Alec Walen

Crime and Culpability, by Larry Alexander, Kimberly Kessler Ferzan (with Stephen Morse) is a visionary work of moral and legal philosophy. Nonetheless, it is fundamentally morally misguided. In seeking to free criminal law from what the authors take to be the distorting influence of outcome luck, they arrive at a position that is overly exculpatory. It fails to hold actors liable for the harms they cause when they have taken less care they should. I argue, first, that the authors’ attempt to strip criminal law of outcome luck is incoherent in its own terms, and that any attempt to follow through on their program would require a much more severe loss of accountability than the authors acknowledge. I then argue that outcome luck is pervasive in our moral lives, and that, given the choice of (a) not being able to hold agents accountable for much, or (b) holding them accountable for the results of their choices, including outcomes that result in part from moral luck, the right choice is (b). I wrap up with a concluding observation about the implausible moral psychology that underlies the authors’ view of culpable action.

It is often argued that suspected terrorists captured in the war on terror can be detained just the same way captured enemy soldiers can: until the relevant war is over. But there is a deep disanalogy between suspected terrorists and captured enemy soldiers. Soldiers cannot be held accountable for the use of force , whereas terrorists normally can. Detaining people who can be held accountable as if they cannot is crossing an important moral line, sacrificing the rights of the individual for the welfare of the whole