It's Friday evening. A young man is driving home from work in his car. He's exchanging texts with his friends while he drives, even though he knows it's not a very safe thing to do. He gets too engrossed in reading a particularly funny response from one of his mates, doesn't notice the lights up ahead change to red, and he shoots through the intersection. Lucky for him, no one was coming along the crossroad at the time. However, a police car happened to be waiting at the intersection to go the other way. The police catch him and arrest him. He gets charged with running a red light, perhaps negligence, or whatever the current crime is called in that state for using your phone whilst driving. He probably gets a fine, maybe loses his license.
Now, let's rewind and have the exact same situation take place again. But this time, a husband and wife and their 4 month old daughter are crossing the road at the time the car goes through. He hits them and kills the mother and daughter, with the father being seriously injured and ending up paralyzed from the waist down for the rest of his life. This time, the police arrest him with far more serious charges: multiple counts of manslaughter perhaps, grievous bodily harm, etc. This time he almost certainly goes to jail for a number of years.
The interesting thing here is not that the law responds differently in these two cases, but that we more or less universally agree that the man deserves much harsher punishment in the second case than in the first one.
What is actually different, though? The man's actions are identical in both situations. His intentions are identical. The differences are entirely due to luck, something outside of his control. In one case he got lucky that no one was in the path of his car. In the other case, chance conspired to have people in the path of the car, and a much more grim outcome resulted.
So why does it seem fair to us to punish a person more harshly based on bad luck? We like to think that we have a consistent, logical moral code that we base our sense of right and wrong on, but is that actually the case? Can we justify our moral judgement on this issue, or is this a case of hardwired instincts developed over millions of years of evolution leading us astray?
You might say that we punish the man in the manslaughter case as a deterrent, to set an example for other people and make them more likely not to repeat the man's actions. But if this were true, then wouldn't the deterrent reasoning apply whether or not the man actually hit someone?
What about the argument that the family of the victims needs a harsh punishment to occur in order to feel some sort of closure, or a sense that justice has been served? This is probably getting closer to the truth. Certainly in the case when a person deliberately hits another person with a car and kills them, we can understand why the family of the victims, and to an extent society as a whole, needs to see the perpetrator suffer some kind of punishment. It's not hard to look at our evolutionary, tribal origins to see why this kind of retribution instinct would evolve in humans and have reproductive benefit.
I would argue that we didn't evolve an ability to properly distinguish, on an emotional level, between deliberate and accidental injury caused to us or our loved ones by others, and as a result, even when we logically can see the difference, we can't override the deep emotional reactions that we evolved as a response to these events.
The interesting point about all of this is that even if we can come up with a perfectly logical system of moral reasoning that allows us to determine right and wrong behaviour in any situation, if we have evolved logically inconsistent emotional reactions that warp our sense of right and wrong in certain situations, then we will never fully accept such a moral system. We therefore have to accept that whatever moral system we use as the basis of our justice system, there will be situations where some parties will feel that justice has not been adequately served, no matter how fair and consistent that system is.
Inspired by a chapter from the book Everything is Obvious (Once You Know the Answer) by Duncan Watts, which I read a couple of years ago and that chapter in particular has stuck with me ever since.
photo credit (based on): Яick Harris via photopin cc