Egalitarian Justice and Innocent Choice

Beginning of article

THIS ARTICLE ARGUES THAT, in its standard formulation, luck-egalitarianism is false. In particular, I show that disadvantages that result from perfectly free choice can constitute egalitarian injustice. I also propose a modified formulation of luck-egalitarianism that would withstand my criticism. One merit of the modification is that it helps us to reconcile widespread intuitions about distributive justice with equally widespread intuitions about punitive justice.

Before laying out my criticism, let me briefly describe luck-egalitarianism and why some of its existing criticisms are off the mark.

1. Standard Luck-Egalitarianism

In the past, many egalitarians considered any inequality in people's lots to be unjust. By contrast, contemporary luck-egalitarians acknowledge the potential justice of inequalities that result from free choice. For example, luck-egalitarians would say that standard gambling losses do not diminish the justice of the resulting distribution and that such losses do not generate just claims for compensation. Luck-egalitarians contrast such disadvantages with disadvantages that do not result from the victims' choices or that result only from their un-free choices, such as genetic disease and structural unemployment. According to luck-egalitarians, the latter disadvantages are unjust.

For a few luck-egalitarians, these claims determine when the state should compensate for disadvantage. But for most luck-egalitarians, they determine only when the end-state distribution is in an important way unjust. Whether human-induced or "cosmic," such unjust distribution always gives the state a prima facie--but not always an actual--duty to compensate the disadvantaged. Luck-egalitarian injustice worsens things and often translates into an actual duty of the state to compensate victims whose fates are less than fully just. But few luck-egalitarians assume that such a duty is absolute and that it always exists. Compensating victims would sometimes be prohibitively expensive, unjust toward other people, self-defeating, contrary to deontological constraints or beyond the state's responsibility.

For example, it might turn out that the only way for the state to compensate for a disadvantage was by practices that would be humiliating to the recipients. If the need to avoid such humiliation were stronger than the need for compensation, most luck-egalitarians would object to the state's compensating recipients for the disadvantage. Luck-egalitarian injustice is but one important component of the complex web of considerations that together determine what would constitute correct conduct for the state.

Contemporary criticisms of luck-egalitarianism sometimes overlook this complexity. Critics point out that compensation can be a bad policy, as if luck-egalitarians deny that it ever is. In the critics' caricature, luck-egalitarianism effectively assigns the state an absurd, categorical duty to compensate citizens for all disadvantages for which these citizens are not responsible. A great many considerations bear on normative compensation policy. No short formula purporting to define when compensation is a duty all things considered may succeed--whether that formula resembles luck-egalitarianism, democratic equality or still other theories.

I shall call the complex view that encapsulates these luck-egalitarian ideas standard luck-egalitarianism:

   That someone incurs a disadvantage without having chosen freely to
   risk incurring it is, in a central respect, unjust. If, however,
   that disadvantage results from that person's own free choice to
   take that risk, then (barring prioritarian considerations) that
   disadvantage can remain perfectly just.

Jerry Cohen, John Roemer, Richard Arneson, Larry Temkin and many other luck-egalitarians are committed to standard luck-egalitarianism or to something very much like it. Many anchor it in the ideal of equality of opportunity. They disagree about many other issues: What constitutes a disadvantage--only absolute harms, or also relative ones; the frustration of preferences, or only "objective" harms? Do disadvantages that conform to "victims'" tastes always rest on free choices? In the distribution of disadvantages that do not arise from victims' free choices, does justice require equality or priority? Who should distribute relief of bad brute luck? In spite of these differences, standard luck-egalitarianism is common to all luck-egalitarian theories. (1)

In this article I criticize standard luck-egalitarianism. I hold that disadvantages that you freely choose to risk incurring can remain unjust in egalitarian terms. To show this, I advance two counterexamples to standard luck-egalitarianism. Both involve permissible free choice to risk-incurring disadvantage. I suggest that such free choice does not vindicate the resulting disadvantages, which remain unjust.

I then propose an alternative formulation of luck-egalitarianism, which I call modified luck-egalitarianism. The modified formulation captures the deep and genuine insight of luck-egalitarians. It also deals with the two counterexamples better than standard luck-egalitarianism does. I then address possible objections to my argument for modified luck-egalitarianism. Finally, I suggest that modified luck-egalitarianism could contribute to a theory of justice itself: a theory of what is common to both distributive justice and punitive justice and makes both into manifestations of justice. Justice in all its instantiations is the enemy of innocent disadvantage. A long-standing puzzle of moral luck in punitive contexts may thereby dissolve.

2. Two Counter-examples

The unjust fates of Hero and Acceptable cast doubt on standard luck-egalitarianism.

a) Hero

When a fire breaks out in the neighborhood, Hero freely chooses to risk his own house by deciding to put out the fire that will soon consume a neighbor's house, from which he hears a baby crying. If he were first to deal with the fire at his own empty house, he would not have saved the baby. Compare Hero to Inconsiderate, another neighbor who hears the crying baby, but who rushes first to his own empty house to try to prevent it from burning down. Eventually, the houses of both Hero and Inconsiderate suffer similar damage. Had Hero not saved the neighbor's baby, he would have saved his own house. No company would insure his house against fires, a fire-proof house was prohibitively expensive, and there was no way to prevent the fire in advance. In all other relevant respects, Hero and Inconsiderate are equal.

The government's compensation policy is such that the damage to Hero's home goes uncompensated, whereas Inconsiderate enjoys full compensation. Imagine, for instance, that the policy holds citizens accountable for putting out fire to their own homes in order to contain moral hazard, or that the policy is a legal fluke. From an egalitarian point of view, is the resulting distribution entirely just: no house for Hero and a newly restored house for Inconsiderate?

Surely Hero's fate is less than entirely just. Even if compensation exclusively for Inconsiderate, is, all things considered, sensible (say, as a necessary incentive to guard one's own home), that policy is sensible even though a certain injustice accrues to Hero. Note, however, that standard luck-egalitarianism would detect no egalitarian injustice in Hero's fate. To use Dworkin's familiar terms, standard luck-egalitarianism would construe Hero's bad luck (fire damage to his home) as bad "option luck." Hero's choice to risk his house was free. Inconsiderate's bad luck, on the other hand, is bad "brute luck." Inconsiderate's only relevant choice was to mitigate risk to his home as much as he could.

Despite standard luck-egalitarianism, the outcome--damage to Hero alone, both in absolute and in relative terms--seems less than entirely just. Hero's choices and conduct are incapable of excusing the otherwise unjust inequality. Furthermore, the injustice seems to be precisely what luck-egalitarians attempt to reference through the inappropriate language of lack of free choice. The injustice clearly does not reflect historic entitlements, promise-breaking, or lack of due mercy for wrongdoers. Nor does the injustice reflect considerations of desert: see section 4, [section]a below. Hero suffers from egalitarian injustice.

In a recent discussion of a similar example, luck-egalitarian Larry Temkin similarly concludes that noncompensated damage that you suffer through a morally mandated attempt to save a baby cannot be just, from an egalitarian point of view. (2) Contrary to the standard formulation of luck-egalitarianism, it therefore …