Luck in crime and punishment: essays in metaphysics and legal theory
Abstract
This thesis examines some of the legal philosophical issues that are
implicated in the problem of outcome luck. In the context of criminal law, the
problem asks whether we should hold agents criminally liable for the
consequences of their actions given that those consequences are never
wholly within anyone’s control. I conclude that outcomes should matter to an
agent’s liability and punishment, and I make this argument indirectly by
examining some of the foundational questions in legal theory.
The thesis begins by considering a current trend in some areas of
philosophy. This trend involves attempts to address philosophical problems
surrounding luck by doing conceptual analyses on the nature of luck.
Chapter 1 critically examines modal theories, which conceptualize luck, as
well as the related concept of risk, in terms of close possible worlds rather
than probabilistic likelihood. I argue that not only are modal theories
uninformative, but conceptual analyses on luck are unhelpful in addressing
philosophical questions surrounding luck. Chapter 2 then returns to the
traditional notion of luck as lack of control, and focuses on the relationship
between luck, risk, and culpability. Some theorists argue that culpability, for
any offence, is in part a function of the degree of risk the agent imposes on
others. In the context of criminal law, degrees of luck and risk can both be
understood in terms of degrees of control, so the suggestion that culpability is
a function of the level of risk imposed (and thus of the degree of control an
agent exercises) is attractive for insulating culpability judgments from luck.
However, I argue that this view is mistaken because culpability is only
sensitive to risk in reckless actions, but not in purposeful actions.
The problem of outcome luck may raise different questions for reckless
actions and purposeful actions. Chapter 3 looks at the mens rea element of
criminal attempts, which is crucial for understanding the problem of luck in
the context of purposeful actions. I discuss a variation of what are sometimes
referred to as impossible attempts, which have helped shape current English
law. I argue that the current doctrine is largely correct, and that perhaps with
the exception of few paradigm sexual offences, the mens rea element for
attempts should require a direct intention as to the consequence element of
an offence, and knowledge or belief as to the circumstance element of that
offence.
Chapters 4 and 5 then look at normative justifications of criminal
punishment. In order to understand whether outcomes should matter for
punishment, we must first understand whether and why punishment is an
appropriate response to criminal offending. Here, I defend a communicative
theory, where punishment is a communicative process between the offender,
the political community, and the victim. What punishment communicates is
the appropriate degree of censure that is warranted in response to the
offender’s wrongdoing. And in doing this, it publicly recognizes the wrong that
has been committed by the offender. Chapter 4 offers a detailed explanation
of this account, and argues that the political community’s recognition of
wrongdoing is a valuable aim of communication. Chapter 5 then takes up a
crucial challenge against communicative theories of punishment, which is
that such theories fail to take crime prevention seriously. Against this
criticism, I will show that general prevention can in fact be an essential part of
communicative punishment. And I will show that it is specifically the political
community’s recognition of wrongdoing that entails punishment’s preventive
aims.