Abstract
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.
This is a preview of subscription content, log in via an institution to check access.
Similar content being viewed by others
Notes
The problem is taken from Waldron (1995).
In this paper I use fault, culpability and blameworthiness interchangeably.
The same argument can obviously be made with regards to other blameworthiness-related paradigms such as punishment of successful and unsuccessful attempts (see e.g. Feinberg 2003) and other, non-institutionalized, forms of reactions such as attitudes like blame, guilt etc.
I will, therefore, take for granted that the AML premise is correct. I will also assume, for reasons that will become clearer later on, a libertarian view on the problem of free-will. On the connection between the problem of moral luck and the problem of free-will see Zimmerman (2002). On the connection between the problem of free-will and luck more generally see Mele (2006).
Note that the problem, the solutions and my criticisms apply not only to punishment and tort liability but also to any form of treatment that is sensitive both to fault and to outcomes (causation). For example, some people believe that the right of self-defence is sensitive to fault (the problem is known in the literature as the problem of the innocent attacker). Since virtually everyone believe that self-defence is sensitive to outcomes (I may not kill an attacker if, in fact, he is not about to cause me any harm), those who think that self-defence is only permissible against a culpable attacker face the same kind of problem as Lewis and Waldron. The same is true of those who believe that contractual liability is sensitive to fault and so on.
For these and other examples see Feinberg (2003, p. 78).
Some AMLs (luck egalitarians) in fact make this further claim, but it is not an essential component of the AML view.
In fact, if this argument is valid then both Tom and Ernie are as blameworthy as someone who subjects his victim to a certain (100% risk of) death. The argument that follows can be easily amended to accommodate that by replacing Ernie with another hypothetical character who does subject his victim to a 100% risk of death and by replacing the figure 80% by 100%.
On the taxonomy of moral luck see Nagel (2003).
This is an adaptation of an argument raised in Zimmerman (2002).
I tackle this problem in an unpublished draft ‘On Being Probably Blameworthy’.
The same goes for Waldron’s account that aims to justify tort liability.
If Tom would not have done so freely (because he is coerced, manipulated and so on), he would, presumably, not be blameworthy at all, because blameworthiness presupposes freedom.
Some may think that if Tom did, in fact, subject his victim to a 20% risk of death, this shows that he would have, necessarily, subjected his victim to the greater 80% risk of death. A similar argument is made by Alvin Plantinga. Plantinga argues that if someone succumbs to a bribe offer of $10,000 then he would have also succumbed to a bribe offer of $30,000 and, hence, at least some counterfactuals of freedom have truth values. The argument is refuted in van Inwagen (1997).
More technically we can say that no possible world in which Tom decides to impose the higher risk is closer to actuality than all possible worlds in which he chooses not to do so.
Libertarians do, however, seem vulnerable to a variant of this problem suggested by Zimmerman (2002). Although libertarians deny that counterfactuals of freedom have truth values, many of them hold that such counterfactuals have probabilistic values. Thus, even though a libertarian would deny that Tom would have freely imposed the higher risk, he may agree that he would have probably done so freely, and if that is true, then Tom is probably as guilty as Ernie. I deal with this variant in my unpublished draft ‘On Being Probably Blameworthy’.
Note that the draw is initiated when the agent commits his act (shoots the rifle) and its outcomes are determined when the bullet hits or misses. It may be objected that while a new lottery would be a fair procedure, using the actual consequences of the act is unfair because it does not give the successful and the unsuccessful attempter equal chances of getting a lenient punishment; after all, the unsuccessful attempter is at no point subject to the risk of suffering a severe punishment. This thought may be the outcome of mistakenly supposing that what makes a lottery fair is that the result is not determined prior to some point, but this simply isn’t the case. As George Sher (1997) correctly points out, universal determinism would imply that all lottery results are predetermined but it would not make coin tosses, straw draws etc. universally unfair. What makes a lottery fair is that at the time of the lottery nobody who has control over the lottery (i.e. the ability to rig its outcomes) has any special information that allows him to abuse his power. In our case, the initiation of the lottery is under the control of the agent (who chooses to commit the wrongful act) and he, presumably, has no way of rigging the outcomes which lie, ex hypothesi, outside his control.
I use the term fine even though fine usually represents some form of punishment. Indeed, under Waldron’s scheme imposition of tort liability looks very similar to a punishment and, in fact, he sometimes calls it punishment.
In fact, Waldron uses the doctrine of Lex Talionis to justify Lewis’ account of punishment, but I shall consider it as a justification for imposing a liability lottery on tortfeasors.
It is obvious that allocating liability among negligent drivers must be done within some time frame. There is hardly any meaning to (let alone way of measuring) the total amount of harm caused in the past and future unless it is delimited within a specified time frame.
Or nearly zero. Let’s leave supernatural occurrences outside the story.
Or almost 100%.
As you may recall, libertarians deny that counterfactuals of freedom can ever be true.
Or, perhaps, the lack of a decision to slow down.
On the exculpating effects of ignorance see Zimmerman (1997).
For the sake of brevity I ignore the possibility of different levels of risk and different levels of harm.
A quick search on Westlaw returned 70 results citing either of these papers only in American law journals. Presumably the number of results would have been significantly greater if non-American journals, philosophy journals and books could be included.
References
Adams, Robert Merrihew. 1977. Middle knowledge and the problem of evil. American Philosophical Quarterly 14: 109–117.
Adams, Robert Merrihew. 1985. Involuntary sins. The Philosophical Review 94: 3–31.
Coleman, Jules L. 1995. The practice of corrective justice. Arizona Law Review 37: 15–31.
Enoch, David. 2008. Luck between morality, law, and justice. Theoretical Inquiries in Law 9: 23–59.
Feinberg, Joel. 2003. Criminal attempts: equal punishments for failed attempts. In his Problems at the roots of law. New York: Oxford University Press.
Frankfurt, Harry G. 1988. What we are morally responsible for. In his The importance of what we care about. Cambridge: Cambridge University Press.
Gardner, John. 2001. Obligations and outcomes in the law of torts. In Relating to responsibility: Essays for Tony Honoré on his eightieth birthday, eds. Peter Cane, and John Gardner. Oxford: Hart Publishing.
Hart, H.L.A. 2008. Intention and punishment. In Punishment and responsibility, 2nd ed, ed. H.L.A. Hart. Oxford: Oxford University Press.
Honoré, Tony. 1999. Responsibility and luck: the moral basis of strict liability. In his Responsibility and fault. Oxford: Hart Publishing.
Lewis, David. 1989. The punishment that leaves something to chance. Philosophy and Public Affairs 18: 53–67.
Mele, Alfred R. 2006. Free will and luck. Oxford: Oxford University Press.
Nagel, Thomas. 2003. Moral luck. In Moral luck, ed. Daniel Statman. Albany: SUNY series in ethical theory, SUNY Press.
Nussbaum, Martha C. 2003. Luck and ethics. In Moral luck, ed. Daniel Statman. Albany: SUNY series in ethical theory, SUNY Press.
Perry, Stephen R. 1992. The moral foundations of tort law. Iowa Law Review 77: 449–514.
Rescher, Nicholas. 2003. Moral luck. In Moral luck, ed. Daniel Statman. Albany: SUNY series in ethical theory, SUNY Press.
Sher, George. 1997. What makes a lottery fair? In his Approximate justice. Lanham, MD: Rowman & Littlefield.
Sher, George. 2001. Blame for traits. Nous 35: 146–161.
Thomson, Judith Jarvis. 2003. Morality and bad luck. In Moral luck, ed. Daniel Statman, 195–216. Albany: SUNY series in ethical theory, SUNY Press.
Van Inwagen, Peter. 1997. Against middle knowledge. Midwest Studies in Philosophy 21: 225–236.
Waldron, Jeremy. 1992. Lex talionis. Arizona Law Review 34: 25–51.
Waldron, Jeremy. 1995. Moments of carelessness and massive loss. In Philosophical foundations of tort law, ed. David G. Owen. Oxford: Clarendon Paperbacks, Clarendon Press.
Weinrib, Ernest J. 1995. The idea of private law. Cambridge, Massachusetts: Harvard University Press.
Williams, Bernard. 2003. Moral luck. In Moral luck, ed. Daniel Statman. Albany: SUNY series in ethical theory, SUNY Press.
Zimmerman, Michael J. 1988. An essay on moral responsibility. Totowa, NJ: Rowman & Littlefield.
Zimmerman, Michael J. 1997. Moral responsibility and ignorance. Ethics 107: 410–426.
Zimmerman, Michael J. 2002. Taking luck seriously. The Journal of Philosophy 99: 553–576.
Acknowledgments
A debut paper involves the pleasant duty of thanking many people. I would like to thank Andrew Ashworth, Yitzhak Benbaji, Leslie Green and David Rodin, the participants at the Oxford Jurisprudence Discussion Group and the Society for Applied Philosophy 2009 Annual Conference and two reviewers for Res Publica for helpful comments. For many years of invaluable support and encouragement I would like to thank Amit Klein, Tamar Meisels and Yedidia Stern. Finally, I am in debt to three people whose contribution to this paper cannot be overstated. Danny Statman was the first to introduce me to the problem of moral luck (among so many other interesting problems). John Gardner and John Tasioulas supervised the writing of my MSt thesis, parts of which formed the basis of this paper. I learned from these people more than I could ever thank them for.
Author information
Authors and Affiliations
Corresponding author
Rights and permissions
About this article
Cite this article
Sela, G. Moral Luck and Liability Lotteries. Res Publica 16, 317–331 (2010). https://doi.org/10.1007/s11158-010-9130-2
Published:
Issue Date:
DOI: https://doi.org/10.1007/s11158-010-9130-2