reckless person may realise, though he is
indifferent to, the possible risks of his action, while
a
person behav-
ing carelessly necessarily fails to pay attention to the risks.
His
reason for thinking there is a contradiction here
is
expressed as
('
how can you be said to fail to give attention to risks
if
you bring
them into your contemplation?
')
Now, unless Dr. Williams is
right in assuming that
''
realising the risks
"
implies or means
''
bringing them into your contemplation
"
or
'(
attending to
them,"
I
am not committed to the contradiction that someone can
fail to attend to
X
and yet bring
X
into his contemplation. Why
does Williams assume that to
"
realise
"
the risks
is
to
"
bring
1
(1961) 24
M.L.R.
692.
a
(1962) 25
M.L.R.
49
and
85.
437
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