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The Solution to the Problem of Outcome Luck: Why Harm Is Just as Punishable as the Wrongful Action that Causes It

41 Pages Posted: 30 Aug 2009 Last revised: 9 Jan 2015

Ken Levy

Louisiana State University, Baton Rouge - Paul M. Hebert Law Center

Date Written: May 1, 2005

Abstract

A surprisingly large number of scholars believe that (a) we are blameworthy, and therefore punishable, only for what we have control over; (b) we have control only over our actions and intentions, not the consequences of our actions; and therefore (c) if two agents perform the very same action (e.g., attempting to kill) with the very same intentions, then they are equally blameworthy and deserving of equal punishment – even if only one of them succeeds in killing. This paper argues against these “equivalence theorists” that harmful consequences do make a moral difference, that the harm produced by the killer’s attempt retroactively makes her action more blameworthy, and therefore deserving of more punishment, than the failed attempter’s attempt. The primary argument for this “non-equivalence theory” is an analogy with gambling. Just as a gambler makes a deal with the casino to allow metaphysical luck to retroactively determine the “profit status” of her bet, so too the attempted killer makes a deal with “the casino of morality” to allow metaphysical luck to retroactively determine the moral status of her attempt. She makes the “moral deal” that if her attempt succeeds, her attempt was more blameworthy than if her attempt does not succeed. And it is the greater blameworthiness of the killer’s attempt that justifies our intuition that the killer should be punished more harshly than the failed attempter.

Keywords: outcome luck, assumption of risk, punishment, blame, blameworthiness, attempt, desert, control, intentional killing, unintentional killing, gambling

Suggested Citation

Levy, Ken, The Solution to the Problem of Outcome Luck: Why Harm Is Just as Punishable as the Wrongful Action that Causes It (May 1, 2005). Law and Philosophy, Vol. 24, 2005. Available at SSRN: https://ssrn.com/abstract=1463322

Ken Levy (Contact Author)

Louisiana State University, Baton Rouge - Paul M. Hebert Law Center ( email )

420 Law Center Building
Baton Rouge, LA 70803
United States

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