type 2: Enoch and Kessler
Moral luck occurs when an agent did not have control over an action and its consequence and an agent is either blamed or praised. Enoch and Kessler both illustrate this theory of moral luck in depth. Enoch clearly states that he does not believe in the theory, and Kessler believes it more so. The two discuss how moral luck affects blame, both morally and legally.
Enoch’s piece, “Moral Luck and the Law” asks this central question: “Is there a difference in moral blameworthiness between a murderer and an attempted murderer? Should there be a legal difference between them?” (p. 42). This question applies to moral luck in a multitude of situations. If person A shoots person B and the bullet completely misses, it could be moral luck that saved them. Enoch also describes the multiple types of moral luck: circumstantial and constitutive. Circumstantial moral luck is “luck in the morally relevant circumstances one finds oneself in, or in the moral tests and opportunities one faces” (p. 43). Constitutive moral luck is “luck in the character traits and dispositions one finds oneself with when arriving at the morally relevant scene” (p. 44). Circumstantial moral luck is more of a situation, while constitutive moral luck is more of a characteristic. Enoch then goes onto elaborate on the legal aspect of moral luck. How can the legal system incorporate luck? Enoch states, “The denial of moral luck, and indeed the control condition, are often associated with Kant, perhaps because of his emphasis on the absolute (and so consequence-independent) value of the good will” (p. 46). Is there a moral difference between attempted murder and murder is the question he asks. Lastly, he goes to state that there is then circumstantial legal luck as well. Overall, Enoch discusses how the legal field incorporates moral and legal luck.
Kessler’s article, “The Role of Luck in Criminal Law” is a long and detailed piece that outlines many scenarios where luck affects legal situations. Kessler states that, “Luck does currently play a role in our legal system” (p.2183). He uses the character of Tessie in “The Lottery” by Shirley Jackson to show how luck can influence criminal activity. Tessie lives in a world where she is killed because she drew the card in the lottery, it was luck that the other villagers are alive. Kessler believes if the legal system does not adapt to include luck, we will eventually live in a world like Tessie. Kessler incorporates other philosophers ideas on the subject as well. An important point made, I think, is “Moore presents a reductio argument, which contends that if we do not hold people responsible for things that they cannot control, people could not be held responsible for anything since volitions, intentions, and character are caused by factors beyond one’s control” (p.2190). This statement is precisely why luck must be included as a factor. Kessler, through the use of a multitude of hypothetical situations, explains how luck can affect our lives legally.
Enoch and Kessler both use alternative methods in illustrate what moral luck is and how it affects everybody. Enoch uses more formal language and outlines the arguments and definitions of moral luck. Kessler uses a more informal approach with a significant amount of hypothetical situations to make moral luck easier to understand.
Moral luck may be the reason you don’t get a speeding ticket, or even a manslaughter charge. Luck affects our everyday life, but Kessler makes an important point, “Luck plays no role in whether one forms the intention and then engages in the action; one is punished solely as a rational agent, not as a victim of fate” (p.2194). Both Kessler and Enoch agree that you cannot let luck rule your life. You still control your own decisions.
Bibliography:
Enoch, David. Moral and Legal Luck. Cegla Institute for Comparative and Private International Law, The Buchmann Faculty of Law, Tel Aviv University, 2008.
Kessler, Kimberly D. “Role of Luck in the Criminal Law.” Penn Law: Legal Scholarship Repository, scholarship.law.upenn.edu/penn_law_review/vol142/iss6/6/.
