Søren Flinch Midtgaard, Aarhus University ()

A Paternalistic Account of Stakes[1]

Søren Flinch Midtgaard, Aarhus University ()

AbstractAuthors broadly supportive of the luck egalitarian project have recently emphasized the need for an account of stakes or a structure of pay-offs. Moreover, they have sketched various substantive accounts. Their effort can, in part, be seen as a response to misgivings about luck egalitarianism’s apparent acceptance of cases of absolute deprivation. Joining this campaign, the paper presents a novel paternalistic account of stakes. By doing so it aims to redraw the battle lines between friends and enemies of luck egalitarianism, both groups aiming to avoid paternalistic considerations. However, the latter arguably ground an account of stakes that is superior to competitors especially with respect to its ability to solve atrilemmafacing such accounts.

Keywordsluck egalitarianism • stakes • paternalism

I. Introduction

The criticism levelled against luck egalitarianism by Elizabeth Anderson and others is by now familiar and apparently hard-hitting.[2] The charge that luck egalitarianism in some circumstances countenances deep inequalities, and even declines assistance to people in dire straits, seems especially worrisome.[3] It appears to call in question the view’s ability to outline a way in which the state may treat individuals with equal respect and concern, as Ronald Dworkin memorably phrased the arguably fundamental abstract egalitarian requirement to a satisfactory theory of distributive justice.[4] The objection has called forth an array of luck egalitarian responses.[5]Especially one of these concerns me here. It stems from the works of a number of authors―includingPaula Casal, Serena Olsaretti, Zofia Stemplowska, Peter Vallentyne, and Andrew Williams[6] belabouring, in different ways, a common theme. The theme is this. A satisfactory luck egalitarian theory should be seen against the background of a plausible account of stakes that delineates the kind of consequences or disadvantages that may be attached to certain features of persons, such as their genuine choices, for which they can appropriately be held responsible;[7] and pace critics of luck egalitarianism, and sometimes, perhaps, pace certain paradigmatic luck egalitarian pieces,[8] those consequences need not include the kind of disadvantages that get the indicated misgiving about luck egalitarianism’ egalitarian credentials going in the first place. In brief, the mentioned authors point out that an account of stakes or an answer to the question of stakes is part and parcel of a satisfactory luck egalitarian theory. Providing such an account may be an important step towards answering the important “deep disadvantages countenancing” objection to luck egalitarianism.

Although I share the view of the mentioned authors that delineating the kind of consequences that individuals can appropriately be asked to bear may offer a pertinent reply to Anderson and others I believe that a promising way of answering the question of stakes has not been sufficiently explored.The suggestion is to draw onpaternalistic considerations. The latter, I take it, are, roughly, reasons for restricting people’s liberty against their will in their interest or to prevent grievous harm from befalling them.[9]Paternalistic considerations might justify both preventing harm and promoting good.[10]I focus on the former because of its special relevance to the luck egalitarian view on responsibility for disadvantages. It is this aspect of the view that triggers Anderson’s objection and makes exploring the question of stakes relevant.[11]By appealing to paternalistic considerationsmy account challenges one of the lemmasof the trilemma widely recognized to befacing accounts of stakes,[12] namely the problem of paternalism.Second, my account effectively tackles the other two lemmas of the trilemma, namely the problem of exploitation(roughly, A imposing avoidable costs on B[13]) and insufficiency (roughly, people experiencing disadvantages below a certain threshold).

In a nutshell, the paternalistic account of stakes handles the trilemma in the following way. It challenges the paternalistic lemma on the ground that disallowing hard paternalism, that is, the prevention of voluntary self-regarding harm, in all cases is implausible. Especially, cases in which great goods are at stake, or where great potential harms are involved―harms accounted for by reference to the intrinsic well-being-related value of autonomy―and where the harms in question are preventable by limited infringements of the person’s autonomy, call for hard paternalistic measures. Moreover, situations of insufficiency of the kind at issue in debates about the harshness of luck egalitarianism fall within the set of cases mentioned. The paternalistic rationale for securing sufficiency is uniquely sensitive to the concerns brought forth by Anderson’s objection, these concerns arguably revolving around the badness of the grievous harm that may befall inconsiderate and imprudent agents. Finally, the paternalistic account, by virtue of favouring an internalizing strategy, that is, one that makes imprudent agents themselves bear the costs of their conduct, bypassesthe exploitation lemma. Alternative accounts of stakes handles the trilemma in less convincing ways. Especially, they fail to cater to sufficiency and/or to non-exploitation.

The paper proceeds as follows. First, I address the question of stakes and elaborate on the trilemma facing substantive answers to it. Secondly, I canvass central proposed answers to the question of stakes pointing to the mentioned respect in which they appear to be wanting. Thirdly, I present and defend my paternalistic account of stakes.

II. The question of stakes and egalitarian constraints

According to Olsaretti, “The question of the ground of responsibility asks ‘Which are the features of people that we can … hold them responsible for (so that they are liable to bear some costs on the basis of those features)?’ The question of stakes, by contrast, asks ‘Just what costs should attach to whatever features constitute the justifiable grounds of responsibility?’”.[14]The distinction echoes Thomas Scanlon’s distinction between ‘responsibility as attributability’ and ‘substantive responsibility’.[15] The question of stakes concerns the latter kind of responsibility.Whilst luck egalitarians have been preoccupied with debating various grounds of responsibility―with relevant candidates including courses of actions or patterns of preferences voluntarily chosen by the agent or such courses or patterns with which she identifies in an appropriate way―they have, according to Olsaretti, neglected addressing the question of stakes.

In terms of the paradigmatic case of the imprudent motorcyclists,Bert, riding his motorcycle without wearing a helmet, to enjoy the wind in his hair, and without having taken out health insurance,[16]luck egalitarians unanimously agree that there are some relevant features of this person that we may hold him responsible for (for example, that he has ‘freely adopted’ his ‘negligent and reckless character’[17]), that is, they believe that we may point to a relevant ground of responsibility. Moreover, theyhave a tacit understanding of the kind of consequences that Bert and his likes are liable to bear on the basis of these features. Those consequences may include him being left unassisted by the roadside.

However, as Olsaretti points out, the tacit assumption of proponents and opponents of luck egalitarianism alike, regarding consequences, belies the complexity and the open-endedness of the question involved. If we look at the case more closely, the consequences we may be inclined to attach to Bert’s conduct are not self-evident at all. It is not, for example, obvious that they include being left unassisted by the side of the road. And if not, in what circumstances are bypassers required to assist him, and to what extent do the costs of his treatment fall on him (and how should those costs be calculated)? As Olsaretti convincingly shows, a number of such questions arise, and are largely unaddressed by luck egalitarians and their critics. Her basic, and very important point, is, I take it, that holding people responsible for some of their features and believing that they are liable to bear some costs on the basis of those features, presuppose, or is wanting in lieu of, an account of the precise nature of those consequences.

The luck egalitarian view includes an important constraint on stakes. This derives from its commitment to a principle of equal opportunities: inequalities condoned by luck egalitarians are those, and only those, that arise from choices against the background of options of equivalent value.[18]So had it not been the case that, for example, Bert has had a ‘normal and balanced upbringing’[19] and/or enjoyed the option of taking out health insurance on a par with others, the resulting inequalities wouldhave beentainted from the point of view of egalitarian justice. Similarly, consider a system of opportunities in which the stakes of two people’s comparable choices vary. For example, the stakes of one individual’s prudent or imprudent conduct are membership in one of the two top castes, whereas the stakes of another person’s comparable form of conduct is membership of the two lower castes.[20] Luck egalitarians condemn this system because the stakes involved are unequal. In this sense, the luck egalitarian view embodies an egalitarian constraint on stakes.

However, the constraintimplied by the principle of equal opportunity does not deliver a satisfactory or complete account of stakes. An elaboration on the caste example mentioned above goes to show this. Imagine that the caste system is corrected for its inequality of opportunity and that people now face an array of options that is equal in terms of the prospects it offers for ending up in a given caste.[21]Still, the stakes involved seem unpalatable. It seems unacceptable to let anyone end up in a low caste despite the fact that he has faced an opportunity equivalent to others of ending up in one of the higher castes. The luck egalitarian commitment to a doctrine of equal opportunities, as this brings out, merely caters to comparative concerns of justice, but, apparently, we also have non-comparative or absolute concerns of justice according to which some disadvantages should not be borne by anyone, irrespective of such being the outcome of a system of equal opportunities.[22]

Catering to these non-comparative concerns is the first challenge facing a satisfactory account of stakes. That is, it should rule out attaching unpalatable costs to people’s choices, however stupid or inconsiderate. We want to avoid the problem of insufficiency. What constitute unpalatable consequences or situations of insufficiency?In the debate between friends and enemies of luck egalitarianism, the boundaries of insufficiencyare not stated clearly, and the extent to which a satisfactory account of stakes adheres to this threshold at all times is disputed. However, judging from the examples brought up in the debate I believe it fair to say that the paradigmatic case of insufficiency is of the kind where people experience serious injuries or where they get themselves into emergencies (which may or may not involve them being injured) where theystand in the need of others’ assistance or help.[23] Thus we may say that situations of insufficiency are characterized by the kind of predicaments that ordinarily triggers the duty of rescue. The paper conceives of the notion of insufficiency along these lines.

As pointed out by Williams, sufficiency may be secured either by measures of internalization or externalization. The former strategy lets the expenses involved in securing sufficiency be borne by the imprudent agent him or herself. It does so by restricting her liberty in various ways, taxing her conduct, compelling her to take out insurance, or outright prohibiting the conduct that threatens sufficiency. The latter, externalizing, strategy countenances cost displacement, funding sufficiency or assistance through a scheme to which all have contributed equally. It requires others, that is, to finance the costly projects of the imprudent―projects that are reasonably avoidable to him or her. In brief, it lands us with the problem of exploitation. Luck egalitarians, it seems, should be especially concerned with avoiding this problem. It is arguably a fundamental requirement of equality that the costly projects of some should not be allowed totrespass on the equal share of others.[24]

This appears to speak strongly in favour of the cost internalizing strategy. However, choosing this strategy may land luck egalitarians with a problem that is equally pernicious as the problem of exploitation, namely the problem of paternalism.[25]It arises because the policy in question appears to impose restrictions on individuals’ voluntary self-regarding choices which liberals traditionally believeamounts to an unjustifiable affront to autonomy.[26] Some consider the problem surmountable, that is, they believe that compelling non-paternalistic justifications for sufficiency-preserving policies are available.[27]This, however, is questionable.[28] Moreover, it might not be necessary to avoid paternalism, or a certain version of this. Indeed, as I will argue below, paternalistic reasons are especially compelling in the justification of internalizing measures catering to kind of sufficiency at issue in the debate about stakes.

III. Accounts of stakesand their limitations

(A) Sufficientarian egalitarianism

Consider first‘sufficientarian egalitarianism’held out by Williams as a ‘natural way to avoid the excesses of the post-libertarian [i.e., luck egalitarian] view’.[29] The view is essentially a psychic harm argument of the kind Feinberg develops in his treatment of the case of protective helmets.[30]In Casal’s rendering the fact that the costs experienced by bystanders witnessing insufficiency are significant is our central reason for fleshing out the stakes of people’s choices in such a way that certain situations of absolute deprivations are avoided.The importance of avoiding such costs may, for example, justify compelling people to take out insurance.[31]

The idea that the psychic costs that witnessing imprudent people’s misery or predicament in situations of insufficiency involve may warrant constraints on the conduct of the imprudent aimed at preventing her from ending up in insufficient situations is proposed by Feinberg as an attractive alternative to competing non-paternalistic liberal reconciliatory arguments. The mentioned competing proposals, according to Feinberg, labour under the handicap of ‘coyness’ or of being evasive of what seems to be our central concern in these cases revolving around the risked grievous injury of the biker or his death. The psychic harm argument, he thinks, does better in this regard by sharing ‘in the assumption of the paternalist that injury or death to the biker is the central point, not some relatively remote and indirect public harms …’[32] At the same time it has the significant attraction of avoiding the arguably repugnant paternalistic rationale. The argument isa “harm to others” argument.[33]

However, the view fails, in fact, to avoid the problem of coyness. Contrary to what Feinberg claims, the assumptions of the paternalist theorist and the anti-paternalistic “psychic harm” theorist are as far apart as they can be: whilst the former is concerned with the ‘injury or death’ of the biker and is so for the straightforward reason that this would be a very bad thing indeed for this person (and perhaps to others too, but this is secondary to the paternalist), the latter is not. He or she is concerned with this only derivatively, that is, because of the psychic harm the biker’s accident may bring to others, especially other motorists.This anti-paternalisticargument seems to me unhelpful, leaving luck egalitarians with a relative impotent or lame reply to Anderson’s objection. The key concern is indeed, as Feinberg rightly points out, the injury or death of the biker, but Feinberg’s and others’ psychic harm argument fails to foreground this concern; and the non-paternalistic reason it foregrounds is of doubtful validity.One important problem is that its reliance on psychic harm may commit liberals to other policies which they would otherwise be loath to accept, including policies restricting people’s liberty to engage in homosexual relations on the ground that some experience grievouspsychic harm relating to witnessing such relations or from the mere knowledge that such relations exist.[34]

The non-paternalistic account of stakes under examination is especially marred by its failure to supply a compelling justification of preserving sufficiency. It avoids the problem of exploitation, though, in that its policy proposals are of the mentioned internalizing kind. But perhaps exploitation or cost displacement should not be avoided at all times. This, at least, is part of the next proposal to be canvassed, namely Stemplowska’s proposal.

(B) Stemplowska’s proposal

The gist of Stemplowska’sanswerto the question of stakes is that while recognizing the importance of avoiding cost displacement or exploitation, we should also pay attention to a countervailing consideration to the effect that sometimes important interests are being served by people being able to act imprudently without disadvantages being attached to doing so, although the prudent will have to pay tomake this possible. Stemplowska comparesa scheme regulating payment for car damage stating that ‘every car will be repaired for no charge (the resources coming from everyone’s equal contribution to the scheme)’with a scheme stating ‘that only those cars will be repaired for no charge (i.e. from everyone’s equal contribution to the scheme) that have been well maintained by their owners’.[35]To choose between the two schemes Stemplowska proposes the following general approach:

[S]ecuring holdings or situations (through the availability of assistance) should take priority for as long as the interests that are served by not needing to avoid a given conduct (lest it leads to a disadvantage) outweigh the interests that would be served if such security did not have to be provided. Thus for example, if the interests that are served by being able to ignore car maintenance without losing access to free (at the point of use) car repair are more important than the interest people have in retaining the resources that would be needed to offer free car repair, even if the car damage stems from a lack of car maintenance, then free accident repair should be offered as a matter of policy.[36]