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No one has come up with a satisfactory test for determining whether an injury caused by the actor’s act was “proximately caused” by it. Moreover, no one will. The reason no one will is that the upshot of the proximate cause inquiry – what the actor deserves – is not related to what the actor caused, “proximately” or otherwise. When the causal chain seems too deviant, then the ordinary person’s rough sense of justice might be offended by attributing the result to the actor,29 but this is just a sociological observation and not a rational argument. If this rough sense of justice is too ingrained to be abandoned, then we should recognize that any test is rationally arbitrary. If results were jettisoned as a criterion of criminal liability, then the criminal law could avoid the baroque machinations of legislators, lawyers, and judges as they try to rationalize proximate cause doctrine. In our view, the answer to this problem is clear. Causation and results should not matter to the criminal law.

IV. Free Will and Determinism Reprised

Any discussion of the role of results, often coined “moral luck,” raises concerns about free will and determinism. This concern leads to one final objection to our position – why do we eschew the relevance of “moral luck” when “constitutive luck” and “circumstantial luck” cannot be avoided or eradicated? Michael Moore argues that “result luck” is indistinguishable from “constitutive luck” (luck involving the genetic and experiential fortuities that cause one to have the character that produces potentially harmful conduct) and various types of “circumstantial luck,” such as “planning luck” (luck involving fortuities that may intervene to prevent one from forming plans to engage in potentially harmful conduct) and “execution luck” (luck involving fortuities that prevent the execution of firmly formed intentions to perform potentially harmful conduct).30 One may have betrayed a Jewish friend had one lived in Nazi Germany. One may have stolen money had one not inherited it. One may have struck one’s enemy had a cop not been standing nearby. And so on.

29See Robinson and Darley, supra note 3, at 188–189.

30See Michael S. Moore, Placing Blame: A Theory of Criminal Law 233–246 (1997).

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Moore convincingly argues that in a deterministic world, variables over which the actor had no control exist at every stage, from character to execution. Whether or not one performs a wrongful action is as suffused with luck, and is as beyond our control, as whether results actually occur. If we had a different character, which is largely not up to us, then we would not be the type of person who would have the desire or form the intention to do wrong. If we have the desire to do wrong, then events over which we have no control may distract us from forming the intention to satisfy that desire. Once we form the intention, events over which we have no control, ranging from physical to psychopathological, may prevent us from executing that intention.

The conclusion that in a deterministic universe, luck, understood in this way, “goes all the way down” is correct as a matter of theoretical reason. But, as Moore recognizes, it leads to an unacceptable reductio that those like us who believe results do not matter will be forced to accept. If causal influences over which we have no control undermine responsibility, then no one is responsible for anything, and this conclusion is not limited to results. Genuine desert does not exist. Because this conclusion is morally unacceptable and does not account for the moral and legal world we inhabit, a morally principled line based on luck cannot be drawn. Moore suggests that because we accept the existence of desert for action despite constitutive, planning, and execution luck, we should be willing to accept the existence of desert for results despite result luck.

Moore’s suggestion does not follow, however. Luck may not provide a principled basis to draw the line between moral responsibility for action and moral responsibility for results, but perhaps another principle that does not lead to an unacceptable reductio will. Moore’s critique of the luck argument depends on that argument’s confusion of the distinction between a mechanistic-causal account of behavior and a practical reasoning account. As a good compatibilist, Moore knows that the explanatory causal stories of theoretical reason are not the basis for responsibility and desert. They could not be for just the reasons he gives. Causation is a metaphysically seamless web. In a compatibilist account of the type he endorses – and that two of us also endorse31 – responsibility and desert are moral concepts implicit in practical

31 See Chapter 1.

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reason. Compatibilists (and libertarians)32 believe that human beings are capable of rational deliberation, that our deliberations affect our actions, and that our actions potentially affect the world. For compatibilists, actors do not need contracausal freedom to deserve praise and blame, or punishment and reward, for their actions. It is sufficient if they act intentionally, without compulsion, and with a general capacity for rationality. The only form of control a responsible actor needs is the general capacity to be guided by reason, a capacity most adults possess in ample measure. Thus, compatibilists have good reason to “draw the line” at human action because only action can be guided by reason, and not because action is free of the causal forces of the universe – of “luck.” The potential for the law to guide people by reason is a good justification for holding people morally responsible for actions but not for results. For us, as for Moore, there is every reason to distinguish between result “luck,” on the one hand, and constitutive and circumstantial “luck,” on the other.

Ultimately, our position rests on the assumption that the control we have over our choices – our willings – is immune to luck and is thus qualitatively and morally different from our control or lack thereof over our heredity and environment, the situations in which we find ourselves, and the causal consequences of our choices. No matter our past history, the options we confront, or the causal forces that will combine with those we initiate, what we choose is up to us in a way these other factors are not. It is not just that we have more control over our choices than over our constitution, our circumstances, and what we cause. Our control over our choices is different in kind, not different in degree.

32Libertarians have another argument for distinguishing between result luck on the one hand and circumstantial and constitutive luck on the other. For them, there is no fact of the matter regarding whether someone would have acted wrongly in different circumstances. Nor does the fact that one’s character and environment are largely beyond one’s control deprive one of the freedom to choose in accordance with good reasons. For an attempt to deal with constitutive, circumstantial, and result luck by arguing for a distinction between moral worth and moral responsibility and claiming that results matter only for the latter, see John Greco, “Virtue, Luck and the Pyrrhonian Problematic,” 130 Phil. Stud. 9 (2006). For us, who are concerned with culpability rather than worth or responsibility (for outcomes), the line Greco draws occurs at the wrong place. In terms of culpability, one can be constitutively or circumstantially “unlucky” – one can have unfavorable genes or environment, or one can face more or stronger temptations to wrongdoing than others – but one cannot be “unlucky” with respect to results.

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Bad luck before choice and bad luck after choice is just bad luck; unlike choice, it cannot affect our culpability.33

V. The Immateriality of Results and Ancestral

Culpable Acts

The criminal law often charges people with having acted culpably when the conduct in question was clearly not culpable but was the result of prior culpable conduct. Consider Joe, John, and Jake, who all drink themselves into an extreme state of intoxication in a pub. Joe is so drunk he cannot find his car and passes out in the parking lot. John does find his car and drives it quite dangerously, but luckily hits no one. Jake also finds his car, also drives it quite dangerously, and plows into another car, killing its occupants.

The criminal law would charge Jake with reckless homicide despite the fact that Jake was so intoxicated that he did not realize his driving was unduly risky to others. If Jake would have been aware of those risks had he been sober, and if his lack of sobriety was the result of voluntary drinking, then the criminal law attributes recklessness to his driving.34 John, if apprehended, can also be charged with reckless driving as well as the proxy crime of driving while intoxicated. Again, John is considered reckless, despite his failure to advert to the riskiness of his conduct, because he would have so adverted had he not voluntarily become intoxicated. Joe, on the other hand, because he failed to find his car, is guilty of no crime of recklessness.

What is happening in these cases is that the law is, in effect, holding John and Jake culpable at the level of recklessness for their getting intoxicated, and the law is then attaching that culpability to the fortuitous outcomes of that recklessness. In Jake’s case, it is a death. In John’s, dangerous conduct. Joe, however, having luckily engaged in no dangerous conduct subsequent to his drinking, escapes criminal liability altogether.

33See Nir Eisikovits, “Moral Luck and the Criminal Law,” in Law and Social Justice 105, 117 (J. K. Campbell, M. O’Rourke, and D. Shier, eds., 2005).

34See Model Penal Code § 2.08(2) (1985).