Excerpt from Just Deserts by Daniel C. Dennett and Gregg D. Caruso, reprinted with permission from Polity

Dennett: Once again, Gregg, the issue of knowledge interferes with your effort to distinguish two kinds of luck and show that one way or the other nobody can be responsible. First, of course, we are all spectacularly lucky just to be alive. More than 99 percent of all the living things that have ever lived have died childless, but not a single one of your ancestors or mine has suffered this overwhelmingly normal fate. And this has a remarkable corollary: we have evolved into creatures that are not just lucky but skilled, and not just skilled but skilled at making the most of our good luck and of arranging to minimize the bad effects of our bad luck. Now some of us are not so clever; these intellectually challenged folks don’t have free will, through no fault of their own (they aren’t responsible for not having free will, just unlucky) but because of infirmities bestowed upon them by their unfortunate pasts, they lack the self-control required. This is a good example of people who, because of events in their past over which they obviously had no control, have no free will. But those of us who are luckier than they, and have been born with normal human intelligence and hence the ability to reflect on our circumstances can:

(1) seek out and identify flaws in our own pasts (“constitutive” bad luck) that threaten to deprive us of free will unless we take steps to institute repairs (get some eyeglasses, for instance, and take our meds, if we have a treatable mental condition)

(2) plan our daily activities and long-term projects with an eye to minimizing the effects of “present” bad luck. This includes seeking counsel, avoiding tempting environments, hiring kindly neuroscientists when they become available, and avoiding situations where our luck, good or bad, is likely to be the deciding factor. We decline to play Russian roulette, for instance, and stay off the highway when black ice is forecast. That maturity is part of the competence of free will.

The thing about luck that makes it a poor player in the free will discussion is that we all know about luck, and hence can be held responsible for making allowances, making plans, and remembering about luck when we decide who is responsible and who isn’t. Philosophers have carefully contrived cases where no amount of foresight or maturity could help you, otherwise blameless, from doing some terrible deed, killing an innocent bystander, for instance, when your car, driving at the speed limit, hits an unforeseeable bump, but in those cases we can agree that its bad luck, a tough break indeed, that you get branded for the rest of your life as a committer of involuntary manslaughter. And to alter the case, if you were knowingly speeding when you hit the bump, gambling, in effect, on your good luck on the highway, you may get convicted of something more serious. Somebody else, who was also speeding, but who got home without mishap is only lucky to have avoided your fate. Life isn’t always fair. Not so surprisingly, there is no guarantee against bad luck intervening to spoil your trajectory as a blameless agent. That’s one of the prices we all pay for our freedom. The idea that we should adjust our policies to prevent all such occasional meaningless tragedies is, in my view, shortsighted in the extreme; we can articulate our policies of praise and blame to minimize the role of mere luck, and then just grit our teeth when the outcomes go awry. Any other policy would be at best paternalistic and patronizing, and at worse unfair. When an obviously inferior tennis player wins a match he “shouldn’t’ win against a player who stumbles over a turtle that has wandered onto the court, we don’t hesitate to declare the inferior player the winner. Tough luck, but that’s the way it goes. In a much more serious context, when you assume for very good reasons that the gun in your hand isn’t loaded, never imagining that, by some scarcely imaginable and entirely non-nefarious series of bizarre coincidences, your unloaded gun has been displaced in your tracking of the world by a loaded duplicate, and you fire the deadly shot thinking you’re just innocently playing cowboy, you are guilty of a crime. Don’t ever aim a gun at anybody and pull the trigger unless you are morally certain that it isn’t loaded.

Caruso: Dan, I think you drastically underestimate how pervasive luck is and how difficult it is for agents to overcome certain inequalities and disadvantages that are purely matters of luck. It’s purely a matter of luck, for instance, that I was born into a relatively stable society, during a relatively stable period in history, to a pair of relatively supportive and loving parents. I could have easily been born into a war-torn nation where my only options were to (a) pick up a machine gun and join group A at age thirteen and begin killing members of group B; (b) join group B and start killing members of group A; or (c) remain neutral and have my family massacred in front of my eyes as retaliation for not joining either group. If that were the hand luck dealt you, would you be capable of murder? I think you would be. I think most would be. This is not to say, of course, that the skeptical perspective is not consistent with other conceptions of responsibility – e.g. causal responsibility, attributability, answerability, etc. Nor is it to deny that there remain good reasons for incapacitating dangerous criminals and engaging in forms of moral protest in the face of bad behavior. Rather, it is to insist that to hold people truly deserving of blame and praise, punishment, and reward, would be to hold them responsible for the results of the morally arbitrary or what is ultimately beyond their control, which is fundamentally unfair and unjust.

Your antidote to luck seems to be skill or moral competency. But, as I argued in our first exchange, I do not see how this helps, since the series of actions through which agents develop various skills and competencies are themselves either the result of constitutive luck (when they stem from an agent’s endowments), present luck, or both. It is matter of luck, for instance, that we’re even capable of identifying “flaws in our past (‘constitutive’ bad luck) that threaten to deprive us of free will.” It’s also a matter of luck, both constitutive and present, that we can “take steps to institute repairs.” I do not see how we can undo luck with more luck (Levy 2011).

The reason I care so much about these issues is that they have real-world implications for public policy. Consider, for instance, our attitudes toward criminal behavior. It is quite common both in criminal law and everyday attitudes to portray criminal behavior as a failure of moral character and a matter of individual responsibility. The retributive justification of legal punishment (and your quasi-retributive justification which provides a forward-looking justification of backward-looking desert) assumes, for instance, that, absent any excusing conditions, wrongdoers are morally responsible for their actions and deserve to be punished in proportion to their bad deeds. Since it focuses almost exclusively on the individual and their responsibility, and not on the social determinants of criminal behavior, retributive (and quasi-retributive) justice tends to favor punitive approaches to crime rather than policies aimed at targeting the social structures and causes of criminal behavior. Such an approach maintains that it’s the individual who is responsible for criminal wrongdoing, and thus criminal justice is primarily about giving wrongdoers their just deserts. Perhaps nobody embodied this ethos of individual responsibility more than Ronald Reagan, who famously said: “We must reject the idea that every time a law’s broken, society is guilty rather than the lawbreaker. It is time to restore the American precept that each individual is accountable for his actions.”

The problem, however, is that the more we learn about criminal behavior, the more it becomes obvious that crime has more to do with places and circumstances than people. In fact, look closely and you will find that there are life-times of trauma, poverty, and social disadvantage that fill the prison system (for a detailed discussion of the relevant data, see my Rejecting Retributivism: Free Will, Punishment, and Criminal Justice). Failing to recognize this has profound consequences. People very rarely think about the social forces that are enormous contributors to criminal behavior, such as poverty, housing, educational inequity, racism, sexism, exposure to violence, etc. Instead, we attribute criminal behavior to a person’s moral character (“They’re just bad people”) and assume they deserve to be punished. Importantly, these assumptions have consequences. When we think about someone’s “badness” as an essential personal quality because we’re ignoring the situational forces, we treat them worse and are less generous to them. We adopt punitive reactive responses to crime rather than targeting the social determinates and structural causes of criminal behavior. We need to radically change our assumptions about criminal behavior and focus instead on those situational forces and changeable behaviors when making policy decisions.

Hence, I propose that we reject retributivism (and your quasi-retributivism) and adopt a more holistic and systematic approach to criminal behavior. Unfortunately, belief in free will stands in the way, since it encourages punitiveness and is driven by a desire to blame and hold others morally responsible. It sees criminal behavior as primarily a matter of individual responsibility and as a result ends the investigation at precisely the point it should begin. The criminal law, with its assumptions about free will, encourages us to adopt what I call a time-slice approach to criminal behavior. It asks, at a particular moment in time (the time of the crime), was the agent competent? Were they reasons-responsive? Did they have a guilty mind or criminal intent? Did they understand that their actions were wrong or unlawful? etc. If the answers are yes, yes, yes, and yes, then they are legally and morally culpable and it is legitimate to punish them – all things considered and assuming there are no excusing conditions. Of course, the criminal law occasionally considers prior circumstances as relevant (e.g. in cases of domestic violence), but it is primarily focused on establishing actus reus, mens rea, and the state of mind of the offender at the time of the crime. Unfortunately, adopting such a time-slice approach abstracts individuals from their lived circumstances and the social systems they are embedded in. It blinds us to the social determinants of criminal behavior, the causes and systems that shape us, and how individuals come to acquire a particular state of mind.

Once we adopt the skeptical perspective, on the other hand, we realize that the myopic focus on individual responsibility, blame, and punishment is mistaken and counterproductive. The skeptical perspective tells us that the lottery of life is not always fair, we do not all have equal starting points, and individuals are embedded in social systems that shape who we are and what we do. In contrast with the time-slice approach, I encourage a historical whole person approach that sees individuals as byproducts of their histories and circumstances. It helps us to recognize that criminal behavior is often the result of social determinants and that the best way to reduce crime and increase human well-being is to identify and take action on these determinants. I know you’ll disagree, but perhaps we can discuss my public health–quarantine model in our next exchange so as to hash out some of our differences in a longer conversation.

For the moment, I’ll simply say that I find your solution to luck rather naive. You seem to suggest that one can easily “seek out and identify flaws in our own past” that are due to matters of bad luck, and then “take steps to institute repairs.” But that is more easily said than done, especially when the disadvantages are systemic and difficult to overcome. I cannot help but think that the nature of the problem is an order of magnitude greater than your example of getting some eyeglasses to overcome my bad eyesight (a matter of bad luck) suggests.

Dennett: Luck is hard to think about clearly. You say “I could have easily been born into a war-torn nation . . .” and if that is true, it is also true, I guess, that you could have been born a starfish or a cucumber or never born at all. And if I had been born into a war-torn state, I might indeed be a cold-blooded murderer through no fault of my own, or, again, I might have been a machine gun, no more responsible for the deaths than the person with the finger on my trigger. This imagination game has few if any stable rules. I’ve already pointed to every living thing sharing in the incredible luck of being born at all. Every human being, to move closer to our issue, has the incredible luck of being a human being (and not a toad or an earthworm, though they are probably quite content to be what they are, utterly oblivious to the fact that they don’t have free will). And I am agreeing with you that among human beings, many are extremely unlucky in their initial circumstances, to say nothing of the plights that befall them later in life. This is all common knowledge, and any system of morality must deal with it, and they already do, though not with equal fairness.

The law already deals quite effectively with “present luck” and so does everyday informal morality. We all make allowances for unlucky circumstances, where people “couldn’t have known” about this or that circumstance that turns out to be pivotal. Even small children recognize effortlessly that it isn’t fair to penalize or even criticize someone for something that is clearly just a bit of bad luck. The law has devised stronger principles for special cases: strict liability laws that explicitly rule out the excuse of bad luck. This keeps pharmacists and crane operators and others in high-risk occupations on their toes, but adults in general are expected to exercise normal caution and vigilance. Those who can’t are not allowed the freedom granted to the competent.

You say “I do not see how we can undo luck with more luck.” I agree; it takes work and skill to undo luck. And as you say, adjusting your life style is “easier said than done.” But with a little luck (and all but the most unfortunate have a little luck) you can develop the skills and work habits that make luck less dominant in your life. Two Birds have nicely expressed this point. Alex Bird, a famous British “punter” (gambler) who made a fortune betting on horse races once said, “I’ve never thought of myself as lucky. I’m a coward. That’s why I can’t be a gambler. But I work very hard. The harder I work, the luckier I get” (London Observer, April 24, 1983). The last sentence has also often been attributed to the great basketball player, Larry Bird. No doubt many others have invented this morsel of wisdom. I suppose you will object that you still have to have the luck to have the personality that allows you to do this hard work. Not necessarily. Maybe instead, in spite of your feckless personality, you might have the luck to have an assiduous coach who helped you overcome your bad luck in the true grit department. Or you might have the luck (is it good or bad?) to suffer some near-death ordeal in your youth that shocked you into a more stalwart character, or . . . There are uncountable ways to maturity and self-control, and while the prisons are indeed well-stocked with people who never encountered one of them, they are not the only people in prison. My goal is not to eliminate the prisons, but to reform them and make due allowances – much more than our current system does – for the differences in both luck and skill that you point to.

Copyright © Daniel C. Dennett and Gregg D. Caruso 2021. Available from Polity