Taking into account what I’ve said about Harris on free will, I want to look at what I take to be a credible threat not to free will, but to moral responsibility; this is the problem of luck. I will try to offer some reasons for why moral responsibility can be preserved even while taking into account the extent to which luck undermines control and moral responsibility.
Aside from the belief that libertarian free will entails mind/body dualism and contra-causal powers, the most pervasive confusion gripping this area is the conflation of free will and moral responsibility. To Harris’s credit, he does see how they come apart, and offers us a consequentialist based notion of moral responsibility that he claims is sufficient to preserve a criminal justice system and holding each other accountable. Although seeming to contradict his whole book, this tension resolves once we understand that there are a plurality of justifications for incarceration. Most frequently appealed to and understood is retribution. Retribution is the practice of bringing about an intrinsic good by harming another to the extent that they are responsible for a proportional harm. Less commonly, we restrict the freedom of or directly harm others for reasons such as rehabilitation or protection of the public. I agree with Harris that this is all we really need to preserve our norms of quarantining and penalizing the more dangerous and less trustworthy members of society. This shouldn’t be foreign to anyone, given that this is exactly how we justify the harm parents and educators bring on young children, and to a lesser extent, teenagers and young adults. It’s only at a particular, but indeterminate stage of development that the robust sense of retribution seems appropriate, where you are punished precisely because you deserve it.
Theories of moral responsibility can broadly be distinguished as forward-looking and backward-looking. The former justifies both holding people accountable and society’s response (the enhancing and restricting of the population’s freedom) based on their ability to avoid harms and produce goods. A desert based form of moral responsibility is committed to the idea that were justified in holding people responsible because they’ve demonstrated themselves as good or bad in a way that is under their control and exemplifies their genuine character. Harris doesn’t think anyone really is deserving of reactive attitudes (e.g. praise and blame) because he takes desert to require the sort of control he thinks is impossible.
I share some of Harris’s skepticism over our capacity to exemplify a desert based notion of moral responsibility. There is a something inarguably true that our character/nature is not of our own making. We don’t have control over our parents, genes, culture, history, upbringing; all of which shape and constrain our mental and moral capacities. This is the problem of luck. Luck being just whatever is causally and morally relevant to your behavior that you don’t have control over. Almost all of the causal conditions behind our capacities and dispositions are outside of our control, and given that these are the principal sources of our action, how can we be held responsible for them?
I can see four strategies for reconciling constitutive luck and desert:
1. Argue that there are control-compensating features intrinsic to human agency
2. Reject moral responsibility altogether
3. Revise moral responsibility by substituting desert with an alternative justification
4. Qualify our notion of desert
(1) is the route of most free will affirmers, be they compatiblists and incompatiblists, (2) is endorsed by free will skeptics and hard determinists, (3) is accepted by Harris, Pereboom, and Vargas,(4) is my own proposal.
The qualification I have in mind consists of making explicit what one is responsible for and what one is deserving of, but first I’d like to clarify the folk conception of desert. The basic conditions for desert are free will and moral competence. Roughly speaking, moral competence consists in an agents capacity to understand and react to reasons (moral and otherwise). Moral competence explains how we respond differently to agents that interfere with our desires. We typically don’t react to a violent dog the same way we do to a violent person, or a drunk bar attendant, or an overly critical coworker. We expect these different classes of agents to be more or less (or not at all) understanding of why their behavior is unacceptable. This is grounded in their ability to understand moral reasons plus the availability of such reasons. For example, this is exactly what is expressed when someone says “they should have known better” in justifying their indignation at another’s behavior.
The central problem with desert is that we can only be justifiably blamed for what we can control, but much of our behavior is a result of our character, which we don’t control. We are born with a set of genetic dispositions, some of which are inexorably expressed, others can be nurtured or stifled. The extent and direction of these latter dispositions is largely dependent on our environment. We have little to no control over these influences, but especially as a child; and this is exactly when the majority of our character development takes place. For the most part, these factors are going to determine whether we’re hot-headed or easy going, depressive or cheerful, ambitious or content, curious or uninterested, stoic or sensitive, prone to addiction or not, etc; all of which can influence our moral competence
The challenge is whether it even makes sense to blame someone in light of these facts. I think the majority of this problem resolves itself once we understand desert as being explicitly restricted to the aspects of behavior that morally competent agents have control over. This sounds obvious, but most of our retributive practices ignore this, leaving its justification under-articulated. The result is the fusion of metaphysical freedom and moral competence, leading to the incoherent notion of having metaphysical freedom over one’s moral competence. This seems to be what is going on in the variety of retribution behind our criminal justice system. The attitude behind sentencing is often that the guilty individual choose to become the sort of person who is disposed to steal, kill, abuse, lie, etc. Their behavior expresses who they really are, which they alone determined.
While acknowledging this as impossible, I think we can preserve a desert based conception of moral responsibility. Praise or blame being justifiable in instances where a morally competent, metaphysically free agent is caught in a torn condition and chooses to act either in pursuit of what is just or what is merely prudent. Consider the following example. Dave is selling his truck out of desperation. He recently accrued severe gambling losses and will suffer worse if he doesn’t immediately settle his debt. A friend of his informed him of an especially credulous, undiscerning, and moderately wealthy coworker that’s been looking for a similar truck. He’s told that he is nearly guaranteed a sale, even while exaggerating the vehicles worth up to 50%. Also of note is that Dave was raised by gambling addicts that actively encouraged him to gamble. He started young and continued to do so until he fell into a set of drug habits. Eventually his health was in danger to the extent that he was desperate to do anything he could to distract himself from drugs. Finding gambling especially effective, he spent most of his free time at the casino, but having an addictive personality, was unable to stop himself. Finally, when showing the truck to his friends coworker, he’s met with enthusiastic response he expected. As tempted as Dave is to sell the truck at an exaggerated price, this is in conflict with his central desire to do what is right. He finds himself in the torn condition of being equally motivated to what is right and what is expedient. In the end, he sells his truck for far more than it’s worth.
I think it’s fair to say that Dave is blameworthy for his action because he choose to pursue what was convenient while knowing it was wrong and having the capacity to do otherwise. Though as we saw, Dave’s nature was largely shaped by features outside of his control. There were elements of luck involved in his nature, his circumstances, and the success of his actions. Since you can only be justifiably held responsible for what you can control, this severely limits the extent of his blameworthiness. There was constitutive luck involved in his genes and upbringing, circumstantial luck in the opportunity to sell his truck, and consequential luck in his loses and buyers acceptance. If any of these features would have been otherwise, he would very likely never scammed the man. Knowledge of these facts should incline us to restrict the extent of our reproach. In the same way we restrain our blame when dealing with children and the mentally impaired, we ought to modify our reactive attitudes in light of the way luck functions in life of all moral agents.
Blameworthiness can be undermined in a variety of ways. Luck is just one. It will be useful to situate luck within the general structure of limiting blame (1). Take some seemingly blameworthy act: out of nowhere, Mac pushes Jack. We naturally ask why he did it. There’s three strategies available to get Mac off the hook. That is, he can be justified, exempted, or excused, all of which can be mitigating or exculpatory. Justification means Mac had morally compensating reasons for pushing Jack. Perhaps if Mac hadn’t pushed Jack, he would have been hit by a brick. Alternatively, Mac could be criminally insane. Mac sometimes lashes out in a way that he can’t control. This would render Mac exempt from blame because he is not equipped with sufficient moral competence and self-control to function as the proper target of praise and blame. Finally, maybe Mac was pushed by Zach, so he couldn’t help but push Jack. In this case, Mac is excused from blame because didn’t have the opportunity control his action in this precise circumstance. These three are examples of exculpatory pleas. They are sufficient to wholly relieve one of blame.
However it doesn’t always work this way. Often when investigating a harm, we’ll discover context that partially relieves one of blame. For example, if Mac was being intentionally intimidated and threatened by Jack, we’ll find Mac not quite as at fault for pushing him. Since Jack hadn’t yet physically harmed him, Mac wasn’t fully justified in pushing, but perhaps he was to some degree. Next, assume that Mac has a severe anger problem. It doesn’t take much to upset him, and he only has so much control over this. Mac’s limited emotional stability ought to limit the degree to which we hold him responsible. This doesn’t mean he’s not sufficiently morally competent; it just entails that is somewhat diminished in self-control. So when Mac pushes Jack as the result of Jack teasing Mac, we might be not so severe in our condemnation of him. Finally, assume Mac is typically good-natured and exhibits self control, although recently he has been working two jobs (both of which he might lose), getting little sleep, as well as having severe marriage and financial problems. Jack tells a tasteless joke at Mac’s expense. Upon hearing the joke, Mac pushes Jack. Though it’s difficult to hold Mac entirely responsible given the number stressors, he has an excuse for his behavior (to an extent). In these three cases we have instances of discovering information that partially diminishes the extent of Mac’s blameworthiness. A partial justification, a mitigating exemption, or a mitigating excuse.
To review, one’s blame can either be exonerated or mitigated. This can either happen by way of having sufficient warrant to harm (justification), lacking the capacity to grasp and apply moral reasons and to govern one’s behavior in light of such reasons (exemption), or being deprived of the opportunity to properly exercise one’s capacities (excuse).. Whereas Harris seems to think of constitutive luck as exonerating, I take it to function as a universal mitigating exemption. Assuming we sometimes have the opportunity to do otherwise and possess the requisite moral competence, we can still be blameworthy for our actions, but this must be measured against the degree to which we lack control.
This mitigation applies as much to praise as it does to blame, but that’s not nearly as significant. What’s important is proportioning the extent to which we hold people blameworthy to the degree that they exercise control. On any plausible theory of free will and moral responsibility, whether it entails basic desert or not, the current criminal justice system is unjustified. This simply follows from the fact that we don’t include all of the possible mitigating and exonerating features in our assessments. In order to do so, one would have to have perfect moral knowledge as well as access to all of the facts relevant to the how control and luck have factored into anyone’s behavior. This is impossible. For this reason we can’t structure our criminal justice system around people possessing free will in the sense required for basic desert. This doesn’t mean we won’t have one. We simply must appeal to alternative justifications when dealing with those who harm (i.e. protection of the public, rehabilitation), which if performed consistently will inevitably lead to more humane treatment of the incarcerated.
The upshot of all this is that we can still make sense of basic desert in light of the ubiquity of luck, but just not without qualification. No one is praiseworthy or blameworthy simplictor , but this remains consistent with being praiseworthy or blameworthy in the deontic sense. This conception of desert has the advantage of preserving the notion that we exemplify the control necessary for moral responsibility, as well as making us sensitive to the relevant factors that are not in our control. However this case is dependent on us sometimes being able to make metaphysically free decisions. If Harris turns out to be right that we don’t have this capacity, then I think we would have sufficient reason to conclude that humans are never morally responsible in the basic desert sense.
- Franklin, Christopher Evan. ‘A Theory of the Normative Force of Pleas’, Philosophical Studies 163:2, (2013): 479-502.