Abstract

http://ssrn.com/abstract=2373298
 


 



If You Ain't in Prison, You Just Got Lucky: Luck, Culpability, and the Retributivist Justification of Punishment


Kenneth Einar Himma


University of Washington - School of Law

December 30, 2013

Jurisprudentia, vol. 1, no. 1 (2014) Forthcoming

Abstract:     
Thomas Nagel argues that the pervasive role that luck plays in conditioning behavior seems inconsistent with ordinary views about moral accountability and culpability. As many criminal justice practices seem to rely on these ordinary views, the pervasiveness of luck also seems inconsistent with the legitimacy of a number of criminal law practices. For example, the claim that people do not have direct control over the consequences of their acts and hence that the consequences of an act are conditioned by luck calls into question the legitimacy of the traditional practice of punishing unsuccessful attempts less severely than successful attempts; if the only difference between a successful and unsuccessful attempt is a matter of luck, then there can be no difference, other things being equal, in culpability between the two. In this essay, I argue that the pervasive role that luck plays in conditioning a person’s acts calls into question the viability of retributivist justifications of punishment, which hold that punishment is justified insofar as deserved. A person is not culpable or deserving of punishment, according to ordinary views, for events beyond her control. But if the factors conditioning an agent’s act are all matters of luck beyond the agent’s control, then she is not deserving of punishment for the act. The pervasiveness of such luck seems inconsistent with retributivism and threatens not only differential punishment for successful and unsuccessful attempts. More significantly, it calls into question the very legitimacy of punishment itself. The problem of luck goes well beyond its implications for the law of attempts.

Number of Pages in PDF File: 68

Keywords: punishment, legitimacy, luck, moral luck, legal luck, retributivism

Accepted Paper Series





Download This Paper

Date posted: December 31, 2013 ; Last revised: January 1, 2014

Suggested Citation

Himma, Kenneth Einar, If You Ain't in Prison, You Just Got Lucky: Luck, Culpability, and the Retributivist Justification of Punishment (December 30, 2013). Jurisprudentia, vol. 1, no. 1 (2014) Forthcoming. Available at SSRN: http://ssrn.com/abstract=2373298

Contact Information

Kenneth Einar Himma (Contact Author)
University of Washington - School of Law ( email )
William Gates Hall
Box 353020
Seattle, WA 98195-3020
United States
206-543-4550 (Phone)
Feedback to SSRN


Paper statistics
Abstract Views: 645
Downloads: 112
Download Rank: 147,095

© 2014 Social Science Electronic Publishing, Inc. All Rights Reserved.  FAQ   Terms of Use   Privacy Policy   Copyright   Contact Us
This page was processed by apollo6 in 0.359 seconds