Is there a difference in moral blameworthiness between a murderer and an attempted murderer? Should there be a legal difference between them? These questions are particular instances of the question of moral luck and legal luck (respectively). In this paper, I survey and explain the main argumentative moves within the general philosophical discussion of moral luck. I then discuss legal luck, and the different ways in which this discussion may be related to that of moral luck.

One prominent contemporary retributivist theory is built on the notion that crime yields an “unfair advantage” over law-abiding citizens which punishment removes or nullifies. Michael Davis has defended this theory by constructing a market model of “unfair advantage” that he contends answers critics' objections to the retributivist enterprise. I seek to demonstrate the inadequacy of Davis's approach, arguing in particular that the market model rests on an incoherent notion of “demand” and would not, even if coherent, link “unfair advantage” to (...) the seriousness of crimes in any acceptable fashion. The salience of traditional objections to retributivism is thus unaffected by Davis's theory. (shrink)

Explaining the notion of legal luck and exploring its justification. Focusing on how legal luck relates to moral luck, legal causation and negligence, and to civil and criminal liability.

Since the modern era, the discourse of punishment has cycled through three sets of questions. The first, born of the Enlightenment itself, asked: On what ground does the sovereign have the right to punish? Nietzsche most forcefully, but others as well, argued that the question itself begged its own answer. The right to punish, they suggested, is what defines sovereignty, and as such, can never serve to limit sovereign power. With the birth of the social sciences, this skepticism gave rise (...) to a second set of questions: What then is the true function of punishment? What is it that we do when we punish? From Durkheim to the Frankfurt School to Michel Foucault, twentieth century moderns explored social organization, economic production, political legitimacy, and the construction of the self_turning punishment practices upside down, dissecting not only their repressive functions but more importantly their role in constructing society and the contemporary subject. A series of further critiques_of meta_narratives, of functionalism, of scientific objectivity_softened this second line of inquiry and helped shape a third set of questions: What does punishment tell us about ourselves and our culture? What is the cultural meaning of our punishment practices? These three sets of questions set the contours of our modern discourse on crime and punishment.What happens now_ now that we have seen what lies around the cultural bend and realize that the same critiques apply with equal force to any interpretation of social meaning that we could possibly read into our contemporary punishment practices? Should we continue to labor on this third and final set of questions, return to an earlier set, or, as all our predecessors did, craft a new line of inquiry? What question shall we_children of the twenty_first century_pose of our punishment practices and institutions?This essay suggests that the form of the question never really mattered. In all the modern texts, there always came this moment when the empirical facts ran out or the deductions of principle reached their limit_or both_and yet the reasoning continued. There was always this moment, ironically, when the moderns took a leap of faith. And it was always there, at that precise moment, that we learned the most: that we could read from the text and decipher a vision of just punishment that was never entirely rational, never purely empirical, and never fully determined by the theoretical premises of the author. In each and every case, the modern text let slip a leap of faith_an ethical choice about how to resolve a gap, an ambiguity, an indeterminacy in an argument of principle or fact.It is time to abandon the misguided project of modernity. Rather than continue to take these leaps of faith, it is time once and for all to recognize the critical limits of reason, and whenever we reach them, to rely instead on randomization. Where our facts run out, where our principles no longer guide us, we should leave the decision_making to the coin toss, the roll of the dice, the lottery draw_in sum, to chance. This essay begins to explore what that would mean in the field of crime and punishment. (shrink)