Luck egalitarianism, harshness, and the rule of rescue Nir Eyal Abstract Luck egalitarians consider it somewhat fairer when relative disadvantage results from the disadvantaged party’s own choice or fault—when it is “option luck” not “brute luck”. The most famous objection to luck egalitarianism is the harshness objection. It points out that when someone is at grave risk through their own choice or fault, refusing to rescue them on the ground that they are responsible for their own plight would, intuitively, be too harsh. A strong version of the objection adds that intuitively it is harsh even to weigh her personal responsibility for her plight against rescuing her. In defense of luck egalitarianism, I point out that grave risk is known to bring out the so-called “rule of rescue” mentality, and related biases. These biases incline us to deny that there is any sound reason against rescuing the person identified as at grave risk. That fact, I propose, provides an alternative causal account of our intuition that rescue is mandated and that considerations of personal responsibility against rescue would be harsh and inappropriate. In support of this alternative account, when the propriety of holding people responsible for avoidable risk raking is assessed outside immediate rescue situations, our intuitions are far more accepting of the relevance of personal responsibility for disadvantage, and hence, of luck egalitarianism. Background: Luck-egalitarianism, the harshness objection, and democratic equality According to luck egalitarianism,i When deciding whether or not justice (as opposed to charity) requires redistribution, the egalitarian asks if someone with a disadvantage could have 1 avoided it... If he could have avoided it, he has no claim to compensation, from an egalitarian point of view…ii A paramount objection to luck egalitarianism is that it endorses a harsh allocation of resources. Critics Marc Fleurbaey, Elizabeth Anderson, Dan Wikler, Sam Scheffler, and Norm Daniels accuse luck egalitarianism of supporting the harsh abandonment of reckless drivers who hit trees, of gluttons whose unhealthy diets lead to chronic disease, and of bons vivants whose taste for unprotected sex results in their infection (Fleurbaey 1995, Anderson 1999, Scheffler 2005, Wikler 2006, Daniels 2011). Elizabeth Anderson famously writes, Consider an uninsured driver who negligently makes an illegal turn that causes an accident with another car. Witnesses call the police, reporting who is at fault; the police transmit this information to emergency medical technicians. When they arrive at the scene and find that the driver at fault is uninsured, they leave him to die by the side of the road...iii The objection is that luck egalitarianism allows society to abandon the negligent (or “imprudent”, or “reckless”, as they are also called in this literature), say, for no special reason or in order to cut costs, to deter others from being negligent, or to stop the negligent from dumping their slack on others. Luck egalitarianism allegedly must say that society would be in its right, at least in terms of justice, if it abandoned them. Anderson and fellow critics of luck egalitarianism preempt some apologies on behalf of luck egalitarianism, according to which luck egalitarianism has the resources to justify rescuing negligent victims of bad option luck. For example, Anderson agrees that it is inexpedient to leave decisions on health coverage to ambulance drivers and emergency physicians. However, the expediency defense fails for harsh decisions made by hospital administrators and insurers. Likewise, the critics judge that abandoning negligent individuals would often penalize patients who have had an underprivileged upbringing, which generally correlates with lower medical compliance. But Fleurbaey, who had raised the harshness objection before Anderson did, was careful to emphasize that the victim he discussed “received a normal and balanced upbringing” (Fleurbaey 1995). Luck egalitarians have proposed a number of responses, most of which seek to clarify why they can consistently endorse a duty to save the imprudent. Pluralist luck egalitarians adduce our many other potential reasons to save the imprudent, such as our complementary (not alternative) reasons to satisfy people’s basic needs. In pluralist luck egalitarian Shlomi Segall’s words, “The 2 concern for basic needs… overrides luck egalitarian distributive justice and mandates meeting the basic medical needs of the prudent and the imprudent alike.”iv However, a sophisticated champion of the harshness objection could respond that intuition rebels against the implications of this position too. For example, an ambulance driver who saved only the prudent when there was a reckless driver and a backseat passenger and only one spot in the ambulance, rather than flip a coin, would intuitively act wrongly (compare Segall 2010, 71-72). Nor is abandoning the imprudent as such something that, intuitively, should even cross the minds of decent ambulance drivers or doctors. Ones who thought that the imprudent had lost their just claim to their services and should be aided out of sheer charitable concern for their basic medical needs would intuitively be guilty, not of making the wrong choice but of flawed background phenomenology. Anderson hints at this “strong version” of the harshness objection (as we may call this version) when she complains that on luck egalitarianism, the post office “can with justice turn away the guide dogs of faulty drivers who lost their sight in a car accident” (Anderson 1999, 296, added italics). Anderson and some other critics of luck-egalitarianism use its alleged harshness to motivate an alternative egalitarian theory, namely, democratic equality. That theory states: Negatively, egalitarians seek to abolish oppression—that is, forms of social relationship by which some people dominate, exploit, marginalize, demean, and inflict violence upon others… Positively, egalitarians seek a social order in which persons stand in relations of equality. They seek to live together in a democratic community, as opposed to a hierarchical one (Anderson 1999, 313). Democratic equality is said to be immune to the harshness objection because it guarantees “effective access to a package of capabilities sufficient for standing as an equal over the course of an entire life. It is not a starting-gate theory, in which people could lose their access to equal standing through bad option luck” (Anderson 1999, 319, and see also p. 328: “Democratic equality … guarantees a set of capabilities necessary to functioning as a free and equal citizen and avoiding oppression”). Remaining “capable of standing as an equal in civil society requires,” among other things, ambulatory services in the event of a car accident, regardless of the causes of disability; post office disabled access, regardless of its causes (Anderson 1999, 246); lung transplantation to overcome certain lung cancers regardless of their causes; and protection against other very bad brute or option luck. These rights to basic protection are inalienable because society has a duty to protect the standing of each member as a Kantian fundamental 3 equal. This right is as inalienable as are the freedoms from slavery and from any other violation of citizens’ Kantian dignity (Anderson 1999, 319). Put differently, Anderson argues that what is wrong with the alleged luck egalitarian denial of medical care to the neglectful is that it robs them of their capacity for full democratic participation in politics and civil society on equal terms, and that that capacity matters because Kantian dignity does. Daniels and Scheffler espouse the grounding in equal democratic status (Daniels 2011, Scheffler 2005). Daniels adds that such denial of medical care also robs the neglectful of their fair share of opportunity, a related fundamental right (Daniels 2007, 2011). Even Luck egalitarian Shlomi Segall concedes that democratic equality “easily averts the abandonment objection”; he merely insists that, with moral acrobatics, luck egalitarians can avert that objection as well (Segall 2010, but see Segall forthcoming). Like Segall, I am sympathetic to pluralist luck egalitarianism. But I take a more radical stance against the harshness objection than he does. The three sections of this chapter will argue, respectively: 1. Harshness objections arise for democratic equality as well. 2. A central reason why either luck egalitarian recommendations or democratic egalitarian ones seem too harsh may well be the potentially distracting influence of the unrelated and irrelevant “rule of rescue” mentality. That mentality, which I shall lay out, makes us not only prioritize greatly individuals who are identified as being in great danger, but also, crucially, “deeply exclude” (as I shall put it) any reasons to de-prioritize them, sound or unsound. I shall also explain the notion of deep exclusion. 3. Indeed, outside immediate rescue situations, the force of the harshness objection wanes and personal responsibility intuitively feels much more relevant. I shall conclude that, in truth, personal responsibility always matters somewhat, but that this truth is sometimes too harsh for us to admit—even to ourselves. 1. Harshness objections to democratic equality In its own ways, democratic equality is harsh as well, in some ways more than luck egalitarianism. Elsewhere I laid out several ways in which it is harsh, but let me feature one—its harshness toward identified victims. Anderson cites