Moral Luck and the Criminal Law

LAW AND SOCIAL JUSTICE, J. Campbell, M. O'Rourke, D. Shier, eds., MIT Press, 2005

24 Pages Posted: 8 Apr 2005

Abstract

The problem of moral luck springs from a discrepancy between our notion of responsibility and the actual manner in which we make moral judgments. We tend to think people are only responsible for what they can control, but we are also inclined to judge them on the basis of what they cannot. The problem was introduced by two seminal articles written by Bernard Williams and Thomas Nagel and has generated a good deal of interest since. Scholars concerned with the criminal law have found it especially rich. Most lawyers have focused on Nagel's account of moral luck, perhaps because it is more concerned with external judgments of an agent's action (which are the kind of judgments the law makes), while Williams focuses on self-evaluation. As a matter of fact legal scholars have focused especially on one aspect of Nagel's account, namely luck in the outcomes of our actions, or outcome luck.

This paper begins with a short example aimed at bringing out some of the questions involved in the notion of 'moral luck'. It then proceeds to give a critical account of the debate concerning the role of fortuity in the moral assessment of criminal actions and in their punishment. I preface the final part of the essay with a cautionary note about taking sides in this debate. The problem of moral luck represents a paradox in the heart of our moral practices; it needs to be described rather than 'solved', since paradoxes cannot be argued away. I then go on to describe aspects of the relationship between law and luck that have been largely neglected by the literature.

Keywords: Moral Luck, Criminal Law, Moral Judgment, Punishment, Nagel, outcomes, intentions, Kant

Suggested Citation

Eisikovits, Nir, Moral Luck and the Criminal Law. LAW AND SOCIAL JUSTICE, J. Campbell, M. O'Rourke, D. Shier, eds., MIT Press, 2005, Available at SSRN: https://ssrn.com/abstract=693621

Nir Eisikovits (Contact Author)

Boston University ( email )

595 Commonwealth Avenue
Boston, MA 02215
United States

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