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Otsuka’s left-libertarianism and the abandonment
objection
Abstract
In this paper I argue that Michael Otsuka’s left-libertarian theory of
distributive justice allows uninsured drivers involved in accidents,
for which they are responsible, to be left by the side of the road
unaided, even if they will die without assistance; Otsuka cannot
follow the strategies to preclude such abandonment that have been
utilised by luck egalitarians to answer the charge that they permitthe abandonment of uninsured drivers. Otsuka’s theory, as
presented in Libertarianism without Inequality , distributes worldly
resources to provide individuals with opportunities for welfare and
not to provide individuals with outcomes—such as fulfilling
individuals’ basic needs in all but extreme circumstances. The only
conditions on what individuals’ can do with themselves and their
resources are prohibitions that prevent individuals from utilisingresources in a way that upsets the pattern of distribution in line with
equality of opportunity for welfare, and prevents them from
breaching others’ robust libertarian self-ownership rights. But, if
individuals may do anything with themselves and their resources, so
long as they do not upset equality of opportunity for welfare and
individuals’ possession of robust libertarian self-ownership rights,
and if individuals’ are only ensured opportunities and not outcomes,then Otsuka’s theory permits the abandonment of uninsured
drivers. Luck egalitarians preclude such abandonment in three
distinct manners: through paternalistically forcing individuals to
take out insurance, through forcing individuals to insure on the basis
that their failure to do so will impose costs on others, and through
making the abandonment of individuals impermissible by appeal to
a value other than equality, or to another egalitarian value. I arguethat forcing individuals to take out insurance in order to preclude
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abandonment on the basis of the costs otherwise imposed on others
or on paternalistic grounds is in direct conflict with Otsuka’s theory,
and that so is any strategy of precluding abandonment by appeal to
other values—such as basic human needs or another conception of equality. I conclude that Otsuka must either modify his theory in
order to preclude abandonment or hold that justice and equality do
not require that uninsured drivers be given medical attention, even
if they will die without it, after they are involved in accidents which
they are responsible for.
1. Introduction
This paper is inspired by a concern that although Michael Otsuka’s
left-libertarian theory of distributive justice is deeply attractive, it
may have consequences that detract from its allure, and/or that do
not cohere with our intuitions; that give us reasons to reject his
theory. In the following I present one reason to reject Otsuka’s left-
libertarianism. I argue that Otsuka’s theory leads to the
permissibility of the abandonment of uninsured drivers by
emergency services; that is, the permissibility of leaving drivers who
are involved in car crashes but have no medical insurance to suffer
and even die without medical attention. The wealth of discussion
of, and responses to, the abandonment objection demonstrates that
many hold the intuition that a just and/or egalitarian society should
not permit the abandonment of uninsured drivers1. But I do not
here argue that the intuition that uninsured drivers should not be
abandoned is an intuition that should lead us to reject a theory that
permits such abandonment. Instead, I argue that those who hold
that it is always impermissible for uninsured drivers to be
abandoned by medical services have a reason to reject Otsuka’s
theory since his theory permits such abandonment. In section 2 I
1
See Segall (2007), Bou-Habib (2006), Brown (2005, pp.298-308), Knight (2005,pp.56-59) (2009, pp.136-142, pp.199-210, p.233), and Dworkin (2002, pp.114-115).
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elaborate Otsuka’s theory of distributive justice, and demonstrate
that Otsuka’s theory appears to permit abandonment. In section 3 I
elaborate three types of responses to the abandonment objection
made by luck egalitarians that show how luck egalitarians can avoidpermitting abandonment. In section 4 I argue that Otsuka cannot
preclude abandonment by utilising these strategies.
2. Otsuka’s Left-Libertarian Theory of Distributive Justice
2.1 Distribution
In the first chapter of his Libertarianism without Inequality (LWI)
Michael Otsuka elaborates the fundamentals of his theory of
distributive justice, which consists of the requirements of his
particular conceptions of two values: self-ownership and equality.
For Otsuka, equality requires that each person is distributed—or
rather distributed permission to acquire2—a particular amount of
worldly resources, varying with the opportunities for welfare persons
possess naturally and the opportunities for welfare shares of worldly
resources will provide to particular persons3. Individuals are entitled
to an ‘equally advantageous share of unowned worldly resources’4,
where Alpha’s share is as advantageous as Beta’s share if Alpha
2 In Libertarianism without Inequality (Otsuka 2003, hereafter LWI) Otsukaelaborates an ‘egalitarian proviso’ that allows the acquisition of certain resources;See LWI, p.24, see also pp.22-29 for the unfolding of the fully specified proviso.But acquisition is a very thin notion in Otsuka’s theory: in order to acquire aproperty right in worldly resources that they are permitted to acquire, Otsukastates that individuals are able to (or rather ‘ought to be able to’) publiclyproclaim those worldly resources that they have laid claim to, perhaps subject to‘the resources in question being of some use to the claim-staker, where “use” isread broadly to include the benefit one could derive from trading them forsomething else or from investing them’; See LWI p.22 n.29. Due to the thinnessof the notion of ‘acquisition’ I discuss the ‘distribution’ of resources, for the sake
of simplicity.3 See LWI pp.25-274 LWI, p.24
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‘would be able (by producing, consuming, or trading) to better
herself to the same degree’5 with her (Alpha’s) share of resources,
as Beta can better himself with his (Beta’s) resources. Better
himself/herself to the same degree is specified as meaning ‘to thesame absolute level of welfare’6. That is, Alpha’s share is as
advantageous as Beta’s share if and only if Alpha’s share allows
Alpha opportunity for the same absolute level of welfare7 as Beta
has with his share; not ‘Alpha has opportunity to obtain the same
amount of additional welfare from her share of resources, on top of
the level of welfare Alpha had before receiving her share of
resources, as the amount of additional welfare Beta can gain from
his share of resources, on top of the level of welfare Beta had before
receiving his resources’8.
The same absolute level specification demands that Alpha and
Beta be distributed vastly differential shares of resources, if, for
instance, Alpha is physically unable to engage in productive labour,
Beta is able to engage in productive labour, and Alpha and Beta are
otherwise similar. Because without such a capacity for productive
labour Alpha will ceteris paribus be unable to attain the same level
5 LWI p.276 LWI p.28, see pp.28-297 Welfare is ‘understood as the “satisfaction of the self-interested preferences thatthe individual would have after ideal deliberation while thinking clearly with fullpertinent information regarding those preferences”’; LWI p.27, quoting Arneson(1990, p.448).8 The following is an illustration of the difference between distributing equalshares that entitle individuals to equal absolute welfare and distributing equalshares that entitle individuals to equal additional welfare, in terms of the affect on
welfare levels:
Equal addit
welfarEqual a
welf
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of welfare as Beta with the same amount of worldly resources, more
worldly resources are eo ipso distributed to Alpha. The additional
resources enable Alpha to trade with Beta, and/or others, so that
Beta’s productive labour can be exchanged for Alpha’s greaterworldly resources, and it is thus possible for Alpha to attain a level
of welfare equal to that which Beta can attain.
Worldly resources are distributed to provide persons with
equality of opportunity for welfare, but the distribution of worldly
resources in line with such is limited by the requirement that all
individuals must have ‘rights over enough worldly resources to
ensure that [they] will not be forced by necessity to come to the
assistance of others in a manner involving the sacrifice of [their] life,
limb, or labour’9. This limit on differential shares of worldly
resources is one that flows from Otsuka’s concern to make
individuals’ libertarian self-ownership rights (which I elaborate in
section 2.3) robust and not merely formal; and precludes such
distributions, demanded by equality alone, as one that, for example,
on a two person desert island, provides equality of opportunity for
welfare by allowing one person to acquire the whole of the island
and thereby force the other to work for him, if without those
resources the two individuals would not be able to subsist10, even if
such a distribution were the only way to establish equality of
opportunity for welfare11. Otsuka states that the self-ownership of
the able-bodied in such a case would be merely formal since their
alternative to not working for others is to die; Otsuka is concerned
that individuals have the option to subsist without having to work
for the good of others12. Still the robustness of self-ownership will
be a merely formal notion for many, since the robustness condition
only ensures that resources are distributed to individuals so that if
they were able to engage in productive labour they would be able to
9 LWI p.3210
See LWI p.33.11 See LWI pp.31-3212 LWI pp.32-3
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subsist13.
Thus worldly resources are distributed in line with the following
two desiderata:
1. Firstly, worldly resources are distributed so that eachindividual has rights over enough worldly resources to ensure that,
if, or so long as, they are capable of productive labour, they will be
able to subsist without being forced ‘to come to the assistance of
others in a manner involving the sacrifice of [their] life, limbs or
labour’14.
2. Secondly, worldly resources are distributed to provide equality
of opportunity for welfare: Worldly resources are distributed so that
individuals are able to attain equal welfare via trading, labouring or
otherwise consuming their worldly resources15.
Otsuka provides the following ‘simple and artificial’ example of a
distribution of worldly resources that fulfils these two desiderata:
Imagine an island society divided into a large number of able-bodied
and a smaller number of disabled individuals. All the sea-front
property is divided among the disabled, and farmable land in the
interior is divided among the able-bodied. The able-bodied each
voluntarily purchase access to the beach in exchange for the provision
of food to the disabled. The result of this division of land is that the
disabled and the able-bodied are each able to better themselves to an
equal degree without anyone’s being forced to come to the assistance
of anybody else16.
2.2 Ownership Thus individuals’ shares of worldly resources are specified, but what
ownership of these shares of resources entails remains to be
understood. There are three specifications of the ownership of
worldly resources that determine what ownership of a worldly
resource means in terms of when one owns the worldly resources
13 See LWI, pp.32-33, see also pp.41-42.14
LWI p.3215 See LWI p.35, p.11, see also pp.33-35.16 LWI p.33
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one has been distributed, and what this ownership enables one to
do with a resource. First, Otsuka specifies that one may not
bequeath worldly resources17; secondly, non-market transfers or
sharings of worldly resources that significantly disrupt equality of opportunity for welfare are prohibited or regulated, unless it is
possible to compensate non-beneficiaries18; and thirdly, when one
owns worldly resources is specified by the condition that individuals’
shares of worldly resources are subject to revision: the state is
justified in engaging in ‘ex post facto adjustments to people’s initial
shares in order to achieve equality’ of opportunity for welfare19.
Thus an individual owns a worldly resource only when their owning
such a resource is consistent with the realization of equality of
opportunity for welfare. Such redistribution for the sake of equality
of opportunity for welfare is, however, only justified when
departures from equality of opportunity for welfare are not the
result of choices ‘for which individuals can be held morally
responsible’20. (I discuss which choices individuals can be held
morally responsible for in section 4.1.2.)
These three specifications of the meaning of ownership of
worldly resources are specifications that flow from the conception of
equality that specifies the amount of worldly resources individuals
are distributed, namely equality of opportunity for welfare. The
limits on what one can do with one’s worldly resources and the
specification of when one owns the resources one was distributed
are made in order that worldly resources are exclusively patterned
to provide individuals with equality of opportunity for welfare—
restricted by the requirement that all individuals must possess
robust libertarian self-ownership rights—before individuals make
choices they can be held morally responsible for.
2.3 Permissions17 LWI pp.37-3818
LWI, pp.38-3919 LWI pp.39-4020 LWI p.40
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As Otsuka’s theory stands individuals may do anything with their
shares of worldly resources, within the three specifications of their
ownership of such resources, as well as with the income they can
derive from their worldly resources
21
, and with themselves, and theincome and resources they can gain from themselves—these four
types of property individuals own I will refer to as ‘resources’ (tout
court )—so long as they do not breach others’ rights to their so
specified shares of resources, and others’ libertarian self-ownership
rights.
The following two rights of libertarian self-ownership establish
the remaining limits on that which individuals may do with their
resources, as well as establishing that individuals are entitled to the
income and resources they can gain from themselves and their
labour alone. As libertarian self-owners individuals possess,
(1) A very stringent right of control over and use of one’s mind and
body that bars others from intentionally using one as a means by forcing
one to sacrifice life, limb, or labour, where such force operates by means
of incursions or threats of incursions upon one’s mind and body (including
assault and battery and forcible arrest, detention, and imprisonment).
(2) A very stringent right to all of the income that one can gain from
one’s mind and body (including one’s labour) either on one’s own or
through unregulated and untaxed voluntary exchanges with other
individuals22.
Thus, individuals may not ‘intentionally’23 force others or threaten to
force others to perform any action, and may not rob others of the
income they gain from their mind and body alone or from their mindand body alone through transfers with others; that is, by such as
weaving one’s hair into clothes or entertaining respectively24.
If individuals may do whatever they wish with their resources
within these boundaries, if individuals are only distributed worldly
21 I have not demonstrated that individuals are entitled to all the income andresources they can derive from their shares of worldly resources, though no limitsor taxes on such income and resources are elaborated by Otsuka; I discuss this insection 4.1.4.22
LWI p.1523 See LWI pp.12-1524 See LWI pp.16-18
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resources to give them opportunities and not outcomes, and if the
redistribution of worldly resources is not provoked by changes in
individuals’ opportunities that are the result of choices that they are
morally responsible for, then it would appear that Otsuka’s theorypermits the abandonment of uninsured drivers, since individuals
may decide to, or simply fail to, take out medical insurance to cover
them in the case of an accident, thereby precluding abandonment
by the medical services, and if individuals failed to take out such
insurance, it seems that on Otsuka’s theory, no-one could
legitimately force anyone to come to these non-insurers’ aid25. In
the next section I explain how ‘luck egalitarians’, who have been
made to face this objection, the abandonment objection, have
demonstrated that they can preclude the abandonment of
uninsured drivers.
3. The Abandonment Objection
In her 1999 paper ‘What is the point of Equality?’ Elizabeth
Anderson launched a thorough attack on a group of political
philosophers that Anderson named ‘luck egalitarians’26. In one of
her objections to luck egalitarianism Anderson asks her readers to
imagine that through his own choices, and not through chance or
luck, an individual does not take out the relevant medical insurance
policies, he then
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 road27.
Anderson claims that in such a case luck egalitarians are committed
to justifying the act of abandoning the driver at the side of the road
25
See Infra note 2826 Anderson, (1999, p.290)27 Ibid. p.295.
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even if this involves his death28, because the driver is responsible
for the crash, and responsible for not taking out medical insurance29,
on luck egalitarians’ conception of responsibility30, and luck
egalitarians are committed to the position that agents may sufferthe costs of choices they are responsible for31.
Those whom Anderson dubbed luck egalitarians have
responded to the abandonment objection in three distinct ways.
Ronald Dworkin restated his commitment to compulsory insurance,
which prevents such abandonment of individuals. One of the two
justifications for such compulsory insurance that Dworkin favours is
an ‘openly paternalistic’ justification, namely that ‘a decent society
strives to protect people against major mistakes they are very likely
to regret’32. Thus, one strategy is to make insuring against
abandonment compulsory on paternalistic grounds; individuals
should be forced to use some of their resources to take out
insurance to preclude the possibility of their abandonment.
A second justification of compulsory insurance against
abandonment is made on the basis of the costs imposed on others
absent such compulsory insurance. Dworkin argues that,
when someone fails to buy any personal accident insurance, and is
28 Anderson (1999, pp.295-296) asserts that there may be ‘sound policy reasonsfor not making snap judgments of personal responsibility at the scene of anemergency’, and thus luck egalitarians may not abandon individuals by the sideof the road but rather turn off individuals’ medical equipment and aids that areessential for their survival once they are in the hospital. I do not use thisqualification of Anderson’s, regarding the fact that individuals may be rescuedfrom the side of the road due to policy considerations, for the sake of simplicity,
and because it seems to me that Otsuka will permit the abandonment of uninsured drivers by the side of the road as well as in hospitals. He will permitsuch because there may be a multiplicity of emergency services in the societiesthat exist within his utopian ‘Lockean archipelago’ (LWI p.117), and if theseemergency services cannot be forced to come to the aid of anyone, except thosethey have engaged in contracts with, then emergency medical services may welloperate that only help their clients; perhaps such emergency services will onlyrespond to, or administer help to, the drivers and passengers of cars that areregistered with them, for example.29 If the uninsured driver is not responsible for the crash he might be owedcompensation from the other driver. For simplicity I thus, throughout this paper,consider uninsured drivers who are responsible for both the crash and for notinsuring.30
See Anderson (1999, p.291)31 Ibid. p.29132 Dworkin (2002, p.114)
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therefore unable to afford medical care when needed, costs are borne
by the rest of the community, including employers and dependents,
that are not internal to his decision33.
Thus a second strategy of response to the abandonment objection is
to force individuals to use their resources to take out medical
insurance that will preclude their abandonment based on the costs
their failing to do so would impose on others. However, in order to
claim that if individuals do not take out insurance, then costs will be
imposed on others, Dworkin must hold that individuals cannot waive
their right to receive medical care in advance. There needs to be an
argument for why individuals must always be provided with medical
assistance, even if they wish to waive their rights to this assistance,
and why they should be made to pay for the cost of such assistance
in advance, even if they would rather have waived their rights to
assistance and not paid for the costs of such assistance (in the form
of insurance) in advance34.
Bou-Habib attempts to make such argument, claiming that
that compulsory insurance is justified because of the moral costs
imposed on others in such cases as that of an uninsured driver
being involved in a car crash. Bou-Habib argues that there is a
moral duty to preserve autonomy that cannot be negated by a
person, whose autonomy we have a duty to preserve, declaring that
we are excused from this duty35. That is, there is an unconditional
moral duty to preserve autonomy, and those who do not take out
insurance against abandonment therefore impose either moral costs
or financial costs on others because the unconditional duty to
preserve autonomy entails that a person who knows of a potential
abandonment has an unconditional moral duty to prevent the
abandonment of an individual36; at least as long as the costs of such
are not ‘prohibitively high’37.
33 Ibid.34 Bou-Habib (2006, p.258)35
Ibid. pp.260-26136 Ibid. p.253, p.26137 Ibid. p..254
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A third response to the abandonment objection has been to
affirm a form of value pluralism about justice and/or equality38.
Such responses assert that luck egalitarianism must be combined
with other values and/or other egalitarian values in order to arrive atan adequate theory of justice, and that such a theory precludes
abandonment. Brown claims that a ‘moderate luck egalitarian’ who
does not hold that luck egalitarianism is the only egalitarian value
pertinent to justice can respond to the abandonment objection by
arguing for a pluralistic approach to equality that combines luck
egalitarianism with Anderson’s Democratic Equality, which
precludes abandonment since it demands that individuals are
ensured a basic set of capabilities39. Carl Knight argues that a
pluralistic approach to justice can answer the abandonment
objection, asserting that the most attractive form of such a
pluralistic approach involving luck egalitarianism as one of a
plurality of values is ‘luck egalitarianism plus utilitarianism plus
basic needs’, since this approach ensures basic needs are met
except for when doing so (for a particular individual) is crippling for
the welfare of sufficiently many others40.
In the following section I argue that Otsuka’s left-libertarian
theory of justice cannot preclude the abandonment of uninsured
drivers by utilising either the paternalistic, costs-based, or pluralistic
strategies that luck egalitarians have used to answer the
abandonment objection.
4. Otsuka’s theory and the abandonment objection
4.1 Precluding abandonment via resource red istribution or taxation
4.1.1 The taxation of income and resources derived from one’s self
alone
At the end of section 2 I concluded that if individuals could do38 Brown (2005, pp.328-332); Knight (2009, pp.199-223)39
Brown (2005, pp.307-308). See Barry (2006, p.100) and Segall, (2007, p.197)for similar proposals to preclude abandonment.40 Knight (2009, p.222)
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whatever they wished with their resources within the boundaries
Otsuka sets out in his theory, then the abandonment of uninsured
drivers is permitted by Otsuka, since individuals may decide to, or
simply fail to, insure against abandonment, and no-one could belegitimately forced to rescue them from abandonment.
In order to preclude the abandonment of uninsured drivers
Otsuka would have to hold at least one of the following:
i) Another egalitarian value, or some other value pertinent to
justice, demands that individuals’ deaths be prevented or basic
needs be provided for via redistribution of worldly resources or
taxation and redistribution of other resources.
ii) Individuals may not do as they wish with their resources
within the boundaries set out in section 2.
iii) Individuals are to be forced to come to the aid of others
when those other individuals would be otherwise abandoned
The third position is straightforwardly ruled out by Otsuka’s
commitment to libertarian self-ownership rights, since individuals’
libertarian self-ownership rights prevent them from being
intentionally forced to aid others41 (see section 2.3). The first
position leads to an answer to the abandonment objection of the
third kind elaborated in the previous section: a pluralist response.
Whilst the second position, with the relevant justification added,
leads to an answer to the abandonment objection of the first or
second kind elaborated in the previous section: a paternalistic or
costs-based response.
I begin by assessing whether the first position, that another
value demands that individuals’ deaths by abandonment be
prevented by taxation or worldly resource redistribution, is held by
Otsuka, or can be held consistent with his theory. If Otsuka held
this position, he would be holding that equality of opportunity for
welfare is not the only egalitarian value, or that equality and the
robustness of libertarian self-ownership rights are not the only
41 LWI p.15
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values, that are relevant to distributive justice. From certain parts
of his work it may seem that Otsuka does hold such a position. In
discussing the case of an individual who weaves a wardrobe of
clothes out of her hair alone, and thus does not use worldlyresources at all to make these clothes, Otsuka asserts that a
reasonable case might be made that equality requires the
imposition of a luxury income tax on such resources, if this income
tax were both necessary and sufficient to prevent another individual
from freezing to death:
In order to rebut the libertarian’s objection to taxation in this instance,
the egalitarian must hold either that the weaver does not possess a
libertarian right of self-ownership or that this right is not as stringent
as the libertarian thinks it is and may justifiably be infringed in these
circumstances. But this is to acknowledge that if there is such a thing
as a libertarian right of self-ownership, then it comes into conflict with
equality in these circumstances. If the imposition of a luxury income
tax on the weaver were both necessary and sufficient to prevent
another human being from freezing to death, opponents of
libertarianism could justifiably hold that only an unreasonably fanaticaldevotee of a right of self-ownership could insist that such a right is so
stringent that it rules out the imposition of this tax42.
I can only read this passage as suggesting that though such a
tax may be justified all things considered, if such a tax is required,
then the libertarian self-ownership rights that Otsuka upholds have
been given up. In these circumstances Otsuka might be of the
position that libertarian self-ownership rights should drop away, but
then his left-libertarian theory seems to have dropped away, since
his theory is based on the self-ownership and world-ownership rights
of individuals. Otsuka does not argue for a ‘full’ right of self-
ownership, instead Otsuka’s libertarian self-ownership rights permit
certain unintentional incursions on individuals; these unintentional
incursions on individuals are not incursions on Otsuka’s libertarian
self-ownership rights, rather libertarian self-ownership does not
42 LWI p.19
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entitle one to freedom from unintentional incursions on one’s self 43.
But Otsuka’s libertarian right of self-ownership is not further
qualified as Otsuka develops his theory so that not only
unintentional incursions are not included in it, but also incursions onthe sole products of one’s labour are permitted when such
incursions (taxes) are necessary and sufficient to preclude another
individual’s death.
The case for this tax is also only mentioned again during another
of Otsuka’s proposals44, that when the preferences of the able-
bodied are not so felicitous as to ensure that the disabled’s basic
needs will be provided for—that is, if the able-bodied would prefer to
merely live at subsistence level than to let the disabled, who are not
capable of productive labour, benefit in any way from their labour,
including benefiting by surviving45—then the unjust may be taxed to
provide for the disabled’s basic needs46. This proposal ensures that
the basic needs of the disabled will be met unless the able-bodied
do not have preferences for more worldly resources than enable
them to subsist47 and there are no, or insufficient, unjust individuals.
In this extremely unlikely circumstance Otsuka seems to believe
that breaching libertarian rights of self-ownership is justified48. But
the disabled for whom Otsuka justifies the taxation of the unjust are
a particular segment of the disabled: ‘through no fault of theirs,
they lack the ability to engage in productive labour’49. This makes
the case for the provision of such disabled individuals’ basic needs a
special case since such disabled individuals are clearly not morally
responsible for the preferences of the able-bodied who fail to
provide them with their basic needs, and nor are they responsible
for their disabilities, which preclude them from engaging in
productive labour.
43 See LWI pp.12-1544 See LWI p.42 n.145 See LWI pp.32-3546 See LWI pp.41-4247
LWI p.3348 See Otsuka (2006b, pp.6-7).49 LWI p.41
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In the passage legitimising taxation to prevent starvation,
quoted above, Otsuka does not specify whether the individual who
would be prevented from starving via the imposition of a luxury
income tax on others, which Otsuka appears to justify, isresponsible for his plight. But since Otsuka only mentions the
justifiability of this tax again when discussing the taxation of the
unjust for the sake of providing for disabled individuals who are not
responsible for their disability it might be thought that Otsuka
means to only justify such a tax when the individual who will benefit
from the tax is not responsible for his plight. I believe this is the
case since Otsuka also asserts, without qualification, that
it would not be proper for the state to level differences that arise from
choices for which individuals can be held morally responsible so long
as these choices are made against a background of property rights
that ensure equality of opportunity for welfare50.
Otsuka’s concern to justify the taxation of the unjust solely for
the sake of providing for the basic needs of those disabled
individuals who are not responsible for their disability51, his concern
to demonstrate that ‘as a contingent fact’52 libertarian self-
ownership and equality of opportunity for welfare will be compatible
due to the ‘ordinary preferences for material resources among the
able-bodied’53, and that he does not mention the case for this tax
after demonstrating the extremely likely provision of the basic
needs of the disabled via the preferences of the able-bodied and the
taxation of the unjust, further leads me to believe that Otsuka only
believes that such a tax, which breaches self-ownership, is justified
when the individuals whose basic needs are at issue are not
responsible for their condition. It does not seem that Otsuka would
give up his theory’s reconciliation of self-ownership and equality54
and justify a tax on the products of individuals’ labour alone to fulfil
50 LWI p.4051 LWI ch.252
LWI p.11, p.3353 LWI p.3354 See LWI p.11, pp.32-33
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the basic needs of individuals who are responsible for their basic
needs not being fulfilled.
4.1.2 Responsibility If such a tax to benefit those responsible for their plight is not
justified by Otsuka, as I am arguing, and if uninsured drivers are
responsible for their plight, then Otsuka does not justify such a tax
to preclude the abandonment of uninsured drivers. Otsuka does
not, however, clearly state that individuals who choose to use their
resources in certain ways are thus responsible for their choices; it is
not perfectly clear on Otsuka’s theory that those who choose not to
insure against abandonment are cast as morally responsible for that
choice.
Elsewhere in his theory of justice, however, Otsuka asserts
that so long as individuals are capable of productive labour,
provided with a background of opportunities for welfare—by which
he means the distribution elaborated in section 2.1 and 2.2—and
provided with adequate opportunity to learn to reason in a
minimally sufficient manner and to develop sufficient choice-making
abilities55, individuals can be held morally responsible for their
choices56. Once these conditions are fulfilled Otsuka asserts that
individuals’ choices to enter into voluntary agreements of whatever
form should be respected57; though he does not claim that they
ought to be enforced, but that they may permissibly be enforced.
Thus it seems individuals are held responsible by Otsuka’s theory of
justice, even if Otsuka does not cast individuals as morally
responsible for their choices. Once the above conditions are fulfilled
Otsuka’s theory grants that an individual may even gamble away
his freedom; that is enter into agreements that, if certain outcomes
obtain, will transfer his rights to himself over to another (enter him
55 See LWI p.120, p.126. See also section 4.2.1 below.56
So long as they have a sufficient range of choices; see LWI pp.103-104; this is of no consequence presently.57 LWI p.126
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into non-hereditary slavery)58. Individuals’ freedom is not
redistributed to them in these circumstances, and thus they seem to
be held responsible for their choices.
However, it might be held that though Otsuka will notredistribute an individual’s freedom to him if he gambles with it this
does not mean that he will not redistribute resources to an
individual if he gambles with them, and loses, if redistributing the
amount of resources to an individual, that he loses, would be
necessary and sufficient to keep an individual from dying. Such an
argument would depend on Otsuka not legitimising gambling with
one’s life, though he legitimises gambling with one’s freedom. But
such a response would not succeed because Otsuka does legitimise
gambling with ones life; Otsuka legitimises such as ‘entering into an
agreement to be subjected to a low chance of being seized against
[one’s] will and killed as the price to be paid for the elimination of a
much higher chance of being killed’59, and does not assert that in
such circumstances these agreements should become void, but
instead that in such circumstances it is permissible that such an
individual is killed60.
Furthermore, it seems that individuals who have been given
such opportunities are considered morally responsible by Otsuka,
since otherwise why would he stipulate without further elaboration
that differences in the opportunities worldly resources provide
individuals that are the result of the choices of those who are to be
held responsible for the choices they make ‘against a background of
property rights that ensure equality of opportunity for welfare’ do
not motivate worldly resource redistribution61? I thus presume that
individuals who have been presented with sufficient opportunities
via resources, education, and endowment to engage in productive
labour, and choose to use these opportunities in a particular way
are eo ipso morally responsible for such choices. If this is the case,58 LWI p.124, pp.116-11859
Otsuka (2006, p.331)60 This is implicit in Otsuka’s discussion at Ibid. pp.330-331.61 LWI p.40
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uninsured drivers who are uninsured due to their own choices are
considered morally responsible for being uninsured by Otsuka’s
theory.
4.1.3 The redistribution of worldly resources
But could worldly resources be redistributed to preclude
abandonment consistent with Otsuka’s theory? They cannot for the
redistribution of worldly resources to those who have already been
distributed an equal share and no longer possess that equal share
due to choices they can be held morally responsible for is in conflict
with the distribution of worldly resources Otsuka espouses.
Individuals distributed further resources to (such as) prevent
abandonment would be given a greater share of worldly resources
than equality of opportunity for welfare requires on Otsuka’s theory,
and thus worldly resources would not be distributed in line with
equality of opportunity for welfare if such a distribution obtained;
and when worldly resources are not distributed in line with equality
of opportunity for welfare Otsuka’s theory demands redistribution in
order that worldly resources are exclusively patterned to provide
individuals with equality of opportunity for welfare—limited by the
requirements of robust libertarian self-ownership rights—before
individuals make choices they can be held morally responsible for
(see section 2.2 and 2.3)62. Thus Otsuka’s theory cannot be
extended to prevent abandonment by the redistribution of worldly
resources without such an extension conflicting with the explicit
demands of his existing theory.
4.1.4 Taxation of income derived from worldly resources
Perhaps, however, the income and resources individuals gain from
their worldly resources could be taxed and transferred to those
responsible for their basic needs not being met, such as uninsured
drivers. But this seems to be exactly what Otsuka is attempting to
62 LWI pp.39-40
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avoid by stipulating the equal shares of worldly resources he does,
and specifying what ownership of worldly resources means as he
does. Before specifying how equality of opportunity for welfare
requires worldly resources to be distributed and what the ownershipof worldly resources entails, Otsuka distinguishes two different
models of worldly resource ownership: On one model,
we can come to own any bit of land or other worldly resource only on
the condition that we share some of whatever we reap from it with
others;
On an alternative model,
we might be entitled to acquire rights of ownership over land and
other worldly resources that are as full as the libertarian right of self-
ownership. But this entitlement might only extend to such acquisition
as is consistent with the realization of equality63.
It seems clear that the latter type of entitlement is found in the
resource distribution Otsuka espouses (sections 2.1 and 2.2), since
what worldly resources an individual can come to own and what his
owning those worldly resources entails is explicitly specified and
curtailed by Otsuka’s favoured conception of equality; and Otsukadoes not establish limits on what one may do with that which one
reaps from one’s worldly resources. If this is so, then taxation on
income or resources derived from worldly resources would
contravene the conditions of the ownership of worldly resources
propounded by Otsuka, and so Otsuka’s theory could not be
extended to prevent abandonment via such a tax without such an
extension conflicting with the demands of his existing theory,namely that individuals are entitled to all they can gain from their
shares of worldly resources so long as they are entitled to own their
shares of worldly resources.
Furthermore, the case that Otsuka’s theory would legitimise
such a tax to rectify the condition of individuals responsible for their
basic needs not being catered for seems weak. As I have already
made clear, Otsuka explicitly does not believe that it would be right63 LWI pp.21-22
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for the state to level differences that arise from choices for which
individuals can be held morally responsible64, and advocating
taxation of the income and resources individuals derive from their
worldly resources for the sake of ensuring the basic needs of uninsured drivers, who are responsible for their choices not to
insure, would be such a state action that Otsuka does not believe to
be justified. Furthermore, as I argued in sections 4.1.1 and 4.1.2
the only time basic needs are considered in Otsuka’s theory they
overwhelmingly seem to be the basic needs of those not responsible
for their basic needs not being met; whilst Otsuka explicitly states
that once certain opportunities are secured for individuals nothing
more is owed to them on his left-libertarian theory of justice65. I
thus conclude with reasonable certainty that resource redistribution
or taxation to preclude the abandonment of uninsured drivers is not
demanded by Otsuka’s theory and cannot be demanded consistent
with Otsuka’s theory as it stands.
4.2 Precluding abandonment via constraining resource use
4.2.1 The paternalistic strategy
The second strategy to preclude abandonment involves constraining
how individuals may use their resources by forcing individuals to
take out insurance against abandonment. It might be argued that it
is perfectly consistent with Otsuka’s theory that individuals be
paternalistically forced to take out insurance to preclude their
abandonment because it is better for them to takeout insurance and
not be abandoned. It might even be argued that there is textual
support for such a paternalistic policy to be found within Otsuka’s
theory, since Otsuka asserts that equality demands that individuals
be able to make ‘free, rational, and informed choices’66. It might be
argued that imprudent non-insurers do not make such free, rational,
64
LWI p.4065 See LWI p.12666 LWI p.120, p.126
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and informed choices and so are legitimately precluded by
guardians such as the state, or an agent of the state, from making
such irrational, imprudent choices.
But Otsuka’s insistence that persons be able to make free,rational, and informed choices is not the insistence that persons be
helped to make the choice that would be most rational given all the
relevant information by being forced to make that and only that
choice. Rather what is meant by a ‘free, rational, and informed
choice’ is merely that a choice is made in knowledge of many
possibilities that include a choice to have one’s claim to an equally
advantageous share of worldly resources and non-interference with
one’s person simply fulfilled67, that such a choice is made with
sufficient, not epistemically complete, knowledge of one’s options,
and made with minimally knowledgeable and skillful reasoning
ability68—parents have an obligation to provide children with
schooling sufficient to give individuals the opportunity to develop
such ‘skills, capacities, and knowledge’69.
Furthermore, Otsuka argues that when individuals make choices
that fulfil the above desiderata these choices should be respected,
and that ensuring that individuals have these capabilities fulfilled,
and these opportunities provided to them, and respecting
individuals’ subsequent choices (once they have been provided with
these capacities and opportunities) is how his left-libertarian theory
of justice treats individuals with equal concern70. Among these
choices that Otsuka asserts are to be respected, and thus whose
consequences are to be permitted, are an individual’s selling
himself into non-hereditary slavery71, and an individual’s putting
himself at risk of his intentional killing72. And Otsuka clearly and
generally states his commitment to the libertarian ‘anti-paternalism’
67 LWI p.11468 LWI p.12069 LWI p.12070
LWI p.12671 LWI p.124, pp.116-11872 Otsuka (2006, p.331)
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and ‘anti-moralism’ that seems implicit in the previous arguments,
and rules out such constraining of individuals’ use of resources73.
Thus the paternalistic strategy would appear to be in conflict with Otsuka’s
theory.
4.2.2 The costs strategy
But perhaps an argument from the costs that uninsured drivers
impose on others could justify compulsory insurance consistent with
Otsuka’s theory. This is clearly not the case. In Otsuka’s theory
individuals are not entitled to be prevented from suffering any costs
other than those that are direct by-products of breaches of their
rights to themselves, their worldly resources, and the resources
they can derive from each; and nor must individuals be prevented
from causing others to suffer costs, other than those costs involved
in rights violations. Persons are entitled to subsist as such, with
only these rights fulfilled74, but they are entitled to no more than
this. Individuals may voluntarily enter into societies and
agreements in which they are prevented from acting in a way that
will cause additional costs, and/or may enter societies where they
must pay into a compulsory insurance scheme to avoid other costs
being suffered by others, or in which individuals will come to their
aid to prevent their abandonment whatever they do. But individuals
are also at liberty to not enter such a society or such an agreement,
and to impose such costs on others. Individuals are thus free to
expose themselves to the risk of being abandoned by the side of the
road, and individuals are free to leave them there. Holding
otherwise would alter the very baseline of equality that Otsuka
guarantees individuals and the voluntarism Otsuka justifies beyond
this75.
73 LWI p.2; Otsuka (2006a pp.1-2) See also LWI ch.6, esp. p.123.74 See LWI p.33, see also LWI pp.99-10075 It might be thought that Otsuka does not have to preclude the possibility of abandonment but only contingently preclude abandonment, in the same manner
that he demonstrates that assuming normal preferences among the able-bodiedthe disabled will be contingently provided for. However, there are severaldifferences between contingently ensuring equality of opportunity for welfare for
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5. Conclusion
I thus conclude that Otsuka’s theory as it stands permits the
abandonment of uninsured drivers, and that in order for Otsuka toensure that uninsured drivers are not abandoned Otsuka would
have to significantly modify his theory by either adding another
value by which resources are to be distributed and/or redistributed,
or by forcing individuals to do certain things with themselves or
their resources. Thus, Otsuka must either modify his theory, or hold
a theory that many will object to on the grounds that it allows the
abandonment of uninsured drivers; a consequence that many find
at least counter-intuitive, and that others believe conflicts with
justice or equality.
It may well be, however, that we are only each morally
required to aid those who would otherwise be abandoned, but who
are responsible for their predicament, or that we should do so if we
are to live up to an ideal, such as that of living in a compassionate
society that does not value anything higher than human life—
preserving a good quality of life for others, no matter what they do.
If this is the case, then it may be that we should not be forced to
come to the aid of those who are responsible for their condition,
where their condition is not having their basic needs provided for, or
being in a position where they will die if we do not help them, and
that it is not the case that even some state or community of
individuals have a duty to come to such individuals’ aid, that can
(always) be legitimately coercively enforced. That is, if Otsuka
the disabled and contingently precluding the abandonment of uninsured drivers.Most strikingly, contingently ensuring equality of opportunity for welfare for thedisabled is achieved because the able-bodied will prefer to trade with the disabledthan to live a life at the level of mere sufficiency; see LWI p.33. But a similarcontingent preclusion of abandonment is not possible since medical servicepersonnel will not be left with a life of mere subsistence if they do not aiduninsured drivers, and thus do not have the same self-interested motivation tohelp uninsured drivers. Furthermore, there may be negative effects of treatinguninsured drivers, such as decreasing the amount of people who take out the
relevant medical insurance, and difficulties concerning the obtaining of paymentfor the treatments and services rendered subsequent their rendering.
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wishes his theory to permit abandonment this does not necessarily
mean that Otsuka’s theory is in error, or is impoverished in a certain
way, but may mean that Otsuka has a substantial position regarding
that which can and cannot be coercively enforced; and this may bea plausible position, but is certainly in need of further elaboration
and defence.
Although I have focussed on the abandonment of uninsured
drivers in this paper, it is not just the abandonment of uninsured
drivers that Otsuka’s theory will permit; but also the abandonment
of people who are involved in all kinds of accidents, and perhaps
even those who are attacked, who have not taken out the relevant
insurance and are responsible for their accidents, or for putting
themselves in particular situations. It seems that the abandonment
objection points towards a more general line of divergence between
those who believe that we should provide for the basic needs of
others no matter what they do—at least so long as the costs of
doing so are not extreme or too great—and that if we are not willing
that we should be forced into making such provisions, and those
who believe that it is not the case that justice and/or equality
require that we must be forced to provide for individuals’ basic
needs no matter what they do (though we may be morally required
to ensure that individuals’ basic needs are provided for). Otsuka
must decide whether we are to be forced to provide for such
individuals’ basic needs. My hunch is that he would not alter his
theory, that the abandonment of uninsured drivers is just one
consequence of a position that we are not to be forced to provide
for individuals’ basic needs when they have been given an
opportunity to provide for them themselves.
Richard RowlandBirkbeck College, University of London
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