On a New Theory of Justice

for now from differences in people's intelligence and reasoning ability. My principal claim is that all inequalities in holdings arising from variations in people's option luck are morally unobjectionable, provided that no one who wanted to run the risks associated with such luck lacked an opportunity to do so. But all inequalities resulting from variable brute luck ought to be eliminated * .. (p. 74). 10 But this claim, as stated, is plainly untenable. Suppose I plant a bomb on your plane. If my option luck is good, you will vanish in mid-ocean, and I shall inherent your fortune; if it is bad, I shall be caught and go to prison. Obviously I have no moral claim to the rewards of such a gamble. If the Principle of Option Luck is to be rescued, it must be reformulated somewhat as follows: (4) Inequalities arising from morally legitimate gambles are morally unobjectionable. This is a large and unwelcome modification. For it makes plain that the Principle of Luck is not an independent moral principle: as with the earlier claim about equal distribution, it depends for its plausibility on a deeper, unacknowledged theory of legitimate behavior towards other persons. Once again, Equality of Fortune does not so much provide a theory of justice as presuppose one. This objection is, I believe, fatal if Equality of Fortune is supposed to provide a comprehensive theory of justice. But even if it is supposed to provide only a partial theory, the Principle of Luck is vulnerable to other objections. Consider first the problem of multiple causation. Most real-life lucky events are not the product of a single cause, but of a chain of causes, some of which reflect brute luck, and some option luck. (I assume here that the distinction between brute and option luck can be clearly made.) For 10. The quotation continues: except to the extent that a victim of bad brute luck waived or waives his right to compensation, or someone who enjoyed good brute luck is or was allowed to retain the benefits he received by those who have or would have had a claim to some part of them; and provided, further, that those who suffered bad brute luck would profit significantly at the margin from transfers designed to restore equality by comparison with the marginal cost to those providing compensation, and that any compensation paid is not excessively burdensome. The basic rationale for adopting this principle is simple. People come into the world equally undeserving. Because no one has a greater claim to the earth or what lies on or beneath it than anyone else, all are entitled to equal shares (p. 74). 1994] CALIFORNIA LAW REVIEW example, I make a conscious decision to purchase a certain stock. I do so because I heard a chance remark on the subway. I understood the remark only because I had chosen years earlier to attend business school. I was able to make this choice only because I had the brute luck to be born in a country with a modem educational system, and to parents who could afford to pay my tuition. Clearly this chain of causes could be extended almost ad infinitum. If the Principle of Luck is to provide any useful guidance, we must be given a method for distinguishing the causes that matter from the ones that do not. One possible way to do this is temporally. It is tempting to invoke notions of proximate causation, to treat long-past causes as having been dissipated with the passage of time, and to make the most recent cause the determining one. Such a temporal test accords with basic intuitions. It would distinguish my good option luck at the gambling tables (where I have a one-in-fifty chance of winning) from my bad brute luck in the failure of my crops-even though, when I decided to become a farmer, the chances of a major crop failure during my lifetime were also one-in-fifty. In both cases, I have made a choice; but in one case the choice is the proximate cause of the outcome, and in the other the intervening years have converted the disaster into a piece of brute luck. But this purely temporal test does not seem to get at the heart of the matter. Consider the following two cases: in the first, I buy a national lottery ticket for a dollar; my chances of winning are one-in-fifty-million. In the second, I buy for a dollar an admissions ticket that allows me to walk in the park for an hour; my chances of being struck by lightning are also one-in-fifty-million. Temporally there is nothing to distinguish the two cases; but we want to say that the lottery winnings are option luck, while the lightning bolt is brute luck. The crucial difference between these two cases seems to be this: when I bought the lottery ticket I intended to gamble; but when I bought the admissions ticket, all I had in view was a walk in the park. This observation seems to offer the most plausible way of addressing the problem of multiple causation: the morally relevant cause is to be specified by reference to my psychological states-specifically, to my conscious choices and intentions. (Rakowski once seems to apply such a test, asking whether an outcome was "a foreseeable result and motivating factor" for a particular activity (p. 85).) If we adopt this suggestion, then the revised Principle of Option Luck will look something like this: (5) If I choose to make a voluntary and morally legitimate gamble with the intent of obtaining a particular reward, and if my choice is the principal cause of my obtaining the reward, then I have no obligation to share my winnings; if, on the other hand, I suffer a loss, I have no claim to compensation from other members of society. [Vol. 82:231 ON A NEW THEORY OF JUSTICE But even this revised formulation is open to weighty objections. First, it still does not solve the problem of multiple causation. Consider the example I started with. Which is the principal cause of my profit on the stock market? My choice to go to business school? My choice to buy the stock? The chance remark on the subway? Formulation (5) does not answer the question, even in principle. Second, this formulation of the Principle of Option Luck is not plausible as a moral ideal. Consider a young scientist who chooses to study molecular biology. She is driven solely by passionate intellectual curiosity and has no thought of financial reward. A few years later, in the course of her researches, she discovers a cure for cancer. Principle (5) implies that she is entitled to the profits of her discovery if she was driven by love of money, but not if she was driven by love of science: surely a morally eccentric conclusion. What has gone wrong? Once again, I suspect that some unacknowledged presuppositions are lurking in the background. Rakowski seems to have in mind cases where we do indeed want to encourage (or allow) risktaking-either for social ends (as when entrepreneurs are encouraged to develop new products), or because certain moderately risky activities (like mountain climbing) are intrinsically valuable parts of the lives of those who engage in them. In such cases a principle like (5) is eminently plausible. But in these cases risk-taking is not itself intrinsically valuable: it is only instrumentally valuable as a means to a further end (an improved toothpaste, or an enhanced sense of the beauty and dangerousness of the natural world). However, when risk-taking is pursued merely for its own sake-by a frivolous gambling playboy, or in a game of Russian Roulette-principle (5) runs contrary to intuition, for which reason many states prohibit or regulate gambling. Morally speaking, not all option gambles were created equal, nor should they be treated the same way by society. Some are to be honored and subsidized even if they fail; some to be encouraged and rewarded if they succeed; some to be tolerated and taxed; some to be frowned upon and regulated; and some to be prohibited altogether. Once this fact has been grasped, we can see that principle (5) is too crude to capture the full range of necessary moral distinctions, and consequently too crude to serve as a plausible or attractive moral ideal.