Fortuna Imperatrix Mundi

I imagine that many readers will not like this post very much. It has been composed in a rather sceptical and contrarian spirit. I admit I’m not entirely happy with it myself. It contains some ideas I’ve been playing around with lately. I’m not wedded to these ideas, so I’m perfectly willing to be convinced by those who have a different point of view. I welcome comments.

In what follows, I will argue that although much of the existing distribution of goods is based on mere chance, it does not follow that one has no title to whatever one has received on that basis. Distributive justice bears no necessary relation — either positive or negative — to chance. I may be well-off due largely to good fortune, but that does not mean any injustice has been committed, and therefore my holdings are not illegitimate.

The fortunate rich are not necessarily bad people, any more than the unfortunate poor are necessarily good people, from the point of view of justice.

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For probably longer than recorded history, humankind has had an ambivalent relationship with chance. We have used chance and chance processes as a source of enjoyment and entertainment (e.g. gambling, lotteries, Risk and Monopoly). It has also been a method resorted to when decisions must be made in an impartial manner, even at the cost of arbitrariness — for it seems that man is often more willing to take his chances with chance than to leave certain matters in the hands of partial human agents.

But this impartiality, this arbitrariness, of chance is also a source of our discomfort with it. For example, it is often argued by the more egalitarian-minded among liberal thinkers, that it is somehow wrong to gain a social or economic advantage by virtue of sheer luck. They believe that such advantages should ideally accrue to those who “deserve” it, on the basis of superior “merit”.

The devil of course is in the details. Each person seems to have her own notion of desert and merit. Marx equated desert with need. Other have equated it with talent, or industriousness, or piety, or noble birth, or… well, you get the idea.

Think of the various candidates for a job. Now here is a situation in which most of us believe that decision by roll of dice would be inappropriate. We like to think that superior talent or skill ought to hold sway. And yet, what happens when two candidates are, on paper, equally “qualified” (whatever that means in a particular case) for only one position? Well, then comes the interview. But many experts agree that a decision made in an interview is made within the first minute, which doesn’t sound like much time for a rational and considered reflection. In reality, it has much to do with how a candidate looks, how she presents herself, and how well-spoken she is, qualities which may have little to do with future job performance. Furthermore, much empirical work in social psychology indicates that there is no correlation between an interview assessment and subsequent job performance. Some studies go further and say there’s a negative correlation (i.e. a job interview is a worse predictor of job performance than rolling dice would be). Is it possible that the “human resources” industry is no better than a guild of astrologers in terms of its predictive expertise?

Those qualities which may make or break a job interviewee are also often the result of what seem to be rather arbitrary social processes. A person may have the correct accent to impress a potential boss because he was brought up in the right family, comes from the right social class, and attended the right school. In short, he was raised in fortunate circumstances. Fortuna imperatrix mundi.

Rawls on the Birth Lottery

It was partly on this basis that the great twentieth century political philosopher John Rawls presented his argument for a more egalitarian conception of distributive justice. In its unadulterated and most consistent form, the argument goes like this. Whatever advantages you have, you have because chance has favoured you with the right combination of looks, talents, natural dispositions, family background, etc. Those who have been most favoured by such circumstances have no right to claim any credit for the rewards they bring, any more than they can claim credit for a lucky roll of the dice. As such, the rewards are unmerited, based as they are on what philosophers like to call “moral luck”.

There are different kinds of moral luck. Sometimes it consists of simple freak accidents that drop money in one’s lap from the proverbial sky, as it were; you happened to be in the right place at the right time when some benefit was being distributed. More interestingly, there is what is called “constitutive” moral luck, where someone has been blessed with the right combination of natural dispositions, likes and dislikes, upbringing, and so on. I say that constitutive moral luck is more interesting because it often lurks in the background when we take credit for our good fortune as being based on superior talents, skills, virtues, character — in short, our superior merit. Much merit consists of constitutive good luck, and much demerit consists in bad constitutive moral luck.

According to Rawls’ argument, the better-off have simply been lucky winners in the lottery of birth. Because all rewards can ultimately be reduced to good fortune, they are unearned and unmerited, and therefore nobody has a right to anything. It is for this reason that his argument can countenance programs of large-scale redistribution. According to Rawls, an ideally just society would contain a rough equality, with such inequalities as exist being justified only if the worst-off are better off with those inequalities than they would be without them.

There have been objections offered against Rawls’ “birth lottery” argument. For example, is it right to say that someone who gains on the basis of some talent she has taken the trouble to develop and exercise is no more deserving of those gains than someone with the same natural endowments who has instead chosen to let those talents lie fallow?

(On the other hand, we should here beware of Friedrich Nietzsche’s wise dictum that “our vanity desires that what we do best should be considered what is hardest for us. Concerning the origin of many a morality.” See Beyond Good and Evil, §143.)

In another vein, it has been argued by some (Robert Nozick, for example) that Rawls’ account strips human agency of its active powers and moral dignity. It makes us all the hostages of fortune in a way that also seems to take away our nature as moral agents. Rawls had elsewhere argued, ironically, that humans have an inherent moral worth, and as such, they possess certain rights that are not to be sacrificed in the name of utility or the greater good. But his own birth lottery argument would seem to undercut this moral worth, sacrificing at least some of our rights by subjecting our goods to redistribution. It also allows us neither to take credit for achievements, nor to accept responsibility for our faults. We are simply passive carriers of morally arbitrary qualities and attributes. Such an account of human nature gives little for rights to lay hold of.

Most refutations of Rawls’ birth lottery argument take the approach of claiming that luck does not have such a large role to play in the distribution of goods and advantages. In what follows I will instead take a different course. I will present an argument for the following claims:

1. Chance does play a large role in the distribution of goods and advantages.
2. Distribution by chance is not an injustice.
3. Correcting the chance distribution, if done on a thorough and consistent basis, would actually create more injustice.

Honoré on Strict Liability

In fact, my argument is not really all that new; it’s rather an extension of an argument made by jurisprudent Tony Honoré in justification of the doctrine of strict liability in the common law. The argument appears in his Responsibility and Fault (Oxford: Hart Publishing, 1999), p. 25.

For those unfamiliar with it, strict liability is the idea that one is held legally liable for damages caused by one’s actions even where one would not normally be held morally responsible for them, for example, in cases where I had no reasonable way of knowing that my action might cause damage.

The problem for legal philosophers is how to justify this seemingly inequitable doctrine. Why should people be held legally responsible for what is in essence bad luck? (It’s not hard to see that this is the flip side of our previous problem, which was how to justify the benefits accruing to those who can take no credit for them.)

Honoré approaches the problem of strict liability by asking us to regard each of our actions as if they are gambles or wagers we voluntarily accept. The payoff of a successful wager is the achievement of whatever it is we set out to do in taking the action. But in doing so we must also assume the risk, however miniscule, that something, anything, may go wrong. Given the way the universe is, there is no such thing as a completely safe bet. So, if we lose, well, too bad so sad. The universe does not owe us its cooperation. That’s the principle underlying strict liability.

Now, here’s the interesting part of Honoré’s argument, at least insofar as it relates to our subject. When you gamble and lose in the casino of human agency, you must pay the house your losings in the same way that you accept your winnings. Just as I “take credit” when things go right, regardless of whether I’m responsible for things going right, I must “take credit” when things go wrong. I can’t pick and choose.

Moral Luck and Distributive Justice

How does Honoré’s notion extend to our broader subject of moral luck in distributive justice? Well, I know it will sound trite or downright callous, but here goes… If you are dealt a bad hand in the game of life, if you have been saddled with bad moral luck, constitutive or otherwise, you must accept that lot in the same way you presumably would accept it if things had gone the other way.

Now, I am not arguing that the poor always merit their poverty. As my argument thus far clearly states, it is often the case that the poor are poor by sheer bad luck (though probably not as often as Rawls and others on the left would like us to believe), just as it is often the case that the rich are rich through a certain amount of unmerited good luck (probably more often than those on the right would like to admit). Also, I am not arguing that nothing should ever be done to better the lot of the poor.

However, I am arguing that poverty due to bad moral luck is not an injustice, and that therefore the poor are not owed such help. Barring crime or other tangible malfeasance, the poor are not poor because someone else is rich. If someone is poor through bad luck, taking money from someone who is not responsible for that bad luck only compounds the evil by replacing bad luck with a real injustice. The net evil is the same because neither person merits the burden put upon them. In truth, the net evil is actually increased, because we have added injustice to misfortune.

Further, and more importantly, if I propose to make someone else bear the burden of my bad moral luck, I must for consistency’s sake also give to someone else the benefits of my good moral luck if and when things turn around. I cannot have my cake and eat it too.

(Incidentally, I think this is traditionally why in many moral traditions, helping the poor has been viewed as an “imperfect duty” — a good thing to do, but not required. After all, what virtue can there be in it when it is forced, or when it is done using other people’s money?)

We must also be careful in using words like “justice” and “injustice”. I believe it does violence to language and common sense to attribute justice and injustice to non-human entities like chance or nature (or elephants or poodles). The dog who bites me does not do me an injustice, though its owner might if he has failed to keep his vicious dog leashed. (There is perhaps one exception to this, for I suppose that God, if He existed, could be accused of gross injustice even though He is supposedly a non-human entity. After all, He would ultimately be responsible for everybody’s bad luck.)

To accuse a chance process of committing an injustice against me makes no more sense than to accuse a pair of dice of injustice for coming up snake eyes. To expect the universe to be fair is, well, infantile. Even where we speak of “fair” dice, we refer to the fact that they prefer neither one roll nor another.

Of course, that does not mean that if I am poor by misfortune I have to like the way things have turned out. I am not advocating here for amor fati. But I am not justified in forcing others — either directly, or less directly through the agency of the state — to relieve me of a burden for which no one is responsible. In those cases where some identifiable other is responsible for my burden, my rights may be vindicated by means of the law, whether criminal, tort, contract, etc. If the law is not robust enough or accessible enough to do this, then it must be strengthened and made more accessible.

It should be noted too that the argument still leaves fairly wide scope for implementing measures that will eliminate some of the predictable sources of bad constitutive moral luck. I suspect that this will be better achieved through more equal access to things like decent education, childcare, and nutrition than to building more prisons. Thus, I am not to be taken as offering an argument against the welfare state as such. I am only trying to get clear about its underlying justificatory principles.

However, if we are to have a welfare state, it cannot be based on resentment of the well-off, nor on high-flown but vague appeals to rights or “social justice” which often provide a convenient mask for such resentment. We must distinguish between moral luck, merit, and injustice. The distributive results of my moral luck (good or bad) are strictly unmerited, but because my moral luck is also not a matter of (in)justice, others cannot be forced to “correct” the results of that luck — it must only be with their consent. (The scare quotes represent my doubts about whether we can properly speak of correctness or incorrectness as applied to the concept of luck.)

So long as the consent proviso is met, a society may legitimately adopt whatever measures of welfare provision or redistribution it sees fit — though the wisdom of doing so is a different matter entirely.

(Perceptive readers might well ask themselves how stringent this consent proviso must be. Am I saying that there must be unanimous agreement to such measures? Am I saying that dissenters should be permitted to opt out? I admit that I don’t know. Like I said, I’m willing to be educated here.)

Also, ideally, it would be nice if the well-off had the humility not to walk too proudly upon the earth, and to reflect upon the extent to which they might merely be fortune’s favourites. They might then be more inclined to help the less fortunate without having to be forced to do it.

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ADDENDUM (Feb. 5, 2010): I just came across the following passage from Friedrich Hayek which seems to anticipate Honoré’s (and my) argument by about twenty years. It is to be found in Hayek's Law, Legislation, and Liberty, Vol. 2: The Mirage of Social Justice (Chicago: University of Chicago Press, 1976), p. 94:

"It is precisely because in the cosmos of the market we all constantly receive benefits which we have not deserved in any moral sense that we are under an obligation also to accept equally undeserved diminutions of our incomes. Our only moral title to what the market gives us we have earned by submitting to those rules which makes [sic.] the formation of the market order possible. These rules imply that nobody is under an obligation to supply us with a particular income unless he has specifically contracted to do so."