Mihailis Evangelos Diamantis (Columbia Law School; NYU, Philosophy Department) has posted Dealer's Choice in Moral Gambling on SSRN. Here is the abstract:
Apportioning blame is a messy business with significant moral implications. This makes it attractive quarry for moral philosophers who hope to show us precisely how to do it. This article argues, contra these efforts, that analytic philosophy can only go so far because much of the disorder in blaming is inherent. Philosophers, taking for granted an exacting view of the nature of justification for blame, have paid too little attention to the role of discretion. This article suggests that there are occasions on which all the circumstances of a wrongful act underdetermine the appropriate severity of blaming response. In such cases, the blamer may choose among a range of options, any of which would be as justified as the other. Such discretion explains why, even if philosophers could straighten the conceptual confusions and sweep away unjustified practices, blaming would still be a messy endeavor.
The article comes to the importance of discretion by considering a new problem of moral luck that draws attention to the different blaming responses otherwise similarly situated wrongdoers may face depending on the identity of the blamers around them. The solution to this new problem acknowledges blamers’ flexibility in tailoring appropriate blaming responses. With discretion given its due regard, new ways of theorizing about our committed blaming practices begin to emerge. Along with them comes the possibility of accommodating the otherwise puzzling flexibility we find in our own blaming practice and faultless cross-cultural and interpersonal variation.
