A proposal
The very statement of the problem suggests its solution. If it is a mistake to treat the screening actions and the wrongful misdeeds in isolation from each other, we must reunite them into a single complex.
In essence, this amounts to broadening the time-frame in which we consider the unwitting misdeed, by regarding it as a unitary action that begins when the actor commits the screening actions.[430] Thus, the current suggestion avoids the errors of both the Model Penal Code and the culpable ignorance theory. On this proposal, the relevant question is “What was the actor’s state of mind toward the unwitting misdeed at the moment she opted for ignorance?”[431] As support for this suggestion, we can return to the analogy of principal and agent. The agent, the self at the moment of the unwitting misdeed, in effect ratifies the earlier self’s decision to screen off potentially guilty knowledge. This seems like a good reason for making the earlier self’s attitude toward the unwitting misdeed the focus of inquiry - for that is the attitude that the later self is ratifying.[432]This sounds too abstract. To see the point of the proposal, let us revisit our old friends the Fox and the Ostrich. The grand-scheming Fox has mischief in his heart from the get-go, and his foray into contrived ignorance is nothing more than an exercise in liability-screening. What was his state of mind toward the unwitting misdeed at the moment he opted for ignorance? That’s easy. Like Alfred P. Doolittle in My Fair Lady, he’s wishing to commit mischief, he’s wanting to commit mischief, he’s waiting to commit mischief. And what is the judgment of him? It is a judgment that he has committed mischief and willfully so.
The case of the Ostrich is a bit more complicated, because, at the moment she pops her head in the sand, she herself may not know what her attitude is toward the unwitting misdeeds she prefers not to think about.
So, when the Ostrich successfully contrives not to have any mental attitude toward a possible future misdeed, it may seem impossible, or even contradictory, to evaluate her blameworthiness by investigating the very mental attitude that, by assumption, does not exist.However, matters are not as hopeless as this way of putting things suggests. The Ostrich contrives to block certain thoughts, but a mental state such as intention is not the same thing as an occurrent thought. As Wittgenstein pointed out, “intention is neither an emotion, a mood, nor yet a sensation or image. It is not a state of consciousness. It does not have a genuine duration.”42 For example, the fact that I intend to go away tomorrow does not entail that some kind of thought about going away hovers in my consciousness from now until I leave.43 Rather, the intention consists of a
However, even if he has no specific act of aiding and abetting in mind, he may still have a generic action in mind when he sets up the structure of deniability. That is, he may set up the structure with the intention of establishing his own deniability for whatever future crimes he expects his employees to commit on his orders, in which case his attitude toward those crimes is one of willfulness. Or he may set up the structure in conscious disregard of the substantial and unjustifiable risk that it will result in his giving orders that can be followed only by unlawful means. In that case, his attitude is recklessness. His attitude is toward the general act-type of aiding and abetting wrongdoing, not the particular instances - what philosophers call “tokens” of that type - the wrongful character of which he has concealed from himself.
42 Ludwig Wittgenstein, Zettel, §45, at 10 (G. E. M. Anscombe trans., G. E. M. Anscombe & G. H. von Wright eds., 1970).
43 “ ‘I have the intention of going away tomorrow.’ - When have you that intention? The whole time; or intermittently?” Ibid. §46, at 10.
Wittgenstein presumably means us to doubt both answers - but if we must choose one, it is “the whole time,” even though the conscious thought of going away tomorrow is intermittent: hence the conclusion that the intention is distinct from the thought. Wittgenstein elaborates on this idea: “Really one hardly ever says that one has believed, understood or intended something ‘uninterruptedly’ since yesterday. An interruption of belief would be a period of unbelief, not the withdrawal of attention from what one believes - e.g. sleep.” Ibid. §85, at 17. disposition to plan my activities around going away tomorrow.[433] In the same way, we answer our question about the Ostrich’s mental state toward the misdeed by answering a counterfactual question about her disposition to commit it: “What would the Ostrich have done had she not contrived her own ignorance?” There is no reason to doubt that often we know what the answer to this question is.Indeed, outside observers may be able to answer the question even when the Ostrich herself cannot. In everyday life, our friends and relatives often are able to predict what we are going to do in a major life-choice even while we ourselves twist in an agony of indecision. Self-knowledge has never been humankind’s strong suit, and none of us is as unpredictable as we like to think. Even though we can’t answer the counterfactual question “What would she have done had she not contrived her own ignorance?” by scrutinizing the Ostrich’s psyche at the moment she performed the screening actions, other, less subjective evidence may allow us to answer with reasonable confidence. We never have direct access to another person’s psyche in any event, and so every inquiry into subjective states infers them from external evidence. The counterfactual question is no harder to answer from external evidence than other questions about subjective states, and juries answer those every day, precisely by using external evidence to infer dispositions.
Evidence about the Ostrich’s way of life may shed light on how she would act if her contrived ignorance were stripped away. Remember Albert Speer, our prototypical ostrich. We know quite enough about him to predict that no revelation of horrors, not even a trip to Auschwitz, was likely to make Hitler’s minister of slave labor resign in protest. Even in cases where the objective evidence is too scanty to judge confidently what the Ostrich would have done had she known all the facts, there is no reason in principle to doubt that the question has an answer.So we can still say this: If she would do the right thing had she not screened herself from knowledge, then her attitude toward the misdeed at the time she opted for ignorance is recklessness. For at that moment she consciously elected to run the risk of unwitting wrongdoing. But, if she actually would persist in ways of wickedness whether she had full knowledge or not, it seems fair to attribute that willingness to her at the moment she performed the screening actions. Even if she is in denial about it, hindsight reveals that she is, very literally, the moral equivalent of a knowing performer of misdeeds.
In other words, the proposal to examine states of mind toward the misdeed at the time the actor opts for ignorance yields exactly the same judgments as our earlier intuitions about the Fox and the Ostrich. That is no coincidence, of course. The question we answer to determine the Ostrich’s mental state - “What would the Ostrich have done had she not contrived her own ignorance?” - is exactly the same question that in our earlier discussion we used to grade her culpability. That is at least one reason to think that the proposal gets it right: it leads us to ask the same question that underlies our moral intuitions about the culpability of the Ostrich and the Fox.