Kessler and Enoch
Kessler defines what luck is and how it interferes with our idea of criminal responsibility. Much in life, people are lucky. Kessler asks why luck does not have the same relationship it does in our life as it does when it comes in prosecuting offenders. Kessler talks about how the moral argument interprets luck to be irrelevant. His paper dives into the fact that results do not matter morally. Even though Chance encounters are unavoidable, Kessler says it should not be part of our criminal law system. Currently, our courts use our luck happenings against us and make us liable against our luck.
I found that piece most about how Kessler defines luck. He talks about how someone’s infrequency with success or someone that in not control of their own success is lucky. This is totally unrelated to our guiding question, but I always try to relate what I’m reading about and how it relates to the real world. At first glance, I am wondering about the connection luck has with white privilege. We have no control of that outcome. That’s obviously where any further comparison is absent, but I am realizing that luck is a hard thing to term, just like systemic racism and how people have been getting away with some things for so long.
David Enoch’s reading is about the separating the difference between a murderer and an attempted murderer. The luck it takes to be an attempted murderer instead of a murderer can be legally taken out in a courtroom. Enoch talks about how someone who attempts and someone who actually commits is just as morally blameworthy as the latter. His first proposition uses inferences. Enoch says that inferences are still the best at explaining the occurrence of moral luck. His second proposition is about analogy. He talks about the use of too much luck in the legal system is unfair and how it disproportionate in most cases. This proposition suggests there is no moral luck. So, we are back at square one. As I think about our guiding question and who should be criminalized and for what, I personally believe that luck is intrinsic. I think of all the times I have not gotten in trouble over something because I was lucky. I think of how much that still shaped me as a person. Our criminal justice system was built on the due process model.