Luck and the Domain of Distributive Justice

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Empirical Vindication of Moral Luck

In resultant moral luck, blame and punishment seem intuitively to depend on downstream effects of a person’s action that are beyond his or her control. Some skeptics argue that we should override our intuitions about moral luck and reform our practices. Other skeptics attempt to explain away apparent cases of moral luck as epistemic artifacts. I argue, to the contrary, that moral luck is real—that people are genuinely responsible for some things beyond their control. A partially consequentialist theory of responsibility justifies moral luck. But this justification is no mere rationalization of the status quo. Recent experimental and evolutionary work on punishment and learning suggests that the very same reasons that justify moral luck have also shaped the evolution of our luck‐sensitive moral practices.     

THE JUSTICE IN MERCY

It is natural to wonder how mercy is related to justice. I focus in this essay on a more limited question: how should we relate mercy and retributive justice? My suggestion is that attending to our situation as moral agents can help us solve this conundrum. I offer a pessimistic reading of our situation. Because of original sin and related forms of bad moral luck, we have limited control over our attitudes and actions. This has a surprisingly hopeful upshot, since our unfortunate condition makes it appropriate to respond to one another mercifully. I suggest that this response can take two forms. Without collapsing justice into mercy, it is right to make our approach to justice and punishment more merciful and to recognize the fittingness of “erring” on the side of mercy when we are uncertain how to apportion blame.     

Is penal substitution unjust?

Penal substitution in a theological context is the doctrine that God inflicted upon Christ the suffering which we deserved as the punishment for our sins, as a result of which we no longer deserve punishment. Ever since the time of Faustus Socinus, the doctrine has faced formidable, and some would say insuperable, philosophical challenges. Critics of penal substitution frequently assert that God’s punishing Christ in our place would be an injustice on God’s part. For it is an axiom of retributive justice that it is unjust to punish an innocent person. But Christ was an innocent person. Since God is perfectly just, He cannot therefore have punished Christ. Virtually every premiss in this argument is challengeable. Not all penal substitution theories affirm that Christ was punished for our sins. The argument makes unwarranted assumptions about the ontological foundations of moral duty independent of God’s commands. It presupposes without warrant that God is by nature an unqualified negative retributivist. It overlooks the possibility that the prima facie demands of negative retributive justice might be overridden in Christ’s case by weightier moral considerations. And it takes it for granted that Christ was legally innocent, which is denied by the classic doctrine of imputation. It thus fails to show any injustice in God’s punishing Christ in our place.     

Does Han Fei have a conception of justice?

Han Fei’s political theory is widely characterized as eschewing any connection with morality; so, can he have any conception of justice? In this paper, I accept the interpretation of Han Fei jettisoning any moral commitment, but I argue that he gives heed to an understanding of justice. This conception of justice arises naturally from the ordinary human sentiment of resentment for wrongs done and becomes a moral staple in the consciousness of ordinary people. Such a conception of justice has these features: all and only the guilty receive punishment, and the punishments are in some sense proportionate to the crime. Since disregarding this popular conception of justice results in resentment and political instability, Han Fei, without any moral commitment to it, accepts the popular conception of justice on prudential and consequentialist grounds.     

The Coherence of Luck Egalitarianism

One of the foremost egalitarian theories in recent years, luck egalitarianism, has recently been subjected to the charge that it is in fact incoherent. This charge is brought by David Miller who highlights two dimensions of luck egalitarianism: on the one hand a commitment to the justice of certain inequalities arising from responsible choices; on the other a commitment to injustice of brute inequalities. The putative incoherence emerges in cases where the inequalities that justice requires on the basis of individuals' responsible choices also entail brute luck inequalities for which there are the very same grounds of justice to condemn. Here I argue that the charge of incoherence against luck egalitarianism fails. In service of this I clarify the quite specific sense in which luck egalitarianism requires inequalities and demonstrate the coherence of this with its condemnation of other inequalities.     

Plato's Theory of Punishment and Penal Code in the Laws

I argue that the degree to which a criminal should be punished is determined by three elements: a baseline amount that proportionally compensates the victim and an additional penalty that, first, reforms the criminal and, second, deters others from becoming unjust. My interpretation provides a solution to the interpretive puzzle that has most vexed commentators: the alleged tension between Plato's philosophical theory of punishment and the content of his penal code. I defend a two-step solution to the puzzle. First, on my interpretation, because of the broad role that deterrence must play, this alleged tension is—to a degree—merely apparent. Second, the actual tension can be explained by Plato's commitment to the rule of law, given the epistemic limitations of actual people.     

Christianity and Eudaimonia,Luck and Eudaimonism

I argue that Christians have at least two reasons to reject eudaimonism, interpreted as the view that attaining eudaimonia—or happiness—is what fulfills the moral life. First, I contend Christian conceptions of eudaimonia should encompass more than realized moral excellence and its requirements. Second, I claim Christians should construe the love at the heart of their moral life as fully realizable even if it is not evidently reciprocated. Both affirmations contradict eudaimonism by implying that eudaimonia depends on more than fulfilling the moral life—the former by rendering eudaimonia more subject to luck than eudaimonists can allow, the latter by depicting the moral life as less subject to luck than eudaimonists can accept. These affirmations also enable Christians to regard God’s love integral to eudaimonia apart from its role in realizing moral excellence and to deny all inability to attain eudaimonia manifests moral failure.     

Punishing and atoning: a new critique of penal substitution

The doctrine of penal substitution claims that it was good (or required) for God to punish in response to human sin, and that Christ received this punishment in our stead. I argue that this doctrine’s central factual claim—that Christ was punished by God—is mistaken. In order to punish someone, one must at least believe the recipient is responsible for an offense. But God surely did not believe the innocent Christ was responsible for an offense, let alone the offense of human sin. So, the central factual claim is mistaken. In the final section, I show that this critique of penal substitution does not apply to the closely-related Anselmian satisfaction theory.     

War Crimes and Expressive Theories of Punishment: Communication or Denunciation?

In a paper published in 2006, I argued that the best way of defending something like our current practices of punishing war criminals would be to base the justification of this practice on an expressive theory of punishment. I considered two forms that such a justification could take—a ‘denunciatory’ account, on which the purpose of punishment is supposed to communicate a commitment to certain kinds of standard to individuals other than the criminal and a ‘communicative’ account, on which the purpose of the punishment is to communicate with the perpetrator, and argued for a denunciatory account which I developed at some length. In this paper I would like to reconsider the plausibility of a communicative account. One difficulty that such accounts face is that the punishment of war criminals often involves the inflicting of harsh treatment on them by individuals who are members of states other than their own. On a communicative account this is problematic: on such an account—or at least on the version of it proposed by Duff (2000)—it is essential that those who are punish and those who punish them belong to a single community. When this requirement is not satisfied harsh treatment does not constitute punishment. Duff has argued that the problem can be solved by regarding all human beings as members of a single moral community: here I argue that this suggestion is unsatisfactory and propose an alternative. One consequence of my account is that if it is correct there may limitations on the range of kinds of war criminal that can legitimately be punished by international tribunals.     

Luck and Decision

abstract Much recent work on moral responsibility and on distributive justice has addressed the concept of luck. Very little attention has been given to the relation of luck to rationality. How does luck bear on our choices? Can beliefs about luck lead to unwise decisions? These questions have particular relevance for understanding gambling behaviour, and for public policy on gambling. In this paper I argue that no one is reliably lucky, and that projecting luck can undermine rational decision‐making. I give various examples to show the conceptual connection between luck and unpredictability. I present an a posteriori conception of projectibility, and argue that because lucky events are rationally unexpected, regularity statements about luck fail to satisfy the conditions of projectibility. I reject the claim that ‘lucky’ is a dispositional term, and thus projectible, on the ground that a dispositional interpretation leads to contradiction. I then defend my claim that luck is not projectible against three objections. I conclude with some thoughts about rational responses to luck, using gambling as an illustration.     

Distributive Luck

Abstact

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

What Does Society Owe Me If I Am Responsible for Being Worse Off?

Luck egalitarians need to address the question of cost‐responsibility: If an individual is responsible for being worse off than others, then what benefits, if any, is that individual uniquely cost‐responsible for? By applying luck egalitarianism to justice in health I discuss different answers to this question inspired by two different interpretations of luck egalitarianism, namely ‘standard luck egalitarianism’ and ‘all luck egalitarianism’, respectively. Even though I argue that the latter is more plausible than the former, I ultimately suggest and defend a third interpretation of luck egalitarianism, which I label ‘universal luck egalitarianism’. Finally, I adjust my findings to a (all things considered) more plausible currency, namely welfare.     

Justice as Fairness: Luck Egalitarian, Not Rawlsian

I assess G. A. Cohen’s claim, which is central to his luck egalitarian account of distributive justice, that forcing others to pay for people’s expensive indulgence is inegalitarian because it amounts to their exploitation. I argue that the forced subsidy of such indulgence may well be unfair, but any such unfairness fails to ground an egalitarian complaint. I conclude that Cohen’s account of distributive justice has a non-egalitarian as well as an egalitarian aspect. Each impulse arises from an underlying commitment to fairness. Cohen’s account of distributive justice is therefore one of justice as fairness.     

Punishing the innocent — unintentionally

The intentional punishment of the innocent is ordinarily claimed to be a special problem for utilitarian theories of punishment. The unintentional punishment of the innocent is a problem for any theory of punishment which holds that the guilty should be punished. This paper examines the criteria that are relevant to a determination of the appropriate probability of punishment mistakes for a society, and argues that this is the kind of moral problem for which utilitarian judgments, as opposed to considerations of justice, are most appropriate. To illustrate some of the trade‐offs involved, the paper employs some hypothetical data.     

Hegelian restorative justice

In the Philosophy of Right, Hegel claims that crime is a negation of right and punishment is the “negation of the negation.” Punishment, for Hegel, “annuls” the criminal act. Many take it that Hegel endorses a form of retributivism—the theory that criminal offenders should be subject to harsh treatment in response and in proportion to their wrongdoing. Here I argue that restorative criminal justice is consistent with Hegel's remarks on punishment and his overall philosophical system. This is true, in part, because restorative justice integrates Hegel's instructive discussion of confession and forgiveness in the Phenomenology of Spirit. Hegel claims that true moral relationships allow space for persons to confess their moral shortcomings and forgive the shortcomings of others. Restorative criminal justice brings the perpetrators and victims of crime together to offer confessions and forgiveness and to work to heal the various wounds caused by crime. I do not claim that Hegel must be read as advocating restorative justice. While Hegel tells us what punishment does, he does not commit himself to any form of punishment. What I offer here is a rational, progressive reconstruction and extension of Hegel's conception of crime and punishment.     

Luck And Equality: Susan Hurley

I argue that the aim to neutralize the influence of luck on distribution cannot provide a basis for egalitarianism: it can neither specify nor justify an egalitarian distribution. Luck and responsibility can play a role in determining what justice requires to be redistributed, but from this we cannot derive how to distribute: we cannot derive a pattern of distribution from the 'currency' of distributive justice. I argue that the contrary view faces a dilemma, according to whether it understands luck in interpersonal or counterfactual terms.     

Moral Risks in Social Work

ABSTRACT Social workers must often decide whether a child, at possible risk from its parents, should be removed from home. Each year some children, left at home, are abused or killed. If the procedures have been duly followed, is a bad result to be put down to incompetence or to bad luck, and, if to the latter, does that cancel moral responsibility? We examine the claim that the case is one of ‘moral luck’ and argue that the system licences greater risk than is morally justified. This is because it embodies conflicting imperatives of welfare and justice. Anyone who becomes a social worker must face a constant risk to moral integrity [1].     

Get lucky: situationism and circumstantial moral luck

Situationism is, roughly, the thesis that normatively irrelevant environmental factors have a great impact on our behaviour without our being aware of this influence. Surprisingly, there has been little work done on the connection between situationism and moral luck. Given that it is often a matter of luck what situations we find ourselves in, and that we are greatly influenced by the circumstances we face, it seems also to be a matter of luck whether we are blameworthy or praiseworthy for our actions in those circumstances. We argue that such situationist moral luck, as a variety of circumstantial moral luck, exemplifies a distinct and interesting type of moral luck. Further, there is a case to be made that situationist moral luck is perhaps more worrying than some other well-discussed cases of (supposed) moral luck.