An Essay On The Problem Of Moral Luck And Legal Responsibility
Moral luck is not only a problem within philosophy but also within law. The problem concerns those who do or are involved in some wrong doing, though only by mere chance or bad luck. Moral luck can manifest in character or circumstance, either of which can have an impact on the outcomes of someones action. In order to make the discussion of outcome and legal responsibility intelligible, with respect to moral luck, I discuss models of causation that we can then apply to various instances of bad moral luck. I will then conclude on how we ought to deal with the problem of moral luck.
Table Of Contents
What Is Moral Luck?
The Four Types Of Moral Luck
On Causation And Law
On Causal Responsibility
How Should We Deal With Moral Luck?
What Is Moral Luck?
A child, dashing out from a blindspot and into the pathway of a motor vehicle, impacts with a vehicle which is traveling down a road, and the child is subsequently hospitalized. Such actions warrant the fullest responsibility. That is, the child cannot blame another person, as far as we know, for the act of carelessly roaming around, not being attentive or alert to the surroundings, in areas wherein which motor vehicles were driving about. The allocation of moral responsibility is rather evident in such a case. The child is at fault.
But now let us suppose, of precisely the same scenario, that the driver had bothered not with rudimentary safety precautions; instead, the driver blatantly ignored the fact of visual blindspots and likewise ignored caution signs which appeared before the driver traveled down the road. Though the child nevertheless remains unwise in action, the driver no doubt becomes subject to a greater account of moral responsibility. In fact, because the driver is of a more mature mind, given their frontal lobe maturation, we will grant them more moral responsibility than the child, even though both the child and the driver ignored basic safety habits. In other words, the more rationality one has the more culpability one has for their actions.
Now let us modify the scenario. What of the driver who likewise ignores not only the rudimentary precautions but also the warning signs at the beginning of the road, though never strikes down a child with their motor vehicle? Is such a person subject to equal levels of punishment? Did such a person commit an act morally equivalent to the first driver, whom of which struck a child, because the lack of concern for safety precautions?
There is indeed some aspect of us that seeks to suppose not, that is, the second driver, the driver who broke an equal amount of rules but hit no one, has done less wrong than the initial driver; yet at the same time, we cannot provide a moral reason as to why one driver ought to be punished more thoroughly than the other.
Some do argue that, for the sake of our legal system, we need only punish those who have genuinely harmed someone as a result of their negligence. However, arguing such only punishes those who were unlucky. In fact, the result of such punishments, that is, punishing those who are unlucky, only deters people who seek to avoid games of odds. It is only a small chance that, as the result of the negligence for basic precautions, a driver will strike a child. And so, such an argument, by focusing on the manifested consequences of negligence, prefers to punish the unlucky rather than the negligent directly.
Even furthermore, what if two drivers, ignoring the same rules, had drove down the road. Except, one driver wanted to hit a child, but failed to do so, while the other drive had not intended to hit a child, but did so. Surely the intent of the matter has some role in our punishments.
Thus, the problem of moral luck can be succinctly characterized as: those situations which involve moral culpability and random factors, wherein which the random factors seem to alter the moral culpability of the person(s) involved.
The Four Types Of Moral Luck
Thomas Nagel, a philosopher of great achievement, took notice of four distinct types of moral luck. The first type of moral luck is constitutive moral luck. Constitutive moral luck refers to the type of person someone turns out to be or is: personality, capabilities, inclinations, and etc.,. The second type of moral luck is precisely that which we explored above: namely, circumstantial luck. Circumstantial moral luck refers to the nature of the circumstances we find ourselves in, like whether we grew up poor or rich, of which could have had a situational impact upon our proclivity to unlawfully take another person’s food. The third type of moral luck refers to the antecedent causes, that is, the forces and influences, which have lead up to the current situation; we can call this an a priori luck. The fourth and final type of moral luck is about the result of our actions, like when we deliberately take a risk that, after the fact, fails due to bad luck; we can term this a posteriori luck. All of these influence, in some way, the way in which we view the moral culpability of a person.
Constitutive moral luck: the personality, capabilities, and inclinations of a person.
Circumstantial moral luck: the forces of an environment, of which are beyond our control, that influence us in some way.
A priori moral luck: The forces and influences, of which are beyond our control, that influence us in some way before an outcome of some sort.
A posteriori moral luck: the forces and influences, of which are beyond our control, that influence us in some way after an outcome of some sort.
On Causation And Law
The First Model Of Causation
Within law, the process of determining and identifying causation is a difficult task; legal theorists have spent much time debating precisely how causation ought to be inferred and precisely what models we ought to use for the formulation of causation.
To elaborate, when it comes to the known models of causation, we have three. The first model is given to us by John Stuart Mill, and it states: a cause consists of all the conditions within an event. This means, if we had predicted an event to occur, and our prediction had in mind a specific outcome, that any alteration in the conditions would lead to a different outcome; and therefore, our prediction would thus be entirely wrong, all because a condition which we had predicted either changed or failed to be present. Such a model of causation takes the stance that outcomes depend entirely on their preconditions. This can lead us to problems.
On the one hand, if we take the model to its logical absolute, that is, we apply the law of identity to each and every condition to determine the outcome, we will have set before us a wall which can only be climbed by a laplacian demon. Meaning, we cannot know every possible condition and their associated outcomes; such is too great a task for a human mind. Thus, the model, if used in such a way, would be entirely useless to us.
However, we can reconcile this model if we take a version which limits the conditions. When we limit the conditions, the argument changes to: there are some conditions, of which are associated with, in a reliable fashion, general outcomes. For example, that when I cook eggs in the early hours, even though I vary the conditions ever so slightly each time, the general outcome is satiation. This moderate model is far more defensible, indeed, but as a consequence of the model being more practical for us cognitive apes, we have opened it up to a problem.
Before establishing the moderate version of the model, we had absolute certainty about the relationships between conditions and outcomes. Now, unfortunately, we no longer have such a certainty because, instead of making claim to each condition, we only make claim to a few conditions. What this means is that, in some circumstances, we will fall victim to functional fixity: focusing too much on a specific variable, and thus miss the contribution to causation which a new or random variable has.
Venture back to my egg cooking habits, and consider what the phrase “general conditions” would mean in that scenario. Presumably, the heat at which I set the stove, the number of eggs which I cook, the quality of the pan which I am using, and the levels of mental focus and alertness which I possess are all important conditions for the outcome of appropriately cooked eggs. In addition, the silverware that I select, the plate that I use, and the way in which I chew the eggs presumably have no important impact on the outcome of whether I feel satiation or not. But it very well might be the case one day that, when I cook my eggs, my silverware, having a thin, undetectable layer of dish soap, taints the entire meal; or, that despite whatever quality pan I choose to cook my eggs with, I get the same outcome because, unbeknownst to me, all of the eggs which I had selected at the grocery store were passed their date of acceptable consumption.
In other words, the determination of those variables which are important is rather difficult, and so we are more prone to error with the moderate version of the model; and likewise, everything becomes predicated on probability insofar as we are selecting those conditions which probably lead to an asserted outcome. So, this model of causation, in original form, is useless; however, the moderate version of the model is far superior in its practicality, but at the cost of some uncertainties and blindspots.
The Second Model Of Causation
The second model of causation is to create top-down models of causation, of which comprise classes of variables that are, by design, related to one another, that prescriptively organize the environment. This model has some overlap with the moderate version of the first model insofar as it is not concerned with absolute conditions, but it varies in the fact that it has a top-down approach, whereas the moderate version of the first model is inherently empirical.
In contrast to the moderate version of the first model, with the second model, the focus is on producing models of causation, which are not necessarily derived from observation, that we then test. The difference here is that, in the moderate version of the first model, we are identifying causation after the fact and then re-testing, and with the second model, we identify causation before the fact and then find areas in life wherein which the model works.
The models that follow such an approach would attempt to be generalizable, that is, they are written with place-holders that can be replaced by a suitable variable: i.e., If A, then B; then A causes B. Though hardly a rigorous model, such a model can characterize numerous instances across life, and, therefore, legal issues, by simply replacing the letters with variables; for instance:
- (A): If there is some person with a bloody-axe
- and that person is standing above (B): a dismembered body
- Then (A): the person with the bloody-axe is causally responsible for (B): the dismembered body.
These models, although simplistic, can not only be necessary in some cases but likewise more accurate; the general idea, however, is to postulate relationships between place-holders that we then map onto the environment by finding suitable variables for the place-holders.
Now, albeit, the second model is neat, efficient, and incredibly practical, but it nonetheless suffers from epistemic problems. In the first model, we have not only the direction of cause but also the empirical causal relationships; that is, the causes between things themselves. The downfall with the second model, thus, is that it cannot correspond to a truth-condition but instead hopes to aptly characterize a truth condition. In other words, it cannot possibly aspire to lay claim on truth-hood; rather, this model deals specifically with pragmatics alone.
The Third Model of Causation
The third model of causation is metaphorical in nature, for it seeks from those conditions of actual causation a primary agent which set those conditions in motion; more specifically, in the chain of causation, there will at some point in time, we hope, be an agent that contributed to some fraction of the conditions necessary to cause the event at hand; upon the determination of just such an agent, it will then be said that they are responsible for the outcome of all the other causal factors.
To understand more thoroughly, imagine a series of dominos knocking one another over. We will suppose of such scenario that each domino is causally responsible for knocking over another, or the next, domino. However, because there is no agency in any of these dominos, we have no morally responsible individual. But with a legal system, we seek moral culpability. Therefore, of our domino scenario, we instead attribute to the agent in close causal proximity a moral responsibility which states: agent x either knocked over all the dominos or is causally responsible for the dominos falling over. In plain english, because the dominos required some initial agent to set them in motion, we will then place blame on the initial agent for widespread outcome of the dominos, even though the initial agent only, at worse, caused one domino to fall over.
Put in a real world context, like when a driver abruptly slams on their breaks because they had either dropped their phone or had been playing with the radio, which then subsequently lead to a series of fender benders, the judge would apply, in a metaphorical sense, causal responsibility to the driver who broke basic safety precautions. This has the same effect as attributing causal responsibility to whomever knocked down, initially, the dominos.
The utility of such a model of causation is found in its ability to punish various acts of negligence and, through various forms of preemptive and punitive measurements, deter those who are, out of sheer laziness or grandiosity, tempted ignore rudimentary precautions.
But of course, as with each model thus far discussed, we have pitfalls of a sort. With this model in particular, that is, with attributing agent causation to someone who, though may have not been responsible for all the variables in an event, was, nevertheless, necessary for the event to be set in motion to begin with, we can run into issues of injustice. Consider, at what point do we stop the attribution of causal responsibility to the initial agent? How responsible can the individual be, and is it moral for us to dump complete causal responsibility onto the initial agent? These are all incredibly vital questions for this model, none of which lend themselves to solution in any obvious way.
In conclusion, the models of causation within law are far from perfect. Each model has its own benefit as well as its own disadvantages; it will be a matter of debate as to what model characterizes the issue at hand more accurately, as there far too many details involved with a given context to determine before-the-fact the best possible model.
On Causal Responsibility
It is within the hands of the law to determine, in those dreadful circumstances of legal treachery, who or what is responsible for the outcome. When an adjudicator is handed a case to review, he or she must infer causal responsibility within the case. In doing so, the adjudicator will be placing legal responsibility onto someone, eventually. This sounds simple enough, yet it is irrevocably complex.
Of the numerous means to determine causal responsibility in law, there are few prominent forms, of which will provide a sufficient foundation for the topic.
The but-for-condition approach to causal responsibility is a fairly simple model, it involves but little strain on the imagination. Suppose there is a person who shows up to work everyday at the same time, that is, this person has a highly rigid routine and schedule. Now suppose, one day, the person with the rigid routine fails to show up to work on time and gets fired, but the reason for their not showing up was due to someone else: that is, someone had hit them with a car.
With such a scenario, we can readily imagine that without the car hitting the person with the rigid schedule, the person would have made it to work on time and, therefore, still be employed. So, this would allow us to place causal responsibility onto the person who had hit him.
In our doing so, the person driving the car then becomes responsible for the other persons termination, despite having not having come into contact with the employer in any way.
So, the argument is thus, “if it were not for the person who hit him, the rigid person would still have his job”. The reasoning is as simple as X impacted Y, then X got fired; if we remove Y, then X would have not been fired.
But there are of course objections to this line of argumentation, and these objections stem from the inherent simplicity of the reasoning. On the one hand, we can foresee a scenario wherein which two agents failed to do a single task, which then lead to a negative outcome. For example, if two police officers fail to respond to an emergency call, and the scene which evoked the initial emergency call was a murder, then how can our previous reasoning account for causal responsibility?
If one police officer had indeed appeared, while the other did not, then the outcome would have changed; but when neither appear, both are equally responsible for, presumably, negligence. Yet when one officer appears, and the outcome changes, the officer who still failed to appear not only becomes less punishable but can also argue that they were never really causal in the chain of events. In other words, this is a problem for the but-for-condition model.
Now, on the other hand, the second problem this model has, with respect to causal responsibility, is when two people perform an action, of which leads to a negative outcome. Though similar to the previous instance wherein which two officers neglected to respond to an emergency call, we now have two individuals performing an act rather than failing to fulfill a duty; put in question format, we get: who would be more causally responsible when two people shoot the same person, at the same time, in the same say, and in nearly the same place on the victims body? The simple but-for-condition, though useful, nonetheless, fails to help us here.
Joint conditions, as used in the process of determining causal responsibility, is similar to the previous method, but varies insofar as it is multivariate by default. Rather than the substitution of a single variable to determine causal responsibility, we suppose equal responsibility for multiple variables; only because the outcome would be presumed to have occurred due to joint conditions. In other words, causation is attributed to a group as opposed to an individual.
A good example of joint conditions would be as follows: a cement company makes bad bricks, and a brick layer lays the bricks inappropriately, and these two conditions lead to the collapsing of a store wall. It would be deeply unfair to substitute out the brick layer with another and then infer that the event would have not happened; and it would be as equally unfair to do precisely the same for the cement company. And so, both the brick layer and the brick maker are the necessary conditions for this negative outcome. The faulty bricks would have been sufficient for a wall, though for less years than a good brick, and a decent brick layer would have likewise been sufficient for a good wall. The collapsed wall occurs only from the two conditions.
Joint and single conditions of sufficiency: probabilities
As we have just explained, there are joint and but-for-conditions used to determine causal responsibility within law; however, we have thus far described those two methods with binary propositions. As opposed to relying on binary judgements alone, we can introduce probabilities, such as whether a person contributed to at least half or more to the harmful outcome.
For the but-for-condition, we might ask: would event X nevertheless occur if we removed cause Y? If so, then cause Y was not a sufficient cause for event X; therefore, cause Y ought to be either punished less or not at all. A good example of a scenario like this would be as follows:
suppose a person was driving while being distracted, that is, they had been changing a song on the radio; and now suppose they are involved in an accident involving a series of fender benders. We might suppose that the person was at fault for being distracted while driving. But in this scenario, it so happens that the initial car had been hit in the front-end, which then lead to the 4 other cars behind the initial car to hit each other, irrespective of any preventive driving measures taken.
Here, the distracted driving would have no impact on the outcome, as the event would have occurred regardless of the distracted driver. And so, we will punish the distracted driver with nothing more than a ticket.
And the same line of reasoning can be applied to joint conditions. For example, consider the scenario with our two police officers who failed to respond to an emergency call. Lets say officer A and officer B had different skill sets, that is, they had different professional training. Now let us suppose that officer B did not respond because the call required expertise, of which he had lacked; and so he did not respond due to it being an outcome that was non-preventable by him. Here, officer B might be able to argue for a lesser punishment as the outcome would have been exactly the same if he had shown up. Whereas, comparatively, officer A, who had the training, had better chances of altering the outcome, thus, is more causally responsible.
Negligence, Proximate Cause, and Legal Responsibility
We have so far discussed the methods to determine causal responsibility, though we have not considered why we might want to do so. In general, the purpose to deploy the above mentioned methods is to determine negligence, proximate cause, and legal responsibility.
Negligence can be broken into two different kinds. With the first kind of negligence, we are concerned primarily with negative outcomes as the result of a failure to perform a duty. The generic example of this would be a driver who fails his or her duty to drive safely within the public and causes an accident; the driver would be legally responsible for the outcome, only because of the drivers negligence.
The second kind of negligence is gross negligence. Gross negligence is both the failure to perform a duty, of which had lead to a negative outcome, and the demonstration of substantial reckless behaviour or a dangerous level of lack of concern for others. For example, someone who leaves their house to go drink, knowing full well they will become extremely intoxicated, and then drives home, is demonstrating gross negligence.
In order to prove negligence, we need to prove something known as proximate cause. Proximate cause simply states, as we have discussed above, that some agent was a sufficiency or necessary cause for some outcome, and can therefore be responsible for the outcome.
In law the main grounds of responsibility for harm are therefore (i) an agent’s personal responsibility for causing harm and (ii) a person’s responsibility arising from the fact that he, she or it bears the risk of having to answer in legal proceedings for the harm in question. – Stanford Encyclopedia
How Should We Deal With Moral Luck?
To return to moral luck, I now want to propose some solutions for moral luck and how we should consider it from a legal framework.
Personality And Moral Luck
With respect to personality and moral luck, that is, when dealing with the nature of a person and the factors which went into determining their constitution, I think we ought to ignore this. The reason for doing so is predicated on my view of free will and conditioning.
When it comes to free will, I ascribe to the notion that we have the ontological mechanisms necessary for the experience of free will, but at the same time, lack any capacity to make decisions that are in some way undetermined. That is, the experience of free will, of which is readily experienced by most conscious agents, is neurally substantiated, though it is not its-self able to make decisions in an undetermined fashion. Albeit, there is something to be said about randomness and chaos, but it seems far more probable that non-linear dynamics are nothing but our own inability to perform the necessary computations. Therefore, apparent non-linearity is nothing more than incompetence, thus, we are more than likely determined.
So, if it the case that we have the illusion of an ability to make free decisions, but at the same time are ultimately determined, then why ought one not make room for moral luck when it comes to the fundamental constitution of someone’s personality? Herein comes conditioning.
Even though we have not the capacity to make a decision which stems from absolute freedom, we must nevertheless hold those who seemingly do so accountable, irrespective of terrible luck.
If we did otherwise, that is, if we had not held them accountable, then we will have never re-conditioned them. Meaning, if we do not reprimand those who behave poorly due to personality factors, then we shall be entirely unable to alter the synaptic connections within their brains, and thus have absolutely no chance at reshaping their unfortunate disposition into something far more preferable, as when a prisoner becomes reformed.
And if we are stuck with a person who, despite our best efforts, cannot be reformed or reshaped into a more favourable way of being, then we will have to subject them to our lengthiest forms of punishment.
Of course, the recognition of determinist views entails less emotional arousal towards a person, but I do not believe it entails less moral culpability, as moral culpability is a conditioning mechanism. Without such a mechanism in society, we would regress to lawlessness and our social structures, even those social structures rooted inside familial relations, would deteriorate almost immediately; for we would have no means to communicate inappropriate behaviour or wrong doings.
Therefore, when we consider moral luck with respect to the disposition of a person, we should ignore entirely the notion that, out of bad luck, a person has no moral culpability; for it is better for the greater whole of society to do so.
Circumstantial Luck And Moral Culpability
When dealing with moral luck and circumstances, I presume that in those cases where two individuals have committed an equal act, though one had a more treacherous outcome than the other, that both are morally culpable. It simply happens to be that, given that the outcome was dependent on a probability, one had struck the odds whereas the other did not. Meaning, both committed an act, of which was sufficient for a negative outcome, though only one had received a negative outcome. Thus, both the lucky and unlucky, when demonstrating either gross or normal levels of negligence, are equally culpable.
Albeit, the person who indeed harmed another person due to negligence, while the other had done no harm, will indeed face harsher punishment, despite the acts of both persons being equally morally culpable. I believe the person who had been lucky enough to not harm someone ought to be punished through increased liability insurance and fines. That is, the person who, having not harmed anyone, will be given a worldly punishments relating to finance and personal records, in hopes of deterring them from future acts of negligence.
And because we have given merit to the factors which the individual was in control of, it follows that unlucky individuals who demonstrated no negligence are not morally culpable. If the person has followed safety precautions which are within the domain of reasonableness, but a negative outcome had nevertheless come about, then I see no reason as to why we ought to hold the person morally responsible.
Furthermore, in those scenarios wherein which the person had done something of negligence, particularly of the sort that would regularly have no impact, and saw no foreseeable harm, we ought not hold them morally responsible. For example, if a night janitor had just wet the floors inside a store, while also knowing that he ought to be the only person within that store, and a co-worker enters and slips on the floor, then I see no reason to hold the janitor morally culpable. That is, even though the janitor had not followed safety precautions, which then lead to the injury of a co-worker, the janitor is indeed free from moral responsibility because the co-worker was an unforeseeable event.
A Priori and Posteriori Moral Luck
A child in poverty, tempted to steal food to satiate hunger, can be said to have terrible moral luck; that is, the circumstances which, not being of their choice, have pushed them into morally questionable situations. But is this economic hardship a coherent justification for morally questionable behaviours? I believe not.
The example of a child being poverty stricken appeals to the egoist in us all; that is, neither I nor anyone else, presumably, would want to see such a hardship fall upon a mind so young. But we cannot allow our legal system to choose favourites or lessen punishment on those we have extra-levels of sympathy for.
More specifically, on the one hand, if we begin to allow moral luck to play a significant role in how we apply the law to youth, then we will need a moral justification to do so; upon our doing so, we will have a slippery slope to, “this 21-year-old was a disadvantaged child, just like so and so”.
On the other hand, if we allow the legal system to play favouritism, then we would undermine the entire legal system. If children were allowed to get away with theft, simply because they were born into bad circumstances, then we would have a serious problem of thievery in our society.
Instead, it might be best to go to those who have been stollen from and ask if they could use the child’s labour in some way, so that the child may work for the food instead. In other words, we can increase the quality of the child’s life and reverse their bad moral luck.
The same can be said of those who have had bad moral luck via an event which occurred to them later in life, and has thus influenced them into doing morally questionable things.
In general, then. We cannot allow those who were born into bad luck to be above the law; in part, because we would be doing them no favours by enabling them, but also because our doing so would damage the legal system, greatly. It is more appropriate to punish everyone without playing favouritism, and then help those who are requirement of assistance.
Why should the accidental fact that an intended harmful outcome has not occurred be a ground for punishing less a criminal who may be equally dangerous and equally wicked?” – (Hart, 1968)
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