Saturday, January 21, 2006

Moral Luck: Part II

In my previous post (see below), I raised the puzzle of moral luck--why it is that, in both law and morality, we judge people in part on the basis of factors over which they had no control. The assassin who hits his target is guilty of a more serious crime than the one who misses--and most of us see him as a worse person.

The assassin who missed might just be a bad shot--but he might also have lost his nerve at the last minute. The drunk driver who didn't quite run down a child might have been a little less drunk, or more careful, than the one who did. Seen from this standpoint, the legal distinction is a consequence of our imperfect knowledge. It is a special case of the general issue of whether we should punish acts by their consequences--ex post--or by what we know of their causes--ex ante. Interested readers can find an extended discussion in a webbed chapter of my Law's Order.

The moral version of the puzzle is more difficult. So far as I can tell, most of us believe simultaneously in two quite different systems of morality.

One system judges the state of a man's soul. The man who tried to commit murder is bad, whether or not he killed anyone. What is essential is what happened inside someone's head. The consequences for the outside world are accidents. As Adam Smith put it in The Theory of Moral Sentiments, his first book:

"To the intention or affection of the heart, therefore, to the propriety or impropriety, to the beneficence or hurtfulness of the design, all praise or blame, all approbation or disapprobation, of any kind, which can justly be bestowed upon any action, must ultimately belong."

The other approach looks at morality as a system of accounts. Judgements of good or bad are irrelevant--the question is who owes what to whom. If your house has been wrecked, someone is going to have to pay for it. If I am the person responsible--however innocent my motive--I am the one who should pay. If your house has not been damaged then no debt is owed, however much I wanted to wreck it or however hard I tried.

Think of the first approach as the God's eye view of the world. God knows enough to judge who is good and who is bad, who deserves Heaven and who Hell. And God doesn't have to worry about balancing accounts. If a house has been smashed but it is nobody's fault, God can put it back together again--no need for some human to pay damages. Imagining ourselves in the position of God looking down at the world, we judge people by what they are, not by what they did.

The accounting approach makes more sense from the standpoint of a society of equals. My opinion of the state of your soul is worth no more than your opinion of the state of mine. A house has been destroyed and we can, with luck, figure out who did it. Since there is no god available to do repairs, someone has to be stuck with the bill.

The distinction maps, imperfectly, to the difference between criminal law and tort law. Criminal guilt requires intent, and an attempt that does no damage is still a crime. Tort liability does not require intent, and an attempt that does no damage is not a tort. A tort case is a dispute between equals. A criminal case is a dispute between the defendant and the state. States are not gods--but they are (unfortunately) viewed as having a moral status superior to that of the individual.

For Further Reading

I have a longer discussion of the puzzle and its history in part VI of an old law review article. Of particular interest is Adam Smith's extended discussion, where he argues both that our moral intuition is wrong and that its being wrong is a good thing--indeed, evidence of divine benevolence.

And for more on moral luck--specifically, whether or not the argument leads to radically egalitarian conclusions--stay tuned.

12 Comments:

At 7:22 AM, January 22, 2006, Blogger Matt McIntosh said...

"Criminal guilt requires intent, and an attempt that does no damage is still a crime. Tort liability does not require intent, and an attempt that does no damage is not a tort. A tort case is a dispute between equals. A criminal case is a dispute between the defendant and the state. States are not gods--but they are (unfortunately) viewed as having a moral status superior to that of the individual."

Hang on, this leaves a rather big dangling thread loose. Are you suggesting that in Ancapistan, attempted crimes won't be punished in more or less the same way they are now? Or am I misinterpereting?

 
At 8:33 AM, January 22, 2006, Blogger Kyle Bennett said...

"most of us believe simultaneously in two quite different systems of morality."

Yes, because the two different systems serve two different purposes. And thye are complimentary, not contradictory. One purpose is guiding how we will act towards a person, the other guides how we will act in regards to that person.

On one hand are things like punishment and redress of damages. On the other hand are things like trust, association, and trade.

For the former, we can only act based on the actual effects of what the person has done. For the latter, we have to use the sum of his actions, statements, behavior, etc to try to predict whether and to what extent he will be a value or disvalue to us in the future.

The latter is solely an individual assessment, and the effect on the person in question will be an aggregate of the individual judgements. The former is sometimes individual, but also can be cooperative. But in either case, the effect on the person in question is the result of one person's judgement.

There's no conflict between the two. The problem arises when someone tries to commit an overt forcible act against someone based on the "god view" rather than based on actual effects caused.

And, in neither case is that judgement binary. There is a disvalue to having bullets or uncontrolled vehicular projectiles flying around, even if they don't actually hit anything. Just not as much a disvalue as there is if they do hit something.

 
At 9:08 AM, January 22, 2006, Blogger Chris Bogart said...

Another way of looking at it might be that a would-be assassin that misses is an inept killer and therefore less of a menace in the future. So the need to get them off the streets is slightly tempered.

 
At 11:42 AM, January 22, 2006, Blogger David Friedman said...

"Are you suggesting that in Ancapistan, attempted crimes won't be punished in more or less the same way they are now?"

If my analysis of anarcho-capitalism is correct, it will tend to produce economically efficient law. As I explain in the chapter of Law's Order linked to the post, there are advantages to both ex ante and ex post punishment, so I would expect to see elements of both in the resulting law code.

So attempts might be punished in that law code. I would expect the legal system to look more like tort law than like criminal law, since there is no state. But, as I discuss in a later chapter of the same book, one might want to modify tort law in various ways if it was replacing criminal law.

 
At 2:14 PM, January 22, 2006, Blogger Tanner said...

"Think of the first approach as the God's eye view of the world. God knows enough to judge who is good and who is bad, who deserves Heaven and who Hell. And God doesn't have to worry about balancing accounts."

Here are three verses from the fifth chapter of Matthew's Gospel, quoting Jesus Christ:

[21]Ye have heard that it was said by them of old time, Thou shalt not kill, and whomsoever shall kill shall be in danger of the judgment.

[22]But I say unto you, that whosoever is angry with his brother without a cause shall be in danger of the judgment . . .

[28]. . . I say unto you that whosoever looketh on a woman to lust after her hath committed adultery with her already in his heart.


Now I don't know what all that means, but I suspect it's that you were very close to correct when you called it a "God's-eye view."

(No offense intended Dr. Friedman. I only mean to show a correlation - not to proselytize.)

 
At 6:09 AM, January 24, 2006, Anonymous Anonymous said...

Perhaps a useful way to look at these two "systems" is to think about using them for judging oneself vs. others. It seems the "God's eye view" is most appropriate for oneself. It has special benefits for becoming the person you want to be; one can train oneself to a moral virtue one seeks to possess by assessing oneself against a standard based on will. If you succeed in aligning your will with your highest values, it should then be easier to be the good person your values call for. Of course there's no need to keep accounts with oneself, so the ends issue is comparatively unimportant.

For judging other people, the ends-based system seems more appropriate, since it requires no special status, allows for righting of wrongs by keeping accounts, and doesn't err in assuming knowledge of the private realities inside others' heads.

 
At 6:46 AM, January 24, 2006, Blogger Vache Folle said...

I can identify two distinct systems of morality that I recognize: 1) rules applicable to me and 2) rules applicable to others. My actions are dictated by circumstances, whereas the actions of others are dictated by their character. I have noted a similar tendency in other people.

So, the seemingly inconsistent moral systems that you identify are not unprecedented.

 
At 7:45 AM, January 24, 2006, Blogger Larry White said...

If law is viewed as self-defense, the system of penalties may be a way of seeking economically efficient law. I think most people would hold that one has a right to resist threats to person or property, or, failing deterrence, to seek redress. Criminal law addresses the former, tort law the latter.

Behavior is made criminal because it is seen as threatening to the community at large. The simple fact of the law is the deterrence, the associated punishment is to prevent recidivism. The question becomes, how large a punishment cost are you willing to bear in order to reduce the risk of the behavior being repeated?

While there may be little or no moral difference between an act and an attempt, there is a real difference in the preceived threat, and that is reflected in the price we are willing to pay for insurance against repeat offence.

This distinction holds even within a single offense. Why is the mother who kills her own children less likely to be executed than the predator who kills the children of others? I think most people find them about equally evil, but not equally threatening.

None of this should be taken to indicate that I believe current law is efficient, economically or otherwise, only that it is impelled toward that end, despite itself.

 
At 5:24 PM, January 24, 2006, Anonymous js290 said...

These last two threads reminds me of a quote from Sideshow Bob of The Simpsons:

"Well...you see, Birch, I'm presently incarcerated. Convicted of a crime I didn't even commit. Hah! Attempted murder? Now honestly, what is that? Do they give a Nobel prize for attempted chemistry? Do they?"

 
At 7:56 AM, January 31, 2006, Anonymous Anonymous said...

The problem is not with either the law or moral judgment, but with the fact that they are not aimed at the same thing. The law is just a way of getting along in society. What works best given our goal of social harmony and prosperity? Morality is quite different in my view -- it assesses the heart of what a person really is. Since the law cannot do that, we don't provide anything like moral desert, we give legal results. All kinds of things are legally permitted, like using my friend to ingratiate myself with my boss to get his job. It is not illegal and cannot be regulated, but anyone who uses others a mere means is morally compromised.

So the difference is that the law is utilitarian -- and utilitarianism isn't really a moral theory but a social theory. However, morality is deontic and based on what a person is obligated to do in interpersonal relationships. So I see the two assassins as morally guilty in the same way and the same degree tot he extent they acted and intended the same act; and otherwise any distinction in their intent will distinguish their moral culpability.

 
At 7:08 PM, February 11, 2006, Anonymous Kevin S. Van Horn said...

One of the purposes of moral codes may be to aid us in assessing other people, helping us decide whom to trust. From that perspective, judging "the state of a man's soul" is important in predicting that person's future behavior.

 
At 6:51 AM, September 04, 2008, Blogger red said...

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