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BRILL Joumalof Moral Philosophy 10 [2013) 488-507 hrill.com/jmp

Harmful Choices: Scanlon and Voorhoeve onSubstantive Responsibility*

Zofia StemplowskaDepartment of Politics and International Relations, University of Oxford

zofia.stemplowska@politics.ox.ac.uk

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

Keywordssubstantive responsibility, choice, distributive Justice, determinism, causal thesis, Scanlon,Voorhoeve

Introduction

Practically all social arrangements can be reformed - sometimes in a costneutral way - to make tbe outcomes tbat tbey regulate more sensitive topeople's cboices. Tbe outcomes can be tied more directly to people'sdecisions (for example, by ensuring tbat making decisions is unavoidable)or tbe range of outcomes for people to cboose from can be expanded.

* 1 am gratefijl for especially detailed comments or long discussion to Ben Jackson,Daniel McDermott, Brad McHose, Jonathan Quong, and two anonymous referees. I am alsograteful for comments by Simon Caney, Jacob J. Krich, T.M. Scanlon, Adam Swift, AndrewWilliams, and the participants at the MANCEPT conference on 'Justice, Rights andInstitutions: Themes from the Philosophy of T.M. Scanlon,' May 2009 and at the Centre forthe Study of Social Justice Seminar, Oxford University, January 2010.

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One much-heralded virtue of such reforms is that they give people moresay over their fate. But we also know that the potential advantages ofchoice-sensitivity fail to materialize for some. Making outcomes depend onchoices carries the risk, and, often, statistical certainty, that some peoplewill choose badly. Having the opportunity to choose equates for some tohaving the opportunity to choose poorly - a burden that gets heavier thebetter others are at choosing. In essence, just because a policy offers peoplechoices does not mean that it offers people anything worth having.

How then should the fact that a given policy offers people choice - thatit makes its distributive outcomes (i.e. substantive responsibilities) sensi-tive to the choices people make - bear on policy selection? When and whyis choice significant in the specific sense that its presence counts in favor ofthe choice-sensitive policy rather than the alternative that is less or not at allchoice-sensitive?

Famously, T.M. Scanlon has explained the significance of choice withreference to its value: offering choice counts in favor of the policy thatoffers it when (and because) the choice is of value to the choice-bearers.'Importantly, according to Scanlon, this account of the significance ofchoice not only captures our intuitions but is also immune to the threatposed by that famous enemy of choice - determinism. In fact, it is meant towithstand the more general threat posed by what Scanlon has called thecausal thesis. According to the causal thesis, choices that people make arecaused by factors that are external to their agency, such as their social back-ground or genetic codes. It does not matter whether such external factorsoperate in a deterministic or probabilistic manner - what matters is thatchoices are externally caused and, therefore, there is a sense in which peo-ple's choices are not really theirs. People may still be able to choose in thesense of having guidance control - they can guide their actions in light oftheir choices, but they cannot choose in the sense of having regulative con-trol - they cannot regulate their choices; they cannot control what theychoose.2

For all its ambition, however, Scanlon's account of the significance ofchoice has been accused of providing, at worst, an inaccurate and, at best,a radically incomplete picture of when choice bears on policy selection.Focusing on a policy dilemma, Alex Voorhoeve has argued that choice can

' T.M. Scanlon, What We Owe to Each Other, Harvard University Press 1998, 248-294.Hencefortb: WWO.

^ Jobn Martin Fiscber and Mark Ravizza, Responsibility and Control, Cambridge UniversityPress 1998,31.

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count in favor of the choice-granting policy even when its presence is notvaluable to the choice-bearers on the Scanlonian account.^ He has sug-gested that when selecting policies we should focus on the potential valueof choice, which tracks the value of the possible outcomes of choice andthe chooser's disposition to choose them.'*

Scanlon's account, and Voorhoeve's modification, can be read as suggest-ing two desiderata for a successful account of the significance of choice.According to Scanlon, it should meet what I will call the external constraint:it should be compatible with the causal thesis. According to Voorhoeve,it should meet what I will call the intuitive constraint: it should point ustowards the choice-sensitive policy over the not choice-sensitive alterna-tive in a policy case (specified in section 1 below) where it seems intuitiveto do so.

This paper has two main aims. My first aim is to show that whileVoorhoeve is correct in pointing out that Scanlon's account fails tomeet the intuitive constraint, Voorhoeve's own account fails to meet theexternal constraint. Therefore, irrespective of its other strengths, Voor-heove's account cannot replace Scanlon's account: they each solve andfall by different problems. My second aim is to provide an account of thesignificance of choice that can better satisfy the two constraints.

The importance of satisfying the intuitive constraint is pretty clear: if wecan have an account that fits with our intuitive considered Judgments weshould prefer it, ceteris paribus, to one that does not. But why look for anaccount of the significance of choice that meets the external constraint?Why follow Scanlon on this? To see why, consider the countless articles andbooks on whether the causal thesis, especially deterministic causation, iscompatible with the attribution of moral blame or praise to people in lightof their choices. If we are worried whether choice-sensitive attributions ofmoral blame or praise (moral responsibility) are acceptable when choicesare externally caused, then we should also ask whether choice-sensitiveattributions of burdens and benefits regulated by distributive policies (sub-stantive responsibility) are. Such burdens and benefits concern health.

ä Alex Voorhoeve, 'Scanlon on Substantive Responsihihty,'Journal of Political Philosophy16 (2008): 184-200. Henceforth: SSR. This point has also been made by Andrew Williams:'Liberty, Liability, and Contraetualism,' in Nils Holtung and Kapser Lippert-Rasmussen(eds.), Egalitarianism, Oxford University Press 2007,241-261.

'' Both Scanlon and Voorhoeve develop their accounts as alternatives to what the formerhas called the Forfeiture View (WWO, 258), which holds, roughly, that the presence ofappropriately voluntary choice counts in favor of the policy that offers it tout court. The viewis, rightly, deplored by both philosophers and 1 don't entertain it either.

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income, and other primary goods the access to which can be more lifealtering than moral blame and praise. And yet, there has been relativelylittle discussion by political philosophers of how determinism, or the causalthesis more generally, affects the justifications of choice-sensitive distribu-tive policies.^ And while it is often fine - given the academic division oflabor - to proceed on the assumption that the causal thesis would not makeany difference to our account of how the presence of choice bears on dis-tributive policies, it is also important to see if this is so.

In section 1,1 will introduce the policy dilemma, designed by Voorhoeve,that fleshes out the intuitive constraint. In section 2,1 will explain why, asVoorhoeve argues, the dilemma exposes limits to Scanlon's account of thevalue of choice. In section 3,1 will argue that Voorhoeve himself resolvesthe dilemma only at the cost of failing to meet the external constraint.Finally, in section 4, I will identify sufficient conditions under which thefact that one policy offers people a choice that the alternative policy deniescounts in favor of adopting the first policy even if the causal thesis is true.I will thus suggest a further way in which choice can bear on policy selec-tion. Throughout I will talk of being offered a 'choice' interchangeably withbeing offered 'options' or 'opportunities,' and I will use 'choice/havingoptions' in the shallow sense that is compatible with someone being unableto make herself choose otherwise.

To cut a long story short, both Scanlon and Voorhoeve try to locate thesignificance of choice in the instrumental value or potential value that ithas for the choice-bearers. Doing this leaves them vulnerable to a generaldilemma: either they can explain the significance of choice by supposing

^ Scanlon is a notable exception. Cf. Richard J. Arneson, 'Luck Egalitarianism Interpretedand Defended,' Philosophical Topics (Spring and Fall, 2004) [actually published in Fall, 2006],1-20; G.A. Cohen, 'Equality of What? On Welfare, Goods, and Capabilities,' in MarthaNussbaum and Amartya Sen (eds.). The QuaUty'ofLife, Oxford University Press 1993,9-29,28;Ronald Dworkin, Sovereign Virtue, Harvard University Press 2000,287-299; Marc Fleurbaey,'Equal Opportunity or Equal Social Outcome?,' Economics and Philosophy u (2005): 25-55,38-40; Kasper Lippert-Rasmussen, Deontology, ResponsibiUty, and Equality, University ofCopenhagen 2005, 331-354; Carl Knight, Luck Egalitarianism, Edinburgh University Press2009, 178-188; Matt Matravers, ResponsibiUty and Justice, Polity 2007, chs. 1-3; SamuelScheffler, 'Choice, Circumstance, and the Value of Equality,' Politics, Philosophy & Economics4 (2005): 5-28, 12-13; Saul Smilansky 'Egalitarian Justice and the Importance of the FreeWill Problem,'P/ií/osop/iía 25 (1997): 153-161; Zofia Stemplowska, 'Holding People ResponsibleFor What They Do Not Control,' Politics, Phitosophy & Economics 7 (2008): 355-77; LarryTemkin, 'Justice, Equality, Fairness, Desert, Rights, Free Will, Responsibility, and Luck,' inC. Knight and Z. Stemplowska (eds. ), Responsibility andDistributiveJustice, Oxford UniversityPress 2ou; Williams, 'Liberty, Liability...,' 256-259.

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

1. The Policy Dilemma

Imagine that we need to decide between two policies, only one of whichoffers all people a choice whether to pursue or avoid a course of action thatthey know will lead to harm. To make this problem more concrete, here is adilemma posed by Voorhoeve and adapted from Scanlon:

Imagine that we are public officials responsible for the removal and transportto a remote, safe location, of some recently discovered, naturally occurringhazardous material from a town. Though the excavation site will be fencedoff, and the excavation and transport will be carried out with care, the removalof this material yfiW inevitably release harmful particles into the air, which, ifinhaled, will cause lung damage...[T]he inhabitants of the town will be safeif they stay indoors on the day of the excavation and transport.

Suppose that we have two [policy] options. Our first option is to have a verythorough information campaign, which will ensure that everyone in the townreceives a standard warning message and can take the necessary steps to pro-tect her/himself. (Call this policy Inform Everyone. [I v«ll later in this paperrefer to the standard warning message as a dry warning]) ...[W]e can confi-dently predict that almost everyone will indeed protect her/himself, but thatthere will be one person, though we can't know who this person is, who willimpetuously visit the excavation site even though she is aware of the danger toher health; she visits nonetheless because the standard warning aroused hercuriosity about the nature of the hazardous material and the process of exca-vation. As a consequence, she will develop a severe and incurable case ofemphysema. (Call her Curious.) [̂ ]

The second policy option is to spend more money on each individualsign, leaflet, and announcement, in order to describe the effects of exposurewith particularly vivid and persuasive images. (Call this policy VividWarning.)...[W]e can confidently predict that these images v«ll move every-one who receives the warning...to heed it. Hovifever, because the leaflets and

^ It is not, by assumption. Curious' aim to become contaminated. She can be thought ofas thoughtless, reckless, or weak-willed. For a real-life example of Curious-like behavior, seeDale Dominey-Howes and James Goff, 'Tsunami: Unexpected Blow Foils Flawless WarningSystem,' Nature 464 (18 March 2010): 350.1 am grateful to Jacob J. Krich for drawing my atten-tion to the letter in Nature and to him and Andrew Williams for discussion of this point

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announcements will be more costly to produce, the campaign's coverage willhe somewhat less extensive. As a consequence, though an attempt will bemade to reach everyone, we can confidendy predict that one person vnWremain uninformed and -wiW be outside on his daily stroll on the day of theexcavation. (Call this person Walker. Again, suppose we don't know who thisperson will be.)

Suppose that Curious and Walker are equally well-off prior to the hazardousmaterial removal, and that the harm suffered by Curious under InformEveryone is just as great as the harm suffered by Walker under Vivid Warning.̂

Voorboeve assumes tbat we must opt for Inform Everyone (IE), tbe policytbat offers everyone a cboice, over Vivid Warning (VW), wbicb does notgive Walker tbe cboice to avoid barm. As be points out, tbis conclusion isintuitive, and in line witb wbat empirical data reveal about people's actualpolicy preferences.^ I will accept for tbe purposes of tbis discussion tbat agood account of bow cboice can bear on policy selection sbould, ideally,explain why we ought to pick IE over VW. Tbe policy dilemma representstbe intuitive constraint on an account of tbe significance of cboice.

2. The Value of Choice

Can Scanlon's account select tbe right policy? I agree witb Voorboeve tbatit cannot. Recafl tbat Scanlon's value of choice account aims to explain thesignificance of cboice witb reference to its value. Specifically, Scanlon iden-tifies tbree ways in wbicb cboice can be of value to tbe choice-bearer: it canbave symbolic, representative, and/or instrumental value. Cboice bas sym-bolic value wben being offered it signifies tbat one is to be treated as some-one wbo sbould make bis or her own cboices. It has representative valuewhen it allows people to represent wbo tbey are through actions and tbeiroutcomes. It bas instrumental value wben baving tbe choice makes it morelikely tbat one will end up witb better outcomes tban bad tbe cboice beenabsent. It is tbe instrumental value of cboice for the choice-bearer tbatbotb Scanlon and Voorboeve tbink is relevant in tbe context of tbe policydilemma in question and is my focus bere.^

Why is tbe instrumental value of cboice relevant to policy selection?Because, according to Scanlon, '[i]f a person has been placed in asufficiently good position, tbis can make it tbe case that be or sbe bas

Voorhoeve, SSR, 184-5.Voorhoeve, SSR, 185-6, n3.Scanlon, WWO, 251-3,257; Voorhoeve, SSR, 188.

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no valid complaint about what results.''" Being offered an instrumentallyvaluable choice may mean being placed in a sufficiently good position andlacking complaint that the choice-granting policy was adopted. FollowingVoorhoeve, let me de-code 'being placed in a sufficiently good position' as'being offered opportunities which generally lead people to avoid harm'and let me interpret Scanlon's admittedly more tentative claim as one offer-ing sufficient conditions for choice to count in favor of the choice-grantingpolicy." These moves deliver the following policy principle:

The Value of Choice Policy Principle: If a person is given opportunities whichgenerally lead people to avoid barm, tbis alone is sufficient to count in favor ofthe policy that offers it ratber tban an alternative that, while otherwise thesame, offers no such choice.'^

This principle, however, cannot recommend selecting IE over VW. True, IEoffers Curious a choice that VW denies to Walker but the choice that IEoffers to Curious is not instrumentally valuable to her; it does not lead herto avoid harm. In fact, IE places Curious in no better position than Walkeris placed under VW (resulting in a policy tie).'^

In response it could be observed that the above principle only asks thatthe choice in question be such that it generally leads 'people' to avoidharm, not that it leads everyone to avoid harm. Within the Scanlonianframework, we should think of 'people' as 'anyone whose situation andfeatures can be characterized in a generic way.''"* Should Curious' situationand features be seen as generic or as specific to her? The two potentiallynon-generic features of Curious' case are the fact that, for her, satisfyingher curiosity is an important aim, and the fact that she comes to harmas a result of pursuing it. Following Scanlon, we can accept the first fact asnon-generic. This means that when designing policy we need not see

•" Scanlon, WWO, 258." Since I will not criticize Scanlon on tbe grounds tbat tbe conditions are insufficient,

1 assume tbe move is permissible. For sucb a criticism, see Williams, 'Liberty, Liability...,'248-252.

'̂ Voorboeve, SSR, 186, attributed to Scanlon, WWo, 258. For tbe sake of focusing on whatmatters, I assume tbat certain background conditions are met: (1) it is not possible to offerPareto optimal improvement; (2) tbe distribution of the opportunities does not violate anyindependent principles of justice.

'ä Giving us reason to alternate between tbe policies or to toss a coin.'•' Scanlon bas argued that wben assessing policies, we sbould only pay attention to

'generic reasons' - reasons wbicb we can understand people bave (for or against tbe policy)in virtue of certain general characteristics rather tban anytbing that must be attributed tothem as specific individuals. Scanlon, WWO, 204-6 and 263; Voorhoeve, 189.

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Curious' aim as genuinely important. But, as Voorhoeve correctly observes,this does not undermine the relevance of the second fact to policy: the factthat in pursuit of her aim Curious comes to harm. Indeed, as Scanlon him-self has argued, it counts as a reason in favor of offering further protectionthat 'some people [such as Curious] are likely to choose unwisely.' So theeffects on people's safety of a given policy are relevant to assessing thepolicy in question.15 Thus we cannot see IE as offering Curious sufficientprotection from harm and we lose our reason to prefer the choice-grantingpolicy, IE, to VW.

But even if Scanlon's own argument would not compel him to seeCurious' case as appropriately generic, the choice IE offers Curious is clearlynot instrumentally valuable for her. And if, like Scanlon, we are concernedwith immunizing our account of the significance of choice from the threatposed by the causal thesis to individual agency, it seems appropriate, asAndrew Williams has argued, to pay attention to Curious' individual situa-tion.'^ This should lead us to doubt that the intuitive constraint can be metwith reference to the instrumental value of choice for the choice-bearer.

3. The Potential Value of Opportunities

Does Voorhoeve's potential value of opportunities view offer a betteraccount of the significance of choice? I will argue that the reason why itdoes better than Scanlon's account in meeting the intuitive constraint isthat it ignores the key desideratum that Scanlon has set for his account:compatibility with the causal thesis.

Like Scanlon, Voorhoeve attempts to locate the significance of choice byreference to its instrumental value for the choice-bearer. But, on his view,what matters is whether offering people choices can increase the potentialvalue of their opportunities. What is the potential value of opportunities?It is a function of'the value of the various things that... [the person] canachieve through her choices as well as ... [her disposition] to choose herbetter options and avoid her worse options.' If the person is not in a goodposition to make an informed choice - because, say, a given policy simply

'̂ Scanlon, WWO, 263; Voorhoeve, SSR, 189-90. Voorhoeve shows that the fact that gather-ing information about policy harmfulness is costly does not rule out adopting VW ongrounds of cost. This is because such information is often already available. I thank an anon-ymous referee for helping me clarify this section.

'̂ Williams, 'Liberty, Liability...,' esp. 253-259.

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denies her choice (think of Walker under VW) - the value in question isreducible simply to the value of the outcome that befalls her.'̂ So thepotential value of one's opportunities is the value of the outcomes that arecontained in one's option set adjusted (somehow) for the disposition of thechooser to choose one way or another; the potential value is reducible tothe value of the realized outcome in cases where no informed choice undergood conditions is open to the agent.

Although Voorhoeve interprets Scanlon's value of choice view as issuingin sufficient conditions for the absence of complaint over policy choice, hedoes not explicitly state his alternative conditions. Nonetheless, the textimplies the following:

Potential Value of Opportunities Policy Principle: If, in the absence of otherdifferences, the worst (least potentially valuable) option set of policy 1 is betterthan the worst option set of policy 2, and the best option set of policy 1 is atleast as valuable as the best option set of policy 2, this alone is sufficient tocount in favor of policy 1 over 2.'̂

How does the principle deal with the policy dilemma? Under VW thepotential value of Walker's opportunities (or the value of his option set, forshort) equals the value of the outcome he ends up with (i.e. severe harm),since he is not in a position to choose to avoid harm. The value of the optionset of Curious under IE is different: the value here is a function of the twoopportunities she faces - severe harm and no harm - as well as her disposi-tion to choose. Although Curious is, by assumption, highly disposed tochoose badly, the total value of her option set is seen by Voorhoeve asgreater than the value of the worst outcome in that set (i.e. severe harm).'^Thus the fact that Curious enjoys choice under IE that Walker lacks underVW counts in favor of adopting IE.

Voorhoeve's account succeeds where Scanlon's has failed on account ofthe simple fact that it looks not only at whether having a choice will improvethe choice-bearers' actual outcomes (which it won't under the policydilemma), but also asks that we consider alongside the value of the actualoutcomes the value of the potential ones. Voorhoeve's success in meeting

" Voorhoeve, SSR, 195-6. Strictly speaking, Voorhoeve suggests also that the potentialvalue of opportunities reduces to the outcome that befalls a person if she 'carmot reasonablybe expected to choose differently" and it may be unreasonable to expect different choicesfrom those who were in a good position to choose. I am grateful to an anonymous referee forthis point and suggestions for rephrasing here and elsewhere in the paper.

'* Voorhoeve, SSR, 195-200.'̂ To know how much greater, we would need information about Curious' disposition

and how to incorporate it into the potential value.

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the intuitive constraint turns, then, on stipulating that (1) the potentialvalue of opportunities is what we should pay attention to and (2) that thepotential value of opportunities is reducible to the value of the actual out-comes if and onfy if the person in question, like Walker under VW, was notin a good position to avoid the outcome by judicious choice. But, as I amabout to argue, if the causal thesis is true, then the most plausible wayof measuring the potential value of people's opportunities annihilates thedifference in the value of Curious' and Walker's option sets.

To show this, let me re-examine how Curious and Walker can come toharm, adding detail that is necessary to see what is going on in the scenarioif the causal thesis is true. There are two possibilities to explore, dependingon whether choices are caused deterministically or not:

(1) If determinism is true, we can justifiably represent Curious' disposi-tion to choose badly under IE as 100%.̂ ° Once we do so, it becomes unclearwhy the potential value of the opportunities faced by Curious (under IE)should be measured as higher than those faced by Walker (under VW). IfCurious is 100% disposed to choose badly, doesn't the value of her optionset reduce to the value of the outcome that she is bound to suffer under IE?Tbis, of course, would make the worst option set under IE no better thanthat under VW, thus eliminating the previously identified reason to selectIEoverVW.2i

To defend the claim that, if determinism is true, the potential value ofCurious' opportunities should be seen as no higher than Walker's, considera slightly changed scenario. Imagine that whether IE or VW is adopted, thesame individual will end up harmed. Is it really more valuable for this per-son - call her Curious-Walker - if we adopt IE rather than VW? Is she reallygiven more of an opportunity to avoid harm if one policy is adopted ratherthan another? There seems to be no good reason to think so. To drive thepoint home, imagine that it would in fact cost us marginally more to adoptIE rather than VW but that we could afford to do so. If Curious-Walker'soption set under IE were more valuable than that under VW, and assumingno other effects, she would plausibly have a claim that IE be selected.However, itseems to me that ifwe knowforsure that Curious-Walker would

^° This assumption fits with Voorhoeve's account. Voorhoeve, SSR, 195-6, mo and 199, ni4.'̂ There might be a sense in which the value of Curious' option set might be higher than

that of Walker's on account of the symbolic and representative value of choice. ButVoorhoeve's focus is on the potential value of opportunities with respect to the outcomesthey condition. Also he could not fall back on this value without making it available toScanlon.

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end up barmed under eitber policy, we would bave no reason grounded intbe potential value of ber opportunities to adopt IE over VW.

My more general point can be put as follows. If determinism holds, thentbe potential outcomes of someone's option set are not really potential atall: tbey are illusory since tbey are open only nominally. Given that Curious'disposition is wbat it is, IE does not give Curious more of an opportunity toavoid barm tban if sbe were given no cboice.

(2) If probabilistic causation operates, we migbt assume tbat Curious'disposition to cboose badly under IE is less tban 100%; say sbe is only 50%disposed to cboose badly and faces a 50% chance of suffering harm. In tbiscase, we should also assume tbat under VW Walker's cbance of ending upbarmed is 50%.'^^ How sbould we now compare tbe potential values oftheir opportunity sets? Voorboeve bolds that:

Of course, heing exposed to the danger of coming to harm through choosinghadly differs from being exposed to a danger that one cannot avoid by choosingappropriately. In line with the common judgments outlined at the start of thisarticle, we should hold that the person who would face a danger of incurring aharm that she could avoid by choosing appropriately has less of a claim for thisdanger to be eliminated than someone who would face an equivalent dangerof a harm that he could not so [i.e. hy choosing appropriately] d^^

But can we ground tbis assertion witb reference to tbe potential value ofWalker's and Curious' option sets? If tbe causal tbesis is true, is tbe poten-tial value of opportunities faced by each really different even if both facetbe same (50%) risk of barm? I do not tbink so. It would be counterintuitiveto insist tbat tbe potential value of Walker's opportunities is simply equiva-lent to the outcome tbat ultimately results no matter bow likely tbe out-come was. Given this, it is bard to avoid tbe conclusion that tbe potentialvalue ofWalker's opportunities equals not tbe value of bis outcome but tbevalue of all bis possible outcomes given tbeir probabilities. Tbis conclusion,however, would erase tbe difference in potential value between Walker'sand Curious' opportunities.

Voorboeve migbt try to empbasize tbe fact tbat only Curious faces acboice with respect to suffering severe harm\ Walker may face a choice witbrespect to going for a walk, say, but, since be knows nothing of tbe danger,be is not in a position to cboose wbetber to suffer severe barm. But Curious,of course, is assumed to lack regulative control and tbus tbe ability to

'"• Assume that each policy still harms one person. This is not statistically sound but oth-erwise nothing is lost by sticking to the stylized example.

23 Voorhoeve, SSR, 197, ni2.

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control her choice. It therefore remains mysterious why facing one kind ofchoice rather than another would be potentially more valuable with respectto the range of outcomes. We are back to the same difficulty as in theCurious-Walker case above: it is unclear why, if people lack regulative con-trol, the potential value of one's opportunities would track anything beyondthe value of possible outcomes given their probabilities. That is, whenpeople do not control their choice, it is unclear why it should uniquelyaffect the potential value if one's option set includes a possibility to choosethat does not affect one's odds, relative to Walker's, and that one cannotcontrol.

To marshal our intuitions in support of this final point consider a policythat, unlike those mentioned above, is, thankfully, not a realistic option.Imagine that we could adopt a policy of Informed Hypnosis (IH), whichwould mean informing everyone in a cursory manner of the dangers posedby the waste removal and subjecting them to hypnosis.^ The hypnosiswould be aimed at ensuring that people want to stay at home at the wasteremoval time. Nonetheless, under IH, exactly one person - Obedient -would suffer severe harm: the hypnosis would make him walk to the con-taminated site at the wrong time. How does the potential value of Obedient'soption set under IH compare to that of Walker's under VW and Curious'under IE? It depends, in my view, on whether we think that hypnosisdeprives Obedient of control over his actions. If it does, then there is a clearsense in which the potential value of Obedient's opportunities is no greaterthan that of Walker's under VW, since he is not in a position to choose toavoid harm. But this suggests that perceiving the potential value of Curious'option set as greater than that of Walker's depends on assuming thatCurious is not like Obedient - that she does have control over what shechooses to do. This is precisely what is denied by the causal thesis.

In the end there might be another way in which the alleged difference inthe potential value of the opportunity sets faced by Curious and Walkermight be explained. Until then, however, the potential value of opportuni-ties view does not tell us why, if the causal thesis is true, we should see thepresence of choice as of special significance to the chooser that goes beyondits value identified by Scanlon. It therefore appears that the only reasonwhy the potential value of opportunities view is able to select the intuitivepolicies, where Scanlon's view fails, is that it ignores the constraint thatScanlon's view was specifically designed to meet. This might lead some

^ where bypnosis is understood as it is in pbilosopby ratber than psychology: it over-rides the agent's will.

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simply to dismiss the external constraint. But if we take Scanlon's projectseriously, we are left unsure if we can improve on his own accountand whether, if people lack regulative control, IE really should be pickedoverVW.25

4. The Power of Choice

The challenge for an account of the significance of choice is to show whychoice can bear on policy selection even if, given the causal thesis, choiceis not a device allowing agents to freely shape what befalls them, but aharness that forces them towards a given outcome. While this harness canbe of value, or potential value, it is not when it fails to protect the choice-bearers any better than they would be protected in its absence. My sugges-tion is that, instead of locating the significance of choice in its value orpotential value in cases such as these, we take a step back and ask why thechoice bearers need protecting in the first place. If the answer is, as it some-times will be, that they need protecting only because they act (choose)without due regard for the interests of others (not just their own), this factundermines the appropriateness of accommodating such choices by opt-ing for policies that are costly to these others. I call this account the Powerof Choice view (the PC view):

Power of Choice Policy Principle: If two policies are tied on outcomes butpolicy 2 is needed (to a greater extent than policy 1) only because some,through how they choose or are prepared to choose, do not accord due weightto the interest-based entitlements of others, this alone is sufficient to count infavor of policy 1 over 2.

On this view, choice bears on policy selection because having a choice givesa person the power to unduly affect what others get (to deny them some-thing they ought to have due to inappropriate concern for their interests),but it should not give the person the power to affect what they are entitledto. Let me explain and motivate this view. I will argue that Curious' actions(choices) can fall into the category of choices that should not be accom-modated at the cost of adopting a VW that is harmful to Walker.

My view invokes the notion of entitlements, and, of course, IE and VWdistribute entitlements to the means and burdens of avoiding contamina-tion. Thankfully, the specific context renders mute a host of possible

I thank an anonymous referee for discussion of this point.

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sources of entitlements (say, promises) so that we are left considering sim-ply the costs and benefits of each policy to Curious' and Walker's interests.Both policies come with identical harms (sickness) but with differentavoidance burdens, i.e. the burdens that one would need to undertake toavoid the harm. Thus, the avoidance burden for Walker under VW is muchheavier (more costly to his urgent interests) than Curious' avoidance bur-den under IE. For to avoid contamination Walker would need to seek infor-mation on air quality whenever venturing out, or to stay in an environmenthe can control.̂ ^ Curious would only need to forgo satisfying her curiosityand the help that a vivid warning would offer with this task: the cost here isfairly trivial.̂ ^ So IE grants Curious the option to avoid harm at a trivial cost,while VW only offers an equivalent option to Walker at a very high cost.Now, I take it as axiomatic (and uncontroversial) that, in general, people arenot entitled to something that would impose severe harm or burden to oth-ers for the benefit of not bearing trivial costs.̂ ^ So if the relevant costs areas stipulated, we have a reason to adopt IE rather than VW.

But the causal thesis generates two challenges to this allocation ofentitlements. The background challenge holds that when people lack regu-lative control the whole idea of entitlements makes no sense. The specificchallenge holds that (while entitlements make sense even if people lackregulative control), the specific distribution of entitlements - adoptingIE - presupposes that people enjoy regulative control. In what followsI want to show that the specific challenge cannot work at least when decou-pled from the background challenge. And while I will not consider the

^^ Notice that Walker under VW can avoid the harm by acting differently, even if he can-not make an informed choice about it. Should the cost of the avoidance burden exceed thatof the harm one is trying to avoid, we should consider the latter cost. Similarly, should apolicy render coming to harm entirely independent of one's actions, we would need toequate the cost of the avoidance burden with that of the inevitable harm. I am grateful toan anonymous referee for pointing out ambiguities in the earlier version of my argumenthere.

2' The background assumptions are that it is not very costly for Curious to stay at homeand that the cost of not satisfying her curiosity is negligible; she won't suffer independentharm or psychological trauma.

8̂ I am not claiming that people can never permissibly impose severe burdens on othersin pursuit of something trivial (they can, for example, close short-cuts through their landeven when this imposes a severe burden on others). I am suggesting that insofar as a personis not already entitled to perform some action on other grounds (say because she owns someproperty), she is not entitled to impose severe burdens for some slight benefit to her. 1 amalso not claiming that it is impermissible to impose small burdens on others (say, makingthem inhale air that will cause two weeks of coughing) in pursuit of something trivial.

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background challenge, and will not show that it fails, I think that acceptingit would be a pyrrhic victory: it would mean giving up on the whole projectof normative theory.

How does the specific challenge work? It argues that the fact of IEimposing a light avoidance burden on Curious is irrelevant to policy selec-tion. If the causal thesis is true, it points out. Curious cannot (choose to)avoid harm and it is, therefore, beside the point that taking up this optionrequires only a trivial sacrifice. What matters are only the actual outcomesthat befall people, not the costs of options that they could not have ulti-mately chosen. And since the outcomes are equally harmful under eachpolicy we should see them as equally (dis)valuable. We lose our reason toadopt IE over VW.

But, notice, in response tbat we could grant that both policies are equally(dis)valuable without granting, however, that this renders irrelevant thefact that they come with different avoidance burdens. To explain why, letme appeal to the fact that choice has two features that are potentially rele-vant to policy selection, and only one of them is rendered irrelevant by thecausal thesis. The first feature of choice is that choice-bearers potentiallyenjoy some control over tbe outcomes that are accessible to them. Thecausal thesis blocks tbis feature of choice, which is why being grantedchoice is not valuable to Curious. The second feature of choice is thatchoice-bearers are placed in a situation in which their actions reflect theirpreferences (includingjudgments, reasons, reactions, and attitudes) for theselected option over the alternative that was also, even if only nominally,open to them. I will argue below tbat this feature of choice is not blockedby the causal thesis. First, however, let me explain its relevance.

Why should the fact of choice-bearers' actions reflecting their prefer-ences allow us to recognize avoidance burdens as relevant to policy selec-tion? Consider, first, that it is integral to the idea of entitlements that for aperson to be entitled to something, the content of her entitlements shouldnot change simply because others do not accept that she is entitled to thatthing. For example, if we were trying to allocate manna from heavenbetween the two of us, the mere fact that I wanted and gathered all themanna for myself would obviously not make it the case that you are notentitled to any. More generally, people do not lose what they are entitled tosimply because others fail to accord due weight to their interests, privileg-ing their own instead. This simple thought has an implication: we cannotselect entitlement-allocating policies simply by comparing the harmfuloutcomes that would actually materialize under each. This is because thereason why some harmful outcomes materialize in the first place may be

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tbat people act without due regard for the interests of otbers. When this istbe case we need to make sure that tbe policies we adopt in response - say,offering costly protection - do not sanction such mistreatment by impos-ing severe harms or burdens tbat eat into tbe entitlements of those wboseinterests were disregarded. Tbis means tbat we must consider not only tbeharmful outcomes of eacb policy but also tbe avoidance burdens and wbythey were not taken. Tbe avoidance burdens matter not because tbey aregenuinely open but because if tbey are trivial or reasonable, then tbe facttbat tbey were not pursued may be due to preferences tbat ought not to beallowed to impose higb costs on otbers.̂ ^

Returning to tbe policy dilemma, I want to suggest tbat tbe aboveanalysis shows wby we may bave a reason to select IE over VW. To seewby, we will need to consider Curious' motives (preferences) beyondtbe fact tbat sbe is curious but prefers not to come to barm. Tbis is notan arbitrary revision of tbe scenario; my claim is tbat our intuitionsregarding policy selection do and sbould be sensitive to these additionalconsiderations.

Consider, then, first, tbe easier case, in wbicb Curious knows tbat tbetrue cost of offering ber vivid warning is severe barm to Walker's bealtb (ortbe burden of verifying air quality at every step). Tbe cost to Walker ofadopting VW is very bigb, then, but Curious could respond - in line witbthe specific challenge - tbat preferring IE for tbis reason is, nonetheless,unacceptable because tbe benefit to ber of baving a vivid warning is hardlytrivial - it is tbe avoidance of severe barm, so botb policies are tied. But tbisresponse sbould be rejected. For if Curious' actions are guided by her pref-erences, and if sbe is aware of tbe advantages and disadvantages of eacbpolicy, tben tbe reason wby a dry warning of tbe IE does not suffice to steerher away from barm is tbat sbe does not accord due weigbt to Walker'sinterests. Wby? Because if sbe did accord due weigbt, she would eitber fol-low tbe dry warning (eliminating tbe need for VW), or sbe would go on tosatisfy her curiosity only if tbis did not trigger beavy costs for Walker.Otberwise sbe ignores tbe cost to Walker for no good reason. And if entitle-ments sbould not be altered simply because otbers fafl to accord due weightto tbe interests of others, tben tbe fact tbat Curious is not moved by a meredry warning to stay clear of tbe barm sbe does not wish to bear, despiteknowing tbe bigb costs to Walker of protecting her better, undermines her

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

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case for VW. VW is only called for because Curious is unwilling to act withdue concern for Walker, but such choices should not be accommodated atWalker's expense.

Assume next that Curious does not know what policy dilemmas andcosts are triggered by her willingness to satisfy her curiosity. Still, under IEshe is informed of the danger of contamination. If she is unmoved by thisto stay out of danger, what can we say about her treatment of others? Thiscase is more complicated. It seems that Curious' choice to ignore the warn-ing does not amount to a mistreatment of others if she has a good reason tomistrust the (dry) warning, or to think that no one else will bear heavycosts, or that she is acting on an interest that is important enough to justifyburdening others in an effort to stop her coming to harm. But if, instead,she ignores the warning simply because she is curious and does not careabout possible costs to others of keeping her safe, then she is, even now,acting without due regard for the interests of others. That is, acting in igno-rance of the consequences is inappropriate if one lacks excusing reasonslike those mentioned above. In this case, VW would be needed only becauseof Curious' unwillingness to act with due concern for others, which countsagainst the policy.

My account satisfies the intuitive constraint only in the subset of casesin which Curious' actions can be understood to show lack of due concernfor Walker's interests. But perhaps a view that can meet the intuitive con-straint only in some cases is not, in the end, problematic. If Curious'response to (dry) warnings does reflect a reasonable grasp of everyone'sentitlements, and given that she has no regulative control over her actions,it is not obvious that we should prefer the policy that will pile the harm onher. Similarly, if Curious had a good reason to mistrust the (dry) warning,then it is not even obvious that we should see her as genuinely informedunder IE. Moreover, I have tried to suggest above that such cases are morefrequent than it might at first appear. They can arise even if Curious doesnot have a perfect grasp of her situation. In fact we may speculate thatoften, when people are aware of limited public resources and the state'sduty of care, it is reasonable for them to consider how costly their exposureto danger might be for others.^"

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

z. Stemplowska /Journal ofMoral Phibsophy lo (2013) 488-507 505

It could seem philosophically odd, however, that my account cannotrecommend selecting IE if Curious is prepared to bear the harm sheexposes herself to (since VW can no longer be seen as an accommodationof her disregard for the interests of others). This might appear paradoxical:when Curious herself prefers IE, we lose our reason to prefer it to VW. Butthere is no problem here. True, since Curious' actions are not meant toburden others, we need not worry that adopting VW accommodates mis-treatment of others. Nonetheless, were we to select VW, Curious' prefer-ences would, as a matter of fact, impose high costs on Walker. And sincethis is something that, by assumption. Curious does not want (and nordoes Walker) this offers us a consent-based reason to opt for IE. Of course- as Scanlon has argued - the mere fact that someone accepts some cost toherself does not settle where this cost ought to fall.̂ ' But it might perhapsact as a tiebreak when there are no other relevant policy differences. Evenif it cannot, we can still point out that over time Curious' preference toshield Walker from costs while exposing herself to danger would proveunstable once updated in the light of evidence. So even if initially we lacka reason to opt for IE, we can acquire one simply by informing Curious ofthe true costs.̂ ^

Let me, finally, return to the causal thesis. It might be objected that iteliminates the ability of agents to act on their preferences: if actions areexternally caused, then they do not stem from agents' preferences. But whynot? As Scanlon has argued, the fact that someone cannot choose other-wise does not entail that what she chooses does not stem from her prefer-ences.̂ ^ All the PC view requires is a shallow notion of causation, one thatwould attribute causal effectiveness to the keys on my keyboard for produc-ing letters on my computer screen. Similarly, even if I cannot choose my 1"order and 2"'' order preferences -just as the keys cannot choose what let-ters they will trigger - the fact that I regularly listen to Chopin can be seenas caused by my preferences. It might be objected that a deeper notionof causation is necessary to establish substantive responsibility; shallowcausation does not make the keyboard keys responsible for the letters that

of their conduct, see Zofia Stemplowska, 'Makingjustice Sensitive to Responsibility,' PoliticalStudies 57 (2009): 237-59.

^' T.M. Scanlon, The Difficulty of Tolerance, Cambridge University Press 2003, 266. CfKeith Hyams, 'When Consent Doesn't Work,' Journal of Moral Philosophy 8 (2011): 110-138.This can be seen as a consent feature of choice.

'^ lam grateful to an anonymous referee to pressing me to clarify the limits of my account33 Scanlon, WWO, 267-90, esp. 281-2. Indeed this is why choice has representative value.

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they trigger. But then keyboard key movements do not reflect any prefer-ences. If they did and if their choices had the power to alter what othersend up with, this would give us a reason to worry if our policy responses, inaccommodating their actions, end up making a mockery of the entitle-ments of others.

Of course, since we know so little about humans, we cannot be certainthat preferences have any causal role in guiding action, but my claim is notthat they do but that the truth of the causal thesis is compatible withassuming the existence of such a causal mechanism (alongside othermechanisms that can trigger compulsive or automatic behavior). And sincethe existence of the relevant mechanism seems plausible in its own right,we can include the condition that people's actions stem from their prefer-ences among the set of conditions necessary for choice to bear on thepolicy dilemma. As advertised in the introduction, I am, after all, nottrying to establish that the presence of choice will always weigh in favorof the choice-granting policy but only that it can do so, under certainconditions.

In summary, then, my main claim is that the causal thesis blocks onlyone consideration in favor of IE, but leaves another in place. It blocksappeals to the fact that IE offers Curious a more valuable choice than VWoffers to Walker, since Curious can choose to escape the harm while Walkercannot. If the causal thesis is true, neither can choose to escape the harm.However, it leaves in place the consideration that Curious does not have aclaim to a better choice for herself, at Walker's expense, than the one IEalready offers her, if the reason why a better choice is necessary to protecther is that she fails to accord due weight to the interests of others. Put moreprecisely, the presence of choice counts in favor of the policy that grants it(i) when the policy's failure to better protect the choice-bearers arisesbecause the choice-bearers do not accord due weight to the interests ofothers and (ii) on the grounds that the failure to accord due weight to theinterests of others should not affect people's entitlements.

5. Conclusion

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

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does not protect from harm. Scanlon has argued that there is instrumentalvalue in being offered choice even if it leads to bad outcomes, provided thatbeing granted it would in general make better outcomes more likely.However, as Voorhoeve has pointed out, this answer does not explain whyit sometimes seems preferable to opt for policies that offer choices thatmake better outcomes less likely than had no choice been offered.Voorhoeve's own solution to this problem was to focus on the potentialvalue of choice, but this response seems plausible only if we put asideScanlon's concern to make the account of the significance of choiceimmune to the threat of the causal thesis.

I have attempted to offer an answer to the problem identified byVoorhoeve within the constraint set by Scanlon. The presence of choicecounts in favor of the policy that offers it when scrapping the choice wouldprotect conduct that mistreats others (because the person imposes or isprepared to impose severe burdens on others for a trivial benefit for her-self). This account of the significance of choice is an addition to, ratherthan a substitute for, Scanlon's value of choice view. And it builds onScanlon's insight that choice can have representative value. That choicescan represent choice-bearers may be of value but it also matters becausewhen choices reflect one's disregard for others, they should not be accom-modated with policies that make them costleiss to the choosers at a heavyexpense to those whose interests have been disregarded.

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