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

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

68 Pages Posted: 31 Dec 2013 Last revised: 1 Jan 2014

Kenneth Einar Himma

University of Washington - School of Law

Date Written: December 30, 2013

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.

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

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: https://ssrn.com/abstract=2373298

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)

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