Attempt Liability and Moral Luck (Part Two)

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(Part One, Series Index)

This is the second part in my short series on attempt liability and moral luck. As explained in part one, attempt liability is a concept from criminal law. It holds that it is legitimate to hold someone criminally liable for an attempted crime as well as for a completed crime. This poses certain problems, which were highlighted the last time. Those problems are connected to the more general problem of moral luck, which is the problem of determining how to account for the role of luck in our moral assessments.

Part one looked at three basic arguments in favour of attempt liability. In this part, we’ll look at three arguments on the other side of the debate. In compiling this list of arguments I’ve taken inspiration from the following article:

K. Kessler “The Role of Luck in the Criminal Law” (1994) 142 University of Pennsylvania Law Review 2183

But I haven’t covered every argument mentioned in that article; I’ve just selected the three I think are most interesting.


1. The No-Harm Argument
The first argument against attempt liability focuses (like the harm prevention argument from part one) on the purpose of the criminal justice system. More specifically, it focuses on the purpose of a criminalisation. It argues that certain actions, results and states of affairs are criminalised because they are harmful — in other words, it argues that the nature of a crime is such that it is something that is inherently harmful. The problem the argument then raises is that attempts are not, by nature, harmful. Therefore, it follows that attempts are not crimes.

• (1) For any X (where X is an action, result or state of affairs), X is a crime if and only if X is a harm.

• (2) Attempts are not harmful.

• (3) Therefore, attempts are not crimes.

There are many problems with this argument. One problem is that (2) could be false. Although some attempts might not be harmful, it could well be that others are harmful. Part of the issue here is how we define “harm”. Harms could be defined broadly to include psychological harms, or narrowly to only include physical harms (covering harms to property as well). The choice could be crucial in deciding whether an attempt is harmful since an attempt could cause psychological harm even if it didn’t cause physical harm. Then there’s the issue of how we define “attempt” itself. In the criminal law, an attempt is typically defined as something that is “more than merely preparatory” to an offence. Now, it’s quite possible that an action that is more than merely preparatory to murder could cause serious harm. So, under the definition just given, an attempt might be harmful. The problem with that, however, is that so many of harmful acts that fall short of murder are themselves criminalised. So it’s likely that if someone harmed another, but didn’t kill them, a lesser offence such as assault would be substituted. The only reason for choosing attempted murder over these lesser offences is if it leads to a higher punishment.

The bigger problem with this argument is that it is a conceptual/definitional argument, not a normative one. It focuses on the properties that an event or state of affairs must have in order to count as a crime. But the concept “crime” is not some kind of metaphysical necessity, etched into the fabric of the universe; it is instead a social construct, something whose boundaries we can change if we wish.

So for this argument to work we’d need to change premise (1) so that it becomes normative not definitional. For example:

• (1*) For any X (where X is an action, result or state of affairs), X should be criminalised if and only if X is a harm.

But when we do this the harm-essentialist view of crime might seem less plausible. We could then ask the question: why shouldn’t increasing the risk of harm be enough for X to count as a crime? Is that not something our risk averse society should seek? This leads us back to the harm prevention argument covered in part one.

Finally, another problem with the argument is that it focuses on the justification of criminalisation, not on the justification of punishment. When it comes to attempt liability it is the latter, not the former, that is important. This is significant because, if we adopted a utilitarian view of punishment, avoiding the risk of harm might be enough to justify the existence attempt liability. (Note: it could well be that criminalisation and punishment are inextricably linked so that justifying the one necessarily justifies the other. That’s an argument some people have made, but it’s not something I’ll get into here).



2. The Moral Luck Argument
This next argument links us directly back to the problem of moral luck, which was introduced in part one. As I noted there, one of the major developments in the 20th century analysis of moral luck, was the realisation that luck plays an important role in our everyday moral judgments. In particular, there was the realisation that we already seem to believe that the presence of luck should alter our moral judgments. And that our intuitive reactions and social practices reveal this to be true.

Consider the following example, drawn from a previous post:

Conference Organisation (1): You take responsibility for organising a conference. You invite the keynote speakers, send out the call for papers, book the venue, arrange for travel and so on. Everything is going well up until the day of the conference. Unfortunately, on that day, a freak snowstorm hits. No one can travel to the conference and the event has to be called off.

Conference Organisation (2): Same as (1) except that there’s no snowstorm. The conference is a resounding success.

Luck clearly separates these two cases. The conference organiser in the first example was a “victim” of what we might call bad luck, whereas in the second they are “victims” of good luck. Yet, when it comes to assessing both individuals, it is highly likely that the person in the second case will be rewarded for the success of their conference, while the person in the first case won’t be. But why is that? They both did the exact same things, the only difference between them is the kind of luck they were exposed to. Why should one be rewarded and the other not? The only way to explain this practice is to suppose that luck plays an important part in how we morally assess agents.

But this is just to point out how things actually are. How do we translate an observation about what is the case into an argument about what should be the case? After all, just because we do react this way, doesn’t mean we should. What will decide the matter is the weight we attach to intuitive reactions in our moral reasoning. If we attach a high weight to intuitions, then we might agree that luck should play a part in our moral reasoning. Hence, it would then seem to follow, that attempt liability is not (entirely) legitimate. On the other hand, if we attach more weight to principles (such as the control principle of responsibility) we might lean in the other direction.


3. The Deterrence Argument
People who read part one might be surprised to see deterrence cropping up again since in part one a deterrence argument was used to support the legitimacy of attempt liability. How can we now turn around and say that deterrence-based considerations support the other side of the debate? Very easily, actually. Deterrence is a tricky concept, its applicability depends crucially on the assumptions we make about human reactions to incentives. If those assumptions are wrong, or if there is some doubt about them, it is quite possible for a deterrence-based argument to work both ways.

So how does the deterrence argument against attempt liability work? Here’s a suggestion:

• (1) In order for an agent to be deterred from doing X (where X is an option the agent can exercise), the overall utility of X must be less than the overall utility of ~X.

• (2) If attempted offences are punished in the same way as completed offences, then the overall utility of an attempt is not more than (and possibly less than) the overall utility of a completed offence.

• (3) Once an agent has begun to attempt an offence they have only two options: (i) don’t complete the offence; or (ii) complete the offence.

• (4) Not completing an offence after one has begun attempting it does not have more utility than completing the offence, in fact, it might have slightly less (from 2).

• (5) Therefore, an agent will not be deterred from completing an offence once they have begun to attempt the offence (from 1, 3, and 4).

The idea here is clear enough. If someone wants to murder another person, then, if attempts are punished in the same way as completed crimes, they will have no incentive to refrain from murdering that person if they have started an attempt. Why bother? If their punishment is going to be the same in both instances, why not finish the job? But, so the follow-up argument would go, this is perverse: we should prefer attempts to completed crimes since they are less harmful (even if they do cause some harm). So we shouldn’t allow for attempt liability.

Of course, this argument only really bites on the equivalency version of attempt liability, i.e. the version that holds that attempts should be punished in the exact same way as completed crimes. If a lesser punishment attaches to attempts, then the deterrent effect would return (even if it’s minimal) and you would get the added benefit of deterring attempts as well.

Okay, so that brings us to the end of this series. As you can see, there are some reasonable arguments to make on both sides. I’m not going to try to assess which side wins the debate. In an annoying move, I’m going to leave that up to you.

Attempt Liability and Moral Luck (Part One)

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(Series Index)

This post is the first in a short series on the combined issues of attempt liability and moral luck. Attempt liability is an idea arising out of criminal law. It holds that a person can be held criminally liable for attempting an offence, such as murder or rape, as well as for completing an offence. And moral luck is….well, moral luck is one of the more interesting conceptual developments in 20th century ethical philosophy. I’ll talk about it in more detail later.

The purpose of this series is to address a simple question: is it right hold someone criminally liable for attempting, as opposed to completing an offence? This entry introduces the basic problems associated with attempt liability, their connection to the problem of moral luck, and some basic arguments in favour of attempt liability. The second entry will consider the arguments against attempt liability.

I’m going to be working off a variety of sources for this post. I’ll provide relevant links as I go along.


1. The Problem(s) of Attempt Liability
So should an attempted murderer be punished in an equivalent manner to a successful murderer? Before you answer that, let’s pump some intuitions with the following case study:

The Poisoning in the Teacher’s Room (A): Mike and Marge both teach at the local high school. They don’t like each other very much, and clash repeatedly during their daily exchanges in the teacher’s room. Finding it’s all too much to take, Mike decides to poison Marge. In the teacher’s room there are two large pots containing loose-leaf tea leaves or ground coffee. Marge drinks coffee every day. So Mike decides to place a quantity of poison in the coffee pot, just prior to her taking some to make her daily cup of coffee (he’ll replace it after, before anyone else takes some poison). He does this and succeeds in poisoning and killing Marge.

The Poisoning in the Teacher’s Room (B): The exact same as above only at the last minute, for some unknown reason, Marge switches from drinking coffee and decides to drink tea instead.

How do you feel about these two cases? Do you think Mike is just as culpable in Case A as he is in Case B? If you do then you are accepting (subject to defeaters) that attempt liability is a legitimate idea. But in doing so you open up the door to some problems. Chief among them being the problem of distinguishing an attempt from a non-attempt.

One of the core values in a liberal society is that people are free to think and act as they wish as long as they do not harm anyone else in the process; one of the hallmarks of the totalitarian society is its attempt to regulate, control and punish thought and behaviour, irrespective of whether it harms anyone else. The problem with allowing for attempt liability is that you may begin the slide from liberalism to totalitarianism. While we may feel comfortable treating Mike from Case A the same as Mike from Case B, in doing so we might set a dangerous precedent for future cases, a precedent that blurs the boundary between an attempt and a non-attempt.

(See the discussion of precedential slippery slope arguments in this post for more on the arguments that might be made here).

Consider the following two variations on the poisoning case:

The Poisoning in the Teacher’s Room C): Mike decides to poison Marge. He reads up about poisoning on the internet, buys some poison and plans out exactly what he is going to do. But at the last minute he gets cold feet and doesn’t put the poison in the coffee pot. Marge lives on oblivious, but Mike later tells a colleague of his plans and they inform the police (this last bit is probably irrelevant from a moral perspective, but important from an evidential one).

The Poisoning in the Teacher’s Room: Mike would love to poison Marge, but he just doesn’t have the courage. He fantasizes about it every day, planning the act meticulously in his mind, but never bringing it to fruition. He tells his therapist, but she sees no threat in his fantasies.

How do we feel about these two cases? I suspect we’d feel that Mike from Case D should be exempt from liability: his idle fantasies are exactly the kind of thing we want to protect from government intervention in a liberal society. But how about Mike from Case C? What he did was clearly less culpable than what he did in case B, but we might still feel like some intervention, or minimal form of liability is merited. Indeed, the criminal law can allow for some liability through the offence of conspiracy. However, by allowing for this we’ve definitely begun to slide from pure liberalism. That might be a perfectly acceptable thing to do — a capacity for nuance and an appreciation for the moral complexity of the real world are qualities we might like the criminal justice system to exemplify — but we have to consider where the boundaries should be drawn, if at all.

Distilling from the preceding discussion, there are perhaps three core boundary-line problems associated with attempt liability:

The Slippery Slope Problem: Should we even begin to punish attempts in addition to completed crimes?

The Equivalence Problem: Should we punish attempts in the exact same manner as completed crimes?

The Gradient Problem: Should we grade attempts in terms of their seriousness, and punish them in accordance with their location on the gradient?

Our primary focus will be on the first two problems, not so much on the third. I want to explore the arguments that propose different answers to those two problems. But before I do that I want to talk a little bit more about the issue of moral luck.


2. The Problem of Moral Luck
The problem of attempt liability links to a more general problem in moral philosophy, namely: the problem of moral luck. This is something which has garnered much attention in the relatively recent past. This largely began in the late 70s/early 80s when Thomas Nagel and Bernard Williams wrote a pair of classic articles on the topic.

The problem of moral luck can be simply stated: what role should luck play in the moral assessment of someone’s actions, accomplishments, failures, achievements and so on? Luck can be roughly defined as any action, event or state of affairs that is outside the control of the person being assessed. In his analysis of the issue, Nagel identified four main varieties of moral luck. They are (taken from the SEP article):

Resultant Luck: This is luck relating to the results of our actions. Poisoning cases A and B give us some idea of what is involved here. In both cases, Mike acted in the exact same way, but the results of his actions were different. In one instance, they led to the death of Marge, and in the other they did not.

Circumstantial Luck: This is luck relating to the circumstances in which one finds oneself. The classic example here being those who found themselves living in Nazi Germany in the 1930s. They likely did things that many of us would do (follow authority, act in their own self-interest) only they did so in appalling circumstances, circumstances which were outside of their control but made them complicit in an atrocity.

Constitutive Luck: This is luck relating to the kind of person that you are. Although we might like to think that we control our character traits and personality tics, our genes and our environment must play a considerable role in determining their content. These factors are beyond our control and could impact upon our moral choices.

Causal Luck: This is luck relating to the antecedent causes of who we are and how we act. Nagel views this as being equivalent to the issue of causation and determinism in the free will debate.

Now I’ll have to be honest and say I don’t see the need to distinguish between constitutive and causal luck. They seem like very similar concepts to me. Nevertheless, I think there is some utility to the resultant/circumstantial distinction. Indeed, within the criminal law — which is where the issue of attempt liability arises — this distinction is significant. This is because crimes are typically distinguished from one another on these kinds of grounds. For example, murder is a result-oriented offence: the actus reus of murder is the death of one person as caused by actions of another. In contrast, rape is a conduct and circumstances-oriented offence: the actus reus of rape is (usually) penetration of a bodily orifice of one person by the penis of another (conduct), without the consent of the person being penetrated (circumstance). So the conceptual and normative issues associated with resultant and circumstantial luck could be important when assessing attempt liability.

I previously said that the problem of moral luck has to do with whether luck should play a role in our moral assessments. That characterisation of the problem is sort of correct, but not quite all the way there. One of the realisations to emerge from the Nagel/Williams exchange in the 70s/80s was that luck does seem to play a substantial role in our everyday moral assessments. That is to say, we already seem to allow for moral blame to attach even in the presence of luck. So, to them and to most contemporary philosophers, the problem of moral luck is not “whether” luck has a role to play but, rather, how to account for the role that it does play. Of course, that’s not to say that the more general normative issue of “whether” is ignored — far from it — but it does suggest an alternative perspective is being taken on the problem.

Anyway, we now need to move away from this problem-setting stage and on to the problem-solving stage. We do this first by looking at three arguments in favour of punishing attempts and treating them as (roughly) equivalent to completed crimes. These arguments are: (i) the control argument; (ii) the harm prevention argument; and (iii) the deterrence argument. Let’s look at each in turn.


3. The Control Argument
The control argument appeals to the most common principle of responsibility, namely: an agent should only be liable for those results (and circumstances) that are within their control. From there it builds a case for treating attempts the same as completed crimes. Using the poisoning cases from earlier as a reference, this is the basic control argument:

• (1) An agent is (only) liable for the results and circumstances that are within their control.

• (2) In terms of results and circumstances, Mike from Case A exercised control over the exact same things (no more, no less) as Mike in Case B.

• (3) Therefore, if Mike from Case A is liable for something, Mike from Case B is liable for the exact same thing.

• (4) Mike from Case A is liable for the murder of Marge.

• (5) Therefore, Mike from Case B is liable for the murder of Marge.

Although the logic here seems valid enough, the conclusion is strange. How can Mike be liable for murder in case B when Marge isn’t dead? After all, murder requires an actual death, doesn’t it? Since the conclusion seems strange we might be inclined to think that at least one of the premises is dodgy, but let’s not be too hasty. I suspect the reason for thinking that the conclusion is strange stems from confusing liability and responsibility. This is something I’ve spoken about before. Roughly, liability is concerned with the price one has to pay for one’s actions; whereas responsibility is concerned with the outcomes that one actually brought about. Since this argument is framed in terms of liability, not responsibility, I think it makes sense: Mike must pay the same price in both cases because he controlled the same things, despite the fact that his actions led to a different result.

Even still, there might be something wrong with the premises. For instance, we might argue that control is not the only thing relevant to liability, that utilitarian principles can also be used to determine who should pay the price for something. In that case, premise (1) would be faulty. But that wouldn’t necessarily spell the end for attempt liability because utilitarian principles might just as easily be used to support the case for attempt liability. Indeed, this is exactly what the next two arguments hold.


4. The Harm Prevention Argument
Like the control argument, the harm prevention argument works from a very simple idea. The idea is that the purpose of the criminal law is to identify those wrongs which we would prefer not to occur. And since those wrongs are usually (and probably preferably) linked to harms, it would seem that the criminal law is designed to prevent harm. Think about it like this. The reason we classify murder as a crime is because we don’t want people to kill one another. And the reason we do this is because deaths are harmful and we wish to prevent harm.

But then, if our goal is harm prevention, why should we wait until the harm has been caused before intervening? In other words, why doesn’t the following argument hold?

• (1) The criminal justice system ought to prevent harm.

• (2) Intervening before a crime has been completed (but after it has been attempted) prevents more harm than intervening after the crime has been completed.

• (3) Therefore, the criminal justice system ought to be willing to intervene before a crime has been completed, not just after.

This argument is fine, in so far as it goes. The problem is that it doesn’t go far enough. While it might be true that, if we’re interested in harm prevention, we ought to try to prevent harm and not just step in after it occurs, this doesn’t say anything about whether we should hold someone liable for attempting a crime. In other words, the argument fails to answer the question: why can’t we just prevent the crime and leave it at that (without punishing the attempt)?

There are a number of possible replies (impracticality, epistemic hurdles etc). The next argument is one of them.


5. The Deterrence Argument
Let’s say we accept the basic tenets of the harm prevention argument. What we then need is some principle to plug the gap between intervention and liability. A deterrence argument might be exactly what we need. A deterrence argument will work off the idea that there are certain incentives that make people more likely to respond or behave in a particular way in the future. In many ways, the goal of any social engineer is to craft a network of incentives that encourages people to behave in ways you like, and deters them from behaving in ways you do not like.

When it comes to attempt liability, the proponent of deterrence is going to argue that intervention+punishment is going to be a more effective deterrent than intervention on its own. And if it is a more effective deterrent, then it is going to prevent more harm going into the future than an intervention.

This leads us to the following argument:

• (1) The criminal justice system ought to prevent as much harm as possible.

• (2) Intervening and punishing attempts (i.e. creating a system of attempt liability) will prevent harm than just intervening before crimes are completed (because it provides a greater deterrent).

• (3) Therefore, the criminal justice system ought to create a system of attempt liability.

This argument, which is subtly different from the harm prevention argument, provides some justification for attempt liability. The second premise would be supported by the deterrence-based reasoning that I outlined in the two preceding paragraphs.

Is the argument any good? Well, note the change in premise (1) from the version in the harm prevention argument. One might argue that this change is both crucial and problematic. It is crucial because without it the deterrence based objection to intervention without liability won’t work. It is problematic because it may claim too much for the criminal justice system. Should we really aim to prevent as much harm as possible? Probably not, especially if doing so will also prevent us from doing other things that we might value. Whether deterrence actually do that is a question worth pursuing. All I’ll say here is that by using deterrence as the justification for imposing liability, we may slide down the slope towards totalitarianism. After all, totalitarian societies might be very safe places to live, but they achieve this at the expense of other values.

Okay, let’s leave it there for now. In part two, we’ll look at the arguments on the other side of the debate.

Free Will, Punishment and Responsibility (Series Index)

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I've been blogging a lot recently on the philosophy of responsibility, punishment and, to a lesser extent, crime. Since I'm likely to continue addressing those topics in the coming weeks and months, I thought it was time to provide an index to all the posts I've written so far. I've divided them into three specific groups, but the divisions are far from pure. Anyway, you can expect this to grow somewhat in the near future.


1. Free Will and Moral Responsibility

• Free Will: a Conceptual Framework
• Who's Afraid of Determinism (Part One, Part Two, Part Three)
• Action, Responsibility and the Ability to do Otherwise (Part One, Part Two)
• Present Luck and Little Agents
• Fischer, Frankfurt and Flickers of Freedom (Part One, Part Two)
• The Frankfurt Counterexample Defended by Nucci
• List on Free Will and Determinism (Part One, Part Two)
• Waller's Argument Against Moral Responsibility (Part One, Part Two)
• Are hierarchical theories of free will and responsibility plausible?
• Freedom: Non-frustration, Non-interference and Non-domination (Part One, Part Two)
• Pereboom's Case for Hard Incompatibilism
• Did my brain make me do it? (Part one, Part Two)
• Psychopaths and Moral Responsibility: Empirical and Philosophical Issues

2. Theories of Punishment

• The Ethics of the Death Penalty
• Moore on Justifying Retributivism (Part One, Part Two)
• Theories of Desert
• Brooks on Retributivist Arguments Against the Death Penalty (Part One, Part Two)
• The Problem of Punishing the Innocent
• The Ethics of Pre-Punishment (Part One, Part Two, Part Three)
• Kramer on the Purgative Rationale for Capital Punishment (Part One, Part Two)
• Consequentialist Theories of Punishment (Part One, Part Two, Part Three)
• Is the death penalty irrevocable? (Part One, Part Two)
• Can death be a fitting punishment?
• Does the criminal law deter? (Part One, Part Two)
• Are we innate retributivists? Review of the Psychological Evidence
• The Psychology of Revenge: Biology, Evolution and Culture

3. Criminal Responsibility and Liability

• Madness, Badness and Neuroimaging-based Responsibility Assessments (Part One, Part Two, Part Three)
• Vincent's Structured Taxonomy of Responsibility Concepts
• Taking Responsibility vs. Being Morally Responsible
• Vincent on the Responsibility-Liability Gap
• Attempt Liability and Moral Luck (Part One, Part Two)
• Attempted Crimes and Changes of Mind
• Addiction and Responsibility (Part One, Part Two, Part Three)

Book Recommendations (Index)

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I've decided to do a series of posts giving short book recommendations. Since I usually read far more interesting stuff than I could ever possibly write about in a substantive way, I figure a series of short posts just recommending things I've read might be worthwhile. Also, each post will give readers an opportunity to recommend things that they've read too.

I won't give any ratings or substantive criticisms of the books I recommend here, I'll just provide a couple of reasons for thinking the book is worthwhile. Also, while my main focus will be on philosophy books, I won't limit myself to those.


An Index to Recommended Books


1. Just the Arguments: 100 of the most important arguments in Western Philosophy

2. Contemporary Theories of Liberalism (Gaus)

3. The Art of Strategy (Dixit and Nalebuff)

4. Human Enhancement (Savulescu and Bostrom)

5. The Logic of Real Arguments (Fisher)

6. God in the Age of Science (Philipse)

7. The Ethics of Voting (Brennan)

8. On Politics (Ryan)

9. The Problem of Political Authority (Huemer)

10. Books on Writing (Various)

11. Philosophical Devices (Papineau)

12. Contractualism and the Foundations of Morality (Southwood)

13. Moral Tribes (Greene)

14. Gratuitous Suffering and the Problem of Evil (Frances)

15. The Mind-Body Problem (Goldstein)

Book Recommendations ♯1: Just the Arguments

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(Series Index)

Regular readers of this blog will be aware of my penchant for argument analysis. It is perhaps a sad reflection on my hobbies, but there’s nothing I like more than taking a passage of argumentative writing, breaking it down into its key components (reasons, conclusions etc.), and then reconstructing it in a formal or diagrammatic way.

There’s something beautiful about a well-constructed formal argument. It compresses masses of information, it provides a structure for persuasive and critical thinking, and reveals strengths or weaknesses in someone’s reasoning. When you formalise an argument, you can usually instantly highlight points of disagreement and agreement. What’s more, since philosophy should be a inquisitive, not a persuasive, enterprise, the formalisation of arguments allows you to identify useful areas of future research and inquiry.

Given my love for arguments, it will comes as little surprise to learn that I’m a big fan of Michael Bruce and Steven Barbone’s recent edited collection Just the Arguments: 100 of the Most Important Arguments in Western Philosophy. The book is definitely one that can be judged by its cover, or, more properly, its title. It features one hundred individual chapters by different authors, albeit with some repeat offenders along the way. Interestingly, this adds up to more than 100 arguments. For example, the opening chapter on Aquinas’s Five Ways contains, unsurprisingly, five separate arguments.

By and large, the content is good. It ranges over the full suite of philosophical topics: religion, metaphysics, epistemology, ethics, mind, science and language. The chapters are usually short enough to read through in five to ten minutes, although some of the longer ones will take up more time. The arguments are typically presented at the end of each chapter, and references are provided to primary and secondary sources at the start of the chapter. The arguments themselves vary from being extraordinarily complex to admirably brief. On the complex side of things, check out the chapter on Kant’s categorical imperative which features 27 premises and 14 conclusions; while on the brief side of things, check out the chapter on G.E. Moore’s anti-skeptical arguments which have 2 premises and a conclusion.

I wouldn’t hesitate to recommend the book to anyone with an interest in philosophy. The editors pitch the book at students, suggesting it might provide an ideal revision tool since most philosophy courses can be boiled down to a few key arguments. But I think professional philosophers and interested lay people could easily benefit from it too. I can certainly imagine myself dipping into some afternoon, and perhaps squeezing a blog post out of one the chapters.

There are some criticisms to be made though. First, because the chapters are written by different contributors, the quality is somewhat patchy. And while it’s nice to have short chapters for ease of reference, I find the longer chapters with background and context are more enjoyable to read, particularly for topics outside my main areas of research. Also, some contributors are a little too sparing with their bibliographies when compared to others. I think it would be nice to have a reasonably detailed bibliography in each chapter for those who wish to follow things up in more detail.

Facebook Page

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I've set-up a facebook page for the blog. I'll put links to all new blog posts on there, as I do with my twitter page. Not sure how useful this will be, but if facebook is your main portal to the web, and if you're a fan of this page, you might like to check it out.

I've put a link to it in the sidebar, and below too:

Philosophical Disquisitions Facebook Page

Enhancement and Education: Lessons from the Kobayashi Maru (Part Two)

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(Part One, Series Index)

This post in the second in my two-parter on the lessons we can draw from the Kobayashi Maru (KM) for the enhancement-in-education debate. The KM test is, of course, a part of the Star Trek canon. It is supposedly an unpassable test but, according to Trek lore, Kirk managed to pass the test. The problem is that he did so by reprogramming it to make it passable. The question I’m considering now is whether this was legitimate.

In a change from my normal practice, I’m going to continue directly on from part one (this is reflected in the numbering of the sub-sections). So, in other words, you really need to read part one before attempting this.


3. Spock’s Argument Against Kirk
Should Kirk’s “pass” on the KM really be a “fail”? The obvious answer would appear to be “yes”, but let’s consider the reasoning behind the obvious answer in a little more depth.

According to the most recent film, Star Trek, Spock was the creator of the test, and he clearly thought that Kirk had defeated the true purpose of the test by cheating. As a result, his success was illusory and should be deemed illegitimate. Indeed, Spock directly challenged Kirk, through disciplinary proceedings, on this issue. This is revealed in the courtroom-like scene in the film where Kirk asks to confront his accuser, who turns out to be Spock. Unfortunately, I couldn’t find the relevant clip on youtube, so you’ll have to look it up on your own time (assuming you have access to a copy of the film).

More important than the clip though is Spock’s reasoning. As creator of the test, Spock clearly had an intended learning outcome (ILO) that he wanted to achieve with the test. He states this pretty clearly at one point. He says the purpose of the test was to get the student to experience fear in the face of certain death and to see how they coped with it. This means that the KM-test was not intended to be a test of problem-solving skills, but, rather, a test of character. Consequently, its the no-win scenario was a core part of Spock’s ILO.

This leads to the following argument:

• (4) If you succeed in a test by avoiding the ILO of that test, your success is illegitimate and illusory.

• (5) The ILO of the KM-test is to see whether someone has the psychological resilience to cope with a no-win (certain death) scenario, not to develop their problem-solving skills.

• (6) By reprogramming the test, Kirk avoided having to cope with a no-win scenario.

• (7) Therefore, Kirk’s success on the KM-test was illegitimate and illusory.

This argument appears to be valid. So if its premises are true, Spock’s accusation against Kirk is vindicated (then again, we’d expect this since Spock is, supposedly, “logical”).

So are the premises true? I think premises (5) and (6) are relatively uncontroversial: (5) is what the (admittedly fictional) Spock claims for his test himself and (6) seems like a fair description of what Kirk did. Premise (4) is the tricky one. Its justification could be based on what I said in part one about constitutive regulations and ILOs, but I don’t want to spell out that argument just yet (for reasons that should become clear). Instead, I’ll offer a prima facie justification of it by way of analogy.

The analogy is as follows. Suppose I assess my philosophy 101 course with an essay. The essay asks the student to offer an argument for or against the following proposition: “Abortion is immoral”. The ILOs for the students taking this course would include: (i) acquire knowledge of relevant subject matter in ethical philosophy; (ii) develop the ability to think critically and reasonably about a controversial ethical topic; and (iii) develop the ability to present an argument about this issue in a readable manner. The essay is supposed to provide evidence as to whether those ILOs have been achieved.

Now suppose that instead of researching, thinking and writing about the topic in the required manner, a student simply buys an essay dealing with this topic from an online essay-mill and hands it in as if it is their own work. This essay might be quite good and might, if I can’t tell the difference between it and a genuine essay, garner a pass grade or higher. This means that the student would (officially) appear to have succeeded in the test. But then ask yourself: would that student’s success be legitimate? No, obviously not. It would be both illegitimate and illusory. And why is this? Because the success was gained by avoiding the ILOs. Thus, premise (4) would seem justifiable.

Is this enough for Spock’s argument to go through? Not quite, we have to consider Kirk’s potential rebuttal and counterargument.


4. Kirk’s Rebuttal and Counterargument
To be clear, nowhere in the Star Trek canon does Kirk actually present anything like a formal rebuttal and counterargument to Spock. He does, however, present his reason for reprogramming the test. In Wrath of Khan — during one of the scenes set in the cave on the Genesis moon, if you must know — Kirk says, with admirable brevity, that he cheated because he doesn’t believe in the no-win scenario. I think we can expand upon this single reason to present a more formal response to Spock’s argument.

I’ll focus first on a potential rebuttal of Spock’s argument. A rebuttal is an argument or premise that challenges a premise in the main argument. In this instance, the rebuttal will be aimed at premise (4). You see, despite the prima facie justification offered above, there is some reason to doubt its truth. This reason is linked to some of my previous comments on ILOs and their connection to the constitutive regulation argument (see part one for details).

Basically, my feeling is this: an ILO can only be part of a constitutive regulation argument if the ILO is itself morally legitimate, and the problem with ILOs is that they need not always be morally legitimate. Indeed, if one of the key properties of an ILO is that it is linked to what a teacher intends for their students to get out of a course, then there’s no reason why an ILO can’t be morally arbitrary. For example, I could make learning the names of all my relatives one the ILOs for the students on my philosophy course. I could even assess them on this by asking them to name my relatives at the end of their essay. However, this ILO would be morally arbitrary and the students would be right to challenge me on it (or to “cheat” on this part of the assessment if they so wished).

So premise (4) is rebutted by this:

• (8) You are within your moral rights to bypass or avoid an ILO if that ILO is morally illegitimate or morally arbitrary.

And so should be revised accordingly.

All of which leads us to the counterargument to Spock. A counterargument is an argument that stands in direct opposition to the conclusion of another argument. So in this case we want an argument that contradicts (7), from above. How can we construct such an argument? Well, we can start by picking up the trail left by the rebuttal that I just outlined. The rebuttal works because it assumes that some ILOs are legitimate and some are not. Furthermore, it assumes that a student can be within their moral rights to bypass an illegitimate ILO.

This raises an intriguing possibility. What if, in addition to having a ILOs that are legitimate/illegitimate, we could also have hierarchical relationships among legitimate ILOs? In other words, what if some ILOs were more legitimate than others? And what if, recognising that there was a “more” legitimate ILO in place, a student achieved it by avoiding a lesser ILO? Might that make the practice of avoiding a legitimate ILO acceptable?

Like I said, it’s an intriguing possibility. It’s also a possibility that could work in Kirk’s favour. After all, I don’t think we can say that Kirk’s success was legitimate because Spock’s ILO was morally illegitimate — cultivating the psychological resiliency to face death seems like a legitimate ILO for command-track cadets in Starfleet — but we might be able to say that his success was legitimate because he achieved a greater ILO at the expense of a lesser one.

This raises the obvious question: what might the greater ILO be in the case of the KM-test? Here’s a suggestion. Most educators would agree that one of the supreme goals of any type of education is to cultivate the capacity for critical thought among students. Critical thought is understood to include the ability to question taken-for-granted assumptions through the use of reason and logic. If students can demonstrate this ability, most educators would be pleased.

So perhaps this is what Kirk was doing when he “cheated” on the KM-test. Perhaps through reprogramming the test he demonstrated a capacity for critical thought that should be rewarded, not punished. As follows:

• (9) If a student succeeds on a test by avoiding one legitimate ILO for the sake of a more important ILO, then their success is not illegitimate or illusory (in fact, it’s the very opposite).

• (10) Demonstrating the capacity for critical thought (an ILO for nearly all educational projects) is more important than demonstrating the psychological resiliency to cope with a no-win scenario (Spock’s ILO for the KM-test).

• (11) The capacity for critical thought consists primarily in the ability to challenge taken-for-granted-assumptions.

• (12) The implicit taken-for-granted assumption of the KM-test is that there is such a thing as a no-win scenario.

• (13) By reprogramming the test, Kirk demonstrated an ability to challenge the assumption that there is a such a thing as a no-win scenario.

• (14) Therefore, Kirk demonstrated a capacity for critical thought (from 11, 12, and 13).

• (15) Therefore, Kirk’s success on the KM-test was not illegitimate or illusory (from 9, 10 and 14).

Again, I think this is valid and it might make us more sympathetic to Kirk’s solution. I’ve illustrated the relationship between this argument and Spock’s argument in the diagram below.

For all the sympathy that Kirk’s counterargument might engender, it has a number of weak links. For starters, premise (10) might be controversial. Someone might argue that the hierarchy is the other way round or, worse, that hierarchical relationships cannot be established between ILOs because they are fundamentally incommensurable. Additionally, someone might dispute premise (13) and say that mere act of reprogramming does not provide good evidence of critical thought.

These objections are certainly worthy of consideration, but I think there is a more interesting one. The argument above (premise 12) suggests that the KM-test comes with a taken-for-granted assumption about no-win scenarios. It further suggests (premise 13) that challenging that assumption would be the way to demonstrate critical thought. Consequently, since Spock’s ILO requires the assumption about the no-win scenario, demonstrating critical thought would have to come at the expense of Spock’s ILO.

But maybe that’s the wrong way to look at it. Maybe the KM-test is itself designed to challenge a taken-for-granted assumption. Most students would enter a simulated test like the KM with the assumption that there is some kind of “solution” to the problem. They might then carry this assumption with them into the real world when they should really be open to questioning it. Thus, it may be that in programming the test so that there is no solution, Spock actually gets them to both (a) challenge their own assumptions about these kinds of scenarios and (b) test their psychological resiliency by getting them to confront death. In other words, achieving Spock’s ILO need not come at the expense of critical thought. Indeed, it might actively require a capacity for critical thought.

In the end then, whether we side with Kirk or Spock might just come down to which assumptions we think are worthy of challenge and whose challenge would hence be more indicative of critical thought. So whether Kirk’s success was legitimate or not is, as I said at the outset, a close run thing.


5. Lessons for the Enhancement Debate

At last we come to the topic that I started out with: the legitimacy of enhancement in the educational context. Can the analysis of the Kobayashi Maru tell us anything interesting about this issue? On one level, the analysis of the Kobayashi Maru is just a bit of fun; but on another I think it has some interesting lessons for the enhancement debate. Here are the two that occur to me:

The Normative Irrelevance of ILOs: The first lesson has to do with the normative salience of ILOs. As should be clear from what I said, ILOs are not necessarily normatively significant. Since they are linked to the intentions of the teacher, it is possible for them to be normatively arbitrary. This has important consequences for anyone who wishes to object to enhancement because they might cause students to bypass or avoid certain ILOs. They first have to make sure that the ILOs being avoided are normatively significant.

The Link Between Enhancement and ILOs: The second lesson has to do with how the use of enhancement might be linked to the avoidance of a normatively significant ILO (or, alternatively, how it might be linked to the achievement of an ILO). Kirk’s reprogramming of the KM-test was (depending on how you look at it) either directly indicative of a failure to achieve an ILO or directly indicative of success in achieving an ILO. It was directly indicative of a failure to confront death (Spock’s ILO), or directly indicative of an ability to think critically (a more general ILO). Thus, it is possible to make a fairly simple normative argument for or against Kirk’s actions. This is interesting because most enhancement technologies are unlikely to be directly linked to ILOs in this manner. The effect they actually have on achieving ILOs is likely to be indirect. Thus, making normative arguments for or against their use is likely to be more difficult.

And on that note, I shall conclude.