Luck egalitarianism and political solidarity

Theoretical Inquiries in Law

Volumn 9, Issue 1, 2007, Pages

  Markovits, Daniel ^a  

^a YALE UNIVERSITY   (United States)

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EID: 38149049309     PISSN: None     EISSN: 15653404     Source Type: Journal    
DOI: 10.2202/1565-3404.1176     Document Type: Review

References (76)

1. The name was introduced by Elizabeth Anderson. See Elizabeth Anderson, What is the Point of Equality?, 109 ETHICS 287 (1999).
2. JOHN STUART MILL, PRINCIPLES OF POLITICAL ECONOMY 211-12 (W.J. Ashley ed., Longmans, Green & Co. 1923) (1848) (emphasis added).
3. RONALD DWORKIN, SOVEREIGN VIRTUE 287 (2000).
4. Id. at 311.
5. The interpretation of Dworkin's views on these issues is in itself a complicated matter. Certainly Dworkin has expressly denied that his theory of equality is a version of luck egalitarianism. See Ronald Dworkin, Equality, Luck and Hierarchy, 31 PHIL. & PUB. AFF. 190, 190 (2003).
6. Nevertheless, a strong case can be made that the most sympathetic reconstruction of Dworkin's writing on distributive justice, and in particular of the distinction that Dworkin draws between circumstance and personhood (especially as illuminated by his discussion of brute luck) does indeed develop luck egalitarian principles. See, e.g., Samuel Scheffler, Equality as the Virtue of Sovereigns: A Reply to Ronald Dworkin, 31 PHIL. & PUB. AFF. 199 (2003).
7. G.A. Cohen, On the Currency of Egalitarian Justice, 99 ETHICS 906, 916 (1989) Cohen even accepts that this approach will leave distributive justice entangled in the metaphysics of choice and responsibility, or as he says, that "we may be up to our necks in the free will problem." Id. at 934. I will return to this connection at the end of my argument, to suggest that distributive justice may attend to the luck egalitarian intuition in a thoroughly moralized way, without becoming entangled in the metaphysics of freedom.
8. John E. Roemer, A Pragmatic Theory of Responsibility for the Egalitarian Planner, 22 PHIL. & PUB. AFF. 146, 147 (1993).
9. Id. at 149.
10. See, e.g., Richard J. Arneson, Debate: Equality of Opportunity for Welfare Defended and Recanted, 7 J. POL. PHIL. 488 (1999);
11. Richard J. Arneson, Equality and Equal Opportunity for Welfare, 56 PHIL. STUD. 77, 79 (1989);
12. Richard Arneson, Luck Egalitarianism and Prioritarianism, 110 ETHICS 339, 339 (2000);
13. Kasper Lippert-Rasmussen, Egalitarianism, Option Luck, and Responsibility, 111 ETHICS 548, 548 (200.1)
14. [hereinafter Lippert-Rasmussen, Egalitarianism, Option Luck, and Responsibility];
15. Kasper Lippert-Rasmussen, Debate: Arneson on Equality of Opportunity for Welfare, 7 J. POL. PHIL. 478, 479 (1999). Of course, further examples exist as well.
16. The connection between luck egalitarianism and Rawls's views is a complicated one. On the one hand, many luck egalitarians consider themselves to be giving Rawls's basic intuitions concerning justice as fairness a more thoroughgoing elaboration than Rawls himself ever did. On the other hand, Rawls's views concerning distributive justice contain many elements - for example, a principle of responsibility for personal ambitions that makes no direct reference to whether or not these are chosen - that may stand in tension to the luck egalitarian ideal, especially in its maximalist elaboration. For an excellent treatment, see Samuel Scheffler, What Is Egalitarianism?, 31 PHIL. & PUB. AFF. 5, 5-11 (2003).
17. More specifically, I defend a version of what Elizabeth Anderson calls responsibility-catering luck egalitarianism. See Elizabeth Anderson, How Should Egalitarians Cope with Market Risks?, 9 THEORETICAL INQUIRIES L. 239, 244 (2008).
18. I do not seek directly to answer luck egalitarianism's non-egalitarian critics, who reject outright the ideal, of a political, society of equal citizens and therefore also reject every effort (luck egalitarianism included) to elaborate this ideal into workable principles of distributive justice. The non-egalitarian position is represented in this volume by Richard Epstein, who "fear[s]" that my conception of political solidarity "envisions ... a large state in which all persons 'cooperate' with each other," and. therefore rests on the premise, which Epstein variously calls "disingenuous" and. "naïve," that "countless people can be coaxed or coerced into developing close affective relationships with total strangers." Richard A. Epstein, Decentralized Responses to Good Fortune and Bad Luck, 9 THEORETICAL INQUIRIES L. 309, 311 (2008). This is not the place systematically to answer Epstein's diffuse charges, but three brief rejoinders are in order.
19. First, although Epstein, insists that government power should be reserved "for keeping individuals apart... so as to allow those who so choose to come together on voluntary terms for whatever . . . purposes they see fit," id. at 311,
20. any such reservation is quite impossible. Epstein's insistence that the state's enforcing property and. contract rights does not "'authorize' (even 'to sustain')" the distributions of wealth that the exercise of these rights engenders is entirely implausible, and indeed, is belied by his own support for the use of collective force to secure private property (further emphasized by his styling himself a classical liberal rather than a strict libertarian). Insofar as this collective force purports to be authoritative - so that citizens are bound not just to conform to the state's commands but to comply with them -there is simply no question of avoiding mass-scale political solidarity entirely, the only live question being whether this solidarity will arise on equal or subordinating terms. Egalitarianism generally is committed to political solidarity without subordination, and I have tried to show how luck egalitarianism in particular might present the most appealing working out of this commitment.Second, Epstein's concern that luck egalitarianism will undermine markets and thus abandon the enormous gains in efficiency and aggregate satisfaction that markets generate badly misunderstands the nature of the egalitarian project, the nature of markets, or both. One of the core ambitions of contemporary liberal egalitarianism, luck egalitarianism included, is to render distributive justice consistent with economic organization based on market relations, albeit regulated ones. And although it is straightforward that replacing markets with collective ownership of the means of production, organized according to bureaucratic command and control, has catastrophic consequences for efficiency, the effects of regulation (including even moderately aggressive regulation) in economic systems that honor a baseline of private ownership and market exchange are subtle and contestable. Certainly it is far from clear that aggregate well-being is lower in more heavily regulated market societies than in societies that more nearly embrace laissez-faire. Epstein's essay nevertheless rejects luck egalitarianism's regulatory ambitions based, not on systematic empirical study but rather on anecdote and intuition. (And some of the anecdotes that Epstein reports receive highly dubious interpretations in his hands. Is the lesson of Hurricane Katrina really that governments can be overwhelmed as easily as private institutions, as Epstein suggests, id. at 317,
21. or is it rather that terrible consequences follow when governments abandon their obligations, including their distributive obligations, to the mercies of markets and private charity?) Although Epstein claims that "[t]he greatest mistake of the entire egalitarian enterprise is that it looks at just distributions first and production of wealth last," id. at 341, this characterization seems, to this egalitarian at least, completely mistaken.
22. Finally, luck egalitarianism - like every egalitarian theory - undoubtedly does raise the specter (which lies behind much of what Epstein writes) that egalitarian redistribution offends against the freedom and dignity of the advantaged, who are required to pay for it. This is a legitimate concern, and it deserves to be taken seriously. Very briefly, the conception of solidarity at the heart of luck egalitarianism is specifically designed to answer this objection, by holding the persons of the advantaged (the pre-requisites of their moral personalities) inviolate, even as it takes from them some of their advantages. The discussions of accommodation and of talent slavery below illustrate redistribution that respects the inviolability of persons in particular distributive contexts, and the idea of political solidarity among equal, agents that these discussions generate suggests a theoretical generalization of the examples. I have elaborated this suggestion at greater length, although still too briefly, elsewhere. See Daniel Markovits, How Much Redistribution Should There Be?, 112 YALE L.J. 2291, 2325 (2003).
23. I introduce this term in Markovits, supra note 11, at 2294.
24. Anderson, supra note 1, at 295-96.
25. Scheffler, supra note 9, at 18-19.
26. Anderson, supra note 1, at 306.
27. Id. at 306.
28. Id. at 289. Anderson goes on, discussing the account of disadvantage that luck egalitarian Philippe Van Parijs calls "undominated diversity," to argue that this account "asks the abled to take the horror they feel upon imagining that they had a disability as their reason for compensating the disabled. To regard, the condition of the disabled as intrinsically horrible is insulting to the disabled people who lead their lives with dignity."
29. Id. at 333.
30. Jonathan Wolff, Fairness, Respect, and the Egalitarian Ethos, 27 PHIL. & PUB. AFF. 97 (1998).
31. Id. at 115.
32. Id. at 114.
33. Id. at 115.
34. Anderson, supra note 1, at 310.
35. Id. at 328.
36. Id. at 310.
37. Id. at 289.
38. Both quotations are from. id. at 288.
39. Id. at 288.
40. Both quotations are from. id. at 312.
41. Prominent historical examples of such hierarchical social relations - whose rejection is central to egalitarianism's past and present popular appeal -include "heritable hierarchies of social status, . . . ideas of caste, . . . class privilege and the rigid stratification of classes, and . . . the undemocratic distribution of power." Scheffler, supra note 9, at 22.
42. Scheffler, supra note 9, at 22.
43. As Anderson also says, "in focusing on correcting a supposed cosmic injustice, recent egalitarian writing has lost sight of the distinctively political aims of egalitarianism." Anderson, supra note 1, at 288.
44. Anderson, supra note 1, at 309.
45. Id. at 307-08.
46. Id. at 309-10.
47. Id. at 309-10.
48. Id. at 313.
49. Scheffler, supra note 9, at 21-22.
50. Id. at 24.
51. Id. at 23.
52. See, e.g., supra notes 15-21.
53. Think of the geek in a carnival, or Paris Hilton today.
54. Sometimes entire classes of artists face this fate - think of poets today.
55. This suggests an answer to Jonathan Wolff's suggestion that the shame associated with being untalented is not just a feature of our world but will endure even in an ideal world. Wolff argues that "the social product depends on work, and those less able to contribute productively contribute less to the social product," so that "there is a natural reason why a capacity to work well is valued, and thus a reason why it may be hard to overcome prejudice against those of low talent." Both quotations are from Wolff, supra note 18, at 115.
56. But in an ideal world, in which equality has been achieved, the variation in the prices that different people's skills command will plausibly be much lower than it is in our unequal world - so low, in fact, that virtually no one will be talentless. Although Wolff recognizes that "what counts as a productive talent may vary from society to society," id. at 115, he neglects the possibility that the dispersion in the productivity of people's skills will vary from society to society, and that it will become less as societies become more egalitarian.
57. See Anderson, supra note 10, at 254-58.
58. See id.
59. I am less persuaded by the second example that Anderson deploys to make this general point -which involves potentially productive but ultra-risky market activities, such as building in flood-plains. See id. Here it is essential to ask the empirical question whether the risk-adjusted returns to these activities reflect their true social product. Insofar as they do, luck egalitarians who would leave marginal participants in these activities to bear their full losses in case the risks at issue eventuate do not commit the error that Anderson describes, although they may display the lack of compassion that Anderson has elsewhere criticized.
60. An excellent treatment of these questions is Noah Zatz, What Welfare Requires from Work, 54 UCLA L. REV. 373 (2006).
61. Anderson would not accept this characterization of her argument. She instead proposes that examples such as these illustrate that the luck egalitarian ambition to hold people responsible for the risks that they choose is untenable, because they reveal that there is no sharp distinction between deliberately chosen gambles and brute luck. See Anderson, supra note 10, at 257. But luck egalitarianism does not, it seems to me, require any such sharp distinction, and certainly not one of the sort Anderson seeks to saddle it with, namely based in the metaphysics of choice. Anderson is of course right to say that (at least in the current context) the distinction between deliberate gambles and brute luck depends on whether a risk is reasonably unavoidable, and (although Anderson never quite says so) that reasonable must here be an already moralized notion. But luck egalitarianism. can accommodate these insights, as the argument developed below is devoted, to demonstrating.
62. Anderson, supra note 1, at 288.
63. Scheffler, supra note 9, at 22-23.
64. I borrow the phrase "out of community" from G.A. Cohen, Incentives, Inequality and Community, in EQUAL FREEDOM: SELECTED TANNER LECTURES ON HUMAN VALUES 331, 347-55 (Stephen Darwall ed., 1995).
65. This argument applies regardless of whether the state brings the morally arbitrary disadvantage into being or merely authorizes a morally arbitrary disadvantage that has arisen independently. As David Enoch rightly observes in his contribution to this volume, the distinction between doing and allowing cannot afford the state any cover in such matters. See David Enoch, Luck Between Morality, Law, and Justice, 9 THEORETICAL INQUIRIES L. 23 (2008). The state's claim to authority implicates it even in distributions of advantage that it merely allows.
66. Both Anderson and Scheffler acknowledge this possibility, at least in passing. Thus, Anderson admits at one point that "[a]lthough the distribution of natural assets is not a matter of justice, what people do in response to this distribution is." Anderson, supra note 1, at 331.
67. And Scheffler acknowledges that "questions of distribution are important, for people who are committed to the social and political value of equality, . . . because certain kinds of distributive arrangements are incongruous with that social and political value." Scheffler, supra note 9, at 23.
68. Indeed, Scheffler adds that "[l]uck egalitarians often present their view as expressing the intuitive idea that it is unfair if some people are worse off than others owing to factors beyond their control. .. [and] that this idea in turn is rooted in a conception of people as having equal moral worth, so that luck egalitarianism does flow from a broader conception of equality as a moral value." Id. at 32.
69. However, neither Anderson nor Scheffler credits the distinctive way in which the involvement of the state, through its claims to legitimate the final distribution of advantage, converts otherwise distributive questions into questions that invoke ideals of equal political status and non-subordination. This is clearest in Scheffler's work, for example in his express insistence that "the most basic question [for egalitarianism] is not the question of what it is for a government to treat people with equal concern, but rather the question of what it is for people to relate to one another as equals." Scheffler, supra note 4, at 204.
70. This view works itself into Scheffler's analysis of the connection between inequality and subordination, in the form of an implicit rejection of the luck egalitarian sensitivity to state-sanctioned inequality. Thus, Scheffler fleshes out the connection between distribution and the political ideal of equality by proposing that the central question raised by this connection is what "degree of material inequality . . . is compatible with a conception of society as a fair system of cooperation among equals." Scheffler, supra note 9, at 24. The luck egalitarian answer is that it is not the degree of inequality that matters, but the fact that inequality is enforced by a purportedly legitimate state. The "conception of society as a fair system, of cooperation among equals" requires that the state not lend its legitimacy to supporting any inequality in a morally arbitrary way.
71. Another case in which redistribution can engender subordination although now in a more complex way, arises when persons take deliberate gambles and some win while others lose.
72. To be sure, as Kasper Lippert-Rasmussen has pointed out, winning and losing gamblers enjoy different levels of advantage in spite of having made the same choices. See Lippert-Rasmussen, Egalitarianism, Option Luck, and Responsibility, supra note 8, at 572-73. But these differences should not trouble egalitarians, at least not as insistently as differences in brute luck do. Although the differences in advantage that arise in such cases are not related to differences in the gamblers' choices, they are expressions of the choices. That is because the prospect of different outcomes is accepted, and indeed intended, as part of the initial choice to gamble. Allowing such different outcomes to stand, therefore does not place winning gamblers out of community with losers but is instead an expression of solidarity among gamblers - an affirmation of the terms on which gamblers choose to relate to one another. (This form of solidarity is, moreover, recognizable in gambling culture, as in the familiar gambler's motto: "When I win, I laugh; when I lose, I cry; but the money always changes hands.") Indeed, and to the contrary, redistribution from winning to losing gamblers would itself engender subordination. It would subordinate wining to losing gamblers, by allowing the losers some of the benefits of the winners' bets. Moreover, such enforced risk-pooling would discriminate against those with a taste for risk by making (at least some) gambles practically impossible, thus reducing the range of choices available to risk-seekers. And the redistribution would, in this way, subordinate gamblers quite generally to their more risk-averse counterparts.
73. This may seem a concession that puts the basic luck egalitarian project at risk, at least in respect of its critical capacities to confront and reject existing inequalities. Thus Alon Harel has rightly remarked that a state might run a lottery among its citizens -which produces winners and losers and hence a distribution of advantage quite as dispersed as exists in the world as it is -without thereby subordinating anyone. See Alon Harel, Comment on Daniel Markovits, Luck Egalitarianism and Political Solidarity (Jan. 4, 2007) (unpublished comment, on file with Theoretical Inquiries in Law). But it would be essential, in such a case, for the lottery to be chosen by all citizens from a starting point of initial equality, so that all citizens were really equally situated gamblers. Both the natural and social lotteries (which distribute talents and birth-rights, respectively) are of course not like this at all. And in these thoughts, luck egalitarianism's critical bite is revived.
74. Note that luck egalitarianism applies this principle directly over every part of the distribution of advantage. It is concerned with regulating not just morally arbitrary disadvantage at the bottom of the distribution and morally arbitrary hyper-advantage at the top, but also morally arbitrary differences of advantage that arise in the middle of the scale, among persons who are all, from a broader perspective, moderately advantaged. For the luck egalitarian, it is a breach of political solidarity if the child of tradespeople is funneled, by circumstance, into the comfortable lower-middle-class, while the child of professionals is funneled into the wealthier, but still not opulent, upper-middle-class. For the upper-middle-class child to insist on retaining her relative advantage is to assert an entitlement to brute preference that is incompatible with, maintaining solidarity with her lower-middle-class compatriot. Casual observation of the class-resentments of the lower-middle-class, which are directed not just at the ultra-rich but also (in substantial measure) at the entitled upper-middle-class, confirms this breach of solidarity. In this respect, luck egalitarianism is quite different from the democratic egalitarianism that Anderson proposes in its place. Although Anderson does elaborate egalitarian principles for the middle range (as she calls it), these have only indirect connections to her basic egalitarian ideal. (They dilute the stigma that more narrowly focused redistribution would impose on the bottom range, and they prevent the "hollowing out" of the middle range that single-mindedly bottom oriented, redistribution would allow and the class warfare that would ensue. See Anderson, supra note 10, at 267.) Dispersion in the middle of the distribution of advantage cannot be in itself inegalitarian for Anderson, as it can be for the luck egalitarian and also, I have suggested, in ordinary political experience.
75. Anderson, supra note 1, at 287.
76. Anderson makes this point in her contribution to this volume. See Anderson, supra note 10, at 258-59.