Moral Luck and Liability Lotteries

22 Pages Posted: 1 Oct 2009

See all articles by Guy Sela

Guy Sela

University of Oxford - Faculty of Law

Date Written: September 24, 2009

Abstract

Adversaries of Moral Luck (AMLs) are at pains to explain why wrongdoers are liable to bear burdens (punishment, compensation etc.) which are related to the harm they cause, because the consequences of what we do are a matter of luck. One attempt to solve this problem suggests that wrongdoers who cause more harm are liable to bear a greater burden not because they are more blameworthy but rather because they get the short straw in a liability lottery (represented by the apparently indeterminate causal process). In this paper I argue that this attempt fails on several grounds. Apart from the fact that it is hard to see how the implementation of liability lotteries can be motivated and the fact that such scheme presupposes a political order (whereas the notion of liability does not seem to presuppose one), detaching liability from the outcomes of a culpable action undermines whichever justifications there were for imposing liability in the first place. Moreover, relying on the determination of the causal process as a good indication of the wrongdoer’s degree of culpability is mistaken, because the luck brought about through the causal process is not necessarily the only element involved in cases of harmful conduct which lies beyond the wrongdoers’ control.

Keywords: Moral Luck, Lotteries, Criminal Attempts, Reparations, David Lewis, Jeremy Waldron

Suggested Citation

Sela, Guy, Moral Luck and Liability Lotteries (September 24, 2009). Oxford Legal Studies Research Paper No. 1478216, Available at SSRN: https://ssrn.com/abstract=1478216 or http://dx.doi.org/10.2139/ssrn.1478216

Guy Sela (Contact Author)

University of Oxford - Faculty of Law ( email )

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