Law in Contemporary Society

There but for the Grace of God Go Us

-- By MatthewOsnowitz - 28 Feb 2020

Experiments in Moral Luck

In the 1960’ s, Yale psychologist Stanley Milgram conducted experiments on obedience. The son of two Jewish immigrants, Milgram was determined to understand why Nazi functionaries did not refuse their orders to commit atrocities. So, Milgram brought unsuspecting people into a fake psychological experiment. The subjects were told by a man in a lab coat to administer shocks to a “learner,” who was tasked with memorizing a set of words; each time the learner gave an incorrect response, the subject would give an increasing level of shock. The last level was simply marked “XXX.” Prior to his study, Milgram surveyed psychologists and clergymen: on average, they predicted that about 1 in 1000 people would administer that level of shock.65% of subjects administered the final shock. Milgram’s subjects were placed in a situation meant to recapitulate the intense pressure imposed by social context. Many participants wanted to stop, but felt compelled to continue nonetheless. The experiment is infamous for revealing the power of authority, and also reveals another unsettling fact; the difference between us and Adolf Eichmann may be due to factors outside of our control.

An intuition unmasked by Milgram is that otherwise ordinary people can be driven to commit heinous acts by outside circumstances, such as an authority figure’s demands. Such an intuition extends further, though, because it raises a fundamental question about moral agency, namely; can we pass moral judgment on a person, when so much of her action is based on factors outside her control? This exact concern has been examined by the philosopher Thomas Nagel, who terms the concept “moral luck.” The central tension Nagel describes is that our typical use of moral criticism and hatred may be unfounded if murderers and rapists are substantively unlucky in some way. Such as if the murderer was genetically predisposed to violent outbursts, or the rapist was raised by sadistic parents. It is easy to tell ourselves that we would not do as they did if we were in their situation, but Milgram’s experiment shouts the opposite conclusion. At its deepest level then, moral luck can erode societal conceptions of moral condemnation, and thrusts some closely held convictions into uncertainty.

Legal Luck and the Myth of Desert

Moral luck has a pervasive impact on not only our intuitions about morality, but also on our legal system. To use Nagel’s example; why does a driver who speeds down a highway with no negative consequences face a lesser penalty than one who speeds into a pedestrian? Both drivers commit the same wrongful act; it is only due to factors outside each driver’s control that lead to their differential judgment. The former gets a traffic ticket, while the latter can be charged with involuntary manslaughter, even though their action is the same. Making such a distinction thus seems arbitrary, as it is not based on anything inherent to the actor’s choice.

Following this logic to its extreme suggests that we may not be responsible for our actions in any legally typical sense, and casts some doubt on foundational assumptions of criminal law especially. Generally, in criminal law, if a person demonstrates her action was outside her control she cannot be held guilty of a crime. Supposedly the reason we do not prosecute sleepwalkers or the insane is that they cannot control their actions; they are merely at the whim of forces outside their control. Similarly, because of some difference in a DNA helix, one person may be angry all the time, prone to kill, while another has never entertained a violent thought. Our law treats the former as evil, and morally deserving of severe punishment. But is he not subject to forces outside his control? It seems that to an important degree, we are all subject to external forces that will eventually determine our choices. Perhaps then we are all, to a degree, legally insane.

In terms of punishment, then, perhaps it makes sense to ditch our retributivist impulses, and to instead focus on the goals of incapacitation and rehabilitation. Because the concept of moral luck casts criminals as victims of a certain kind of pathology, prison should no longer be a justified place for harsh treatment. Rather, prison should be a place for incapacitating individuals who are high risk for harming others, and for rehabilitating those that can be re-integrated into society. Thus, prison should not look like a desolate wasteland of human misery, but rather like a medical institution where inmates still have lives worth living: more like Denmark instead of Rikers.

Luck and Lawyers

It is easy to hate Eichmann or Harvey Weinstein or Rashaun Weaver. But Milgram’s experiment, and moral luck generally, demonstrate that if the conditions were otherwise, we might make those same choices. It is a proposition that society naturally recoils from. As lawyers, though, luck is a proposition that we ought to embrace. Hatred against criminals and evildoers is not an emotion that the lawyer can maintain, for as Robinson says, lawyers are never far from evil. The tension then, is that lawyers remain within a system that engages in the myth that all criminals are evil and therefore deserve to be hated and punished, while having to tolerate evil constantly.

Accepting luck helps to dissipate this tension. In comprehending a client’s choices as a partly a function of forces outside of his control, we relate to something innately human, for the criminals are no longer the other. We could be them, if our circumstances were shifted. That is not to say that lawyers must accept all clients, or like or respect them. Deep awareness of luck only allows a lawyer to understand evil in her work. And, once understood, evil can be tolerated, in a way. For those evil people stop being merely objects to be hated; instead, they become us.

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r1 - 28 Feb 2020 - 05:00:34 - MatthewOsnowitz
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