The Download of the Week is Moral Luck and Liability Lotteries by Guy Sela. Here is the abstract:
Adversaries of Moral Luck (AMLs) are at pains to explain why wrongdoers
are liable to bear burdens (punishment, compensation etc.) which are
related to the harm they cause, because the consequences of what we do
are a matter of luck. One attempt to solve this problem suggests that
wrongdoers who cause more harm are liable to bear a greater burden not
because they are more blameworthy but rather because they get the short
straw in a liability lottery (represented by the apparently
indeterminate causal process). In this paper I argue that this attempt
fails on several grounds. Apart from the fact that it is hard to see
how the implementation of liability lotteries can be motivated and the
fact that such scheme presupposes a political order (whereas the notion
of liability does not seem to presuppose one), detaching liability from
the outcomes of a culpable action undermines whichever justifications
there were for imposing liability in the first place. Moreover, relying
on the determination of the causal process as a good indication of the
wrongdoer’s degree of culpability is mistaken, because the luck brought
about through the causal process is not necessarily the only element
involved in cases of harmful conduct which lies beyond the wrongdoers’
control.
And from the paper:
The underlying assumption of both Lewis' and Waldron's proposals is
that the amount of risk imposed by wrongdoers can serve as a
measurement of the level of culpability that their wrongdoing entails.
To some extent this seems intuitively right. Grossly negligent driving
is more culpable than marginally negligent driving because it bears
greater risk of harm. Hence, both Lewis and Waldron maintain that we
should expose the wrongdoer to the same amount of risk that he imposes
on his victim – the more risky his behavior, the more culpable he is
and, correspondingly, the greater risk of punishment/liability that he
will incur. That seems sound, but how will the risk imposed by the
wrongdoer be measured? Lewis makes several suggestions: (1) It could be
the objective probability of the occurrence of harm; or (2) The
reasonable degree of belief for a hypothetical observer who has all the
possible relevant information regarding the situation; or (3) The
reasonable degree of belief for a hypothetical observer who has all the
information the wrongdoer actually has; or finally (4) The wrongdoer's
actual degree of belief whether reasonable or not. It would be nice not
to have to decide, says Lewis, and suggests that a reenactment of the
wrongful act (or using the act itself instead of reenacting it) will
impose the same level of risk on the wrongdoer irrespective of how we
decide to measure it.
Unfortunately, it does not. Think of the following situation. Abe plans
to kill Ike. For that purpose he buys a gun, learns how to operate it
and carefully plans how he will snare Ike. It so happens that the Big
Brother Police learns about the plan and decides to let Abe carry out
his plan (in order to frame him) while taking measures to protect Ike.
Unbeknownst to Abe, a Big Brother agent enters his house and replaces
the bullets in his gun with identically looking empty cartridges. In
the next morning Abe carries on his plan. He meets Ike in a dark alley
and shoots him at the head from range zero. To Abe's surprise the
bullets don't even injure Ike and seconds later a police force shows up
and apprehends him.
The objective probability of the occurrence of harm in this case was
zero36. This is also the reasonable degree of belief for an observer
who knows the relevant facts (most importantly, the replacement of the
bullets). On the other hand, Abe believed that his chances of killing
Ike were 100%37 and so would believe every rational observer who knows
the same facts as Abe and is unaware of the replacement of the bullets
by the policeman. Now what's the relevant level of risk for determining
Abe's culpability? It seems that the relevant level is 100% as in
option 4 – Abe's actual degree of belief. Abe wanted to kill Ike, took
the measures to do it and, as far as he knew, he was about to succeed
in carrying out his plan. If his moral standing is determined by his
response to moral reasons, he seems to have openly rejected them in
pulling the trigger38. He is no different, in that regard, from his
counterpart Abe1, whose gun is loaded with real bullets and whose shot
kills Ike1. The penal lottery he should be facing is one in which he
will (almost) certainly get a severe punishment. But the penal lottery
he actually faces is one in which he is bound with (almost) certainty
to get the more lenient punishment. His actual chances of killing Ike
(and thus losing the draw and getting a severe punishment) are zero. It
turns out that the actual act does not provide an adequate substitute
to an established penal lottery. Why is that?
The reason is that the wrongdoer's degree of culpability is not
measured by the actual level of risk he imposes on his victim, but
rather by the subjectively perceived level of risk that he imposes
(Lewis' fourth option). An act is more culpable not when it imposes a
greater risk of harm in the actual world but rather when it is done
with the intention of imposing a greater risk of harm (whether or not
it succeeds in carrying out that intention). When the result of the
draw is determined by the outcomes of the act, it reflects the risk
implicit in the act itself and not the risk that is intended by the
agent. It subjects the wrongdoer to a level of risk that is
proportional to his doing but not to the culpability implicit in his
wrongdoing.
Highly recommended. Download it while its hot!