Introduction
Should criminal law punish outcomes that the perpetrator could not fully control? This question addresses the problem of legal luck—the influence of chance on criminal liability.
This article presents Maciej Juzaszek's concept: the controlled luck model. The reader will learn how to separate actual harm from moral guilt and why the legal system cannot be either a lottery of results or a utopian audit of souls.
The Controlled Luck Model as an Alternative to the Dichotomy of Elimination vs. Acceptance of Chance
In criminal law, one can avoid choosing between the total elimination of chance and its uncritically acceptance. The solution is the controlled luck model, which recognizes chance as an ineradicable element of the world but requires it to be filtered before sanctions are imposed.
Consider two snipers with identical malicious intent: one kills, while the other misses due to a random factor. Although the description of the event and the resulting harm differ, their personal guilt need not differ. The system should therefore distinguish between the fact that an outcome occurred and the degree of the perpetrator's moral blameworthiness.
Layering Liability as a Method of Luck Control
The model operationalizes liability by layering it into seven levels. These include, among others, establishing the event, attributing the outcome, agency/authorship, personal guilt, and the selection of the institutional response.
Such a structure prevents an automatic inferential cascade. Consequently, a tragic result (e.g., death) may be crucial for reparative obligations and the legal message sent to society, but it does not automatically increase the perpetrator's moral guilt. This avoids situations where randomness becomes the primary criterion for the severity of the punishment.
Functional and Mechanical Justification of Repression
To prevent the arbitrary increase of punishment based on uncontrollable outcomes, the model introduces the principle of double justification. Any harsher sanction resulting from luck must have both an institutional (functional) and a personal justification.
The state cannot simply rely on general deterrence. It must demonstrate a specific mechanism showing how a higher penalty actually achieves a given goal. If the outcome of an event was pure chance, justifying repression becomes more difficult, forcing a shift in focus from punishment toward relational responsibility and the remediation of harm.
Summary
Fate is an inherent part of the human condition, yet punishment remains exclusively a human creation. The controlled luck model protects the perpetrator from becoming a victim of an institutional lottery while ensuring that the victim's actual harm is recognized.
While we have no control over whether the world cooperates with us, the state has full power over the extent to which it transforms this randomness into coercion. This is a call for the utmost diligence in justifying every ounce of suffering imposed by the law.
Frequently Asked Questions
Is it possible in criminal law to avoid choosing between the complete elimination of chance and the uncritical acceptance of legal luck?
Yes, this is possible through the application of the controlled legal luck model. It assumes that luck is an ineradicable element of the world of action; however, its influence on criminal liability should be graded and justified separately at each level of responsibility.
How does the controlled luck model operationalize the layering of responsibility in criminal law?
This model operationalizes the layering of responsibility by introducing seven levels of filters, from the establishment of the event to the intensity of the institutional response. This mechanism prevents the automatic transmission of facts between layers and assumes a normative damping of luck, meaning that the further a circumstance is from controlled agency, the weaker the presumption of its relevance in imposing repressive sanctions.
How does the controlled luck model prevent the arbitrary increase of punishment for consequences that occurred independently of the perpetrator?
This model requires the application of the principle of functional specification, according to which increasing punishment for factors beyond the perpetrator's control must be justified by a specific function and a credible mechanism for its realization. Furthermore, it prohibits ad hoc argumentation and assumes that the sanction should be linked as closely as possible to variables remaining within the scope of the perpetrator's normative control.
Does the fact of causing harm, given an identical degree of recklessness as another perpetrator, automatically increase moral guilt?
No, the fact of causing harm with an identical degree of recklessness does not automatically increase the perpetrator's moral guilt or their prior will. It only causes a change in the perpetrator's relationship to the world, which may involve additional obligations toward the victim and their loved ones.
How does the controlled luck model propose the distribution of legal consequences between punishment and reparation for damages, and how does it link this to the perpetrator's guilt?
The model proposes shifting part of the significance of the outcome from the repressive channel to the reparative one, employing a pluralism of instruments in which punishment does not hold a monopoly on response. The obligation to repair damage may respond more broadly to the outcome itself, whereas retributive sanctions must be more strictly linked to guilt, understood as the degree of the perpetrator's normatively relevant self-direction.
How can the legal system amplify the influence of chance on the convict's situation, and what is the role of the state in this regard?
The law can amplify the influence of chance through a domino mechanism, where an initial random difference leads to a harsher sentence and permanent social stigmatization. Consequently, the state should be responsible for managing the risk of its own coercion, taking into account the predictable social effects of the repressive policy applied.
Can the state require standards of rationality from the perpetrator that it does not apply itself in the process of punishment?
No; due to methodological symmetry, authority cannot require standards of reflexivity from an individual that it does not apply to its own actions. This means that if the state obliges the perpetrator to foresee consequences or make a rational choice, it should itself examine the effects of the imposed sanctions and be guided by the principle of the least intrusive alternative.
How does the controlled fluke model prevent arbitrariness and excessive repressiveness in situations where the outcome of an event is a matter of chance?
The model applies the principle of inverse proportionality, according to which the smaller the perpetrator's influence on the factor increasing the severity of the penalty, the stronger the justification required from the state. This prevents arbitrariness by introducing a gradient of fluke legitimacy, which hinders the purely retributive use of accidental features as one moves away from the controlled center of action.
How can we prevent a situation where the tragic outcome of an event automatically leads to excessive tightening of the penalty and stigmatization of the perpetrator?
The controlled fluke model should be applied, which introduces filters and gaps in the inferential cascade between successive levels of responsibility. This prevents the automatic transfer of the tragic fact to the assessment of guilt, the danger posed by the perpetrator, and the determination of the sentence.
How does an interdisciplinary analysis of the functions of punishment lead to the formulation of the principle of double justification in the context of legal fluke?
Interdisciplinary analysis allows for the distinction between systemic (institutional) reasons and personal reasons, indicating that the needs of institutions cannot automatically justify burdening a specific human being. As a result, the principle of double justification was formulated, according to which any stronger interference resulting from a fluke must have both an institutional justification (the fulfillment of a legitimate function) and a personal one.
How does the controlled fluke model allow for the avoidance of arbitrariness in sentencing without using a rigid algorithm?
The controlled fluke model avoids arbitrariness by applying the principle of double justification and creating an architecture of argumentation. Instead of a rigid algorithm, it offers a structure defining the questions that should be asked at each stage of sentencing, making the process more falsifiable and exposing the practical application of the model to empirical verification.
Why is the precise separation of guilt from consequence essential for a fair and humanistic criminal law?
The precise separation of guilt from consequence allows one to avoid turning every uncontrolled element into the personal guilt of the perpetrator. This is essential for the humanism of responsibility, which requires simultaneous sensitivity to the actual harm suffered by the victim and the protection of the perpetrator against excessive attribution of responsibility for accidental fate.
How does the controlled luck model define the relationship between the perpetrator, the victim, and the state in the face of the unpredictability of consequences?
The controlled luck model defines a relationship based on double subjectivity, in which the state has different obligations toward the victim (ensuring protection and justice) and the perpetrator (respecting guilt as the boundary of responsibility). In the face of unpredictable consequences, this model limits the institutional sovereignty of the state, requiring restraint in the use of coercion and specific justification for every intervention.
Why cannot criminal law rely on a single criterion of justice (e.g., only on intent or only on consequence) in the context of legal luck?
Relying on a single criterion leads to so-called monism, which exhibits a peculiar 'blindness' and unfair resolutions. For example, intent alone risks punishing thoughts, an act without consequence may ignore real harm, and focusing exclusively on the result turns responsibility into a lottery.
What is the ultimate goal of the controlled luck model and how does it change the relationship between the state and the perpetrator in the context of the randomness of events?
The ultimate goal of the controlled luck model is to create a theory for the distribution of responsibility for chance, which decides who should bear its normative consequences. It changes the relationship between the state and the perpetrator by introducing a presumption against shifting uncontrolled risk onto personal punishment, which shifts the burden of argument to the state, which must justify why it wishes to differentiate the situation of persons with similar agency.
