Suppose you're rather sure that eating meat is perfectly fine. Indeed, you're 80% confident that non-human animals have no right to life and no great harm occurs when they are slaughtered for food. So you can go on eating meat, right? Not so fast. It would only be rational to consider what follows given your 20% confidence in the possibility that you're wrong. Plausibly you might assess the moral harm of being wrong as quite severe. If you're wrong, let's assume you believe, slaughtering animals for food is a great evil, perhaps almost as serious as slaughtering humans for the same reason.
So here's how things look to our hypothetical person: He's 80% confident that eating meat provides some pleasure and nutrition and is not a significant moral harm. But he's also 20% confident that eating meat is a great evil, not far from being as serious as murder-cannibalism. Now it seems irrational for him to eat meat. If I was 80% confident that opening a box would yield $10,000 for me but 20% confident it would explode and kill me, I'd better not open the box. It's not worth the risk. Why should we analyze these problems any differently when they involve prudential considerations (money vs. explosions) than when they concern moral considerations (pleasures/nutrition from eating vs. harms akin to murder and cannibalism). So, even if our hypothetical person is rather confident that eating meat is perfectly fine, it might be irrational for him to eat meat anyhow, given his levels of confidence and his weighting of the relative harms. That's what makes moral risk important. In our deliberations, it seems that we should consider not only what we believe is moral but what risks we are taking about what is moral as well.
What does this have to do with the law? In a just-published article, I argue that moral risk should lead us to be very skeptical of retributivist justifications of punishment that claim we should punish people because they deserve it for past wrongdoing. Most retributivists find it far worse from a moral perspective to punish an innocent person than to fail to punish someone who is guilty. This asymmetric weighting of moral risks leads them to require a rather higher standard for factual guilt (the beyond-a-reasonable-doubt standard). But as I'll discuss in an upcoming post, I don't think we can plausibly have sufficient confidence in retributivism to overcome the rather high level of confidence that retributivists seem to demand in order to punish. In the meantime, here's Dan Moller on abortion and moral risk and here's Alex Guerrero on moral risk and eating animals. (This post originally appeared at Prawfsblawg.)
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