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.