Blackwell Publishers Ltd.

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Ratio (new series) X 3 December 1997 00340006

CHOICE AND CIRCUMSTANCE

Hillel Steiner

A common characteristic of virtually all the approaches to the

ethics of social arrangements that have stood the test of time is to
want equality of something . . . They are all egalitarians in some
essential way . . . To see the battle as one between those in favour
of and those against equality (as the problem is often posed in
the literature) is to miss something central to the subject.1
In my view, sufficient heed has yet to be given to this claim,
advanced by Amartya Sen. For much current argument in moral
and political philosophy still reflects the tendency casually to con-
sign theories to egalitarian or anti-egalitarian categories, the cus-
tomary litmus test being that of how closely a theorys normative
conclusions approach something like equality of wellbeing. And
nowhere has this tendency been more evident than in the com-
mon presumption that libertarian theories are inherently anti-
egalitarian. However, and due in no small measure to the influ-
ence of Ronald Dworkins writings, the soundness of this general
taxonomy has increasingly been placed in doubt.2 One key factor
in advancing this doubt has been the desire, on the part of many
egalitarian thinkers, to introduce considerations of personal
responsibility into their accounts of just distribution.
A central aim of this paper is to strengthen that doubt. To do
this, I propose to show how a libertarian account of just distribu-
tion converges on conclusions quite similar to those of one theo-
ry which is reasonably representative of such egalitarian thinking.
By way of entry, consider the following item:

Have you heard the one about the guy who was convicted of
murdering his parents and then demanded a lenient sentence
on the grounds of his being an orphan?
1
Amartya Sen, Inequality Reexamined, (Oxford: Oxford University Press, 1992), p. ix.
2
See especially, Ronald Dworkin, What is Equality? Part I: Equality of Welfare, and
What is Equality? Part II: Equality of Resources, Philosophy & Public Affairs, 10 (1981),
185246, 283345; also What is Equality? Part III: The Place of Liberty, Iowa Law Review,
73 (1987), 154.
 CHOICE AND CIRCUMSTANCE 297
There are probably still a few stand-up comics who open with
this ancient joke. Why is it funny?3 Is it funny?
Now, Im no expert on the conditions necessary and sufficient
for something to be humorous. So I have no really compelling
answer to this latter question. Still, I guess that a contributing factor
to whatever degree of humour there might be here is some form of
absurdity. Of course, theres nothing in the least absurd about the
pain and suffering normally engendered by the loss of ones par-
ents. Nor is there anything more absurd about believing that the
severity of penalties meted out to wrongdoers should sometimes be
mitigated by consideration of the additional suffering theyve
already endured or are likely to endure: excessive suffering certain-
ly warrants compensation. Where the absurdity creeps in here is
probably through two of the jokes suggestions. These are:
(a) that such compensation can be owed to (demanded by)
persons, as a matter of entitlement, for that very suffering
which they have imposed upon themselves;
(b) that persons can create entitlements for themselves by
violating those of others.
I want to focus attention on the first of these suggestions.4

I. Entitlement
Why is this suggestion absurd? One fairly standard conception of
absurdity applies to those things which are laughably inconsistent
with what is judged to be true or reasonable. So what were look-
ing for here is the set of true or reasonable claims with which the
aforesaid type of entitlement is inconsistent. And, pretty obvious-
ly, this is not going to be a set of claims whose dominant injunc-
tion is to minimise suffering or maximise wellbeing. For if it were
those claims that determine what persons entitlements are, the
question of whether compensation is owed in such cases would
be an entirely open one to be settled by empirical investigation
and far from obviously absurd.5

3
Not, presumably, because the status of orphan is normally reserved for minors who,
as such, are unlikely to be charged with criminal offences.
4
The second one is briefly explored in Hillel Steiner, An Essay on Rights (Oxford:
Blackwell, 1994), 2245.
5
For similar reasons, this entitlement-determining set of claims is not going to be one
enjoining us to distribute wellbeing in an equalising or maximinning fashion, or in
proportion to the incidence of some personal characteristic in the relevant population.

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298 HILLEL STEINER

A rough approximation of the reason why we think such com-

pensation cannot be owed is that the set of entitlements should
reflect the requirement that persons be held responsible for the
adverse consequences of their own actions.6 However this is only
rough and it needs more than a little refinement, not least
because its sometimes confused with a harsher, and less plausi-
ble, view. That view advances the claim (associated with some
forms of Social Darwinism) that none of the self-incurred adverse
consequences of actions the hardships persons bring upon
themselves should be compensated at all. On this view, activities
such as charitable aid to the undeserving poor and voluntary
rescue programmes for those who pursue self-endangering life-
styles are also ruled out.7
The sort of reason were looking for is much narrower in its
anti-redistributive implications and is, in fact, straightforwardly
inconsistent with the latter view. A close approximation to it is
canvassed by Alan Gibbard:
Moral rules should be so constructed that, if the rules are
obeyed, the acts of each person benefit or harm only himself,
except as he himself chooses to confer or exchange the bene-
fits of his acts.8
Gibbards formulation evidently excludes a Social Darwinist ethic
inasmuch as it permits, whereas the latter forbids, individuals to
choose to bestow their self-incurred benefits on others. Gibbards
moral rules can include ones enjoining charity and rescue. How,
then, can they reflect the responsibility requirement?
My suggestion is that they can do so only if they also include
entitlement-determining rules under which entitlements are,
broadly speaking, the results of choices. A set of entitlements is a
result of choices if its constituted by a set of non-intersecting action-spaces
domains whose respective owners are at liberty9 to transform, or trans-
fer rights to, any and only objects falling within their domains. So a suf-
ficient condition of an objects falling within a persons domain
is that its either (i) a transformed product of other objects which
6
In this sense, the present argument encompasses that set of persons adversities that
is specifically excluded from consideration in Derek Parfit's Equality and Priority, which
addresses only those incurred through no fault or choice of theirs; cf. note 5, p. 204,
above.
7
It is sometimes claimed that such activities create forms of moral hazard.
8
Allan Gibbard, Natural Property Rights, Nous, X (1976), 7786, p. 84.
9
That is, are not subject to uncontracted enforcible duties to forbear.

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 CHOICE AND CIRCUMSTANCE 299
all previously fell within her domain, or (ii) an object the right
to which was (consensually) transferred to her by the person
within whose domain it previously fell. Current entitlements
have pedigrees, and those pedigrees consist of series of disposi-
tional choices exercising previous entitlements. Dispositional
choices which are not exercises of previous entitlements cannot
create any entitlements nor, therefore, can they figure in their
pedigrees.
The requirement that each current entitlement have such a
pedigree leads us, by a familiar Lockean route, to the consider-
ation of initial entitlements. If pedigree-constituting choices are
ones to transform or transfer entitlements, initial entitlements
must be ones to previously untransformed and untransferred
things. They must be entitlements with respect to choosers
bodies and natural resources. What are these entitlements?
Here well short-circuit a rather long argument by simply pre-
senting its conclusion: that choosers are each initially entitled
to their own bodies and to have an equal share of natural
resources left for them.10 So pedigrees to all current entitle-
ments originate in dispositional choices exercising these initial
entitlements.
This, then, is recognisably the structure of an historical enti-
tlement a libertarian conception of what rightfully belongs to
whom. Choosers are at liberty (lack any duties of justice, but not
of other moral kinds, not) to dispose of whatever is in their
domains as they wish. They can keep the benefits they thereby
create or exchange them or give them away. And they must com-
pensate anyone whose domain they encroach upon.
10
The long argument is to be found in Steiner, An Essay on Rights, chs. 3(D) and 7(A).
Jan Narveson suggests that a natural resources being put to socially productive use is itself
sufficient to justify its acquirers entitlement to it, i.e. regardless of whether that acquisi-
tion leaves, in Lockean terms, enough and as good for others; cf. Egalitarianism: Partial,
Counterproductive and Baseless, p. 290, above. But this seems insufficient to satisfy his
own fundamental Moralised Rule of Pareto that no one may gain by imposing losses on
others inasmuch as such entitlement (i) denies to others the non-contractual liberty
they previously had to use that resource and (ii) precludes that resource's non-contractual
acquisition by any more productive user of it. David Miller similarly resists the idea of egal-
itarian entitlements to natural resources, arguing that, as production goods, their value
depends upon the knowledge and capacities of the particular people who use them; see
Equality and Justice, pp. 2267, above. But in standard economic theory, the value of a
production good is quite independent of the value of the use to which it is put and is
entirely a function of the most valuable use to which it could be put. Nor, in any case, is
this sufficient to entitle its user to its value, though it does furnish grounds for entitling
him/her to the value of that use, i.e. to the difference between value of the product and
the value of that production good.

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300 HILLEL STEINER

However, the application of this structure to the real world, the

interpretation of several of its key features in the light of certain
not-very-esoteric facts, yields distributive implications which are
considerably at variance with what such a conception has com-
monly been taken to imply, not least by many libertarians them-
selves. And these implications are of particular significance for
the location of personal responsibility.
One non-esoteric fact is that choosers arrive in this world at
different times. Another is that these choosers are members of
generations in the strict sense: that is, they are the producers of
members of subsequent generations of choosers.11 Yet another is
that the features of natural resources are objects of continuous
discovery and not comprehensively known. Possible worlds in
which any of these facts is untrue are ones in which an historical
entitlement conception would have different distributive impli-
cations, and would differently locate personal responsibility, from
what emerges below.
The fact that choosers arrive at different times poses an inter-
pretive problem for the requirement that each chooser has an
initial entitlement to be left an equal share of natural resources.
For earlier arrivals will have been acting entirely within their
rights in each appropriating an equal share of all the natural
resources there are. Accordingly, and if that ownership is to be
sustained in the face of new arrivals, it can avoid constituting a
wrongful withholding of their initial entitlements and, thereby,
a violation of the responsibility requirement only by being
encumbered with a duty to compensate them for that depriva-
tion. In effect, each choosers initial entitlement in a fully appro-
priated world is one to an equal share of the value of natural
resources.12 We can thus construe resource owners owed pay-
ments as constituting a social fund, to an equal portion of which
each chooser has a claim. Moreover, since groups (e.g. nations)
ownership of natural resources (notably, territorial sites) can
enjoy no greater moral immunity against such encumbrance
than can that of individuals, this initial entitlement is one of glob-
al scope: each chooser everywhere has a right to an equal share

11
A non-strict sense of generations is at work when we speak, for instance, of the new
generation of computers.
12
The owed payment of this value is, for reasons suggested below, probably best
conceived as a periodised one: a rent. And each persons entitlement to an equal share of
it can readily be construed as one to an unconditional basic income (or, perhaps, as one to
an initial capital lump-sum).

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 CHOICE AND CIRCUMSTANCE 301
of the value of all natural resources. And, hence, each nations
social fund is properly a constituent of a global fund.13
That later choosers are the products of earlier ones creates a
problem for our understanding of all choosers initial entitle-
ments to their own bodies. For that entitlement is standardly
taken to imply one to their labour and, thence, to the products
of their labour. Choosers self-ownership thereby, and paradoxi-
cally, appears to be an implicit encroachment on the self-owner-
ship of their parents whose products they are. The solution to this
paradox lies in the fact that, as weve just seen, choosers other-
wise unencumbered entitlement to their labours products can
be permissibly encumbered if (and to the extent that) any of the
factors used to produce those products are not themselves labour
products, i.e. are natural resources. Darwin and molecular biolo-
gy tell us that germ-line genetic information is just such a factor.14
Accordingly, its permissible to encumber parental rights over
children. And these encumbrances can take various familiar
forms, including restrictions on duration15 and on permissible
nurturing practices. Moreover, since germ-line genetic informa-
tion is a natural resource, its appropriation by parents occasions
their having a duty like all other natural resource owners to
share its value equally with all choosers through the global fund.16
Finally, the fact that the features of natural resources are
objects of continuous discovery, rather than being comprehen-
sively known at some point in time, implies that the value of such
resources like that of other assets is subject to variation with
their currently perceived capacity to serve or obstruct choosers
activities.17 Hence the assessment of what resource owners each
owe to the global fund will vary periodically, as will the conse-
quent value of the equal share to which each chooser is entitled.
Now, what happens when this entitlement-determining
13
An additional source of revenue for the global fund is (the full value of) dead
persons' estates. The argument for a 100% levy on bequests is itself derived not from the
historical entitlement structure as such, but rather from the choice-based conception of
rights on which that structure relies; cf. Steiner, An Essay on Rights, chs. 7(C) and 8.
14
The story is made more complex but is not, I think, essentially altered by the
possibility of germ-line genetic engineering and other activities which modify the content of
such information. This indicates the need for an algorithm to isolate the enduring natural
component of such information.
15
That is, parents rights over children expire when the latter cease to be minors and
become choosers.
16
The full argument for this resolution of the universal self-ownership paradox, and
for its distributive implications, is set out in Steiner, An Essay on Rights, chs. 7(B) and 8.
17
It also obviously varies with variations in those activities themselves.

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302 HILLEL STEINER

machinery engages with the sort of responsibility requirement

implicit in Gibbards formulation? Do we get a mesh or just a mess?

II. Responsibility
In a widely discussed, carefully argued and strikingly inventive
series of papers, John Roemer has identified and developed a
particular conception of equality of opportunity as the distributive
principle capable of capturing the salient aspects of this require-
ment.18 Contrasting the general concept of equality of opportu-
nity with more thoroughgoing egalitarianism, he remarks:
At a philosophical level, many people associate egalitarianism,
and the policies of the welfare state in particular, with a view
that society will indemnify citizens against all major harms,
relieving them of the personal responsibility to make their lives
go right. I shall not defend this kind of unqualified egalitari-
anism, which does not hold individuals responsible for their
choices. Equality of opportunity, in contrast, is a view that soci-
ety (the government) must level the playing field, but that
after that, individuals should suffer or enjoy the consequences
of their own choices. The question becomes: Exactly what is
required to level the playing field?19
Roemer rightly suggests that this moral view about responsibility
devolves from the western view of the value of individual free-
dom. And the connection between equalising opportunity and
holding persons responsible for their actions is explained thus:
Let us say that a persons actions or behaviour are determined
by two kinds of cause: circumstances beyond her control, and
autonomous choices within her control. I do not intend to imply
that all choices are within a persons control: obviously, the
choice a person makes under hypnotic suggestion is not within
her control. A particular action a person takes, and its associated
18
John Roemer, Equality of Opportunity: Theory and Examples, (Davis: University of
California, June 1995); Equality of Opportunity: A theory and examples, (Davis:
University of California, December 1995); a symposium containing a considerably abbre-
viated version of his argument, along with a set of varyingly critical replies, appears in
John Roemer et al, Equality of Opportunity, Boston Review, XX (April/May 1995), 316.
Hereafter, these are respectively cited as Roemer (1), Roemer (2) and Roemer (3). An
earlier version of this theory appears in A Pragmatic Theory of Responsibility for the
Egalitarian Planner, Philosophy & Public Affairs, 22 (1993), 14666, reprinted in John
Roemer, Egalitarian Perspectives (Cambridge: Cambridge University Press, 1996).
19
Roemer (1), pp. 23.

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 CHOICE AND CIRCUMSTANCE 303
consequences, are caused by a highly complex combination of
circumstances and autonomous choices. I say that equality of
opportunity has been achieved among a group of people if
society indemnifies persons in the group against that part of
consequences they suffer due to circumstances and brute luck,
but does not indemnify them against that part of conse-
quences due to autonomous choice. Thus the purpose of an
equal-opportunity policy is to equalize outcomes in so far as
they are the consequences of causes beyond a persons control,
but to allow differential outcomes in so far as they result from
autonomous choice.20
The principal burden of Roemers account is then to show that,
in the face of these complex causal combinations of circum-
stances and choices, we can operationalise the equal opportunity
principle by partitioning the population into multi-dimensional
types. These typing dimensions consist in kinds of circumstance
which have varying impacts on the decisions individuals make.
Very roughly, an incurred adverse consequence is not one for
which the person incurring it should be held responsible its a
result of circumstance, not choice just to the extent that its a
consequence which persons of her type can be expected to incur.
A good deal of Roemers more technical argument is devoted to
constructing the metric for calibrating that extent.
What I propose to do is to explore how such an account maps
on to the historical entitlement structure sketched above. My
conjecture is that there is a very close fit between the two, except
insofar as Roemers account contains an ambiguity surrounding
one aspect of what is meant by society indemnifying persons
against circumstantially-caused adverse consequences. Slightly
more specifically, the ambiguity lies in locating one part of the
boundary between circumstances and choices, and it thence
extends into the matter of what counts as social indemnification.
It would appear to be indisputable (and I shall take it as such)
that the causal factors contributing to a persons incurring
adverse (or benign) consequences can be exhaustively consigned
to a threefold classification: (1) her own doings; (2) the doings of
20
Roemer (1), pp. 45. Unqualified egalitarianism egalitarianism which sponsors
equality of outcomes can thus be construed as a limiting case of equality of opportunity:
the one that would be warranted under the extreme possibility . . . that circumstances
determine everything, so that there is no room left for autonomous effort: if this were
true, then we would say that what appears to be differential effort is in fact determined by
circumstances beyond the control of the individuals; Roemer (2), p. 11.

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304 HILLEL STEINER

others; and (3) the doings of nature.21 The great merit of

Roemers account lies in its rigorous attempt to grapple with the
fact that most incurred consequences are multi-factorial: that is,
theyre produced by highly varying combinations of these kinds
of factor. For this part of the discussion, however, and to avoid
overly cumbersome formulations, Ill temporarily assume that
any particular incurred consequence is mono-factorial: is produced
by causes of only one kind or another. We can capture this, and
its distributive implications, in the following way.
Imagine a world, World One, in which all choosers are suffi-
ciently prudent, benevolent and well-informed as to engage in no
activity that produces adverse consequences for themselves or oth-
ers. So the only culprit here, the only source of adversity, is nature.
Since adversity refers to some below-average condition, a regime
that would not merely reduce but completely offset adversity in this
world is one which, so to speak, redistributes the consequences of
natures harms and benefits equally. The hardships which nature
dispenses would be allocated in such a way as to ensure that their
impact on each chooser was of the same magnitude.
Now imagine World Two where at least some choosers, though
just as prudent and well-informed as inhabitants of World One,
lack the benevolence required to motivate their abstention from
activities producing adverse consequences for others. World Two
is also a world where theres no nature-caused adversity, because
it includes a redistributive regime of the sort just described. So
the only culprit here is other choosers. Should we approach the task
of offsetting adversity in World Two with the sort of strategy used
in World One? Should we redistribute the consequences of oth-
ers harms (i.e. the harms that others do) equally? It seems clear
that, on any view of personal responsibility, the sort of regime
required to eliminate adversity in World Two must be one based
on redress: one that compels harmers alone to bear the full cost of
compensation.22

21
A consequence is deemed adverse (benign) by virtue of its causing a persons condi-
tion to fall below (above) some statistically average point on a scale measuring opportu-
nity for what Roemer, following, G.A. Cohen, designates advantage, as a generic term
referring to outcomes which are defined over any of income, satisfaction, life expectancy,
welfare or the probability of leading a life deemed successful; cf. Roemer (1), p. 3.
22
What if they cant? What if the redress extractable from harmers is insufficient to
offset the adversity they cause to their victims? Here, I think, at least one argument
suggests that such cases be construed as multi-factorial ones: persons who decline to insure
themselves, against the risk of suffering insufficiently redressable harm from others, are
contributors to the adverse consequences they incur; see World Three.

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 CHOICE AND CIRCUMSTANCE 305
Which brings us to World Three. Here we retain the benevo-
lence and well-informedness of World One, as well as its recom-
mended redistributive regime, but we drop the prudence. So the
only culprits here, as far as anyones adversity is concerned, are
those choosers themselves: all harms are self-harms. And here its
plain that, as in World Two, the requirement that persons be held
responsible for the adversity they cause rules out any regime (such
as the thoroughgoing egalitarianism mentioned earlier) that
would redistribute the consequences of those harms equally by
mandating social compensation. The elimination of adversity
from this world poses a serious moral challenge under such a con-
straint. For it can be permissibly achieved only by a regime which
allows, but does not enforce, assistance to those harmed. I take it
that the principal mark of a good society as distinct from a (mere-
ly?) just one is that, in it, such assistance would be forthcoming.
What we need to do now is to look in greater detail at some
salient distributive implications of the historical entitlement
structure and the Three Worlds story, in order to compare them
with Roemers equal opportunity conception, and to see whether
and how they diverge.
Consider, first, the doings of nature. These are immensely var-
ied and their impact on choosers is productive of various benign
and adverse effects. Under the historical entitlement structure,
each choosers entitlement to an equal share of the value of nat-
ural resources implies a pooling of all these effects, as in the
regime recommended for World One. If tornadoes or earth-
quakes produce adverse effects, owners of sites that are less sub-
ject to such destructive natural forces will ceteris paribus owe more
to the global fund than owners of sites more exposed to them.
Similarly, ownership of sites bearing large oil deposits or natural-
ly fertile soil carries a heavier payment liability than that of sites
lacking these.
One especially pertinent effect of the doings of nature is the
constitution of individuals genetic endowments. For these are
determined by parental germ-line genetic information and muta-
tional factors, both of which are products of nature.23 Such
endowments are themselves key factors in determining their
bearers overall levels of ability.24 If they were the only such factors

23
Cf. note 14 above, for a qualification on this claim.
24
And disability. The constituents of persons levels of ability thus include the state of
their health, along with their talents and incompetences.

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306 HILLEL STEINER

if overall ability-level was thus mono-factorial the pooling

required of parents would be such as to imply a set of propor-
tional net transfers from those who have children with superior
ability-levels to those who dont. That no childs overall ability-
level can be mono-factorial in this respect, but rather must be a
joint product of genetic information and diverse (pre- and post-
natal) nurturing inputs, has, as well presently see, important
implications for the application of the responsibility require-
ment.
The doings of others, and their impact on choosers advan-
tages, are similarly varied. Under the historical entitlement struc-
ture, benign consequences bestowed on me by others may be
kept by me, while adverse ones must as in World Two be com-
pensated by those others. If a chooser injures me or my car, she
owes me redress. And holding choosers responsible for the
adverse consequences they visit upon others also plays a signifi-
cant role in locating liability for childrens overall ability-levels.
Its true, well suppose, that to the extent that children, being
minors, lack duties and liabilities, so too do they lack rights
including rights against adverse treatment by others. This does
not, of course, imply that no one has rights against adverse treat-
ment of children. Thus, if a chooser injures my child, she owes me
redress. And if my child injures her or her child or her car, I am
the one who owes her redress.
Now childrens overall ability-levels are, as was just mentioned,
joint products of genetic information and what I compendiously
labelled pre- and post-natal nurturing inputs. So in a world
where the differential impacts of nature including childrens
genetic differentials are pooled, any difference between respec-
tive childrens overall ability-levels is attributable to differential
nurturing inputs. A childs nurturing inputs are, I assume, large-
ly the results of others choices. Adverse nurturing inputs, ones
whose consequences are the reduction of a childs overall ability-
level, are ones responsibility for which therefore lies with those
choosers whose activities generated them. So although a child
may lack rights against such adverse treatment, the persistence of
that reduction into adulthood i.e. beyond the threshold at
which he becomes a chooser would entitle him to redress from
those choosers who perpetrated it.25 And if that redress had
already been paid to his parents, who had then failed to apply it
25
As in some recent cases of earlier child abuse brought by adults against their parents.

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 CHOICE AND CIRCUMSTANCE 307
to offsetting that reduction, his redress entitlement would be
owed by those parents (just as it would be in the case of a simi-
larly persistent reduction which they had directly perpetrated
themselves).26
In the real world in our multi-factorial world the historical
entitlement structure combines the regimes recommended for
Worlds One, Two and Three, and apportions personal responsi-
bility for adverse consequences accordingly. How do these allo-
cations of responsibility compare with those suggested by
Roemers interpretation of equal opportunity?
Recall that the object of his account is to provide a frame-
work for sorting out those parts of consequences which are the
results of choice from those which are due to circumstance, in
order to apply the requirement that society indemnify individu-
als against adverse instances of only the latter. Evidently, theres
not much room for divergence between his account and that
offered by the historical entitlement structure, in regard to
both the doings of nature and the doings of oneself. The for-
mer come under the heading of circumstance and the latter
under choice. So the equal opportunity principle, in requiring
that society indemnify individuals against adverse circum-
stances, is consistently able to underwrite the equalisation of
the value of per capita natural resource entitlements perhaps
in the form of an unconditional basic income.27 And as weve
seen, the two accounts converge in rejecting social indemnifi-
cation for self-incurred adversity.
Its when we come to the doings of others that a difference
between them seems to emerge. For under historical entitle-
ment, theres a rather attenuated sense of indemnify in which
society does indeed indemnify individuals against the adverse
doings of others. It does so insofar as it sustains a set of
enforcible rules mandating redress of those injured by those
doing the injurious activities. But this is admittedly not indem-
nification in the sense deployed in ordinary language. Nor does
it seem to have a clear and distinctive place in Roemers account.
The traditional domain of private or civil law torts, personal
injury, contractual default, etc. which figures so prominently in

26
Relatedly, more enduring ability-level reductions, inflicted on one chooser by
another, would ceteris paribus warrant greater owed redress.
27
One possible reason why Roemer's interpretation of equal opportunity does not
include such a basic income is discussed in the conclusion, below.

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308 HILLEL STEINER

the historical entitlement structure, plays an uncertain role

here. Why is this so?
One explanation may be that Roemer appears to classify such
consequences as results of circumstance, not choice. Some indi-
cation of this surfaces in the following example:
Being hit by a truck which runs a red light while you are in the
pedestrian crossing is brute bad luck. Being hit by a truck
while you are jay walking is not: for in that case, you took a
calculated gamble and lost, a gamble you need (and perhaps
should) not have taken.28
Few would disagree here that the jay-walkers adversity is, as
described, a consequence of choice. But I think that most would
strongly disagree with the suggestion that the crossing-users
adversity is not. To be sure, its not a consequence of his own
choice. Nor, therefore, should liability for its costs rest with him.
But this is clearly insufficient warrant to assign it to brute bad
luck or circumstance, and thereby to send the bill for those costs
to society. That bill, under the historical entitlement structure,
goes to the trucks driver whose choice it was that brought about
that adverse consequence.
This same conflation, of those adverse aspects of a persons sit-
uation that are due to other persons choices with those that are
due to entirely unchosen circumstances, seems to be a pervasive
feature of Roemers typing schema.29 Consider the following pas-
sage from his extensive discussion of childrens access to educa-
tional achievement which, as he rightly notes, is an important
component of opportunity for advantage.
We must distinguish between the circumstances beyond a
childs control which influence her ability to process educa-
tional resources, and her acts of autonomous volition and
effort. Equalizing opportunity for the good life, in so far as
education is an input or, more precisely, equalizing opportu-
nity for educational achievement requires distributing
resources in such a way that the differential abilities of chil-
dren to turn resources into educational achievement are
compensated for, where those abilities are determined by
circumstances beyond the control of the individual . . .[such
as] her genes, her family background, her culture, and, more
28
Roemer (3), p. 3.
29
But see note 33, below.

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 CHOICE AND CIRCUMSTANCE 309
generally, her social milieu, to the extent that that milieu is
unchosen.30
Again, the issue is not whether the adversity of a childs educa-
tional under-achievement, due to disabling factors beyond her
control, warrants compensation. Clearly it does. The issue is,
rather, who should bear that cost. That is, should we operate a
unitary or a binary classification of those factors? The above-prof-
fered list of some such factors is a list of what would count as typ-
ing dimensions in Roemers proposal. And thus his designation
of all of them as circumstances implies that compensatory lia-
bility, for the educational disabilities inflicted on a child by other
persons, should lie with society inclusively, rather than those per-
sons exclusively as it would under the historical entitlement
structure.31 For under the latter, circumstance accounts for and
societys compensatory liability extends to only that portion of
disability-beyond-her-control that is due to genetic disadvantage
(and other natural factors). The rest is down to other peoples
choices, and remedial claims would therefore lie against only
them.

III. Conclusion
Egalitarians who seek to equalise opportunity for advantage
rather than advantage itself who wish to make a distributive
space for personal responsibility are thereby committed, as
Roemer suggests, to some kind of starting gate which separates
before from after .32 Starting gate theories equalise initial
conditions: they level the playing field by equalising persons cir-
cumstances and vesting them with domains of personal choice to
determine outcomes. Weve seen that, under that description, the
historical entitlement structure sustains personal responsibility
and equal opportunity at least as well as Roemers proposal. But
there are also some reasons for thinking that it does so better.
It does better in regard to personal responsibility because, as
was argued above, it differently locates part of the boundary
30
Roemer (2), pp. 1011. At pp. 2021, its plausibly suggested that factors beyond his
control that can affect a child's educational achievement might include his parents level
of educational achievement, their income, the number of siblings he has, and whether he
was raised by a single parent or by two parents.
31
Cf. the newspaper report, in The Independent 2.12.96, entitled Pupils sue schools for
bad education.
32
Roemer (2), p. 4.

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310 HILLEL STEINER

between the circumstances and the choices affecting a persons

opportunity for advantage. Historical entitlement structure parti-
tions into two categories circumstances and the choices of oth-
ers factors which Roemer conflates as circumstances alone.
Adverse instances of both certainly warrant compensation pay-
ments. But under historical entitlement, these are owed by dif-
ferent sets of persons, rather than the same set (i.e. society) in
both cases. Society is not held responsible for the injuries that
some of its members choices inflict on others. That is, it does not
indemnify injurers.
Historical entitlement structure also appears to do better with
respect to equalising opportunity. One way of describing why this
is so is to characterise its bearing as being not only to level the
playing field but also to broaden or unify it as much as possible. On
Roemers proposal, opportunity is to be equalised in each of sev-
eral spheres of opportunity: education, health and employment
are suggested. In effect, his proposal segments the playing field
and requires players to muster at each of several starting gates
rather than only one. It implies a plurality of ring-fenced playing
fields, each of which is to be separately levelled by a socially
determined set of funding measures dedicated to that purpose.
What thus amounts to a programme of compensation-in-kind
stands in marked contrast to historical entitlement structure
whose entirely fungible compensation mechanisms equal basic
income and private law redress have no such pre-ordained tar-
gets, and whose domains of personal choice therefore allow indi-
viduals each to trade off opportunities in one sphere for those in
another. And, hence, it seems plausible to claim that the princi-
ple of equalising opportunity is less satisfied by a regime under
which some are, in effect, empowered to reduce others oppor-
tunities to make such trade-offs. Indeed, would not this very prin-
ciple mandate compensation for that reduction?
Which brings us to a final and more general point. For it may be
that the differences just drawn, between Roemerian equal oppor-
tunity and historical entitlement, are in fact somewhat overdrawn.
This thought is occasioned by the possibility that Roemerian equal
opportunity might itself be construable as a limiting case of histor-
ical entitlement: the one that would be warranted in the event of
all persons choosing to forgo their opportunities for such trade-
offs, by pooling what would otherwise be their respective basic
income and private redress entitlements, and authorising their dis-
tribution through allocative social decisions informed by Roemers

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 CHOICE AND CIRCUMSTANCE 311
proposal. (Even then, of course, the responsibility requirement
implies that Roemerian revenue-raising measures would need to
take account of the differential contributions that different per-
sons activities make to the adversity of others.33)
If this is correct, it supplies some grounds to believe that equal
opportunity is not a bottom-line moral principle. Roemer himself
remarks that
I do not think we can definitively decide the proper scope of
the [equal opportunity] principle without adopting a theory of
distributive justice.34
and was earlier cited as observing that the responsibility require-
ment devolves from the western view of the value of individual
freedom.
What Ive tried to show here is that the historical entitlement
structure simply is a theory of distributive justice and one which
integrally embodies the requirements of the equal opportunity
principle. Indeed, if one is inclined to look for bottom-line princi-
ples in this area, there are strong reasons for locating the ultimate
foundation of the historical entitlement structure in one prescrib-
ing equal freedom.35 And that principle, if not always the several inter-
pretations placed upon it, itself enjoys a rather lengthy pedigree in
the history of western moral and political philosophy.36

33
That is, the conflation mentioned in the penultimate paragraph above may not be a
logically entrenched feature of Roemers typing schema. An interesting counter-proposal
might be this. Perhaps the schema could sustain its conflation of others choices with
circumstances (consistently with the responsibility requirement) by including, among the
various spheres of equalised opportunity, one for opportunities to remain free of redress-liabil-
ity. Accordingly, people would have to be typed for the likelihood of their committing
injuries to others. Whether this approach is consistent with prevailing ones, for assessing
individual culpability, needs further investigation.
34
Roemer (2), p. 90.
35
Cf. Steiner, An Essay on Rights, ch. 6.
36
See John Locke, Two Treatises of Government (ed.) Peter Laslett, (Cambridge:
Cambridge University Press, 1967), pp. 287289; Immanuel Kant, The Metaphysical
Elements of Justice (ed.) John Ladd, (Indianapolis: Bobbs-Merrill, 1965), pp. 3539; Herbert
Spencer, Social Statics (London: John Chapman, 1851), ch. VI; Henry George, Social
Problems (London: Henry George Foundation, 1931), ch. IX; H.L.A. Hart, Are There Any
Natural Rights?, Philosophical Review, lxiv (1955), 17591; Alan Gewirth, Reason and
Morality (Chicago: University of Chicago Press, 1978), ch. 3; Lansing Pollock, The Freedom
Principle (Buffalo: Prometheus Books, 1981), ch. 1. John Rawls, in A Theory of Justice, offers
equal basic liberty as lexically prime among the several rules constitutive of his concep-
tion of justice. Hillel Steiner,Capitalism, Justice and Equal Starts, Social Philosophy &
Policy, 5 (1987), 4971, pp. 5559, argues that an important premiss of Nozicks theory of
just holdings, in Anarchy, State and Utopia, implicitly invokes something like the equal free-
dom rule.

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312 HILLEL STEINER

Perhaps, then, one rather general reflection prompted by this

admittedly loose assemblage of facts might be that the basis of
many longstanding differences, between egalitarian and libertar-
ian commitments, lies elsewhere than has customarily been sup-
posed and may not consist in any difference of principle at all.
On the present analysis, their differences are more reliably traced
to a shared failure: namely, their failure adequately to discriminate
between the kinds of factors contributing to differential adversi-
ty. Conventional (i.e. welfare or advantage) egalitarianism
neglects the causal role of individual choice, while conventional
(i.e. so-called right-wing) libertarianism ignores that of nature.
And consequently, neither of them offers a coherent allocation
of personal responsibility.37

Department of Government
University of Manchester
Manchester M13 9PL
England

37
I am grateful for comments from Jerry Cohen, John Roemer, Peter Vallentyne and
members of the Philosophy Seminar at the University of Helsinki.

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