Forward-looking aims tend to play a much less significant role than retribution in justifying criminal punishment, especially in common law systems. In this paper I attempt to reinvigorate the idea that there are important forward-looking justifications for criminal law and punishment by looking to social theories of responsibility. I argue that the criminal law may be justified at the institutional level because it is a part of larger responsibility practices that have the effect of bolstering our reasons-responsiveness by making us (...) sensitive to the potential reactive attitudes of a larger societal audience. I further claim that forward-looking effects may justify criminal law institutions even if retribution is the primary aim of assigning punishments to specific offenders. (shrink)

Empirical research has distinguished moral judgments that focus on an act and the actor’s intention or mental states, and those that focus on results of an action and then seek a causal actor. Studies indicate these two types of judgments may result from a “dual-process system” of moral judgment (Cushman 2008, Kneer and Machery 2019). Results-oriented judgements may be subject to the problem of resultant moral luck because different results can arise from the same action and intention. While some argue (...) luck should not bear on persons’ culpability, Victor Kumar has argued that the tendency to hold unlucky agents responsible for harm is justified by consequentialist aims of punishment (Kumar 2019). In contrast, judgments that focus on acts and intentions may be primarily retributive. Kumar claims that judgments focused on results track external, public harm because this increases the reliability of punishment and better achieves instrumental aims, including deterrent effect. In this chapter I examine rape cases using Kumar’s theory of punishment. Rape involves outcomes that are not publicly available. If judgments of punishment depend on outcomes, then we would expect such judgments to be less stable for those instances of wrongdoing that lack public outcomes such as rape, because such judgments would rely instead on often biased and unreliable inferential processes to establish the presence of mental states, which are essentially private. In this way Kumar’s theory actually predicts the way in which we see criminal justice institutions fail with regard to arrest, prosecution, and punishment related to rape; and we might expect similar failures for other crimes that lack publicly available results. In sum, a fundamental problem with institutionalized punishment centered upon results may be that some crimes sit within a moral blindspot. (shrink)

In a series of ten preregistered experiments (N=2043), we investigate the effect of outcome valence on judgments of probability, negligence, and culpability – a phenomenon sometimes labelled moral (and legal) luck. We found that harmful outcomes, when contrasted with neutral outcomes, lead to increased perceived probability of harm ex post, and consequently to increased attribution of negligence and culpability. Rather than simply postulating a hindsight bias (as is common), we employ a variety of empirical means to demonstrate that the outcome-driven (...) asymmetry across perceived probabilities constitutes a systematic cognitive distortion. We then explore three distinct strategies to alleviate the hindsight bias and its downstream effects on mens rea and culpability ascriptions. Not all are successful, but at least some prove promising. They should, we argue, be taken into consideration in criminal jurisprudence, where distortions due to the hindsight bias are likely considerable and deeply disconcerting. (shrink)

Is it appropriate to blame people unequally if the only difference between them was a matter of luck? Suppose Alice would drive recklessly if she could, Belen drove recklessly but didn’t harm anyone, and Cleo drove recklessly and killed a child. Luck-advocates emphasize that in real life we do blame such agents very unequally. Luck-skeptics counter that people aren’t responsible for factors beyond their control, or beyond their quality of will. I’ll defend a somewhat reconciliatory view. I’ll concede to the (...) skeptics that these agents are equally culpable. Nonetheless, I’ll suggest with the luck-advocates that it’s fitting to blame them unequally. That’s because their culpability is unequally significant for us: Cleo’s culpability concerns us more than Belen’s, and Belen’s more than Alice’s—just like the fault of a close aggressor concerns us more than that of an aggressor far off in place and time. And it’s fitting for us to respond with more blame to faults that concern us more. Indeed, blaming people simply in proportion to their culpability manifests a form of fetishism, or problematic mere-matter-of-principle concern. So while many skeptical tenets may hold, in substance the luck-advocates are right. (shrink)

Can experimental philosophy help us answer central questions about the nature of moral responsibility, such as the question of whether moral responsibility is compatible with determinism? Specifically, can folk judgments in line with a particular answer to that question provide support for that answer. Based on reasoning familiar from Condorcet’s Jury Theorem, such support could be had if individual judges track the truth of the matter independently and with some modest reliability: such reliability quickly aggregates as the number of judges (...) goes up. In this chapter, however, I argue, partly based on empirical evidence, that although non-specialist judgments might on average be more likely than not to get things right, their individual likelihoods fail to aggregate because they do not track truth with sufficient independence. (shrink)

Moral philosophers and psychologists often assume that people judge morally lucky and morally unlucky agents differently, an assumption that stands at the heart of the Puzzle of Moral Luck. We examine whether the asymmetry is found for reflective intuitions regarding wrongness, blame, permissibility, and punishment judg- ments, whether people’s concrete, case-based judgments align with their explicit, abstract principles regarding moral luck, and what psychological mechanisms might drive the effect. Our experiments produce three findings: First, in within-subjects experiments favorable to reflective (...) deliberation, the vast majority of people judge a lucky and an unlucky agent as equally blameworthy, and their actions as equally wrong and permissible. The philosophical Puzzle of Moral Luck, and the challenge to the very possibility of systematic ethics it is frequently taken to engender, thus simply do not arise. Second, punishment judgments are significantly more outcome- dependent than wrongness, blame, and permissibility judgments. While this constitutes evidence in favor of current Dual Process Theories of moral judgment, the latter need to be qualified: punishment and blame judgments do not seem to be driven by the same process, as is commonly argued in the literature. Third, in between-subjects experiments, outcome has an effect on all four types of moral judgments. This effect is mediated by negligence ascriptions and can ultimately be explained as due to differing probability ascriptions across cases. (shrink)

Arguments attempting to debunk moral beliefs, by showing they are unjustified, have tended to be global, targeting all moral beliefs or a large set of them. Popular debunking arguments point to various factors purportedly influencing moral beliefs, from evolutionary pressures, to automatic and emotionally-driven processes, to framing effects. We show that these sweeping arguments face a debunker’s dilemma: either the relevant factor is not a main basis for belief or it does not render the relevant beliefs unjustified. Empirical debunking arguments (...) in ethics can avoid this predicament, but only if they are refocused on highly selective classes of moral belief. Experimental data can combine with familiar consistency reasoning to reveal that like cases are not being treated alike. Selective debunking arguments are unlikely to yield sweeping sceptical conclusions, but they can lead to rational moral change. (shrink)

In a series of ten preregistered experiments (N=2043), we investigate the effect of outcome valence on judgments of probability, negligence, and culpability – a phenomenon sometimes labelled moral (and legal) luck. We found that harmful outcomes, when contrasted with neutral outcomes, lead to increased perceived probability of harm ex post, and consequently to increased attribution of negligence and culpability. Rather than simply postulating a hindsight bias (as is common), we employ a variety of empirical means to demonstrate that the outcome-driven (...) asymmetry across perceived probabilities constitutes a systematic cognitive distortion. We then explore three distinct strategies to alleviate the hindsight bias and its downstream effects on mens rea and culpability ascriptions. Not all are successful, but at least some prove promising. They should, we argue, be taken into consideration in criminal jurisprudence, where distortions due to the hindsight bias are likely considerable and deeply disconcerting. (shrink)

This paper has two main goals. The first is to defend a particular account of answerability according to which a person is (morally or criminally) answerable for their conduct if it is (morally or criminally) wrongful under the same description under which it is imputable to their agency. Negating defences in law aim to defeat criminal answerability by negating some element of the charged offence while their moral analogues aim to defeat moral answerability by defeating the aptness of the description (...) under which an action is imputed. In contrast, affirmative defences and their moral analogues aim to defeat the move from answerability to liability to sanction by offering an exculpatory explanation for the wrongful conduct. The second goal of this paper is to argue that there are important differences between the way that ignorance functions in negating defences and their moral analogues and affirmative defences and their moral analogues. Specifically, when ignorance functions to defeat answerability, it need only be sincere, but it is typically limited to matters of fact, whereas both moral and non-moral ignorance can excuse one from liability but only if non-culpable. (shrink)

This paper investigates an ingenious argument by Andrew Khoury which, if valid, could shed new light on some of the most relevant discussions within the field of moral philosophy. The argument is based on the idea that if we deny the phenomenon of resultant moral luck, then the proper objects of moral responsibility must be internal willings. I analyse the argument and find it unsound. The argument does not adequately account for the positions of all relevant moral actors when it (...) comes to the moral evaluation of agents and their actions. (shrink)

Midwest Studies In Philosophy, EarlyView.

Psychologists and neuroscientists have recently been unearthing the unconscious processes that give rise to moral intuitions and emotions. According to skeptics like Joshua Greene, what has been found casts doubt on many of our moral beliefs. However, a new approach in moral psychology develops a learning-theoretic framework that has been successfully applied in a number of other domains. This framework suggests that model-based learning shapes intuitions and emotions. Model-based learning explains how moral thought and feeling are attuned to local material (...) and social conditions. Philosophers can draw on these explanations, in some cases, in order to vindicate episodes of moral change. Explanations can support justifications by showing that they are not mere rationalizations. In addition, philosophical justifications are a fertile source for empirical hypotheses about the rational learning mechanisms that shape moral intuitions and emotions. (shrink)

An increasing number of research fields must expect that their projects will be classified as susceptible to misuse or otherwise security relevant, even if the reasons or criteria for this classification have not yet been uniformly developed. Research institutions will commonly distribute the obligation to predict and prevent misuse across multiple members and structures including ethics committees. However, cases of misuse occur even in spite of these precautions, raising the question of the type and distribution of responsibility for the resulting (...) harm. This question becomes even more pressing if research ethics committees in their decisions ask researchers to provide a misuse- specific risk assessment or risk mitigation plan and thereby shift back a part of their responsibility on the researchers. While this kind of requirement may be considered as unsatisfactory by researchers, members of research ethics committees or boards and third-party funders, will argue that it fulfils two important functions. On the one hand, it makes use of the best available source for misuse risk-assessment available to most committees; on the other hand, it guarantees that the researchers at least try to take responsibility. If researchers, committee members and others involved discharge their obligation to predict and mitigate misuse risks with due diligence, any backward-looking responsibility they retain is to show agent regret for the results of their work having been misused. (shrink)