David Enoch

In this Article, I elaborate on and defend the following argument: There is no moral luck. If there is no moral luck, there should be no legal luck. Therefore, there should be no legal luck and ). If there is no normatively significant difference between the law doing and allowing, or intending and foreseeing, then there is no normatively significant difference between legal luck and just plain luck that has legal implications. There is no normatively significant difference between the law doing and allowing, or intending and foreseeing. Therefore, there is no normatively significant difference between legal luck and just plain luck that has legal implications and ). Therefore, plain luck should have no legal implications and ).

A spectre is haunting legal positivists – and perhaps legal philosophers more generally – the spectre of the normativity of law. Whatever else law is, it is sometimes said, it is normative, and so whatever else a philosophical account of law accounts for, it should account for the normativity of law. Of the many different possible ways of understanding "the" problem of the normativity of law, I focus here on the one insisting on the need to explain the reason-giving force of the law. But, I argue, once we are clear on just what reason-giving consists in, and on what claims about the reason-giving force of the law are at all plausible, accommodating the fact that the law gives reasons for action can be seen to be a pseudo-problem. In particular, not only doesn't legal positivism face an especially serious challenge here, but it can be seen to have a (modest) advantage over its competitors in accommodating one way in which the law can (perhaps) give reasons for action.

In "Moral Luck" Bernard Williams famously drew on our intuitive judgments about agent-regret – mostly, on our judgment that agent-regret is often appropriate – in his argument about the role of luck in rational and moral evaluation. I think that Williams is importantly right about the appropriateness of agent-regret, but importantly wrong about the implications of this observation. In this paper, I suggest an alternative understanding of the normative judgment Williams is putting forward, the one about the appropriateness of agent-regret. I distinguish between being responsible and taking responsibility. The judgment about the appropriateness of agent-regret, I argue, is better understood as a judgment about the (forward-looking) moral duty to take responsibility than about the (backward-looking) fact of being responsible. The distinction between being responsible and taking responsibility is wider in scope, though, than the discussion of agent-regret, and in this paper I go to some lengths elaborating on this distinction and its theoretical usefulness. Thus, I distinguish different senses of taking responsibility (forward- and backward-looking; just acknowledging responsibility that is already there vs. making it the case that one is responsible); I argue against initial doubts about the very coherence of this stronger understanding of taking-responsibility; and I specify the background conditions for the possibility of taking responsibility in this strong sense. The discussion of the normative background conditions necessary for the possibility of taking responsibility in the strong sense leads to a discussion of an intuitive notion of penumbral agency. Thus, I cannot take responsibility for Jefferson's owning slaves – the relevant actions and events are just too far from my agency to allow for me to take responsibility over them. Of course, I can issue statements that sound like an attempt to take responsibility. But I cannot thereby become responsible. It is just not within my power to make it the case that I am responsible for Jefferson's slave-ownership. At the other extreme, for some things I do not need to take responsibility in order to be responsible. For my actions – or perhaps intentions, or some such – I am already responsible, independently of whether I ever take (or even acknowledge) responsibility. These things are within the core of my agency, and I am responsible for them regardless of whether I take responsibility for them. But we should acknowledge the fact that there is more to this spectrum than just the extremes. Some actions and events are not within my core agency, but nor are they too far to allow me to take responsibility for them (thereby becoming responsible for them). Possible examples include the actions of my country, the actions of my rather young children, and – now getting back to Williams's discussion – the uncontrolled consequences of my actions. In these cases of penumbral agency, I argue, we are not responsible, but we can become responsible by taking responsibility. Furthermore, we may have a moral duty to take responsibility. Thus, the distinction between being responsible and taking responsibility is theoretically useful in accounting for our intuitively problematic and ambivalent responsibility-judgments. In the case of my country's actions, for instance, we want to say both that I am not responsible for them (given my very limited power to influence them); but we also want to say that there's something wrong about my refusing to accept responsibility for my country's actions, or about my just noting that I am not responsible for those actions. Utilizing the distinction between being responsible and taking responsibility, we can say that while I am not responsible for my country's actions, I am under a moral duty to take (some) responsibility for them. In the case of agent-regret and moral luck, this distinction allows us – vis-à-vis Williams – to have our cake and eat it too. True, agent-regret is often appropriate. But this shows nothing directly about responsibility. Rather, it shows something about our moral duties to take responsibility. And that these duties are sensitive to lucky circumstances is not more mysterious or paradoxical than the circumstances-sensitivity of pretty much all of our other moral duties. In other words, thus understood, the appropriateness of agent-regret is perfectly compatible with the denial of moral luck.

Everyone agrees, I think, that there is something fishy about moral deference and expertise, but that's where consensus ends. This paper has two aims – the first is to mount a defense of moral deference, and the second is to offer a (non-debunking) diagnosis of its fishiness. I defend moral deference by connecting the discussion of moral deference to the recent discussion of the appropriate response to uncertainty. It is, I argue, morally obligatory to minimize the risk of one's wrongdoing (at least when all other things are held equal), and this moral requirement entails that deferring to a moral expert is sometimes not just morally permissible but also admirable, and indeed morally required. If moral deference is often justified, why is it fishy? I offer an explanation in terms of the emotions moral judgments are often related to, and their nature (roughly speaking) as directed at the good or bad, right or wrong, de re rather than de dicto. The combination of this vindication of moral deference and diagnosis of its fishiness nicely accommodates, I argue, some related phenomena, like the (neglected) fact that our uneasiness with moral deference is actually a particular instance of uneasiness with opaque evidence in general when it comes to morality, and the (familiar) fact that the scope of this uneasiness is wider than the moral as it includes other normative domains.