Two Dimensions of Responsibility in Crime, Tort and Moral Luck

Fordham Law Legal Studies Research Paper No. 1016170

Theoretical Inquiries in Law, Vol. 9, p. 281, 2007

43 Pages Posted: 25 Sep 2007

Abstract

Parallel moral luck problems exist in three different normative domains: criminal law, tort law, and conventional moral thinking. In all three, the normative status of an actor's conduct seems to depend on matters beyond the actor's control. Criminal law has historically imposed greater punishment on the murderer who kills his intended victim than on the identically behaved would-be murderer whose shot fortuitously misses. Tort law imposes liability on the negligent driver who injures someone, but no liability if, through good fortune, the negligence injures no one. And, as Bernard Williams and Thomas Nagel have famously argued, conventional moral thinking often attributes greater blame to an actor for wrongful conduct if that conduct ripens into a terrible event than if it fortuitously causes no harm at all. This Article distinguishes two different dimensions of responsibility and then uses this distinction to explain the problem in all three areas. One dimension is called "fault-expressing responsibility": it is a matter of the degree to which one's acts constitute conduct that can express one's character or faultiness. A second dimension of responsibility is called "agency-linking responsibility." In this dimension, the degree to which a person is responsible for some event is dependent upon whether that event is an action of that person. Responsibility can differ in the agency-linking dimension even if it remains the same in the fault-expressing dimension.

Suggested Citation

Zipursky, Benjamin C., Two Dimensions of Responsibility in Crime, Tort and Moral Luck. Fordham Law Legal Studies Research Paper No. 1016170, Theoretical Inquiries in Law, Vol. 9, p. 281, 2007, Available at SSRN: https://ssrn.com/abstract=1016170

Benjamin C. Zipursky (Contact Author)

Fordham University School of Law ( email )

140 West 62nd Street
New York, NY 10023
United States

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