CrimProf Blog

Editor: Kevin Cole
Univ. of San Diego School of Law

Tuesday, August 25, 2009

Walen on Crime, Culpability and Moral Luck

Alec D. Walen  (Institute for Philosophy and Public Policy) has posted Crime, Culpability and Moral Luck: Comment on Alexander, Ferzan and Morse (Law and Philosophy , Forthcoming) on SSRN. Here is the abstract:

Crime and Culpability, by Larry Alexander, Kimberly Kessler Ferzan (with Stephen Morse) is a visionary work of moral and legal philosophy. Nonetheless, it is fundamentally morally misguided. In seeking to free criminal law from what the authors take to be the distorting influence of outcome luck, they arrive at a position that is overly exculpatory. It fails to hold actors liable for the harms they cause when they have taken less care they should.

I argue, first, that the authors’ attempt to strip criminal law of outcome luck is incoherent in its own terms, and that any attempt to follow through on their program would require a much more severe loss of accountability than the authors acknowledge. I then argue that outcome luck is pervasive in our moral lives, and that, given the choice of (a) not being able to hold agents accountable for much, or (b) holding them accountable for the results of their choices, including outcomes that result in part from moral luck, the right choice is (b). I wrap up with a concluding observation about the implausible moral psychology that underlies the authors’ view of culpable action.

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