Luck between morality, law, and justice

Theoretical Inquiries in Law

Volumn 9, Issue 1, 2007, Pages

  Enoch, David ^a  

^a HEBREW UNIVERSITY OF JERUSALEM   (Israel)

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EID: 38049115218     PISSN: None     EISSN: 15653404     Source Type: Journal    
DOI: 10.2202/1565-3404.1168     Document Type: Review

References (112)

1. This way of speaking is drawn from Michael J. Zimmerman, Taking Luck Seriously, 99 J. PHIL. 553 (2002).
2. This is Thomson's favorite way of putting things. Judith J. Thomson, Morality and Bad Luck, 20 METAPHILOSOPHY 203 (1989),
3. reprinted in MORAL LUCK 195 (Daniel Statman ed., 1993). In what follows, when referring to sources that are collected in this collection, I refer to the page numbers there.
4. Because the debate has often been conducted in a way that is not as precise as may be hoped for, the characterization in the text of what is at issue is not canonical. But I think it nicely captures what the debate is about, and in any event, this is how I use the words "moral luck" in my arch-argument and throughout the Article. There are in the literature, of course, many different kinds of supervenience claims, but we need not disambiguate the supervenience claim in the text for the purposes of this Article.
5. The distinction between moral luck in consequences, circumstantial moral luck, and constitutive moral, luck comes from Thomas Nagel, Moral Luck, 50 PROC. ARISTOTELIAN SOC'Y (SUPP.) 137 (1976),
6. revised and reprinted in MORAL LUCK, supra note 2, at 57.
7. Thomson's example, in Thomson, supra note 2, at 207.
8. This way of putting things highlights the fact that we are dangerously close to the problem of free will here, for if there is a true deterministic description of all events, the sentence in the text entails that (if there is no moral, luck) there is no difference in the moral status of any two agents. I will not discuss the free-will problem here, of course, but will note that incompatibilists will tend, to accept this result. If you are a compatibilist, however, feel free to add in the text something like, "If there is no sufficiently high-level true description of the case," or "if there is no intentional description of the case," or something of the sort.
9. Of the relevant kind, again. This does not mean that there is no difference in, say, how admirable their character traits or even actions are. In terms of Zimmerman's distinction between deontic, aretaic, and hypological judgments, the relevant kind of status is the kind directly relevant to hypological judgments. Zimmerman, supra note 1, at 554.
10. Thomson, supra note 2, for instance, denies moral luck in consequences and circumstances, but -because of her commitment to a character-based theory of blame -may be (tacitly) committed to constitutive moral luck.
11. For a similar point, albeit framed as an initial argument for moral luck, see Leo Katz, Why the Successful Assassin Is More Wicked, than the Unsuccessful One, 88 CAL. L. REV. 791, 798 (2000).
12. As even these examples show, just plain luck can have profound, effects on how well someone's life goes. Denying moral luck does not entail denying that luck can influence how well, someone's life goes. So those -like me -who believe there is no moral luck but who admit that plain luck can have a profound impact on how well one's life goes are not vulnerable to Williams's accusation (perhaps historically in place) that the motivation behind the denial of moral luck is the immature hope of rendering our lives or whatever is important about them immune to luck. Bernard Williams, Moral Luck, 50 PROC. ARISTOTELIAN SOC'Y (SUPP.) 115 (1976),
13. reprinted in MORAL LUCK, supra note 2, at 35.
14. A point missed by Urban-Walker, from whom I take the sick-child example. Margaret Urban-Walker, Moral Luck and the Virtues of Impure Agency, 22 METAPHILOSOPHY 14 (1991).
15. Superson also misses the distinction between moral luck and plain luck that has moral implications. Anita M. Superson, Moral Luck and Partialist Theories, 30 J. VALUE INQUIRY 213 (1996).
16. Perhaps Nagel, supra note 4, is a case in point.
17. Id. at 65-66.
18. This is the project I pursue together with Andrei Marmor in David Enoch & Andrei Marmor, The Case Against Moral Luck, 26 LAW & PHIL. 405 (2007).
19. See, e.g., Norvin Richards, Luck and Desert, 65 MIND 198 (1986),
20. reprinted in MORAL LUCK, supra note 2, at 167;
21. Nicholas Rescher, Moral Luck, 64 PROC. AM. PHIL. ASSOC. 5 (1990),
22. reprinted in MORAL LUCK, supra note 2, at 141;
23. Brian Rosebury, Moral Responsibility and Moral Luck, 104 PHIL. REV. 499 (1995).
24. See, e.g., Henning Jensen, Morality and Luck, 59 PHIL. 323 (1984),
25. reprinted in MORAL LUCK, supra note 2, at 131;
26. Richards, supra note 15;
27. Michael J. Zimmerman, Luck and Moral Responsibility, 97 ETHICS 374 (1987),
28. reprinted in MORAL LUCK, supra note 2, at 217, 229-30.
29. See, e.g., John Greco, A Second Paradox Concerning Responsibility and Luck, 26 METAPHILOSOPHY 8.1 (1995);
30. Zimmerman, supra note 1, at 557.
31. See, e.g., Edward Royzman & Rahul Kumar, Is Consequential Luck Morally Inconsequential? Empirical Psychology and the Reassessment of Moral Luck, 17 RATIO 329 (2004);
32. Darren Domsky, There Is No Door: Finally Solving the Problem of Moral Luck, 99 J. PHIL. 445 (2004).
33. For some doubts, see Daniel Statman, Doors, Keys and Moral Luck: A Reply to Domsky, 102 J. PHIL. 422 (2005);
34. David Enoch & Ehud Guttel, Cognitive Biases and Moral. Luck (July 2007) (unpublished manuscript, on file with author).
35. This strategy will, however, have to face the difficulty Sverdlik mentions, namely, that the results each side offers as a reductio will not be judged more absurd (by that side) than the very claim the discussion started with - that there is or isn't moral luck. This is, again, the problem of being too close to bedrock. Steven Sverdlik, Crime and Moral Luck, 25 AM. PHIL. Q. 79 (1988),
36. reprinted in MORAL LUCK, supra note 2, at 181, 183.
37. And, as Kevin Toh suggested to me, perhaps even if there is moral luck, there is at least a pro-tanto moral problem, with legal luck. I will not pursue this interesting suggestion here.
38. See, e.g., Daniel Statman, Introduction to MORAL LUCK, supra note 2, at 1, 14;
39. Kimberley D. Kessler, The Role of Luck in the Criminal Law, 142 U. PA. L. REV. 2183, 2215 (1994).
40. Williams, supra note 10, at 54 n.2, warns against the mistake of moving too freely here from claims about (even justified) law to claims about morality, but later seems to forget this warning. Bernard Williams, What Has Philosophy to Learn from Tort Law?, in PHILOSOPHICAL FOUNDATIONS OF TORT LAW 487, 495 (David G. Owen ed., 1995).
41. For similar warnings, see Rosebury, supra note 15, at 522-24;
42. Dana K. Nelkin, Moral Luck, in THE STANFORD ENCYCLOPEDIA OF PHILOSOPHY, at § 4.1.1 (2004), http://plato.stanford.edu/entries/moral-luck/.
43. For a more careful claim about the relation between moral and legal luck -that the two issues cannot be wholly divorced - see Gregory C. Keating, Strict Liability and the Mitigation of Moral Luck, 2 J. ETHICS & SOC. PHIL, at 3 (2006), http://www.jesp.org/PDF/ StrictLiab.il.ity_Fi.nal.Version.pdf.
44. Nothing hinges, of course, on how the word "retributivism" is used. Some use it to denote a view of punishment different from the one sketched in the text. All that is needed for my purposes is for the claim in the text to be supported by the kind of intuitive considerations that are associated with the retributivist tradition. And I think it most clearly is so supported.
45. I think this is the main argument in Feinberg, though he settles for implicitly assuming that there is no (relevant) moral luck. JOEL FEINBERG, Criminal Attempts: Equal Punishments for Failed Attempts, in PROBLEMS AT THE ROOTS OF LAW 77 (2003). Questions remain, of course, about what sameness of punishment consists in In particular, one can think here of equality in nominal punishments (say, how many years in prison one is sentenced to), or in punishments in terms of well-being (so that one prison-year for a weak person may actually be equal, to two prison-years for a strong one), or for some intermediate option. I do not need, I think, to take a stance on this interesting issue (though I return to it briefly below).
46. Suppose we believe that, while punishment should not reflect only moral, blameworthiness, there is still a deontological constraint against punishing a person significantly more severely than is proportional to his moral blameworthiness for committing the crime. Suppose, in other words, that we believe that other considerations are relevant for punishment, but that they are only relevant up to the punishment that is proportional to the criminal's blameworthiness. Does it then follow from the denial of moral luck that there should be no criminal-legal luck? It seems to me that the answer is no, and all that then follows is that lucky factors should not increase the punishment beyond the proportionality constraint. This result is not insignificant: It seems to me, for instance, that a prison-term is disproportionate to the blameworthiness involved in many cases of negligent driving, even those resulting in serious harm. If so, then even on the view sketched at the beginning of this note the criminal punishment for them, should be reduced, significantly, even if not exactly to the level of the punishment for (luckily uneventful) negligent driving.
47. In some contexts, similar observations are taken to indicate incommensurability or incomparability (for instance, if Mozart is not a better composer than Brahms, nor is Brahms a better composer than Mozart, nor are they equally good, then it doesn't follow that someone slightly better than Mozart would be better than Brahms). But the point in the text cannot be exhaustively accommodated by judgments of incomparability, because even assuming that the two papers are of equal intellectual quality, still the intuition used in the text stands.
48. Fortunately, I do not have to decide here a controversial, issue that comes up in the literature on equality. Some think that equality itself is of value, or that there is reason to distribute resources equally. Others, however, think that equal distribution is called for - when it is, that is - not for a separate reason to distribute resources equally, but rather because the needs of each person equally call for the allocation of resources. See JOSEPH RAZ, THE MORALITY OF FREEDOM 217-44 (1986);
49. Harry G. Frankfurt, Equality as a Moral Ideal, 98 ETHICS 21(1987),
50. reprinted in HARRY G. FRANKFURT, THE IMPORTANCE OF WHAT WE CARE ABOUT 134 (1988). Applied to our context, those who believe in independent equality-related reasons would argue that there is an independent reason for giving equal grades to equally good papers. Those -like Raz and Frankfurt -who reject such independent equality-related reasons would argue that no comparative reason of this sort is involved and that all that is going on here is that we have reasons to give the first paper a certain grade, and we have reasons to give the second paper a certain grade, and these grades (the ones supported by reasons of each case separately) are equal. It is important to note that this is a different topic from the one discussed in the text. All I argue in the text is that there is a positive pro-tanto reason to give grades that are in fact equal, to two papers that are alike in the intellectual achievement they incorporate. For my purposes here, it does not matter if this reason is a separate reason to treat the two cases equally or, rather, the normatively epiphenomenal result of the reasons there are to give each paper its appropriate grade. This point also applies, of course, to the case of legal, luck, to which I return in the text.
51. Is it unfair to have one's interests influenced other than by the law in ways that have nothing to do with one's moral status? I am not sure. For my argument it is sufficient that it is unfair when one's interests are so influenced by the law, and this seems a rather plausible claim. And note that if my arch-argument is sound, then the law should (pro-tanto) see to it that even lucky differences that do not originate with the law have no legal implications. In other words, the law should compensate even for such non-law-based differences.
52. Waldron applies such fairness-intuitions to argue against legal luck (in consequences) in tort-law. Jeremy Waldron, Moments of Carelessness and Massive Loss, in PHILOSOPHICAL FOUNDATIONS OF TORT LAW, supra note 21, at 387.
53. Perhaps this case should be understood as a case of plain luck that has legal implications. As I proceed, to argue, I do not think there is a normatively significant difference between such luck and legal, luck. Nothing in the argument in the text depends here on how the example is classified.
54. In a related context, Keating, supra note 21, argues that from the point of view of the problem of luck, a negligence tort regime is more problematic than strict liability because, roughly speaking, the former but not the latter involves criticizing conduct. Whatever else it does, the criminal, law certainly criticizes conduct and so may be more luck-problematic in this respect than those parts of the law that do not.
55. I thank Jules Coleman for relevant discussion here.
56. I am not sure I understand what desert is or how it is related to the topics discussed in this Article. But the point in the text here may be equivalent (or otherwise closely related) to a rejection of the claim that desert is relevant to questions of retributive justice but not to questions of distributive justice. For some doubts about this often taken-for-granted asymmetry, see Jeffrey Moriarty, Against the Asymmetry of Desert, 37 Nous 518 (2003). For an attempt to defend the asymmetry, see Saul Smilansky, Control, Desert and the Difference Between Distributive and Retributive Justice, 131 PHIL. STUD. 511 (2006).
57. Note, however, that Smilansky, too, defends only a weaker asymmetry, namely, the claim that desert considerations are -though relevant to all matters of justice -not as strongly relevant to matters of distributive justice as they are to those of retributive justice. And for the claim that luck often plays a role in determining whether a given case is classified as a case of distributive or retributive (or corrective) justice, see Ronen Avraham & Issa Kohler-Hausmann, Accident Law for Egalitarians, 12 LEGAL THEORY 181 (2006).
58. Note that this claim says nothing about the law's function or point or telos or anything of the sort. It just highlights a normative consideration that applies to the law. And this suffices, I think, to show that it is not vulnerable to Ripstein's critique of "instrumentalist" views of law, Arthur Ripstein, Closing the Gap, 9 THEORETICAL INQUIRIES L. 61 (2008), even if such critique is generally successful (which I very much doubt).
59. This example is loosely based on one found in PETER UNGER, LIVING HIGH AND LETTING DIE: OUR ILLUSIONS OF INNOCENCE 9 (1996).
60. I do not know of an explicit discussion in the literature trying to characterize and precisify the distinction between moral luck and just plain luck that has moral, implications, but of course, this distinction does come up in a less explicit way from time to time. See NAFSIKA ATHANASSOULIS, MORALITY, MORAL LUCK AND RESPONSIBILITY: FORTUNE'S WEB 6 (2005) for an example of an initial, discussion of this distinction.
61. For instance, of the kind discussed by David Lewis, The Punishment that Leaves Something to Chance, 18 PHIL. & PUB. AFF. 53 (1989),
62. reprinted in DAVID LEWIS, PAPERS IN ETHICS AND SOCIAL PHILOSOPHY 227 (2000).
63. What is their punishment -the (say) 80% risk of death imposed on both or death for Mary (who lost in the punishment lottery) and nothing for Neil (who won)? Lewis flirts with the view that there is really no reason not to treat the risk as the punishment, so that the punishment lottery satisfies retributivist concerns about proportionality and equality. But I do not think that he is convincing on this point.
64. That the intending-foreseeing distinction is involved is even clearer when we distinguish between inequality in punishment introduced by a punishment lottery and inequality in the real price of punishment, which is a function of how people "take" it. See R.A. Duff, Auctions, Lotteries and the Punishment of Attempts, 9 LAW & PHIL. 1, 23 (1990). I return to this example later on.
65. See Menachem. Mautner, Luck in the Courts, 9 THEORETICAL INQUIRIES L. 217 (2008);
66. Jeremy Waldron, Lucky in Your Judge, 9 THEORETICAL INQUIRIES L. 185 (2008).
67. This way of putting things sounds as though I am assuming a realist metaethics. Now, I am a metaethical realist and have argued for this view elsewhere, David Enoch, An Argument for Robust Metanormative Realism. (2003) (unpublished Ph.D. dissertation, New York University), available at http://law.mscc.huji.ac.il/law1/newsite/segel/enoch/index.html; David Enoch, An Outline of an Argument for Robust Metanormative Realism, 2 OXFORD STUD. METAETHICS 21 (2007). But I am not assuming anything controversial, about the nature of morality here. If you are unhappy with moral propositions, feel free to talk of moral judgments instead (when it is understood that we are talking about the contents of the judgments, not about the act of making or avowing a judgment). And I am assuming nothing at all here about the nature of moral propositions or judgments (for instance, whether or not they are response- or practice-dependent).
68. Okay, here I am making some metaethical assumptions, but not highly controversial ones. Even most antirealists, subjectivists, relativists, and the like do not think that we can bring about a change in the content of (the relevant) morality by something like a legislative procedure.
69. Here is another way in which the distinction between moral luck and plain luck that has moral implications can be theoretically useful. One of the things Williams, supra note 10, at 44-45,
70. draws attention to in his discussion of moral luck is that we often do, and sometimes should, feel "agent-regret," something in-between regret and remorse that can and should be felt by a non-negligent driver who causes harm but that cannot be felt by a spectator (who may feel pain over the loss just as much as the driver). Similarly, agent-regret differentiates between two negligent drivers when only the negligence of one of them, caused serious harm.. And Williams hints that there is no way, consistent with the denial of moral luck, of accounting for the appropriateness of agent-regret. But utilizing the distinction between moral, luck and plain luck that has moral implications, we can accommodate the appropriateness of agent-regret in a different way. We can say that while the two drivers are equally at moral fault, still. -because of lucky circumstances -morality places them under different requirements, so that one is required to apologize, say, or feel agent-regret, whereas the other is not. In this respect, the situation is no different from the case of Larry and Karol who -with a baby drowning next to only one of them -are now placed under different moral requirements. But this is just plain luck that has moral implications, not moral luck. I think something along the lines of this thought here is present in Susan Wolf, The Moral of Moral Luck, 31 PHIL. EXCHANGE 5 (2001).
71. This Section draws on David Enoch, Intending, Foreseeing, and the State, LEGAL THEORY (forthcoming).
72. See, e.g., Judith J. Thomson, Physician Assisted Suicides: Two Moral Arguments, 109 ETHICS 497, 514-16 (1999);
73. Judith J. Thomson, Self-Defense, 20 PHIL. & PUB. AFF. 283, 293-94 (1991).
74. For a similar line of thought, see James Rachels, More Impertinent Distinctions and a Defense of Active Euthanasia, reprinted in KILLING AND LETTING DIE 139 (Bonnie Steinbock & Alastair Norcross eds., 2d ed. 1994).
75. For the contrary claim, supported by intuitions about specific cases rather than by independent argument, see Joseph Shaw, Intentions and Trolleys, 56 PHIL. Q. 63, 81 (2006).
76. William. Fitzpatrick claims that Thomson in fact argues here against a straw man, as the Doctrine of Double Effect is best understood not as claiming that the moral permissibility of an action depends on the intentions with which it is performed, but rather on the intentions with which it can be performed. But then it seems Fitzpatrick owes us a story of why it is that some actions can and some cannot be performed with such intentions, and the only available answer appears to me to be one referring to the different causal structures involved. So Fitzpatrick seems to understand the intending-foreseeing distinction in the causal-structure rather than the mental-state way. See William J. Fitzpatrick, Acts, Intentions and Moral Permissibility: In Defense of the Doctrine of Double Effect, 63 ANALYSIS 317(2003).
77. For a related point, see Seana V. Shiffrin, Speech, Death, and Double Effect, 78 N.Y.U. L. REV. 1135, 1182 (2003). But Shiffrin then proceeds to argue that the Doctrine of Double Effect should be understood as distinguishing between intentions more objectively understood, say, in terms of the rationales or reasons for the relevant action, and that, thus understood, the problem goes away. It is not entirely clear to me what Shiffrin has in mind here when she talks of intentions more objectively understood.
78. If, for instance, functionalists are right about mental states, then given some plausible empirical claims about states - that they have decision-making mechanisms, that their decisions can have some coherence over time, etc. - there seems to be no principled difficulty in ascribing mental states to corporations and states. If, however, having a phenomenology is a necessary condition for having mental states, then assuming, as seems plausible, that there's nothing it's like to be France, France cannot have mental states (unless, that is, phenomenological states are themselves best understood functionally). And there may be other possibilities as well.
79. IMMANUEL KANT, GROUNDWORK OF THE METAPHYSICS OF MORALS 8 (Mary Gregor ed., Cambridge Univ. Press 1997) (1785) (4:394).
80. For some discussion along these lines, see, for instance, Philip Pettit, Akrasia, Collective and Individual, in WEAKNESS OF WILL AND PRACTICAL IRRATIONALITY 68 (Sarah Stroud & Christine Tappolet eds., 2003), and the references there. Pettit - here and elsewhere -is strongly sympathetic to the literal attribution of mental states to political bodies.
81. SEE, E.G., ANDREI MARMOR, INTERPRETATION AND LEGAL THEORY 155-84 (1992);
82. JEREMY WALDRON, LAW AND DISAGREEMENT 119-45 (1999).
83. This proto-example is inspired, of course, by the discussion of cases such as Trolley and Transplant. For more discussion, and many references, see Enoch, supra note 43.
84. For a similar point, see HENRY SIDGWICK, THE METHODS OF ETHICS 202 (Hackett Publ'g Co. 1907) (1874);
85. ROBERT E. GOODIN, UTILITARIANISM AND A PUBLIC PHILOSOPHY 49 n.5 (1995) (and the references there).
86. Goodin emphasizes similar points, in GOODIN, supra note 5.1, at 10.
87. That the committee does not administer the drug itself, but rather allows someone else to do so may be of importance here, because it may show that the doing-allowing distinction also encounters problems when applied to policy decisions and state action. I return to this point below.
88. See Cass R. Sunstein &. Adrian Vermeule, The Ethics and Empirics of Capital Punishment: Is Capital Punishment Morally Required? Acts, Omissions, and LifeLife Tradeoffs, 58 STAN. L. REV. 703 (2006).
89. But note that their discussion is at times confused, and that they conflate the doing-allowing and intending-foreseeing distinctions. (Responding to criticism on this point, they do better. See Cass R. Sunstein & Adrian Vermeule, Deterring Murder: A Reply, 58 STAN. L. REV. 847, 849-52 (2006).)
90. And let me also stress here that nothing in what I say or think commits me to the empirical part of Sunstein's and Vermeule's argument for the death penalty. For a convincing empirical criticism, see John J. Donohue & Justin Wolters, Uses and Abuses of Empirical Evidence in the Death Penalty Debate, 58 STAN. L. REV. 791 (2006).
91. See, for instance, the discussion of these conceptual worries (and their normative significance) in Warren Quinn, Actions, Intentions, and Consequences: The Doctrine of Doing and Allowing, 98 PHIL. REV. 287 (1989),
92. reprinted in WARREN QUINN, MORALITY AND ACTION 149 (1993);
93. Frances Howard-Snyder, Doing vs. Allowing Harm, in THE STANFORD ENCYCLOPEDIA OF PHILOSOPHY, supra note 21, http://pl.ato.stanford.edu/entri.es/doing-al.lowing/.
94. When, in a tort case, the court decides for the defendant, does it thereby find, the plaintiff liable? The answer, it seems to me, is that it does not issue such a finding, but that (intrinsically) it might as well have issued it. It does not issue this finding, because the conceptual distinction between the law doing and allowing is not completely without content. It might as well have issued it, because this distinction is not (intrinsically) normatively significant. For some discussion regarding this controversy -though not in precisely the terms I offer here -see Waldron, supra note 28, at 395-96, and the references there.
95. For some more support here, see Enoch, supra note 43.
96. The point in the text here can be seen as a caricature of a host of expressive considerations that may serve to outweigh the anti-luck reason I have been arguing for. Less caricatured treatments of expressivist theories will have to take into account the fact that such theories do not emphasize the instrumental effect of some expressions (as hurting people's feelings, for instance) but, rather, claim that some actions can be wrong simply by virtue of the attitudes they express, regardless of the expression's consequences. See, e.g., Elizabeth S. Anderson & Richard H. Pildes, Expressive Theories of Law: A General Restatement, 148 U. PA. L. REV. 1503 (2000). But even assuming such theories can be made to work (and this, it seems to me, is a major assumption), and further assuming that there are such non-instrumental expressivist reasons to distinguish between legal luck and plain luck with legal implications (yet another major assumption), there is still no threat to my thesis. For such a way of supporting the normative relevance of the distinction will yield only extrinsic -though non-instrumental -moral weight for the distinction. And my thesis is merely that the distinction has no intrinsic moral weight.
97. Mark Greenberg noted the following interesting point: My argument starts with a kind of a symmetry -there is no moral luck, and therefore there should be no legal luck. But now the symmetry breaks, for while plain luck should have no legal implications, plain luck does have -and perhaps cannot avoid having - moral implications. So while we can bring the law more in line with morality by eliminating legal luck, by eliminating the legal, effects of plain luck we actually make the law more different from morality. All of this seems exactly right to me: If my argument is sound, there are good reasons to make the law more like morality in the former sense, and less so in the latter.
98. Coleman and Ripstein discuss the relations between corrective and distributive justice, primarily in the context of a discussion of luck. Their discussion seems to me to conflate legal luck and plain luck that has legal implications, a conceptual conflation that -if I am right -has no normative implications. Jules Coleman &. Arthur Ripstein, Mischief and Misfortune, 41 MCGLLL L.J. 91 (1995),
99. reprinted in TORT LAW 319 (Ernest Weinrib ed., 2002).
100. For a preliminary discussion of the connections between discussions of moral luck and luck egalitarianism, see NeIMn, supra note 2.1, §2.2. Let me emphasize here the following qualifications: First, the argument in the text at most establishes that bad distributive luck should be compensated for, not that this is all our distributive schemes should do (nothing here commits me either way, then, regarding the desirability of a decent minimum, that cannot be compromised even by poor choices). For a similar point in defense of luck egalitarianism,
101. see Daniel Markovits, Luck Egalitarianism and Political Solidarity, 9 THEORETICAL INQUIRIES L. 271 (2008).
102. Second, my argument at most establishes a pro-tanto reason to compensate for (even natural) lucky inequalities, and this reason may be outweighed by other reasons. Indeed, my argument does not even establish that the reason to compensate for (even natural) inequalities enjoys the Mnd of priority Nagel associates with matters of justice. Thomas Nagel, Justice and Nature, 17 O.J.L.S. 303 (1997).
103. Again, then, the strength of my conclusion is limited. Third, nothing in my argument commits me to the specific details of luck-egalitarian positions in the current literature, such as the details that make them vulnerable to Anderson's famous objections in Elizabeth S. Anderson, What Is the Point of Equality, 109 ETHICS 287 (1999),
104. and in her contribution to this volume, Elizabeth Anderson, How Should Egalitarians Cope with Market Risks?, 9 THEORETICAL INQUIRIES L. 239 (2008).
105. Indeed, I tend to reject at least two such common features - a preference-based conception of well-being and the supposedly normatively relevant distinction between brute luck and option luck (on this issue, I hold - and my arch-argument supports -a view much like the one outlined in Kasper Lippert-Rasmussen, Egalitarianism, Option Luck, and Responsibility, 111 ETHICS 548 (2001),
106. especially id. at 571).
107. Indeed, it may be broader still. For it follows from my argument that there is no intrinsically normatively significant difference also between legal luck and legal arrangements that have (perhaps unintended, but foreseen) lucky implications. This is the case, I think, with nominally equal punishments for similar offenses, where the punishment is much harder for one criminal to bear than for the other (for some discussion, see Duff, supra note 38, at 23). Such cases are not, I think, cases of legal, luck, strictly speaking, nor are they cases of plain luck that has legal implications. Rather, they are cases of legal arrangements that have lucky implications. But if the intending-foreseeing distinction does not apply to the law, then they are pro-tanto on a par with, cases of punishment lottery.
108. Though, again, see the qualifications in supra note 61.
109. For a comparative discussion of the luck, involved in punishment lottery and selective law-enforcement policy -in which the distinction between legal luck and plain luck that has legal implications is not evoked but in which there is an attempt to justify the difference in our intuitive responses to such practices on purely consequentialist, deterrence-related grounds -see Alon Harel & Uzi Segal, Criminal Law and Behavioral Law and Economics: Observations on the Neglected Role of Uncertainty in Deterring Crime, 1 AM. L. & ECON. REV. 276 (1999).
110. One way of reading Honoré is as hinting at such an argument. Tony Honoré, Responsibility and Luck, 104 LAW Q. REV. 530, 537-43 (1988). The thought in the text is the way I would suggest dealing with many cases of option luck (paradigmatically exemplified by the gambling case). And note, of course, that this way of thinking about option luck does not amount to declaring it unproblematic: it is pro-tanto problematic, but quite possibly all-things-considered justified.
111. Here is a semi-formalization of the objection: Consequentialism (C) and Deontology (D) cannot both be true. So not-C or not-D. But if not-C, then not-(5), and if not-D, then not-(2). So not-(5) or not-(2). So my arch-argument is unsound. What I proceed to argue in the text is that the premise "if not-D then not-(2)" is false.
112. I argue for this claim in the Appendix of Enoch, supra note 43.