Wednesday, January 25, 2006

Moral luck

David Friedman has an excellent couple of posts on the issue of moral luck up. Stith mentioned this in crimlaw when she noted that people's intuitions are mixed up about whether the lucky drunk driver should be punished the same as the unlucky (and murderous) one.

I wonder if it's useful to think of this in terms of the division that Anglo-American law seems to have settled on for how criminal law is justified in its distribution v severity. Only blameworthy folks get locked up; that's a retributive idea, which seems to rule the intellectual roost on the distribution of who gets punished. Most other crim law processes, however, seem to be governed by ideas closer to consequentialism or proportionality.

So both drunk drivers are subject to potentially equal retributive punishment: they fall in the distribution of wrongdoers, which is retrospective. But it would seem that it is wrong to punish both equally: it would fall afoul of proportionality, which governs how severe punishment should be; or maybe it is better on consequentialist grounds to not overdeter mildly tipsy people by punishing them as severely as manslaughterers, or for some other consequentialist (and therefor prospective) reason.

I don't know. This gets back to what is equal which has become my new Big Question. Should we be comparing behavior, or behavior+consequences? If retribution is in part based on the moral wrong of harming someone else, can't it include a behavior's consequences, and thus distinguish between the two drivers?


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