Abstract
In this chapter we introduce the nascent literature on Moral Uncertainty Theory and explore its application to the criminal law. Moral Uncertainty Theory seeks to address the question of what we ought to do when we are uncertain about what to do because we are torn between rival moral theories. For instance, we may have some credence in one theory that tells us to do A but also in another that tells us to do B. We examine how we might decide whether or not to criminalize some conduct when we are unsure as to whether or not the conduct is morally permitted and whether or not it is permissible to criminalize the conduct. We also look at how we might make sentencing decisions under moral uncertainty. We argue that Moral Uncertainty Theory can be an illuminating way to address these questions but find that doing so is a lot more complicated than applying Moral Uncertainty Theory to individual conduct.
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Notes
- 1.
For the purposes of this chapter, we do not make any assumptions about the status of ethical claims. We do sometimes speak of moral claims or principles being “objective,” “right,” “correct,” or “true” but could rephrase these claims in terms more friendly to anti-realists (e.g. as the moral claims or principles to which the agent should commit herself). On moral uncertainty and non-cognitivism, see Sepielli (2012).
- 2.
Abortion is an issue that many writers on moral uncertainty have focused on (see, e.g., Lockhart 1991, 2000; Guerrero 2007; Moller 2011; Weatherson 2014; Barry and Tomlin 2016), and of course its moral and legal status remain the subject of heated disagreement, so we use it as our running example throughout this chapter.
- 3.
For a very useful overview of the debates, see Bykvist (2017). Some distinctive contributions to the literature include Ross (2006), Moller (2011), Jackson and Smith (2006), Guerrero (2007), Lockhart (2000), Sepielli (2006, 2009), Weatherson (2002), MacAskill (2016), Barry and Tomlin (2016), Gustafsson and Torpman (2014), MacAskill and Ord (2018).
- 4.
- 5.
We are grateful for useful correspondence with Peter Vallentyne on this issue. This is not to say, of course, that the typical moral agent will actually engage in such deliberations.
- 6.
Indeed, any attempt to do so might be implausible. It seems plausible that our credences in theories, as in many other propositions, are rather imprecise or indeterminate.
- 7.
Gustafsson and Torpman regard this as a principal advantage of the MFT approach (Gustafsson and Torpman 2014, p. 60).
- 8.
MacAskill and Ord refer to this as the “My Favorite Option” approach (MacAskill and Ord 2018, pp. 9–10).
- 9.
For a more extended response to these worries about individuation, see Gustafsson and Torpman (2014, pp. 171–172).
- 10.
This approach assumes, which the My Favorite Theory approach does not, that we can indeed make meaningful comparisons across theories in terms of how much they value various options.
- 11.
- 12.
Some of the decisions we must make concern epistemic issues. We must, for example, consider whether ignorance of the law or uncertainty about what it requires can serve as an excuse for criminal acts. See Husak, Chap. 14, this volume, for discussion of this issue. This type of uncertainty, about the law’s requirements, is distinct from the uncertainty that we are focusing on here, which concerns what laws we ought to make.
- 13.
That the morality of some conduct is considered to be settled by a group is consistent with the fact that some people choose nonetheless to engage in that conduct—the killing of innocent, non-threatening people is an example.
- 14.
Our question here concerns how the moral uncertainty of those deciding the sentence should influence their decision. A further, potentially relevant, source of uncertainty is from the convicted party themselves—should the offender’s legal or moral ignorance or uncertainty affect sentencing? On this issue, see Husak (Chap. 14, this volume). Of course, those deciding the sentence may be uncertain over how to handle the offender’s uncertainty, and this may influence their decision.
- 15.
We are grateful to Vincent Chiao and Kim Ferzan for written comments on earlier versions of this chapter.
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Barry, C., Tomlin, P. (2019). Moral Uncertainty and the Criminal Law. In: Alexander, L., Kessler Ferzan, K. (eds) The Palgrave Handbook of Applied Ethics and the Criminal Law. Palgrave Macmillan, Cham. https://doi.org/10.1007/978-3-030-22811-8_19
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