'Discretion in Blaming'

Mihailis Diamantis (University of Iowa)

ABSTRACT. Philosophers of law typically utilize concepts and arguments from philosophy to enhance legal understanding. This Paper reverses that distinguished trend, drawing on legal practice to improve philosophy. It seeks inspiration from judicial sentencing discretion to introduce the novel philosophical thesis that ordinary people have discretion in deciding how to blame each other.

Blame sounds like a simple enough concept. It is the characteristic response through which people express negative judgments and condemnation of wrongdoing. Yet philosophers have struggled for millennia to understand blame and how severely it is appropriate to blame any given wrongdoer. The philosophical quandary has only deepened in recent decades as a paradox about blame—“the problem of moral luck”—has come to salience. Most philosophers agree that we have full control over how morally culpable we are and that we do not have full control over how much blame we deserve. For example, two people who drive home drunk are, ceteris paribus, equally culpable. However, luck may intervene. If one has the misfortune of striking a pedestrian on the way, it is appropriate to blame him more. The paradox of reconciling equal levels of culpability with unequal levels of appropriate blame stands unresolved.

The law can help. One close legal analogue to blame is criminal sentencing. The many problems that plague philosophers of blame would sound foreign to sentencing judges. This Paper identifies why. Philosophers of blame seem unknowingly and almost universally to assume a hidden, false premise. While sentencing judges have wide discretion, philosophers implicitly assume a much more rigid picture of blame. They seem to think that the facts about a wrongful act fix a single appropriate severity of blame in response. Abandoning that premise would mean acknowledging that philosophy of blame cannot answer all questions . . . after a point, people have discretion to choose how to respond to wrongdoing. However, by acknowledging that we, like sentencing judges, have discretion in how we respond to wrong, philosophers could develop a more nuanced, intuitively-appealing, and paradox free account of justified blame.