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Joumalof Moral Philosophy 10 [2013) 488-507

hrill.com/jmp

Harmful Choices: Scanlon and Voorhoeve on


Substantive Responsibility*
Zofia Stemplowska
Department of Politics and International Relations, University of Oxford
zofia.stemplowska@politics.ox.ac.uk

Abstract
How should the fact that a given policy offers people choice bear on policy selection? Should
we favour choice-granting policies even if choices lead to harmful outcomes, and even if the
causal thesis is true and people are notfijllyin control of how they choose? T.M. Scanlon and
Alex Voorhoeve have tried to locate the significance of choice in the value or potential value
that it has for choice-bearers. I show that this leaves them vulnerable to a general dilemma:
either they can explain the significance of choice by supposing the causal thesis is false, or
they cannot explain it when faced with certain policy cases. I argue that we should locate
the significance of choice in the fact that having a choice means being in a position to treat
others as they are due or not. My view can be summed up in a slogan: ask not only what
choice can do for you; ask what having the choice means you can do to others.
Keywords
substantive responsibility, choice, distributive Justice, determinism, causal thesis, Scanlon,
Voorhoeve

Introduction
Practically all social arrangements can be reformed - sometimes in a cost
neutral way - to make tbe outcomes tbat tbey regulate more sensitive to
people's cboices. Tbe outcomes can be tied more directly to people's
decisions (for example, by ensuring tbat making decisions is unavoidable)
or tbe range of outcomes for people to cboose from can be expanded.
* 1 am gratefijl for especially detailed comments or long discussion to Ben Jackson,
Daniel McDermott, Brad McHose, Jonathan Quong, and two anonymous referees. I am also
grateful for comments by Simon Caney, Jacob J. Krich, T.M. Scanlon, Adam Swift, Andrew
Williams, and the participants at the MANCEPT conference on 'Justice, Rights and
Institutions: Themes from the Philosophy of T.M. Scanlon,' May 2009 and at the Centre for
the Study of Social Justice Seminar, Oxford University, January 2010.
0 Koninklijke Hrill NV, Leiden, m^

1101 l().11KH/174.'.'243-()10()2()09

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One much-heralded virtue of such reforms is that they give people more
say over their fate. But we also know that the potential advantages of
choice-sensitivity fail to materialize for some. Making outcomes depend on
choices carries the risk, and, often, statistical certainty, that some people
will choose badly. Having the opportunity to choose equates for some to
having the opportunity to choose poorly - a burden that gets heavier the
better others are at choosing. In essence, just because a policy offers people
choices does not mean that it offers people anything worth having.
How then should the fact that a given policy offers people choice - that
it makes its distributive outcomes (i.e. substantive responsibilities) sensitive to the choices people make - bear on policy selection? When and why
is choice significant in the specific sense that its presence counts infavor of
the choice-sensitive policy rather than the alternative that is less or not at all
choice-sensitive?
Famously, T.M. Scanlon has explained the significance of choice with
reference to its value: offering choice counts in favor of the policy that
offers it when (and because) the choice is of value to the choice-bearers.'
Importantly, according to Scanlon, this account of the significance of
choice not only captures our intuitions but is also immune to the threat
posed by that famous enemy of choice - determinism. In fact, it is meant to
withstand the more general threat posed by what Scanlon has called the
causal thesis. According to the causal thesis, choices that people make are
caused by factors that are external to their agency, such as their social background or genetic codes. It does not matter whether such external factors
operate in a deterministic or probabilistic manner - what matters is that
choices are externally caused and, therefore, there is a sense in which people's choices are not really theirs. People may still be able to choose in the
sense of having guidance control - they can guide their actions in light of
their choices, but they cannot choose in the sense of having regulative control - they cannot regulate their choices; they cannot control what they
choose.2
For all its ambition, however, Scanlon's account of the significance of
choice has been accused of providing, at worst, an inaccurate and, at best,
a radically incomplete picture of when choice bears on policy selection.
Focusing on a policy dilemma, Alex Voorhoeve has argued that choice can

' T.M. Scanlon, What We Owe to Each Other, Harvard University Press 1998, 248-294.
Hencefortb: WWO.
^ Jobn Martin Fiscber and Mark Ravizza, Responsibility and Control, Cambridge University
Press 1998,31.

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count in favor of the choice-granting policy even when its presence is not
valuable to the choice-bearers on the Scanlonian account.^ He has suggested that when selecting policies we should focus on the potential value
of choice, which tracks the value of the possible outcomes of choice and
the chooser's disposition to choose them.'*
Scanlon's account, and Voorhoeve's modification, can be read as suggesting two desiderata for a successful account of the significance of choice.
According to Scanlon, it should meet what I will call the external constraint:
it should be compatible with the causal thesis. According to Voorhoeve,
it should meet what I will call the intuitive constraint: it should point us
towards the choice-sensitive policy over the not choice-sensitive alternative in a policy case (specified in section 1 below) where it seems intuitive
to do so.
This paper has two main aims. My first aim is to show that while
Voorhoeve is correct in pointing out that Scanlon's account fails to
meet the intuitive constraint, Voorhoeve's own account fails to meet the
external constraint. Therefore, irrespective of its other strengths, Voorheove's account cannot replace Scanlon's account: they each solve and
fall by different problems. My second aim is to provide an account of the
significance of choice that can better satisfy the two constraints.
The importance of satisfying the intuitive constraint is pretty clear: if we
can have an account that fits with our intuitive considered Judgments we
should prefer it, ceteris paribus, to one that does not. But why look for an
account of the significance of choice that meets the external constraint?
Why follow Scanlon on this? To see why, consider the countless articles and
books on whether the causal thesis, especially deterministic causation, is
compatible with the attribution of moral blame or praise to people in light
of their choices. If we are worried whether choice-sensitive attributions of
moral blame or praise (moral responsibility) are acceptable when choices
are externally caused, then we should also ask whether choice-sensitive
attributions of burdens and benefits regulated by distributive policies (substantive responsibility) are. Such burdens and benefits concern health.

Alex Voorhoeve, 'Scanlon on Substantive Responsihihty,'Journal of Political Philosophy


16 (2008): 184-200. Henceforth: SSR. This point has also been made by Andrew Williams:
'Liberty, Liability, and Contraetualism,' in Nils Holtung and Kapser Lippert-Rasmussen
(eds.), Egalitarianism, Oxford University Press 2007,241-261.
'' Both Scanlon and Voorhoeve develop their accounts as alternatives to what the former
has called the Forfeiture View (WWO, 258), which holds, roughly, that the presence of
appropriately voluntary choice counts in favor of the policy that offers it tout court. The view
is, rightly, deplored by both philosophers and 1 don't entertain it either.

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income, and other primary goods the access to which can be more life
altering than moral blame and praise. And yet, there has been relatively
little discussion by political philosophers of how determinism, or the causal
thesis more generally, affects the justifications of choice-sensitive distributive policies.^ And while it is often fine - given the academic division of
labor - to proceed on the assumption that the causal thesis would not make
any difference to our account of how the presence of choice bears on distributive policies, it is also important to see if this is so.
In section 1,1 will introduce the policy dilemma, designed by Voorhoeve,
that fleshes out the intuitive constraint. In section 2,1 will explain why, as
Voorhoeve argues, the dilemma exposes limits to Scanlon's account of the
value of choice. In section 3,1 will argue that Voorhoeve himself resolves
the dilemma only at the cost of failing to meet the external constraint.
Finally, in section 4, I will identify sufficient conditions under which the
fact that one policy offers people a choice that the alternative policy denies
counts in favor of adopting the first policy even if the causal thesis is true.
I will thus suggest a further way in which choice can bear on policy selection. Throughout I will talk of being offered a 'choice' interchangeably with
being offered 'options' or 'opportunities,' and I will use 'choice/having
options' in the shallow sense that is compatible with someone being unable
to make herself choose otherwise.
To cut a long story short, both Scanlon and Voorhoeve try to locate the
significance of choice in the instrumental value or potential value that it
has for the choice-bearers. Doing this leaves them vulnerable to a general
dilemma: either they can explain the significance of choice by supposing

^ Scanlon is a notable exception. Cf. Richard J. Arneson, 'Luck Egalitarianism Interpreted


and Defended,' Philosophical Topics (Spring and Fall, 2004) [actually published in Fall, 2006],
1-20; G.A. Cohen, 'Equality of What? On Welfare, Goods, and Capabilities,' in Martha
Nussbaum and Amartya Sen (eds.). The QuaUty'ofLife, Oxford University Press 1993,9-29,28;
Ronald Dworkin, Sovereign Virtue, Harvard University Press 2000,287-299; Marc Fleurbaey,
'Equal Opportunity or Equal Social Outcome?,' Economics and Philosophy u (2005): 25-55,
38-40; Kasper Lippert-Rasmussen, Deontology, ResponsibiUty, and Equality, University of
Copenhagen 2005, 331-354; Carl Knight, Luck Egalitarianism, Edinburgh University Press
2009, 178-188; Matt Matravers, ResponsibiUty and Justice, Polity 2007, chs. 1-3; Samuel
Scheffler, 'Choice, Circumstance, and the Value of Equality,' Politics, Philosophy & Economics
4 (2005): 5-28, 12-13; Saul Smilansky 'Egalitarian Justice and the Importance of the Free
Will Problem,'P/i/osop/ia 25 (1997): 153-161; Zofia Stemplowska, 'Holding People Responsible
For What They Do Not Control,' Politics, Phitosophy & Economics 7 (2008): 355-77; Larry
Temkin, 'Justice, Equality, Fairness, Desert, Rights, Free Will, Responsibility, and Luck,' in
C. Knight and Z. Stemplowska (eds. ), Responsibility andDistributiveJustice, Oxford University
Press 2ou; Williams, 'Liberty, Liability...,' 256-259.

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the causal thesis is false, or they cannot explain it when faced with certain
policy cases. I will argue that we should locate the significance of choice in
the fact that having a choice means being in a position to treat others as
they are due or not. My view - which I call the power of choice view - can
be summed up in a slogan: ask not only what choice can do for you; ask
what having the choice means you can do to others.

1. The Policy Dilemma


Imagine that we need to decide between two policies, only one of which
offers all people a choice whether to pursue or avoid a course of action that
they know will lead to harm. To make this problem more concrete, here is a
dilemma posed by Voorhoeve and adapted from Scanlon:
Imagine that we are public officials responsible for the removal and transport
to a remote, safe location, of some recently discovered, naturally occurring
hazardous material from a town. Though the excavation site will be fenced
off, and the excavation and transport will be carried out with care, the removal
of this material yfiW inevitably release harmful particles into the air, which, if
inhaled, will cause lung damage...[T]he inhabitants of the town will be safe
if they stay indoors on the day of the excavation and transport.
Suppose that we have two [policy] options. Our first option is to have a very
thorough information campaign, which will ensure that everyone in the town
receives a standard warning message and can take the necessary steps to protect her/himself. (Call this policy Inform Everyone. [I vll later in this paper
refer to the standard warning message as a dry warning]) ...[W]e can confidently predict that almost everyone will indeed protect her/himself, but that
there will be one person, though we can't know who this person is, who will
impetuously visit the excavation site even though she is aware of the danger to
her health; she visits nonetheless because the standard warning aroused her
curiosity about the nature of the hazardous material and the process of excavation. As a consequence, she will develop a severe and incurable case of
emphysema. (Call her Curious.) [^]
The second policy option is to spend more money on each individual
sign, leaflet, and announcement, in order to describe the effects of exposure
with particularly vivid and persuasive images. (Call this policy Vivid
Warning.)...[W]e can confidently predict that these images vll move everyone who receives the warning...to heed it. Hovifever, because the leaflets and

^ It is not, by assumption. Curious' aim to become contaminated. She can be thought of


as thoughtless, reckless, or weak-willed. For a real-life example of Curious-like behavior, see
Dale Dominey-Howes and James Goff, 'Tsunami: Unexpected Blow Foils Flawless Warning
System,' Nature 464 (18 March 2010): 350.1 am grateful to Jacob J. Krich for drawing my attention to the letter in Nature and to him and Andrew Williams for discussion of this point

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announcements will be more costly to produce, the campaign's coverage will


he somewhat less extensive. As a consequence, though an attempt will be
made to reach everyone, we can confidendy predict that one person vnW
remain uninformed and -wiW be outside on his daily stroll on the day of the
excavation. (Call this person Walker. Again, suppose we don't know who this
person will be.)
Suppose that Curious and Walker are equally well-off prior to the hazardous
material removal, and that the harm suffered by Curious under Inform
Everyone is just as great as the harm suffered by Walker under Vivid Warning.^
Voorboeve assumes tbat we must opt for Inform Everyone (IE), tbe policy
tbat offers everyone a cboice, over Vivid Warning (VW), wbicb does not
give Walker tbe cboice to avoid barm. As be points out, tbis conclusion is
intuitive, and in line witb wbat empirical data reveal about people's actual
policy preferences.^ I will accept for tbe purposes of tbis discussion tbat a
good account of bow cboice can bear on policy selection sbould, ideally,
explain why we ought to pick IE over VW. Tbe policy dilemma represents
tbe intuitive constraint on an account of tbe significance of cboice.

2. The Value of Choice


Can Scanlon's account select tbe right policy? I agree witb Voorboeve tbat
it cannot. Recafl tbat Scanlon's value of choice account aims to explain the
significance of cboice witb reference to its value. Specifically, Scanlon identifies tbree ways in wbicb cboice can be of value to tbe choice-bearer: it can
bave symbolic, representative, and/or instrumental value. Cboice bas symbolic value wben being offered it signifies tbat one is to be treated as someone wbo sbould make bis or her own cboices. It has representative value
when it allows people to represent wbo tbey are through actions and tbeir
outcomes. It bas instrumental value wben baving tbe choice makes it more
likely tbat one will end up witb better outcomes tban bad tbe cboice been
absent. It is tbe instrumental value of cboice for the choice-bearer tbat
botb Scanlon and Voorboeve tbink is relevant in tbe context of tbe policy
dilemma in question and is my focus bere.^
Why is tbe instrumental value of cboice relevant to policy selection?
Because, according to Scanlon, '[i]f a person has been placed in a
sufficiently good position, tbis can make it tbe case that be or sbe bas

Voorhoeve, SSR, 184-5.


Voorhoeve, SSR, 185-6, n3.
Scanlon, WWO, 251-3,257; Voorhoeve, SSR, 188.

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no valid complaint about what results.''" Being offered an instrumentally


valuable choice may mean being placed in a sufficiently good position and
lacking complaint that the choice-granting policy was adopted. Following
Voorhoeve, let me de-code 'being placed in a sufficiently good position' as
'being offered opportunities which generally lead people to avoid harm'
and let me interpret Scanlon's admittedly more tentative claim as one offering sufficient conditions for choice to count in favor of the choice-granting
policy." These moves deliver the following policy principle:
The Value of Choice Policy Principle: If a person is given opportunities which
generally lead people to avoid barm, tbis alone is sufficient to count in favor of
the policy that offers it ratber tban an alternative that, while otherwise the
same, offers no such choice.'^

This principle, however, cannot recommend selecting IE over VW. True, IE


offers Curious a choice that VW denies to Walker but the choice that IE
offers to Curious is not instrumentally valuable to her; it does not lead her
to avoid harm. In fact, IE places Curious in no better position than Walker
is placed under VW (resulting in a policy tie).'^
In response it could be observed that the above principle only asks that
the choice in question be such that it generally leads 'people' to avoid
harm, not that it leads everyone to avoid harm. Within the Scanlonian
framework, we should think of 'people' as 'anyone whose situation and
features can be characterized in a generic way.''"* Should Curious' situation
and features be seen as generic or as specific to her? The two potentially
non-generic features of Curious' case are the fact that, for her, satisfying
her curiosity is an important aim, and the fact that she comes to harm
as a result of pursuing it. Following Scanlon, we can accept the first fact as
non-generic. This means that when designing policy we need not see

" Scanlon, WWO, 258.


" Since I will not criticize Scanlon on tbe grounds tbat tbe conditions are insufficient,
1 assume tbe move is permissible. For sucb a criticism, see Williams, 'Liberty, Liability...,'
248-252.

'^ Voorboeve, SSR, 186, attributed to Scanlon, WWo, 258. For tbe sake of focusing on what
matters, I assume tbat certain background conditions are met: (1) it is not possible to offer
Pareto optimal improvement; (2) tbe distribution of the opportunities does not violate any
independent principles ofjustice.
' Giving us reason to alternate between tbe policies or to toss a coin.
'' Scanlon bas argued that wben assessing policies, we sbould only pay attention to
'generic reasons' - reasons wbicb we can understand people bave (for or against tbe policy)
in virtue of certain general characteristics rather tban anytbing that must be attributed to
them as specific individuals. Scanlon, WWO, 204-6 and 263; Voorhoeve, 189.

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Curious' aim as genuinely important. But, as Voorhoeve correctly observes,


this does not undermine the relevance of the second fact to policy: the fact
that in pursuit of her aim Curious comes to harm. Indeed, as Scanlon himself has argued, it counts as a reason in favor of offering further protection
that 'some people [such as Curious] are likely to choose unwisely.' So the
effects on people's safety of a given policy are relevant to assessing the
policy in question.15 Thus we cannot see IE as offering Curious sufficient
protection from harm and we lose our reason to prefer the choice-granting
policy, IE, to VW.
But even if Scanlon's own argument would not compel him to see
Curious' case as appropriately generic, the choice IE offers Curious is clearly
not instrumentally valuable for her. And if, like Scanlon, we are concerned
with immunizing our account of the significance of choice from the threat
posed by the causal thesis to individual agency, it seems appropriate, as
Andrew Williams has argued, to pay attention to Curious' individual situation.'^ This should lead us to doubt that the intuitive constraint can be met
with reference to the instrumental value of choice for the choice-bearer.

3. The Potential Value of Opportunities


Does Voorhoeve's potential value of opportunities view offer a better
account of the significance of choice? I will argue that the reason why it
does better than Scanlon's account in meeting the intuitive constraint is
that it ignores the key desideratum that Scanlon has set for his account:
compatibility with the causal thesis.
Like Scanlon, Voorhoeve attempts to locate the significance of choice by
reference to its instrumental value for the choice-bearer. But, on his view,
what matters is whether offering people choices can increase the potential
value of their opportunities. What is the potential value of opportunities?
It is a function of'the value of the various things that... [the person] can
achieve through her choices as well as ... [her disposition] to choose her
better options and avoid her worse options.' If the person is not in a good
position to make an informed choice - because, say, a given policy simply

'^ Scanlon, WWO, 263; Voorhoeve, SSR, 189-90. Voorhoeve shows that the fact that gathering information about policy harmfulness is costly does not rule out adopting VW on
grounds of cost. This is because such information is often already available. I thank an anonymous referee for helping me clarify this section.
'^ Williams, 'Liberty, Liability...,' esp. 253-259.

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denies her choice (think of Walker under VW) - the value in question is
reducible simply to the value of the outcome that befalls her.'^ So the
potential value of one's opportunities is the value of the outcomes that are
contained in one's option set adjusted (somehow) for the disposition of the
chooser to choose one way or another; the potential value is reducible to
the value of the realized outcome in cases where no informed choice under
good conditions is open to the agent.
Although Voorhoeve interprets Scanlon's value of choice view as issuing
in sufficient conditions for the absence of complaint over policy choice, he
does not explicitly state his alternative conditions. Nonetheless, the text
implies the following:
Potential Value of Opportunities Policy Principle: If, in the absence of other
differences, the worst (least potentially valuable) option set of policy 1 is better
than the worst option set of policy 2, and the best option set of policy 1 is at
least as valuable as the best option set of policy 2, this alone is sufficient to
count in favor of policy 1 over 2.'^

How does the principle deal with the policy dilemma? Under VW the
potential value of Walker's opportunities (or the value of his option set, for
short) equals the value of the outcome he ends up with (i.e. severe harm),
since he is not in a position to choose to avoid harm. The value of the option
set of Curious under IE is different: the value here is a function of the two
opportunities she faces - severe harm and no harm - as well as her disposition to choose. Although Curious is, by assumption, highly disposed to
choose badly, the total value of her option set is seen by Voorhoeve as
greater than the value of the worst outcome in that set (i.e. severe harm).'^
Thus the fact that Curious enjoys choice under IE that Walker lacks under
VW counts in favor of adopting IE.
Voorhoeve's account succeeds where Scanlon's has failed on account of
the simple fact that it looks not only at whether having a choice will improve
the choice-bearers' actual outcomes (which it won't under the policy
dilemma), but also asks that we consider alongside the value of the actual
outcomes the value of the potential ones. Voorhoeve's success in meeting
" Voorhoeve, SSR, 195-6. Strictly speaking, Voorhoeve suggests also that the potential
value of opportunities reduces to the outcome that befalls a person if she 'carmot reasonably
be expected to choose differently" and it may be unreasonable to expect different choices
from those who were in a good position to choose. I am grateful to an anonymous referee for
this point and suggestions for rephrasing here and elsewhere in the paper.
'* Voorhoeve, SSR, 195-200.
'^ To know how much greater, we would need information about Curious' disposition
and how to incorporate it into the potential value.

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the intuitive constraint turns, then, on stipulating that (1) the potential
value of opportunities is what we should pay attention to and (2) that the
potential value of opportunities is reducible to the value of the actual outcomes if and onfy if the person in question, like Walker under VW, was not
in a good position to avoid the outcome by judicious choice. But, as I am
about to argue, if the causal thesis is true, then the most plausible way
of measuring the potential value of people's opportunities annihilates the
difference in the value of Curious' and Walker's option sets.
To show this, let me re-examine how Curious and Walker can come to
harm, adding detail that is necessary to see what is going on in the scenario
if the causal thesis is true. There are two possibilities to explore, depending
on whether choices are caused deterministically or not:
(1) If determinism is true, we can justifiably represent Curious' disposition to choose badly under IE as 100%.^ Once we do so, it becomes unclear
why the potential value of the opportunities faced by Curious (under IE)
should be measured as higher than those faced by Walker (under VW). If
Curious is 100% disposed to choose badly, doesn't the value of her option
set reduce to the value of the outcome that she is bound to suffer under IE?
Tbis, of course, would make the worst option set under IE no better than
that under VW, thus eliminating the previously identified reason to select
IEoverVW.2i
To defend the claim that, if determinism is true, the potential value of
Curious' opportunities should be seen as no higher than Walker's, consider
a slightly changed scenario. Imagine that whether IE or VW is adopted, the
same individual will end up harmed. Is it really more valuable for this person - call her Curious-Walker - if we adopt IE rather than VW? Is she really
given more of an opportunity to avoid harm if one policy is adopted rather
than another? There seems to be no good reason to think so. To drive the
point home, imagine that it would in fact cost us marginally more to adopt
IE rather than VW but that we could afford to do so. If Curious-Walker's
option set under IE were more valuable than that under VW, and assuming
no other effects, she would plausibly have a claim that IE be selected.
However, itseems to me that ifwe knowforsure that Curious-Walker would

^ This assumptionfitswith Voorhoeve's account. Voorhoeve, SSR, 195-6, mo and 199, ni4.
^' There might be a sense in which the value of Curious' option set might be higher than
that of Walker's on account of the symbolic and representative value of choice. But
Voorhoeve's focus is on the potential value of opportunities with respect to the outcomes
they condition. Also he could not fall back on this value without making it available to
Scanlon.

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end up barmed under eitber policy, we would bave no reason grounded in


tbe potential value of ber opportunities to adopt IE over VW.
My more general point can be put as follows. If determinism holds, then
tbe potential outcomes of someone's option set are not really potential at
all: tbey are illusory since tbey are open only nominally. Given that Curious'
disposition is wbat it is, IE does not give Curious more of an opportunity to
avoid barm tban if sbe were given no cboice.
(2) If probabilistic causation operates, we migbt assume tbat Curious'
disposition to cboose badly under IE is less tban 100%; say sbe is only 50%
disposed to cboose badly and faces a 50% chance of suffering harm. In tbis
case, we should also assume tbat under VW Walker's cbance of ending up
barmed is 50%.'^^ How sbould we now compare tbe potential values of
their opportunity sets? Voorboeve bolds that:
Of course, heing exposed to the danger of coming to harm through choosing
hadly differs from being exposed to a danger that one cannot avoid by choosing
appropriately. In line with the common judgments outlined at the start of this
article, we should hold that the person who would face a danger of incurring a
harm that she could avoid by choosing appropriately has less of a claim for this
danger to be eliminated than someone who would face an equivalent danger
of a harm that he could not so [i.e. hy choosing appropriately]
d^^
But can we ground tbis assertion witb reference to tbe potential value of
Walker's and Curious' option sets? If tbe causal tbesis is true, is tbe potential value of opportunities faced by each really different even if both face
tbe same (50%) risk of barm? I do not tbink so. It would be counterintuitive
to insist tbat tbe potential value of Walker's opportunities is simply equivalent to the outcome tbat ultimately results no matter bow likely tbe outcome was. Given this, it is bard to avoid tbe conclusion that tbe potential
value ofWalker's opportunities equals not tbe value of bis outcome but tbe
value of all bis possible outcomes given tbeir probabilities. Tbis conclusion,
however, would erase tbe difference in potential value between Walker's
and Curious' opportunities.
Voorboeve migbt try to empbasize tbe fact tbat only Curious faces a
cboice with respect to suffering severe harm\ Walker may face a choice witb
respect to going for a walk, say, but, since be knows nothing of tbe danger,
be is not in a position to cboose wbetber to suffer severe barm. But Curious,
of course, is assumed to lack regulative control and tbus tbe ability to

'" Assume that each policy still harms one person. This is not statistically sound but otherwise nothing is lost by sticking to the stylized example.
23 Voorhoeve, SSR, 197, ni2.

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control her choice. It therefore remains mysterious why facing one kind of
choice rather than another would be potentially more valuable with respect
to the range of outcomes. We are back to the same difficulty as in the
Curious-Walker case above: it is unclear why, if people lack regulative control, the potential value of one's opportunities would track anything beyond
the value of possible outcomes given their probabilities. That is, when
people do not control their choice, it is unclear why it should uniquely
affect the potential value if one's option set includes a possibility to choose
that does not affect one's odds, relative to Walker's, and that one cannot
control.
To marshal our intuitions in support of thisfinalpoint consider a policy
that, unlike those mentioned above, is, thankfully, not a realistic option.
Imagine that we could adopt a policy of Informed Hypnosis (IH), which
would mean informing everyone in a cursory manner of the dangers posed
by the waste removal and subjecting them to hypnosis.^ The hypnosis
would be aimed at ensuring that people want to stay at home at the waste
removal time. Nonetheless, under IH, exactly one person - Obedient would suffer severe harm: the hypnosis would make him walk to the contaminated site at the wrong time. How does the potential value of Obedient's
option set under IH compare to that of Walker's under VW and Curious'
under IE? It depends, in my view, on whether we think that hypnosis
deprives Obedient of control over his actions. If it does, then there is a clear
sense in which the potential value of Obedient's opportunities is no greater
than that of Walker's under VW, since he is not in a position to choose to
avoid harm. But this suggests that perceiving the potential value of Curious'
option set as greater than that of Walker's depends on assuming that
Curious is not like Obedient - that she does have control over what she
chooses to do. This is precisely what is denied by the causal thesis.
In the end there might be another way in which the alleged difference in
the potential value of the opportunity sets faced by Curious and Walker
might be explained. Until then, however, the potential value of opportunities view does not tell us why, if the causal thesis is true, we should see the
presence of choice as of special significance to the chooser that goes beyond
its value identified by Scanlon. It therefore appears that the only reason
why the potential value of opportunities view is able to select the intuitive
policies, where Scanlon's view fails, is that it ignores the constraint that
Scanlon's view was specifically designed to meet. This might lead some
^ where bypnosis is understood as it is in pbilosopby ratber than psychology: it overrides the agent's will.

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simply to dismiss the external constraint. But if we take Scanlon's project


seriously, we are left unsure if we can improve on his own account
and whether, if people lack regulative control, IE really should be picked
overVW.25

4. The Power of Choice


The challenge for an account of the significance of choice is to show why
choice can bear on policy selection even if, given the causal thesis, choice
is not a device allowing agents to freely shape what befalls them, but a
harness that forces them towards a given outcome. While this harness can
be of value, or potential value, it is not when it fails to protect the choicebearers any better than they would be protected in its absence. My suggestion is that, instead of locating the significance of choice in its value or
potential value in cases such as these, we take a step back and ask why the
choice bearers need protecting in thefirstplace. If the answer is, as it sometimes will be, that they need protecting only because they act (choose)
without due regard for the interests of others (not just their own), this fact
undermines the appropriateness of accommodating such choices by opting for policies that are costly to these others. I call this account the Power
of Choice view (the PC view):
Power of Choice Policy Principle: If two policies are tied on outcomes but
policy 2 is needed (to a greater extent than policy 1) only because some,
through how they choose or are prepared to choose, do not accord due weight
to the interest-based entitlements of others, this alone is sufficient to count in
favor of policy 1 over 2.

On this view, choice bears on policy selection because having a choice gives
a person the power to unduly affect what others get (to deny them something they ought to have due to inappropriate concern for their interests),
but it should not give the person the power to affect what they are entitled
to. Let me explain and motivate this view. I will argue that Curious' actions
(choices) can fall into the category of choices that should not be accommodated at the cost of adopting a VW that is harmful to Walker.
My view invokes the notion of entitlements, and, of course, IE and VW
distribute entitlements to the means and burdens of avoiding contamination. Thankfully, the specific context renders mute a host of possible

I thank an anonymous referee for discussion of this point.

z. Stemplowska /foumal of Moral Phibsophy 10 {2013) 488-507

501

sources of entitlements (say, promises) so that we are left considering simply the costs and benefits of each policy to Curious' and Walker's interests.
Both policies come with identical harms (sickness) but with different
avoidance burdens, i.e. the burdens that one would need to undertake to
avoid the harm. Thus, the avoidance burden for Walker under VW is much
heavier (more costly to his urgent interests) than Curious' avoidance burden under IE. For to avoid contamination Walker would need to seek information on air quality whenever venturing out, or to stay in an environment
he can control.^^ Curious would only need to forgo satisfying her curiosity
and the help that a vivid warning would offer with this task: the cost here is
fairly trivial.^^ So IE grants Curious the option to avoid harm at a trivial cost,
while VW only offers an equivalent option to Walker at a very high cost.
Now, I take it as axiomatic (and uncontroversial) that, in general, people are
not entitled to something that would impose severe harm or burden to others for the benefit of not bearing trivial costs.^^ So if the relevant costs are
as stipulated, we have a reason to adopt IE rather than VW.
But the causal thesis generates two challenges to this allocation of
entitlements. The background challenge holds that when people lack regulative control the whole idea of entitlements makes no sense. The specific
challenge holds that (while entitlements make sense even if people lack
regulative control), the specific distribution of entitlements - adopting
IE - presupposes that people enjoy regulative control. In what follows
I want to show that the specific challenge cannot work at least when decoupled from the background challenge. And while I will not consider the

^^ Notice that Walker under VW can avoid the harm by acting differently, even if he cannot make an informed choice about it. Should the cost of the avoidance burden exceed that
of the harm one is trying to avoid, we should consider the latter cost. Similarly, should a
policy render coming to harm entirely independent of one's actions, we would need to
equate the cost of the avoidance burden with that of the inevitable harm. I am grateful to
an anonymous referee for pointing out ambiguities in the earlier version of my argument
here.
2' The background assumptions are that it is not very costly for Curious to stay at home
and that the cost of not satisfying her curiosity is negligible; she won't suffer independent
harm or psychological trauma.
^8 I am not claiming that people can never permissibly impose severe burdens on others
in pursuit of something trivial (they can, for example, close short-cuts through their land
even when this imposes a severe burden on others). I am suggesting that insofar as a person
is not already entitled to perform some action on other grounds (say because she owns some
property), she is not entitled to impose severe burdens for some slight benefit to her. 1 am
also not claiming that it is impermissible to impose small burdens on others (say, making
them inhale air that will cause two weeks of coughing) in pursuit of something trivial.

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background challenge, and will not show that it fails, I think that accepting
it would be a pyrrhic victory: it would mean giving up on the whole project
of normative theory.
How does the specific challenge work? It argues that the fact of IE
imposing a light avoidance burden on Curious is irrelevant to policy selection. If the causal thesis is true, it points out. Curious cannot (choose to)
avoid harm and it is, therefore, beside the point that taking up this option
requires only a trivial sacrifice. What matters are only the actual outcomes
that befall people, not the costs of options that they could not have ultimately chosen. And since the outcomes are equally harmful under each
policy we should see them as equally (dis)valuable. We lose our reason to
adopt IE over VW.
But, notice, in response tbat we could grant that both policies are equally
(dis)valuable without granting, however, that this renders irrelevant the
fact that they come with different avoidance burdens. To explain why, let
me appeal to the fact that choice has two features that are potentially relevant to policy selection, and only one of them is rendered irrelevant by the
causal thesis. The first feature of choice is that choice-bearers potentially
enjoy some control over tbe outcomes that are accessible to them. The
causal thesis blocks tbis feature of choice, which is why being granted
choice is not valuable to Curious. The second feature of choice is that
choice-bearers are placed in a situation in which their actions reflect their
preferences (includingjudgments, reasons, reactions, and attitudes) for the
selected option over the alternative that was also, even if only nominally,
open to them. I will argue below tbat this feature of choice is not blocked
by the causal thesis. First, however, let me explain its relevance.
Why should the fact of choice-bearers' actions reflecting their preferences allow us to recognize avoidance burdens as relevant to policy selection? Consider,first,that it is integral to the idea of entitlements that for a
person to be entitled to something, the content of her entitlements should
not change simply because others do not accept that she is entitled to that
thing. For example, if we were trying to allocate manna from heaven
between the two of us, the mere fact that I wanted and gathered all the
manna for myself would obviously not make it the case that you are not
entitled to any. More generally, people do not lose what they are entitled to
simply because others fail to accord due weight to their interests, privileging their own instead. This simple thought has an implication: we cannot
select entitlement-allocating policies simply by comparing the harmful
outcomes that would actually materialize under each. This is because the
reason why some harmful outcomes materialize in the first place may be

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503

tbat people act without due regard for the interests of otbers. When this is
tbe case we need to make sure that tbe policies we adopt in response - say,
offering costly protection - do not sanction such mistreatment by imposing severe harms or burdens tbat eat into tbe entitlements of those wbose
interests were disregarded. Tbis means tbat we must consider not only tbe
harmful outcomes of eacb policy but also tbe avoidance burdens and wby
they were not taken. Tbe avoidance burdens matter not because tbey are
genuinely open but because if tbey are trivial or reasonable, then tbe fact
tbat tbey were not pursued may be due to preferences tbat ought not to be
allowed to impose higb costs on otbers.^^
Returning to tbe policy dilemma, I want to suggest tbat tbe above
analysis shows wby we may bave a reason to select IE over VW. To see
wby, we will need to consider Curious' motives (preferences) beyond
tbe fact tbat sbe is curious but prefers not to come to barm. Tbis is not
an arbitrary revision of tbe scenario; my claim is tbat our intuitions
regarding policy selection do and sbould be sensitive to these additional
considerations.
Consider, then, first, tbe easier case, in wbicb Curious knows tbat tbe
true cost of offering ber vivid warning is severe barm to Walker's bealtb (or
tbe burden of verifying air quality at every step). Tbe cost to Walker of
adopting VW is very bigb, then, but Curious could respond - in line witb
the specific challenge - tbat preferring IE for tbis reason is, nonetheless,
unacceptable because tbe benefit to ber of baving a vivid warning is hardly
trivial - it is tbe avoidance of severe barm, so botb policies are tied. But tbis
response sbould be rejected. For if Curious' actions are guided by her preferences, and if sbe is aware of tbe advantages and disadvantages of eacb
policy, tben tbe reason wby a dry warning of tbe IE does not suffice to steer
her away from barm is tbat sbe does not accord due weigbt to Walker's
interests. Wby? Because if sbe did accord due weigbt, she would eitber follow tbe dry warning (eliminating tbe need for VW), or sbe would go on to
satisfy her curiosity only if tbis did not trigger beavy costs for Walker.
Otberwise sbe ignores tbe cost to Walker for no good reason. And if entitlements sbould not be altered simply because otbers fafl to accord due weight
to tbe interests of others, tben tbe fact tbat Curious is not moved by a mere
dry warning to stay clear of tbe barm sbe does not wish to bear, despite
knowing tbe bigb costs to Walker of protecting her better, undermines her

29 Notice that Walker who lacks options may also act on inappropriate preferences but
he is entitled to act as he does, given his avoidance burden.

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Z. Stemplowska /Journal of Moral Philosophy 10 {2013) 488-507

case for VW. VW is only called for because Curious is unwilling to act with
due concern for Walker, but such choices should not be accommodated at
Walker's expense.
Assume next that Curious does not know what policy dilemmas and
costs are triggered by her willingness to satisfy her curiosity. Still, under IE
she is informed of the danger of contamination. If she is unmoved by this
to stay out of danger, what can we say about her treatment of others? This
case is more complicated. It seems that Curious' choice to ignore the warning does not amount to a mistreatment of others if she has a good reason to
mistrust the (dry) warning, or to think that no one else will bear heavy
costs, or that she is acting on an interest that is important enough to justify
burdening others in an effort to stop her coming to harm. But if, instead,
she ignores the warning simply because she is curious and does not care
about possible costs to others of keeping her safe, then she is, even now,
acting without due regard for the interests of others. That is, acting in ignorance of the consequences is inappropriate if one lacks excusing reasons
like those mentioned above. In this case, VW would be needed only because
of Curious' unwillingness to act with due concern for others, which counts
against the policy.
My account satisfies the intuitive constraint only in the subset of cases
in which Curious' actions can be understood to show lack of due concern
for Walker's interests. But perhaps a view that can meet the intuitive constraint only in some cases is not, in the end, problematic. If Curious'
response to (dry) warnings does reflect a reasonable grasp of everyone's
entitlements, and given that she has no regulative control over her actions,
it is not obvious that we should prefer the policy that will pile the harm on
her. Similarly, if Curious had a good reason to mistrust the (dry) warning,
then it is not even obvious that we should see her as genuinely informed
under IE. Moreover, I have tried to suggest above that such cases are more
frequent than it might at first appear. They can arise even if Curious does
not have a perfect grasp of her situation. In fact we may speculate that
often, when people are aware of limited public resources and the state's
duty of care, it is reasonable for them to consider how costly their exposure
to danger might be for others.^"

a" For example, in Britain compensation has been required for rescue operations triggered by 'daredevil' conduct, in part on account of tbe opportunity cost of rescuing otbers.
BBC News, 'Britannia Bridge "jump" pair sparked air-sea rescue,' 22.06.2010 [v*rww.bbc.co.uk/
news/10372995]. For discussion of the related issue of when to ask people to bear the costs

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505

It could seem philosophically odd, however, that my account cannot


recommend selecting IE if Curious is prepared to bear the harm she
exposes herself to (since VW can no longer be seen as an accommodation
of her disregard for the interests of others). This might appear paradoxical:
when Curious herself prefers IE, we lose our reason to prefer it to VW. But
there is no problem here. True, since Curious' actions are not meant to
burden others, we need not worry that adopting VW accommodates mistreatment of others. Nonetheless, were we to select VW, Curious' preferences would, as a matter of fact, impose high costs on Walker. And since
this is something that, by assumption. Curious does not want (and nor
does Walker) this offers us a consent-based reason to opt for IE. Of course
- as Scanlon has argued - the mere fact that someone accepts some cost to
herself does not settle where this cost ought to fall.^' But it might perhaps
act as a tiebreak when there are no other relevant policy differences. Even
if it cannot, we can still point out that over time Curious' preference to
shield Walker from costs while exposing herself to danger would prove
unstable once updated in the light of evidence. So even if initially we lack
a reason to opt for IE, we can acquire one simply by informing Curious of
the true costs.^^
Let me,finally,return to the causal thesis. It might be objected that it
eliminates the ability of agents to act on their preferences: if actions are
externally caused, then they do not stem from agents' preferences. But why
not? As Scanlon has argued, the fact that someone cannot choose otherwise does not entail that what she chooses does not stem from her preferences.^^ All the PC view requires is a shallow notion of causation, one that
would attribute causal effectiveness to the keys on my keyboard for producing letters on my computer screen. Similarly, even if I cannot choose my 1"
order and 2"'' order preferences -just as the keys cannot choose what letters they will trigger - the fact that I regularly listen to Chopin can be seen
as caused by my preferences. It might be objected that a deeper notion
of causation is necessary to establish substantive responsibility; shallow
causation does not make the keyboard keys responsible for the letters that

of their conduct, see Zofia Stemplowska, 'Makingjustice Sensitive to Responsibility,' Political


Studies 57 (2009): 237-59.
^' T.M. Scanlon, The Difficulty of Tolerance, Cambridge University Press 2003, 266. Cf
Keith Hyams, 'When Consent Doesn't Work,' Journal of Moral Philosophy 8 (2011): 110-138.
This can be seen as a consent feature of choice.
'^ lam grateful to an anonymous referee to pressing me to clarify the limits of my account
33 Scanlon, WWO, 267-90, esp. 281-2. Indeed this is why choice has representative value.

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they trigger. But then keyboard key movements do not reflect any preferences. If they did and if their choices had the power to alter what others
end up with, this would give us a reason to worry if our policy responses, in
accommodating their actions, end up making a mockery of the entitlements of others.
Of course, since we know so little about humans, we cannot be certain
that preferences have any causal role in guiding action, but my claim is not
that they do but that the truth of the causal thesis is compatible with
assuming the existence of such a causal mechanism (alongside other
mechanisms that can trigger compulsive or automatic behavior). And since
the existence of the relevant mechanism seems plausible in its own right,
we can include the condition that people's actions stem from their preferences among the set of conditions necessary for choice to bear on the
policy dilemma. As advertised in the introduction, I am, after all, not
trying to establish that the presence of choice will always weigh in favor
of the choice-granting policy but only that it can do so, under certain
conditions.
In summary, then, my main claim is that the causal thesis blocks only
one consideration in favor of IE, but leaves another in place. It blocks
appeals to the fact that IE offers Curious a more valuable choice than VW
offers to Walker, since Curious can choose to escape the harm while Walker
cannot. If the causal thesis is true, neither can choose to escape the harm.
However, it leaves in place the consideration that Curious does not have a
claim to a better choice for herself, at Walker's expense, than the one IE
already offers her, if the reason why a better choice is necessary to protect
her is that she fails to accord due weight to the interests of others. Put more
precisely, the presence of choice counts in favor of the policy that grants it
(i) when the policy's failure to better protect the choice-bearers arises
because the choice-bearers do not accord due weight to the interests of
others and (ii) on the grounds that the failure to accord due weight to the
interests of others should not affect people's entitlements.

5. Conclusion
Being offered a choice regarding some outcomes does not mean that
enough has been done for the person in question. Often the choice-bearers
can object that their choices were inadequate. Nonetheless, being offered a
choice can sometimes make it the case that a person will have no valid
complaint against outcomes that arise, even when the choice in question

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507

does not protect from harm. Scanlon has argued that there is instrumental
value in being offered choice even if it leads to bad outcomes, provided that
being granted it would in general make better outcomes more likely.
However, as Voorhoeve has pointed out, this answer does not explain why
it sometimes seems preferable to opt for policies that offer choices that
make better outcomes less likely than had no choice been offered.
Voorhoeve's own solution to this problem was to focus on the potential
value of choice, but this response seems plausible only if we put aside
Scanlon's concern to make the account of the significance of choice
immune to the threat of the causal thesis.
I have attempted to offer an answer to the problem identified by
Voorhoeve within the constraint set by Scanlon. The presence of choice
counts in favor of the policy that offers it when scrapping the choice would
protect conduct that mistreats others (because the person imposes or is
prepared to impose severe burdens on others for a trivial benefit for herself). This account of the significance of choice is an addition to, rather
than a substitute for, Scanlon's value of choice view. And it builds on
Scanlon's insight that choice can have representative value. That choices
can represent choice-bearers may be of value but it also matters because
when choices reflect one's disregard for others, they should not be accommodated with policies that make them costleiss to the choosers at a heavy
expense to those whose interests have been disregarded.

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