Nir Eisikovits, Boston University
The problem of moral luck springs from a discrepancy between our notion of responsibility and the actual manner in which we make moral judgments. We tend to think people are only responsible for what they can control, but we are also inclined to judge them on the basis of what they cannot. The problem was introduced by two seminal articles written by Bernard Williams and Thomas Nagel, and has generated a good deal of interest since. Scholars concerned with the criminal law have found it especially rich. Most lawyers have focused on Nagel’s account of moral luck, perhaps because it is more concerned with external judgments of an agent’s action (which are the kind of judgments the law makes), while Williams focuses on self-evaluation. As a matter of fact legal scholars have focused especially on one aspect of Nagel’s account, namely luck in the outcomes of our actions, or outcome luck.
The paper begins with a short example aimed at bringing out some of the questions involved in the notion of ‘moral luck’ as Nagel understands it. It then proceeds to give an account of the debate concerning moral luck and the criminal law or, more specifically, the debate concerning the role of consequences in the moral assessment of criminal actions and in their punishment. It concludes with a suggestion and a challenge. The suggestion offers a distinction between anger and blame, which I argue can help in clarifying the terms of the debate concerning the significance of outcomes in criminal sentencing. The challenge implies that the present focus of the debate on such outcomes is too narrow: there are other contexts in which fortuity shapes the criminal law. These have, so far, been completely overlooked.