Philosophical Disquisitions

Wednesday, February 29, 2012

Update

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Sorry for the delay in getting new posts up. I've been annoyingly busy in the real world over the past couple of weeks, a situation that has not been helped by some impromptu travelling. I should get some new stuff up over the weekend, including the first proper installment in the "Should we freeze ourselves?" series.

In the meantime, some of you might be interested in seeing a paper that I recently had published (Firstview) in the journal Religious Studies. It might just be the computer I'm using, but I think it's available for free at the moment. If not, you can always download a longer uncorrected version on my personal webpage (which also features links to some other stuff I've written).

Sunday, February 12, 2012

Should we freeze ourselves? (Index and Introduction)

This post serves as both an index and introduction to my new series posts on the ethics of cryogenic suspension. Cryonic suspension, for the purposes of this series can be defined in the following manner:

Cryonic suspension: Is the process or technology through which a mature human body (or some part thereof, typically the brain or head) is frozen and stored in the hope that it will be revived at a future date.

Definitions are always imperfect — somebody will probably argue that I’ve left something out of the above — but I think this one can be accepted (as a stipulation if need be) since it is the kind of cryonic suspension mentioned therein that is of concern in this series. The series explores the ethical arguments arising from the question: should we have ourselves cryogenically suspended?

1. The Structure of the Series
This series structured in an unusual manner, at least in comparison to other series on this blog. For starters, each post in the series deals with one — and only one — argument for or against cryonic suspension. Typically, I’d cover several arguments in one post, but I decided this more fragmented approach afforded some advantages.

Primarily, it gave me an excuse to avoid writing lengthy introductions to each post reviewing key parts of the preceding discussion. Although I usually enjoy writing such introductions, they can become tiresome. In addition to this, the fragmented format allows for easy revision and expansion of the series. Again, this is unlike my previous efforts. Why so? Well, primarily because I found the academic literature on the ethics of cryogenics to be rather sparse. Indeed, I only managed to locate one academic article on this topic (as well as some internet resources):

David Shaw, “Cryoethics: Seeking Life After Death” (2009) Bioethics, 23(9): 515-521

So I’m going to base my initial draft of the series on Shaw’s article, along with my own elaborations thereof. But I’m hoping that by publishing the series here, I might be presented with some additional resources to consider and arguments to address. That way, I can expand on what I initially say and build a fairly comprehensive database of arguments for and against cryonic suspension.

My goal is to write one entry per week in this series. I’m hoping this is a reasonable and attainable goal. I haven’t always been the best at completing the series I start — indeed, regular readers may note that I’ve essentially abandoned the custom of announcing series in advance of writing them, preferring now to cobble series together from previously written material — but I feel more confident about completing this particular one because the workload on the individual posts should be relatively low.

2. Cryogenics and Disorienting Dilemmas
Why am I doing this? I think it’s worth emphasising here that I come to this issue as a non-advocate. In other words, unlike many of those writing about cryogenics on the internet (at least, unlike many of the people I have read) I’m not writing this series with the explicit aim of convincing you that you ought to have yourself cryogenically suspended. Instead, I’m writing it with the explicit aim of dispassionately analysing the arguments for and against cryogenics.

That said, I do have something of a bias when it comes to this topic. The bias is my belief in the positive role that it can play in teaching students critical thinking skills. In his book, Teaching for Critical Thinking, Stephen Brookfield says that critical thinking is a process that consists of four stages: (1) identifying the assumptions that frame our thinking and determine our actions; (2) checking out the degree to which these assumptions are accurate and valid; (3) looking at our ideas and decisions from multiple perspective; and (4) in light of all this, making informed decisions. And although we may quibble with this four-stage model, I think Brookfield’s definition captures the important elements of critical thinking. It is a skill-set which all educators should try to inculcate.

In outlining some of the techniques that teachers can use to inculcate the skills of critical thinking, Brookfield highlights (chapter 3) the potential of disorienting dilemmas. These can be defined in the following manner:

Disorienting Dilemma: Any decision-making problem (real or hypothetical) that forces you to reassess or think differently about something which you previously have taken for granted.

Such dilemmas get their name from the notion that they are so unsettling that they “diorient” you from your worldview. They are important in teaching critical thinking in that they tend to be a highly effective way in which to encourage the four-stage process outlined above. Strictly speaking, they need not always be dilemmas since that term connotes a decision-making problem in which there are two possible courses of action. They could be trilemmas, or quadrilemmas or whatever. In the case of cryogenics there is a dilemma to contend with: should you freeze yourself or not? (We'll talk about the precise nature of that dilemma in more detail in the first proper entry of the series).

It is my contention that this dilemma can be genuinely disorienting. A proper consideration of the issues that bear upon it, will force you to confront assumptions of fact and value. What’s more, it will force you to think seriously about the degree of confidence that you place in your moral and factual beliefs.

It is thus because of its potential to serve as a disorienting dilemma, and not because of some desire for eternal or prolonged life, that I am enthusiastic about analysing the case for cryogenic suspension. This might seem slightly odd to cryo-enthusiasts, but it’s how I feel about it.

3. The Index Proper
I think there’s been quite enough stage-setting in this post, it’s time to get on with the main event: the index to the series itself. As I said above, in this first draft of the series, I’m going to be using David Shaw’s article on cryoethics as my basic guide to the topic. And since Shaw’s article looks solely at the ethics of cryonics, I will avoid, for the time being at least, considering the technological feasibility of cryonics. I may consider this at some future point, but such an eventuality is unlikely for two main reasons: (i) it’s well outside my own area of expertise and (ii) as we shall see, the technological feasibility of cryonics does not need to be particularly strong for the main arguments to work.

There is one complication surrounding the term “ethics” that is worth mentioning here. In his article, Shaw draws a distinction between prudential and ethical arguments. A prudential argument being one that works from the premise that every person acts in accordance with (their perception) of their own self-interest, and a moral argument being one that works from some premise based on an objective value (e.g. “we ought to maximise human welfare”). If I were in a metaethical mood, I might challenge that distinction on various grounds, but since I’m not in that mood right now, I won’t. I will just use the phrase “the ethics of cryonics” to refer to both the moral and prudential arguments surrounding cryogenics. It might be worth bearing that in mind as you read along.

Anyway, at last, the index.

Series Index

0. The Cryonics Dilemma Considered

1. You should not freeze yourself

1.1 The Loneliness Argument
1.2 The High Cost Argument
1.3 The Opportunity Cost Argument
1.4 The Unproven Technology Argument
1.5 The Non-Physicalist Argument
1.6 The “Revival is Unlikely” Argument
1.7 The “Revival Before Cure” Argument
1.8 The "Life will be Boring" Argument
1.9 The Environmental Cost Argument
1.10 The Better Causes Argument
1.11 The Organ Donation Argument
1.12 The Death-Definition Problem
1.13 The Slippery Slope Argument

2. You Should Freeze Yourself

2.1 The Future Benefit Argument
2.2 The Time Travel Argument
2.3 The Wager Argument

Saturday, February 11, 2012

Book Recommendations ♯2: Contemporary Theories of Liberalism

(Series Index)

It’s been a slow week on the blogging front (busy on other fronts though), so the best I can do to fill the gap is to come up with another book recommendation. If you have any book recommendations you’d like to share, please do so in the comments section.

Gerald Gaus is one of my favourite political philosophers. His work on the theory of justificatory liberalism, in his 1996 book Justificatory Liberalism and his more recent magnum opus The Order of Public Reason, is provocative, original and rigorous. Admittedly, one of my chief reasons for liking his work is that his opinions seem to chime well with my own, so I’m definitely biased here. But I can only speak from the perspective of my web of beliefs and from that perspective his characterisation of the structural problems of liberal democracy, and his attempted resolution of same seems about right to me.

There are three main virtues to Gaus’s writing. First, he has a gift for conceptual clarification, rendering the often heated and fuzzy terminology of political theorists more perspicuous and stable. Second, he has gift for explanation, helping the reader to understand difficult and often diverse ideas and concepts in depth, not just in abstract. And third, he is rigorous and formal when evaluating the arguments of others and when developing his own.

All three virtues are on display in his book Contemporary Theories of Liberalism, which is today's book recommendation. It provides an excellent introduction to and survey of what Gaus calls “post-Enlightenment” theories of liberalism. This a term that deserves some unpacking. All liberal theories are, to some extent, premised on the idea that government should respect human freedom and enhance human welfare (whatever these things might be). In his opening chapter, Gaus divides such theories into two camps: the Enlightenment theories and the post-Enlightenment theories. In the first camp, there are those theories that believe the use of reason will allow us to achieve a convergence in moral and political views. Thus, all rational adults will agree upon the preferred shape and form of political organisation and the preferred content of public policy. In the second camp, there are those theories that believe human reason is unlikely to lead to a convergence in moral and political views, and that the job of political theorists is to work around these differences.

Following this opening chapter, Gaus proceeds to describe and evaluate seven different post-Enlightenment theories of liberalism. These are:

1. Berlin’s Pluralism: This is the view that values are plural, intransitive, and incommensurate. As a result, it is impossible to identify preferred forms of existence or government.

2. Hobbesian Modus Vivendi: This is the view (associated with the work of John Gray but with its origins in Hobbes) that politics is simply a matter of discovering a working compromise (modus vivendi) between the radically divergent worldviews of rational individuals.

3. Collective Reasoning Theories: This is a family of views that propose there is a distinct form of reasoning (“collective” as opposed to “private/individual”) for dealing with social coordination problems such as those inherent in the post-Enlightenment view.

4. Deliberative Democracy Theories: This is the view that the essence of a liberal democratic society is that it provides a set of processes and mechanisms for public deliberation. This view is most closely associated with the work of Jurgen Habermas.

5. Judgment Aggregation Theories: This is a family of views proposing that one way in which to solve the problem of plural values is through aggregating divergent individual votes and using the results of the aggregation as the basis for public policy. This, of course, is the essence of democracy, but it turns out there are a number of complications associated with the method of judgment aggregation.

6. Rawlsian Liberalism: This is the view that, contrary to the radical pluralists, there is a shared liberal conception of justice, which can be arrived at from different starting points. This gives rise to a unique view of the nature and purpose of public reason.

7. Justificatory Liberalism: This is Gaus’s own view. It maintains that the proper function of a liberal government is to justify its coercive policies to morally equal persons. It also proposes how this might be done.

While discussion of each of these theories is excellent, two sections of the book stood out in particular for me. The first was the careful attempt to define and tease out the implications of value pluralism in Chapter 2, and the second was the overview of judgment aggregation theories in Chapter 6. I’ve used both in some of my own writing and in my classes.

Overall, I highly recommend this book. It’s short, but not superficial; fair, but not dispassionate; and rigorous, but not dull. It would serve well as a textbook for a course in contemporary political theory and as general reading for anyone interested in the area. It allows you to see that there is some pretty interesting, and highly sophisticated work being done in political philosophy these days, work that should not be ignored.

Sunday, January 29, 2012

Attempt Liability and Moral Luck (Part Two)

(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.

Saturday, January 28, 2012

Attempt Liability and Moral Luck (Part One)

(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.

Friday, January 27, 2012

Free Will, Punishment and Responsibility (Series Index)

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