The general problem of moral luck—that responsibility is profoundly affected by factors beyond the control of the person held responsible—has two distinct dimensions in the case of accidental injury (and no doubt in many other cases). One dimension is concerned with attribution of moral blame. Thomas Nagel explains: “If one negligently leaves the bath running with the baby in it, one will realize, as one bounds up the stairs towards the bathroom, that if the baby has drowned one has done something awful, whereas if it has not one has merely been careless.” How badly one has behaved and hence how much one should be blamed turns on consequences beyond one’s control—on luck. The other dimension concerns the existence and extent of one’s responsibility for having done harm, one’s obligation to someone harmed to make amends for or repair the harm done. Someone who has been careless and lucky enough not to injure anyone has no such obligation. Someone who has been equally careless and inflicted a devastating injury may well have a ruinous obligation.

In contrast to one another, the first of these dimensions seems distinctively more moral and the second distinctively more legal. The extent of the agent’s culpability, the degree to which he or she should be blamed, strikes us as predominantly a matter of moral assessment. We are appraising a person, determining what sort of mark should be entered on the ledger of his life and character. The existence and extent of obligations of reparation, by contrast, strikes us as predominantly a matter of legal liability. We are settling the responsibility of an injurer to her victim. But it would be an error to draw too sharp a distinction between the moral and the legal. A legal judgment of negligence expresses criticism and disapproval of the conduct involved, and it is a mistake to purge that legal criticism of any moral dimension. So, too, the legal obligation to repair harm wrongly inflicted imposed by the tort law of negligence overlaps with a perceived moral obligation of the same kind, and is no doubt at least partially rooted in and justified by that perceived moral obligation. Because the moral and the legal interpenetrate in these ways, our judgments about the role that moral luck should play in on our assessments of the moral culpability of persons cannot be wholly divorced from our judgments about the role that moral luck should play in our assessment of the legal liability of persons.

It is significant, then, that Thomas Nagel in one of the articles naming the problem of “moral luck” condemns strict liability as an “irrational . . . moral position” in contradistinction to negligence liability, which takes a defensible position on moral luck. Negligence liability is morally defensible because it holds people “responsible for the contributions of fate as well as for their own—provided they have made some contribution to begin with.” The comparative irrationality of strict liability, however, cannot turn on the fact that it holds people accountable solely for fate. It doesn’t. Holding “the contributions of fate” constant for the moment, strict liability holds people accountable for harms attributable to their agency whereas negligence liability holds people accountable for harms attributable to their culpable agency. If strict liability is morally irrational it must be because it is irrational to hold people accountable for the consequences of their agency, as opposed to for the consequences of their faulty agency. Perhaps there is some reason why this is the case, though I am inclined to doubt it. But if there is some such reason it is not rooted in moral luck. On the contrary, one of the distinctive virtues of strict liability is that it is capable—in the social world in which we live—of mitigating the effects of moral luck. In law, “moral luck”—is in part an artifice of institutional design. And under conditions common in the modern world, strict liability does not exacerbate the effects of moral luck, it mitigates those effects.

The standard criticism of strict liability has it exactly backward. This criticism asserts that strict liability is suspect because of the great burden that it places on our freedom: We may find ourselves liable for devastating injury no matter how carefully we proceed, no matter how irreproachably we conduct ourselves. Strict liability is a sword of Damocles dangling over all of our actions. When the subject under consideration is strict enterprise liability in the law of torts—and when that subject is under consideration in a characteristically modern social world—this criticism is wholly misplaced. In a world where the costs of accidents can be dispersed across the activities which engender them, strict liability protects our freedom of action by substituting certain but manageable insurance premiums for unpredictable but potentially catastrophic losses. By subjecting us to a lottery some of whose spins of the wheel impose financial ruin, it is fault liability that puts our actions at the mercy of luck.

Tort law may have something to tell us about the sources of moral luck. Thomas Nagel famously mused that the problem of moral luck may arise out of our ability to adopt both objective and subjective perspectives towards ourselves—to see ourselves both as objects within the natural world , governed by causal laws and as actors who cannot help but conceive of ourselves as free. In tort law, the phenomenon appears to arise more proximately from another source: The clash of individual conceptions of fault with the reality of systemic social risk. What is luck to the parties involved, is statistically inevitable harm to the activity within which the accident arises. “Moral luck” is not “luck” at all but the upshot of a mismatch of social reality and institutional form. Moral luck is in part the offspring of human institutions and it may in part be mitigated by their redesign.


Law | Law and Economics | Torts

Date of this Version

August 2006