Nagel on Moral Luck

**This is from guest blogger, Claire S.**

Nagel’s article on Moral Luck evoked many responses in me, which I will share with you all. I am eager to hear your responses.

My first reaction to Nagel’s article concerns determinism and more specifically incompatabilism. If “hard” determinism is true – the view that the truth of determinism means that no agent is ever free – then it seems like all action an agent may take are out of that agent’s control because it is not the case that, given the antecedent causal events, that agent could have acted other than they did. If we want to accept incompatabilism and still talk about moral luck, then it seems like we would have to hold that no one is morally accountable for any actions they take because they were determined to take these actions and could not have acted other than they did. But this seems wrong. For example, even if we hold that hard determinism is true then agent A who murdered someone and agent B who didn’t murder someone were equally determined and constrained to act as they did, yet we still think that agent A is morally responsible for her actions.

Next I want to talk about the legal aspect of Nagel’s article. Nagel asks, why do we punish agent A who successfully murders her husband more severely than agent B who unsuccessfully murders her husband? My answer to this question is firstly that in the legal system we base punishment on the outcome of the situation, so since in the case of agent A a man was murdered and in the case of agent B a man was not murdered, we punish agent A for the murder of her husband. I think the reason this is true of our legal system and of the way we react to the two different cases is because there is a difference in the victim. In the case of agent A a man is a victim of murder and he is gone forever. As restitution for the victim agent A is given a more harsh punishment in order to make up for the loss she caused. Another question that I must ask to this is, would it even be possible or how could we punish people for what might have happened, for what they intended to do, if it did not in fact happen? This goes along with the case of the man in Germany who becomes a Nazi simply by being at the wrong place at the wrong time, and the (say, the exact same) man who leaves Germany just in time to prevent him from becoming a Nazi. How could we punish the man who would have become a Nazi but just wasn’t there at the time to do it? I think it’s fair to only punish the man who did become the Nazi, even if this was just bad luck for him. Even if we did think that it was justified to punish the man who doesn’t become a Nazi, how would our legal system look? It would certainly be more complicated than it is now – and that is bad for lawyers. That is why I think we focus mostly on the outcome and the victim when it comes to the legal system. Lastly, I think perhaps we actually do account for moral luck to some degree in the legal system – for there are plenty of times when circumstantial evidence is included in the case to determine the level of guilt of the person on trial. This circumstantial evidence can be used both for the defense and the prosecution, and I think sometimes it does affect what the verdict ends up being. Can anyone else think of any specific court cases or written laws where circumstances can get you off the hook?

Another reaction I have to Nagel’s article is, so what? Moral luck just is a fact of life, some people are born into worse situations than others and some people are in the wrong place at the wrong time. How could we account for this in the legal system? And I’m not sure we even should account for it (in most cases) – people should still try to make the best decisions they can, given what circumstances they have to deal with, and they still have the ultimate choice in how they should act. A place where I think that actually there should be a difference in punishment (and I’m pretty sure there isn’t) is say, if agent A and agent B are both caught stealing food from the grocery store. Only, agent A is a ten-year-old kid whose parents are drug addicts and don’t provide food for thei child, and agent B is someone with the means to buy the food. It seems like there should be a different level of blameworthiness for the two agents given their circumstances. But again, this is not something that the legal system directly does, I believe both agents would be equally punished.

Now I ask myself and you all, is this fair? No, it probably isn’t fair, but that is just the way things are a lot of the time. It doesn’t seem like we can be “fair” unless we all take an incompatabilist view and say that it applies to everyone than nothing is in their control and no one should be blamed or punished for their actions. But I personally cannot accept the incompatabilist view because what would society look like if we did? There would be no incentive to act morally and there would be no punishment for not acting morally. How do you all feel about it?