Moral Luck And Personal Responsibility In Criminal Law

Critically discuss what role moral luck should play, if any, in establishing liability for unlawful act manslaughter in English criminal law?

Moral luck argument cannot be conducted without regard to personal responsibility. The argument cannot be done without having reference to the essence of criminal law. Criminal law focuses on the kind of harm and not much to identifying the person responsible for the harm. This is the harm-centred concept of criminal law. If the argument is inclined towards this concept, the argument of moral luck will not be much relevant. However, it if is centred on culpability as to punishing the wrongfulness of a person’s action, then the argument will be more relevant. Drawing relevance of this argument with unlawful act manslaughter, it needs to be seen whether this offence has basis on culpability to determine the role of moral luck in assessing its liability.

Unlawful act manslaughter, also known as constructive manslaughter’ requires an unlawful act, which is dangerous and have caused death of a victim. It requires both mens rea, which is the fault associated with the act that is dangerous and actua reus. Issues around this offence are focused on discrepancy between the degree of risk of the harm and the harm caused. It is argued that this offence should be based only to the act with the intent to cause harm. There is moral and legal justification to this offence and it respects physical integrity. As such the defendant should be liable for the resultant death, even if unforeseen according to the principle of moral luck. It also covers responsibility for accidental death, which may be beyond one’s control. As such, this offence has a personal responsibility characteristic and thus, the argument of moral luck plays a role in determining the offence.

Unlawful act manslaughter either requires a foreseeable risk of death, in respect to the criminal act or in respect of moral luck, causing death. It should also be noted that if moral luck does not play a role in morally assessing a person’s behaviour, there would not be any difference between an attempt and a completed crime. If moral luck was not adhered to, there would not have been a determination of whether the defendant intended to kill or cause grievous bodily harm, which is needed to further determine manslaughter. In this light, it could be state that moral luck has already a role in criminal liability of manslaughter. The relevant question is not about the role of moral luck in establishing liability in manslaughter, but may be the extent to which moral luck could be enforceable or incorporated. Thus, the general public will not support a law that does not consider the difference between a killing and an act endangering life but did not result to killing anyone. This indicates the role of moral luck in such cases is to the extent public interest is involved.

It is also understandable that describing killing as a moral bad luck without drawing any relevance to criminal law will fail to recognise the wrong done to the families of the victim and the community at large. However, the question in hand is whether criminal law should match moral assessments. The important point is that principles of criminal law should not derive validity from morality alone. Dealing with a crime or punishment is a political problem. Having moral assessment alone will deprive legitimacy of the state, which is important for developing criminal law. An example to elaborate on this is that of two drunken drivers that cause death of a victim. Both of them are liable to offence of drunken driving. In this light, distinction could be drawn between the moral judgment and legal culpability, according to which both of them could be considered morally wrong to have had endangered lives of the others, even though one of them is liable for killing the victim. From a legal perspective only one of them is liable for manslaughter since the element of actus reus is present in his case alone.

An outcome-based criminal legal system adopts a constructive liability approach where outcome is given the primary place while determining liability. It means a defendant will be criminally liable subject to the outcome of their act or omission irrespective of whether there was intention or not at the time the act or omission was committed. In such an outcome-based system, it is argued that a person should take up the responsibility of the wrong committed. However, this approach has an opposite argument that states that the person will only be liable for the acts that he has control of whether there was intention or not. Criminal liability is subject to consequences, certain circumstances, or knowledge or intention of the act. If applied to manslaughter in respect to correspondence principle, it could be stated that a person should not be made liable murder but for manslaughter unless the death of the victim was foreseen as a possible outcome of the defendant’s act. An alternative argument could be that control cannot be the baseline to measure moral luck. Wrongdoing may not have any independent moral significance. However, the test of foreseeability test, a proximate causation test, aims at culpability of a defendant. It determines the degree of culpability, and places liability equal to that culpability on the defendant for the harm cause. The liability is for the actual result and not for something that the defendant could not choose or control.

The offence of unlawful act manslaughter falls between outcome-based argument and control-based argument. Moral luck could help in dealing with the discrepancy between the degree of risk of the harm and the harm caused. The culpability factor should be factored in while assessing the degree of risk and the harm caused against physical integrity. Even in a harm-based argument, moral luck is required in morally assessing a person’s behaviour in respect to determining liability based on the degree of harm. It is required in assessing the level of control while determining culpability of the defendant. This will also facilitate finding a balance with interpreting constructive liability attached to the defendant’s act. However, moral luck should not replace the primary position that outcome holds that uplifts the legitimacy of the state.

Bibliography

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