Explaining the notion of legal luck and exploring its justification. Focusing on how legal luck relates to moral luck, legal causation and negligence, and to civil and criminal liability.

ABSTRACT Many of our common-sense moral judgments seemingly imply the existence of moral luck. I attempt to avoid moral luck while retaining most of these judgments. I defend a view on which agents have moral equality of opportunity. This allows us to account for our anti-moral-luck intuitions at less cost than has been previously recognized.

Islamic building codes require mosques to face Mecca. The further Islam spreads, the more apt are believers to fall into a quandary. X faces Y only when the front of X is closer to Y than any other side of X. So the front of the mosque should be oriented along a shortest path to Mecca. Which way is that? Does the path to Mecca tunnel through the earth? Or does the path follow the surface of the earth?

Adversaries of Moral Luck (AMLs) are at pains to explain why wrongdoers are liable to bear burdens (punishment, compensation etc.) which are related to the harm they cause, because the consequences of what we do are a matter of luck. One attempt to solve this problem suggests that wrongdoers who cause more harm are liable to bear a greater burden not because they are more blameworthy but rather because they get the short straw in a liability lottery (represented by the (...) apparently indeterminate causal process). In this paper I argue that this attempt fails on several grounds. Apart from the fact that it is hard to see how the implementation of liability lotteries can be motivated and the fact that such scheme presupposes a political order (whereas the notion of liability does not seem to presuppose one), detaching liability from the outcomes of a culpable action undermines whichever justifications there were for imposing liability in the first place. Moreover, relying on the determination of the causal process as a good indication of the wrongdoer’s degree of culpability is mistaken, because the luck brought about through the causal process is not necessarily the only element involved in cases of harmful conduct which lies beyond the wrongdoers’ control. (shrink)

In his recent book Attempts, Gideon Yaffe suggests that attempts should be criminalized because of a principle he dubs the “Transfer Principle.” This principle holds that if a particular form of conduct is legitimately criminalized, then the attempt to engage in that form of conduct is also legitimately criminalized. Although Yaffe provides a powerful defense of the Transfer Principle, in this paper I argue that Yaffe’s argument for it ultimately does not succeed. In particular, I formulate two objections to Yaffe’s (...) argument for the Transfer Principle. First, I argue that a basic assumption about criminalization, on which Yaffe’s argument crucially depends, is incomplete, and Yaffe’s own attempt to supplement it undermines his argument for the Transfer Principle. Second, I argue that Yaffe’s argument does not properly account for the fact that those who merely attempt a crime and those who complete it might sometimes be responding to reasons in different ways. Accordingly, I conclude that Yaffe has not succeeded in establishing the truth of the Transfer Principle. (shrink)

This paper focuses on the role of culpability in determining the degree of liability to defensive harm, and asks whether there are any restrictions on when culpability is relevant to liability. A natural first suggestion is that it is only relevant when combined with an actual threat of harm in the situation in which defensive harm becomes salient as a means of protection. The paper begins by considering the question of whether two people are equally liable to defensive harm in (...) a situation if both culpably intend to harm another, but due to circumstances outside the control of the two people only one has a chance of succeeding in causing harm. I argue that there is no difference in liability between the two. I then turn to a kind of slippery slope challenge that accepting this conclusion would lead to a vast over-inclusiveness in those liable to defensive harm, and consider a recent attempt at meeting it that requires that a person’s culpability can only affect liability if it concerns the very situation in which defensive harm is relevant. Finally, I put forward and assess a new way of meeting the challenge that appeals to a particular conception of culpability together with auxiliary theses concerning how culpability can decrease over time, among others. (shrink)

Responsibility, blameworthiness in particular, has been characterized in a number of ways in a literature in which participants appear to be talking about the same thing much of the time. More specifically, blameworthiness has been characterized in terms of what sorts of responses are fair, appropriate, and deserved in a basic way, where the responses in question range over blame, sanctions, alterations to interpersonal relationships, and the reactive attitudes, such as resentment and indignation. In this paper, I explore the relationships (...) between three particular theses: (i) the claim that one is blameworthy to the extent that it is fair to impose sanctions, (ii) the claim that one is blameworthy to the extent that one deserves sanctions, and (iii) the claim that one is blameworthy to the extent that it is appropriate to respond with reactive attitudes. Appealing to the way in which luck in the outcome of an action can justifiably affect the degree of sanctions received, I argue that (i) is false and that fairness and desert come apart. I then argue that the relationship between the reactive attitudes and sanction is not as straightforward as has sometimes been assumed, but that (ii) and (iii) might both be true and closely linked. I conclude by exploring various claims about desert, including ones that link it to the intrinsic goodness of receiving what is deserved and to the permissibility or rightness of inflicting suffering. (shrink)

In this paper, I assess a challenging argument made by McKenna (J Ethical Theory, 2019) that free will might be important in justifying our moral responsibility practices even if free will is not important insofar as it is required for desert of blame and praise. I offer an alternative picture, according to which while we can justify our practices of moral responsibility in terms that appeal to free will without using terms that explicitly appeal to desert, desert is necessarily implicated (...) nevertheless by the very practices we seek to justify. In the process, I set out my understanding of the nature of blame and address the question of whether blame should always be understood as deserved in a sense distinct from fitting. (shrink)

A surprisingly large number of scholars believe that (a) we are blameworthy, and therefore punishable, only for what we have control over; (b) we have control only over our actions and intentions, not the consequences of our actions; and therefore (c) if two agents perform the very same action (e.g., attempting to kill) with the very same intentions, then they are equally blameworthy and deserving of equal punishment – even if only one of them succeeds in killing. This paper argues (...) against these “equivalence theorists” that harmful consequences do make a moral difference, that the harm produced by the killer’s attempt retroactively makes her action more blameworthy, and therefore deserving of more punishment, than the failed attempter’s attempt. The primary argument for this “non-equivalence theory” is an analogy with gambling. Just as a gambler makes a deal with the casino to allow metaphysical luck to retroactively determine the “profit status” of her bet, so too the attempted killer makes a deal with “the casino of morality” to allow metaphysical luck to retroactively determine the moral status of her attempt. She makes the “moral deal” that if her attempt succeeds, her attempt was more blameworthy than if her attempt does not succeed. And it is the greater blameworthiness of the killer’s attempt that justifies our intuition that the killer should be punished more harshly than the failed attempter. (shrink)

The objective of this paper is to explain why certain authors - both popular and academic - are making a mistake when they attribute obligations to uncoordinated groups of persons, and to argue that it is particularly unhelpful to make this mistake given the prevalence of individuals faced with the difficult question of what morality requires of them in a situation in which there's a good they can bring about together with others, but not alone. I'll defend two alternatives to (...) attributing obligations to uncoordinated groups. The first solution has us build better people, who will coordinate their actions willingly and spontaneously when the occasion arises. The second solution has us build better groups, so that when the occasion arises, there is a framework in place for coordinating members into action. (shrink)

Many of the items that humans consume are produced in ways that involve serious harms to persons. Familiar examples include the harms involved in the extraction and trade of conflict minerals (e.g. coltan, diamonds), the acquisition and import of non- fair trade produce (e.g. coffee, chocolate, bananas, rice), and the manufacture of goods in sweatshops (e.g. clothing, sporting equipment). In addition, consumption of certain goods (significantly fossil fuels and the products of the agricultural industry) involves harm to the environment, to (...) future persons, and to current persons in low-lying and developing countries, by way of their impacts on climate change. When it comes to such large-scale harms, it's easy for the individual to feel helpless. Even if she sincerely wishes things were otherwise, she may wonder what she could possibly do to make them so. In this paper I briefly explore several promising avenues for generating duties in individuals to consume ethically, and develop one in particular: that an individual ought to signal her commitments to others, as a first step in collectivizing to act against unjust global labour practices. (shrink)

It typically taken for granted that agents can be morally responsible for such things as, for example, the death of the victim and the capture of the murderer in the sense that one may be blameworthy or praiseworthy for such things. The primary task of a theory of moral responsibility, it is thought, is to specify the appropriate relationship one must stand to such things in order to be morally responsible for them. I argue that this common approach is problematic (...) because it attempts to explain the way in which an agent can be morally responsible for something that is external to her, the agent. Since, I argue, everything that matters for moral responsibility is internal to the agent, the accounts that emerge from this approach are committed to a particular form of moral luck. Instead, we should reject this form of moral luck, and with it, the possibility of moral responsibility for objects external to the agent. We are, I argue, morally responsible only for our inner willings. Thus, a form of internalism about moral responsibility is defended. (shrink)

In most penal systems, success is punished more than failure. For example, murder is punished more severely than attempted murder. But success or failure is often determined by luck. It thus appears that punishment is allotted on the basis of arbitrary factors. The problem of criminal attempts is the question of how to best resolve this apparent tension. One particularly sophisticated attempt at resolution, first developed by David Lewis, holds that such differential punishment is not unjust when understood as a (...) natural penal lottery. What is most interesting about this view is that it does not appear to involve a commitment to resultant moral luck. I argue that the natural penal lottery fails to deliver justice. Upon analysis, it carries the same implication that it sought to avoid—namely, a commitment to resultant moral luck. I then argue that there can be, in principle, no penal lottery that delivers justice, natural or otherwise. (shrink)

You buy a lottery ticket and you lose. You are sorry, but you wouldn't dream of complaining. Why then do you feel entitled to complain in the following sorts of cases?

Mass vaccination has been a successful public health strategy for many contagious diseases. The immunity of the vaccinated also protects others who cannot be safely or effectively vaccinated—including infants and the immunosuppressed. When vaccination rates fall, diseases like measles can rapidly resurge in a population. Those who cannot be vaccinated for medical reasons are at the highest risk of severe disease and death. They thus may bear the burden of others' freedom to opt out of vaccination. It is often asked (...) whether it is legitimate for states to adopt and enforce mandatory universal vaccination. Yet this neglects a related question: are those who opt out, where it is permitted, morally responsible when others are harmed or die as a result of their decision? In this article, we argue that individuals who opt out of vaccination are morally responsible for resultant harms to others. Using measles as our main example, we demonstrate the ways in which opting out of vaccination can result in a significant risk of harm and death to others, especially infants and the immunosuppressed. We argue that imposing these risks without good justification is blameworthy and examine ways of reaching a coherent understanding of individual moral responsibility for harms in the context of the collective action required for disease transmission. Finally, we consider several objections to this view, provide counterarguments and suggest morally permissible alternatives to mandatory universal vaccination including controlled infection, self-imposed social isolation and financial penalties for refusal to vaccinate. (shrink)

Trial by jury is a fundamental feature of democratic governance. But what form should jury decision-making take? I argue against the status quo system in which juries are encouraged and even required to engage in group deliberation as a means to reaching a decision. Jury deliberation is problematic for both theoretical and empirical reasons. On the theoretical front, deliberation destroys the independence of jurors’ judgments that is needed for certain attractive theoretical results. On the empirical front, we have evidence from (...) both legal and non-legal contexts that group deliberation often leads to group judgments that are worse in a number of respects than judgments generated by non-interactional methods of judgment aggregation. Finally, I examine some possible alternatives to free-wheeling jury deliberation, including the constrained and structured deliberation embodied in the DELPHI method, voting, and averaging of probabilistic judgments. (shrink)

Ratio Juris, Volume 34, Issue 4, Page 293-314, December 2021.

Many philosophers and legal scholars believe that the principle of retribution can be employed as a basis for respecting the offender as a person and for imposing relatively soft sentences. This belief is inspired, at least to a certain extent, by the penal philosophy of Kant and Hegel. My aim in this article is to question this widely held belief, with my contention being that retributivists locate the basis of these normative considerations in the wrong place. It is not the (...) application of the principle of retribution that makes systems of criminal law fair and restrained, but rather the other way around: Only by restricting the application of the principle of retribution in various ways can we arrive at a system of penal law that is reasonable and just. These restrictions themselves are not retributive in nature, but are intended to keep the principle of retribution in check. To substantiate these claims, I discuss the views of an older generation of philosophers and scientists, specifically those of Sidgwick, Durkheim, Malinowski, and Piaget, and hold that these provide a fruitful basis for a better understanding of the principle of retribution. In the second part of the article, I investigate how this alternative understanding relates to the principles of proportionality and mens rea, while also making some clarifying remarks about the issue of moral luck. (shrink)

Is there a difference in moral blameworthiness between a murderer and an attempted murderer? Should there be a legal difference between them? These questions are particular instances of the question of moral luck and legal luck (respectively). In this paper, I survey and explain the main argumentative moves within the general philosophical discussion of moral luck. I then discuss legal luck, and the different ways in which this discussion may be related to that of moral luck.

I provide a brief history of the common law governing the criminal liability of intoxicated offenders, and the codification and application of the intoxication rules in Canada. I argue that the common law and its statutory application in Canada violate a number of principles of criminal justice. I then argue that the rules cannot be saved by attempts to subsume them under principles of prior fault. I end with a modest proposal for law reform.

Philosophers disagree about whether outcome luck can affect an agent's “moral responsibility.” Focusing on responsibility's “negative side,” some maintain, and others deny, that an action's results bear constitutively on how “blameworthy” the actor is, and on how much blame or punishment they “deserve.” Crucially, both sides to the debate assume that an actor's blameworthiness and negative desert are equally affected—or unaffected—by an action's results. This article challenges that previously overlooked assumption, arguing that blameworthiness and desert are distinct moral notions that (...) serve distinct normative functions: blameworthiness serves aliabilityfunction (removing a bar to otherwise impermissible treatments), whereas desert serves afavoringfunction (contributing new value to states of affairs, or providing new reasons for responsive treatments). Having distinguished (negative) desert from blameworthiness, the article proposes a novel resolution to the outcome‐luck debate: that results do not affect an agent's liability to blame, but do affect the amount and severity of blame to which the agent is justly liable, including by affecting the severity of blame that the agent deserves. (shrink)

Some of the most interesting questions about Kant, and more particularly about his moral philosophy, arise when he is placed alongside the giants of antiquity. Where does he come together with Plato? Where with Aristotle? Where does he diverge from each? He comes together with Plato in a shared conception of Ideas. When he first outlines how he is using the term ‘Idea’ in the Critique of Pure Reason , he insists that he is using it in none other than (...) its original Platonic sense; and he explains away certain discrepancies with the comment: It is by no means unusual… to find that we understand [an author] better than he has understood himself. As he has not sufficiently determined his concept, he has sometimes spoken… in opposition to his own intention. (shrink)

This essay, as will become obvious, owes a huge debt to Mark Kelman, particularly to his article “Interpretative Construction in the Substantive Criminal Law.” That debt is one of both concept and content. There is rich irony in my aping Kelman's deconstructionist enterprise, for I do not share his enthusiasm for either the “insights” or the political agenda of the Critical Legal Studies movement. I do not believe that either the law in general or the criminal law in particular is (...) radically indeterminate, rife with internal contradictions, or an expression of the interests of a dominant economic class. And although, like Kelman, I believe that the freedom/determinism, act/character, and rule/principle dichotomies must ultimately be dealt with in order to have a completely satisfactory account of criminal law, I also believe that these dichotomies loom just as large in other areas of law and in normative theory generally. They are problems for Crits as well as for liberal-legalists. In any event, my intentions in undertaking this deconstructionist enterprise are modestly reformist, not revolutionary. I do not intend to shift any paradigms, but to work with well-established ones. I will assume that criminal law seeks to accomplish some blend of retributive response to and deterrence of culpable choices, choices to defy moral norms that are also legal norms. I will also assume that a culpable choice is one that reflects negatively on the values held by the chooser. Beyond these quite modest assumptions, I need not and will not venture in this paper, realizing, of course, that much has and can be written about the proper aims of punishment and the proper account of culpability. (shrink)

David Lewis David Lewis is an American philosopher and one of the last generalists, in the sense that he was one of the last philosophers who contributed to the great majority of sub-fields of the discipline. He made central contributions in metaphysics, the philosophy of language, the philosophy of mind, and probabilistic and practical … Continue reading David Lewis →.

I. Introduction. The debt/atonement model of punishment seeks to reconcile the criminal with his direct victim, as well as the larger community, through restorative mechanisms of restitution and atonement.[i] As a result, it has certain advantages over better known rivals.[ii] Unlike retribution, reform and deterrence, the approach does some good, first and foremost, for the victim of the crime. But it can also benefit the victimizer and indirectly victimized members of the larger community. Competing theories usually profit but one of (...) the three. They also fail to do as well in removing the tension between justice and mercy. Yet even when mercy is not an option, retribution, reform and deterrence can dictate punishments that are intuitively excessive. But the problem isn’t just that of excess. At others times, it seems they will endorse inappropriately lenient responses to crime. I will argue that a properly construed debt/atonement approach, despite its stress on punishment taking the form of restitution, can handle three common objections that it is incapable of providing appropriate punishments. The first is that it cannot justify punishing murder for the dead cannot be compensated. Even if this turns out to be true, surprisingly, it bestows no relative advantage upon rival accounts for if the dead cannot be benefited, then they cannot be harmed, and thus punishing killers who did not harm those they killed will be difficult for any theory to justify. The second objection is that it cannot accommodate our practice of publishing failed attempts where there appears to be no harm when the target didn’t even know the attempt transpired. Ironically, it turns out that only the advocated approach can justify our practice of punishing failed attempts less severely than successes. The third objection is that the theory sometimes advocates making criminals suffer in order to satisfy the vindictive desires of their victims. I’ll argue that so harming criminals is a defensible way to extract the debt payment they owe their victims.. (shrink)

Since the modern era, the discourse of punishment has cycled through three sets of questions. The first, born of the Enlightenment itself, asked: On what ground does the sovereign have the right to punish? Nietzsche most forcefully, but others as well, argued that the question itself begged its own answer. The right to punish, they suggested, is what defines sovereignty, and as such, can never serve to limit sovereign power. With the birth of the social sciences, this skepticism gave rise (...) to a second set of questions: What then is the true function of punishment? What is it that we do when we punish? From Durkheim to the Frankfurt School to Michel Foucault, twentieth century moderns explored social organization, economic production, political legitimacy, and the construction of the self_turning punishment practices upside down, dissecting not only their repressive functions but more importantly their role in constructing society and the contemporary subject. A series of further critiques_of meta_narratives, of functionalism, of scientific objectivity_softened this second line of inquiry and helped shape a third set of questions: What does punishment tell us about ourselves and our culture? What is the cultural meaning of our punishment practices? These three sets of questions set the contours of our modern discourse on crime and punishment.What happens now_ now that we have seen what lies around the cultural bend and realize that the same critiques apply with equal force to any interpretation of social meaning that we could possibly read into our contemporary punishment practices? Should we continue to labor on this third and final set of questions, return to an earlier set, or, as all our predecessors did, craft a new line of inquiry? What question shall we_children of the twenty_first century_pose of our punishment practices and institutions?This essay suggests that the form of the question never really mattered. In all the modern texts, there always came this moment when the empirical facts ran out or the deductions of principle reached their limit_or both_and yet the reasoning continued. There was always this moment, ironically, when the moderns took a leap of faith. And it was always there, at that precise moment, that we learned the most: that we could read from the text and decipher a vision of just punishment that was never entirely rational, never purely empirical, and never fully determined by the theoretical premises of the author. In each and every case, the modern text let slip a leap of faith_an ethical choice about how to resolve a gap, an ambiguity, an indeterminacy in an argument of principle or fact.It is time to abandon the misguided project of modernity. Rather than continue to take these leaps of faith, it is time once and for all to recognize the critical limits of reason, and whenever we reach them, to rely instead on randomization. Where our facts run out, where our principles no longer guide us, we should leave the decision_making to the coin toss, the roll of the dice, the lottery draw_in sum, to chance. This essay begins to explore what that would mean in the field of crime and punishment. (shrink)