moral luck essay

Internet Encyclopedia of Philosophy

A case of moral luck occurs whenever luck makes a moral difference. The problem of moral luck arises from a clash between the apparently widely held intuition that cases of moral luck should not occur with the fact that it is arguably impossible to prevent such cases from arising.

The literature on moral luck began in earnest in the wake of papers by Thomas Nagel and Bernard Williams. The problem of moral luck had been discussed before Nagel’s and Williams’ articles, although not under the heading of “moral luck.” Though Nagel’s paper was written as a commentary on Williams’, they have quite different emphases. Still, the same question lies at the heart of both papers and, indeed, at the heart of the literature on moral luck: can luck ever make a moral difference? This idea of a moral difference is a wide one. Various sorts of difference have been considered. The most obvious is, perhaps, a difference in what a person is morally responsible for, but it has also been suggested both that luck affects the moral justification of our actions and that it affects a person’s moral status in general (that is, that it affects how morally good or bad a person is). We shall pay more attention to these varied differences in time, but the important point for now is that both Williams and Nagel argue that luck can make a moral difference.

So what is the problem if luck makes a moral difference? The problem is that the idea of luck making a moral difference is deeply counterintuitive. We know that luck enters into our lives in countless ways. It affects our success and our happiness. We might well think, however, that morality is the one arena in which luck has no power. Consider what we might call a person’s “moral standing”—an expression we can use to stand for all the sorts of moral difference luck might be thought to make. Luck, we might think, cannot alter one’s moral standing one bit. This seems a reasonable position, but it is a position both Nagel and Williams cast into doubt. We will first consider Williams’ argument, primarily because it is the least successful. We shall see that Williams’ argument seem to fail and that what is interesting in his argument is captured much better by Nagel.

Table of Contents

• The Argument
• Introduction to the Problem
• Four Types of Luck
• The Problem Summarized
• Responses to the Problem
• References and Further Reading

1. Williams on Moral Luck

A. the argument.

Williams’ aim in “Moral Luck” and much of his other work is to discredit the Kantian view of morality and to suggest that it would be best to abandon the notion of morality altogether (replacing it with the wider notion he calls the “ethical”). (See Williams, 1985, for the distinction.) In doing so, Williams takes himself to be challenging not just Kantian thinking about morality, but also commonplace ideas about it. He claims the idea that morality is immune to luck is “basic to our ideas of morality” (1993a, p. 36).

Why should this be so? Because, Williams suggests, if moral value does depend on luck, it cannot be the sort of thing we think it is. We have already noted the extent to which luck permeates our lives. Some are born healthy; others with various sorts of handicaps. Some stumble into great wealth; others work hard, but always remain poor. To those on the losing end of these matters, this often seems unfair. Success of whatever kind we might seek is not equally available to all. Luck gives some head starts and holds others back. Nonetheless, we might think there is at least one sort of value which is equally available to all: moral value. Bill Gates may be richer than Jane Doe, but that does not mean he is a better person. Donovan Bailey may be faster than Jane Doe, but that does not make him her moral superior. Of course, both these men may be her moral superiors, but, if they are, luck is supposed to have nothing to do with it. Morality thus provides us with a sort of comfort. In Williams’ words, it offers “solace to a sense of the world’s unfairness” (1993a, p. 36). As Williams points out, however, this will be cold comfort if morality doesn’t matter much. Thus, just as it is essential to the notion of moral value that it is immune to luck, so, he claims, it is essential that moral value is the supreme sort of value. Williams claims that moral value can give us the solace he describes only if it really does possess these two characteristics (being immune to luck and being the supreme sort of value). Luck may bring us all sorts of hardship, but when it comes to the single most important sort of value, we are immune to luck. It is against this picture of morality that Williams’ argument must be understood. He presents us with a dilemma: either (a) moral value is (sometimes) a matter of luck or else (b) it is not the supreme sort of value. In either case, we have to give up something very important to the notion of moral value; hence, Williams thinks we should give up morality in favour of the ethical.

Williams begins the drive towards this dilemma by focusing on rational justification rather than moral justification. The cornerstone of his argument is the claim that rational justification is a matter of luck to some extent. He uses a thought experiment to make this point. Williams presents us with a story based loosely on the life of the painter Paul Gauguin. Williams’ Gauguin feels some responsibility towards his family and is reasonably happy living with them, but nonetheless abandons them, leaving them in dire straits. He does so in an attempt to become a great painter. He goes to live on a South Sea Island, believing that living in a more primitive environment will allow him to develop his gifts as a painter more fully. How can we tell whether Gauguin’s decision to do this is rationally justified? We should ask first of all, what exactly Williams means by “rational justification.” He never says, but he seems interested in the question of whether Gauguin was epistemically justified in thinking that acting as he did would increase his chances of becoming a great painter. That is, the question is whether it was rational (given Gauguin’s interests) for him to do as he did.

Williams rightly observes that it is effectively impossible to foresee whether Gauguin will succeed in his attempt to become a great painter. Even if, prior to making his decision, Gauguin had good reason to think he had considerable artistic talent, he could not be sure what would come of that talent, nor whether the decision to leave his family would help or hinder the development of that talent. In the end, says Williams, “the only thing that will justify his choice will be success itself” (1993a, p. 38). Similarly, Williams claims the only thing that could show Gauguin to be rationally unjustified is failure. Since success depends, to some extent anyway, on luck, Williams’ claim entails that rational justification depends, at least in some cases, on luck.

Not every success, however, confers justification, nor does every failure signal lack of justification. It depends on what sort of luck, if any, was involved in the success or failure. Williams distinguishes between extrinsic and intrinsic luck, claiming that only the operation of intrinsic luck is compatible with the result of a decision determining the rational justification of that decision. Roughly, intrinsic luck is luck that arises from the elements of the project or action under consideration, while extrinsic luck is luck arising from “outside” the project. In the case of Gauguin, intrinsic luck is luck arising from Gauguin himself, since he is the only one involved in his project. If Gauguin fails because it turns out that living on a South Sea Island distracts him to such an extent that he becomes a worse painter, this will be a case of bad intrinsic luck and so he will be unjustified. On the other hand, if, at the start of his project, a freak accident causes him to sustain an injury which prevents him from ever painting again, he will be neither justified nor unjustified since his project is never really carried out. His project will have failed but, as regards justification, a verdict will not be returned due to the interference of extrinsic bad luck. What matters then with regard to rational justification is intrinsic luck. If Gauguin is lucky enough to possess sufficient talent and to find circumstances in which that talent can flourish, his project will succeed. He will be justified and this will, in part, be due to (intrinsic) luck.

(Although Williams never mentions it, presumably if Gauguin were to succeed due to good extrinsic luck, he would also be neither justified nor unjustified. If an eccentric art critic were to find a way to make Gauguin’s mediocre work speak, it might be impossible to tell whether Gauguin was justified or not.)

What, if anything, does this have to do with morality? Williams hopes to inflict fatal damage on the notion of the moral by setting up a collision between rational and moral justification. Rational justification, Williams has suggested, is, at least partly, a matter of luck. Moral justification, as we have noted, is not supposed to be a matter of luck at all. This clearly leaves room for clashes between the two sorts of justification, cases in which an action is morally unjustified, but rationally justified (or vice versa). Indeed, the example of Gauguin is supposed to provide us with just such a case. Suppose that Gauguin’s decision to leave his family is morally unjustified. Since luck has nothing to do with the moral value of this decision, we can say that Gauguin’s decision is a morally bad one when he makes it and that it stays that way, regardless of how his project turns out. According to Williams, however, whether Gauguin’s decision is rationally justified is not settled when he makes it. We have to wait and see how the project turns out. Suppose, as Williams clearly means us to, that his Gauguin, like the real one, becomes a great artist (and that this does not happen as the result of extrinsic luck). Once this is the case, Gauguin’s decision is rationally justified though still morally unjustified.

This might be thought enough to generate a problem for the type of morality Williams opposes. As Judith Andre puts it:

Since rational justification is partly a matter of luck… our notion of rational justification is not synonymous with that of moral justification, and morality is not the unique source of value (1993, p. 123)

This doesn’t, however, quite get Williams’ point right. His claim was not that morality is the only source of value, but that it is the supreme source of value. On this picture, the mere fact that morality and rationality collide does not necessarily pose a problem. It would pose a problem for the Kantian, since, for Kant, to act morally is to act rationally. But remember that Williams takes as his enemy both Kantian and everyday thinking about morality. And it is not at all clear that our everyday thinking about morality requires us to endorse such a tight link between rationality and morality. So the possibility that rationality and morality may be distinct sources of value is no more troubling than the fact that morality and pleasure are distinct sources of value. There can be more than one source of value so long as moral value trumps these others sorts of value. Problems only arise when we come to consider “where we place our gratitude” that Gauguin left his family and became a painter (Williams, 1993b, p. 255). Suppose that we are genuinely grateful that Gauguin did what he did and, as a result, became a great artist. We might say this shows that, on occasion, we have reason to be glad that the morally correct thing did not happen. But to say something like this is to call into question part of the point of morality (or so Williams says). Remember Williams claims that morality “has an ultimate form of justice at its heart, and that that is its allure. …it offers… solace to a sense of the world’s unfairness” (1993a, p. 36). He adds that it can offer that solace only if moral value possesses “some special, indeed supreme, kind of dignity or importance” (1993a, p. 36).

Thus, the problem posed by the Gauguin case is not simply, as Andre suggests, that there might be other sources of value than morality floating around. The problem is that the example of Gauguin suggests morality is not the supreme source of value after all. We are supposedly stuck between two unpalatable options:

(1) If the picture is as Williams describes it, we are in a situation in which moral value and another value (rationality) clash and the other value is the winner. So much the worse for morality, it loses its position as the supreme sort of value to a sort of value which is affected by luck. In doing so, however, we are faced with an unpalatable option: morality’s ability to provide us with “solace to a sense of the world’s unfairness” is destroyed.

(It is, however, possible to concede that morality is not the supreme source of value, but not give up the claim that our lives are, in some important respect, free of luck. Susan Mendus argues that, while the case of Gauguin shows that morality is not the supreme source of value, the only values which compete with morality for supremacy are themselves free from luck. In Gauguin’s case, she claims that the value which competes with morality for supremacy is that of art and that even if Gauguin fails, “he has reason to think it worthwhile to have tried” (1988, p. 339).)

(2) This can be avoided by claiming that morality and rationality do not collide in this case. That is, we could declare that morality is dependent on luck in the same way that rationality is. This sort of move will eliminate the threat that rationality poses to morality’s supremacy, but this occurs at the expense of one of our deep commitments about morality, namely its invulnerability to luck. We are then faced with a different unpalatable option.

Either way, the notion of morality fails to escape intact. This, anyway, is what Williams would have us believe.

b. Criticisms

Despite all the attention that Williams’ article has generated, his argument is actually fairly unimpressive. It is not clear, for instance, that moral value has to be the supreme sort of value. Why can’t it just be an important sort of value (and, according to what value are the various sorts of value to be ranked anyway)? Moreover, what is there to stop us from saying that our gratitude (if we have any) that Gauguin did what he did is just misguided and so that this is not a case in which it is better that the rational thing rather than the moral thing happened? It may be that our gratitude is no indicator of whether or not it is better that Gauguin did as he did.

These large problems aside, there is an even more basic problem with Williams’ argument. It rests on a claim about rational justification that can quite easily be made to look doubtful. At the heart of Williams’ argument is the claim that a rational justification for a particular decision can only be given after the fact. This is what allows luck to enter into rational justification. If we do not accept this claim, Williams has given us no reason to think that either rational or moral justification is a matter of luck, and so we cease to have a reason to imagine a conflict between rationality and morality (on these grounds anyway). What’s more, there is good reason to doubt the claim that rational justification must sometimes be retrospective. The usual intuition about justification is that if we want to know whether Gauguin’s decision to leave his family and become a painter was a rational one, what we need to consider is the information Gauguin had available to him when he made that decision . What did he have reason to believe would be the fate of his family? What indication did he have that he had the potential to become a great painter? Did he have good reason to think his family would hinder his quest after greatness? Did he have reason to believe a move to the South Seas would help him achieve his goal? And so on. Our standard picture of justification tells us that, regardless of how things turned out, the answer to the question about Gauguin’s justification is to be found in the answers to the above questions. Luck is thought to have nothing to do with his justification. Indeed, if Gauguin is found to have been somehow relying on luck—if, for example, he had never painted anything, but just somehow felt he had greatness in him—this would weigh substantially against the rationality of his decision. The same could be said of the moral status of his decision: what counts is the information he had at the time, not how things turned out.

(Luck clearly can enter into rational justification in ways other than the one Williams has in mind. It can be a matter of luck that you are smart enough to see that the evidence you possess justifies you in holding a certain belief, or it can be a matter of luck that you possess the evidence you do. Presumably luck can enter into moral justification in the same ways, but, with good reason, no one has ever suggested there is anything troubling about this.)

The “standard picture” of justification here is admittedly an internalist one (see Internalism and Externalism in Epistemology ). Such a picture is somewhat unpopular amongst philosophers these days, although it is arguably still our intuitive picture. Regardless, those favouring adding external considerations to an account of justification are no more inclined to factor in how things turn out than internalists (see, for instance, Goldman, 1989). What matters to externalists is typically not how things do turn out, but how they are likely to turn out.

Williams does have an argument against this picture of justification, which appeals to the notion of agent regret. Agent regret is a species of regret a person can feel only towards his or her own actions. It involves a “taking on” of the responsibility for some action and the desire to make amends for it. Williams’ example is of a lorry driver who “through no fault of his” runs over a small child (Williams, 1993a, p. 43). He rightly says that the driver will feel a sort of regret at the death of this child that no one else will feel. The driver, after all, caused the child’s death. Furthermore, we expect agent regret to be felt even in cases in which we do not think the agent was at fault. If we are satisfied that the driver could have done nothing else to prevent the child’s death, we will try to console him by telling him this. But, as Williams observes, we would think much less of the driver if he showed no regret at all, saying only “It’s a terrible thing that has happened, but I did everything I could to avoid it.” Williams suggests that a conception of rationality that does not involve retrospective justification has no room for agent regret and so is “an insane concept of rationality” (1993a, p. 44). His worry is that if rationality is all a matter of what is the case when we make our decisions and leaves no room for the luck that finds its way into consequences, then the lorry driver ought not to experience agent regret, but instead should simply remind himself that he did all he could.

This, however, just does not follow. The problem is that, in any plausible case of this sort, it will not be rational for the driver to believe that he could not have driven more safely. Driving just isn’t like that. Indeed, what it is rational for the driver to do is to suspect there was something else he could have done which might have saved the life of the child. If he had just been a little more alert or driving a little closer to the centre of the road. If he had been driving a little more slowly. If he had seen the child playing near the street. If his brakes had been checked more recently and so on and so on. It will be rational for him to wonder whether he could have done more to avoid this tragedy and so rational for him feel a special sort of regret at the death of the child. (See Rosebury, 1995, pp. 514-515 for this point.) Agent regret exists because we can almost never be sure we did “everything we could.” Thus, it provides us with no reason to believe there is a retrospective component to rational justification (and so no reason to conclude that luck plays the role in justification that Williams suggests).

None of this is to deny that the way things turn out may figure in the justifications people give for their past actions. It is just that, despite this, the way things turn out has nothing to do with whether or not those past actions really were justified. Sometimes the way things turn out may be all we have to go on, but this tells us nothing about the actual justification or lack thereof of our actions, not unless we confuse the state of an action being justified with the activity of justifying that action after the fact.

Why then have Williams’ claims about moral luck been taken so seriously? Because despite the shakiness of the argument he in fact gives, he has pointed the way towards a much more interesting and troubling argument about moral luck. This argument, glimpses of which can be found in Williams’ paper, is explicitly made in Thomas Nagel’s response to Williams.

2. Nagel on Moral Luck

A. introduction to the problem.

Nagel identifies the problem of moral luck as arising from a conflict between our practice and an intuition most of us share about morality. He states the intuition as follows:

Prior to reflection it is intuitively plausible that people cannot be morally assessed for what is not their fault, or for what is due to factors beyond their control. (Nagel, 1993, p. 58)

He then gives us a rough definition of the phenomenon of moral luck :

Where a significant aspect of what someone does depends on factors beyond his control, yet we continue to treat him in that respect as an object of moral judgment, it can be called moral luck. (Nagel, 1993, p. 59)

Clearly cases of moral luck fly in the face of the above stated intuition about morality. Yet, Nagel claims that, despite our having this intuition, we frequently do make moral judgments about people based on factors that are not within their control. We might, for instance, judge a drunk driver who kills a child (call him the “unfortunate driver”) more harshly than one who does not (call him the “fortunate driver”), even if the only significant difference between the two cases is that a child happened to be playing on the road at the wrong point on the unfortunate driver’s route home. This, for Nagel, is the problem of moral luck : the tension between the intuition that a person’s moral standing cannot be affected by luck and the possibility that luck plays an important (perhaps even essential) role in determining a person’s moral standing. Nagel suggests that the intuition is correct and lies at the heart of the notion of morality, but he also endorses the view that luck will inevitably influence a person’s moral standing. This leads him to suspect there is a real paradox in the notion of morality.

We might wonder whether the problem Nagel presents is best thought of as a problem about luck or if it is really about control. That is, is Nagel’s worry that luck seems to play a role in determining a person’s moral standing or that things which are beyond that person’s control seem to affect her moral standing? The answer is both. Nagel thinks that luck should be understood as operating where control is lacking, so for him the problem about control and the problem about luck are one and the same. The important point, however, is that Nagel seems to think that, quite aside from how luck is analyzed, there is a real problem if luck ever makes a moral difference.

This is important because there is reason to think the identification of luck with lack of control is mistaken. An event can be out of one’s control or, for that matter, anyone else’s, yet still not such that we would say one is lucky that it occurred. An event such as the rising of the sun this morning was entirely out of one’s control, yet it is not at all clear that one is lucky the sun rose this morning, although it is surely a good thing that it did. Why? Perhaps because, regardless of whether one had any control over the occurrence of that event, the chance of that event occurring was very good indeed. (A successful account of luck must weave together these ideas about chance and control. Questions about the nature of luck have been dealt with remarkably little in the literature on moral luck. See Rescher, 1995, for the beginnings of an account of luck.) But even if an event’s being lucky (or unlucky) for a given person is identical with that event being out of that person’s control, we are left with a problem of moral luck. For this reason, it is in terms of luck rather than lack of control that we shall hereafter frame the problem.

The problem of moral luck lies in the thought that luck sometimes makes a moral difference. But, as we have noted, there is more than one way in which luck might make a moral difference. Two sorts of difference are discussed in the literature on moral luck, although these are not always clearly distinguished. These two sorts of difference are represented by two different thoughts: (a) the thought that the unfortunate driver is no worse a person than the fortunate driver, and (b) the thought that since we cannot plausibly hold the fortunate driver responsible for the death of a child (as no death occurred in his case), neither can we hold the unfortunate driver morally responsible for that death. The second thought has to do with the assigning of individual events to a person. The first involves a more direct assessment of a person. It involves an assessment of how much credit or discredit attaches directly to a person. We can use the term “moral worth” to capture both credit and discredit.

We have two sorts of question to consider:

• Can luck make a difference in a person’s moral worth ?
• Can luck make a difference in what a person is morally responsible for?

Which of these questions is Nagel’s? It is difficult to tell. Nagel does briefly refer to the problem of moral luck as a “fundamental problem about moral responsibility,” but most of the time his worries are about blame , a notion with overtones of both sorts of moral difference (Nagel, 1993, p. 58). Is he concerned that the driver will be blamed for the event of the child’s death or that the unlucky driver himself will be rated morally worse than the lucky driver (that is, blamed more)? Nagel seems to entertain both possibilities, asking both whether the unfortunate driver is to blame for more and whether he is a worse person than the unfortunate driver. Indeed, it may be the case that Nagel thinks the two questions are inseparable, that we cannot make sense of the idea of holding a person morally to blame for some event without this, at the same time, being counted as a reason to lower that person’s moral credit rating.

Nothing Nagel says clearly reveals his position on this point. For now, it is enough simply to bear both sorts of moral difference in mind. The important point is that, in either case, there is something troubling about the idea that luck might make a moral difference. Yet, it seems we allow luck into our moral judgments all the time. We do think less of the unfortunate driver. We do hold him responsible for the death of the child. On the face of it, this might not seem particularly troubling. We might admit that, on occasion, we judge people for things that happen as a result of luck, but simply claim that in any such case a mistake has been made. The mere fact that we do sometimes judge people for things that happen due to luck does not indicate that we should judge people for things that happen due to luck nor that we intend to. The problem Nagel points out, however, is that when we consider the sorts of things that influence us “Ultimately, nothing or almost nothing about what a person does seems to be under his control” (Nagel, 1993, p. 59) That is, everything we do seems at some level to involve luck. Nagel makes a helpful comparison to the problem of epistemological skepticism . Just as the problem of skepticism emerges from the clash of our intuition that knowledge should be certain and non-accidental with the fact that few, if any, of our true beliefs are entirely certain or free from accident, so:

The erosion of moral judgment emerges not as the absurd consequence of an over-simple theory, but as a natural consequence of the ordinary idea of moral assessment, when it is applied in view of a more complete and precise account of the facts. (Nagel, 1993, 59)

b. Four Types of Luck

What are these facts? Nagel identifies four ways in which luck plays into our moral assessments:

• Resultant Luck : “luck in the way one’s actions and projects turn out.”
• Circumstantial Luck : the luck involved in “the kind of problems and situations one faces”
• Causal Luck : “luck in how one is determined by antecedent circumstances.”
• Constitutive Luck : the luck involved in one’s having the “inclinations, capacities and temperament” that one does. (Nagel, 1993, 60) 10

Nagel identifies, but does not give names to all four types of luck. He does write of “constitutive luck,” an expression he probably gets from Williams. Williams, however, intends constitutive luck to have a wider scope than Nagel does. Williams appears to want constitutive luck to encompass what we have called “circumstantial” and “causal” luck (Williams, 1993a, p. 36). The names “circumstantial” and “causal” luck here are from Daniel Statman (1993, p. 11). The term “resultant luck” comes from Michael Zimmerman (1993, p. 219) Other names have been given to resultant, circumstantial, and causal luck. Resultant luck has been called “consequential luck” (Mendus, 1988, p. 334), circumstantial luck has been called “situational luck” (Walker, 1993, p. 235), and causal luck has been called “determining luck” (Mendus, 1988, p. 334).

Each of these four types of luck is worth considering so that we might be clear on the differences between the different types. We should bear in mind, however, that we may ultimately disagree about whether these constitute cases of moral luck—something we will say more about shortly.

i. Resultant Luck

Nagel gives us several examples of resultant luck. One we have already seen is the case of the fortunate and unfortunate drunk drivers. Nagel also makes much of decisions, particularly political ones, made under uncertainty. He gives the example of someone who must decide whether to instigate a revolution against a brutal regime. She knows that the revolution will be bloody and that, if it fails, those involved will be slaughtered and the regime will become even more brutal. She also knows that if no revolution occurs, the regime will become no less brutal than it currently is. If she succeeds she will be a hero, if she fails she will bear “some responsibility” for the terrible consequences of that failure (Nagel, 1993, pp. 61-62). Thus, how the revolution turns out, something which might be almost entirely a matter of resultant luck, seems to have a great deal to do with the moral credit or blame she will receive. Again, Nagel means to suggest that luck will affect not just what praise or blame she actually receives, but also what praise or blame she deserves, regardless of how she is actually treated.

ii. Circumstantial Luck

Just as luck may interfere in the course of our actions to produce results that have a profound influence on the way we are morally judged, so our luck in being in the right or wrong place at the right or wrong time can have a profound effect on the way we are morally assessed. Nagel’s example is of a person who lives in Germany during the Second World War and “behaves badly” (Nagel, 1993, p. 65). We are surely inclined to blame such a person, to hold him or her responsible for what he or she did. But Nagel asks us to contrast this person with a German who moves to Argentina shortly before the War for business reasons. Suppose that the expatriate would have behaved just as badly as the German if he had remained in Germany. Are we willing to say the expatriate should be judged as harshly as the German? If not, circumstantial luck has made a moral difference.

We can make this sort of case more troubling if we vary the way in which the person has “behaved badly.” If the bad behaviour is gleefully shooting hundreds of people as the guard of a concentration camp, then we may be inclined to think of the expatriate—who would have behaved the same way given the chance—as an undiscovered monster who rightly should be judged as harshly as the German. In such an extreme case, it is easy enough to claim that luck does not make a moral difference even if it makes a difference in whether we discover that the expatriate is so morally repellent. But, if the bad behaviour is something less drastic, say, in refusing to give refuge to a Jewish family being pursued by the Nazis, we can be much less confident that we would not have failed in the same way. Are we willing to say that those of us who would have failed had we been in such circumstances should be assessed in the same way as the German who actually failed? It is not at all clear that we are.

iii. Causal Luck

Nagel says very little about causal luck and the same is true of those who have written about moral luck after him. The worry about causal luck should be clear enough since it is precisely the sort of worry found in the debate on free will and determinism. It also seems to be a redundant sort of luck, included by Nagel only to indicate the connection between the problem of moral luck and the debate about free will and determinism. It is redundant because circumstantial and constitutive luck seem to cover the same territory. Constitutive luck covers what we are, while circumstantial luck covers what happens to us. Nothing else seems to remain that can play a role in determining what we do.

This relationship between the controversy about free will versus determinism and worries about causal luck might, as has sometimes been suggested, be applied to the whole problem of moral luck. In other words, is the entire problem of moral luck nothing but the problem of free will and determinism in different clothing? It certainly does cover some of the same territory. Like worries about the compatibility of free will and determinism, worries about moral luck get their start when we notice how much of what is supposed to be morally significant about us is simply thrust upon us whether we like it or not. But while they cover some of the same territory, the notions upon which the problems turn are quite different. In particular, neither of the notions frequently discussed in the free will debate (free will or determinism) is of central concern when we think about moral luck. Take the latter notion (determinism) first. Suppose that determinism is true (and we were aware of this), such that it would have been possible in, say, 1897 to correctly predict that Jane would win the lottery this weekend. We would be no less inclined to say that Jane was lucky to win the lottery. So luck can still exist whether or not the world is deterministic. Now consider the former notion (free will). Suppose that Jane wins the lottery, but everyone, including Jane, lacks the kind of control over their actions that freedom of the will requires. It would arguably still be appropraite to say that it was a matter of luck that Jane won the lottery. Like determinism, then, it seems that we needn’t worry about whether people possess free will when discussing moral luck. Thus, it is reasonable to think of the problem of moral luck as related to, but distinct from, the problem of free will and determinism.

iv. Constitutive Luck

A natural reaction to worries about resultant and circumstantial luck is to suggest that what matters is not how a person’s actions turn out or what circumstances they chance to encounter, but what is in that person’s “heart” so to speak. As Nagel says, we “pare each act down to its morally essential core, an inner act of pure will assessed by motive and intention” (1993, p. 63). To do so, however, is to open oneself up to worries about constitutive moral luck. If we focus on a person’s character, then what of the luck involved in determining what that person’s character is? It may be that, in a given situation, Jane did not act with good intentions, but perhaps this was because Jane was unlucky enough to be born a bitter or spiteful person. Why then should her bad intentions figure in her blameworthiness? Nagel suggests they should not. He claims that we should not praise or condemn people for qualities that are not under the control of the will (and so not under their control). But as reasonable as this may sound, Nagel also claims we cannot refrain from making judgments about a person’s moral status based upon just this sort of uncontrollable feature. If we did so refrain, it is not clear we would be able to make any judgments at all. In the end, people are assessed for what they are like, not for how they ended up that way.

c. The Problem Summarized

The notion of constitutive luck illustrates the difficulty of the problem of moral luck. Our temptation is to avoid the other sorts of luck by focusing on what the person really is . In this way, we try to discount worries about the luck that affects the way our actions turn out or the luck that places us in situations in which we make unfortunate decisions. We focus on the core of the person, on his or her character. But on reaching that core, we are disappointed to find that luck has been at work there too. The trouble is that there is nowhere further to retreat when we are at the level of moral character . If we retreat further, there is no person left to morally assess. Nagel concludes that “in a sense the problem has no solution” (1993, p. 68). The cost of not admitting the existence of moral luck is giving up the idea of agency. We seem driven to the conclusion that no one is blameworthy for anything. But the alternative is to preserve our notions of agency and responsibility by concluding that moral value is subject to luck.

So the problem of moral luck, as Nagel conceives of it, traps us between an intuition and a fact:

• the intuition is that luck must not make moral differences (for example, that luck must not affect a person’s moral worth, that luck must not affect what a person is morally responsible for).
• the fact is that luck does seem to make moral differences (for example, we blame the unfortunate driver more than the fortunate driver).

(The problem could equally well be presented as a conflict between intuitions. The fact that luck does seem to make moral differences would not be so troubling if we did not have the intuition that it is sometimes right that luck does this. We will follow Nagel in conceiving of the conflict as one between intuition and fact. This seems the natural way to introduce it. We discover the problem when we notice how practices that, at first glance, seem right conflict with our intuition that luck should not make moral differences.)

3. Responses to the Problem

Responses to the problem have been of two broad sorts:

• The intuition is mistaken: there is nothing wrong with luck making a moral difference.
• The so-called “fact” is not a fact at all: luck never does make a moral difference.

The first sort of response has been the least popular. When it has been made, the approach has usually been to suggest that, if cases of moral luck are troubling, this is only because we have a mistaken view of morality. Brynmor Browne (1992), for instance, has argued that moral luck is only troubling because we mistakenly tend to think of moral assessment as bound up with punishment . He argues that, once we correct our thinking, cases of moral luck cease to be troubling. In an argument reminiscent of Williams, Margaret Urban Walker (1993) claims that cases of moral luck are only troubling if we adopt the mistaken view of agency she calls “pure agency.” She argues that this view has repugnant implications and so should be rejected in favour a view of agency on which moral luck ceases to be troubling (namely “impure agency”). Judith Andre (1993) claims that we find cases of moral luck troubling because some of our thinking about morality is influenced by Kant. She adds, however, that the core of our thinking about morality is Aristotelian and that Aristotelians need not be troubled by cases of moral luck. The claims of all these authors are controversial.

(Martha Nussbaum’s The Fragility of Goodness (1986) is an important work in which she considers Greek views towards luck and ethics. In particular, she presents Plato and Aristotle as disagreeing about whether a good life must be invulnerable to luck, arguing that for Plato it must, but for Aristotle it need not. Her views on these matters are controversial. She has been accused of reading too much Bernard Williams into Aristotle. See Farwell (1994), Irwin (1988) and Woodruff (1989) for helpful discussions of Nussbaum’s book.)

The most popular response to the problem of moral luck has been of the second sort: to deny that cases of moral luck ever occur. This is usually done by suggesting that cases in which luck appears to make a moral difference are really cases in which luck makes an epistemic difference —that is, in which luck puts us in a better or worse position to assess a person’s moral standing (without actually changing that standing). Consider the case of the fortunate and unfortunate drivers. On this line of argument, it is claimed that there is no moral difference between them, it is just that in the case of the unfortunate driver we have a clear indication of his deficient moral standing. The fortunate driver is lucky in the sense that his moral failings may escape detection, but not in actually having a moral standing any different from that of the unfortunate driver. Along these lines, we find passages like the following:

…the luck involved relates not to our moral condition but only to our image: it relates not to what we are but to how people (ourselves included) will regard us. (Rescher, 1993, 154-5) A culprit may thus be lucky or unlucky in how clear his deserts are. (Richards, 1993, 169) …if actual harm occurs, the agent and others considering his act will have a painful awareness of this harm. (Jensen, 1993, 136) …the actual harm serves only to make vivid how wicked the behaviour was because of the danger it created. (Bennett, 1995, 59-60)

While appealing, the difficulty with this response to the problem of moral luck is that it tends to work better for some sorts of luck than others. While it is plausible that resultant or circumstantial luck might make only epistemic differences, perhaps revealing or concealing a person’s character, it is not at all clear that constitutive luck can make only epistemic differences. If a person possesses a very dishonest character by luck, what feature of the person does luck reveal to us that (non-luckily) determines his moral status?

One response to this worry has been to deny that the notion of constitutive luck is coherent. (See, in particular, Rescher, 1995, pp. 155-158 and also Hurley, 1993, pp. 197-198.) This claim turns upon a substantive claim about the nature of luck, a topic that has been surprisingly absent from the literature on moral luck. So one might worry that it is only by investigating the nature of luck that we will be able to reach any sort of a final conclusion regarding the problem of moral luck. Furthermore, while it is not defended here, one might argue that such an investigation will lead to the view that cases of moral luck are both inescapable and troubling; the problem of moral luck is both real and deep.

4. References and Further Reading

The two main papers discussed in this article by Nagel and Williams, both entitled “Moral Luck,” were originally published in The Aristotelian Society Supplementary , Volume 1, 1976. Revised versions of both papers were published as chapters of Williams (1981) and Nagel (1979). The revised versions of these papers are also included in an excellent anthology edited by Daniel Statman (1993). Althought these two papers by Nagel and Williams started the discussion of the problem of moral luck using the phrase “moral luck,” the relevant problem has been discussed before. See, for instance, Joel Feinberg (1962).

• Andre, J. (1993) “Nagel, Williams and Moral Luck.” Moral Luck . Daniel Statman (Ed.). State University of New York Press, Albany, New York, pp. 123-129.
• Bennett, J. (1995) The Act Itself . Oxford University Press, New York.
• Browne, B. (1992) “A Solution To The Problem of Moral Luck.” The Philosophical Quarterly . 42, pp. 345-356.
• Farwell, P. (1994) “Aristotle, Success, and Moral Luck.” Journal of Philosophical Research . 19, pp. 37-50.
• Feinberg, J. (1962) “Problematic Responsibility in Law and Morals.” The Philosophical Review . 71, pp. 340-351.
• Goldman, A. (1989) “Précis and Update of Epistemology and Cognition .” Knowledge and Skepticism . Marjorie Clay and Keith Lehrer (Eds.). Westview Press, Boulder, Colorado, pp. 69-87.
• Hurley, S. L. (1993) “Justice Without Constitutive Luck.” Ethics: Royal Institute of Philosophy Supplement . A. Phillips Griffiths (Ed.). 35, pp. 179-212.
• Irwin, T. H. (1988) Review of The Fragility of Goodness . The Journal of Philosophy . 85, pp. 376-383.
• Jensen, H. (1993) “Morality and Luck.” Moral Luck . Daniel Statman (Ed.). State University of New York Press, Albany, New York, pp. 131-140.
• Kant, I. (1949) “On a Supposed Right To Lie From Altruistic Motives.” Critique of Practical Reason and Other Writings in Moral Philosophy . Lewis White Beck (Trans. & Ed.). University of Chicago Press, Chicago, pp. 346-50.
• Mendus, S. (1988) “The Serpent and the Dove.” Philosophy . 63, pp. 331-343.
• Nagel, T. (1979) Mortal Questions . Cambridge University Press, New York.
• Nagel, T. (1993) “Moral Luck.” Moral Luck . Daniel Statman (Ed.). State University of New York Press, Albany, New York, pp. 57-71.
• Nussbaum, M. (1986) The Fragility of Goodness: Luck and Ethics in Greek Tragedy and Philosophy . Cambridge University Press, New York.
• Rescher, N. (1993) “Moral Luck.” Moral Luck . Daniel Statman (Ed.). State University of New York Press, Albany, New York, pp. 141-166.
• Rescher, N. (1995) Luck: The Brilliant Randomness of Everyday Life . Farrar, Straus and Giroux. New York.
• Richards, N. (1993) “Luck and Desert.” Moral Luck . Daniel Statman (Ed.). State University of New York Press, Albany, New York, pp. 167-180.
• Rosebury, B. (1995) “Moral Responsibility and ‘Moral Luck’.” The Philosophical Review . 104, pp. 499-524.
• Statman, D. (Ed.) (1993) Moral Luck . State University of New York Press, Albany, New York, pp. 1-25.
• Walker, M. U. (1993) “Moral Luck and the Virtues of Impure Agency.” Moral Luck . Daniel Statman (Ed.). State University of New York Press, Albany, New York, pp. 235-250.
• Williams, B. (1981) Moral Luck . Cambridge University Press, New York.
• Williams, B. (1985) Ethics and the Limits of Philosophy . Harvard University Press, Cambridge, Massachusetts.
• Williams, B. (1993a) “Moral Luck.” Moral Luck . Daniel Statman (Ed.). State University of New York Press, Albany, New York, pp. 35-55.
• Williams, B. (1993b) “Postscript” Moral Luck . Daniel Statman (Ed.). State University of New York Press, Albany, New York, pp. 251-258.
• Woodruff, P. (1989) “Review of Martha Nussbaum, The Fragility of Goodness. ” Philosophy and Phenomenological Research . 50, pp. 205-210.

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Andrew Latus St. Francis Xavier University U. S. A.

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Moral Responsibility

Making judgments about whether a person is morally responsible for her behavior, and holding others and ourselves responsible for actions and the consequences of actions, is a fundamental and familiar part of our moral practices and our interpersonal relationships.

The judgment that a person is morally responsible for her behavior involves—at least to a first approximation—attributing certain powers and capacities to that person, and viewing her behavior as arising (in the right way) from the fact that the person has, and has exercised, these powers and capacities. Whatever the correct account of the powers and capacities at issue (and canvassing different accounts is the task of this entry), their possession qualifies an agent as morally responsible in a general sense: that is, as one who may be morally responsible for particular exercises of agency. Normal adult human beings may possess the powers and capacities in question, and non-human animals, very young children, and those suffering from severe developmental disabilities or dementia (to give a few examples) are generally taken to lack them.

To hold someone responsible involves—again, to a first approximation—responding to that person in ways that are made appropriate by the judgment that she is morally responsible. These responses often constitute instances of moral praise or moral blame (though there may be reason to allow for morally responsible behavior that is neither praiseworthy nor blameworthy: see McKenna 2012: 16–17 and M. Zimmerman 1988: 61–62). Blame is a response that may follow on the judgment that a person is morally responsible for behavior that is wrong or bad, and praise is a response that may follow on the judgment that a person is morally responsible for behavior that is right or good.

It should be noted at the outset that the above schema, while useful, may be misleading in certain respects. For one thing, it suggests a correspondence and symmetry between praise and blame that may not exist. The two are certainly asymmetrical insofar as the attention given to blame far exceeds that given to praise. One reason for this is that blameworthiness, unlike praiseworthiness, is often taken to involve liability to a sanction. Thus, articulating the conditions of blameworthiness may seem to theorists the more pressing matter. Perhaps for related reasons, there is a richer language for expressing blame than praise (Watson 1996 [2004: 283]), and “blame” finds its way into idioms for which there is no ready parallel employing “praise”: compare “ S is to blame for x ” and “ S is to praise for x ”. Note, as well, that “holding responsible” is itself not a neutral expression: it typically arises in blaming contexts (Watson 1996 [2004: 284]). Additionally, there may be asymmetries in the contexts in which praise and blame are appropriate: private blame is a more familiar phenomenon than private praise (Coates & Tognazzini 2013a), and while minor wrongs may reasonably earn blame, minimally decent behavior often seems insufficient for praise (see Eshleman 2014 for this and other differences between praise and blame). Finally, the widespread assumption that praiseworthiness and blameworthiness are at least symmetrical in terms of the capacities they require has also been questioned (Nelkin 2008, 2011; Wolf 1980, 1990). Like most work on moral responsibility, this entry will tend to focus on the negative side of the phenomenon; for more, see the entry on blame .

A few other general observations about the concept of moral responsibility are in order before introducing particular conceptions of it. In everyday speech, one often hears references to people’s “moral responsibility” where the point is to indicate that a person has some duty or obligation—some responsibility —to which that person is required, by some standard, to attend. In this sense, we say, for example, that a lawyer has a responsibility (to behave in certain ways, according to certain standards) to his client. This entry, however, is concerned not with accounts that specify people’s responsibilities in the sense of duties and obligations, but rather with accounts of whether a person bears the right relation to her own actions, and their consequences, so as to be properly held accountable for them. (Unfortunately, this entry does not include discussion of some important topics related to moral responsibility, such as responsibility for omissions (see Clarke 2014, Fischer & Ravizza 1998, and Nelkin & Rickless 2017a) or collective responsibility (see the entry on collective responsibility and Volumes 30 and 38 of Midwest Studies in Philosophy ).

Moral responsibility should also be distinguished from causal responsibility. Causation is a complicated topic, but it is often fairly clear that a person is causally responsible for—that is, she is the (or a) salient cause of—some occurrence or outcome. However, the powers and capacities that are required for moral responsibility are not identical with an agent’s causal powers, so we cannot infer moral responsibility from an assignment of causal responsibility. Young children, for example, can cause outcomes while failing to fulfill the requirements for general moral responsibility, in which case it will not be appropriate to judge them morally responsible for, or to hold them morally responsible for, the outcomes for which they may be causally responsible. And even generally morally responsible agents may explain or defend their behavior in ways that call into question their moral responsibility for outcomes for which they are causally responsible. Suppose that S causes an explosion by flipping a switch: the fact that S had no reason to expect such a consequence from flipping the switch might call into question his moral responsibility (or at least his blameworthiness) for the explosion without altering his causal contribution to it. Having distinguished different senses of responsibility, unless otherwise indicated, “responsibility” will refer to “moral responsibility” (in the sense defined here) throughout the rest of this entry.

Until fairly recently, the bulk of philosophical work on moral responsibility was conducted in the context of debates about free will, which largely concerned the various ways that (various sorts of) determinism might threaten free will and moral responsibility. A largely unquestioned assumption was that free will is required for moral responsibility, and the central questions had to do with the ingredients of free will and with whether their possession was compatible with determinism. Recently, however, the literature on moral responsibility has addressed issues that are of interest independently of worries about determinism. Much of this entry will deal with these latter aspects of the moral responsibility debate. However, it will be useful to begin with issues at the intersection of concerns about free will and moral responsibility.

1. Freedom, Responsibility, and Determinism

2.1 forward-looking accounts, 2.2.1 “freedom and resentment”, 2.2.2 criticisms of strawson’s approach, 2.3 reasons-responsiveness views, 3.1.1 attributability versus accountability, 3.1.2 attributionism, 3.1.3 answerability, 3.2.1 the moral competence condition on responsibility, 3.2.2 conversational approaches to responsibility, 3.2.3 psychopathy, 3.3.1 moral luck, 3.3.2 ultimate responsibility, 3.3.3 personal history and manipulation, 3.3.4 the epistemic condition on responsibility, other internet resources, related entries.

How is the responsible agent related to her actions; what power does she exercise over them? One (partial) answer is that the relevant power is a form of control, and, in particular, a form of control such that the agent could have done otherwise than to perform the action in question. This captures one commonsense notion of free will, and one of the central issues in debates about free will has been about whether possession of it (free will, in the ability-to-do-otherwise sense) is compatible with causal determinism (or with, for example, divine foreknowledge—see the entry on foreknowledge and free will ).

If causal determinism is true, then the occurrence of any event (including events involving human deliberation, choice, and action) that does in fact occur was made inevitable by—because it was causally necessitated by—the facts about the past (and the laws of nature) prior to the occurrence of the event. Under these conditions, the facts about the present, and about the future, are uniquely fixed by the facts about the past (and about the laws of nature): given these earlier facts, the present and the future can unfold in only one way. For more, see the entry on causal determinism .

If possession of free will requires an ability to act otherwise than one in fact does, then it is fairly easy to see why free will has often been regarded as incompatible with causal determinism. One way of getting at this incompatibilist worry is to focus on the way in which performance of a given action should be up to an agent if he has the sort of free will required for moral responsibility. As the influential Consequence Argument has it (Ginet 1966; van Inwagen 1983: 55–105; Wiggins 1973), the truth of determinism seems to entail that an agent’s actions are not up to him since they are the unavoidable consequences of things over which the agent lacks control. Here is an informal summary of this argument from Peter van Inwagen’s important book, An Essay on Free Will (1983):

If determinism is true, then our acts are the consequences of the laws of nature and events in the remote past. But it is not up to us what went on before we were born, and neither is it up to us what the laws of nature are. Therefore, the consequences of these things (including our present acts) are not up to us. (1983: 16)

For an important argument that suggests that the Consequence Argument conflates different senses in which the laws of nature are not up to us, see David Lewis (1981). For more on incompatibilism and incompatibilist arguments, see the entries on free will , arguments for incompatibilism , and incompatibilist (nondeterministic) theories of free will , as well as Randolph Clarke (2003).

Compatibilists maintain that free will (and/or moral responsibility) is possible even in a deterministic universe. Versions of compatibilism have been defended since ancient times. For example, the Stoics—Chryssipus, in particular—argued that the truth of determinism does not entail that human actions are entirely explained by factors external to agents; thus, human actions are not necessarily explained in a way that is incompatible with praise and blame (see Bobzien 1998 and Salles 2005 for Stoic views on freedom and determinism). Similarly, philosophers in the Modern period (such as Hobbes and Hume) distinguished the general way in which our actions are necessitated if determinism is true from the specific instances of necessity sometimes imposed on us by everyday constraints on our behavior (e.g., physical impediments that make it impossible to act as we choose). The difference is that the necessity involved in determinism is compatible with agents acting as they choose to act: even if S ’s behavior is causally determined, it may be behavior that she chooses to perform. And perhaps the ability that matters for free will (and responsibility) is just the ability to act as one chooses, which seems to require only the absence of external constraints (and not the absence of determinism).

This compatibilist tradition was carried into the twentieth century by logical positivists such A. J. Ayer (1954) and Moritz Schlick (1930 [1966]). Here is how Schlick expressed the central compatibilist insight in 1930 (drawing, in particular, on Hume):

Freedom means the opposite of compulsion; a man is free if he does not act under compulsion , and he is compelled or unfree when he is hindered from without…when he is locked up, or chained, or when someone forces him at the point of a gun to do what otherwise he would not do. (1930 [1966: 59])

Since deterministic causal pressures do not always force one to “do what otherwise he would not do”, freedom—at least of the sort specified by Schlick—is compatible with determinism.

A closely related compatibilist strategy, influential in the early and mid-twentieth century, was to offer a conditional analysis of the ability to do otherwise (Ayer 1954, Hobart 1934, Moore 1912; for earlier expressions, see Hobbes 1654 and Hume 1748). As just noted, even if determinism is true, agents may often act as they choose, and it is equally compatible with determinism that an agent who performed act A (on the basis of his choice to do so) might have performed a different action on the condition that (contrary to what actually happened) she had chosen to perform the other action. Even if a person’s actual behavior is causally determined by the actual past, it may be that if the past had been suitably different (e.g., if the person’s desires, intentions, choices, etc. had been different), then she would have acted differently. And perhaps this is all that the ability to do otherwise comes to: one can do otherwise if it is true that if one had chosen to do otherwise, then one would have done otherwise.

However, this compatibilist picture is open to serious objections. First, it might be granted that an ability to act as one sees fit is valuable, and perhaps related to the type of freedom at issue in the free will debate, but it does not follow that this is all that possession of free will comes to. A person who has certain desires as a result of indoctrination, brainwashing, or psychopathology may act as he chooses, but his free will and moral responsibility may still be called into question. (For more on the relevance of such factors, see §3.2 and §3.3.3 .) More specifically, the conditional analysis is open to the following sort of counterexample. It might be true that an agent who performs act A would have omitted A if she had so chosen, but it might also be true that the agent in question suffers from an overwhelming compulsion to perform act A . The conditional analysis suggests that the agent in question retains the ability to do otherwise than A , but, given her compulsion, it seems clear that she lacks this ability (Broad 1934, Chisholm 1964, Lehrer 1968, van Inwagen 1983). More generally, incompatibilists are likely to be dissatisfied with the conditional analysis since it fails to give an account of an ability that agents can have, right here and right now, to either perform or omit an action while holding everything about the here and now, and about the past, fixed.

Despite the above objections, the compatibilist project described so far has had significant lasting influence. As will be seen below, the fact that determined agents can act as they see fit is still an important inspiration for compatibilists, as is the fact that determined agents may have acted differently in counterfactual circumstances. For more, see the entry on compatibilism . For recent accounts related to (and improving upon) early compatibilist approaches, see Michael Fara (2008), Michael Smith (2003), and Kadri Vihvelin (2004), and for criticism of these accounts, see Randolph Clarke (2009).

Another influential trend in compatibilism has been to argue that moral responsibility does not require an ability to do otherwise. If this is right, then determinism would not threaten responsibility by ruling out access to behavioral alternatives (though determinism might threaten responsibility in other ways: see van Inwagen 1983: 182–88 and Fischer & Ravizza 1998: 151–168). In a very influential 1969 paper, Harry Frankfurt offers examples meant to show that an agent can be morally responsible for an action even if he could not have done otherwise. Versions of these examples are often called Frankfurt cases or Frankfurt examples . In the basic form of the example, an agent, Jones, considers a certain action. Another agent, Black, would like to see Jones perform this action and, if necessary, Black can make Jones perform it through some type of intervention in Jones’s deliberative process. However, as things transpire, Black does not intervene in Jones’s decision making since he can see that Jones will perform the action on his own and for his own reasons. Black does not intervene to ensure Jones’s action, but he could have, and he would have, had Jones showed some sign that he would not perform the action on his own. Therefore, Jones could not have done otherwise , yet he seems responsible for his behavior. After all, given Black’s non-intervention, Jones’s action is a perfectly ordinary bit of voluntary behavior.

There are questions about whether Frankfurt’s example really shows that Jones is morally responsible even though he couldn’t have done otherwise. For one thing, it may not be clear that Jones really couldn’t have done otherwise: while he performed the action on his own, there was the alternative that he perform the action due to some intervention on Black’s part, and not on his own. Furthermore, though he did not do so, Jones might have given Black some indication that he would not perform the action in question. Alternatively, an objection might be framed by asking how Black could be certain that Jones would or would not perform the action on his own. There seems to be a dilemma here. Perhaps determinism obtains in the universe of the example, and Black sees some sign that indicates the presence of factors that causally ensure that Jones will behave in a particular way. But in this case, incompatibilists are unlikely to grant that Jones is morally responsible if they think that moral responsibility is incompatible with determinism. On the other hand, perhaps determinism is not true in the universe of the example, but then it is not clear that the example excludes alternatives for Jones: if Jones’s behavior isn’t causally determined, then perhaps he can do otherwise. For objections to Frankfurt’s original example along these lines, see Carl Ginet (1996) and David Widerker (1995); for defenses of Frankfurt, see John M. Fischer (1994: 131–159; 2002; 2010); and for refined versions of Frankfurt’s example, meant to clearly deny Jones access to alternatives, see Alfred Mele and David Robb (1998), David Hunt (2000), and Derk Pereboom (2000; 2001: 18–28).

In response to criticisms such as the above, Frankfurt has said that his example was intended mainly to draw attention to the fact “that making an action unavoidable is not the same thing as bringing it about that the action is performed” (2006: 340; emphasis in original). In particular, while determinism may make an agent’s action unavoidable, it does not follow that the agent acts as he does only because determinism is true: it may also be true that he acts as he does because he wants to and because he sees reasons in favor of so acting. The point of his original example, Frankfurt suggests, was to draw attention to the significance that the actual causes of an agent’s behavior (such as her reasons and desires) can have independently of whether the agent might have done something else. Frankfurt concludes that “[w]hen a person acts for reasons of his own…the question of whether he could have done something else instead is quite irrelevant” for the purposes of assessing responsibility (2006: 340). A focus on the actual causes that lead to behavior, as well as investigation into when an agent can be said to act on her own reasons, has characterized a great deal of work on responsibility since Frankfurt’s essay (see §2.3 and §3.3.3 ).

2. Some Approaches to Moral Responsibility

This section discusses three important approaches to responsibility. Additional perspectives (attributionism, conversational theories, mesh or structural accounts, skeptical accounts, etc.) are introduced in more or less detail in the discussions of contemporary debates below.

Forward-looking approaches to moral responsibility justify responsibility practices by focusing on the beneficial consequences that can be obtained by engaging in these practices. This approach was influential in the earlier parts of the twentieth century (as well as before), had fallen out of favor by the closing decades of that century, and has recently been the subject of renewed interest.

Forward-looking perspectives tend to emphasize one of the central points discussed in the previous section: an agent’s being subject to determinism does not entail that he is subject to constraints that force him to act independently of his choices. If this is true, then, regardless of the truth of determinism, it may be useful to offer certain incentives to agents—to praise and blame them and generally to treat them as responsible—in order to encourage them to make certain choices and thus to secure positive behavioral outcomes.

According to some articulations of the forward-looking approach, to be a responsible agent is simply to be an agent whose motives, choices, and behavior can be shaped in this way. Thus, Moritz Schlick argued that

The question of who is responsible is the question concerning the correct point of application of the motive …. in this its meaning is completely exhausted; behind it lurks no mysterious connection between transgression and requital…. It is a matter only of knowing who is to be punished or rewarded, in order that punishment and reward function as such—be able to achieve their goal. (1930 [1966: 61]; emphasis in original)

And, according to Schlick, the goals of punishment and reward have nothing to do with the past: the idea that punishment “is a natural retaliation for past wrong, ought no longer to be defended in cultivated society” (1930 [1966: 60]; emphasis in original). Instead, punishment ought to be

concerned only with the institution of causes, of motives of conduct…. Analogously, in the case of reward we are concerned with an incentive. (1930 [1966: 60]; emphasis in original)

J. J. C. Smart (1961) also defended a well-known, forward-looking approach to moral responsibility in the mid-twentieth century. Smart claimed that to blame someone for a piece of behavior is simply to assess the behavior negatively (to “dispraise” it, in Smart’s terminology) while simultaneously ascribing responsibility for the behavior to the agent. And, for Smart, an ascription of responsibility merely involves taking an agent to be such that he would have omitted the behavior if he had been provided with a motive to do so. Whatever sanctions may follow on an ascription of responsibility are administered with eye to giving an agent motives to refrain from such behavior in the future.

Smart’s general approach has its contemporary defenders (Arneson 2003), but many have found it lacking in important ways. For one thing, as R. Jay Wallace notes, an approach like Smart’s “leaves out the underlying attitudinal aspect of moral blame” (Wallace 1996: 56, emphasis in original; see the next subsection for more on blaming attitudes). According to Wallace, the attitudes involved in blame are “backward-looking and focused on the individual agent who has done something morally wrong” (Wallace 1996: 56). But a forward-looking approach, with its focus on bringing about desirable outcomes

is not directed exclusively toward the individual agent who has done something morally wrong, but takes account of anyone else who is susceptible to being influenced by our responses. (Wallace 1996: 56; emphasis added)

In exceptional cases, a focus on beneficial outcomes may provide grounds for treating as blameworthy those who are known to be innocent (Smart 1973). This last feature of (some) forward-looking approaches has led to particularly strong criticism.

Recent efforts have been made to develop partially forward-looking accounts of responsibility that evade some of the criticisms mentioned above. These (somewhat revisionary) accounts justify our responsibility practices by appeal to their suitability for fostering moral agency and the acquisition of capacities required for such agency. Most notable in this regard is Manuel Vargas’s “agency cultivation model” of responsibility (2013; also see Jefferson 2019 and McGeer 2015). Recent conversational accounts of responsibility ( §3.2.2 ) also have an important forward-looking component insofar as they regard those with whom one might have fruitful moral interactions as candidates for responsibility. Some responsibility skeptics have also emphasized the forward-looking benefits of certain responsibility practices. For example, Derk Pereboom—who rejects desert-based blame—has argued that some conventional blaming practices can be maintained (even after ordinary notions of blameworthiness have been left behind) insofar as these practices are grounded in “non-desert invoking moral desiderata” such as “protection of potential victims, reconciliation to relationships both personal and with the moral community more generally, and moral formation” (2014: 134; also see Caruso 2016, Levy 2012, and Milam 2016). In contrast to some of the forward-looking approaches described above, Pereboom (2017) proposes that only those agents who have in fact acted immorally should be open to forward-aiming blaming practices. (For more on skepticism about responsibility, see §3.3 and the entry on skepticism about moral responsibility .)

2.2 The Reactive Attitudes Approach

P. F. Strawson’s 1962 paper, “Freedom and Resentment”, is a touchstone for much of the work on moral responsibility that followed it, especially the work of compatibilists. Strawson’s aim was to chart a course between incompatibilist accounts committed to a free will requirement on responsibility, and forward-looking compatibilist accounts that did not, in Strawson’s view, appropriately acknowledge and account for the interpersonal significance of the affective component of our responsibility practices. In contrast with forward-looking accounts such as J. J. C. Smart’s and Moritz Schlick’s ( §2.1 ), Strawson focuses directly on the emotions—the reactive attitudes—that play a fundamental role in our practices of holding one another responsible. Strawson’s suggestion is that attending to the logic of these emotional responses yields an account of what it is to be open to praise and blame that need not invoke the incompatibilist’s conception of free will. Indeed, Strawson’s view has been interpreted as suggesting that no metaphysical facts beyond our praising and blaming practices are needed to ground these practices.

Part of the novelty of Strawson’s approach is its emphasis on the “importance that we attach to the attitudes and intentions towards us of other human beings” (1962 [1993: 48]) and on

how much it matters to us, whether the actions of other people…reflect attitudes towards us of goodwill, affection, or esteem on the one hand or contempt, indifference, or malevolence on the other. (1962 [1993: 49])

For Strawson, our practices of holding others responsible are largely responses to these things: that is, “to the quality of others’ wills towards us” (1962 [1993: 56]).

To get a sense of the importance of quality of will for our interpersonal relations, note the difference in your response to one who injures you accidentally as compared to how you respond to one who does you the same injury out of “contemptuous disregard” or “a malevolent wish to injure [you]” (P. Strawson 1962 [1993: 49]). The second case is likely to arouse a type and intensity of resentment that would not be (appropriately) felt in the first case. Corresponding points may be made about positive responses such as gratitude: you would likely not have the same feelings of gratitude toward a person who benefits you accidentally as you would toward one who does so out of concern for your welfare. The focus here is on personal reactive attitudes directed toward another on one’s own behalf, but Strawson also discusses “sympathetic or vicarious” attitudes felt on behalf of others, and “self-reactive attitudes” that an agent may direct toward herself (1962 [1993: 56–7]).

On Strawson’s view, the tendency to respond with relevant reactive attitudes to displays of good or ill will implicates a demand for moral respect and due regard. Indeed, for Strawson, “[t]he making of the demand is the proneness to such attitudes”, and the attitudes themselves are the “correlates of the moral demand in the case where the demand is felt to be disregarded” (1962 [1993: 63]; emphasis in original). Thus, among the circumstances that mollify a person’s (negative) reactive attitudes, are those which show that—despite initial appearances—the demand for due regard has not been ignored or flouted. When someone explains that the injury she caused you was entirely unforeseen and accidental, she indicates that her regard for your welfare was not insufficient and that she is therefore not an appropriate target for the negative attitudes involved in moral blame.

Note that the agent who excuses herself from blame in the above way is not calling into question her status as a generally responsible agent: she is still open to the demand for due regard and liable, in principle, to reactive responses. Other agents, however, may be inapt targets for blame and the reactive emotions precisely because they are not legitimate targets of a demand for regard. In these cases, an agent is not excused from blame, he is exempted from it: it is not that his behavior is discovered to have been non-malicious, but rather that he is seen to be one of whom better behavior cannot reasonably be demanded. (The widely-used terminology in which the above contrast is drawn—“excuses” versus “exemptions”—is due to Watson 1987 [2004]).

For Strawson, the most important group of exempt agents includes those who are, at least for a time, significantly impaired for normal interpersonal relationships. These agents may be children, or psychologically impaired like the “schizophrenic”; they may exhibit “purely compulsive behaviour”, or their minds may have “been systematically perverted” (P. Strawson 1962 [1993: 51]). Alternatively, exempt agents may simply be “wholly lacking…in moral sense” (P. Strawson 1962 [1993: 58]), perhaps because they suffered from “peculiarly unfortunate…formative circumstances” (P. Strawson 1962 [1993: 52]). These agents are not candidates for the range of emotional responses involved in our personal relationships because they do not participate in these relationships in the right way for such responses to be sensibly applied to them. Rather than taking up interpersonally-engaged attitudes (that presuppose a demand for respect) toward exempt agents, we instead take an objective attitude toward them. The exempt agent is not regarded “as a morally responsible agent…as a member of the moral community” (P. Strawson 1962 [1993: 59]); though he may be regarded as “an object of social policy” and as something “to be managed or handled or cured or trained” (P. Strawson 1962 [1993: 52]).

Strawson’s perspective has an important compatibilist upshot. We may be able, in limited circumstances, to take up a detached, objective perspective on the behavior of normal (that is, non-exempt) agents. But Strawson argues that we cannot take up with this perspective permanently, and certainly not on the basis of discovering that determinism is true:

The human commitment to participation in ordinary interpersonal relationships is, I think, too thoroughgoing and deeply rooted for us to take seriously the thought that a general theoretical conviction [e.g., about the truth of determinism] might so change our world that, in it, there were no longer any such things as interpersonal relationships as we normally understand them; and being involved in inter-personal relationships…precisely is being exposed to the range of reactive attitudes and feelings that is in question. (1962 [1993: 54])

More specifically, the truth of determinism would not show that human beings generally occupy excusing or exempting conditions that would make the attitudes involved in holding one another responsible inappropriate. It would not follow from the truth of determinism, for example, “that anyone who caused an injury either was quite simply ignorant of causing it or had acceptably overriding reasons for” doing so (P. Strawson 1962 [1993: 53]; emphasis in original); nor would it follow (from the truth of determinism)

that nobody knows what he’s doing or that everybody’s behaviour is unintelligible in terms of conscious purposes or that everybody lives in a world of delusion or that nobody has a moral sense. (P. Strawson 1962 [1993: 59])

Various objections have been raised regarding P. F. Strawson’s general theoretical approach to moral responsibility, his assumptions about human psychology and sociality, and his arguments for the compatibility of determinism and responsibility.

As noted in the previous subsection, Strawson argues that learning that determinism is true would not raise general concerns about our responsibility practices. This is because the truth of determinism would not show that human beings are generally abnormal in a way that would call into question their openness to the reactive attitudes: “it cannot be a consequence of any thesis which is not itself self-contradictory that abnormality is the universal condition” (P. Strawson 1962 [1993: 54]). In reply, it has been noted that while the truth of determinism might not suggest universal abnormality, it might well show that normal human beings are morally incapacitated in a way that is relevant to our responsibility practices (Russell 1992: 298–301). Strawson’s assumptions that we are too deeply and naturally committed to our reactive-attitude-involving practices to give them up, and that doing so would irreparably distort our moral lives, have also been criticized (Nelkin 2011: 42–45; G. Strawson 1986: 84–120; Watson 1987 [2004: 255–258]).

A different sort of objection emphasizes the response-dependence of Strawson’s account: that is, the way it explains an agent’s responsibility in terms of the moral responses that characterize a given community’s responsibility practices, rather than in terms of independent facts about whether the agent is responsible. This feature of Strawson’s approach invites a reading that may seem paradoxical:

In Strawson’s view, there is no such independent notion of responsibility that explains the propriety of the reactive attitudes. The explanatory priority is the other way around: It is not that we hold people responsible because they are responsible; rather, the idea ( our idea) that we are responsible is to be understood by the practice, which itself is not a matter of holding some propositions to be true, but of expressing our concerns and demands about our treatment of one another. (Watson 1987 [2004: 222]; emphasis in original; see Bennett 1980 for a related, non-cognitivist interpretation of Strawson’s approach)

Strawson’s approach would be particularly problematic if, as the above reading might suggest, it entails that a group’s responsibility practices are—as they stand and however they stand—beyond criticism simply because they are that group’s practices (Fischer & Ravizza 1993a: 18).

But there is something to be said from the other side of the debate. It may seem obvious that people are appropriately held responsible only if there are independent facts about their responsibility. But on reflection—and following R. Jay Wallace’s (1996) influential Strawsonian approach—it may be difficult “to make sense of the idea of a prior and thoroughly independent realm of moral responsibility facts” that is separate from our practices and yet to which our practices must answer (1996: 88). For Wallace, giving up on practice-independent responsibility facts doesn’t mean giving up on facts about responsibility; rather, “we must interpret the relevant facts [about responsibility] as somehow dependent on our practices of holding people responsible” (1996: 89). Such an interpretation requires an investigation into our practices, and what emerges most conspicuously, for Wallace, from this investigation is the degree to which our responsibility practices are organized around a fundamental commitment to fairness (1996: 101). Wallace develops this commitment to fairness, and to norms of fairness, into an account of the conditions under which people are appropriately held morally responsible for their behavior (1996: 103–109). (For a more recent defense of the response-dependent approach to responsibility, see Shoemaker 2017b; for criticism of such approaches, see Todd 2016.)

As noted in §1 , one of the lasting influences of Harry Frankfurt’s defense of compatibilism was to draw attention to the actual causes of agents’ behavior, and particularly to whether an agent—even a causally determined agent—acted for her own reasons. Reasons-responsiveness approaches to responsibility have been particularly attentive to these issues. These approaches ground responsibility by reference to agents’ capacities for being appropriately sensitive to the rational considerations that bear on their actions. Interpreted broadly, reasons-responsiveness approaches include a diverse collection of views, such as David Brink and Dana Nelkin (2013), John M. Fischer and Mark Ravizza (1998), Ishtiyaque Haji (1998), Michael McKenna (2013), Dana Nelkin (2011), Carolina Sartorio (2016), R. Jay Wallace (1996), and Susan Wolf (1990). Fischer and Ravizza’s Responsibility and Control (1998), which builds on Fischer (1994), offers the most influential articulation of the reasons-responsiveness approach.

Fischer and Ravizza begin with a distinction between regulative control and guidance control. Regulative control involves the possession of a dual power: “the power freely to do some act A , and the power freely to do something else instead” (1998: 31). Guidance control, on the other hand, does not require access to alternatives: it is manifested when an agent guides her behavior in a particular direction (and regardless of whether it was open to her to guide her behavior in a different direction). Since Fischer and Ravizza take Frankfurt cases ( §1 ) to show that access to behavioral alternatives is not necessary for moral responsibility, they conclude that “the sort of control necessarily associated with moral responsibility for action is guidance control ” and not regulative control (1998: 33; emphasis in original).

A number of factors can undermine guidance control. If a person’s behavior is brought about by hypnosis, brainwashing, or genuinely irresistible urges, then that person may not be morally responsible for her behavior since she does not reflectively guide it in the way required for responsibility (Fischer & Ravizza 1998: 35). More specifically, an agent in the above circumstances is not likely to be responsible because he “is not responsive to reasons—his behavior would be the same, no matter what reasons there were” (1998: 37). Thus, Fischer and Ravizza characterize possession of guidance control as (partially) dependent on responsiveness to reasons. In particular, guidance control depends on whether the psychological mechanism that issues in an agent’s behavior is responsive to reasons. (Guidance control also requires that an agent owns the mechanism on which she acts. According to Fischer and Ravizza, this requires placing historical conditions on responsibility; see §3.3.3 .)

Fischer and Ravizza’s focus on mechanisms is motivated by the following reasoning. In a Frankfurt case, an agent is responsible for an action even though his so acting is ensured by external factors. But the presence of these external factors means that the agent in a Frankfurt case would have acted the same no matter what reasons he was confronted with, which suggests that the responsible agent in a Frankfurt scenario is not responsive to reasons. This is a problem for Fischer and Ravizza’s claim that guidance control, and thus reasons-responsiveness, is necessary for responsibility. Fischer and Ravizza’s solution is to argue that while the agent in a Frankfurt case may not be responsive to reasons, the agent’s mechanism—“the process that leads to the relevant upshot [i.e., the agent’s action]”—may well be responsive to reasons (1998: 38). In other words, the agent’s generally-specified psychological mechanism might have responded (under counterfactual conditions) to considerations in favor of omitting the action that the agent actually performed (and that he was guaranteed to perform, regardless of reasons, since he was in a Frankfurt-type scenario).

Fischer and Ravizza thus arrive at the following provisional conclusion: “relatively clear cases of moral responsibility”—that is, those in which an agent is not hypnotized, etc.—are distinguished by the fact that “an agent exhibits guidance control of an action insofar as the mechanism that actually issues in the action is his own, reasons-responsive mechanism” (1998: 39). But how responsive to reasons does an agent’s mechanism need to be for that agent to have the type of control over his behavior associated with moral responsibility? A strongly reasons-responsive mechanism would both recognize and respond to any sufficient reason to act otherwise (1998: 41). (In Fischer and Ravizza’s terminology, such a mechanism is strongly “receptive” and “reactive” to reasons). But strong reasons-responsiveness cannot be required for guidance control since many intuitively responsible agents—i.e., many garden variety wrongdoers—fail to attend to sufficient reasons to do otherwise. On the other hand, weak reasons-responsiveness is not enough for guidance control. An agent with a weakly reasons-responsive mechanism will respond appropriately to some sufficient reason to do otherwise, but the pattern of responsiveness revealed in the agent’s behavior might be too arbitrary for the agent to be credited with the kind of control required for responsibility. A person’s pattern of responsiveness to reasons would likely seem erratic in the relevant way if, for example, she would forego purchasing a ticket to a basketball game if it cost one thousand dollars, but not if it cost two thousand dollars (Fischer & Ravizza 1998: 66).

Fischer and Ravizza settle on moderate reasons responsiveness as the sort that is most germane to guidance control (1998: 69–85). A psychological mechanism that is moderately responsive to reasons exhibits regularity with respect to its receptivity to reasons: that is, it exhibits “an understandable pattern of (actual and hypothetical) reasons-receptivity” (Fischer & Ravizza 1998: 71; emphasis in original). Such a pattern will indicate that an agent understands “how reasons fit together” and that, for example, “acceptance of one reason as sufficient implies that a stronger reason must also be sufficient” (Fischer & Ravizza 1998: 71). (In addition, a pattern of regular receptivity to reasons will include receptivity to a range of moral considerations (Fischer & Ravizza 1998: 77). This will rule out attributing moral responsibility to non-moral agents; see Todd and Tognazzini 2008 for criticism of Fischer and Ravizza’s articulation of this condition.) However, a moderately responsive mechanism may be only weakly reactive to reasons since, as Fischer and Ravizza put it (somewhat mysteriously), “reactivity is all of piece” such

that if an agent’s mechanism reacts to some incentive to…[do otherwise], this shows that the mechanism can react to any incentive to do otherwise. (1998: 73; emphasis in original)

Fischer and Ravizza’s account has generated a great deal of attention and criticism. Some critics focus on the contrast (just noted) between the conditions they impose on receptivity to reasons and those they impose on reactivity to reasons (McKenna 2005, Mele 2006a, Watson 2001). Additionally, many are dissatisfied with Fischer and Ravizza’s presentation of their account in terms of the powers of mechanisms as opposed to agents. This has led some authors to develop agent-based reasons-responsiveness accounts that address the concerns that led Fischer and Ravizza to their mechanism-based approach (Brink & Nelkin 2013, McKenna 2013, Sartorio 2016).

3. Contemporary Debates

3.1 the “faces” of responsibility.

Do our responsibility practices accommodate distinct forms of moral responsibility? Are there different senses in which people may be morally responsible for their behavior? Contemporary interest in these possibilities has its roots in a debate between Susan Wolf and Gary Watson. Among other things, Wolf’s important 1990 book, Freedom Within Reason , offers a critical discussion of “Real Self” theories of responsibility. According to these views, a person is responsible for behavior that is attributable to her real self, and

an agent’s behavior is attributable to the agent’s real self…if she is at liberty (or able) both to govern her behavior on the basis of her will and to govern her will on the basis of her valuational system. (Wolf 1990: 33)

The basic idea is that a responsible agent is not simply moved by her strongest desires, but also, in some way, approves of, or stands behind, the desires that move her because they are governed by her values or because they are endorsed by higher-order desires. Wolf’s central example of a Real Self view is Watson’s (1975). In an important and closely related earlier paper, Wolf (1987) characterizes Watson (1975), Harry Frankfurt (1971), and Charles Taylor (1976) as offering “deep self views”. For more on real-self/deep-self views, see §3.3.3 ; for a recent presentation of a real-self view, see Chandra Sripada (2016).

According to Wolf, one point in favor of Real Self views is that they explain why people acting under the influence of hypnosis or compulsive desires are often not responsible (1990: 33). Since these agents are typically unable, under these conditions, to govern their behavior on the basis of their valuational systems, they are alienated from their actions in a way that undermines responsibility. But, for Wolf, it is a mark against Real Self views that they tend to be silent on the topic of how agents come to have the selves that they do. An agent’s real self might, for example, be the product of a traumatic upbringing, and Wolf argues that this would give us reason to question the “agent’s responsibility for her real self” and thus her responsibility for the present behavior that issues from that self (1990: 37; emphasis in original). For an important account of an agent with such an upbringing, see Wolf’s (1987) fictional example of JoJo (and see Watson 1987 [2004] for a related discussion of the convicted murderer Robert Alton Harris). For discussion of JoJo in this entry, see §3.2.1 , and for general discussion of the relevance of personal history for present responsibility see §3.3.3 .

Wolf suggests that when a person’s real self is the product of serious childhood trauma (or related factors), then that person is potentially responsible for her behavior only in a superficial sense that merely attributes bad actions to the agent’s real self (1990: 37–40). However, Wolf argues that ascriptions of moral responsibility go deeper than such attributions can reach:

When…we consider an individual worthy of blame or of praise, we are not merely judging the moral quality of the event with which the individual is so intimately associated; we are judging the moral quality of the individual herself in some more focused, noninstrumental, and seemingly more serious way. (1990: 41)

This deeper form of assessment—assessment in terms of “deep responsibility” (Wolf 1990: 41)—requires more than that an agent is “able to form her actions on the basis of her values”, it also requires that “she is able to form her values on the basis of what is True and Good” (Wolf 1990: 75). This latter ability will be impaired or absent in an agent whose real self is the product of pressures (such as a traumatic childhood) that have distorted her moral vision. (For the relevance of moral vision, or “moral competence”, for responsibility, see §3.2 .)

In “Two Faces of Responsibility” (1996 [2004]), Gary Watson responds to Wolf. Watson agrees with Wolf that some approaches to responsibility—i.e., self-disclosure views (a phrase Watson borrows from Benson 1987)—focus narrowly on whether behavior is attributable to an agent. But Watson denies that these attributions constitute a merely superficial form of responsibility assessment. After all, behavior that is attributable to an agent—in the sense, for example, of issuing from her valuational system—often discloses something interpersonally and morally significant about the agent’s “fundamental evaluative orientation” (Watson 1996 [2004: 271]). Thus, ascriptions of responsibility in this responsibility-as-attributability sense are “central to ethical life and ethical appraisal” (Watson 1996 [2004: 263]).

However, Watson agrees with Wolf that the above story of responsibility is incomplete: there is more to responsibility than attributing actions to agents. In addition, we hold agents responsible for their behavior, which “is not just a matter of the relation of an individual to her behavior” (Watson 1996 [2004: 262]). When we hold responsible, we also “demand (require) certain conduct from one another and respond adversely to one another’s failures to comply with these demands” (Watson 1996 [2004: 262]). The moral demands, and potential for adverse treatment, associated with holding others responsible are part of our accountability (as opposed to attributability) practices, and these features of accountability raise issues of fairness that do not arise in the context of determining whether behavior is attributable to an agent (Watson 1996 [2004: 273]). Therefore, conditions may apply to accountability that do not apply to attributability: for example, perhaps “accountability blame” should be—as Wolf suggested—moderated in the case of an agent whose “squalid circumstances made it overwhelmingly difficult to develop a respect for the standards to which we would hold him accountable” (Watson 1996 [2004: 281]).

There are, then, two forms, or “faces”, of responsibility on Watson’s account. There is responsibility-as-attributability, and when an agent satisfies the conditions on this form of responsibility, behavior is properly attributed to her as reflecting morally important features of her self—her virtues and vices, for example. But there is also responsibility-as-accountability, and when an agent satisfies the conditions on this form of responsibility, which requires more than the correct attribution of behavior, she is open to being held accountable for that behavior in the ways that predominantly characterize moral blame.

It has become common for the views of several authors to be described (with varying degrees of accuracy) as instances of “attributionism”; see Neil Levy (2005) for the first use of this term. These authors include Robert Adams (1985), Nomy Arpaly (2003), Pamela Hieronymi (2004), T. M. Scanlon (1998, 2008), George Sher (2006a, 2006b, 2009), Angela Smith (2005, 2008), and Matthew Talbert (2012, 2013). Attributionists take moral responsibility assessments to be mainly concerned with whether an action (or omission, character trait, or belief) is attributable to an agent for the purposes of moral assessment, where this usually means that the action (or omission, etc.) reflects the agent’s “judgment sensitive attitudes” (Scanlon 1998), “evaluative judgments” (A. Smith 2005), or, more generally, her “moral personality” (Hieronymi 2008).

Attributionism resembles the self-disclosure views mentioned by Watson (see the previous subsection) insofar as both focus on the way that a responsible agent’s behavior discloses interpersonally and morally significant features of the agent’s self. However, it would be a mistake to conclude that contemporary attributionist views are interested only in specifying the conditions for what Watson calls responsibility-as-attributability. In fact, attributionists typically take themselves to be giving conditions for holding agents responsible in Watson’s accountability sense. (See the previous subsection for the distinction between accountability and attributability.)

According to attributionism, fulfillment of attributability conditions is sufficient for holding agents accountable for their behavior. This means that attributionism rejects conditions on moral responsibility that would excuse agents if their characters were shaped under adverse conditions (Scanlon 1998: 278–85), or if the thing for which the agent is blamed was not under her control (Sher 2006b and 2009, A. Smith 2005), or if the agent can’t be expected to recognize the moral status of her behavior (Scanlon 1998: 287–290; Talbert 2012). Attributionists reject these conditions on responsibility because morally and interpersonally significant behavior is attributable to agents that do not fulfill them, and such attributions are taken to be sufficient for an agent to be open to the responses involved in holding agents accountable for their behavior. Attributionists have also argued that blame may profitably be understood as a form of moral protest (Hieronymi 2001, A. Smith 2013, Talbert 2012); part of the appeal of this move is that moral protests may be legitimate in cases in which the above conditions are not met.

Several objections have been posed to attributionism. Some argue that attributionists are wrong to reject the conditions on responsibility mentioned in the last paragraph (Levy 2005, 2011; Shoemaker 2011, 2015a; Watson 2011). It has also been argued that the attributionist account of blame is too close to mere negative appraisal (Levy 2005; Wallace 1996: 80–1; Watson 2002). In addition, Scanlon (2008) has been criticized for failing to take negative emotions such as resentment to be central to the phenomenon of blame (Wallace 2011, Wolf 2011; a similar criticism would apply to Sher 2006a).

Building on the distinction between attributability and accountability ( §3.1.1 ), David Shoemaker (2011 and 2015a) has introduced a third form of responsibility: answerability. On Shoemaker’s view, attributability-responsibility assessments respond to facts about an agent’s character, accountability-responsibility responds to an agent’s degree of regard for others, and answerability-responsibility responds to an agent’s evaluative judgments. However, A. Smith (2015) and Hieronymi (2008 and 2014) use “answerability” to refer to a view more like the attributionist perspective described in the previous subsection, and Pereboom (2014) has used the term to indicate a form of responsibility more congenial to responsibility skeptics.

3.2 Moral Competence

The possibility that moral competence—the ability to recognize and respond to moral considerations—is a condition on moral responsibility has been suggested at several points above ( §2.2.1 , §2.2.2 , §2.3 , §3.1.1 , §3.1.2 ). Susan Wolf’s (1987) fictional story of “JoJo” is one of the best-known illustrations of this proposal. JoJo was raised by an evil dictator, and as a result he became the same sort of sadistic tyrant that his father was. As an adult, JoJo is happy to be the sort of person that he is, and he is moved by precisely the desires (e.g., to imprison, torture, and execute his subjects) that he wants to be moved by. Thus, JoJo fulfills important conditions on responsibility ( §3.1.1 , §3.3.3 ), however, Wolf argues that it may be unfair to hold him responsible for his bad behavior.

JoJo’s upbringing plays an important role in Wolf’s argument, but only because it left JoJo unable to fully appreciate the wrongfulness of his behavior. Thus, it is JoJo’s impaired moral competence that does the real excusing work, and similar conclusions of non-responsibility should be drawn about all those whom we think “could not help but be mistaken about their [bad] values”, if possession of these values impairs their ability to tell right from wrong (Wolf 1987: 57).

Many others join Wolf in arguing that impaired moral competence (perhaps on account of one’s upbringing or other environmental factors) undermines one’s moral responsibility (Benson 2001, Doris & Murphy 2007, Fischer & Ravizza 1998, Fricker 2010, Levy 2003, Russell 1995 and 2004, Wallace 1996, Watson 1987 [2004]). Part of what motivates this conclusion is the thought that it can be unreasonable to expect morally-impaired agents to avoid wrongful behavior, and that it is therefore unfair to expose these agents to the harm of moral blame on account of their wrongdoing. For detailed development of the moral competence requirement on responsibility in terms of considerations of fairness, see R. Jay Wallace (1996); also see Erin Kelly (2013), Neil Levy (2009), and Gary Watson (1987 [2004]). For rejection of the claim that blame is unfair in the case of the morally-impaired agent, see several of the defenders of attributionism mentioned in §3.1.2 (particularly Hieronymi 2004, Scanlon 1998, and Talbert 2012)

The moral competence condition on responsibility can also be motivated by the suggestion that impaired agents are not able to commit wrongs that have the sort of moral significance to which blame would be an appropriate response. The basic idea here is that, while morally-impaired agents can fail to show appropriate respect for others, these failures do not necessarily constitute the kind of flouting of moral norms that grounds blame (Watson 1987 [2004: 234]). In other words, a failure to respect others, is not always an instance of blame-grounding disrespect for others, since the latter (but not the former) requires the ability to comprehend the norms that one violates (Levy 2007, Shoemaker 2011).

Considerations about moral competence play an important role in the recent trend of conversational theories of responsibility, which construe elements of our responsibility practices as morally-expressive moves in an ongoing moral conversation. The thought here is that to fruitfully (and fully) participate in such a conversation, one must have some degree of competence in the (moral) language of that conversation.

Several prominent versions of the conversational approach develop P. F. Strawson’s suggestion ( §2.2.1 ) that the negative reactive attitudes involved in blame are expressions of a demand for moral regard from other agents. Gary Watson argues that a demand “presumes”, as a condition on the intelligibility of expressing it, “understanding on the part of the object of the demand” (1987 [2004: 230]). Therefore, since, “[t]he reactive attitudes are incipiently forms of communication”, they are intelligibly expressed “only on the assumption that the other can comprehend the message”, and since the message is a moral one, “blaming and praising those with diminished moral understanding loses its ‘point,’” at least in a certain sense (Watson 1987 [2004: 230]; see Watson 2011 for a modification of this proposal). R. Jay Wallace argues, similarly, that since responsibility practices are internal to moral relationships that are

defined by the successful exchange of moral criticism and justification…. it will be reasonable to hold accountable only someone who is at least a candidate for this kind of exchange of criticism and justification. (1996: 164)

Michael McKenna’s Conversation and Responsibility (2012) offers the most developed conversational analysis of responsibility. For McKenna, the “moral responsibility exchange” occurs in stages: an initial “moral contribution” of morally salient behavior; the “moral address” of, e.g., blame that responds to the moral contribution; the “moral account” in which the first contributor responds to moral address with, e.g., apology; and so on (2012: 89). Like Wallace and Watson, McKenna notes the way in which a morally impaired agent will find it difficult “to appreciate the challenges put to her by those who hold [her] morally responsible”, but he also argues that a suitably impaired agent cannot even make the first move in a moral conversation (2012: 78). Thus, the morally impaired agent’s responsibility is called into question not only because she is unable to respond appropriately to moral demands, but also because “she is incapable of acting from a will with a moral quality that could be a candidate for assessment from the standpoint of holding responsible” (McKenna 2012: 78). This point is related to Neil Levy’s and David Shoemaker’s contention, noted in the previous subsection, that impairments of moral competence can leave an agent unable to harbor and express the type of ill will or lack of regard to which blame responds. By contrast, Watson (2011), seems to allow that significant moral impairment is compatible with the ability to perform blame-relevant wrongdoing, even if such impairment undermines the wrongdoer’s moral accountability for her actions.

For another important account of responsibility in broadly conversational terms, see Shoemaker’s discussion of the sort of moral anger involved in holding others accountable for their behavior (2015a: 87–117). For additional defenses and articulations of the conversational approach to responsibility, see Stephen Darwall (2006), Miranda Fricker (2016), and Colleen Macnamara (2015).

Impairments of moral competence come in degrees. Susan Wolf’s JoJo ( §3.2.1 ) has localized impairments of the capacity to recognize and respond to moral considerations, but it is not clear that he is entirely immune to moral considerations. However, at the far end of the spectrum, we encounter more globally and thoroughly impaired figures such as the psychopath. In philosophical treatments, the psychopath is typically presented as an agent who, while retaining other psychological capacities, is entirely—or as nearly so as possible—incapable of responding appropriately to moral considerations. (This is something of a philosophical construct since real-life psychopathy admits of varying degrees of impairment, corresponding to higher or lower scores on diagnostic measures.)

One interesting question is whether the psychopath’s inability—or at least consistent failure—to respond appropriately to moral incentives is primarily the result of a motivational rather than cognitive failure: does the psychopath in some way know what morality requires and simply not care? If a positive answer is given to this last question (Fischer & Ravizza 1998: 76–81; Nichols 2002), then it seems likely that the psychopath could be responsible for at least some of his bad behavior. And some have argued that even if psychopathy is primarily a cognitive impairment, it may still be the case that psychopaths possess a sufficient capacity for distinguishing right and wrong—or that they possess sufficient related capacities—to be held responsible, at least to some extent and in certain ways (Glannon 1997, Greenspan 2003, Maibom 2008, Shoemaker 2014, Vargas & Nichols 2007). On the other hand, many believe that the psychopath’s capacity for grasping moral considerations is too superficial to sustain responsibility (Kennett 2019; Levy 2007; Nelkin 2015; Wallace 1996: 177–78; Watson 2011; see Mason 2017 for the claim that the relevant deficiency is one of moral knowledge rather than moral capacity). And still others have argued that even those who are fully impaired for moral understanding are open to blame as long as they possess broader rational competencies (Scanlon 1998: 287–290; Talbert 2014). However, the psychopath’s possession of these broader competencies has been called into question (Fine & Kennett 2004, Greenspan 2003, Litton 2010).

3.3 Skepticism and Related Topics

This section introduces contemporary skepticism about moral responsibility by way of discussions of several topics that have broad relevance for thinking about responsibility.

If moral responsibility requires free will, and free will involves access to alternatives in a way that is not compatible with determinism, then it would follow from the truth of determinism that no one is ever morally responsible. The above reasoning, and the skeptical conclusion it reaches, is endorsed by the hard determinist perspective on free will and responsibility, which was defended historically by Spinoza and d’Holbach (among others) and, more recently, by Ted Honderich (2002). But given that determinism may well be false, contemporary skeptics about moral responsibility more often pursue a hard incompatibilist line of argument according to which the kind of free will required for desert-based (as opposed to forward-looking, see §2.1 ) moral responsibility is incompatible with the truth or falsity of determinism (Pereboom 2001, 2014). The skeptical positions discussed below are generally of this sort: the skeptical conclusions they advocate do not depend on the truth of determinism.

According to Thomas Nagel, a person is subject to moral luck if factors that are not under that person’s control affect the moral assessments to which he is open (Nagel 1976 [1979]; also see Williams 1976 [1981] and the entry on moral luck .)

Is there such a thing as moral luck? More specifically, can luck affect a person’s moral responsibility? Consider a would-be assassin who shoots at her target, aiming to kill, but fails to do so only because her bullet is deflected by a passing bird. It seems that such a would-be assassin has good moral outcome luck (that is, good moral luck in the outcome of her behavior). Because of factors beyond her control, the would-be assassin’s moral record is better than it would have been: in particular, she is not a killer and is not morally responsible for causing anyone’s death. One might think, in addition, that the would-be assassin is less blameworthy than a successful assassin with whom she is otherwise identical, and that the reason for this is just that the successful assassin intentionally killed someone while the unsuccessful assassin (as a result of good moral luck) did not. (For important recent defenses of moral luck, see Hanna 2014 and Hartman 2017.)

On the other hand, one might think that if the two assassins just mentioned are identical in terms of their values, goals, intentions, and motivations, then the addition of a bit of luck to the unsuccessful assassin’s story cannot ground a deep contrast between these two agents in terms of their moral responsibility. One way to sustain this position is to argue that moral responsibility is a function solely of internal features of agents, such as their motives and intentions (Khoury 2018; also see Enoch & Marmor 2007 for some of the main arguments against moral luck). Of course, the successful assassin is responsible for something (killing a person) for which the unsuccessful assassin is not, but it might be possible to argue that both are morally responsible—and presumably blameworthy— to the same degree insofar as it was true of both of them that they aimed to kill, and that they did so for the same reasons and with the same degree of commitment toward bringing about that outcome (see M. Zimmerman 2002 and 2015 for this influential perspective).

But now consider a different would-be assassin who does not even try to kill anyone, but only because his circumstances did not favor this option. This would-be assassin is willing to kill under favorable circumstances (and so he may seem to have had good circumstantial moral luck since he was not in those circumstances). Perhaps the degree of responsibility attributed to the successful and unsuccessful assassins described above depends not so much on the fact that they both tried to kill as on the fact that they were both willing to kill; in this case, the would-be assassin just introduced may share their degree of responsibility since he shares their willingness to kill. But an account that focuses on how agents would be willing to act under counterfactual circumstances is likely to generate unintuitive conclusions about responsibility since many agents who are typically judged blameless might willingly perform terrible actions under the right circumstances. (M. Zimmerman 2002 and 2015 does not shy away from this consequence, but criticisms of his efforts to reject moral luck—Hanna 2014, Hartman 2017—have made much of it; see Peels 2015 for a position that is related to Zimmerman’s but that may avoid the unintuitive consequence just mentioned.)

Another approach to luck holds that it is inimical to moral responsibility in a way that generally undermines responsibility ascriptions. To see the motivation for this skeptical position, consider constitutive moral luck: that is, luck in how one is constituted in terms of the “inclinations, capacities, and temperament” one finds within oneself (Nagel 1976 [1979: 28]). Facts about a person’s inclinations, capacities, and temperament explain much—if not all—of that person’s behavior, and if the facts that explain why a person acts as she does are a result of good or bad luck, then perhaps it is unfair to hold her responsible for that behavior. As Nagel notes, once the full sweep of the various kinds of luck comes into view, “[t]he area of genuine agency” may seem to shrink to nothing since our actions and their consequences “result from the combined influence of factors, antecedent and posterior to action, that are not within the agent’s control” (1976 [1979: 35]). If this is right, then perhaps,

nothing remains which can be ascribed to the responsible self, and we are left with nothing but a…sequence of events, which can be deplored or celebrated, but not blamed or praised. (Nagel 1976 [1979: 37])

The above quotations notwithstanding, Nagel himself doesn’t fully embrace a skeptical conclusion about responsibility on grounds of moral luck, but others have done so, most notably, Neil Levy (2011). According to Levy’s “hard luck view”, the encompassing nature of moral luck means “that there are no desert-entailing differences between moral agents” (2011: 10). Of course, there are differences between agents in terms of their characters and the good or bad actions and outcomes that they produce, but Levy’s point is that, given the influence of luck in generating these differences, they don’t provide a sound basis for differential treatment of people in terms of moral praise and blame. (See Russell 2017 for a compatibilist account that is led to a variety of pessimism, though not skepticism, on the basis of the concerns about moral luck just described.)

Another important skeptical argument—related to the observations about constitutive moral luck in the previous subsection—is Galen Strawson’s Basic Argument, which concludes that “we cannot be truly or ultimately morally responsible for our actions” (1994: 5). (Since the argument targets “ultimate” moral responsibility, it does not necessarily exclude other forms, such as forward-looking responsibility ( §2.1 ) and, on some understandings, responsibility-as-attributability ( §3.1.1 ).) The argument begins by noting that an agent makes the choices she does because of certain facts about the way she is: for example, the facts about what seems choiceworthy to her. But if this is true, then, in order to be responsible for her subsequent choices, perhaps an agent also needs to be responsible for the facts about what seems choiceworthy to her. But how can one be responsible for these prior facts about herself? Wouldn’t this require a prior choice on the part of the agent, one that resulted in her present dispositions to see certain ends and means as choiceworthy? But this prior choice would itself be something for which the agent is responsible only if the agent is also responsible for the fact that that prior choice seemed choiceworthy to her. And now we must explain how the agent can be responsible for this additional prior fact about herself, which will require positing another choice by the agent, and the responsibility for that choice will also have to be secured, which will require explaining why it seemed choiceworthy to her, and so on. A regress looms here, and Strawson claims that it cannot be stopped except by positing an initial act of self-creation on the responsible agent’s part (1994: 5, 15). Only self-creating agents could be fully responsible for their own tendencies to exercise their powers of choice as they do, but self-creation is impossible, so no one is every truly or ultimately morally responsible for their behavior.

A number of replies to this argument (and the argument from constitutive moral luck) are possible. One might simply deny that how a person came to be the way she is matters for present responsibility: perhaps all we need to know in order to judge a person’s present responsibility are facts about her present constitution and about how that constitution is related to the person’s present behavior. (For views like this, see the discussion of attributionism ( §3.1.2 ) and the discussion of non-historical accounts of responsibility in the next subsection). Alternatively, one might think that while personal history matters for moral responsibility, Strawson’s argument sets the bar too high, requiring too much historical control over one’s constitution (see Fischer 2006; for a reply, see Levy 2011: 5). Perhaps what is needed is not literal self-creation, but simply an ability to enact changes in oneself so as to acquire responsibility for the self that results from these changes (Clarke 2005). A picture along these lines can be found in Aristotle’s suggestion that one can be responsible for being a careless person if one’s present state of carelessness is the result of earlier choices that one made (Aristotle, Nicomachean Ethics ; see also Michele Moody-Adams 1990).

Roughly in this Aristotelian vein, Robert Kane offers a detailed incompatibilist account of how we can secure ultimate responsibility for our actions (1996 and 2007). On Kane’s view, for an agent

to be ultimately responsible for [a] choice, the agent must be at least in part responsible by virtue of choices or actions voluntarily performed in the past for having the character and motives he or she now has. (2007: 14; emphasis in original)

This position may appear to be open to the regress concerns presented in Galen Strawson’s argument above. But Kane thinks a regress is avoided in cases in which a person’s character-forming choices are undetermined. Since these undetermined choices will have no sufficient causes, there is no relevant prior cause for which the agent must be responsible, so there is no regress problem (Kane 2007: 15–16; see Pereboom 2001: 47–50 for criticism of Kane on this point.)

Of particular interest to Kane are potential character-forming choices that occur “when we are torn between competing visions of what we should do or become” (2007: 26). In such cases, if a person sees reasons in favor of either choice that he might make, and the choice that he makes is undetermined, then whichever choice he makes will have been chosen for his own reasons. According to Kane, when an agent makes this kind of choice, he shapes his character, and since his choice is not determined by prior causal factors, he is responsible for it and for the character it shapes and for the character-determined choices that he makes in the future.

Kane’s approach is an important instance of those incompatibilist theories that attempt to explain how free will, while requiring indeterminism, could clearly be at home in the natural world as we know it (also see Balaguer 2010, Ekstrom 2000, and Franklin 2018). (This is as opposed to agent-causal accounts of free will—Chisholm 1964, O’Connor 2000—that invoke a type of causal power that is less easily naturalized). However, many have argued that any account like Kane’s, which inserts an indeterministic link in the causal chain leading to action, actually reduces an agent’s control over an action or at least leaves it unclear why such an insertion would increase agential control over actions as compared to a deterministic story of action (Hobart 1934; Levy 2011: 41–83; Pereboom 2014: 31–49; van Inwagen 1983: 126–52; Watson 1999).

Accounts such as Neil Levy’s (2011) and Galen Strawson’s (1994), described in the two preceding subsections, assume that the facts about the way a person came to be the way she is are relevant for determining her present responsibility. But non-historical views, such as attributionism ( §3.1.2 ) and the views that Susan Wolf calls “Real Self” theories ( §3.1.1 ), reject this contention. Real Self accounts are sometimes referred to as “structural” or “hierarchical” theories, and John M. Fischer and Mark Ravizza (1998: 184–187) have called them “mesh” theories. By whatever name, the basic idea is that an agent is morally responsible insofar as her will has the right sort of structure: in particular, there needs to be a mesh or fit between the desires that actually move the agent and her values, or between the desires that move her and her higher-order desires, the latter of which are the agent’s reflective preferences about which desires should move her. (For approaches along these lines, see Dworkin 1970; Frankfurt 1971, 1987; Neely 1974; and Watson 1975.)

Harry Frankfurt’s comparison between a willing drug addict and an unwilling addict illustrates important features of his version of the structural approach to responsibility. Both of Frankfurt’s addicts have desires to take the drug to which they are addicted, and the nature of their addictions is such that both addicts will ultimately act to fulfill their first-order addictive desire. But suppose that both addicts are capable of taking higher-order perspectives on their first-order desires, and suppose that they take different higher-order perspectives. The willing addict endorses and identifies with his addictive desire. The unwilling addict, on the other hand, repudiates his addictive desire to such an extent that, when it ends up being effective, Frankfurt says that this addict is “helplessly violated by his own desires” (1971: 12). The willing addict has a kind of freedom that the unwilling addict lacks: they may both be bound to take the drug to which they are addicted, but insofar as the willing addict is moved by a desire that he endorses, he acts freely in a way that the unwilling addict does not (Frankfurt 1971: 19). A related conclusion about responsibility may be drawn: perhaps the unwilling addict’s desire is alien to him in such a way that his responsibility for acting on it is called into question (for a recent defense of this conclusion, see Sripada 2017).

One objection to Frankfurt’s view goes like this. His account seems to assume that the addicts’ higher-order desires have the authority to speak for them—they reveal (or constitute) the agent’s “real self”, to use Wolf’s language (1990). But if higher-order desires are invoked out of a concern that an agent’s first-order desires may not stem from his real self, why won’t the same worry recur with respect to higher-order desires as well? In other words, when ascending through the orders of desires, why stop at any particular point, why not think that appeal to a still higher order is always necessary to reveal where an agent stands? (See Watson (1975) for an objection along these lines, which partly motivates Watson—in his articulation of a structural approach—to focus on whether an agent’s desires conform with her values , rather than with her higher-order desires).

And even if one agrees with Frankfurt (or Watson) about the structural elements required for responsibility, one might wonder how an agent’s will came to have its particular structure. Thus, an important type of objection to Frankfurt’s view notes that the relevant structure might have been put in place by factors that intuitively undermine responsibility, in which case the presence of the relevant structure is not itself sufficient for responsibility (Fischer & Ravizza 1998: 196–201; Locke 1975; Slote 1980). Fischer and Ravizza argue that

[i]f the mesh [between higher- and lower-order desires] were produced by…brainwashing or subliminal advertising…we would not hold the agent morally responsible for his behavior

because the psychological mechanism that produced the behavior would not be, “in an important intuitive sense, the agent’s own ” (1998: 197; emphasis in original). In response to this type of worry, Fischer and Ravizza argue that responsibility has an important historical component, which they attempt to capture with their account of how agents can “take responsibility” for the psychological mechanisms that produces their behavior (1998: 207–239). (For criticism of Fischer and Ravizza’s account of taking responsibility, see Levy 2011: 103–106 and Pereboom 2001: 120–22; for quite different accounts of taking responsibility, see Enoch 2012; Mason 2019: 179–207; and Wolf 2001. For work on the general significance of personal histories for responsibility, see Christman 1991, Vargas 2006, and D. Zimmerman 2003.)

Part of Fischer and Ravizza’s motivation for developing their account of “taking responsibility” was to ensure that agents who have been manipulated in certain ways do not turn out to be responsible on their view. Several examples and arguments featuring the sort of manipulation that worried Fischer and Ravizza have played important roles in the recent literature on responsibility. One of these is Alfred Mele’s Beth/Ann example (1995, 2006b), which emphasizes the difficulties faced by accounts of responsibility that eschew historical conditions. In the example, Ann has acquired her preferences and values in the normal way, but Beth is manipulated by a team of neuroscientists so that she now has preferences and values that are identical to Ann’s. After the manipulation, Beth is capable of reflecting on her new values, and when she does so, she endorses them enthusiastically. But whereas we might normally take such an endorsement to be a sign of the sort of self-governance associated with responsibility, Mele suggests that Beth, unlike Ann, exhibits merely “ersatz self-government” since Beth’s new values where imposed on her (1995: 155). And if certain kinds of personal histories similarly undermine an agent’s ability to genuinely or authentically govern her behavior, then agents with these histories will not be morally responsible. (For replies to Mele and general insights into manipulation cases, see Arpaly 2003, King 2013, McKenna 2004, and Todd 2011; for discussion of issues about personal identity that arise in manipulation cases, see Khoury 2013, Matheson 2014, Shoemaker 2012)

Now one can take a hard line in Beth’s case (McKenna 2004). Such a stance might involve noting that while Beth acquired her new values in a strange way (and in a way that involved moral wrongs done to her), everyone acquires their values in ways that are not fully under their control. Indeed, following Galen Strawson’s line of argument (1994), described in §3.3.2 , it might be noted that no one has ultimate control over their values, and even if normal agents have some capacity to address and alter their values, the dispositional factors that govern how this capacity is used are ultimately the result of factors beyond agents’ control. So perhaps it is not as clear as it might first appear that Beth is distinguished from normal agents in terms of her powers of self-governance and her moral responsibility for her behavior. But this reasoning can cut both ways: instead of showing that Beth is assimilated into the class of normal, responsible agents, it might show that normal agents are assimilated into the class of non-responsible agents like Beth. Derk Pereboom’s four-case argument employs a maneuver along these lines (1995, 2001, 2007, 2014).

Pereboom’s argument presents Professor Plum in four different scenarios. In each scenario, Plum kills Ms. White while satisfying the conditions on desert-involving moral responsibility most often proposed by compatibilists (and described in earlier sections of this entry): Plum kills White because he wants to, and while this desire is in keeping with Plum’s character, it is not irresistible; Plum also endorses his desire to kill White from a higher-order volitional perspective; finally, Plum is generally morally competent, and the process of deliberation that leads to his decision to kill White is appropriately responsive to reasons.

In Case 1, Plum is “created by neuroscientists, who…manipulate him directly through the use of radio-like technology” (Pereboom 2001: 112). These scientists cause Plum’s reasoning to take a certain (reasons-responsive) path that culminates in Plum concluding that the self-serving reasons in favor of killing White outweigh the reasons in favor of not doing so. Pereboom believes that in such a case Plum is clearly not responsible for killing White since his behavior was determined by the actions of the neuroscientists. In Cases 2 and 3, Plum is causally determined to undertake the same reasoning process as in Case 1, but in Case 2 Plum is merely programmed to do so by neuroscientists (rather than having been created by them), and in Case 3 Plum’s reasoning is the result of socio-cultural influences that determine his character. In Case 4, Plum is just a normal human being in a causally deterministic universe, and he decides to kill White in the same way as in the previous cases.

Pereboom claims that there is no relevant difference between Cases 1, 2, and 3 such that our judgments about Plum’s responsibility should be different in these three cases. Furthermore, the reason that Plum is not responsible in these cases seems to be that, in each case, his behavior is causally determined by forces beyond his control (Pereboom 2001: 116). But then we should conclude that Plum is not responsible in Case 4 (since causal determinism is the defining feature of that case). And since, in Case 4, Plum is just a normal human being in a causally deterministic universe, the conclusion we draw about him should extend to all other normal persons in causally deterministic universes. (For an important, related manipulation argument, see Mele’s “zygote argument” in Mele 1995, 2006b, and 2008.)

Pereboom’s argument has inspired a number of objections. For example, it could be argued that in Case 1, the manipulation to which Plum is subject undermines his responsibility for some reason besides the fact that the manipulation causally determines his behavior, which would stop the generalization from Case 1 to the subsequent cases (Fischer 2004, Mele 2005, Demetriou 2010; for a response to this line of argument, see Matheson 2016; Pereboom addresses this concern in his 2014 presentation of the argument; also see Shabo 2010). Alternatively, it might be argued, on compatibilist grounds, that Plum is responsible in Case 4, and this conclusion might be extended to the earlier cases since Plum fulfills the same compatibilist-friendly conditions on responsibility in those cases (McKenna 2008).

The four-case argument attempts to show that if determinism is true, then we cannot be the sources of our actions in the way required for moral responsibility. It is, therefore, an argument for incompatibilism rather than for skepticism about moral responsibility. But, in combination with Pereboom’s argument that we lack the sort of free will required for responsibility even if determinism is false (2001: 38–88; 2014: 30–70), the four-case argument has emerged as an important part of a detailed and influential skeptical perspective. For other skeptical accounts, see Caruso (2016), Smilansky (2000), Waller (2011); also see the entry on skepticism about moral responsibility .

There has been a recent surge in interest in the epistemic, or knowledge, condition on responsibility (as opposed to the freedom or control condition that is at the center of the free will debate). In this context, the following epistemic argument for skepticism about responsibility has been developed. (In certain structural respects, the argument resembles Galen Strawson’s skeptical argument discussed in §3.3.2 .)

Sometimes agents act in ignorance of the likely bad consequences of their actions, and sometimes their ignorance excuses them from blame for so acting. But in other cases, an agent’s ignorance might not excuse him. How can we distinguish the cases where ignorance excuses from those in which it does not? One proposal is that ignorance fails to excuse when the ignorance is itself something for which an agent might be blamed. And one proposal for when ignorance is blameworthy is that it issues from a blameworthy benighting act in which an agent culpably impairs, or fails to improve, his own epistemic position (H. Smith 1983). In such a case, the agent’s ignorance seems to be his own fault, so it cannot be appealed to in order to excuse the agent.

But when is a benighting act blameworthy? Several philosophers have suggested that we are culpable for benighting acts only when we engage in them knowing that we are doing so and knowing that we should not do so (Levy 2011, Rosen 2004, M. Zimmerman 1997). Ultimately, the suggestion is that ignorance for which one is blameworthy, and that leads to blameworthy unwitting wrongdoing, has its source in knowing wrongful behavior. Thus, if someone unwittingly does something wrong, then that person will be blameworthy only if we can explain his lack of knowledge (his “unwittingness”) by reference to something else that he knowingly did wrong.

Consider an example from Gideon Rosen (2004) in which a surgeon orders her patient to be transfused with the wrong type of blood, and suppose that the surgeon was unaware that she was making this mistake. According to Rosen, the surgeon will be blameworthy for harming her patient only if she is blameworthy for being ignorant about the patient’s blood type when she requests the transfusion, and she will be blameworthy for this only if her ignorance stems from some instance in which the surgeon knowingly failed to do something that she ought to have done to avoid her later ignorance. It won’t, for example, be enough that the surgeon’s ignorance is explained by her failure to doublecheck the patient’s medical records. In order to ground blame, this omission on the surgeon’s part must itself have been culpable, which requires that the surgeon knew that this omission was wrong. And if the surgeon wasn’t aware that she was committing a wrongful omission (when she failed to doublecheck her patient’s medical records), then this failure of knowledge on the surgeon’s part must be explained by some prior culpable—that is, knowing—act or omission. In the end, for Rosen,

the only possible locus of original responsibility [for a later unwitting act] is an akratic act …. a knowing sin. (2004: 307; emphasis in original)

Similarly, Michael Zimmerman argues that

all culpability can be traced to culpability that involves lack of ignorance, that is, that involves a belief on the agent’s part that he or she is doing something morally wrong. (1997: 418)

The above reasoning may apply not just to cases in which a person is unaware of the consequences of her action, but also to cases in which a person is unaware of the moral status of her behavior. A slaveowner, for example, might think that slaveholding is permissible, and so, on the account considered here, he will be blameworthy only if he is culpable for his ignorance about the moral status of slavery, which will require, for example, that he ignored evidence about its moral status while knowing that this is something he should not do (Rosen 2003 and 2004).

These reflections can give rise to a couple forms of skepticism about moral responsibility (and particularly about blameworthiness). First, we might come to endorse a form of epistemic skepticism on the grounds that we rarely have insight into whether a wrongdoer was akratic—that is, was a knowing wrongdoer—at some suitable point in the etiology of a given action (Rosen 2004). Alternatively, or in addition, one might endorse a more substantive form of skepticism on the grounds that a great many normal wrongdoers don’t exhibit the sort of knowing wrongdoing supposedly required for responsibility. In other words, perhaps very many wrongdoers don’t know that they are wrongdoers and their ignorance on this score is not their fault since it doesn’t arise from an appropriate earlier instance of knowing wrongdoing. In this case, very many ordinary wrongdoers may fail to be morally responsible for their behavior. (For skeptical suggestions along these lines, see M. Zimmerman 1997 and Levy 2011.)

There is more to the epistemic dimension of responsibility than what is contained in the above skeptical argument, but the argument does bring out a lot of what is of interest in this domain. For one thing, it prominently relies on a tracing strategy. This strategy is used, for example, in accounts that feature a person who does not, at the time of action, fulfill control or knowledge conditions on responsibility, but who nonetheless seems morally responsible for her behavior. In such a case, the agent’s responsibility may be grounded in the fact that her failure to fulfill certain conditions on responsibility is traceable to earlier actions undertaken by the agent when she did fulfill these conditions. For example, a person may be so intoxicated that she lacks control over, or awareness of, her behavior, and yet it may still be appropriate to hold her responsible for her intoxicated behavior insofar as she freely took steps to intoxicate herself. The tracing strategy plays an important role in many accounts of responsibility (see, e.g., Fischer & Ravizza 1998: 49–51), but it has also been subjected to important criticisms (see Vargas 2005; for a reply see Fischer and Tognazzini 2009; for more on tracing, see Khoury 2012, King 2014, Shabo 2015, and Timpe 2011).

Various strategies for rejecting the above skeptical argument also illustrate stances one can take on the relevance of knowledge for responsibility. These strategies typically involve rejecting the claim that knowing wrongdoing is fundamental to blameworthiness. For example, it might be argued that it is often morally reckless to perform actions when one is merely uncertain whether they are wrong, and that this recklessness is sufficient for blameworthiness (see Guerrero 2007; also see Nelkin & Rickless 2017b and Robichaud 2014). Another strategy would be to argue that blameworthiness can be grounded in cases of morally ignorant wrongdoing if it is reasonable to expect the wrongdoer to have avoided her moral ignorance, and particularly if her ignorance is itself caused by the agent’s own epistemic and moral vices (FitzPatrick 2008 and 2017). Relatedly, it might be argued that one who is unaware that he does wrong is blameworthy if he possessed relevant capacities for avoiding his failure of awareness; this approach may be particularly promising in cases in which an agent’s lack of moral awareness stems from a failure to remember her moral duties (Clarke 2014, 2017 and Sher 2006b, 2009; also see Rudy-Hiller 2017). Finally, it might simply be claimed that morally ignorant wrongdoers can harbor, and express through their behavior, objectionable attitudes or qualities of will that suffice for blameworthiness (Arpaly 2003, Björnsson 2017, Harman 2011, Mason 2015, Talbert 2013). This approach may be most promising in cases in which a wrongdoer is aware of the material outcomes of her conduct but unaware of the fact that she does wrong in bringing about those outcomes.

For more, see the entry on the epistemic condition for moral responsibility .

The special issues of Midwest Studies in Philosophy cited in the Introduction are Volume 30 (2006) and Volume 38 (2014), Minneapolis: University of Minnesota Press.

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• Wallace, R. Jay, 1996, Responsibility and the Moral Sentiments, Cambridge, MA: Harvard University Press.
• –––, 2011, “Dispassionate Opprobrium: On Blame and the Reactive Sentiments”, in Wallace, Kumar, and Freeman 2011: 348–372.
• Wallace, R. Jay, Rahul Kumar, and Samuel Freeman, 2011, Reasons and Recognition: Essays on the Philosophy of T.M. Scanlon , New York: Oxford University Press. doi:10.1093/acprof:oso/9780199753673.001.0001
• Waller, Bruce, 2011, Against Moral Responsibility, Cambridge, MA: MIT Press.
• Watson, Gary, 1975, “Free Agency”, The Journal of Philosophy , 72(8): 205–220. doi:10.2307/2024703
• –––, 1999, “Soft Libertarianism and Hard Compatibilism”, The Journal of Ethics , 3(4): 353–368. doi:10.1023/A:1009819618482
• –––, 2001, “Reasons and Responsibility”, Ethics , 111(2): 374–394. doi:10.1086/233477
• –––, 2002, “Contractualism and the Boundaries of Morality: Remarks on Scanlon’s What We Owe to Each Other ”, Social Theory and Practice , 28(2): 221–241. doi:10.5840/soctheorpract20022829
• –––, 1987 [2004], “Responsibility and the Limits of Evil: Variations on a Strawsonian Theme”, in Schoeman 1987: 256–286. Reprinted in Watson 2004: 219–259. doi:10.1017/CBO9780511625411.011
• –––, 1996 [2004], “Two Faces of Responsibility”, Philosophical Topics , 24(2): 227–248. Reprinted in Watson 2004: 260–88. doi:10.5840/philtopics199624222
• –––, 2004, Agency and Answerability: Selected Essays , New York: Oxford University Press. doi:10.1093/acprof:oso/9780199272273.001.0001
• –––, 2011, “The Trouble with Psychopaths”, in Wallace, Kumar, and Freeman 2011: 307–31.
• Widerker, David, 1995, “Libertarianism and Frankfurt’s Attack on the Principle of Alternative Possibilities”, The Philosophical Review , 104(2): 247–261. doi:10.2307/2185979
• Wiggins, David, 1973, “Towards a Reasonable Libertarianism”, in Essays on Freedom of Action , Ted Honderich (ed.), London: Routledge & Kegan Paul, pp. 31–62.
• Williams, Bernard, 1976 [1981], “Moral Luck”, in Proceedings of the Aristotelian Society Supplementary , 50: 115–135. Reprinted in his, Moral Luck: Philosophical Papers 1973–1980 , Cambridge: Cambridge University Press, 1981, 20–39. doi:10.1093/aristoteliansupp/50.1.115
• Wolf, Susan, 1980, “Asymmetrical Freedom”, The Journal of Philosophy , 77(3): 151–166. doi:10.2307/2025667
• –––, 1987, “Sanity and the Metaphysics of Responsibility”, in Schoeman 1987: 46–62. doi:10.1017/CBO9780511625411.003
• –––, 1990, Freedom Within Reason , New York: Oxford University Press.
• –––, 2001, “The Moral of Moral Luck”, Philosophic Exchange , 31: 4–19. [ Wolf 2001 available online ]
• –––, 2011, “Blame, Italian Style”, in Wallace, Kumar, and Freeman 2011: 332–347.
• Zimmerman, David, 2003, “That Was Then, This Is Now: Personal History vs. Psychological Structure in Compatibilist Theories of Autonomous Agency”, Noûs , 37(4): 638–671. doi:10.1046/j.1468-0068.2003.00454.x
• Zimmerman, Michael J., 1988, An Essay on Moral Responsibility , Totowa, NJ: Rowman and Littlefield.
• –––, 1997, “Moral Responsibility and Ignorance”, Ethics , 107(3): 410–426. doi:10.1086/233742
• –––, 2002, “Taking Luck Seriously”, The Journal of Philosophy , 99(11): 553–576. doi:10.2307/3655750
• –––, 2015, “Moral Luck Reexamined”, in Shoemaker 2015: 136–159.

How to cite this entry . Preview the PDF version of this entry at the Friends of the SEP Society . Look up topics and thinkers related to this entry at the Internet Philosophy Ontology Project (InPhO). Enhanced bibliography for this entry at PhilPapers , with links to its database.

• The Determinism and Freedom Philosophy Website , edited by Ted Honderich, University College London.
• Flickers of Freedom (multiple contributors, coordinated by Thomas Nadelhoffer, closed 9 February 2017, archive version)
• Eshleman, Andrew, “Moral Responsibility”, Stanford Encyclopedia of Philosophy (Fall 2019 Edition), Edward N. Zalta (ed.), URL = < https://plato.stanford.edu/archives/fall2019/entries/moral-responsibility/ >. [This was the previous entry on this topic in the Stanford Encyclopedia of Philosophy — see the version history .]

blame | compatibilism | determinism: causal | free will | free will: divine foreknowledge and | incompatibilism: (nondeterministic) theories of free will | incompatibilism: arguments for | luck: moral | moral responsibility: the epistemic condition | responsibility: collective | skepticism: about moral responsibility

Acknowledgments

I would like to thank Derk Pereboom for his helpful comments on drafts of this entry.

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1000-Word Philosophy: An Introductory Anthology

Philosophy, One Thousand Words at a Time

Author: Jonathan Spelman Category: Ethics Word Count: 1000

1. Resultant Moral Luck

While my brother and I were growing up, our father would tell us stories from his time as a police officer. One of those stories was about a teenager who fell asleep at the wheel, crossed over the center line, and hit an oncoming vehicle containing two passengers, an elderly couple, both of whom were killed in the crash.

Years later, a friend of mine told me a similar story. Driving home one night, he fell asleep at the wheel, crossed over the center line, and hit an oncoming vehicle containing one passenger, a middle-aged woman. Though seriously injured, she survived.

Given these details, you might be tempted to think that the teenager is morally worse than my friend because the results of his actions were worse than the results of my friend’s actions.

If this is what you think, then you believe in the existence of moral luck , for you believe that how good a person is can depend on factors beyond one’s control (e.g., the safety features of the vehicle one hits, the physical condition of that vehicle’s passengers, whether those passengers are wearing seatbelts, etc.). In particular, you believe in the existence of resultant moral luck because you believe that how good one is can depend on the results of one’s actions, even when those results are beyond one’s control.

2. The Control Principle

While you may initially have been tempted to regard the teenager as morally worse than my friend, after carefully considering that the results of my friend’s actions were better due to purely lucky factors, you might be willing to reevaluate the moral situation. You might then conclude that the teenager and my friend are moral equals, neither any relevantly worse than the other. Why are they moral equals? Because the only difference between them is attributable to factors beyond their control . If this is what you think, then you do not, in fact, believe in the existence of resultant moral luck.

In “Moral Luck,” Thomas Nagel describes the motivation for denying the existence of moral luck. He writes, “Prior to reflection it is intuitively plausible that people cannot be morally assessed for what is not their fault, or for what is due to factors beyond their control.” 1 We’ll call this principle, that how good one is cannot depend on factors beyond one’s control, the control principle .

As Nagel admits, the control principle is quite plausible. We do not think that how good one is depends on factors beyond one’s control. There is a worry, however, that everything about a person depends on factors beyond her control, in which case moral assessment turns out to be impossible. To see how one might arrive at that conclusion, we’ll look at three other potential species of moral luck, namely circumstantial, constitutive, and causal moral luck.

3. Circumstantial Moral Luck

Whereas resultant moral luck exists if how good one is can depend on the results of one’s actions, even when those results are due to factors beyond one’s control, circumstantial moral luck exists if how good one is can depend on how one acts, even when how one acts is due to factors beyond one’s control. For example, imagine that two married women are drinking at a bar. Both find the bartender attractive, and each is willing to cheat on her husband with the bartender. The bartender, however, is only interested in one of them. Thus, only one of the two women cheats.

Intuitively, those who cheat are worse than those who don’t, but in cases like this one, whether an individual cheats depends on factors beyond his or her control. Thus, if those who cheat are worse than those who don’t, circumstantial moral luck exists.

4. Constitutive Moral Luck

Constitutive moral luck exists if how good one is can depend on one’s character traits, even when one’s character traits are due to factors beyond one’s control.

For example, although violent criminals seem worse than upstanding citizens, it’s plausible to think that whether one is a violent criminal or an upstanding citizen depends on one’s genes and the environment in which one is raised. Moreover, if that’s correct, then whether someone is a violent criminal or an upstanding citizen is due to factors beyond his or her control. Thus, if violent criminals are, in fact, worse than upstanding citizens, then constitutive moral luck exists.

5. Causal Moral Luck

Causal moral luck exists if how good an individual is can depend on anything about that individual despite the fact that everything about him or her is ultimately attributable to the laws of nature and antecedent circumstances.

The position that everything about us is attributable to the laws of nature and antecedent circumstances is known as  determinism . There is philosophical controversy regarding the compatibility (or incompatibility) of determinism and free will.  Regardless of this philosophical controversy, it does seem as though if determinism is true, everything about us is ultimately beyond our control.

6. The Problem of Moral Luck and Potential Solutions

By this point, it should be clear that the control principle is incompatible with the way we practice moral assessment. This is the problem of moral luck.

There are two popular responses to this problem. First, there are those who would have us reject the control principle in order to preserve the way we practice moral assessment. 2 Second, there are those who would have us alter the way we practice moral assessment in order to preserve the control principle. 3

If neither of those options seems plausible, one could give up on the possibility of moral assessment altogether or embrace a revisionist solution. Bernard Williams, for example, recommends that we draw a distinction between two kinds of assessment, moral and ethical. While affirming the truth of the control principle on which people cannot be morally assessed for what is due to factors beyond their control, Williams argues that people can yet be ethically assessed for what is due to factors beyond their control. Furthermore, he contends that ethical assessment is the more important of the two kinds of assessment. 4

Although none of these solutions seems entirely satisfactory, one of them must be correct.

1  Nagel 1976, 138.

2  For examples of this response, see Adams 1985, Walker 1991, Wolf 1993, and Fischer and Ravizza 2000.

3  For examples of this response, see Richards 1986, Sverdlik 1988, Zimmerman 2002, and Enoch and Marmor 2007.

4  Williams 1993.

Adams, Robert Merrihew. “Involuntary Sins.” The Philosophical Review 94, no. 1 (1985): 3-31.

Enoch, David and Andrei Marmor. “The Case against Moral Luck.” Law and Philosophy 26, no. 4 (July 2007): 405-436.

Fischer, John Martin and Mark Ravizza. Responsibility and Control: A Theory of Moral Responsibility . New York: Cambridge University Press, 2000.

Nagel, Thomas. “Moral Luck.” Proceedings of the Aristotelian Society, Supplementary Volumes 50 (1976): 137-151.

Richards, Norvin. “Luck and Desert.” Mind 95, no. 378 (April 1986): 198-209.

Sverdlik, Steven. “Crime and Moral Luck.” American Philosophical Quarterly 25, no. 1 (January 1988): 79-86.

Walker, Margaret Urban. “Moral Luck and the Virtues of Impure Agency.” Metaphilosophy 22, nos. 1-2 (January 1991): 14-27.

Williams, Bernard. “Postscript.” Moral Luck . Ed. Daniel Statman. Albany: State University of New York Press, 1993. 251-258.

Wolf, Susan. Freedom Within Reason . New York: Oxford University Press, 1993.

Zimmerman, Michael J. “Taking Luck Seriously.” The Journal of Philosophy 99, no. 11 (November 2002): 553-576.

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About the Author

Jonathan Spelman is an assistant professor of philosophy at Ohio Northern University. He received his PhD in philosophy from the University of Colorado Boulder, and he specializes in normative ethics and metaethics. When he’s not doing philosophy, he enjoys playing golf, taking photos, and spending time with his family. JonathanSpelman.com  

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Moral Luck and the Law

In a Tortoiseshell: In this exemplary feature piece, published in full, Daniel Teehan intertwines contemporary urgency to the philosophical concept of moral luck , exploring how one’s background and circumstance can affect how one is treated in modern America’s criminal justice system.

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Excerpt / daniel teehan.

In Florida in 2003, a 20-year-old woke up after a night of drinking, gave his roommate permission to borrow his car, and went back to sleep. For his actions that morning, he was convicted of felony murder and sentenced to life in prison. 1  Just over ten years later in Cleveland, a different man intentionally shot and killed a twelve-year-old child within seconds of encountering him. He was recently spared even the possibility of being found guilty of murder or spending a day in jail. 2 There was nothing extralegal or illegal in the administration of either trial. However objectionable to individual observers, both outcomes were entirely justifiable within the established legal processes of the jurisdictions where they were adjudicated. And yet, there is something intuitively paradoxical about the notion that society officially designates the car-lender a murderer, and the child-killer not.

To understand how this could be the case, it helps to consider the notion of moral luck, especially as it is articulated by the contemporary American philosopher Thomas Nagel. Nagel’s formulation of moral luck complicates our intuitive assignations of blame and guilt by forcing a consideration of the ways that luck–in, among other things, outcomes and antecedent circumstances–affects an actor’s personal culpability for a certain outcome. 3 And while Nagel’s argument certainly has far-reaching theoretical implications for philosophy, it also poses pressing practical questions for the administration of criminal law. An examination of criminal justice policies in the United States reveals that, without formally acknowledging them as such, aspects of the law implicitly take certain forms of moral luck into account already. And to the extent that having bad moral luck is an exculpatory–or at least mitigating–factor in the eyes of the law for some people but not others, the U.S. criminal justice system manifests internal incoherence.

“Ultimately, nothing or almost nothing about what a person does seems to be under his control.”

– Thomas Nagel 4

In his essay “Moral Luck,” Nagel presupposes a simple but critical framework for thinking about moral judgments, which rests upon the notion of control. Succinctly put, people should be judged based upon what they freely and intentionally do. It would seem unfair to judge someone based on things that happened to them, or for outcomes influenced by factors outside their control. And yet, Nagel points out, “the things for which people are morally judged are determined in more ways than we at first realize by what is beyond their control.” 5 Nagel identifies four such ways that factors beyond an actor’s control frequently modulate the degree of blame that is assigned to them. These are his forms of moral luck: luck in outcomes, luck in circumstances, luck in antecedent events, and constitutive luck. 6 Taken together, these forms of luck complicate almost every situation of moral judgment. The implications of this make moral luck’s strength as a concept clear. As Nagel puts it, “the area of genuine agency, and therefore legitimate moral judgment, seems to shrink under this scrutiny to an extensionless point.” 7 And yet, on the other hand, the near-infinite extensibility of this concept also proves to be its greatest challenge–if almost every negative moral judgment unfairly blames an actor for her bad luck, how are we to make fair, consistent moral judgments at all? Nagel does not give an answer to this question–perhaps he thinks it unanswerable. But as a society tasked with doling out blame and apportioning punishment in response to such situations, we don’t have the luxury of avoiding it.

The examples Nagel uses to illustrate his forms of moral luck convincingly demonstrate that our intuitive judgments of a person can be modulated by factors outside of that person’s control. Take one of his parable-like cases for luck in outcomes. The degree to which we judge a drunk driver can depend more on her surroundings and the behavior of those around her than on her personal irresponsibility in driving drunk. Were the driver to swerve onto the sidewalk and fatally strike someone, she would be judged much more harshly than were she to swerve without inflicting damage. 8 Were she to hit and kill a mother and child, the judgment would be harsher still. And yet the act for which she is responsible–driving while drunk and losing control of her car–has not changed. The case is simple, but illustrative in how a consideration of luck complicates formation of moral judgment. One either ignores bad luck and judges a person for the uncontrollable outcome of her action (unfair judgment), acknowledges luck and judges her solely on her personal responsibility, without regard to outcomes (strict fairness), or arrives at some middle ground of judgment that straddles the harsh and lenient options (calculated blame). 9 The strictly fair choice seems plausible enough, until Nagel introduces other forms of moral luck that undermine the existence of personal responsibility.

In the same way that people are regularly subject to unfair judgment for outcomes that were beyond their control, Nagel shows that people are judged for choices they made that were themselves conditioned by circumstances beyond their control. 10 These pre-action conditions are Nagel’s other three forms of luck–luck in circumstances (conditions of the environment), in personal constitution (mental/physiological features), and antecedent circumstances (other factors that condition the will to make certain choices). As with luck in outcomes, aspects of this argument are simple to grasp. If someone is genetically predisposed to alcoholism, they have bad moral luck: there is a factor outside of their control that informs their decision-making process when drinking. Placing sole blame on them for negative outcomes that resulted from their drunkenness would be unfair. But Nagel goes further than asserting that some decisions are influenced by factors outside a subject’s control–he suggests that all decisions are determined by such factors. 11 The argument, familiar to determinists, that actions are not elected by some inner self but are rather preconditioned by extrinsic events and preceding circumstances, has expansive implications. As Nagel phrases it, “the effect of concentrating on the influence of what is not under his control is to make this responsible self seem to disappear, swallowed up by the order of mere events.” 12 According to the above definition of strict fairness, in the absence of personal responsibility, there can be no moral judgment.

Nagel ends his essay grappling with the implications of this dissolution of the responsible self. What he is left with, philosophically, is a world view somewhat akin to Buddhism. 13 What he leaves us with, practically, is a conundrum. It is clear how reasoning using moral luck could be used to absolve people of responsibility for tragic outcomes in individual cases. But it is unclear how moral luck should be factored into judgments in a way both practical and fair: given the various forms of moral luck at play in any situation, strict fairness could be used to absolve everyone of judgment. But it is not, and probably should not, be used. Employing unfair judgment–that is, ignoring luck, is unfair to exceptionally unlucky individuals. And calculating blame leaves the calculators with the task of parsing out how much of an outcome is attributable to a person’s willing action, and how much to luck.

That bad luck can be incorporated into judgments in these three different ways–completely, to exculpate; partially, to mitigate; or not at all, to indict–puts a significant amount of discretion in the hands of the person or system doing the judging. This flexibility of application could be a good thing. It could lead to fairer outcomes, where egregious or systemic instances of bad luck are accounted for, while tendentious claims to innocence are ignored. But when we turn our consideration to the criminal justice system – the institution tasked most explicitly with dealing with these questions – it is clear that this flexibility, rather than counterbalancing the vagaries of luck, facilitates outcomes ranging from the inconsistent to the unfair.

Luck in Law

Moral luck is a useful concept, but it leaves us with a problem. Nagel convincingly makes the case that luck complicates our moral judgments in almost every situation, but provides no clear instructions on how to use the concept practically to make consistent and fair judgments. For individuals, this tension challenges personal notions of fairness towards others. But for society, which passes moral judgment on individuals’ actions through the criminal justice system, it calls into question the legitimacy of the foundational principle of equal justice. While Nagel’s argument concludes without a clear prescription for applying moral luck, it does provide the tools to analyze instances of moral judgment through the lens of luck (and the attendant notions of control and fairness). Using this lens to examine the ways that our society navigates moral luck through criminal law may provide insight into both the criminal justice system and the rigor of moral luck as a practical concept.

Considering criminal justice through the lens of luck makes it clear that the system already incorporates luck–both in outcomes and in preconditions–in certain situations. But the way that luck is currently used in adjudicating guilt and punishment appears arbitrary at best and biased at worst. While a statistical approach to the question is beyond the scope of this inquiry, consideration of three different cases is enough to confirm that the judicial response to situations in which a defendant did not have complete control runs the gamut from unfair judgment to calculated blame to strict fairness. In the case of “felony murder,” absolutely no consideration is given to bad luck in outcomes in cases where it clearly applies. Through the ruling of “not guilty by reason of insanity” (NGRI), strict fairness is applied and the court formally recognizes constitutive bad luck as an exculpatory factor. And through judicial consideration of the impressionable circumstances of youth, calculated blame is apportioned to non-adult offenders. These cases, when taken together, show that the courts are capable of incorporating the concept of luck into their judgments, but do not do so in a consistent way.

Felony murder is a statute in many jurisdictions in the U.S. It takes the notion that people engaged in felonies are responsible for any ill effects of their actions–no matter how unpredictable, unintended, or uncontrollable–and codifies it into law. 14 It is frequently applied to people engaging in collective misdeeds. If several people are burglarizing a house or store and one of them kills someone in the process, everyone involved can be charged with felony murder. Likewise, if someone dies as a result of a felony, the person committing the felony is deemed the murderer as a result of this statute. The latter form of reasoning led to a shoplifter being charged with murder when the security guard struggling to handcuff him collapsed and died. While the charge of felony murder can be used as simply a prosecutorial bargaining chip or eventually overturned by higher courts, legal history is full of cases where a person with no intent to kill or control over a death was convicted of murder. Felony murder thus represents not just unfair judgment, but juridical weaponizing of bad luck as a tool to increase criminal responsibility.

If felony murder represents a refusal to attribute bad outcomes to bad luck, then NGRI is a legal concession that constitutive bad luck can override an individual’s responsibility for a crime. It is significant that the plea, if accepted, does not merely excuse an insane person from the consequences of their actions–it rules that they are substantively not responsible for them. This conclusion is in line with Nagel’s emphasis on conditions of control: an insane person does not have full control over their actions, so it does not make sense to judge them for those actions. However, it is unclear why a lack of control due to insanity is more relevant than a lack of control over outcomes manifested in felony murder. The case of special juvenile considerations adds even more confusion to the mix by introducing a situation where blame is effectively divided between circumstances and individual agency.

The legal treatment of juvenile responsibility is less clear cut than that of insanity or felony murder. As cited in the Marshall Project, research indicates that “until about age 25, adolescents and young adults lack a fully developed brain.” 15 This constitutive trait makes youth less reflective, more impulsive, and more likely to be influenced by their surroundings. Young people who end up committing crimes must then be suffering from at least some level of bad luck–constitutively and circumstantially. Some jurisdictions ignore this reality altogether, applying what seems to be unfair judgment to youth offenders. New York, for example, automatically tries 16- and 17-year-olds as adults for all crimes, and kids as young as 13 as adults for homicide, rape, and some other serious offenses. 16 In general, however, the national trend has been to acknowledge bad luck by treating youth as a mitigating–but not exculpating–factor. This manifests through shorter sentences, banning of the death penalty for juveniles, and even the trying of youth cases in family court instead of criminal court. This (very slight) leniency reflects a stance that kids, while not absolved of responsibility for their actions, at least share that responsibility with the bad luck of their youthful circumstance.

Felony murder, NGRI, and juvenile justice collectively demonstrate that the law is capable of acknowledging the role of bad luck in contributing to outcomes, but doesn’t do so in a consistent or comprehensive way. Indeed, beyond the inconsistent treatment of luck between the cases, there is discretion and degrees of difference within each category. Juveniles facing family court can be waived to criminal court by a judge, people with severe mental impairments can be deemed competent to stand trial, and tenuous charges of felony murder can be overturned by higher courts or negotiated down to lower charges. This level of discretion in the system facilitates cases of both extreme unfairness and exceptionable charitability. Indeed, it also subjects defendants to an additional, meta-layer of moral luck. For if the resonance of moral luck arguments in a defendant’s case depends on such factors as the quality of her lawyer, the receptiveness of her judge, and the capriciousness of the prosecutor in bringing certain charges, her guilt or innocence in the eyes of the law is further dependent on factors beyond her control. That a poor youthful defendant facing charges of felony murder in adult court in front of an unsympathetic judge has a higher chance of being deemed guilty and getting a life sentence than a wealthy youth being tried in a family court for non-murder charges for the same action seems a particularly unfair consequence of moral luck. While these hypotheticals may seem like extreme extensions of a benign principle, real life juxtapositions such as that posed in the introduction to this essay demonstrate the importance of luck in determining how the state judges individual actors.

Kid-Killer and Car-Lender

“No car, no crime. No car, no consequences. No car, no murder.”

-Ryan Holle’s Prosecutor 17

Let’s return, then, to the cases of Ryan Holle, the young man convicted of felony murder for lending his car to a friend, and that of Timothy Loehmann, the man–and police officer–who was spared charges in the shooting of an unarmed 12-year-old, Tamir Rice. The two cases are illustrative insofar as they demonstrate the ways that discretion–when it comes to incorporating luck into moral judgment–facilitates hugely disparate outcomes in the criminal justice system.

Holle had incredibly bad luck. Because the car that he innocently lent to a roommate was used in the commission of a crime that resulted in a death, prosecutors were able to use the felony murder statute to charge him as an accomplice and a murderer. His circumstance would be a laughable reductio ad absurdum of the notion of unfair judgment, were it not a real case of a young man being sentenced to life in prison. For a situation over which he had minimal control, Holle was assigned maximum responsibility. Loehmann, on the other hand, was absolved of responsibility for a killing over which he had almost complete control. There were certainly forms of bad luck at play in his case–the circumstances he faced as a police officer put him in a position of moral peril, and the information available to him at the moment he acted inclined him to believe that deadly force was justified. But to acknowledge that these minor forms of bad luck absolve Loehmann of any personal responsibility for Rice’s murder extend to him a degree of charitability completely absent in Holle’s case. That Loehmann’s and Holle’s cases can coexist in our system of laws is clear proof that we do not deal with situations of moral luck in a consistent or fair way.

Extreme discretion when it comes to parsing out the contributions of luck and will to a crime is a problematic aspect of our criminal justice system. As long there is flexibility to absolve certain actors of responsibility altogether, and to prosecute others completely out of proportion to their individual contribution to a crime, that flexibility will manifest unfair outcomes such as Holle’s and Loehmann’s. And as with many cases where there is broad discretion, that discretion will inevitably facilitate various individual and societal biases. Loehmann was not just morally unlucky to be put in the situation for which he has garnered attention – he was morally lucky to be a cop. For all of the uncertainty surrounding forms of moral bad luck in the criminal justice system, the moral good luck of being in law enforcement seldom fails to deliver.  

Author Commentary / Daniel Teehan

This essay, written as a final paper for REL 320, “The Problem of Evil,” coalesced a few different concepts I was trying to work through when I was given the assignment. As making arguments in essays is effectively a form of disciplined thinking, I try to pick essay topics that pertain to problems I am already thinking about, so as to better understand them. In this case, I had spent much of winter break trying to work through some of the thoughts and emotions I had in response to the non-indictment of Tamir Rice’s murderer, the police officer Timothy Loehmann. I was also really struck by reading about the concept of moral luck for the religion class I was in, and the concept’s seemingly broad extensibility to the realm of ordinary and institutionalized moral judgments. Finally, I had read a really provocative article in Jacobin about the bizarre and worrying existence of felony murder statutes, which in retrospect seemed curiously related to moral luck. With those three pieces I had the makings of an essay about the role of luck in the criminal justice system.

My instructor for the class, Professor Liane Carlson, helped immensely in developing the ideas for this essay and maintaining a realistic scope–mainly by talking through the ideas and helping make what was essentially a long-form article into an essay that grapples more substantively with a philosophical concept. The end result is still inflected by my background in journalism–especially the narrative form of the opening and the punchy ending–mainly because I wanted to keep the essay focused on the very real lives it addresses. The essay, in the end, deals with social biases rather less than I initially intended, but hopefully it still accomplishes the intended effect of prompting people to reconsider the ways that their own moral judgments can be shaped. At the very least, I hope to introduce moral luck as a discursively useful concept for engaging in the ever-present and always difficult conversations around crime and punishment and disparate prosecution in this country.  

Editor Commentary / Kelly Rafey

Some essay topics are inherently engaging. Thomas Nagel’s philosophical theory of “moral luck” is probably not one of them. But in the journalistic hands of Daniel Teehan, his rigorous analysis of moral luck is not only clear and well argued, but relevant and engaging.

In “Moral Luck and the Law,” Teehan grapples with Nagel’s theory of moral luck—that people’s actions, hence their culpability for those actions, are inseparable from their personal circumstances. Teehan examines this theory against modern America’s criminal justice system, arguing that criminal law incorporates moral luck into its judicial process implicitly, granting benefits to those who have moral good luck while disadvantaging those who are morally unlucky.  

To motivate his critique of moral luck and its role in criminal justice, Daniel frames his essay with two contrasting murder cases: Ryan Holle, convicted of a murder he did not commit, and Timothy Loehmann, cleared of all charges after willfully murdering a child. By beginning his essay with an overview of each case, the philosophical content of the essay takes on real urgency. From the very start, the reader has real motivation to read on—to understand how in these two cases the criminal justice system appears to institutionalize injustice.

But in a crucial addition, Daniel does not rely on this motivating framework to carry the rest of his essay. As he walks the reader through his argument, introducing key terms such as moral luck and explaining key concepts with brief case studies, he motivates his argument throughout. In the opening paragraph of the section “Luck in Law,” for example, he articulates a problem with Nagel’s philosophy: it outlines a theory without acknowledging any practical applicability. By pointing out this issue, Daniel carves out space to insert his own argument into Nagel’s theoretical framework, writing: “Using [Nagel’s] lens to examine the ways that our society navigates moral luck through criminal law may provide insight into both the criminal justice system and the rigor of moral luck as a practical concept.” In this sentence, Daniel not only orients the reader to the next part of the paper—which they can now assume will examine moral luck in light of the criminal justice system—he states the implications of his argument—that it will clarify both moral luck and the criminal justice system.

In setting up his argument against a backdrop of these two murder cases, Daniel makes a promise to his reader. He pledges to use the rest of his paper to show how moral luck is integrated into the criminal justice system, and to ultimately show why in these two instances the nonmurderer was convicted and the real murderer released. And in his conclusion, Daniel fulfills his promise. He returns to his framing case studies to evaluate them against the role of moral luck in the criminal justice system, bringing his essay full circle.

From start to finish, Daniel’s essay leads the reader through a logical and well-substantiated argument, motivated throughout with a combination of popular and scholarly motive—real-world events and philosophical, academic questions. His essay challenges an institutional system along philosophical grounds and ends on a note that is not only insightful, but inciting.

Works Cited

Cahill, Teddy. 2015. “Calls for Calm after Grand Jury Declines to Indict Officers in Death of Tamir Rice.”  The Washington Post , December 29.

Goldstein, Dana. 2015. “What’s Justice for Kids Who Kill?”  The Marshall Project , July 23.

Liptak, Adam. 2007. “Serving Life for Providing Car to Killer.”  The New York Times , Dec. 4.

Madar, Chase. 2014. “A Blood Sacrifice for the NYPD.”  Jacobin , August 8.

Nagel, Thomas. 1991. “Moral Luck.” In  Mortal Questions , XXX. Cambridge University Press.

Thompson, Christie. 2015. “Charged with Murder Without Killing Anyone.” The Marshall Project , November 24.

DANIEL TEEHAN

Daniel Teehan ’17 is a Brooklyn native deeply engaged in anti-carceral advocacy and education. He has taught classes in state prisons, worked on anti-solitary confinement advocacy campaigns, and interned as an investigator for Brooklyn Defender Services, an indigent defense office. A Comparative Literature major, he focuses on Arabic and Hebrew literature, and spent his freshman summer living and studying in Amman, Jordan. Daniel wrote this essay as a junior.

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Rethinking Moral Luck: What Conditions are Necessary for Moral Responsibility?

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Moral luck and the unfairness of morality

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• Published: 18 September 2018
• Volume 176 , pages 3179–3197, ( 2019 )

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• Robert J. Hartman 1  

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Moral luck occurs when factors beyond an agent’s control positively affect how much praise or blame she deserves. Kinds of moral luck are differentiated by the source of lack of control such as the results of her actions, the circumstances in which she finds herself, and the way in which she is constituted. Many philosophers accept the existence of some of these kinds of moral luck but not others, because, in their view, the existence of only some of them would make morality unfair. I, however, argue that this intermediary approach is unstable, because either morality is fair in ways that rule out resultant, circumstantial, and constitutive moral luck (and this leads to moral responsibility skepticism), or morality is unfair in ways that permit the existence of those kinds of moral luck. Thus, such intermediary approaches lack the motivation that their proponents have long taken them to have. In the appendix, I point to ways in which morality is unfair concerning the scope of moral responsibility, moral obligation, moral taint, being a good or bad person, and flourishing.

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Moral luck occurs when factors beyond an agent’s control positively affect the degree of praise or blame she deserves. Footnote 1 Kinds of moral luck are differentiated by the source of lack of control such as the results of her actions, the circumstances in which she finds herself, and the way in which she is constituted (Nagel 1979 , p. 28). Footnote 2 Many philosophers allow some of those three kinds of moral luck to exist but not others, and a popular reason why is that if certain kinds of moral luck were to exist, morality would be unjust or unfair (Statman 1993 , pp. 2, 3). I, however, argue that this intermediary approach is unstable, because either morality is fair in ways that rule out resultant, circumstantial, and constitutive moral luck (and this leads to moral responsibility skepticism), or morality is unfair in ways that permit the existence of all three kinds of moral luck. But then, the most common positions in the moral luck debate—namely, the positions that affirm some kinds of moral luck and deny others—cannot appeal to the unfairness objection to motivate their denial of only some kinds of moral luck. Thus, such intermediary approaches lack the motivation that their proponents have long taken them to have.

I proceed as follows. In the first two sections, I define and illustrate the canonical kinds of moral luck, and present the strongest version of the unfairness objection to moral luck. After these explications, I present a more precise outline of my argument. In the next three sections, I consider several intermediary positions on moral luck and argue that each is unmotivated with respect to the ideal of fairness. I offer some concluding thoughts, and, subsequently, I provide an appendix on several ways in which morality is unfair with respect to moral properties other than degree of praiseworthiness and blameworthiness.

1 Categories of moral luck

Thomas Nagel’s ( 1979 , p. 28) taxonomy of moral luck includes resultant, circumstantial, constitutive, and causal moral luck. Footnote 3 Resultant moral luck occurs when an agent performs an action or omission with a consequence that is at least partially beyond her control and that consequence positively affects her praiseworthiness or blameworthiness. By ‘positively affects’, I mean that the luck at issue does not undermine praiseworthiness or blameworthiness. Footnote 4 Here is an example. Killer, our first character, is at a party and drives home drunk. At a certain point in her journey, she swerves, hits the curb, and kills a pedestrian who was on the curb. Merely Reckless, our second character, is exactly like Killer in every way, but, when she swerves and hits a curb, she kills no one. There was no pedestrian on the curb for her to kill. The difference between Killer and Merely Reckless is a matter of luck. Is Killer more blameworthy—that is, does she deserve more blame—than Merely Reckless? If Killer is more blameworthy, this would be a case of resultant moral luck, and if they are equally blameworthy, this would not be a case of resultant moral luck.

Circumstantial moral luck occurs when it is outside of the agent’s control whether she faces a morally significant challenge or opportunity, and it positively affects her praiseworthiness or blameworthiness. Here are two more examples. No Start, our third character, gets drunk and gets into her car in exactly the same way as our first two characters, but the difference is that her car does not start. As a result, she has to call a cab to take her home. But if No Start’s engine had turned over, she would have driven drunk just as they did. By stipulation, it is beyond No Start’s control that her car fails to start, and it is outside of Merely Reckless’s control that her car does start. Works Tonight, our fourth character, has the same moral character as Killer, Merely Reckless, and No Start, and so Works Tonight would have gotten drunk and driven home if she had gone to the party as she had planned. Works Tonight, however, was called in to work, and was thereby saved from disgrace. Of course, it is a matter of luck that Works Tonight was called into work, and that the other three were not. Are No Start and Works Tonight as blameworthy as Merely Reckless? Footnote 5 If Merely Reckless is more blameworthy than No Start and No Start is more blameworthy than Works Tonight, then circumstantial moral luck would exist in both cases, because luck in opportunity would make a moral responsibility-relevant difference. If, however, all three of them are equally blameworthy, then circumstantial moral luck would not exist in these cases; and all three would be exactly as blameworthy as Killer too if resultant moral luck also does not exist.

Constitutive moral luck occurs when an agent’s dispositions or capacities are not voluntarily acquired, and they positively affect her praiseworthiness or blameworthiness for a trait or an action. Scarred Childhood, our fifth character, had a father who was killed by a drunk driver, and she subconsciously developed the policy never to drive drunk. If that traumatic experience had not occurred, however, Scarred Childhood would have had a different character and would have formed the intention to drive drunk at the party as the others do. Of course, it is outside Scarred Childhood’s control that she had this traumatic experience, and it is outside of Killer, Merely Reckless, No Start, and Work Tonight’s control that they never had that kind of traumatic experience. Is Scarred Childhood as blameworthy as the others? If Merely Reckless and No Start are each more blameworthy than Scarred Childhood, then constitutive moral luck would exist in this case. But if all five of our characters turn out to be equally blameworthy, then there would be no constitutive moral luck (and no circumstantial and resultant moral luck either). Footnote 6

Causal moral luck occurs when the laws of nature and past states of affairs that are outside of a person’s control causally determine what she does, and thereby positively affect her praiseworthiness or blameworthiness. Footnote 7 The question of whether causal moral luck could exist is the same question as whether an action’s having been causally determined is compatible with being morally responsible for that action, which is a standard topic in the free will literature. The moral luck debate proper, however, is about resultant, circumstantial, and constitutive moral luck, because these are the kinds of luck that make the problem of moral luck a distinctive problem. Footnote 8 Although it can be illuminating to consider whether causal moral luck exists alongside these three (see Hartman 2017 , pp. 53–55, 71–80), I ignore this complexity about causal moral luck for the time being, and return to it at the conclusion of the essay.

2 The absolute fairness objection to moral luck

The strongest version of the unfairness objection to moral luck is that it is unfair for any one of Killer, Merely Reckless, No Start, Works Tonight, and Scarred Childhood to be more blameworthy than any of the others, because the salient difference between them is a matter of luck and morality must be protected from all kinds of luck. Footnote 9

The nature of this absolutely fair conception of morality involves a requirement for total equality of moral opportunity and a kind of pure agency. Footnote 10 According to Bernard Williams’s ( 1981 , p. 21) description of that conception, “The successful moral life … is presented as a career open not merely to the talents, but to a talent which all rational beings necessarily possess in the same degree.” Thus, bad upbringings, tumultuous circumstances, and tragic consequences are not factors that foreclose opportunities to live successful moral lives; they do not even make it more difficult to do so. As Williams asserts,

Anything which is the product of happy or unhappy contingency is no proper object of moral assessment, and no proper determinant of it, either ( 1981 , p. 20). There is pressure within it [our conception of morality] to require a voluntariness that will be total and will cut through character and psychological or social determination, and allocate blame and responsibility on the ultimately fair basis of the agent’s own contribution, no more and no less ( 1985 , p. 194).

On this absolutely fair view, the moral praise and blame that we deserve cannot be conditioned by lucky factors outside of our control such as our genetic make-up, moral training, social pressure, opportunity, results, and the like. Footnote 11 It seems very plausible to think that an agent can be morally responsible on this view only if she created herself out of nothing, because it is only then that her agency would be pure in the right kind of way and everyone would have the very same moral opportunities to deserve praise and avoid blame, at least with respect to their interior constitution. This strong self-creation condition on morally responsible agency, however, cannot possibly be satisfied (see Strawson 1994 ). So, the absolutely fair conception of morality not only implies that no resultant, circumstantial, or constitutive moral luck exist, but also that it is impossible for anyone to be morally responsible for anything.

Williams rejects the absolutely fair conception of morality, regarding the impossibility of satisfying it as a reductio. Other philosophers such as Nagel and Galen Strawson, however, accept these fairness-based requirements as a deliverance of common sense. On the one hand, Nagel ( 1979 , p. 34) endorses a paradox, because he affirms these requirements that are impossible to satisfy and still believes that we are morally responsible for at least some of what we do. On the other hand, Strawson ( 1994 ) straightforwardly concludes from those requirements that it is impossible to be morally responsible for anything (cf. Levy 2011 ; Waller 2011 ).

Most philosophers in the moral luck debate part ways with Nagel and Strawson precisely because they believe that it is at least metaphysically possible for us to be morally responsible agents without affirming a Nagelian paradox. These philosophers allow at least some kinds of moral luck to exist in order to support morally responsible agency, but many of them deny that certain other kinds of moral luck exist on the grounds that their existence would make morality unfair. Over the next three sections, I argue that the fairness-based justification for such intermediary views is unstable, because there is no fairness-relevant difference between the kinds of moral luck that they accept and the kinds that they reject. If my argument is successful, then the proponents of these intermediary views should either (1) embrace absolute fairness as the standard of morality, and so embrace responsibility skepticism or the Nagelian paradox, or (2) agree that there is no good objection to constitutive, circumstantial, or resultant moral luck on grounds of fairness. In Hartman ( 2017 , forthcoming), I argue against taking the first horn (see also Sher 2005 ; Russell 2008 , 2017 ). If philosophers who occupy these intermediary positions take the second horn, at least some of them will have good motivation to abandon their positions, because a common motivation for rejecting moral luck is on grounds of fairness. Footnote 12

3 Allowing only essential constitutive moral luck

A central feature of Michael Zimmerman’s ( 2002 , pp. 560, 561) response to the problem of moral luck distinguishes between the “degree” and “scope” of moral responsibility (cf. Peels 2015 , p. 74). The degree of moral responsibility is about how much praise or blame a person deserves, and this kind of moral responsibility is luck-free. But the scope of responsibility concerns the events for which an agent is morally responsible, and this sense of moral responsibility is not luck-free. Zimmerman uses the degree/scope distinction as well as true subjunctive conditionals of freedom to eliminate all resultant and circumstantial moral luck and almost all constitutive moral luck. Footnote 13

Let us start with the way in which Zimmerman uses the degree/scope distinction to eliminate resultant moral luck. Because the only difference between Killer and Merely Reckless is a matter of luck and luck is irrelevant to degree of moral responsibility, the degree of their moral responsibility is the same (Zimmerman 2002 , pp. 560–562; cf. Enoch and Marmor 2007 , pp. 408–420; Peels 2015 , p. 83). But the scope of their moral responsibility differs, because only Killer is morally responsible for the death of a pedestrian. Killer is morally responsible for more things, but they are equally blameworthy. Thus, no resultant moral luck exists in this case, because the actual results of a person’s actions that are outside of her control do not affect her degree of praiseworthiness or blameworthiness.

Next, consider the way in which Zimmerman uses the degree/scope distinction and true subjunctive conditionals of freedom to eliminate circumstantial moral luck. Because the salient difference between Merely Reckless, No Start, and Works Tonight is a matter of luck with respect to whether the car starts or having to work, the degree of their moral responsibility is the same; all three are equally blameworthy (Zimmerman 2002 , pp. 564, 565; cf. Enoch and Marmor 2007 , pp. 420–425; Peels 2015 , pp. 79, 80). Nevertheless, the scope of their moral responsibility differs. Merely Reckless is morally responsible for driving drunk, and No Start is morally responsible for forming the intention to drive drunk. But Works Tonight is not morally responsible for anything related to drunk driving. How, then, can Works Tonight be as blameworthy as the others? Zimmerman’s ( 2002 , pp. 564, 565) answer is that Works Tonight is blameworthy “tout court” or simpliciter in virtue of the fact that she would have freely driven drunk as Merely Reckless does if she had not been called into work. Thus, no circumstantial moral luck exists in these cases, because which of the circumstances outside of their control are actual does not affect their degree of praiseworthiness or blameworthiness.

Finally, consider the way in which Zimmerman’s view eliminates most constitutive moral luck. Because the salient difference between Merely Reckless and Scarred Childhood is luck in formative history, they are equally blameworthy (Zimmerman 2002 , pp. 574, 575). Even though Scarred Childhood’s moral responsibility has no scope, she is blameworthy in virtue of what she would have freely done if she had had a different formative history in which her parent was not killed by a drunk driver. So then, no constitutive moral luck exists in this case, because which of an agent’s constitutive properties outside of her control are actual does not affect her degree of praiseworthiness or blameworthiness.

Zimmerman appeals to fairness to motivate this ethical outlook (Hanna 2014 , pp. 692–694). Zimmerman ( 2002 , p. 559) contends that the following general principle is intuitively attractive: “[T]he degree to which we are morally responsible cannot be affected by what is not in our control. Put more pithily: luck is irrelevant to moral responsibility.” Morality would, after all, be unfair if the degree to which we are morally responsible were determined by something other than what is under the agent’s control. As Zimmerman writes,

If there is unfairness in the differential judgments [for example, Merely Reckless is more blameworthy than Works Tonight]—as I believe there is … then this unfairness … [consists] in ascribing moral responsibility to one … but not ascribing it to the other ( 1987 , p. 382; italics mine; see also his 1988 , p. 136). I think there may be a (perhaps metaphorical) sense in which it would be unfair if Bill were more culpable than Ben [Bill and Ben are snipers, only one of which kills his mark due to luck] ( 2015 , p. 156; italics mine).

Likewise, Zimmerman would say that it would be unfair if Merely Reckless were more blameworthy than Scarred Childhood due to features of their formative history outside of their control. Let us refer to the conception of fairness operative here as subjunctive fairness . If persons S and S* are actually or subjunctively exactly alike with respect to some event x except regarding factors that are outside of their control, then it would be unfair if they were to be praiseworthy or blameworthy to different degrees with respect to x . Footnote 14

Zimmerman ( 2002 , p. 575), however, concedes that his use of subjunctive conditionals of freedom may not be able to eliminate all constitutive moral luck, because at least some of our personal characteristics may be essential to us. That is, Zimmerman recognizes that we cannot coherently appeal to what a particular person would freely do in circumstances in which she does not have a particular essential property or in which she has different essential properties in order to neutralize her essential constitutive moral luck, since it would not be her if she lost an essential property or had different essential properties. Thus, essential constitutive moral luck cannot be eliminated, and essential features of a person’s character outside of her control can affect the praise and blame she deserves by inclining her to perform and forgo various kinds of action. If different persons have different essential constitutive luck, it is impossible for everyone to be in the same counterfactual circumstances, which implies that there is no absolute equality of moral opportunity.

Zimmerman offers no proposal for eliminating essential constitutive moral luck. Nevertheless, there is good reason to think that he is committed to denying even this undeniable kind of constitutive moral luck. Since contingent constitutive luck involves a kind of lack of control that is pernicious with respect to the fairness of morality and since essential constitutive luck involves a similar lack of control, we should expect that essential constitutive luck is also pernicious in a similar way.

One might object that a relevant difference between these kinds of constitutive luck is that there is no luck involved in the so-called ‘essential constitutive luck’, because lucky states of affairs must be contingent (see Rescher 1993 , pp. 155–157). But this reply cannot help. Zimmerman ( 2002 , p. 559, cf. 2015 , p. 136) uses the lack of control definition of luck, and both contingent and essential properties may be outside of the agent’s control in the relevant sense. Furthermore, I argue in Hartman ( 2017 , pp. 23–31) that we should use the lack of control conception of luck in the moral luck debate, because it is only this conception that generates the distinctive puzzle involved in the problem of moral luck (see also Anderson forthcoming; Statman forthcoming). Footnote 15

One might also object that there can be no unfairness about which essential properties a person has, and this consideration points to a relevant difference between these modal varieties of constitutive luck. Zimmerman, however, would not agree. He thinks, for example, that the capacity to act freely is an essential property ( 2002 , p. 575) and that it is “unfair” that “an unfree object (whether animate or not) never has the opportunity to distinguish itself (or to disgrace itself) in such a way as to deserve praise (or blame)” ( 1987 , p. 385n25). This is precisely the sort of response we should expect of someone who aims to neutralize luck from affecting degree of praiseworthiness and blameworthiness.

Finally, one might object that because it is not metaphysically possible to eliminate essential constitutive moral luck, it poses no threat to the fairness of morality. This objection, however, cannot be right either, because the argument contains only a metaphysical reason that explains why essential constitutive moral luck cannot be eliminated. The argument does not give fairness-relevant moral reasons why essential constitutive moral luck does not need to be eliminated to preserve the fairness of morality, while contingent constitutive moral luck must be. Allow me to motivate these claims. Suppose, as I have argued in Hartman ( 2017 , pp. 71–82), that Zimmerman is committed to the truth of subjunctive conditionals of freedom that are metaphysically contentious in order to eliminate circumstantial and contingent constitutive moral luck. If it turned out that all such conditionals are necessarily false, we would not thereby conclude that circumstantial and contingent constitutive luck to which agents would still be subject can affect moral responsibility, because those kinds of luck should still be irrelevant to moral responsibility; they would still be pernicious to moral evaluation. By analogous reasoning, even if the subjunctive conditionals of freedom that would be able to neutralize essential constitutive moral luck are necessarily false, essential constitutive luck would still be problematic. Footnote 16

Therefore, it seems plausible that there is no fairness-relevant moral reason to affirm the subjunctive fairness conception of morality and to deny the absolute fairness conception of morality on the assumption that at least some of our personal characteristics are essential to us. Footnote 17 Thus, the motivation for Zimmerman’s account is unstable in this way. Footnote 18 Either he should embrace the absolute fairness conception of morality and so embrace moral responsibility skepticism or the Nagelian paradox, or he should accept that morality is unfair in a way that permits the existence of contingent constitutive moral luck. Over the next two sections, however, I argue that the latter option also involves agreeing that morality is unfair in ways that allow for the existence of circumstantial and resultant moral luck.

4 Denying some circumstantial and constitutive moral luck

Rik Peels ( 2015 , 2017 ) argues for a modest version of Zimmerman’s view in which no resultant moral luck exists, and only some kinds of circumstantial and constitutive moral luck do not exist. Footnote 19 Peels ( 2017 , p. 220) agrees with Zimmerman to the extent that at least some kinds of resultant, circumstantial, and constitutive moral luck would make morality “unfair” (cf. 2017 , p. 222). The modesty in Peels’s ( 2015 ) view, however, comes from a desire to avoid what he sees as an absurd implication of Zimmerman’s account—namely, that a person can be blameworthy in virtue of what she would freely do in modally distant circumstances even with character traits different from those she has in the actual world.

To avoid this implication, Peels ( 2015 , p. 77) appeals to an account of luck that augments the lack of control account in the following way: an event e is lucky for a person if and only if (1) e is significant for her, (2) she lacks control over e , and (3) e could easily have failed to occur (cf. Peels forthcoming). To put condition (3) more precisely, an event e satisfies this modal condition if and only if e occurs in the actual world but fails to occur in a broad range of close possible worlds in which the relevant initial conditions are the same. For simplicity, let us refer to Peels’s tripartite account as ‘luck*’ and the standard lack of control account as ‘luck’. The modal condition limits lucky* events to those that occur in the actual world and nearby possible worlds. Since, then, it is not a matter of luck* what an agent would be or do in a distant possible world, Peels’s account does not imply that an agent can be blameworthy with respect to counterfactual free actions in a distant possible world. In concrete terms, Peels’s view implies that Merely Reckless and No Start are equally blameworthy, and that both are more blameworthy than Scarred Childhood. It is a matter of luck* that No Start fails to find herself in Merely Reckless’s circumstance, but it is not a matter of luck* that Scarred Childhood fails to find herself in Merely Reckless’s situation. The possible world in which Scarred Childhood is in a circumstance like Merely Reckless or No Start is not close to the actual world at that particular time given all the character and historical changes that would be required to put her in the same circumstance.

Peels’s view of moral responsibility, then, eliminates all circumstantial and constitutive moral luck*, but it leaves a lot of circumstantial and constitutive moral luck intact. After all, most of the situations in which it is possible for us to be are situations in distant possible worlds. For this reason, Peels’s view eliminates only a very small proportion of cases of circumstantial and contingent constitutive moral luck in comparison with Zimmerman’s view.

Importantly, Peels uses the modal condition in his account of luck*—and so appeals to a metaphysical reason—to distinguish the circumstantial and constitutive moral luck* that cannot exist from the remaining circumstantial and constitutive moral luck that morality does permit. He, however, offers no fairness-relevant moral reason to justify this division (cf. Hartman 2017 , pp. 25–29; 65, 66); after all, what fairness-relevant moral reason could he appeal to in order to justify differential blameworthiness between Merely Reckless and No Start, on the one hand, and Scarred Childhood, on the other? Peels’s distinction between problematic circumstantial and constitutive moral luck* and benign circumstantial and constitutive moral luck, then, is unmotivated with respect to the ideal of fairness. Although I have my doubts about whether there is any plausible way to motivate Peels’s distinction, my point here is merely that appealing to fairness cannot do it.

5 Denying only resultant moral luck

The most popular position in the moral luck debate is that circumstantial and constitutive moral luck do exist but that resultant moral luck does not. Footnote 20 Call this position the Asymmetry View. In concrete terms, the view is that Killer and Merely Reckless are equally blameworthy. Nevertheless, Merely Reckless is more blameworthy than No Start, because only Merely Reckless drives drunk; and No Start is more blameworthy than Works Tonight and Scarred Childhood, because only No Start intends to drive drunk. According to this view, there is a morally significant difference between the kinds of luck that rule out two agents from performing the same kind of action or omission and the sort of luck that operates after two agents perform the same kind of action or omission.

A common justification for the Asymmetry View is that it would be unjust or unfair for Killer to deserve more blame than Merely Reckless but not for Merely Reckless to deserve more blame than Works Tonight (Swenson manuscript; Wolf 2001 , p. 6, 18). Footnote 21 On this actualist fairness conception of morality , if persons S and S* are actually exactly alike with respect to some event x except regarding factors that are outside of their control, then it would be unfair if they were to be praiseworthy or blameworthy to different degrees with respect to x . So, because Killer and Merely Reckless actually operate their vehicles in the same way, it would be unfair if they were to deserve different degrees of blame. Footnote 22

One might argue for the claim that the fairness of morality rules out only resultant moral luck in part by showing that extant circumstantial and constitutive moral luck is compatible with total equality of moral opportunity. That is, there is no deep unfairness in accepting circumstantial and constitutive moral luck because all persons enjoy equality of moral opportunity, but there would be such unfairness in accepting resultant moral luck (Swenson manuscript). Roger Crisp ( 2017 , p. 17) explores this idea by suggesting that it is always open to agents to do the right thing, and the degree of a person’s praiseworthiness or blameworthiness for an action is in part determined by the difficulty involved in doing the right thing:

A harder choice may be more praiseworthy, so to this extent the circumstantial bad moral luck of the man who stayed in [Nazi] Germany was counterbalanced by the greater moral opportunities available to him. And as it becomes more difficult to make the correct choice, so it becomes a lesser wrong [and the agent less blameworthy] not to make it.

So, the person who faces bad circumstantial or constitutive luck finds herself in higher stakes situations in which it is harder to do the right thing. And because the likelihood of her doing the right thing is generally lower in higher stakes situations all other things being equal, she will be more praiseworthy if she does the right thing and less blameworthy if she does the wrong thing. The opposite, of course, holds in lower stakes situations . Since the likelihood of her doing the right thing is generally higher in circumstances in which it is easier to do the right thing all other things being equal, she will be less praiseworthy if she does the right thing and more blameworthy if she does the wrong thing. So, one might think that this kind of equality of moral opportunity shows that there is no unfairness involved in accepting circumstantial and constitutive moral luck (Swenson manuscript). Footnote 23

I, however, challenge the claim that there is equality of moral opportunity even if we suppose that agents can always do the right thing and that degrees of praiseworthiness and blameworthiness are sensitive to degrees of difficulty. First, higher and lower stakes circumstances involve different kinds of moral risks. And as Linda Zagzebski ( 1994 , p. 409) argues, “[w]e do not get to decide initially how much of a risk we want to take,” because it is often not up to us whether we find ourselves in higher or lower stakes circumstances. Someone who finds herself in certain higher stakes circumstances by luck may make choices that result in her being overall more praiseworthy and/or less blameworthy than if she had made choices in particular lower stakes circumstances. Likewise, someone who finds herself in certain lower stakes circumstances by luck may make choices that result in her being overall more praiseworthy and/or less blameworthy than if she had made choices in particular higher stakes circumstances. Herein lies a remaining source of unfairness. Second, I am dubious that weighting difficulty in proportion to degrees of praiseworthiness and blameworthiness could ever be precise enough to grant everyone equal moral opportunities (Zagzebski 1994 , p. 409). To be clear, I am not saying that it is impossible to do the math; I am expressing doubt that degrees of praiseworthiness and blameworthiness are as fine-grained as the math requires. Thus, the suggestion that accepting circumstantial and constitutive moral luck as well as difficulty-weighted praiseworthiness and blameworthiness generates universal equality of moral opportunity is not a promising suggestion. I conclude that this kind of partial fairness-based justification for the Asymmetry View fails.

Let us turn to consider my positive argument for why there is no good fairness-based justification for the Asymmetry View. The basic argument is that the features that make circumstantial and constitutive moral luck benign with respect to morality are also present in cases of resultant moral luck, which makes it benign too. It is helpful to think through this claim concretely with Killer and Merely Reckless as the case of resultant luck, and Merely Reckless and Works Tonight as the case of circumstantial luck. Footnote 24

There are two plausible moral principles that provide a minimal kind of core fairness that is required for moral responsibility, and both principles are asymmetrically satisfied in a way that differentiates the blameworthiness of Merely Reckless and Works Tonight.

Here is the principle of dependence :

An agent is praiseworthy or blameworthy for an event only if the occurrence of that event at least partially depends on her free action or omission.

The event of Merely Reckless’s driving drunk is an event that depends at least in part on her free choices or omissions. Even if Merely Reckless is too cognitively impaired to freely operate her vehicle at the time she is driving drunk, her moral responsibility for driving drunk plausibly traces back to (and so depends on) an earlier omission to make plans about how to get home safely. Of course, since Works Tonight does not drive drunk, no such event depends on her free action or omission, which precludes her blameworthiness for driving drunk. So, the principle of dependence provides a reason to think that Merely Reckless may be more blameworthy than Works Tonight, because it provides a necessary condition on moral responsibility that is satisfied in one case but not the other.

Here is the principle of fair opportunity :

An agent is praiseworthy for an exemplary action or blameworthy for a wrong action only if she had a fair opportunity to avoid performing the action. Footnote 25

I leave it open whether we should understand ‘fair opportunity’ in a compatibilist way to include merely the agent’s having normative competence and situational control (cf. Brink and Nelkin 2013 ) or in an incompatibilist way to include the agent’s also having alternative possibilities at the moment of choice (cf. Otsuka 1998 , 2009 ). We may stipulate that Merely Reckless had the relevant kind of fair opportunity to avoid driving drunk, because she could have freely chosen in the relevant sense to make different transportation preparations or not to drink at all. Since, however, Works Tonight does not have an opportunity to drive drunk, she does not have a fair opportunity of the relevant kind to avoid driving drunk, which rules out being blameworthy for driving drunk. (Of course, the more natural explanation for why Works Tonight is not blameworthy is that Works Tonight does not drive drunk. The point here is that there is an asymmetry with respect to a necessary condition on moral responsibility.) So, the principle of fair opportunity also provides a reason to think that Merely Reckless may be more blameworthy than Works Tonight.

Plausibly, satisfying these principles is what makes cases of circumstantial moral luck consonant with a fairness core of morality. It seems plausible that anyone moved by the fairness-based justification for the Asymmetry View would agree.

Importantly, the basic ideas in the principles of dependence and fair opportunity are satisfied also in the comparative case of Killer and Merely Reckless in such a way that they leave open the possibility of resultant moral luck. The event of killing the pedestrian by drunk driving depends on Killer’s choice to drive drunk or traces back to a relevant past free action or omission, and thus Killer’s deadly consequence satisfies the core idea behind the principle of dependence. And since Merely Reckless does not kill a pedestrian, no such event depends on her free action or omission; thus, Merely Reckless cannot be additionally blameworthy for killing a pedestrian. Furthermore, Killer had a fair opportunity to avoid killing the pedestrian in part because she had a fair opportunity to avoid driving drunk; another part of what makes her opportunity to avoid killing the pedestrian a fair one is that the consequence of killing a pedestrian is a foreseeable result of drunk driving. But then, the same basic considerations that make circumstantial and constitutive moral luck benign on the Asymmetry View should also make foreseeable resultant moral luck benign too. Footnote 26 Thus, if the principles of dependence and fair opportunity are what make circumstantial and constitutive moral luck fair in a certain way with respect to morality, then there is no good unfairness objection to foreseeable resultant moral luck, because the basic ideas behind those principles are satisfied also in cases of foreseeable resultant moral luck.

Furthermore, resultant moral luck does not involve involuntary moral risk in the way that circumstantial and constitutive moral luck do. Recall that because the agent often does not choose whether she finds herself in higher or lower stakes circumstances owing to her circumstantial and constitutive luck, the agent does not decide how much of a moral risk she wants to take with respect to doing the right thing. Footnote 27 This kind of involuntary moral risk is not present in cases of resultant moral luck. Killer, for example, could easily have avoided being subject to the moral risk of causing the death of a pedestrian via drunk driving by forgoing the consumption of alcohol or by making foolproof plans to avoid driving. In general terms, if someone wants to avoid the moral risk involved with bad resultant moral luck, then she can avoid performing morally bad actions that have foreseeable bad consequences, and if a person wants a chance to have good resultant moral luck, then she should perform morally good actions that have foreseeable good consequences. Unlike in cases of circumstantial and constitutive moral luck, it is up to the agent what kinds of risks she takes with respect to resultant moral luck.

6 Concluding thoughts

I have argued that various intermediary positions in the moral luck debate—that is, positions that allow some kinds of moral luck to exist but deny others—are unmotivated according to the ideal of fairness, because there is no fairness-relevant moral reason to allow certain kinds of moral luck to exist and to deny others. The upshot is that philosophers who hold such intermediary views on grounds of fairness should either (1) embrace absolute fairness as the standard of morality, and so embrace either responsibility skepticism or Nagelian paradox, or (2) agree that there is no good objection to the existence of constitutive, circumstantial, and resultant moral luck on grounds of fairness. If philosophers who occupy these intermediary positions take route (2), then at least some of them will have motivation to abandon their positions, because a prominent motivation for rejecting moral luck is on the grounds of fairness. And if they take route (2)—as I think they should—they would have reason to think that morality is not absolutely, subjunctively, or actually fair in the ways defined in this paper.

Even if morality is unfair in these ways, morality can retain a fairness core if some version of compatibilism or libertarianism is true. Compatibilism, the view that an action’s being causally determined by past states of affairs and laws of nature does not itself rule out acting freely or responsibly, fits nicely with the position that constitutive, circumstantial, and resultant moral luck exist, because compatibilism amounts to the claim that causal moral luck is not incoherent. One interesting example of this is Paul Russell’s ( 2017 ) work. It is, however, less obvious that accepting constitutive, circumstantial, and resultant moral luck fits well with incompatibilism, which implies that causal moral luck cannot exist. Footnote 28 Could there be a fairness-relevant moral reason for the incompatibilist to deny causal moral luck, and yet affirm constitutive, circumstantial, and resultant moral luck? There may be such a reason if alternative possibilities at the moment of choice are required to furnish the agent with a fair opportunity to avoid performing certain actions. I am merely pointing to what may be a fairness-relevant moral reason for why causal moral luck cannot exist but constitutive, circumstantial, and resultant moral luck can. In future work, I will explore the idea that libertarians should accept the unfairness of morality, and so accept resultant, circumstantial, and constitutive moral luck. Footnote 29

Moral luck is often defined in a broader way such that it occurs when factors beyond an agent’s control affect her moral status (Anderson 2011 , p. 373; Nagel 1979 , p. 26; Hanna 2014 , p. 683). Philosophers writing on moral luck, however, tend to focus on the particular moral status of deserved praise and blame. For expositional simplicity, I have defined moral luck to focus on this particular moral status. Importantly, however, there are other kinds of moral luck where the ‘moral’ refers to moral obligation, virtue, flourishing, or some other moral property, and I consider several of these other moral properties in the appendix.

I consider Nagel’s fourth kind of moral luck involving causal determinism in the next section.

The term ‘resultant luck’ is from Zimmerman ( 1987 , p. 376), and ‘causal luck’ is from Statman ( 1993 , p. 11).

This part of my definition is in keeping with the italicized part of Nagel’s ( 1979 , p. 26) own idea: “[A] significant aspect of what someone does depends on factors beyond his control, [and] yet we continue to treat him in that respect as an object of moral judgment ” (italics mine). One way in which my definition departs from Nagel’s is that it focuses on praiseworthiness and blameworthiness, and not praising and blaming.

Why use two cases of circumstantial luck? Whether the case of Merely Reckless and No Start is a case of circumstantial or resultant luck depends on what actions are (see Nelkin 2013 ). If actions are purely mental events, it would be a case of resultant luck; they performed the same mental actions with different consequences. If actions are overt bodily actions, it would be a case of circumstantial luck, because they would have performed the same actions in the same circumstances but were not in the same circumstances.

I take this claim to be compatible with the skeptical position that none of them are blameworthy for anything. See, for example, Levy ( 2011 ), Strawson ( 1994 ), and Waller ( 2011 ).

Causal luck could be defined in a broader way to include also the indeterminism highlighted by the luck objection to libertarianism (cf. Mele 2006 ; van Iwagen 2002 ). I ignore this complexity.

For more about the distinctiveness of these problems, see Hartman ( 2017 , pp. 4–9).

It is not uncommon for philosophers to appeal to fairness as a norm that governs desert, blameworthiness, and being responsible (Levy 2014 , p. 126; Rosen 2002 ; Wallace 1994 ). For a challenge to Wallace ( 1994 ) and Rosen ( 2002 ), see Graham ( 2014 ).

The term “absolutely fair” is from Russell ( 2008 , p. 316). And as Otsuka ( 2009 , p. 374) recognizes, ‘morality’ in this context refers only to praiseworthiness and blameworthiness, and not also to other moral properties such as moral virtue and vice.

Not everyone in the moral responsibility literature accepts the assumptions about control that animate the problem of moral luck. See, for example, Smith ( 2005 ) and McKenna ( 2008 ).

My argument is similar in various ways to Moore’s ( 1997 ) argument for resultant moral luck. Here is Moore’s argument: if resultant moral luck does not exist, then circumstantial, constitutive, and causal moral luck do not exist either. Nevertheless, at least circumstantial, constitutive, or causal moral luck exists. Therefore, resultant moral luck also exists. Moore ( 1997 , p. 237) justifies the conditional by claiming that “luck is luck, and to the extent that causal fortuitousness is morally irrelevant anywhere it is morally irrelevant everywhere.” My argument differs from Moore’s in at least three ways. First, my argument better captures the dialectic of the problem of moral luck, because I make impossibilism the extreme luck-free position, whereas Moore suggests that it is incompatiblism. Second, my argument makes no dubious assumption that there is no morally relevant difference between any kinds of luck (see Coffman 2015 , pp. 110–111; Hartman 2017 , p. 105). Third, my weaker conclusion is that denying only some kinds of moral luck due to unfairness is untenable, whereas Moore’s stronger conclusion is for the existence of moral luck.

In Hartman ( 2017 , pp. 71–80), I offer an argument that subjunctive conditionals of direct libertarian freedom are necessarily false, and show that different kinds of subjunctive conditionals of freedom that might be true are ill-suited for Zimmerman’s account of moral responsibility.

This principle is a revised version of one presented in Greco ( 1995 , p. 89). Notably, Greco rejects the principle, and affirms resultant, circumstantial, and constitutive moral luck (see Hartman 2017 , Ch. 6).

For explication and defense of various conceptions of luck including the lack of control account, see Church and Hartman (forthcoming).

Why not just think that Zimmerman is defending a luck-free view insofar as it is consistent with possibilism? According to the dialectic, however, this is not a legitimate approach without an argument for possibilism (and Zimmerman provides no such argument), because my argument is that the view that luck is irrelevant to moral responsibility inevitably leads to impossibilism or the Nagelian paradox.

Coffman ( 2015 , pp. 104–115) nicely argues that Zimmerman’s account of moral responsibility presupposes the falsity of what I am calling the absolutely fair conception of morality.

For a similar point, see Rosell ( 2015 , pp. 128–129).

Enoch and Marmor ( 2007 ) also espouse a modest version of Zimmerman’s view, but do so in a way that differs from Peels in particular ways. Interestingly, Enoch and Marmor do not motivate their view by any explicit appeal to fairness; elsewhere, Enoch ( 2010 , p. 46) suggests that appealing to fairness is merely a colorful way of stating the general anti-moral luck intuition.

The denial of resultant moral luck has been called “the Standard View” (Mackenzie 2017 , p. 95) and “the Orthodox View” (Ferrante 2009 , p. 276), and their assessment is corroborated by my own catalogue of published opinions (see Hartman 2017 , p. 129).

Wolf ( 1990 ) affirms the existence of circumstantial and constitutive moral luck in other writings; in fact, the existence of circumstantial and constitutive moral luck is an entailment of her broader compatibilist commitments (see Hartman 2017 , pp. 54, 55). Various other philosophers reject resultant moral luck as unjust or unfair without specifying whether they accept circumstantial and constitutive moral luck (Cushman and Greene 2012 , p. 273; Parker 1984 , p. 274).

A different justification of the Asymmetry View is that attributability accounts of moral responsibility imply the denial of only resultant moral luck (Khoury 2018 ; Talbert 2017 ). See Levy ( 2011 , pp. 180–212) for an argument against attributability views. Yet another justification is that we should accept moral luck if and only if it is required for being morally responsible for actions, and admitting resultant moral luck is not necessary for being morally responsible for actions—but admitting circumstantial and constitutive moral luck is (Rivera-López 2016 ). See Hartman ( 2017 , pp. 107–109) for a response to Rivera-López.

Crisp ( 2017 , p. 18) considers this position, but ultimately rejects it.

I choose Works Tonight instead of No Start to pair with Merely Reckless, because it is more obviously a case of circumstantial luck (see footnote 5).

Philosophers such as Wolf ( 1990 ) and Nelkin ( 2011 ) who endorse an asymmetry in the conditions of praiseworthiness and blameworthiness may revise this principle as follows: an agent is blameworthy for a wrong action only if she had a fair opportunity to avoid performing the action.

In Hartman ( 2017 , pp. 90–93), I argue that all extant resultant moral luck is foreseeable resultant moral luck.

It is plausible that ease and difficulty of circumstances do affect degrees of praiseworthiness and blameworthiness (Nelkin 2016 ), even though they are not weighted precisely enough to provide equality of moral opportunity.

Russell ( 2008 , p. 318) appears to assert that incompatibilism and the absolute fairness conception of morality necessarily go together. But it seems wrong that if one accepts incompatibilism, then one must also affirm the absolute fairness conception of morality.

In Hartman (unpublished manuscript), I explore the motivation that libertarians have for accepting resultant moral luck with respect to character-necessitated actions such as Martin Luther’s famous refusal to recant his theological position: “Here I stand. I can do no other.”

This is true especially in cases of collective responsibility in which a person is a contributor to an outcome that might not have turned out to be bad but for the independent contributions of others (see Szigeti 2014 ).

Haji ( 2016 ) argues that if constitutive luck precludes the ability to do otherwise, then we do not have moral obligations either.

A potential further source of unfairness would be moral dilemmas set up by conflicting “non-negotiable” moral obligations (Tessman 2014 , Ch. 1; Nagel 1979 , p. 34n9).

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Acknowledgements

I am grateful to Joel Archer, Gunner Björnsson, Corey Katz, Rik Peels, Kristin Mickelson, Paul Russell, Philipp Schwind, András Szigeti, Caroline Touborg, and one anonymous referee for this journal for comments on this paper.

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Appendix: The unfairness of morality

There are at least five ways in which morality is unfair concerning moral properties other than deserving praise and blame. First, different luck can generate differences in what people are responsible for, because luck affects the scope of an agent’s responsibility, even if we suppose that luck does not affect her degree of moral responsibility (Peels 2015 ; Zimmerman 2002 ). It is Killer’s bad luck that makes him morally responsible for more events—namely, the killing of a pedestrian—than Merely Reckless. The same goes for Merely Reckless’s being morally responsible for more things than No Start, Works Tonight, and Scarred Childhood, and for No Start’s being morally responsible for more things than Works Tonight and Scarred Childhood. Morality, then, is unfair with respect to that for which an agent is morally responsible. Footnote 30

Second, different luck can generate different deontic or virtue-based imperatives. Even if there is no resultant moral luck, Killer’s bad luck would still create moral obligations or virtuous directives to take responsibility for killing the pedestrian and to repair the moral damage that she has caused as far as it is reasonable and in her power (Hartman 2017 , pp. 92, 93; Enoch 2012 ; Wolf 2001 ). Footnote 31 That is, Killer ought to apologize to the family of the one she killed and to find other ways to make amends. Merely Reckless, of course, does not have these particular obligations, because she does not kill a pedestrian. Thus, morality is unfair with respect to what deontic or virtue-theoretic imperatives an agent has. Footnote 32

Third, different luck can generate differences in moral taint. As Marina Oshana ( 2006 , p. 355, 356) describes, an entity is tainted if it is altered in a way that eliminates some of its valuable features: “One is said to be morally tainted when one’s moral personality has been compromised by the introduction of something that produces disfigurement of the moral psyche.” Consider another variation on the case of the reckless driver. No Fault, a sixth character, performs perfectly behind the wheel, but she kills a child who emerges from a pile of leaves. Clearly, No Fault is not blameworthy for killing the child, because her driving is not faulty in any way. Nevertheless, we expect No Fault to experience guilt, shame, remorse, and regret about killing the child—that is, to feel what Williams ( 1981 , pp. 28, 29) famously calls “agent regret.” No Fault is morally tainted by the way in which killing the child shatters her positive self-image, alienates her from herself, and stigmatizes her as a child killer. Of course, Merely Reckless does not acquire moral taint of this kind or degree, even though it is plausible to say that her blameworthy action taints her in some way (Stump 2004 ). Furthermore, people can acquire moral taint through bad circumstantial and constitutive luck. In the novel Sophie’s Choice , the Nazis force Sophie to make a decision about which of her two children should live, and her refusal to choose would amount to the death of both; she opts to preserve one life and later commits suicide on account of the crushing guilt. Moreover, even innocent children of prominent Nazi officers experienced guilt and shame due to the way in which their practical identities were related to shameful persons and events (Sereny 2001 ). Thus, morality is unfair with respect to whether a person acquires moral taint.

Fourth, different luck can generate differences in being a good or bad person. Nagel ( 1979 , p. 26) provides a famous example of the way in which diachronic circumstantial luck can affect whether we become better or worse persons:

Someone who was an officer in a concentration camp might have led a quiet and harmless life if the Nazis had never come to power in Germany. And someone who led a quiet and harmless life in Argentina might have become an officer in a concentration camp if he had not left Germany for business reasons in 1930.

In fact, recent work in social psychology, the so-called situationist literature, supports the claim that the circumstances in which we find ourselves matter a lot more than we have previously thought for being a good or bad person, because almost all of us would do bad things in certain circumstances (Doris 2002 ; Miller 2013 ). Furthermore, certain kinds of capacity-related constitutive luck can set up people to become bad. A familiar characterization of a psychopath, for example, involves the inability to tell the difference between moral and conventional rules, and a lack of various emotions such as empathy. Thus, psychopaths are not able to appreciate the respective strengths that moral and conventional reasons should have in their deliberations. This lack of normative competence makes them more likely to engage in egoistic behavior and so to become worse persons (Shoemaker 2015 ). Thus, morality is unfair with respect to the degree to which an agent is a good or bad person, and even whether someone is a good or bad person.

Finally, different luck can generate differences in flourishing. Human flourishing involves appreciating beauty, engaging in projects, having good relationships, possessing good character, being free, and having knowledge to name just a few features of the good life. Bad luck can compromise flourishing by depriving a person of the means to participate in those activities; for example, a person might acquire chronic fatigue syndrome and thereby have to withdraw from family, friendships, work, hobbies, and religious activities. Bad luck can also dislodge some of the agent’s valuable properties related to her flourishing. For example, an agent may lose freedom due to enslavement, lose knowledge and self-direction due to amnesia or Alzheimer’s disease, or lose good character due to traumatic events (Nussbaum 2001 , p. 328). Furthermore, different luck can generate differences in desert of flourishing. If we deserve to flourish in proportion to our moral virtue and whether we are morally virtuous is affected by luck, Footnote 33 the degree to which one deserves to flourish is also subject to luck. Thus, morality is also unfair with respect to how well people flourish, and perhaps also how much people deserve to flourish.

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Hartman, R.J. Moral luck and the unfairness of morality. Philos Stud 176 , 3179–3197 (2019). https://doi.org/10.1007/s11098-018-1169-5

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Criminal Culpability and Moral Luck

University Lecturere in Legal Philosophy, University of Oxford, and Fellow in Law, Balliol College Oxford. I would like to thank Miri Gur-Arye and John Stanton-Ife for their comments on an earlier draft.

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Grant Lamond, Criminal Culpability and Moral Luck, Jerusalem Review of Legal Studies , Volume 23, Issue 1, June 2021, Pages 149–166, https://doi.org/10.1093/jrls/jlaa021

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Andrew Simester’s Fundamentals of Criminal Law , 1 displays his customary mix of deep knowledge, insight, and creativity in exploring the central doctrines of criminal liability. His account of those doctrines is complex, bringing considerations of moral philosophy, the rule of law, the proper basis for criminalization, and the practicalities of the criminal justice system to bear on his analysis. His discussion is consistently stimulating, challenging common orthodoxies about the function and justification of the central doctrines of the common law, and forcing the reader to think again about familiar topics in criminal law theory. All of this applies with particular force to the focus of this article: Simester’s discussion of the problem of criminal culpability and moral luck.

The issue of moral luck arises most vividly in the criminal law with the question of whether the outcome of the defendant’s actions should make any difference to the defendant’s liability; whether, for instance, a defendant who attempts to kill their victim yet fails by chance should be treated any differently to the would-be killer who succeeds. 2 The relevance of the outcome of the defendant’s actions to their criminal liability is part of a far broader philosophical question of moral luck, which extends to the role of chance in the circumstances that individuals confront and the fortune in how their characters are constituted. 3 Some of us are lucky enough never to face the dire choices which befall others, yet we are judged on how we respond to the circumstances that actually confronted us, not for how we would have responded to a circumstance that did not, fortunately, confront us. Similarly, we are often assessed for our characters, yet we have very limited influence over the characters we possess. But should we be judged on the basis of the chance outcomes of our actions, or the chance circumstances that unluckily befall us, or the chance of what characters we possess? The literature on moral luck is vast, and inconclusive. It is a notoriously intractable problems in moral philosophy. 4

It is outcome luck that has generated the sharpest debates in criminal law theory. On the one hand there are those who argue that outcome luck is irrelevant to the defendant’s blameworthiness: an attempt and a completed crime are equally blameworthy. Similarly, recklessly risking an outcome and recklessly bringing that outcome about are equally blameworthy. Indeed, some go further and argue that outcomes are irrelevant to liability, not just punishment. In an ideal criminal code all offences would be defined in an inchoate mode: attempting to injure some protected interest, or recklessly endangering such an interest. 5 It is the defendant’s intention or recklessness that grounds criminal culpability, and results are irrelevant to this. On the other hand there are those who argue that outcomes are relevant to the defendant’s blameworthiness. 6 The defendant is blameworthy for what they have done , and what they have done is either intentionally (or recklessly) bring about an outcome, or merely to have tried to bring about (or knowingly risked bringing about) that outcome. So their degree of blameworthiness depends on how things actually turn out, not just their intentions or advertence to risk when they acted. It is morally worse to kill than to attempt to kill (or recklessly endanger life), so it is more blameworthy to have intentionally (or recklessly) killed. The criminal law rightly marks both the liability for the outcome and the additional blameworthiness for bringing it about.

Simester’s book makes two distinctive contributions to the debate on outcome luck. The first is to reject both of the standard views. Contrary to those who reject moral luck and think that all offences should be in an inchoate mode, he argues that outcomes are relevant to the definition of offences, and that it is appropriate for a criminal code to have completed offences such as murder as well as inchoate offences such as attempted murder. On the other hand, he argues that those who intentionally kill and those who attempt to kill are equally blameworthy for their actions, and ( ceteris paribus ) deserve equal punishment. (Similarly, those who recklessly endanger life and those whose reckless endangerment causes death are equally blameworthy.) Outcomes, therefore, can make a defendant culpable for bringing about a worse wrong, and this should be reflected in the label of the crime, but they do not make the defendant more blame worthy for that outcome, and thus do not justify heavier punishments where an outcome occurs. Simester’s other distinctive contribution to the outcome luck debate is to reject the common argument that outcomes are irrelevant to blameworthiness because their occurrence or non-occurrence is outside the defendant’s control. Instead, he argues, outcomes are irrelevant because the defendant’s degree of blameworthiness is fixed at the moment the defendant acts, and depends exclusively on their defective engagement with reason in acting.

These conclusions concerning moral luck flow from Simester’s overall account of criminal culpability, and it is to this account that I will briefly turn. For Simester, the central case of criminal culpability has four elements: (a) a wrong, for which the defendant is (b) ascriptively responsible and (c) morally responsible, and for which the defendant is (d) morally culpable. A defendant who satisfies (a)–(d) is liable to being punished, though the amount of punishment—and indeed whether any punishment should actually be imposed in a specific case—may turn on further considerations. Let me say a little more about each element in this account.

First of all, criminal liability is paradigmatically for moral wrongs, understood as breaches of moral duties. 7 The criminal law is concerned with situations in which the defendant is deserving of censure for their behavior, and it is breaches of duty that bring such censure into question. Or, to be more precise, it is the defendant’s unjustified wrongs that bring censure into question. 8 In addition, the defendant can only deserve censure if the breach of duty is their wrong. To be the defendant’s breach it must be appropriate to ascribe or attribute the breach of duty to the defendant. 9 Such ascriptions can be made on the basis of causation, 10 those omissions where the defendant had a duty to act, 11 and some situations of complicity. 12 The defendant must also be morally responsible for the breach. Even if the breach of duty can be appropriately attributed to the defendant, the defendant must be eligible for moral assessment in respect of that breach. 13 And the defendant can only be eligible for moral assessment if their actions were susceptible to the control of the defendant’s rational capacities. So if the defendant is physically incapable of controlling their actions, or their deliberative capacities are sufficiently impaired (as in some instances of automatism), or they are insufficiently capable of recognizing and acting on moral reasons (infancy, insanity), then they lack moral responsibility for their actions.

Wrongs, ascriptive responsibility and moral responsibility are the preconditions for criminal culpability. Without a wrong that can be properly attributed to the defendant, and for which the defendant is morally responsible, no question of criminal culpability arises. But such conditions are merely necessary, rather than sufficient, for culpability. The term ‘culpability’ is used by Simester to denote blameworthiness. 14 To say that the defendant is culpable for some wrong is to say that they are blameworthy for that wrong. What makes a defendant culpable, according to Simeseter, is their defective engagement with reason. Or to be more precise, a defendant is culpable when their engagement with the reasons not to ϕ (where ϕ-ing is an action constituting a breach of duty) is defective in a manner that reflects badly on the defendant, because it reflects a moral vice on the part of the defendant. 15 Moral vices, on this account, reflect certain shortcomings in the defendant’s own values, principally in their concern for the interests of others. 16 So a defendant is culpable for committing a wrong when, in their engagement with the reasons they had not to ϕ, they were insufficiently motivated by—cared insufficiently about—the interests of others. 17 Simester uses this general account of culpability to argue that defendants can be culpable for negligence as well as intention and recklessness. 18 My interest, however, will be restricted to the cases of intent and recklessness, and the significance of the engagement account of culpability for moral luck.

How then does Simester’s account of criminal culpability bear on the issue of moral luck? In two ways. The first pertains to whether defendants can be properly convicted of result crimes, such as murder or criminal damage, or whether all liability should be cast in an inchoate mode—attempted murder or recklessly endangering property. The common argument in favor of the inchoate mode relies upon what is known as the ‘control principle’, viz., the idea that people cannot be morally assessed for what is due to factors beyond their control. 19 When a defendant attempts to kill, whether or not they succeed is due to the contribution of many factors that are beyond the defendant’s control. It is, in a real sense, a matter of luck whether they succeed or fail. And since success is not under the defendant’s control, they cannot be morally assessed in respect of it, whereas they can be morally assessed for trying to kill or recklessly running the risk of damaging property, since that was under their control. Hence it is the defendant’s intentions and beliefs in acting that render them culpable, not the results of those actions.

The weakness in this argument, as Simester points out 20 and as Michael Moore has argued previously, 21 is that it slips from the thought that we are not responsible for what is beyond our control (i.e., where we have no control) to the idea that we are not responsible for whatever is not under our total control (i.e., where we are not completely in control). But we can have sufficient control over an outcome for its occurrence not to be a matter of sheer luck or mere chance (at least in any ordinary sense of those terms). Take the case of a victim being intentionally shot dead by the defendant. The victim would not have died if the defendant had not pointed the gun at them and pulled the trigger. It is of course possible that the gun might have jammed, or that the victim might have suddenly moved, or someone else might have jostled the defendant’s arm, but the more important fact is that the death would not have occurred without the defendant firing the gun, and firing the gun was under the defendant’s control, at least on any ordinary conception of control.

So the defendant is culpable for the death because: the death was due to the defendant’s shooting; the defendant was capable of not firing; the defendant both understood the significance of the reasons against firing and was capable of acting on those reasons; yet the defendant decided to shoot, and in doing so their engagement with reason was defective, inasmuch as they failed to be sufficiently concerned about the interests of the victim in deciding to shoot. The defendant has culpably committed an unjustified wrong, and is properly blameworthy for the wrong of killing, not just the wrong of attempting to kill. And the criminal law is justified in convicting the defendant of murder, not simply attempted murder. 22

Overall, I agree that the question of control does not prevent us from holding agents culpable for wrongs that involve results, such as death, injury or damage. Of course, some will argue that we only have duties not to try to kill or hurt or harm, rather than duties not to bring about these outcomes, and so even on Simester’s approach we cannot be culpable for outcomes; but most of these arguments are premised on some version of the (total) control principle, so if one rejects that principle, there is no need to deny the existence of duties not to bring things about. 23

But if all of this is true, why is the defendant who succeeds not more blameworthy than if they fail? After all, the defendant who ‘succeeds’ has committed a more serious wrong (killing) than the defendant who ‘fails’ (risking death), 24 and intending or being reckless as to a more serious wrongs is, ceteris paribus , more blameworthy than intending or being reckless as to a less serious wrongs. Here Simester argues that although the defendant who kills is culpable for more than the defendant who fails, they are not more culpable, i.e., their degree of culpability is not greater. Why is this? Because the defendant demonstrated an equally defective engagement with reason at the time they acted, whether or not they succeed. They fully understood the reasons against killing the victim, and had no justification for trying to kill the victim, but went ahead anyway, showing a gross disregard for the victim’s interests. Whether the defendant succeeds or fails, their defective engagement with reason is the same, and it is that defective engagement which determines their degree of blameworthiness. So the defendant’s beliefs, motivations, attitudes, and reasons for trying to kill the victim are the same whether the victim dies or not. Because the defendant’s degree of blameworthiness is determined by their defective engagement with reason, their degree of blameworthiness is unaffected, whether or not the victim dies. So although it is true that a defendant who intends a more serious wrong or is reckless as to a more serious wrong (e.g., killing), is, ceteris paribus , more blameworthy than a defendant who intends a less serious wrong (e.g., property damage), a defendant who intends to bring about an outcome is just as blameworthy whether or not the outcome occurs, despite the outcome constituting a more serious wrong than the mere attempt to bring it about.

This all suggests that the defendant’s level of punishment should be unaffected by the outcomes of their actions. But this is subject to one further qualification. Although it is true that the murderer and attempted murderer are equally blameworthy, it may be that the amount of blame and punishment we direct at the defendant can be affected by factors other than the defendant’s blameworthiness. In criminal law, the defendant’s attempts to conceal evidence of the offence, or to wrongfully blame another person for the offence, can justify a more serious sentence for the crime. Similarly, remorse can be a mitigating factor. 25 Simester does not pursue the question of whether outcomes might justify more blame or punishment, despite being just as blameworthy as attempts and endangerments. 26 It is always open to those who deny the existence of outcome luck but wish to vindicate the common practice of harsher penalties for outcomes to argue that such treatment is justified on grounds other than the defendant’s blameworthiness. I will leave this question to one side, and focus instead on the question of whether the defendant’s degree of blameworthiness can turn on outcomes.

The gist of Simester’s argument for the equal blameworthiness of the defendant, whether or not they bring about a prohibited outcome, is the engagement theory of culpability. According to the theory the defendant’s blameworthiness is fixed at the time of their engagement with reason in acting, and depends exclusively on the way in which that engagement was defective. To bolster the case for the engagement theory of culpability, Simester relies on two arguments: (i) that the basis for praise (rather than blame) is similarly fixed at the time of acting; and (ii) the fact that the doctrine of concurrence in criminal law requires the mens rea for a result crime to coincide with the conduct element of the actus reus , not the outcome element. Let us consider these two arguments.

That the degree of praise a person deserves is fixed at the time they act, and not affected by outcomes is defended through three examples. 27 In the first:

(1)Suppose that, in a bid to cheer him up, Jane sends Keith some roses. Unfortunately, through no fault of Jane’s, the florist delivers the flowers to the wrong address. On the account offered here, Jane deserves just as much praise for trying to cheer Keith up as she would for having succeeded. Her efforts reflect equally morally well upon her: ‘it’s the thought [behind the action] that counts.’ Analogous to cases deserving blame, the admirable motivation behind her action is crystallized at the point of her behaviour.

However, there is a possible ambiguity in this example. In saying that Jane deserves as much praise as she would have deserved had she ‘succeeded’, is it that:

Jane deserves just as much praise for sending the flowers as she would have deserved had the flowers been successfully delivered by the florist to Keith; or

that she deserves just as much praise for sending the flowers as she would have deserved had she succeeded in actually cheering Keith up.

In case (a), it is true that Jane is just as deserving of praise, because in sending the flowers to Keith she tried to cheer him up, and whether they were delivered or not she still acted to try to cheer him up. Her attempt, and the credit for that attempt, is not affected by it having miscarried through no fault of her own. It is still an attempt. But it is not at all clear that she deserves as much praise for trying to cheer Keith up as she would have deserved for actually cheering him up. The sense that she does deserve the same amount of praise seems to gain some support from the possibility that what is in issue is (a) rather than (b). An outcome luck affirmer can allow that in case (a) Jane is equally praiseworthy, without agreeing that in case (b) she is equally praiseworthy. After all, had Jane actually succeeded in cheering Keith up, there would be more to praise than merely the attempt to do so.

In the second case:

(2)… Diane supports a charitable endeavour by gifting a painting that she thinks is worth $5,000. Unexpectedly, the painting proves to be much more valuable, facilitating additional charitable activities. Diane may take the ‘credit’ for those additional benefits, in as much as they lie, ascriptively, at her door. But they shine no favourable light upon her moral virtues, and they do not increase the degree of her praiseworthiness.

This is an interesting case, and brings out a distinction between two different varieties of outcome luck—what might be called (i) ‘constructive’ outcome luck; and (ii) ‘advertent’ outcome luck. 28 In the case of blame, constructive outcome luck maintains that if one culpably commits a wrong, and a further bad outcome ensues, then in an appropriate situation one is liable for the outcome as well as the original wrong. Not that every undesirable outcome is attributable to the wrongdoer. To be liable for the outcome there must be some appropriate link between the wrong and the outcome, for instance that the outcome was (part of) the justification for the first action being wrong. 29 So it might be said that part of the justification for the wrongfulness of causing very serious injury, quite apart from the pain and harm it causes the victim, is that it creates a risk of death. In which case holding someone liable for homicide when they simply intended to cause very serious injury but the victim died is, in principle, defensible, even if they did not foresee the risk of death; and punishing them more severely for the homicide is also defensible, since they have committed a more serious wrong. 30 On the other hand, the focus of advertent outcome luck is on the question of whether a defendant who intends to bring about a result or who is reckless as to bringing it about is more blameworthy if the result actually occurs. Example (2) bears on constructive moral luck, but not on advertent luck. In example (2) Diane did not foresee the possibility that the painting would be more valuable (—its greater value is ‘unexpected’). So it is not equivalent to blaming cases where the defendant intends a harm or recklessly foresees the risk of harm. And even affirmers of constructive outcome luck might question whether (2) is strictly parallel to cases of linked outcomes. It’s not clear, for instance, that part of the rationale for what makes the gift of a painting a desirable act is the possibility that it may turn out to be more valuable than it is believed to be.

At the very least example (2) is not equivalent to cases where the defendant acts intending to cause (or being aware that they are taking an unreasonable risk of causing) a prohibited outcome, i.e., cases of advertent outcome luck. And it is this variety of outcome luck that is the focus of my concern in this paper. An example that would parallel advertent outcome luck is the following:

(2*) Diane supports a charitable endeavour by gifting a painting that is valued at $5,000. She also believes, however, that it may be worth $50,000 due to an expert’s (disputed) attribution of the canvas to a more significant artist. The painting in fact sells for $50,000 due to the attribution.

If the painting sells for $50,000, it does seem that Diane deserves more praise than if it sells for $5,000, since she reasonably believed that it might turn out to be much more valuable. 31 She gave it knowing that it would do some good, but believing it might do even more, and as a result of the sale the charitable endeavors are much better served by the additional money. 32

A different case again might also be cited by the affirmers of moral luck:

(2**) Diane supports a charitable endeavour by gifting a painting that she thinks is worth $50,000. Unexpectedly, the painting proves to be a fake, and is worthless.

Here the gift giving does of course still reflect well on Diane, and is praiseworthy, but it would seem odd to praise Diane just as much as if the painting had turned out to be genuine. Despite her good intentions, things have not turned out well, and it seems reasonable to mark that in the degree of praise that Diane receives.

Simester’s third example is the following:

(3)… David visits his sick grandmother and gives her pills that he thinks will kill her, hoping thereby to accelerate his inheritance. As it happens, David has mixed up the pills, and the ones he gives to his grandmother have the unforeseen result of curing her instead. David has done two actions, one wrong (attempted murder) and one right (curing his grandmother). But the degree of his blame- or praise-worthiness is, once again, determined by his motivation for administering the pills. He chose to do so in order, unjustifiably, to kill. His actions disclose a moral vice. They reflect badly upon him regardless of the outcome.

Here it can be agreed that David deserves to be blamed for trying to kill his grandmother, and does not deserve any credit for her cure. It can of course be said that the cure is irrelevant because it was unforeseen by David, and so the issue of advertent outcome luck does not arise on these facts. But the example can be modified to bring out the question of the relevance of outcomes:

(3*) David visits his sick grandmother and gives her pills that he believes will either kill her or cure her, though he does not know which effect it will have. He hopes it will kill her. Luckily for the grandmother it in fact cures her.

Here David does foresee the risk of a cure (as well as the risk of death). Yet the cure does not go to his credit, or mitigate the seriousness of his attempt to kill. 33 What matters to his culpability is that he gave the pills in the hope that he would kill. Because he did not wish for the cure it does not redound to his credit, even though he foresaw it as a possibility. But none of this establishes that if his grandmother had died David would not be more blameworthy for having actually killed her, rather than for simply trying to kill her. Instead, the example bears on a separate issue. It helps to show that outcomes are, on their own, neither necessary nor sufficient for culpability. Culpability is established by the defendant’s defective engagement with reason in acting. That is why attempts and endangerments can be appropriately blamed and criminalized. The defendant’s defective engagement with reason is both necessary and sufficient for culpability. 34 The contribution of outcomes to culpability (according to outcome luck affirmers) is to aggravate the defendant’s blameworthiness, not to establish it. 35

So the three examples do not establish that praise is not dependent on outcomes. The (advertent) moral luck affirmer can happily accept the equivalence of praise and blame, but on the basis that the degree of praise that an agent deserves can turn on outcomes in addition to motives and beliefs. 36 What then of the argument that the criminal law doctrine of concurrence supports the idea that the defendant’s degree of culpability is fixed at the time of acting, and is unaffected by the actual outcome of their actions? As Simester points out, the doctrine of concurrence generally requires the defendant to have had the requisite mens rea for an offence at the time they acted, and it is irrelevant whether in the interim between acting and the outcome occurring the defendant ceases to have the mens rea . 37 So if the defendant puts a slow-acting poison in the victim’s drink, it is irrelevant that the defendant repents of the attempt before the victim dies. This, it is said, reflects the engagement theory of culpability, i.e., that blameworthiness is fixed at the moment that the defendant acts, and any change of heart or attitude on the part of the defendant does not affect this. 38 However, the moral luck affirmer need not deny the need for concurrence at the time of acting, nor deny the irrelevance of a change of heart between action and outcome. Proponents of outcome luck argue that if the defendant acted in order to kill or foreseeing an unreasonable risk of death, then the defendant is more blameworthy if the death occurs than if it does not. They are not arguing about the relevance of an interim change of view by the defendant.

Are there additional grounds for favoring the view that blameworthiness is fixed at the time of acting? In an earlier co-authored article, on which the chapter in Fundamentals of Criminal Law is based, two additional arguments were raised. 39 I am not sure if Simester still agrees with these arguments, but it is worth briefly considering them. The first argument is by way of an example created by Alexander and Ferzan, called the ‘Satanic Cult’: 40

The Satanic Cult: Members of a gang kidnap someone. They strap him to a chair behind a partition, with the barrel of a rifle running through a small hole and pointing at the kidnapped victim’s heart. The rifle holds twenty rounds, and the gang loads it with nineteen blanks and one live shell. No one has any idea which shell is the live one. Twenty gang initiates who want to become full-fledged gang members are required as a condition of membership to pull the rifle’s trigger once. (The initiates are unknown to one another and are not in any way acting in concert.) Each initiate pulls the trigger, and at the conclusion of the rite, the victim is found to have been killed. No one can tell which initiate fired the round that killed him.

It is argued that all of the initiates are equally blameworthy:

Each person knew there was a chance that he might kill an innocent victim and chose to take that risk to join the cult. Each has shown the same disrespect for the victim’s life. … The one who pulled the trigger that fired the live round, whoever it was, is no more culpable than the other nineteen.

One limitation of this example lies in the fact that, contrary to Alexander and Ferzan’s assertion, the initiates are acting in concert, despite not knowing each other. They have all agreed to participate in an enterprise where it is certain that (barring something unforeseeable) the victim will be killed, and where each has a one-in-twenty chance of actually being the killer. The death is the inevitable product of the enterprise, although it is not clear at whose hands it will occur. Here it seems quite reasonable to say that they are all morally responsible for the victim’s death, because they all lent their support to the enterprise by participating in it, knowing its nature and outcome. There is a separate sense in which the initiates are equally culpable. We are told that we do not know who the actual killer is. As a matter of the ordinary rules on causation, then, we cannot say which initiate was the immediate cause of death. All we know is that all twenty willingly took the same risk of killing the victim. So it’s also true that each initiate is equally individually blameworthy for deliberating imposing the risk of death on the victim. Barring any information on which initiate was the actual killer, it is at least true that they are equally blameworthy for deliberately imposing the risk. The example of the Satanic Cult, then, does not establish that blameworthiness is fixed at the time of culpably acting, irrespective of how things turn out. A moral luck affirmer can plausibly explain the sense that all twenty of the initiates are equally blameworthy, despite only one initiate having fired the lethal bullet.

Another argument advanced in the earlier article builds upon Nagel’s observations about the significance of moral luck: 41

We are unable to view ourselves simply as portions of the world, and from inside we have a rough idea of the boundary between what is us and what is not, what we do and what happens to us, what is our personality and what is an accidental handicap. We apply the same essentially internal conception of the self to others. About ourselves we feel pride, shame, guilt, remorse—and agent-regret. We do not regard our actions and our characters merely as fortunate or unfortunate episodes—though they may also be that. We cannot simply take an external evaluative view of ourselves—of what we most essentially are and what we do. And this remains true even when we have seen that we are not responsible for our own existence, or our nature, or the choices we have to make, or the circumstances that give our acts the consequences they have. Those acts remain ours and we remain ourselves, despite the persuasiveness of the reasons that seem to argue us out of existence. 42

Commenting on Nagel, it is suggested:

On [the engagement] view, passing ducks and errant gusts of wind cannot alter the degree to which we are blameworthy. Only our practical reasoning can do that. Nor is this an ad hoc restriction. Rather, it is the natural thought to have for beings who endorse an ‘essentially internal’ conception of themselves. For if anything belongs on our side of the divide between ourselves and the external world, it is surely our engagement with the reasons that bear on what we do. Grounding our blameworthiness in that engagement is compatible with—indeed, it is supported by—the self-conception we find inescapable. 43

But I do not think that Nagel’s observations about the ‘essentially internal conception of the self’ count against the relevance of outcome luck. Nagel is not articulating a Cartesian view of the self—where the mind and the external world are two separate substances, and we are essentially minds, although we have effects on the external world. Rather it is a Kantian view of the world, where there are two points of view from which we can conceive of the world: the external and the internal. We can quite properly conceive of ourselves as parts of the physical world, subject to the influences of cause and effect, and determined by those influences. But we also conceive of ourselves as agents , as centers of consciousness that are active in deciding what to do on the basis of reasons, and are responsible for what we do and what we bring about. The quandary lies in reconciling these two points of view. 44 Nagel would agree that responsibility and culpability depend on the agent perspective, but that does not mean that our degree of blameworthiness only depends on our engagement with reason at the time of acting. Some of the events that occur in the world belong to us because we have brought them about. Nagel’s view is neutral about whether or not those events make us more blameworthy or not.

Ultimately, then, the key thought behind the engagement theory of culpability is this. Because our culpability depends upon our defective engagement with reason when we act, nothing that occurs afterwards can alter the degree to which our engagement was defective, and so nothing can alter our degree of blameworthiness. So culpability does not simply depend upon our defective engagement with reason when we act, it is fixed by that engagement. Outcome luck affirmers are misled by the fact that the defendant who kills has done something worse (the wrong of killing) into thinking that the defendant is more blameworthy than if they had only committed the wrong of trying to kill. While it is a matter of luck whether or not the defendant’s actions result in death, the defendant’s engagement with reason is identical, and so the gravity of the wrong does not affect their culpability.

What (if anything) can moral luck affirmers say in response to this line of argument? A tempting thought might be the following. Simester allows that recklessly endangering life and reckless killing are both wrongs, i.e., they are both breaches of duty. Could one argue that what makes the reckless killer more blameworthy than the defendant who just recklessly endangers life is that the killer has committed an additional wrong to the endangerer? The killer both endangered life and ended life while the endangerer only risked death. They have both committed the same wrong (risking death), but the killer has committed an additional wrong (killing). It is, ceteris paribus , more blameworthy to commit an additional wrong, so the killer is more blameworthy for their actions than the endangerer. In summary:

D1 has culpably committed the wrong of recklessly endangering life;

D2 has culpably committed the wrong of recklessly endangering life and has also culpably committed the wrong of reckless killing;

So (c) D2 is more culpable than D1.

The weakness in this argument is that on these specific facts the two wrongs of D1 are not independent of each other. Of course, if D1 both recklessly killed V1 and recklessly endangered the life of V2, they would be more culpable than D2 who only recklessly endangered the life of V2 (assuming D1’s and D2’s motivations, beliefs, and attitudes were the same). But when D1 recklessly kills V1, their reckless endangerment of V1’s life is what might be called a ‘nested’ wrong. It involves exactly the same action, exactly the same victim, and exactly the same engagement with reason. The only difference is the outcome. To regard the killing as an additional wrong to endangerment would be a form of double-counting. Just as we do not say that an intentional killer is additionally blameworthy for the wrong of causing serious injury to V (even though death is a serious injury), and for the wrong of injuring V, and for the wrong of applying unjustified force to V, etc., so we do not say that the D2 who recklessly kills V is additionally blameworthy for the wrong of recklessly endangering V. 45

A different line of thought is this. It is a curiosity of the engagement theory of culpability that ex ante , in contemplating taking an unjustified risk of causing death, the defendant can think: ‘At least I won’t be any more blameworthy if the death happens to occur, than I am for creating the risk of death’. Despite the fact that if the risk materializes the defendant will be culpable for causing death, and not just risking it, the death will make no difference to their blameworthiness. So the defendant can console themselves that although they are taking an unjustified risk, and that what makes the risk unjustified is the possibility of causing death, they won’t be more to blame if the death occurs. The fact that killing is a more serious wrong than endangering life does not alter the degree of the defendant’s culpability. If their luck holds there will be no death, and if not, they will not be any more blameworthy for it. They should not take the risk, of course, but if they decide to do so, then how things turn out will not affect how blameworthy they are. This seems an odd thought: that the defendant can foresee that they may bring about something worse, and be culpable for doing so, but be no more blameworthy for it.

It also seems that the defendant can take comfort from the fact that they will have no reason to feel guiltier if the death occurs, nor more remorseful for killing than for taking an unjustified risk of killing. The defendant is no more blameworthy for the outcome having occurred, and so there are no rational grounds for being guiltier or more remorseful. The defendant who kills can rationally experience the additional emotion of agent-regret for the death, a wish that they had not been the agent of the killing, i.e., a wish that the killing was not something for which they were responsible, but this is different to guilt or remorse, and would be an appropriate response to the death even if they were faultless in causing it. 46

A rough attempt to capture the preceding thoughts might be the following:

D is under a duty not to ϕ;

D is also under a duty not to bring about X;

The reason that D is under a duty not to ϕ is that ϕ-ing will create an unreasonable risk of X occurring, and the risk of X occurring is the justification for the duty not to ϕ;

Bringing about X is a more serious wrong than ϕ-ing;

D is aware of (1)–(4), but D intentionally ϕ’s nonetheless;

D has no justification or excuse for ϕ-ing;

If D brings about X by intentionally ϕ-ing, D will be ascriptively and morally responsible for X;

So if X occurs D will be culpable for X occurring;

In ϕ-ing intentionally, D accepts the risk of culpably bringing X about, i.e., D is aware that there is an unreasonable risk of X occurring, but is willing to run that risk;

So D is more blameworthy if X occurs because in ϕ-ing D willingly accepted and ran the risk of committing a more serious wrong

The thought behind this line of argument is that it is D who puts themselves in jeopardy by ϕ-ing. D knowingly and willingly runs the risk of culpably committing a more serious wrong (X). By ϕ-ing, D makes themselves hostage to fortune, i.e., to how things turn out, and to the greater blameworthiness that will go with it. In a sense D’s culpability is ‘locked in’ or ‘fixed’ at the time of ϕ-ing, but in a way that makes it contingent on how things turn out. The additional blameworthiness for bringing about X is not something that unexpectedly or unforeseeably befalls D, but something that D has chosen to accept in taking the risk. So it is not that D’s blameworthiness is simply subject to a roll of the dice, and D is a mere spectator as the dice fall; it is D who rolls the dice, knowing what the stakes are, and subjects themselves to the outcome of the roll.

This argument highlights a further distinction within the outcome luck debate. Up till now I have treated intention and recklessness as on a par, with outcomes being equally relevant or irrelevant to both. But it is of course possible that blameworthiness is affected by outcomes in one case and not the other, or affected in a different way. Intention and recklessness do seem intuitively different at least to this extent: in the case of attempts, the question tends to be whether the attempter is any less blameworthy than those who succeed, whereas in the case of endangerments, the question tends to be whether those who bring about the outcome are more blameworthy than those who merely run an unjustified risk. In the case of attempts, we are generally secure in our judgments of the culpability of the killer, and less sure that those who try to kill are any less culpable. In the case of recklessness, we are secure in our judgments of the culpability of taking an unjustified risk, and less clear whether the risk materializing makes any difference to culpability.

The argument outlined above is directly applicable to recklessness rather than attempts. It seeks to establish that D is more blameworthy when they are aware that they are taking an unjustified risk and that risk materializes. Even so, it would be rejected by those who deny the existence of duties not to kill, or harm, or damage, and claim that there are only duties not to intentionally (or recklessly, or—within the defendant’s capabilities—negligently) kill, harm, or damage (i.e., those who reject premise [2]). But as noted earlier, such denials are often predicated on the idea that we cannot have duties to succeed, only duties to try, since we can control our trying, but not our succeeding. If one rejects the (total) control principle, one can acknowledge the existence of duties to succeed. And of course one can always avoid culpability for breaching a duty to succeed by simply not attempting to breach it or unreasonably taking the risk of breaching it.

It is also possible to simply reject conclusion (10). It can be maintained that culpability depends exclusively on one’s engagement with reason at the time of acting. This is the moment when one makes oneself culpable, by acting for morally unacceptable reasons. 47 The willingness to run the risk of a serious wrong is what makes the defendant culpable, not whether that risk in fact materializes. The challenge for such views is to make sense of the ex ante thoughts of a defendant who realizes the risk of causing a more serious wrong, yet believes that its occurrence will make no difference to their degree of blameworthiness in acting.

What of attempts? The argument outlined above would need amendment to accommodate attempts. For instance, it is not simply, as premise (5) says, that D ϕ’s in the awareness that X may occur as a result. Instead, D ϕ’s in order to bring X about. If D ϕ’s in order to bring X about, then D is breaching their duty not to try to bring about X (in addition to their duty not to take an unreasonable risk of ϕ occurring). Furthermore, it could be argued that the duty not to try to bring about X is just as stringent as the duty not to X, and thus that the wrong of attempting to bring about X is just as bad as the wrong of bringing about X, contrary to (4):

(4) Bringing about X constitutes a more serious wrong than ϕ-ing;

Unlike recklessness, where the stringency of the duty not to ϕ is (other things being equal) relative to the risk of ϕ-ing bringing about X, the duty not to try to X (by doing ϕ) is just as stringent as the duty not to X, regardless of the risk of ϕ-ing resulting in X. I should not try to kill, even if my chances of success are one in a hundred, and the stringency of that duty is unaffected by the chances of success. Hence attempting to kill is just as serious a wrong as killing, and killers and attempters are equally blameworthy. There is something to this argument, and it certainly seems true that our duty not to attempt to kill is just as stringent as our duty not to kill. It does not necessarily follow, however, that the breach of the duty not to try to kill is equally serious as the breach of the duty not to kill. The wrong of killing is worse than the wrong of attempting to kill because in the first case the victim is dead, whereas in the second the victim is still alive. 48 Still, given that the defendant’s aim is to kill, and it is not simply that they see death as a risk arising from their pursuit of another aim, it might be argued that the defendant should be assessed on the basis of what they would have brought about if they had succeeded, even if in fact they failed. If that is so, then the relevance of outcome luck is different for attempters than it is for endangerers. But unless an argument of this kind is available, there is a case for attempts being less culpable than killing, because the wrong of attempting to kill is less serious than the wrong of killing.

The preceding argument in favor of outcome luck is quite limited. It applies only to what I earlier called “advertent outcome luck”, not “constructive outcome luck”. And it applies most clearly to recklessness, rather than intention. It is based on the defendant’s decision to ϕ, thereby willingly accepting the risk of X, and knowing that causing X is a more serious wrong than ϕ-ing. Nonetheless, the position is compatible with the general picture of culpability developed by Simester, and could be adopted without doing any violence to the rest of his account.

In this article I have not touched on every issue raised by Simester’s perceptive discussion of moral luck. I have not discussed his additional arguments for why the criminal law should mark the difference between attempted and complete crimes, in terms of ‘fair labelling’ for the benefit of defendants, victims, and the general community. 49 Nor have I considered his case for why, despite being equally culpable under the engagement theory, reckless endangerment is generally not criminal, whereas attempts are. Simester argues that it is because of concerns about the limits of criminalization that recklessly endangering interests is generally not criminal, and that requiring actual injury or damage is a rough proxy for the seriousness of the risk taken by the defendant. 50 Nor have I needed to consider his argument that the engagement view of culpability is compatible with circumstantial and constitutive luck. 51 Outcome luck affirmers are generally content with circumstantial luck, i.e., with the view that we can be judged for the situations we had to confront, and how we handled them. If we handle them badly, that is to our discredit, though sometimes we can be partly or wholly excused for doing so. I am less sanguine about the challenge of constitutive luck. 52 As most theorists acknowledge, it is unrealistic to suppose that we have sufficient control over our characters to be responsible for them. 53 Yet we are still blamed for the choices we make that are guided by our characters. This raises the concern that if we are not sufficiently responsible for our characters, then ‘blame’ cannot be grounded on the idea that we could (and should) have developed a better character. We are just blameworthy for choices that our poor characters lead us to make, even though we have very limited control over our characters. This implies that blaming is a much shallower concept than it is often thought to be. To blame is simply to hold someone to account for their poor choices.

All of these are very interesting issues, but I have chosen instead to focus on the most significant and striking claims that Simeseter makes about outcome luck. As I said at the beginning, Fundamentals of Criminal Liability forces the reader to think again about familiar topics in criminal law theory. In carving out a position that both accepts outcome crimes but rejects greater blameworthiness for them, Simester advances a novel and thought-provoking argument that is informed by his broader account of criminal culpability. Although I have argued that an outcome luck affirmer has resources to resist the arguments for equal blameworthiness, this does not disturb the case for holding defendants culpable for the results of their actions, where those results constitute wrongs in their own right.

Hereafter FoCL .

My focus throughout this article is on ‘complete’ attempts, i.e., those where the defendant has fully carried out their plan to bring about an outcome; and similarly on those cases of recklessness where the defendant has actually taken the unjustified risk of bringing about an outcome.

The locus classicus is T. Nagel’s paper ‘Moral Luck’ in his Mortal Questions (1979). In this discussion I disregard Nagel’s fourth category of moral luck—luck in how our choices are determined by antecedent circumstances (35)—which relates to the problem of the freedom of the will.

See recent surveys in D. Enoch, Moral Luck in The International Encyclopedia of Ethics (H Lafollette ed., 2013) and D. Nelkin, Moral Luck in The Stanford Encyclopedia of Philosophy (Edward N Zalta ed., 2019 ed.).

E.g., A. Ashworth, Taking the Consequences in Action and Value in Criminal Law (J. Gardner, J. Horder and S. Shute eds., 1993) and L Alexander & K Ferzan , Crime and Culpability (2009).

E.g., R. A. Duff , Criminal Attempts , chapter 12 (1996); J. Gardner , Offences and Defences , chapter 11 (2007) and M. Moore , Placing Blame chapter 5 (2010).

E.g., FoCL §§ 1.4, 2.1, 11.1.1. (This includes offences that are mala prohibita , not merely those that are mala in se : see FoCL § 11.1.1.).

See FoCL § 11.1.1.

Id. § 14.2.

Id. §§ 1.3, 4.1.

Id. § 1.2, fn 30; 11.0 fn 2.

Id. §§ 11.0, 11.3.1.

Id. § 11.0.

Understanding recklessness to require some advertence to a risk, whereas negligence does not. See FoCL chapters 11 and 12.

Nagel, supra note 3, 25. This is not true of Alexander and Ferzan, however: Crime and Culpability , ch 5. Instead, they regard the case for the relevance of outcomes not to have been established, and that outcomes give rise to insuperable problems within doctrines such as causation.

FoCL § 14.1.

Moore , supra note 6, 211–18.

For more detail see FoCL § 14.3.

For deeper argument on duties to try and duties to succeed, see J. Gardner, Obligations and Outcomes in the Law of Torts in Torts and Other Wrongs (2019).

As Simester readily acknowledges, e.g., §§ 14.0, 14.2.1, 14.3.

E.g., Sentencing Council of England and Wales: General Guidelines: Overarching Principles at www.sentencingcouncil.org.uk .

FoCL §§ 14.2 fn 13.

All found in FoCL § 14.2.4.

These are not two mutually exclusive categories. One would expect constructive luck affirmers to also endorse advertent moral luck. But advertent luck affirmers need not endorse constructive outcome luck.

Simester explores an idea along these lines for constructive liability in FoCL § 13.5. He does not, however, regard constructive liability, when it is justified, as making the defendant more blameworthy .

An affirmer of constructive outcome luck might argue, for example, that this provides a possible rationale for some version of the common law’s felony-murder doctrine. But one could endorse constructive outcome luck while rejecting the felony-murder rule.

Our reactions would be more ambivalent, I think, if Diane’s belief in the greater value of the painting was not reasonable, but based on an unsubstantiated ‘gut feeling’.

Diane’s praiseworthiness of course also depends upon her motives. If she hopes that the painting is worth more and will thereby further the charitable endeavors, she is worthy of more praise. If she hopes the painting is worth more because it will bring her a heftier tax deduction, and is indifferent to the charitable endeavor, then she does not deserve praise regardless of the value of the painting.

I assume that David does ‘intend’ to kill his grandmother: his aim in giving her the pills is to kill her, even though he knows that it might not have this effect.

This is common ground among most criminal law theorists, e.g., Moore , supra note 6, 191–3 and Alexander and Ferzan , supra note 5, 172–3.

Outcomes might be seen then as simply ‘weight-affecting’ reasons ( J. Raz , Practical Reason and Norms 34–5 (2nd ed., 1990)) or as ‘intensifying’ consideration (J. Dancy , Ethics Without Principles 41–2 (2004)).

I will not pursue this issue here, but example (3*) also points to some asymmetries between praise and blame. In (3*), David might still have been blameworthy, even if he had hoped to cure his grandmother, if the risk of death was an unreasonable risk to take in the circumstances (and indeed, even if the pills turned out to cure her). But he would be more blameworthy if his grandmother died, than if she was cured.

FoCL § 14.2.4.

Of course, it could be argued that repentance and remorse do affect the appropriate punishment for a crime. But it is more debatable whether they alter the defendant’s blameworthiness , or are simply another factor to be taken into account in addition to the defendant’s blameworthiness.

J. Edwards & A. Simester, Crime, Blameworthiness, and Outcomes , 39 Oxford Journal of Legal Studies 50 (2019).

Alexander and Ferzan supra note 5, 175–6.

Edwards and Simester, supra note 39, 69.

Nagel, supra note 3, 37.

Edwards and Simester, supra note 39, 70 (footnote omitted).

To which Nagel confesses he (like everyone else) has no satisfactory answer: supra note 3, 36–8.

This response is still applicable even if one regards the reckless endangerment as applying to many Vs, not just the one who died (V1). D1 and D2 both endanger the same number of possible victims (V1–Vn). If D2 kills V1, then there are still the same number of wrongs, although one of D2’s wrongs is the killing of V1. D2’s endangerment of V1 is a wrong nested in the killing, and thus does not give rise to extra blameworthiness. The original argument is not that D2 is more culpable because killing V1 is a more serious wrong, but that it is an additional wrong to the endangerment of V1. Thanks to Miri Gur-Arye for raising this question.

On agent-regret see B. Williams , Moral Luck 27–32 (1981); see also Duff , supra note 6, 339–42.

This is the gist of Simester’s view and also of Alexander and Ferzan’s account: see Crime and Culpability , chapters 1–5.

This is not to imply that killing is always worse than inflicting non-fatal injuries. Some non-fatal injuries may leave victims in such constant agony and deprivation that they no longer feel their lives are worth living (see, e.g., the facts in Wallace [2018] EWCA Crim 690). If being in such a state is worse than death, then some breaches of the duty not to harm may be worse than some breaches of the duty not to kill.

FoCL § 14.3.

Id. § 14.3.1.

Id. § 14.4.

Id. § 14.4.1.

Though many, like Aristotle, take the other view: Nicomachean Ethics , III.5.

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Morality In Socrates 'The Ring Of Gyges'

If the opportunity arose, where no consequences were given for someone’s actions, do you think that individual will still commit an unfavorable action such as killing for his own personal need? In “The Ring of Gyges” the disposition of justice is called into question. As humans continue to live we must contemplate the true driving force for our morality. A discussion between Socrates and Glaucon is one main focal point into explaining the differences in how humans truly established their morality. Glaucon believes humans are restrained by consequences and human’s happiness comes from being an unjust person rather than Socrates’ belief of being just truly leads to happiness.

Karma In Beauty And The Beast

Beauty and the Beast shows many great examples of karma playing out. In the beginning, the Beast turned the frail old woman away because of her looks, however she turned out to be a beautiful enchantress. If the Beast would have prioritized getting to know who she was personally instead of looking at her appearances, he would not have wound up in the curse that became because of this behavior. It is greater to seek knowledge about a person’s knowings within. What they are educated and skilled in truly exposes who they are as an individual.

Nage Nagel On Moral Luck

Moral luck is a term used by Nagel to describe the external factors beyond our control, which determine our actions upon certain moral decisions we make. Nagel's opinion is that people make moral decisions that may have good or bad intentions, but because of moral luck the outcome may be contrary to what he/she intended. Moral luck can be constitutive, the kind of person that someone is. Some people are born with certain characteristics, which enable them to be more virtuous then others. Others are born with a nasty streak of envy or jealousy, which makes it that much harder for them to make the best moral decisions.

Now The Serpent Elie Wiesel Analysis

Human nature is naturally good but influence compels us to commit deeds we never would have considered. For example, Eve picking the forbidden fruit . Now as I’m sure many know this story. It could be argued that Eve knowingly opened Pandora's box and exiled humans to be less than perfect. But in truth Eve shows humanity was innocent from the very beginning.

Essay On Moral Panic

The Media and The Manufacture of Deviance 800 words, Assessment Weighting 30% Briefly define the concept of ‘moral panic’ Cohen argues the concept of moral panic is a person or group that becomes defined as a threat to society to a person’s social value and their interests. Moral panic is fear that comes from a group or issue that causes panic within society, but it’s believed this fear and reaction is exaggerated and this is felt and reacted to by the public forms of media such as newspapers, articles and live news etc; knife crime and islamophobia. “Implicit in the use of two words moral panic is the suggestion that the threat is to something held sacred by or fundamental to the society” (Thompson, Kenneth 1998) Cohens definition of moral panic is an over exaggerated reaction by groups

Thomas Nagel Moral Luck Summary

In Thomas Nagel’s response to Bernard William’s, Moral Luck, Nagel questions whether our “moral goodness” or “moral badness” is simply a matter of sheer luck. Judging if someone is in fact “good” or “bad” or in other words, the way we are, the circumstances we face and, the way things turn out are indeed caused by luck. In this paper, I will confirm Nagel’s assertions in that the way things turn out, how we respond to given situations, and how one was raised are all a matter of luck in deciding ones moral goodness or badness. Being morally good or bad is just about how we are, and our temperaments. One’s background or upbringing can affect the outcome of one’s judgment, and that judgment is essentially what determines morality.

Impossibility Of Moral Responsibility By Galen Strawson

Lucy Bichakhchyan Introduction to Philosophy Second Short Written Assignment GALEN STRAWSON THE IMPOSSIBILITY OF MORAL RESPONSIBILITY Galen Strawson is a British philosopher, who is famous for his philosophical works on free will, panpsychism, causality, determinism etc. This paper is about his article “The Impossibility of Moral Responsibility”. The title of the article already gives away the stand that Strawson has considering Moral Responsibility..

Moral Code Essay Examples

“The most finite resource for all humans is time.” My father says this to me all the time, and I’m beginning to understand why he says it. So my personal philosophy, at this point in time, is that since time on Earth is limited, one must make that short time meaningful and make the most of that time. This can be done by living life by a moral code, chasing one’s goals, as well as being aware of one’s own deficiencies. Living by a moral code requires that one defines that code.

Summary Of Philippa Foot On Abortion And The Doctrine Of Double Effect

In every day life, we face many situations that require a moral decision. We have to decide what is right and what is wrong? Not always is this an easy task thus, it seems important to analyze how we make our moral decisions. I will start with an analysis of how we make decisions in general

Arguments Against Retributivism

We will first look into the idea of how we treat people as they deserve. According to Rachels, “Moral judgments about what to do frequently depend on considerations about what will happen as a result of our actions.” (Rachels, 1997). People deserve to be treated the same way they treat others. Rachels has also mentioned that people can control their fates by the way they treat others.

Kant's Formula Of Universal Law

Kant and the Lying Promise In “Groundwork for the Metaphysics of Morals”, Kant explores the subject of duty and the binding force of morality. Kant explores the morality of among many cases, this paper being focused particularly on the case of the lying promise. To determine the morality of such action, Kant provides the Formula of Universal Law, which relies on a maxim passing four steps in order to be considered moral.

More about Essay On Moral Luck

Related topics.

• Immanuel Kant
• Deontological ethics
• Categorical imperative