The Philosophical Quarterly Vol, 42 No. 168 ISSN 0031 ~ 8094 32 A SOLUTION TO THE PROBLEM OF MORAL LUCK By Bryxaor Browne Praising, blaming, rewarding and punishing, are, in practice, justified by reference to what the person who is treated in these ways has done; but we soon become worried about the fairness of treating people on the basis of what they do when we see that chance has played a crucial role. How should we treat those whose actions are only different because of the difference made by chance? If, for example, we treat the murderer in the same way as we treat the man who attempts murder then weseem tolack an appropriate response to their different actions; but if we treat them differently, are we justified in doing so because of a difference made by chance? The condition of control,' that is, the idea that a person is only responsible for that which is under his control, is central to the account of responsibility which gives rise to the problem of moral luck. It has seemed both impossible to deny (because it is counter-intuitive to hold a person responsible for what is independent of his control) and impossible to sustain (for reasons which I shalll give). However, I shall argue that the condition of control is central only toa particular view of moral agency which seems attractive only because it helps to justify attitudes which we believe are central to morality but which are, in fact, morally wrong. My aim will be to reconcile our conflicting intuitions by accommodating them within a range of reactions to wrong-doing which does not leave us with the problem of moral luck But first I shall argue that the ‘condition of control’ isa misnomer and as such it helps us to misconstrue the problem of moral luck. It might be thought that the problem of moral luck arises from situations where chance events can be said to be in some way in conflict with an agent’s control, but care is needed if we are to discover the real nature of the problem, A chance event may be said to be in conflict with an agent’s control when it takes away control, as it might, for example, in the case of a car which skids on a patch of ice. A driver who recklessly ' ‘This term is taken from Nagel’s paper ‘Moral Luck’, in Thomas Nagel, Mortal Questions (Cambridge: Cambridge University Press, 1979346 BRYNMOR BROWNE drives too fast may be unlucky in skidding on a patch of ice with the consequence that he loses control of the car; if he kills someone as a result, then he is, to some extent, morally unlucky. In this case chance and control conflict in the most obvious way; but deprivation of control is not necessary before an agent can be said to be morally unlucky or lucky. If the patch of ice had melted prior to the arrival of the driver, this too would be a matter of luck but there would be no interference with the driver's control. Here we have two different ways in which chance may be involved in a person’s action. In one case a chance occurrence interferes with control; in the other it does not. Consider a further example; that of a doctor who accidentally injects a patient with a poisonous substance, believing it to be a medicine. Someone else has put the wrong substance into the syringe. Normally in such a case the doctor would not be blamed for his action. The difference that chance makes to his action is not in itself something which leads to the doctor being blamed for the outcome of his action. Had the doctor been carrying out the operation unnecessarily for reasons of personal profit, he would then be morally blameworthy for what he did. Itis important to keep in view the fact that the agent’s control need not suffer actual interference before he becomes morally lucky or unlucky. The doctor's control when he injects the patient is the same as it would have been if the correct drug had been put in the syringe. Here, chance has madea difference to the doctor’s action without affecting his, control either positively or negatively, although we might say that there remained some sense in which he had lost some control over his action in that he was not doing what he thought he was doing or doing the action he intended (injecting the patient with medicine). However, if, by some farther fluke, someone drops the poisoned syringe after which the correct drug is given to the doctor who then injects the patient as intended, the doctor would then be lucky, in control, doing what he thought he was doing and doing the action he intended. We can see from these examples that agents can be said to be morally lucky or unlucky if their actions have a kind of contingency. In these cases chance may or may not interfere with an agent's control of his action. Agents seem not to be responsible for these aspects of their lives and actions and yet what they are held responsible for will be determined in part by these differences Some might try to insist that there is only a problem of moral luck in those cases where chance takes away control and that we only imagine that there is a problem in the other cases which involve contingency However, the suggestion that we havea problem of moral luck in actionASOLUTION TO THE PROBLEM OF MORAL LUCK 347 cases simply because chance can or does interfere with control within the action, is ill-founded. In normal cases of constitutive luck ~ for example, luck in being the kind of person one is ~ there can be no suggestion that the problem of moral luck arises through luck being in conflict with an agent’s control over his action. The problem of moral luck arises in such cases where the agent is in complete control and is held responsible for his action, Similarly, an evil person who is powerful may perform more evil actions than one who is weak and unable to do as much. They may be equally evil in onesense, but can we nevertheless treat them the same? Furthermore, even in those cases where we see a problem in treating the attempt at murder less seriously than murder, a problem arises about how we should treat both agents and not just the ‘one whose attempt is thwarted by chance; reflecting on the role played by chance in the case of the attempted murder will lead us to think again about the murderer. ‘One way in which people react (initially) to the problem of moral luck is to try to tie responsibility to willings. Abandoning our intuitive desire to react to what an agent does in favour of holding an agent responsible for what he wills does not, of course, escape the problem of moral luck, because an agent’s willings are not free of chance. What an agent wills arises, in part, out of his situation and his character, over which he must, at the very least, have less than complete control. Nor can one separate the agent who wills from his character; his will must be independent of his character to be luck-free but must be intimately connected to a person ifit is to be his will. So we must either allow that willings are not luck-free or we must completely separate the one who wills from (his?) character. T have suggested that our actions have a certain kind of contingency which appears to threaten our responsibility for them; the presence of this contingency seems to be incompatible with the kind of control which we believe agents have when they are morally responsible. We have seen that contingency is compatible with control, in its usual sense. However, there is some way in which the presence of contingency may still seem to conflict with control. Ifit does, then it looks as if the kind of ‘control’ which we think is required must be one which is free from contingency. Such a condition is not, properly speaking, a condition of control, but more correctly a condition that the agent be contingeney-free. The attempt to find luck-free agency might be characterized as a search for an uncaused cause of our actions as well as an agent whose actions are not subject to causal influence after their execution. In our attempt to adhere to the condition of control we slip into search for the348 BRYNMOR BROWNE impossible. We have seen that what we do is always, in part, due to factors which are not entirely ofour own making. Initially, the presence of chance in our actions appears to threaten control. But care must be taken here because ‘what is under our control’ is not the same as ‘entirely of our own making’. The first thought allows the presence of chance in actions, in that the situation in which the agent has control is made up of elements not of his own making. The man who drives a car has it under his control, even though chance may have played a part in his being hired to drive it. The latter thought represents a condition which is unrealizable because whatever an agent does, he cannot act in aworld entirely of his own making, or be an agent who is entirely of his own making and who acts from options or possibilities entirely of his own making. I will say that such a being would be a ‘complete instigator’ of his actions. Itis clear, then, that the ‘condition of control’ which gives rise to the problem of moral luck is incoherent as an account of human agency and that this requirement is really the requirement that an agent be a complete instigator of his actions. However, the mere realization of thi fact will not make the problem of moral luck go away. We have a deep- rooted intuition which seems to tell us that the condition of control (which I have analysed as the condition that an agent be a complete instigator) is a requirement for moral agency. As Nagel observes in “Moral Luck’, we do not simply notice that people who are responsible are generally in situations where they have control and conclude that control isimportant to responsibility, but we believe that the ‘condition of control’ must be the basis on which we hold people responsible for their actions. If this observation is correct (and | believe that it is), we cannot explain our wish that agents’ actions be free of contingency in terms of a slip which involves seeing contingency in our actions on the model of interference with an agent’s control in the ordinary way (ice on the road). Any solution to the problem of moral luck will need, therefore, to explain why we should have such a deep-rooted, and yet flawed intuition. It will also have to remove any tendency toseek such a condition Although the condition that an agent be a complete instigator of his action meets with certain deep intuitions, we should not forget that we are also strongly inclined to react to what agents do. We are even inclined to regard ourselves as responsible, in certain ways, for actions over which we have no real control. Ifa train driver accidentally, and totally without fault, runs over a person lying on the tracks, he will feel — and will be ~ responsible in some way for what he has done. Although we might try to make him see that he was not at fault, we would,A SOLUTION TO THE PROBLEM OF MORAL LUCK 349 nevertheless, think that complete indifference on his part, on the grounds that he was not to blame, would show a lack of sensitivity with regard to the role he played in killing the person on the track. Again, this example counts against the condition of control in that we think the driver is responsible in some way which has moral relevance. Of course, it will be said that the train driver may be responsible, in some way, for what he did, but we would not hold him responsible in the way that we would if he had deliberately killed; he is not blameworthy. But if we return to the case of murder it is clear that we think that we should react to a person who kills differently from the way we should react to one who merely attempts to kill. Have we not, then, abandoned what might be properly called ‘the condition of control’? Surely, if the condition of control were so obviously correct, there would be no temptation to treat people differently on the basis of the outcomes of their actions. Even after we go through the arguments showing that chance was responsible for the attempt becoming a successful act, we resist the temptation to regard the action and the attempt as morally equal. At the very least, we can say that we have here competing intuitions; even if the condition of control could be made coherent we would feel an inclination to say that we could not ignore the difference (for example) between killing and not killing with respect to what we expect from the relevant agent. Let us now consider the position: 1. We want to react differently to people according to what they do, including what they do as a result of the differences that chance makes. But it seems to be unfair to hold a person responsible for what he does as a result of differences that chance has made. 2. If we abandon the condition of control we seem to abandon an intuitively plausible condition. But the condition of control is incoherent — agents are not complete instigators. We, therefore, need a way ofaccommodating our need to react to what an agent does, including that which is contingent in his action or beyond his control. But we also need, at the same time, some means of removing the worry that seems to occur once we make this move. We need something that reassures us that we do not treat people unfairly when we hold them responsible for those actions in which chance plays a crucial role. I suggest that all of this is possible, provided that we are prepared to abandon certain attitudes to wrong-doing and certain related practices I will now argue that, by adopting different attitudes to wrong-doing and alternative practices to punishment, the problem of moral luck is350 BRYNMOR BROWNE overcome. I suggest that we shall be able to abandon the condition of control, once we see that not only is it incoherent, but also that it only suggests itself whilst certain attitudes are in play, attitudes which are, in themselves, morally wrong. We soon go astray when we try to justify them. The actions of human agents require a wide range of appropriate responses. A person who wills evil in his action must be treated differently from one who does not, and this difference should be reflected in our attitude when we blame him. We must react differently to one who (for example) kills deliberately from the way we would to one, such as the train driver, who kills accidentally or even carelessly My position is that, whilst our attitude to evil actions must not be hostile or against the agent, it must differ from our attitude in cases in which there is no real evil intent on the part of the agent. I will argue that this does not exclude the possibility of showing a wide range of emotions which are not incompatible with a loving attitude Many would say that anger is an appropriate reaction to wrong- doing. Often, when people act out of anger they do things which they later see as being wrong. Their anger is directed at someone and this is often accompanied by a wish to do him some harm or to punish. However, anger need not take quite this form. The kind of anger that I have in mind is of the kind that a loving parent might feel on finding out that his son had done something morally wrong. What would be the right attitude of a parent to his son’s killing someone? Certainly, he would blame him, but his attitude of anger, sorrow, concern, anguish and perhaps sympathy would be compatible with loving his son. In this way his attitude would not be against his son but for him. Let us suppose that this kind of anger and sorrow is felt more generally, perhaps in the context of a small close community; would, then, the problem of moral luck arise in the differential treatment ofa murderer as against one who attempted murder, where the relevant difference between their actions is one of chance? If we show more anger towards the man guilty of murder than towards the man who attempts murder, can the murderer say: We are as bad as each other in that we attempted the same action, so why are you more angry at me?’ Can we justify the different treatment? It seems to me that we would have no difficulty in justifying our different treatment. Certainly, we must treat them differently because the murderer must (albeit through chance) live with more anger. Also, we must treat him differently because he has killed a man and this requires a response. We do not need to address the question of fairness from the old perspective: we do not feel hostility towards him and we no longerA SOLUTION TO THE PROBLEM OF MORAL LUCK 351 want to punish him, Even if his situation is mainly the result of bad luck, it still demands a response and that response must recognize his situation. Soitis reasonable to react differently, provided the reaction is ofa certain kind. ‘My suggestion is, then, that the complaint which is made about the unfairness of our reactions to actions where chance plays a crucial part is not really simply a complaint about holding someone responsible for that which is beyond his control. The complaint is not so much that one reacts differently to the difference made by chance but that the kind of reactions we have cannot be justified. Faced with the problem of justifying hostile reactions we have sought suitable metaphysical conditions which have produced an incoherent account of human agency. ‘At this point many will be concerned that, even though we may have found suitable reactions to wrong-doing which do not create problems of moral luck, something important appears to have been sacrificed: justice, Surely, it will be said, to abandon punishment would be to abandon an important way in which we are able to react to evil, and to abandon the practice would be to abandon the idea that justice must be done. I will briefly suggest how our need for justice might be met through requirements which do not involve punishment and which do not create problems of moral luck. Itis commonly held that a just punishment is one that fits the crime. ‘The idea that the punishment should be appropriately connected to the crime does point to something important in our thought. We ought not simply to do, nothing in the face of wrong-doing (whether a crime or not) and we ought to concern ourselves with the victim's needs and with what it is that the victim and society should want from the wrong- doer. Furthermore, what is required from him should be in some way related to his past misdeed. It may be thought here that any action which falls short of punishment will amount to letting the wrong-doer get away with what he has done. However, I suggest that the only kind of suffering that truly fits the crime is remorse which arises out of the wrong-doer’s realization of the wrongness of his deed. Many criminals have served their sentences without feeling any remorse for what they have done, and some will, without ever feeling remorse, feel that they have paid for their crimes, But can wrong-doings be paid for in this way? Is there not an important sense in which, if someone is never brought to see the wrongness of his deed, then he has ‘got away with it’ in a way which is bad for his victim, society and for himself. The attitude of the perpetrator of a wrong can be very important to the victim. There is a big difference between the case352 BRYNMOR BROWNE where a wrong has been done and the wrong-doer does not care about, or even seems to enjoy reflecting on, his misdeed and the case where the wrong-doer feels genuine remorse for his deed. There is, of course, a kind of suffering through which a person who feels remorse must go, and it seems to me that this kind of suffering is both appropriate and good, It is good for the wrong-doer, in the sense that he would not wish to be without it and its presence in him may also help the victim, The remorse which the wrong-doer eels is appropriate because it is internally connected to his past misdeed, rather than contingently connected, as is the suffering of the prisoner. The cause of suffering in the case of remorse is also the intentional object of remorse. The suffering which is involved in feelings of remorse is an expression of the realization of the wrongness of the deed, It is at the same time part of what it is to realize the wrongness of the deed; we would not say of a person who felt no remorse for a serious wrong-doing that he truly saw that he had acted wrongly. T have suggested that wrong-doings cannot be paid for and that real justice requires that the wrong-doer feels remorse. What is more, although a person who feels remorse suffers, he suffers in the right kind of way, a way which involves no problem of unfair treatment and hence no problem of moral luck. Of course, there will be some cases where a person shows no remorse. Here I am only suggesting what [ believe is a fundamental moral requirement for real justice, However, it should be noted that no system of justice guarantees the required results in all cases Even though the law recognizes, and allows for, extenuating circumstances in certain cases, the view of responsibility which lies behind considerations of this kind is one which attaches responsibility to individuals’ actions in such a way that the agents are regarded no differently than complete instigators would be. But it is not only chance events which contribute to our actions. Most of our moral life is a life shared with others and others affect our character and the situations in which we act: in fact, it is others who help to create the framework for our actions. Each of us is influenced positively or negatively by what others do or fail to do. Just as they share in our actions, so we share in theirs. Once we see that contingent events play a part in all ofan agent's actions we must also concede that most of the contingent elements which help to form an agent’s acts are present through the actions of other agents. In this way agents can be said to share in each other's actions When someone becomes bitter, and eventually acts wrongly, as a result of being treated badly by others, those ‘others’ share in his action,A SOLUTION TO THE PROBLEM OF MORAL LUCK 353 however remotely. Of course, chance factors will also play a part in the actions of those people who caused the person to become bitter and no doubt the bitter person will, along with the others, share in the actions of those who are affected by his bitterness. It is partly because we have had an overriding concern to punish that we have held a certain view of responsibility and have been less able to see that we are responsible in many different ways for what others do. Once we no longer need to ask about responsibility with a view to punishment it will seem less strange to accept that there is no one single basis for attributing responsibility and that we all share in each other’s actions. ‘An agent’s history always helps to form his actions. In many situations one feels oneself to be totally responsible for what one does, and as a difference-maker one is, in a sense, in that position, But this is not an entirely true perspective from which actions can be judged. It presents an incomplete picture, though one which may, in practice, too frequently form the basis of the way that we tend to judge others. From a first-person point of view we stand, at the moment of acting, ata place from which we rarely see the influence on us of past events. We act, possessing a certain kind of character and certain values, which, although they are relevant to what we will do and to how we will see our situation, will not seem to play a part in our action. But this is also a misleading perspective from which to judge others. When there are riots in the ghettos and vicious actions are carried out, our incomprehension is based loosely on a picture of me now, being there then. ‘How could he do that?” we hear. The answer is that many actions are comprehensible with the history and perspective of the agent who performs them but not without it When someone does a wrong, our attention is focused upon them and we blame them for what they have done, They stand alone, without their past influences or many of the circumstances which led to the action. When we react to them we treat them as if they were the sole cause of the wrong. Of course, they are responsible in a way that others who may have influenced them are not and in a way that chance cannot be, but what they will be responsible for should be viewed as contributing, through their decision or action, to what happened. Criminals are treated as complete instigators and are generally held to be totally responsible for their wrong-doings. I believe that our attitude to the offender is deeply imbued with scapegoating. Our attitude towards the wrong-doer is rather like it would be towards a totem which represents entire responsibility for the wrong. He stands in for all the other contributors, taking on their sins (contributions), ready to be crucified, thus absolving all.354 BRYNMOR BROWNE Tt may be argued that we do not hold people totally responsible in this way. I offer three considerations in support of my claim that we do hold agents completely responsible. 1. We treat them harshly. 2. Wedo not look around for those who may have contributed to the agent’s character, except in exceptional circumstances, where their influence has been immediate or overwhelming and helps to ‘mitigate’ the offence. It is no part of our idea of justice that we should seek out all those who have helped to create the conditions which lead to the wrong-doing. In any case, itis not as if we seek these others with a view to administering lesser sentences for their contributions. 3. We condemn the man as well as punish him for what he does, particularly in the case of serious crime. Allied to this is the tendency toidentify a person’s whole being with his wrong action. I have argued that if our attitudes were different there would be no friction between our need to react to what the agent has done and our need to treat him fairly. Once we abandon certain attitudes and practices such as punishment, we are able to change our approach to responsibility. Without certain of our present attitudes and practices (punishment) there would be no problem of moral luck, even though there would be many cases where we could speak of agents being morally lucky or unlucky, such as the drunken driver who nearly kills someone. In such cases it is still proper to make the observation that the agent is morally lucky; but if correct attitudes to wrong-doing are in place there will be no problem of moral luck, which is essentially a matter of fairness in our treatment of agents. So far I have restricted my discussion to evil actions and to actions with bad consequences. However, luck comes into play where good actions are involved, and people can be morally lucky in these contexts too. This fact may at first seem to be at odds with my analysis, as my main contention has been that the cause of the moral luck problem lies in our wrong attitudes and that hostile attitudes directed against the agent who is morally unlucky are at the core of the problem. It might seem on the face of it that a problem of moral luck should not arise, for example, in the context of rewarding. However, I shall argue that what we find in cases of rewarding and praising actually supports my view that the problem of moral luck is caused by our attitudes Where rewards are offered as a means of encouraging others to do something, for example, to find a lost dog, a minor problem of moral luckA SOLUTION TO THE PROBLEM OF MORAL LUCK 355 arises if, for example, all look equally hard, but one is lucky and finds the dog. The question arises, “Are they not all equally deserving”; surely we cannot reward someone on the basis of a difference that chance has made. My position is that in such cases there is a problem of fairness and it arises out of the instrumental attitudes involved. By offering rewards we appeal to considerations which are extrinsic to the kind of morally good motivation which many would show in searching for the dog and one detracts from the true value of their actions. Of course, rewards are not always offered as a means of getting people to do something; at times, people may offer an unexpected reward after someone has done a good deed. We should note that on such occasions some are offended by being made such an offer which appears to put the action for which they are being thanked on a different footing. It may be very important that people are rightly motivated towards each other, and accepting or offering a reward may take something away from the action for which one is being rewarded. Sometimes a person may feel deeply that he wants to express his thanks to someone with a gift. Surely there can be no objection to this. Indeed, I have none. But does not this action of expressing one’s gratitude to the one who finds the dog create a minor problem of moral luck? Is it fair that the finder should be thanked differently from the others who looked (I take it that they were thanked too). My reply to this suggestion is that there is nothing wrong with giving as an expression of thanks and that there is no problem of moral luck in this case. Should anyone perceive this situation as one which gives rise to a problem of fairness, then I suggest that it is the attitude of the person who thinks that there is a problem which is at the heart of the difficulty. It is probable that such a ‘problem’ could only manifest itself against the background of practices such as punishment. A person who saves a life will be praised more for his action than one who merely attempts to save a life. Again, I would say that thisis a case of moral luck which is not a problem, for the same reasons as those outlined above, but additionally, I would suggest that there also seems less of a problem where praise is concerned. The person who tries to save someone and fails cannot be treated in just the same way as the one who succeeds, nor will there be any real temptation to say that he should be. In Nagel’s case of the murder and the attempted murder there is a considerable initial anxiety about blaming agents for what is contingent to their wills; but in the case of praise the initial problem seems less worrying. This is because the attitudes which are involved in praising are not against the agent and are not, in themselves, wrong.356 BRYNMOR BROWNE We praise the scorer of the winning goal more than the player who makes a more worthy attempt and fails. I agree that we might see something odd in praising where chance plays an obvious and crucial role, but I have not denied that control plays an important part in appraisal. Praising the footballer for a lucky goal is not an odd thing to do, but failing to see that the player whose skilled efforts did not lead to a goal is a good player who was unlucky would be (o miss something important. Tt seems to me that if we see a problem in the case of praise, then it is because our attitude to praise is itself wrong. Praising can be viewed asa kind of celebration in which we all share, or it can be viewed as a comparative judgemental exercise which sets person against person in moral competition. If we view praising in this latter way, then our attitude seems rather like that of those who regard another's good fortune as their own loss. We worry about the distribution of praise as if points for the opposition were our relative loss. However, if'we do not regard matters in this way, asit seems to me we should not, then there is no problem of unfairness in praising persons differently for their suecesses and failures. Thus, we have a serious problem of moral luck where punishment is concerned and where hostile reactions are involved, a less serious problem where rewarding is involved and no problem where praise and gratitude are concerned, which is what we would expect to find if my solution is correct. The solution in all these cases is to be found through modifying our attitudes and practices in line with deep-seated intuitions which have for so long made many feel uncomfortable with practices such as punishment and many of its associated attitudes, the attempted justifications for which have led us into incoherence.’ St David's College, Lampeter University of Wales I thank Prolessor Robert Sharpe and other members of staff at St David's University College, Lampeter, for their help and encouragement over the years, and in particular to Dr David Cockburn for his time and invaluable comments on my work