up getting more playing time, and as they progress through the ranks they are selected for better teams and more elite programs, receive better coaching, and play more games against better competition. What begins as a small advantage, a mere matter of luck, snowballs and leads to an ever-widening gap of achievement and success.
This kind of phenomenon can be found throughout society. Studies show, for instance, that low socioeconomic status in childhood can affect everything from brain development to life expectancy, education, incarceration rates, and income (see my Rejecting Retributivism, ch. 7 for a detailed discussion of the relevant literature). The same is true for educational inequity, exposure to violence, and nutritional disparities. It’s a mistake, then, to think that luck averages out in the long run – it does not.
In addition to constitutive luck, there is also present luck – luck at or around the moment of a putatively free and morally responsible action or decision. Present luck can include an agent’s mood, what reasons happen to come to her, situational features of the environment, how aware she is of the morally significant features of her surroundings, and the like. It is a matter of present luck, for instance, whether our attention wanders at just the right/wrong moment or whether chance features of the environment prime our deliberation. I contend, following my friend and fellow free will skeptic Neil Levy (2011), that the one–two punch of constitutive luck (luck that causes relevant properties of agents, such as their beliefs, desires, and predispositions) and present luck (luck around the time of action) completely undermine basic-desert moral responsibility. Following Levy, we can call this view hard luck, since it maintains that the pervasiveness of luck undermines, or is incompatible with, the kind of free will and moral responsibility under debate.
The problem with constitutive luck is that an agent’s endowments (i.e. traits and dispositions) result from factors beyond the agent’s control. Now, I’m sure you will say that as long as an agent takes responsibility for her endowments, dispositions, and values, over time she will become morally responsible for them (and perhaps even gain some control over them). The problem with this reply, however, is that the series of actions through which agents shape and modify their endowments, dispositions, and values are themselves significantly subject to luck – and, as Levy puts it: “We cannot undo the effects of luck with more luck” (2011: 96). Hence the very actions to which compatibilists point, the actions whereby agents take responsibility for their endowments, either express that endowment (when they are explained by constitutive luck) or reflect the agent’s present luck, or both. Either way, responsibility is undermined.
Dennett: The sense of “deserve” that I defend is the everyday sense in which, when you win the race fair and square, you deserve the blue ribbon or gold medal; and if you wrote the novel, you deserve the royalties, and if you plagiarized it, you don’t; and if you knowingly park in a “No Parking” zone, you deserve a parking ticket; and if you refuse to pay it, you deserve some escalated penalty; and if you committed premeditated murder, you deserve to go to prison for a very long time – provided, in all cases, that you are a responsible agent, a member in the Moral Agents Club, as I have called it. Of course it is the “forward-looking benefits” of the whole system of desert (praise and blame, reward and punishment) that justifies it, but it justifies the system, while ruling out case-by-case consideration of the specific benefits or lack thereof accruing to any particular instance of blame or punishment – which is not true of therapy, for instance. The system specifically prohibits even raising the issue of whether, in this instance, more good than harm would result from abandoning the verdict and the penalty.
People understand that. They would be incensed by a baseball umpire who took it upon himself to call strikes balls in order to bolster the ego of the depressed batter whose dying mother was watching from the stands, and they would be incensed – and properly so, I claim – by a judge who set aside damning evidence because the defendant had suffered enough already. Jury nullification is, of course, an example of the sort of bending of the rules which we all understand, and we understand it should be reserved for very special circumstances in which the laws, as they are written, fail to treat defendants fairly. The reason is that upholding the law and respect for the law is a key “forward-looking” policy. It is the maintenance of the credibility of the law and support for its provisions that governs all adjustments and limits all exemptions, for a straightforward reason: people are not angels, and will be clever (rational) and self-interested enough to explore for loopholes and ways of gaming the system. That is why the burden of proof of moral incompetence must rest on the defendant.
So, is the concept I am defending any kind of desert? It is not “basic desert” – a chimera fantasized by philosophers, apparently. Praise (or royalties, or your paycheck) is not just encouragement or reinforcement, and blame (or fines or incarceration) is not just deterrence or therapy. You are entitled to the praise you get for your good deeds and to the paycheck you get for your doing your job; and the criticism, the shame, the blame you get if you offend common decency or violate the laws is quite justly and properly placed at your doorstep. That is not “retributive” punishment, I guess, but it hurts, and so it should.
You think my parallel with rules in sports “can all be explained without appeal to free will and just deserts.” I disagree. The rules of sports have exclusionary clauses for events outside the control of the players, and also rules obliging players to maintain self-control. (There are cases where a player gets excused if he “could not have done otherwise,” and cases where this is no excuse, in exact parallel to the moral cases. No player has ever raised the issue of being exempt from blame because of the truth of determinism!) Players must be capable of understanding the rules, and agreeing to play by them, so they are considered to be autonomous, reasoning agents. Rules are composed to make games fair, and as the American political philosopher John Rawls noted long ago, justice is a kind of fairness.
You claim that adopting my non-retributive defense of punishment would require that “major elements of the criminal justice system” would need to be abandoned. I don’t see it. What would be jeopardized? I myself have urged all along that we need major reform of our penal policies, drastically reducing sentences, eliminating the death penalty, and instituting many programs to help prisoners prepare for the resumption of their full rights of citizenship, but it would still be a system of punishment, not just enforced rehabilitation processes or quarantine. If a magic pill were invented that would turn any convict into a safe honest citizen, it would not obviate the need for punishment, for instance.
Strawson may have said that “luck swallows everything” but, if so, he was wrong. Luck sets the stage, but even you note that – according to Nagel – “who we are is at least largely a matter of luck.” Largely, not all. Yes, what actions we perform depend (trivially) on luck, but not entirely on luck. Skill comes into it (and, yes, as I discussed in Elbow Room, how good you are at acquiring skill is itself largely – not entirely – a matter of luck). (See the discussion in my Freedom Evolves (2003a: 276ff), where I deal with the marathon case and your objection.) When I said that luck averages out in the long run, I was speaking of those of us who (lucky us) are competent moral agents. There are manifest differences, of course, between those of us who barely make the grade and those who are fortunate enough to find being moral quite easy, all things considered, and our policies and practices allow for this by setting a “ceiling effect” (2003a: 291). (A test that is so easy that almost everyone gets 100 percent has a ceiling effect; the threshold for passing the moral responsibility test is set low enough to assure that only those who are obviously unable to control themselves are disqualified.) We also take steps to improve the moral competence of all, with practices that amount to compensatory “special ed” instruction and therapy.
In effect, you are stuck on the wrong side of a sorites puzzle: if I am born without moral responsibility, utterly dependent on the luck of genes and environment, then how can adding a smidgen of competence ever lead me to be responsible? Two grains of sand are not a pile or heap (sorites, in Greek), and adding another does not make a pile. When is there enough sand to make a pile? When does a man lose enough hair to be bald? The gradual accumulation of the grounds for being held responsible, and holding oneself responsible, has no