Lewis’s lottery Notes for May 4

Main points

We punish successful attempts more severely than unsuccessful ones. Why?

Lewis’s answer has two stages.

In the first stage, he proposes a penal lottery that, he claims, would be a fair way of dealing with mere luck. (I’ll have more to say about what mere luck is later).

The second stage argues that our system’s practice of punishing successful attempts more severely than unsuccessful ones can be understood as the outcome of such a lottery. Thus, our system is fair.

Mere luck

We might punish successful attempts more severely than unsuccessful ones but not because we think that success per se is worthy of punishment. Rather, we might do so because success and failure are signs of something else that we think is worthy of punishment. For instance, if the successful criminal tried harder or was more intent on harming his victim, we’re likely to say that the successful criminal deserves more punishment than the unsuccessful one. If we think that success is generally the product of these punishable factors, we’ll generally be in favor of punishing successes.

Lewis, however, is interested in something else. He’s interested in the difference between success and failure itself, apart from anything else. To see what he’s trying to get at, imagine two people who try equally hard and are equally intent on harming their victims. One succeeds and the other fails. Luck is the only difference between them.

Even when mere luck is all that separates two attempts, our system still punishes the successful attempter more than the unsuccessful one. It’s this difference that Lewis is interested in. If everything else is equal, why punish the one more than the other?

The lotteries

One answer is that we shouldn’t punish the one more than the other. Sean and Toby, among others, thought that it was wrong that the punishment given to two otherwise identical defendants should depend on a lottery.

One interesting feature of this objection is that it was sometimes negated in the end. Toby, for instance, thought that a lottery system would be objectionable because it might punish the unsuccessful attempter more than a successful one. But if the system of punishing successful attempts more than unsuccessful ones is the lottery, that objection obviously does not apply.

This page was written by Michael Green for Philosophy of Law, Philosophy 34, Spring 2009. It was posted May 4, 2009.
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