This article explores the Rawlsian goal of ensuring that distributions are not influenced by the morally arbitrary. It does so by bringing discussions of distributive justice into contact with the debate over moral luck initiated by Williams and Nagel. Rawls’ own justice as fairness appears to be incompatible with the arbitrariness commitment, as it creates some equalities arbitrarily. A major rival, Dworkin’s version of brute luck egalitarianism, aims to be continuous with ordinary ethics, and so is (a) sensitive to non-philosophical (...) beliefs about free will and responsibility, and (b) allows inequalities to arise on the basis of option luck. But Dworkin does not present convincing reasons in support of continuity, and there are compelling moral reasons for justice to be sensitive to the best philosophical account of free will and responsibility, as is proposed by the revised brute luck egalitarianism of Arneson and Cohen. While Dworkinian brute luck egalitarianism admits three sorts of morally arbitrary disadvantaging which correspond to three forms of moral luck (constitutive, circumstantial, and option luck), revised brute luck egalitarianism does not disadvantage on the basis of constitutive or circumstantial luck. But it is not as sensitive to responsibility as it needs to be to fully extinguish the influence of the morally arbitrary, for persons under it may exercise their responsibility equivalently yet end up with different outcomes on account of option luck. It is concluded that egalitarians should deny the existence of distributive luck, which is luck in the levels of advantage that individuals are due. (shrink)

This essay, as will become obvious, owes a huge debt to Mark Kelman, particularly to his article “Interpretative Construction in the Substantive Criminal Law.” That debt is one of both concept and content. There is rich irony in my aping Kelman's deconstructionist enterprise, for I do not share his enthusiasm for either the “insights” or the political agenda of the Critical Legal Studies movement. I do not believe that either the law in general or the criminal law in particular is (...) radically indeterminate, rife with internal contradictions, or an expression of the interests of a dominant economic class. And although, like Kelman, I believe that the freedom/determinism, act/character, and rule/principle dichotomies must ultimately be dealt with in order to have a completely satisfactory account of criminal law, I also believe that these dichotomies loom just as large in other areas of law and in normative theory generally. They are problems for Crits as well as for liberal-legalists. In any event, my intentions in undertaking this deconstructionist enterprise are modestly reformist, not revolutionary. I do not intend to shift any paradigms, but to work with well-established ones. I will assume that criminal law seeks to accomplish some blend of retributive response to and deterrence of culpable choices, choices to defy moral norms that are also legal norms. I will also assume that a culpable choice is one that reflects negatively on the values held by the chooser. Beyond these quite modest assumptions, I need not and will not venture in this paper, realizing, of course, that much has and can be written about the proper aims of punishment and the proper account of culpability. (shrink)

Negligence is both an important concept and an ambiguous one. Here I concentrate upon the sense of creating an unjustifiable, low-probability risk of future harm. This essay attempts to dispel theprevalent view that only a maximizing, utilitarian approach can render intelligible certain features of negligence analysis—its focus on the marginal advantages and disadvantages of the actor's taking a specific precaution, its consideration and balancing of the short-term effects of different actions, and its sensitivity to a multiplicity of factors. Perhaps certain (...) absolutist deontological perspectives are inconsistent with these features; but other deontological perspectives can easily accommodate them. Careful examination of the concept of negligence helps resolve an important debate about the nature of tort law, supporting the view that fault, rather than corrective justice, is the better interpretation and justification of Anglo-American tort doctrine. (shrink)

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.

I argue for responsibility internalism. That is, moral responsibility (i.e., accountability, or being apt for praise or blame) depends only on factors internal to agents. Employing this view, I also argue that no one is responsible for what AI does but this isn’t morally problematic in a way that counts against developing or using AI. Responsibility is grounded in three potential conditions: the control (or freedom) condition, the epistemic (or awareness) condition, and the causal responsibility condition (or consequences). I argue (...) that causal responsibility is irrelevant for moral responsibility, and that the control condition and the epistemic condition depend only on factors internal to agents. Moreover, since what AI does is at best a consequence of our actions, and the consequences of our actions are irrelevant to our responsibility, no one is responsible for what AI does. That is, the so-called responsibility gap exits. However, this isn’t morally worrisome for developing or using AI. Firstly, I argue, current AI doesn’t generate a new kind of concern about responsibility that the older technologies don’t. Then, I argue that responsibility gap is not worrisome because neither responsibility gap, nor my argument for its existence, entails that no one can be justly punished, held accountable, or incurs duties in reparations when AI causes a harm. (shrink)

On a common characterization, moral luck occurs when factors beyond agents’ control affect their moral responsibility. The existence of moral luck is widely contested, however. In this paper, I present a new challenge for deniers of moral luck. It seems that some factors beyond agents’ control—such as moral principles about blame- and praiseworthiness—clearly affect moral responsibility. Thus, moral luck deniers face a dialectical burden that has so far gone unnoticed. They must either point to a relevant difference between factors like (...) moral principles and the kind of factors that according to them do not affect moral responsibility or show how they can avoid having to point to such a difference. I argue that no obvious way to meet the challenge presents itself and that it thus amounts to a serious worry for deniers of moral luck. (shrink)

Philosophers disagree about whether outcome luck can affect an agent's “moral responsibility.” Focusing on responsibility's “negative side,” some maintain, and others deny, that an action's results bear constitutively on how “blameworthy” the actor is, and on how much blame or punishment they “deserve.” Crucially, both sides to the debate assume that an actor's blameworthiness and negative desert are equally affected—or unaffected—by an action's results. This article challenges that previously overlooked assumption, arguing that blameworthiness and desert are distinct moral notions that (...) serve distinct normative functions: blameworthiness serves aliabilityfunction (removing a bar to otherwise impermissible treatments), whereas desert serves afavoringfunction (contributing new value to states of affairs, or providing new reasons for responsive treatments). Having distinguished (negative) desert from blameworthiness, the article proposes a novel resolution to the outcome‐luck debate: that results do not affect an agent's liability to blame, but do affect the amount and severity of blame to which the agent is justly liable, including by affecting the severity of blame that the agent deserves. (shrink)

Does one’s causal responsibility increase the degree of one’s moral responsibility? The proponents of resultant moral luck hold that it does. Until quite recently, the causation literature has almost exclusively been interested in the binary question of whether one factor is a cause of an outcome. Naturally, the debate over resultant moral luck also revolved around this binary question. However, we have seen an increased interest in the question of degrees of causation in recent years. And some philosophers have already (...) explored various implications of a graded notion of causation on resultant moral luck. In this paper, I will do the same. But the implications that I will draw attention to are bad news for resultant moral luck. I will show that resultant moral luck entails some implausible results that leave resultant moral luck more indefensible than it was previously thought be. I will also show that what is typically taken to be the positive argument in favor of resultant moral luck fails. I will conclude that we should reject resultant moral luck. (NOTE: Email me for a copy.). (shrink)

Este texto tem como objetivo apresentar a principal motivação filosófica para se defender uma teoria causal da memória, que é explicar como pode um evento que se deu no passado estar relacionado a uma experiência mnêmica que se dá no presente. Para tanto, iniciaremos apresentando a noção de memória de maneira informal e geral, para depois apresentar elementos mais detalhados. Finalizamos apresentando uma teoria causal da memória que se beneficia da noção de veritação (truthmaking).

I consider cases in which a person’s action causes a foreseeable harm, but does so through an unforeseeable causal path. According to a common view, the person is blameless for the harm in such cases. I argue that any defense of this common view incurs serious costs. I then show how a popular view about resultant luck can make the rejection of the common view palatable.

There is a tendency among those who identify themselves as subjectivists on the issue of defining criminal intent to dismiss or minimize the role of actual non-trivial harm in the determination of criminal liability and punishment. That is to say, they are those who argue that an individual’s subjective intent is a sufficient indication of potential dangerousness and culpability to justify punishment. In this essay, the author presents a view, based on Adam Smith’s recognition of the “irregularity of the sentiments,” (...) that actual physical harm matters; that it reflects the negative component of the two great motivators, pleasure and pain; and that it can release the worst sort of emotional reactivity: retribution. The infliction of a non-trivial first order harm can invoke a deeply felt aesthetic reaction which, in turn, reflects our natural (and cognitively “irregular”) human sentiments. Trying to dispense with harm as a feature in our understanding of criminality seems prima facie absurd. Awareness of the sentiment, as Smith understood, helps temper the worst parts of our nature: that which hopes to crush the people and ideas we find threatening. Ironically, the existence of and need for harm as a necessary condition of criminality heightens our awareness of the limitations of reason in dealing with victims of crime. We are not simply cognitive creatures. (shrink)