Summary/Critical Engagement — Enoch

In Moral Luck and the Law, David Enoch talks about moral luck and legal luck and how they impact the moral blameworthiness of those who commit crimes. In the beginning of his writing, Enoch provides an argument that he wants us to consider throughout the piece:

(1) Someone who attempts to commit a murder and fails is — other things being equal — just as morally blameworthy as someone who succeeds in committing murder.

(2) Criminal punishment should be proportionate to the moral blameworthiness of the offender for having committed the crime.

(3) Therefore, attempted murderers and murderers should be equally punished when all other things are equal. (Enoch, 42).

As we know from the current status of these crimes, attempted murder (depending on degree, etc.) typically only carries with it about half of the prison sentence that actual murder does and is not eligible for the death penalty unlike actual murder, in states where the death penalty is allowed.

What is important to note about this argument is that the first premise makes a moral claim — one about comparative moral blameworthiness. The conclusion makes a legal claim — a normative conclusion about the law. One can argue from the moral to the legal through the second premise, which “bridges the gap” by connecting the moral blameworthiness of premise one to the legal punishment of the conclusion through a proportionality principle (42).

This then brings up the question of moral luck — can you ever be morally blameworthy for factors beyond your control, things that are a matter of “luck”? This is known as the control condition for moral luck (43). Going back to the above argument, what if the attempted murderer had the same intentions as the actual murderer but just did not have as good of an aim (or something interfered with the bullet) as the actual murderer? Just because the attempted murderer was “lucky” in not actually killing someone, should he be less blameworthy and therefore punished less severely?

It does seem, based on our everyday behavior, that we do not blame people for things outside of their control (and conversely, we do not praise people for things outside of their control either). If this is the case, if it was beyond the attempted murderer’s control that he did not successfully kill his intended victim, why should we reduce our blame of him and recognize some type of moral luck when we punish him less than the actual murderer? Yet, this is the way it seems to be set up in our legal system.

Thomas Nagel, a notable philosopher, created a taxonomy of different types of moral luck, something that Enoch shares in this piece: 1) Consequential — where one’s moral status is dependent upon the outcomes of what one does, as in the case of the attempted murderer; 2) Circumstantial — where one’s moral status depends on the circumstances one finds oneself in, as well as the moral tests and opportunities one has, as in the corrupt judges who would take bribes if only granted the opportunity; 3) Constitutive — where one’s moral status is dependent upon the chance character traits and dispositions one is naturally endowed with, as in the case of the people who are naturally disposed to be very empathetic versus those who are not (43–44). We see these three types of moral luck all the time and it seems that they make a relatively strong case for moral luck, although the control condition seems to indicate that there cannot be moral luck, even in these situations (43).

Next, Enoch moves on to review some argumentative moves, from the perspectives of both those who believe in moral luck and those who do not. Enoch himself does not believe in moral luck. Those who argue for moral luck mention things like agent regret (the fact that people feel guilty for being the cause of something that was beyond their control); breaking the control condition through the progression of moral luck or through distinguishing between different versions of the control condition by showing that only certain ones are compatible with certain types of moral luck; focusing on our conception of agency; or imagining a world without moral luck to see if it would make a better world, something that Enoch argues is problematic for several reasons (45).

Those who argue against moral luck typically rely “directly on…the control condition on moral responsibility,” something associated with the 18th century philosopher Immanuel Kant, who emphasized the absolute and was not a consequentialist (46). Others focus on intuitions about fairness — something like: “blameworthiness attributions must be fair, that is, they must not be arbitrary, that is, they are not subject to luck” (46). Another option that Enoch presents is one that creates an analogy to rational luck (46–47). On the other hand, maybe what is subject to luck is not the moral status of the agents themselves, but rather, what our evidence is as to their moral status (47). Further, there are distinctions that can be made between how we evaluate the agent and how we evaluate his/her action or between moral luck and plain luck (since it is almost impossible to deny that some things are simply out of one’s control).

All of this leads Enoch to say that while there is debate about moral luck, there is essentially no doubt about the existence of legal luck — that is, one’s legal responsibilities are determined by things outside of one’s control (48). The question then becomes: should there be legal luck? As Enoch points out, the presence of moral luck does not entail any kind of conclusion about legal luck and equal moral blameworthiness of the attempted murderer and actual murderer does not entail equal punishment under the law (48). The connection between moral blameworthiness and legal punishment, however, can be made through the proportionality principle, which requires equal blameworthiness to be punished with equal punishment, or at least provides an upper bound for the punishment. Enoch writes that two arguments could justify differential punishment between attempts and full/completed offenses: 1) there is moral luck, so the two offenses are not equally morally blameworthy or 2) other considerations that regulate punishment distinguish the two (49).

We do in fact see this in our criminal law today — that consequential luck does matter, such as in cases of strict liability (49). There is also circumstantial legal luck, which Enoch thinks that the law has a blind spot for (50). We also see parallels in tort law, although Enoch thinks that tort law is different and should be considered separately.

So, if we think that legal luck is morally objectionable, then what should we do? Enoch thinks that reforming our legal practices is one option as is abolishing causation from the law and/or replacing murder/attempted murder with “intentionally endangering a life” (50–51).

For the critical portion of this post, I think that Enoch does a great job providing examples and arguments that are compelling when it comes to being critical of moral and legal luck. He is certainly convincing in showing how legal luck is pervasive in our legal system and in illustrating why this is so problematic. His arguments work well in showing how arbitrary blame and punishment really are when they are based on chance or luck. In my opinion, all else being equal, attempted murderers should be held blameworthy in the same way as an actual (successful) murderer. Unless the attempted murderer has a burst of morality and decides not to complete the crime or in some other way demonstrates moral character that is actually what prevents him from completing the crime, it does not seem that he should be seen as any less blameworthy or punished any less than the murderer who was successful in completing the intended murder.

Although I enjoyed the brevity of the piece, I wish that Enoch would have discussed and elaborated a little bit more about the intuitive reasons we might have for differential blame and punishment. Even though this may not be a good or sufficient reason, I think that, when considering consequential moral luck, it is important to consider that actual murder causes more harm than does attempted murder. The actual loss of a life is much worse than just an intended or attempted murder. I understand that intentions matter significantly (the attempted and actual murderer both had the same despicable intentions), but the consequences and harm seem to matter at least a little bit. Also, when it comes to circumstantial moral luck and the example of the corrupt judges, only one of whom actually has the opportunity to accept a bribe, it does seem “unfair” that that other corrupt judges aren’t found blameworthy or punishable just because they have not had the opportunity to take a bribe. But, it also seems just like a limitation of humanity — we cannot truly know people’s hearts or intentions, so we have to wait until someone acts (or attempts to act) upon their intentions in order to find them blameworthy or punish them. I think it would have been helpful if Enoch had acknowledged this as a valid (even if he goes on to debunk it) thought process.

Enoch, David. (2010). Moral Luck and the Law. Philosophy Compass, 5/1 (2010): 42–54. Retrieved October 15, 2020, from https://doi.org/10.1111/j.1747-9991.2009.00265.x.