Volume 9, Issue 1 - Moral and Legal Luck

I take a close look at Bernard Williams’s paper "Moral Luck," which put this notion on the philosophical agenda. Williams’s focal example is the painter Paul Gauguin. According to Williams, Gauguin’s morally dubious decision to desert his family so as to pursue an artistic career can be redeemed only by his partially fortuitous success as a painter. This is shown by the consideration that a successful Gauguin would not be able to regret his decision, whereas failure would have prompted regret. I suggest that the best way to understand this claim is to see Gauguin’s decision to become an artist as a constitutive decision, which launches what for him proved to be a defining project. One cannot coherently regret the realization of such a project or the decision that gave rise to it because that would amount to wishing to be someone else: conditions of personal identity set the limits on the counterfactuals about ourselves that we can intelligibly entertain. However, not being able to regret the constitutive elements of one’s life is not the same as approving of these elements. So I disagree with Williams’s ultimate conclusion that the inability to regret a decision signals some justification for it, no matter how attenuated.

In this Article, I elaborate on and defend the following argument: (1) There is no moral luck. (2) If there is no moral luck, there should be no legal luck. (3) Therefore, there should be no legal luck (from (1) and (2)). (4) If there is no normatively significant difference between the law (or the state) doing and allowing, or intending and foreseeing, then there is no normatively significant difference between legal luck and just plain luck that has legal implications. (5) There is no normatively significant difference between the law (or the state) doing and allowing, or intending and foreseeing. (6) Therefore, there is no normatively significant difference between legal luck and just plain luck that has legal implications (from (4) and (5)). (7) Therefore, plain luck should have no legal implications (from (3) and (6)).

Contemporary debates about "moral luck" were inaugurated by Thomas Nagel’s celebrated essay on the topic. Nagel notes that the puzzle about moral luck is formally parallel to the familiar epistemological problem of skepticism. In each case, the problem is generated by the apparent coherence of the thought that inner aspects of our lives are self-contained, and can be both understood and evaluated without any reference to anything external. Epistemological skepticism begins with the thought that my thoughts could be exactly as they are without any contact with the world outside, where "exactly as they are" is glossed in terms of the grounds that connect those thoughts with each other and provide the basis for our confidence in them. In the practical case, the problem of moral or legal luck arises from the thought that the only basis we have for evaluating a person’s action is his decision to perform that action. The Kantian and post-Kantian response to epistemological skepticism is not to try to defeat the skeptic on his or her own grounds, but rather to show that there is something wrong in the way the problem is set up. Our ordinary ways of thinking about ordinary things, and other persons, are only in trouble if they rest on an unwarranted inference from something that is more secure. I will engage with legal luck in a parallel way: our ordinary ways of thinking about responsibility are only in trouble if they rest on an unwarranted inference from something more secure. I argue that the concept of a completed wrong is basic to law, and that aspects of human interaction on which luck-skeptics focus — blameworthiness and harm — are derivative. I frame the issue not in terms of moral significance, but rather in terms of the authorization of the state to use force, either to order the payment of damages in tort or to imprison criminals. In the first part of the Article I consider the case of tort liability for negligence, explaining the structure of a completed wrong and the correspondingly derivative significance of carelessness as such. In the second part I turn to the issue of criminal punishment. I offer a brief explanation of the state’s authority to punish, before going on to show that the basic case that engages this authority is the completed crime. I then show why the failed attempt also attracts punishment, even though it is a derivative case.

Parallel moral luck problems exist in three different normative domains: criminal law, tort law, and conventional moral thinking. In all three, the normative status of an actor’s conduct seems to depend on matters beyond the actor’s control. Criminal law has historically imposed greater punishment on the murderer who kills his intended victim than on the identically behaved would-be murderer whose shot fortuitously misses. Tort law imposes liability on the negligent driver who injures someone, but no liability if, through good fortune, the negligence injures no one. And, as BernardWilliams and Thomas Nagel have famously argued, conventional moral thinking often attributes greater blame to an actor for wrongful conduct if that conduct ripens into a terrible event than if it fortuitously causes no harm at all. This Article distinguishes two different dimensions of responsibility and then uses this distinction to explain the problem in all three areas. One dimension is called "fault-expressing responsibility": it is a matter of the degree to which one’s acts constitute conduct that can express one’s character or faultiness. A second dimension of responsibility is called "agency-linking responsibility." In this dimension, the degree to which a person is responsible for some event is dependent upon whether that event is an action of that person. Responsibility can differ in the agency-linking dimension even if it remains the same in the fault-expressing dimension.

The effort to rid criminal responsibility of factors beyond the agent’s control created an opportunity for a new balance in the law of attempt between aggravated penalties and full exoneration for voluntary renunciation. The present analysis claims that the opportunity has been missed both in Israel and in the United States because of an unwarranted concern for the moral tenor of renunciation. Analysis of the difference between (rare) successes and (frequent) failures in renunciation cases is offered in support of the proposition that the proper balance between ex post and ex ante considerations is only applied where courts (and sometimes legislators) empathize with the victims of specific crimes (e.g., markets, children, judges). In other cases (e.g., rape, murder), immediate victims are readily used as means to prevent uncertain future crime. The claim is also made that concern with the moral tenor of renunciation creates an anomaly in modern criminal law. While the decision to initiate a crime act (the "go act") is judged on ever narrower pictures of character and motive, the decision to abandon it before actual harm is inflicted (the "stop act") increasingly attracts interest in the inner processes behind it. I claim that the anomaly manifests the danger of blurring the line between reality (no actual harm) and fantasy (harm imagined and willed by the defendant) when the struggle against luck is not properly checked.

Beginning with the seminal work by Williams and Nagel, moral philosophers have used auto accident hypotheticals to illustrate the phenomenon of moral luck. Moral luck is present in the hypotheticals because (and to the extent that) two equally careless drivers are assessed differently because only one of them caused an accident. This Article considers whether these philosophical discussions might contribute to the public policy debate over compensation for auto accidents. Using liability and insurance practices in the United States as an illustrative example, the Article explains that auto liability insurance substantially mitigates moral luck and argues that, as a result, the moral luck literature is unlikely to make a significant contribution to this public policy debate. The debate would benefit more from philosophical analysis of victims’ luck, which is not as substantially mitigated by liability insurance.

This Article considers the role of luck in judicial outcomes, stemming from differences in the moral and legal views and reasoning of the judges who decide them. It suggests that luck is ineliminable from a system of positive law and that although it poses important moral problems of unpredictability, arbitrariness, and unfairness, it is not easily remediable. It is certainly not remediable by replacing a system of positive law with a system of adjudication addressing moral issues directly. Nor is it remediable by insisting on integrity as a feature of judicial decision-making.

A situation in which luck determines what happens in our lives is composed of two elements: (1) the existence of a multiplicity of possible outcomes, and (2) lack of control over the situation, namely that we have no way, or at least no meaningful way, to affect the outcome. Adjudication is a luck situation: law is indeterminate and in a decent society litigants are not supposed to have control over their judges. Can we minimize luck in adjudication? The primary way to do this is to make every decision given in the system resemble as much as possible the decision that would have been reached by the majority of the judges active in the system had they all been given the opportunity to decide the case at hand as a group. Put differently, luck in judicial decisions can be lessened by increasing the number of judges in panels. Even though in a decent society the option of controlling the conduct of judges is out of the question, several means do exist for litigants to employ some control over the identity of the persons who are to resolve their disputes.

Individuals in capitalist societies are increasingly exposed to market risks. Luck egalitarian theories, which advocate neutralizing the influence of luck on distribution, fail to cope with this problem, because they focus on the wrong kinds of distributive constraints. Rules of distributive justice can specify (1) acceptable procedures for allocating goods, (2) the range of acceptable variations in distributive outcomes, or (3) which individuals should have which goods, according to individual characteristics such as desert or need. Desert-catering luck egalitarians offer rules of the third type. Their theories fail because considerations of market efficiency, freedom, and dignity undermine the claims of desert to inform standards of justice for society as a whole. Responsibility-catering luck egalitarians offer rules of the first type. Their theories fail because such rules don’t constrain the downside risks of market choices. To solve this problem, we need rules of the second type, which allow market forces, and hence luck, to influence distributive outcomes, but only within an acceptable egalitarian range. The ideal of equality in social relations helps us devise acceptable constraints at the top, bottom, and middle of the income range.

Luck egalitarianism — the theory that makes individual responsibility central to distributive justice, so that bad luck underwrites a more compelling case for redistribution than do the bad choices of the disadvantaged — has recently come under a sustained attack from critics who are deeply committed to the broader struggle for equality. These egalitarian critics object, first, that luck egalitarianism’s policy recommendations are often unappealing. Second, they add that luck egalitarianism neglects the deep political connection between equality and non-subordination, in favor of a shallowly distributive regime. This Article argues that both objections to luck egalitarianism have been exaggerated. Insofar as the criticisms are accurate, they apply only to a particular, maximalist strand of luck egalitarianism, whose distributive principle does not merely adjust allocations in light of responsibility but instead proposes that allocations should precisely track responsibility. However, this responsibility-tracking view does not represent the best or truest development of the basic luck egalitarian ideal. Moreover, the pathologies of the responsibility-tracking view help to cast the appeal of more judicious luck egalitarianism into sharp relief. The redistributive policies that more moderate developments of luck egalitarianism recommend are less objectionable than critics have supposed. And, more importantly, such modest luck egalitarianism is not a purely distributive ideal but instead contains, at its core, a vision of political solidarity among free and equal citizens.

Most forms of egalitarian theory impose on government (and through it other people) to redress the inequalities of fortune that result from bad luck. This Article takes issue with the various forms of this large claim, and argues that decentralized forms of assistance are likely in the long run to do better by the very standards by which egalitarians justify their own program. The alleviation of poverty depends in the first instance on increases in wealth that can only come through private innovation and technological advances. These have in fact produced major improvements in overall well-being, with disproportionate advances for the poor. But if one starts with Dworkin’s unsustainable distinction between option and brute luck, or Nussbaum and Sen’s capability theory, then no egalitarian theory can deliver on the promise to level differences in wealth without seriously compromising overall levels of social welfare. By expanding the scope of government regulation, these proposals open the door to selfish political forces whose political clout ensures that ill-conceived programs, such as the Americans with Disabilities Act, frustrate the very goals they hope to achieve. State intervention to redistribute resources should be understood as a last resort for dealing with problems of ill fortune.