Luck: Ancients vs Moderns

In the last week of class, we will be talking about the difference in attitudes about luck between ancient Greek culture and modern Western society.

Most ancient Greeks accepted that much of what happens to us in our lives is up to luck, fate or fortune.  Life is risky, unpredictable and full of luck.  Plato and Aristotle embraced, this view.  Both thought that virtue and happiness are subject to luck.  While they both thought that we can protect ourselves against luck, both acknowledge that we will never be completely free from the influences of luck.  Epictetus, however, thought that happiness and virtue are entirely our control.  Even if luck makes you poor, dirty and sick, you can still control your mental and emotional life; this is why Epictetus thought that luck plays no role in happiness and virtue.  Kant agrees with Epictetus that virtue is not subject to luck.  For him, being virtuous means having a good will.  Because we control our will, we are in control of our own virtue.  Kant thinks that happiness is subjective and so it may be vulnerable to luck.  

In the 17th century, advancements in mathematics and social sciences brought us modern understanding of probability and statistics.  This understanding increased the ability of groups of people to control their fates.  When you can have stable expectation about how the future will be, you can better plan.  For example, if you know that children whose parents smoke are more likely to develop asthma, we can collectively change our parenting methods in order to avoid asthma in future generations.  We cannot prevent accidents  from happening, but we can see causal patterns and attempt to avoid the causes of accidents.  We can now use social programs and institutions to regulate large-scale social outcomes.  This means that we have a wider view of what we are individually and collectively responsible.

Even now, people have very different ideas about luck.  Many people who identify as politically conservative (right-leaning) think that individuals can and should be held responsible whereas it is difficult to attribute responsibility to social groups.  Others who identify as politically liberal (left-leaning) are more likely to emphasize individual luck and social responsibility.  For example, imagine a bum on the street.  A bleeding-heart liberal may be more likely to point to social causes (poverty, lack of education) for this person's life in order to excuse the individual from some responsibility.  A cold-hearted conservative may say that the individual himself is solely responsible for being poor and on the streets.

Williams asks what differences between the ancient and modern world can explain why slavery was once accepted and how we think slavery is unjust.  He thinks that there are certain concepts are available to us now that the ancients did not have.  His paper considers whether this is the reason why ancients accepted slavery while we condemn slavery.

In ancient Greece, it was largely a matter of luck who ended up slaves.  All races of people could become slaves if their country was invaded.  This is contrasted with slavery in the American south, which was entirely determined by race.  In ancient Greece, every citizen knew that he or she could potentially become a slave if their country was invaded by another country.  It was widely accepted that a bout of bad luck could make a person a slave.  Also, a slave could be freed by lucky circumstances.  The ancient Greeks did not think of slavery as a matter of justice.  They thought it was just a matter of luck.

Greeks thought that slavery may have been unjust, but it was necessary for their way of life.  They saw no alternative.  Because the ancient Greeks thought that slaves were necessary, this prevented them from asking whether or not slavery was just.

Aristotle was an exception.  Not only did he think that slavery was necessary; he thought slavery was just.  Some people are born to be slaves.  It is in their nature to be slaves.  Because some people are born to be slaves, we owe it to ourselves and to those people to make sure that they are slaves.  Aristotle thought that just like our minds control our bodies, masters control slaves.  He acknowledged that there is a problem with this analogy because slaves themselves have their own souls, or minds.  By contrast, my arm does not have its own soul or mind.  Aristotle points out that the nature of a thing is revealed by its natural tendencies.  For example, most birds tend to fly and most fish tend to swim.  It is in a bird's nature to fly and in a fish's nature to swim.  Similarly, some people are naturally disposed to be subjugated and subordination.  People with submissive natures are naturally suited to be paired with people who have dominant natures.
Like slaves, women lack authority.  Unlike slaves, women have the ability to reason and make choices.

Aristotle thought that our natures are not only determined by factors such as gender.  He thought that everyone has a necessary identity.  Your necessary identity is just who you are essentially or necessarily.  For example, if something is a lion, it is necessarily a lion.  Or if something is a square, it is necessarily a quadrangle with all sides of the same length.  Aristotle thought that if you are male, you are by nature male.  If you are female, it is by nature.  If one is a slave, it is necessarily so.  Slavery is hence a social role that is a necessary part of who a person is.

Seneca was a philosopher in ancient Rome who also thought that slavery was just.  He thought that everyone is born free.  True freedom is mental freedom.  Because slavery only enslaves the body, the mind is left free.  Therefore, slavery does not conflict with freedom.  Slavery does not take anything away from slaves.  Hence slavery is justified.

A modern liberal conception of social justice is that there is no such thing as necessary identity.  Who a person is is not determined by nature.  But this is not the main difference.  The main difference between modern societies and ancient Greece is that we now demand that neither individual luck nor social luck should take the place of considerations of justice.  Even if luck can make a person poor, dirty and sick, this does not address concerns about social justice.  Social justice requires that we control the impact of luck.  While ancient Greeks thought that it is ok if luck makes a  person a slave, we now think that luck cannot justify things like slavery.  We think that we can control our collective fates and so we cannot just let luck make a person a slave.

Luck in Tort Law Day 2: Waldron and Objections to Socialized Liability

Waldron thinks that because luck plays a role in accidents like automobile accidents, the costs of these accidents should not be the burden of the individuals involved.  Waldron thinks that insurance for accidents should be completely socialized.  This means that the government should pay for the costs of accidents.  In order to argue for socialized insurance, Waldron uses a thought experiment.

Imagine two drivers, Fortune and Fate.  Fortune and Fate are equally safe drivers who are going down the same road.  Both drivers are distracted by a sign that advertises a great shoe sale.  The only difference is that someone driving a motorcycle, Hurt, happens to dart in front of Fate.  Fate gets in an accident.  Fortune is lucky and does not get into an accident.  Both performed the same act of carelessness, but only one will have to pay for the damages of the accident.  Even though Fortune and Fate made the same mistake (being distracted by the shoe sale sign), only Fate has to suffer the burdens of the cost of the accident.  Waldron thinks it is unfair that Fate may go broke paying for the cost of the accident while Fortune bears no burden.  

In order to show why our current system is unfair, Waldron considers many possible ways to decide how the victims of accidents are compensated.

Pure individual liability is the system where people who cause accidents by being negligent or reckless pay for the cost of injury.  Whatever the cost, the person who causes the injury must fully compensate the injured party.  Pure individual liability is unfair because luck is the sole factor to determine who pays.  

Individual liability plus optional third-party insurance is the system where everyone is individually liable by they also have the option to purchase private insurance that will cover some of the costs of the accident.  The insurance company then pays on behalf of the person who caused the accident.  Someone might object to optional insurance systems because those who lack insurance will pay less for the accident than those who have insurance.  If only some people are insured, this means that the insurance companies and those who purchase insurance will end up bearing most of the burden of the costs of accidents.  

Individual liability with mandatory third-party insurance is the system we have now in the U.S. Every individual is liable for the cost of accidents but everyone also has insurance that can pay on their behalf.  Someone might object to this view because not everyone can pay for insurance, so it is unfair to require that everyone buys insurance.  This objection can be met if insurance is subsidized for low-income parties.  If insurance is affordable for everyone, then it is fair to require everyone to have insurance.  A further objection is to claim that because this view still puts the burden of the cost of paying for accidents on individuals, it is unfair.  Most people have a low limit to how much money they can get from insurance.  Many people who have insurance will still have to pay a lot of money "out of pocket" because the insurance they have is insufficient to cover the cost of an accident.  Even if insurance is mandatory, unlucky individuals who cause accidents still end up bearing most of the burden of paying for accidents.  It is unfair that luck plays such a large role in determining who pays for accidents.

Socialized liability or a "no fault" system (such as the system in New Zealand) is a system where accident victims are compensated by a public governmental insurance fund.  All drivers pay an equal amount into the public insurance fund.  Such a system is supposed to be fair because both Fortune and Fate (who are equally negligent) bear equal burdens to pay for the cost of accidents.  One variation would be to include fines for negligence so that people who are more reckless and more negligent have to bear more of the burden of paying for accidents.  On this variation, Fortune and Fate would both pay for the accident (through the public insurance system) and both would pay an additional fine for being negligent.

Now we consider how someone might argue against a system of socialized liability.  What kinds of moral considerations might be used to argue against socialized liablity?  

Desert.  Someone might consider whether the people who pay for accidents are the people who deserve to pay.  Waldron says that consideration of desert will not support an individual liability system.  Fate does not deserve to bear the cost of paying for the accident because his negligence was so minor.  We all take our eyes off the road for a moment or two.  Since Fate's mistake was so minor, he does not deserve to pay for the full cost of the accident.  Both Fate and Fortune are equally negligent.  According to desert, both Fortune and Fate should pay the same amount to cover the cost of the accident.  Someone might say that desert is not a relevant consideration because desert is concerned with punishment and corrective justice, not retributive justice and tort law.  

Distributional Fairness.  Assume that either Fate or Hurt should pay.  It's unfair to make Fate pay for reasons listed above.  But it's even more unfair to make Hurt pay, since Hurt is entirely innocent.  Waldron will note that neither should have to pay.  It's not fair for either to pay, so we should socialize liability entirely.

Causation.  Someone might object to socialized liability because then the peole who pay for the accident are not the people who caused the accident.  Drivers who never cause accidents will still end up paying for those accidents because they have to pay into the public insurance system.  Waldron will respond that there is nothing special about causation.  Consider a several car pile up accident.  In such a case, many drivers who cause damages are not personally responsible.  If you are in a multi-car crash, you may be the driver who causes damage to the driver in front of you, but you are not responsible, since it is not your fault that you were caught in the middle of the accident.  You may only cause damage because a different reckless driver ran into you.  It seems fair that everyone who was reckless should pay for such an accident.  Not only the cars who were physically in the accident, but also the drivers who created the unsafe environment should bear the cost of the accident.  In short, there is no direct link between causation and liability.   

Lottery to Determine Liability.  Someone might think that the random outcome of the accident is used as a basis for determining liability.  The risk involved with the original accident is the same risk of liability that a person in the accident has.  So both Fortune and Fate share an equal risk of liability for the cost of the accident.  As long as the risk of liability is the same as the risk of harm that Hurt was exposed to, this should be fair.  Waldron says that while this may be somewhat fair, it is unfair because Fate will have to pay more than Fortune.  They may share the same risk, but they do not share the burdens of paying for the accident.

Waldron closes with a Rawls-style argument.  Imagine that you do not know whether you will be the accidental cause of an accident or the unlucky victim.  Waldron thinks that when you do not know what role you play in the accident, it is rational to want a socialized liability system because you would want the worst possible position to be as good as possible.  If we follow the maximin rule for choosing how risky of a system we want, it is rational to want socialized liability.  

Congrats on Finishing Your Papers!

Since you have all finished your second papers, I offer this clip as a reward.  Beware: cuteness and hilarity abound in this short video.  Enoy the Polar Bear Baby Blue Hat Show.

Luck in Tort Law

So far we have talked about criminal law.  Criminal law covers cases where a crime has been committed in violation of the law.  Criminal law depends on guilty intent and breaches which make us liable to punishement.  Civil law, or torts, does not deal with crimes that are met with punishment.  Tort law has to do with accidents and cases of negligence where instead of punishment, the offender must repay the victim or restore the victim to a prior state.  For example, if there is a fender-bender, tort law deals with the issues of who is financially responsible to repair the damage.

The main question of tort law is who should pay for damages.  With regards to luck, the question is whether a person should have to pay for an unlucky accident.  A further question is how much he negligent driver should pay.  Waldron thinks that society should also be liable for damages.  In other words, when an unlucky accident happens, the government pays for damage.  Liability for risk is socialized.  Our current system is a modest form of socialized liability because we must pay for insurance, which in turn makes the insurance company liable to pay for the damages of an accident.  Waldron thinks that we need more than just insurance.  He thinks that we need a system that fully socializes the liability of risk.

Next week, we will explore Waldron's view in detail.

Luck in Punishment Day 2: Lewis

Lewis notes that in the current legal system, punishments are determined in part by luck.  Consider two people who intend to commit the same crime and perform the same action, such as firing a gun in order to kill someone. One person is successful and commits murder.  The other is unsuccessful due to a chance event, such as a sneeze or a bird flying in the path of the bullet.  The murderer will be punished more harshly even though the only difference in what the two people did was a matter of luck.  Lewis thinks that the current system of punishment can be justified.  First, he thinks that lotteries of punishment can be justified.  Second, he thinks that our current system is analagous to a penal lottery.  Since our system is just like a penal lottery and a penal lottery can be justified, then our current system is justified.

On Tuesday, we discussed the justification step of his argument.  Today we will talk about the analogy segment of the argument.

In order to argue that our current legal system is analagous to a penal lottery, Lewis runs through a number of thought experiments.  Imagine a case like the one above. In case #1, the risk of penalty for the crime is proportionate to the level of risk that the criminal inflicted upon the victim.  For example, if the criminal exposed a victim to a 95% chance of death, the criminal then faces a 95% chance of punishment. Case #2 is the same as #1 except a person is chosen to determine the punishment by chance before the trial and then this person (the public drawer) keeps the result a secret.  The only difference is when the punishment is decided.  Case #3 is just like Case #2 except the punishment is announced before the trial. Lewis thinks that although we know the outcome before the trial, the trial is still important in order for us to establish the criminal's guilt and also to express the wrongness of the crime.  Lewis thinks that #1, #2 and #3 are all equally just.  Case #4  is just like #3, except the winner gets a short prison sentence instead of going free.  This is an impure lottery because the criminal is punished either way.  The criminal has no chance to "win" by being set free. This is supposed to help motivate reasons for the trial itself.  Case #5 is just like #4, except instead of subjecting the criminal to a lottery with 95% chance of punishment, we reenact the original crime with the same probability of harm.  Whether the reenactment is successful determines whether the criminal will be punished.  This reenactment, because it creates the same chances of punishment as a lottery, is as just as a penal lottery.  Case #6 is just like #5 except instead of reenacting the crime, we just rely on the information we have about the original crime.

Case #6, where we replace a reenactment of the crime with the actual crime itself,  will have great practical advantage over an actual reenactment of the crime. Moreover, this way of deciding punishment is the same as our current practices.  In current legal system, we use evidence about the original crime and whether that crime was successful as a way to determine if punishment is deserved.  The risk of punishment is proportional to the original risk that the criminal exposed the victim to.  Because it was a matter of luck whether the original crime was successful, it is also then a matter of luck whether the original crime is punished and how harshly the criminal is punished.

Lewis thinks the main problem with our current system is that it is confusing because winners and losers in the penal lotter are equally guilty.  In an actual penal lottery, both criminals are subject to the same chance of punishment.  In our system, which Lewis thinks is a "covert" penal lottery, it is not clear that equally guilty parties are subject to the same risk of punishment.  Lewis thinks that in our current system, it is still up to luck whether a person is punished.  Luck does not come in at the level of an actual lottery but luck does come into effect during the actual crime itself.

Someone might think that a penal lottery is unable to express ideas about the wrongness of a crime or upholding the rights of the victim.  Expressing disapproval and condemnation of crimes requires not just subjecting a criminal to the risk of punishment.  Expression requires that the punishment is actually enacted.  Someone else might think that anger is not appeased when punishments are actually enacted; this is the view that propitiation is not satisfied by a penal lottery.

A Tale of Luck, Moral Responsibility and Justice

Dr Horrible's Sing-along Blog is a web series that revolves around issues of justice, moral responsibility and luck.  It takes about 45 minutes to watch the whole thing; each act takes about 15 minutes.  If you like supervillains, musicals or Neal Patrick Harris, I highly recommend this brilliant show from the equally brilliant Joss Whedon.  It also features The Guild's Felicia Day.  It's funny, entertaining and surprisingly deep:

Act I, Part 1
Act I, Part 2

Act II, Part 1
Act II, Part 3

Act III, Part 1
Act III, Part 2

Enjoy!

Luck in Punishment: Lewis

When it comes to justice and punishment, the basic question is why we are justified in punishing people?  Under what circumstances is punishment just?  

There are many standard rationales for punishment.   Some think that punishment is justified based on retribution.  Retribution is the idea that people who break the law deserve to be punished.  How much a person deserves to be punished depends on how guilty they are.  Not only is punishment appropriate in itself, but it also makes the world a better place when people who do bad things are punished.  Some think that punishment is justified by deterrence.  Deterrence is the idea that punishment should be used to prevent future crimes from being committed.  If lawbreakers are punished, others may be less likely to break the law because they will want to avoid punishment.  Another rationale for punishment is expression.  Expression is the idea that we must punish people in order to express our disgust and hatred for the crime committed or to affirm the existence of the victim's rights.  Others think that propitation is a justification for punishment.  Propitation is the notion that we should punish people in order to satisfy the anger and wrath of God, gods, the public or the victim's friends and families.  

Current legal practice embraces luck.  We punish people more severely when they are successful at their crimes.  Even when it is a matter of pure luck that a person is successful at murder, for example, we still punish the lucky successful murderer more than we punish the "unlucky" unsuccessful murderer.  Even when there is no difference in effort, intent or dangerousness of crime, we still punish people who are lucky and successful with their crime much more than we punish people who are unlucky and unsuccessful.  

Imagine Yi and Eric.  Both Yi and Eric aim a loaded gun at an innocent victim and fire their weapons.  Eric hits his target while Yi has the bad luck of having a sneeze right when he pulled the trigger.  Only Eric is successful at murdering his target.  Although both had the same effort and intent to commit the same dangerous crime, Eric will have a less sever punishment merely because of luck.  The difference in punishment does not have to do with things that Eric and Yi could control.  Although Yi may serve a life sentence and Eric may be out of prison in ten years, the only difference in their crimes is luck.  In essence, luck determines the severity if punishment.


Lewis thinks that according to standard rationales, the role of luck in punishment cannot be justified.  He says that retribution cannot justify the role of luck in punishment.  If punishment is only appropriate because the criminal is guilty, then both Eric and Yi are equally guilty.  Since Eric and Yi are equally guilty, they should be punished equally.  According to retribution, the influence of luck on punishment cannot be justified.  What about deterrence?  If we know that we will be punished more severely if we are successful with our crimes, it is unclear whether the role of luck can be justified.  If we know that attempted crimes are punished less severely, we may be more likely to try again.  Others may be uninfluenced by the role of luck.  At best, it is unclear that deterrence can support the role of luck in punishment.  It is also unclear that expression can justify the role of luck in punishment.  If we punish people less severely when their crimes are  unsuccessful, it seems that this will express the idea that we find successful crimes morally worse than unsuccessful crimes.  In order to express the idea that attempted crimes are equally as bad, we would have to punish murder and attempted murder the same.  Expression cannot support the role of luck in punishment.  Then Lewis considers propitation.  He says that only propitatation can clearly support the role of luck in punishment.  This is because we are only angry when the crimes are actually successful.  We are angry when people die but not when they live.  So if a person dies because a criminal is lucky, it makes sense that we are more angry at the successful murderer than at the unsuccessful murderer. Only propitation clearly supports the role of luck in punishment.  


But just because propitation can support the role of luck in punishment, this does not yet give us a flat-out justification for the role of luck in punishment.

Lewis tries to give a better way to justify the role of luck in punishment in the current legal system: a penal lottery.  In other words, Lewis thinks the status quo is justifiable.  Lewis has us imagine a lottery of punishment.  On the one hand, whether a person is convicted of a crime is based on what crime a person attempted to commit.  In other words, a person is convicted because of their motives and efforts to commit a crime.  Punishment, on the other hand, is determined by chance, as if by lottery.  A pure version of a punishment lottery would be that if you win, you go free and if you lose, you get a full punishment.  Our system is more like an impure version of a punishment lottery, which means that if you win, you get a short prison sentence and if you lose, you get the full punishment.

Penal lotteries already exist.  For example, imagine that a regiment of soldiers commit mutiny.  To punish the regiment, one out of the ten soldiers of punished by death.  The person to die is chosen by random chance.  A more contemporary version of a penal lottery can be seen in the current prison system.  While in prison, a person has the risk of being beaten, raped and assaulted.  A person may die while in prison or may catch a lethal sexually transmitted STD.  Although two people may be sentenced to 10 years in prison, one person may be punished more severely if he or she is beaten daily while in jail or if he or she catches AIDS.  Every person who goes to prison is subject to a penal lottery.


Lewis's main argument has to stages.  The first stage is a justification of a penal lottery.  The second stage is to show that our current legal practice is analagous to a penal lottery.


Stage 1: Justification.  Why is a penal lottery justifiable?  A penal lottery is better than a penal system that punishes successful and unsuccessful criminals equally.   First, there are practical advantages to having a penal system that is sensitive to luck.  For example, it speeds up the system.  Once we know a crime has been committed, it's much easier to punish people if we don't try to account for and compensate for luck. Also, it's cheaper to allow a lottery to decide punishments than to just put all the people who attempt crimes in jail.  Second, there is expressive value to a penal lottery.  If a criminal took a risk when committing a crime, then it is poetic justice that the criminal is subject to risk and chance when their punishment is determined. Whatever risk of harm a criminal subjected her victim to, that criminal deserves the same risk of harm.  Third, deterrence may or may not justify a penal lottery.  Some people may be less likely to commit crimes if they know that the punishment is decided by a lottery.  Others may be more likely to commit crimes if they know that luck will determine their punishment.  Fourth, dessert can justify a penal lottery.  The idea of dessert is that a person deserves punishment based on how guilty they are.  Imagine Eric and Yi again.  Both are equally guilty because both have equal effort and intent to commit a crime.  A penal lottery will treat them equally because both Eric and Yi will face equal chances of being punished in the penal lottery.  Someone might object by saying that they both deserve to suffer equally, but Lewis says that it is not up to us to decide how much a person does suffer.  It is up to luck and fortune to determine how much a criminal suffers.  Also, some people will suffer more just because they have a melancholy personality.  We can only make sure that there is an equal chance of punishment.  Based on these four reasons, Lewis thinks he can justify a penal lottery.  He notes that even if this justification is not sufficient, he does not see anything wrong with a lottery of punishment.