Crime, Moral Luck, and the Sermon on the Mount

Abstract

Consider the following hypotheticals. Alexander, intending to kill Carl, takes careful aim, fires, and inflicts a wound that proves instantly fatal. Alexandra, intending to kill Carol, takes careful aim, fires, and inflicts the merest dent in Carol's bicycle. Alexander and Alexandra share equal intention, skill, and equipment. But the wind unexpectedly blows askant Alexandra's bullet, saving Carol's life. If both shooters suffer arrest and conviction for their shots, Alexander likely will face the death penalty or a long prison term, while Alexandra will receive a relatively short prison term. A difference in wind has rendered Alexander guilty of murder, Alexandra of attempted murder.

Whatever the theory of criminal law and punishment, these results appear anomalous, if not unjust. Both shooters harbored the same intent, both indulged in the same conduct and both imposed the same risks. Though the difference between the resultant loss of life and the dent in a bicycle is of extreme importance to questions of compensation central to tort law, why should this difference matter in criminal law at all? The conduct to be deterred is identical for both actors. Both manifest equal need for reform or incapacitation. Both seem to deserve equal punishment for the wickedness of their intent and conduct. Can the wind really matter so much? The criminal law of perhaps every jurisdiction in the United States would treat Alexander and Alexandra very differently.

From one vantage point, we are sure that both are equally guilty, and that the wind could not make a difference in their desert: they both performed the same act with the same intent. From another vantage point, we are sure that they are by no means equally guilty, and that the wind has made all the difference: Alexander is a murderer, Alexandra is not. How does one reconcile these seemingly irreconcilable conclusions?

This Article suggests that both conclusions may be true, understood from a Christian perspective. While in absolute moral terms, both actors may share equal guilt, in the moral region assigned to civil government for enforcement, each bears different guilt. This harmony is not due to a different concept of justice, to the invasion of tort into criminal law, or to some other distinction between the substance of justice before God and before civil government. What is at work is a jurisdictional principle. Civil government administers God's justice, but only in part. The two vantage points view the cases from these respective jurisdictions.

The wind provides the distinction in the case of Alexander and Alexandra. But the wind is no blind force driven by chance. It is impelled by the hand of God. It is the same hand that maintains physical reality, that keeps both actors alive, that determines the span of Carl's life. The Supreme Judge is also the Supreme Assignment Clerk.

Keywords: moral luck, punishment of attempt, result elements in criminal law, law and religion