or banishment from the game, and, of course, criminal prosecution for assault or cheating also lurks in the wings. Free will skeptics should consider if they would abolish all these rules because the players don’t have real free will. And if they would grant a special exemption for such penalties in sport, what principle would they cite for not extending the same policies to the much more important game of life?
You also say “the particular reasons that move us, along with the psychological predispositions, likes and dislikes, and other constitutive factors that make us who we are, themselves are ultimately the result of factors beyond our control.” So what? The point I think you are missing is that autonomy is something one grows into, and this is indeed a process that is initially entirely beyond one’s control, but as one matures, and learns, one begins to be able to control more and more of one’s activities, choices, thoughts, attitudes, etc. Yes, a great deal of luck is involved, but then a great deal of luck is involved in just being born, in being alive. We human beings are well designed to take advantage of the luck we encounter, and to overcome or deflect or undo the bad luck we encounter, to the point where we are held responsible for not taking foolish chances (for instance) that might lead to our losing control. There is no incompatibility between determinism and self-control.
Caruso: Well, I’m glad to know that you reject retributivism along with “any doctrine of free will that aspires to justify it.” This point of agreement is significant since it entails that major elements of the criminal justice system are unjustified. I’m curious to know, however, with what exactly you would replace retributive legal punishment, and to what extent you reject the status quo. I ask because, though you claim to reject retributivism, you go on to defend a backward-looking conception of blame and punishment grounded in the idea that offenders are “deserving of negative consequences.” Isn’t this just retributivism by another name?
Retributivism is the view that we ought to punish offenders because they deserve to be punished. Punishment is justified, for the retributivist, solely by the fact that those receiving it deserve it. And while punishment may deter future crime, incapacitate dangerous criminals, educate citizens, and the like, for a retributivist these are a happy surplus that punishment produces, and form no part of what makes punishment just – i.e. we are justified in punishing deserving offenders even if the punishment produces none of these other surplus good effects. How does your view differ from this? Do you think the forward-looking benefits of punishment are what justified it? If so, then what role does desert play? If not, aren’t we left with the retributivist claim that backward-looking desert is sufficient to justify blame and punishment?
As for your sports example, I don’t see why this would be a problem for free will skeptics. There are good instrumentalist and forward-looking reasons for maintaining penalties even if we reject free will and basic-desert moral responsibility. First and foremost, penalties deter players from breaking the rules. This keeps the game fair, prevents injuries, and serves all kinds of non-punitive purposes. The 24-second clock in basketball, for instance, was introduced to make the game more exciting. Without it, the game was dull, all too often played at a snail’s pace with one team opening up a lead and freezing the ball until time ran out. The only thing the trailing team could do was foul, thus games became rough, ragged, boring free throw contests. Penalties for unnecessarily aggressive physical play, on the other hand, protect players, reduce injuries, and deter future bad behavior. All of this can be explained without appeal to free will and just deserts.
Lastly, you say that “autonomy is something one grows into, and this is indeed a process that is initially entirely beyond one’s control, but as one matures, and learns, one begins to be able to control more and more of one’s activities, choices, thoughts, attitudes, etc.” You acknowledge that “a great deal of luck is involved” in this, but I would go further and argue that “luck swallows everything” (to borrow a phrase from Galen Strawson). Consider the significant role luck plays in our lives. First, there is the initial “lottery of life” or “luck of the draw,” over which we have no say. Whether we are born into poverty or affluence, war or peace, abusive or loving homes, is simply a matter of luck. It is also a matter of luck what natural gifts, talents, predispositions, and physical traits we are born with. Beyond this initial lottery of life, there is also the luck of what breaks one encounters during one’s period of self-formation, and what environmental influences are most salient to us.
Combined, these matters of luck determine what Thomas Nagel famously calls constitutive luck – luck in who one is and what character traits and dispositions one has. Since our genes, parents, peers and other environmental influences all contribute to making us who we are, and since we have no control over these, it seems that who we are is at least largely a matter of luck. And since how we act is partly a function of who we are, the existence of constitutive luck entails that what actions we perform depends on luck (Nelkin 2019).
In Elbow Room (1984a), your first book on free will, you acknowledge all this, but then go on to say that luck in initial conditions need not “lead to something hideously unfair.” You proceed to give the example of a footrace where some are given a head start based on when they were born (an arbitrary fact). You argue that this would be unfair if the race were a 100-yard dash but not if it’s a marathon. “In a marathon,” you write, “such a relatively small initial advantage would count for nothing, since one can reliably expect other fortuitous breaks to have even greater effects.” You conclude: “A good runner who starts at the back of the pack, if he is really good enough to deserve winning, will probably have plenty of opportunity to overcome the initial disadvantage.” On your analogy, then, since life is more like a marathon than a sprint, “luck averages out in the long run.”
While this example has folksy appeal, it is demonstrably false. Luck does not average out in the long run. Those who start from a disadvantaged position of genetic abilities or early environment do not always have offsetting luck later in life. The data clearly show that early inequalities in life often compound over time rather than average out, affecting everything from differences in health and incarceration rates to success in school and all other aspects of life. To use another sports example, in his book Outliers (2008), the Canadian journalist Malcolm Gladwell documents the rather strange fact that there are more players in the National Hockey League born in January, February, and March than any other months. His explanation is that in Canada, where children start playing hockey at a very young age, the eligibility cutoff for age-class hockey programs is January 1. At the ages of six and seven, being ten or eleven months older gives one a distinct advantage over one’s competitors. Since the older players tend to do better, they end 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
