Don’t Be Cruel: Building the Case for Luck in the Law

Alexander Sarch

doi:https://doi.org/10.26556/jesp.v23i1.1496

Volume 23, Number 1
October 2022

ARTICLE

Don’t Be Cruel: Building the Case for Luck in the Law

Volume 23, Number 1, October 2022, Pages 1–31

https://doi.org/10.26556/jesp.v23i1.1496

PDF

MP3

Abstract

The problem of legal luck asks why defendants who cause harm should receive more punishment than analogous actors who, simply due to luck, don’t cause harm. Here I consider one type of justification that assumes luckily harmless actors are just as culpable as their harmful counterparts. Specifically, I focus on the legislature’s reasons to ratchet down punishments for harmless wrongdoers beneath what is permitted on culpability grounds. After critiquing several such arguments (including one from mercy), I develop a more promising version based on the idea that the legislature has a duty not to be cruel. The legislature would violate this duty if it always passed laws imposing the maximum punishments permitted on culpability grounds. Withholding some punishment otherwise due harmless wrongdoers thanks to their culpability is a particularly appropriate way for the legislature to eschew cruelty. This provides a promising new justification for punishing luckily harmless misconduct less harshly.

This work is licensed under a Creative Commons Attribution-NonCommercial-NoDerivatives 4.0 International license.

|

Law and Violence

Alexander Guerrero

Are Savior Siblings a Special Case in Procreative Ethics?

Caleb Althorpe and Elizabeth Finneron-Burns

Strict Liability and the Mitigation of Moral Luck

Gregory C. Keating

Must States Do It Themselves? A Rights-Based Theory of Delegating State Coercion

Vincent Chiao

Crime, Public Health, and Inhumane Objectivity

Nadine Elzein