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Ratio (new series) X 3 December 1997 00340006
Hillel Steiner
Have you heard the one about the guy who was convicted of
murdering his parents and then demanded a lenient sentence
on the grounds of his being an orphan?
1
Amartya Sen, Inequality Reexamined, (Oxford: Oxford University Press, 1992), p. ix.
2
See especially, Ronald Dworkin, What is Equality? Part I: Equality of Welfare, and
What is Equality? Part II: Equality of Resources, Philosophy & Public Affairs, 10 (1981),
185246, 283345; also What is Equality? Part III: The Place of Liberty, Iowa Law Review,
73 (1987), 154.
CHOICE AND CIRCUMSTANCE 297
There are probably still a few stand-up comics who open with
this ancient joke. Why is it funny?3 Is it funny?
Now, Im no expert on the conditions necessary and sufficient
for something to be humorous. So I have no really compelling
answer to this latter question. Still, I guess that a contributing factor
to whatever degree of humour there might be here is some form of
absurdity. Of course, theres nothing in the least absurd about the
pain and suffering normally engendered by the loss of ones par-
ents. Nor is there anything more absurd about believing that the
severity of penalties meted out to wrongdoers should sometimes be
mitigated by consideration of the additional suffering theyve
already endured or are likely to endure: excessive suffering certain-
ly warrants compensation. Where the absurdity creeps in here is
probably through two of the jokes suggestions. These are:
(a) that such compensation can be owed to (demanded by)
persons, as a matter of entitlement, for that very suffering
which they have imposed upon themselves;
(b) that persons can create entitlements for themselves by
violating those of others.
I want to focus attention on the first of these suggestions.4
I. Entitlement
Why is this suggestion absurd? One fairly standard conception of
absurdity applies to those things which are laughably inconsistent
with what is judged to be true or reasonable. So what were look-
ing for here is the set of true or reasonable claims with which the
aforesaid type of entitlement is inconsistent. And, pretty obvious-
ly, this is not going to be a set of claims whose dominant injunc-
tion is to minimise suffering or maximise wellbeing. For if it were
those claims that determine what persons entitlements are, the
question of whether compensation is owed in such cases would
be an entirely open one to be settled by empirical investigation
and far from obviously absurd.5
3
Not, presumably, because the status of orphan is normally reserved for minors who,
as such, are unlikely to be charged with criminal offences.
4
The second one is briefly explored in Hillel Steiner, An Essay on Rights (Oxford:
Blackwell, 1994), 2245.
5
For similar reasons, this entitlement-determining set of claims is not going to be one
enjoining us to distribute wellbeing in an equalising or maximinning fashion, or in
proportion to the incidence of some personal characteristic in the relevant population.
11
A non-strict sense of generations is at work when we speak, for instance, of the new
generation of computers.
12
The owed payment of this value is, for reasons suggested below, probably best
conceived as a periodised one: a rent. And each persons entitlement to an equal share of
it can readily be construed as one to an unconditional basic income (or, perhaps, as one to
an initial capital lump-sum).
II. Responsibility
In a widely discussed, carefully argued and strikingly inventive
series of papers, John Roemer has identified and developed a
particular conception of equality of opportunity as the distributive
principle capable of capturing the salient aspects of this require-
ment.18 Contrasting the general concept of equality of opportu-
nity with more thoroughgoing egalitarianism, he remarks:
At a philosophical level, many people associate egalitarianism,
and the policies of the welfare state in particular, with a view
that society will indemnify citizens against all major harms,
relieving them of the personal responsibility to make their lives
go right. I shall not defend this kind of unqualified egalitari-
anism, which does not hold individuals responsible for their
choices. Equality of opportunity, in contrast, is a view that soci-
ety (the government) must level the playing field, but that
after that, individuals should suffer or enjoy the consequences
of their own choices. The question becomes: Exactly what is
required to level the playing field?19
Roemer rightly suggests that this moral view about responsibility
devolves from the western view of the value of individual free-
dom. And the connection between equalising opportunity and
holding persons responsible for their actions is explained thus:
Let us say that a persons actions or behaviour are determined
by two kinds of cause: circumstances beyond her control, and
autonomous choices within her control. I do not intend to imply
that all choices are within a persons control: obviously, the
choice a person makes under hypnotic suggestion is not within
her control. A particular action a person takes, and its associated
18
John Roemer, Equality of Opportunity: Theory and Examples, (Davis: University of
California, June 1995); Equality of Opportunity: A theory and examples, (Davis:
University of California, December 1995); a symposium containing a considerably abbre-
viated version of his argument, along with a set of varyingly critical replies, appears in
John Roemer et al, Equality of Opportunity, Boston Review, XX (April/May 1995), 316.
Hereafter, these are respectively cited as Roemer (1), Roemer (2) and Roemer (3). An
earlier version of this theory appears in A Pragmatic Theory of Responsibility for the
Egalitarian Planner, Philosophy & Public Affairs, 22 (1993), 14666, reprinted in John
Roemer, Egalitarian Perspectives (Cambridge: Cambridge University Press, 1996).
19
Roemer (1), pp. 23.
21
A consequence is deemed adverse (benign) by virtue of its causing a persons condi-
tion to fall below (above) some statistically average point on a scale measuring opportu-
nity for what Roemer, following, G.A. Cohen, designates advantage, as a generic term
referring to outcomes which are defined over any of income, satisfaction, life expectancy,
welfare or the probability of leading a life deemed successful; cf. Roemer (1), p. 3.
22
What if they cant? What if the redress extractable from harmers is insufficient to
offset the adversity they cause to their victims? Here, I think, at least one argument
suggests that such cases be construed as multi-factorial ones: persons who decline to insure
themselves, against the risk of suffering insufficiently redressable harm from others, are
contributors to the adverse consequences they incur; see World Three.
23
Cf. note 14 above, for a qualification on this claim.
24
And disability. The constituents of persons levels of ability thus include the state of
their health, along with their talents and incompetences.
26
Relatedly, more enduring ability-level reductions, inflicted on one chooser by
another, would ceteris paribus warrant greater owed redress.
27
One possible reason why Roemer's interpretation of equal opportunity does not
include such a basic income is discussed in the conclusion, below.
III. Conclusion
Egalitarians who seek to equalise opportunity for advantage
rather than advantage itself who wish to make a distributive
space for personal responsibility are thereby committed, as
Roemer suggests, to some kind of starting gate which separates
before from after .32 Starting gate theories equalise initial
conditions: they level the playing field by equalising persons cir-
cumstances and vesting them with domains of personal choice to
determine outcomes. Weve seen that, under that description, the
historical entitlement structure sustains personal responsibility
and equal opportunity at least as well as Roemers proposal. But
there are also some reasons for thinking that it does so better.
It does better in regard to personal responsibility because, as
was argued above, it differently locates part of the boundary
30
Roemer (2), pp. 1011. At pp. 2021, its plausibly suggested that factors beyond his
control that can affect a child's educational achievement might include his parents level
of educational achievement, their income, the number of siblings he has, and whether he
was raised by a single parent or by two parents.
31
Cf. the newspaper report, in The Independent 2.12.96, entitled Pupils sue schools for
bad education.
32
Roemer (2), p. 4.
33
That is, the conflation mentioned in the penultimate paragraph above may not be a
logically entrenched feature of Roemers typing schema. An interesting counter-proposal
might be this. Perhaps the schema could sustain its conflation of others choices with
circumstances (consistently with the responsibility requirement) by including, among the
various spheres of equalised opportunity, one for opportunities to remain free of redress-liabil-
ity. Accordingly, people would have to be typed for the likelihood of their committing
injuries to others. Whether this approach is consistent with prevailing ones, for assessing
individual culpability, needs further investigation.
34
Roemer (2), p. 90.
35
Cf. Steiner, An Essay on Rights, ch. 6.
36
See John Locke, Two Treatises of Government (ed.) Peter Laslett, (Cambridge:
Cambridge University Press, 1967), pp. 287289; Immanuel Kant, The Metaphysical
Elements of Justice (ed.) John Ladd, (Indianapolis: Bobbs-Merrill, 1965), pp. 3539; Herbert
Spencer, Social Statics (London: John Chapman, 1851), ch. VI; Henry George, Social
Problems (London: Henry George Foundation, 1931), ch. IX; H.L.A. Hart, Are There Any
Natural Rights?, Philosophical Review, lxiv (1955), 17591; Alan Gewirth, Reason and
Morality (Chicago: University of Chicago Press, 1978), ch. 3; Lansing Pollock, The Freedom
Principle (Buffalo: Prometheus Books, 1981), ch. 1. John Rawls, in A Theory of Justice, offers
equal basic liberty as lexically prime among the several rules constitutive of his concep-
tion of justice. Hillel Steiner,Capitalism, Justice and Equal Starts, Social Philosophy &
Policy, 5 (1987), 4971, pp. 5559, argues that an important premiss of Nozicks theory of
just holdings, in Anarchy, State and Utopia, implicitly invokes something like the equal free-
dom rule.
Department of Government
University of Manchester
Manchester M13 9PL
England
37
I am grateful for comments from Jerry Cohen, John Roemer, Peter Vallentyne and
members of the Philosophy Seminar at the University of Helsinki.