Any discussion of the role of results, oft en coined “moral luck,” raises concerns about free will and determinism. Th is concern leads to one fi nal objection to our position – why do we eschew the relevance of
“moral luck” when “constitutive luck” and “circumstantial luck” can- not be avoided or eradicated? Michael Moore argues that “result luck”
is indistinguishable from “constitutive luck” (luck involving the genetic and experiential fortuities that cause one to have the character that pro- duces potentially harmful conduct) and various types of “circumstantial luck,” such as “planning luck” (luck involving fortuities that may inter- vene to prevent one from forming plans to engage in potentially harm- ful conduct) and “execution luck” (luck involving fortuities that prevent the execution of fi rmly formed intentions to perform potentially harm- ful conduct).30 One may have betrayed a Jewish friend had one lived in Nazi Germany. One may have stolen money had one not inherited it.
One may have struck one’s enemy had a cop not been standing nearby.
And so on.
29 See Robinson and Darley, supra note 3, at 188–189.
30 See Michael S. Moore, Placing Blame: A Th eory of Criminal Law 233–246 (1997).
Moore convincingly argues that in a deterministic world, variables over which the actor had no control exist at every stage, from character to execution. Whether or not one performs a wrongful action is as suf- fused with luck, and is as beyond our control, as whether results actu- ally occur. If we had a diff erent character, which is largely not up to us, then we would not be the type of person who would have the desire or form the intention to do wrong. If we have the desire to do wrong, then events over which we have no control may distract us from forming the intention to satisfy that desire. Once we form the intention, events over which we have no control, ranging from physical to psychopathological, may prevent us from executing that intention.
Th e conclusion that in a deterministic universe, luck, understood in this way, “goes all the way down” is correct as a matter of theoretical rea- son. But, as Moore recognizes, it leads to an unacceptable reductio that those like us who believe results do not matter will be forced to accept.
If causal infl uences over which we have no control undermine respon- sibility, then no one is responsible for anything, and this conclusion is not limited to results. Genuine desert does not exist. Because this con- clusion is morally unacceptable and does not account for the moral and legal world we inhabit, a morally principled line based on luck cannot be drawn. Moore suggests that because we accept the existence of desert for action despite constitutive, planning, and execution luck, we should be willing to accept the existence of desert for results despite result luck.
Moore’s suggestion does not follow, however. Luck may not pro- vide a principled basis to draw the line between moral responsibility for action and moral responsibility for results, but perhaps another principle that does not lead to an unacceptable reductio will. Moore’s critique of the luck argument depends on that argument’s confusion of the distinction between a mechanistic-causal account of behavior and a practical reasoning account. As a good compatibilist, Moore knows that the explanatory causal stories of theoretical reason are not the basis for responsibility and desert. Th ey could not be for just the reasons he gives. Causation is a metaphysically seamless web. In a compatibilist account of the type he endorses – and that two of us also endorse31 – responsibility and desert are moral concepts implicit in practical
31 See Chapter 1.
reason. Compatibilists (and libertarians)32 believe that human beings are capable of rational deliberation, that our deliberations aff ect our actions, and that our actions potentially aff ect the world. For compati- bilists, actors do not need contracausal freedom to deserve praise and blame, or punishment and reward, for their actions. It is suffi cient if they act intentionally, without compulsion, and with a general capacity for rationality. Th e only form of control a responsible actor needs is the general capacity to be guided by reason, a capacity most adults possess in ample measure. Th us, compatibilists have good reason to “draw the line” at human action because only action can be guided by reason, and not because action is free of the causal forces of the universe – of “luck.”
Th e potential for the law to guide people by reason is a good justifi cation for holding people morally responsible for actions but not for results.
For us, as for Moore, there is every reason to distinguish between result
“luck,” on the one hand, and constitutive and circumstantial “luck,” on the other.
Ultimately, our position rests on the assumption that the control we have over our choices – our willings – is immune to luck and is thus qualitatively and morally diff erent from our control or lack thereof over our heredity and environment, the situations in which we fi nd our- selves, and the causal consequences of our choices. No matter our past history, the options we confront, or the causal forces that will combine with those we initiate, what we choose is up to us in a way these other factors are not. It is not just that we have more control over our choices than over our constitution, our circumstances, and what we cause. Our control over our choices is diff erent in kind, not diff erent in degree.
32 Libertarians have another argument for distinguishing between result luck on the one hand and circumstantial and constitutive luck on the other. For them, there is no fact of the matter regarding whether someone would have acted wrongly in diff erent circum- stances. Nor does the fact that one’s character and environment are largely beyond one’s control deprive one of the freedom to choose in accordance with good reasons. For an attempt to deal with constitutive, circumstantial, and result luck by arguing for a distinc- tion between moral worth and moral responsibility and claiming that results matter only for the latter, see John Greco, “Virtue, Luck and the Pyrrhonian Problematic,” 130 Phil.
Stud. 9 (2006). For us, who are concerned with culpability rather than worth or responsi- bility (for outcomes), the line Greco draws occurs at the wrong place. In terms of culpabil- ity, one can be constitutively or circumstantially “unlucky” – one can have unfavorable genes or environment, or one can face more or stronger temptations to wrongdoing than others – but one cannot be “unlucky” with respect to results.
Bad luck before choice and bad luck aft er choice is just bad luck; unlike choice, it cannot aff ect our culpability.33