Richard Rowland - Otsuka's Left-Libertarianism and the Abandonment Objection

8/8/2019 Richard Rowland - Otsuka's Left-Libertarianism and the Abandonment Objection

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10 April 2010, CEGP Political Theory Graduate Conference, LUISS ‘Guido Carli’,Rome

Otsuka’s left-libertarianism and the abandonment

objection

Abstract

In this paper I argue that Michael Otsuka’s left-libertarian theory of

distributive justice allows uninsured drivers involved in accidents,

for which they are responsible, to be left by the side of the road

unaided, even if they will die without assistance; Otsuka cannot

follow the strategies to preclude such abandonment that have been

utilised by luck egalitarians to answer the charge that they permitthe abandonment of uninsured drivers. Otsuka’s theory, as

presented in Libertarianism without Inequality , distributes worldly

resources to provide individuals with opportunities for welfare and

not to provide individuals with outcomes—such as fulfilling

individuals’ basic needs in all but extreme circumstances. The only

conditions on what individuals’ can do with themselves and their

resources are prohibitions that prevent individuals from utilisingresources in a way that upsets the pattern of distribution in line with

equality of opportunity for welfare, and prevents them from

breaching others’ robust libertarian self-ownership rights. But, if

individuals may do anything with themselves and their resources, so

long as they do not upset equality of opportunity for welfare and

individuals’ possession of robust libertarian self-ownership rights,

and if individuals’ are only ensured opportunities and not outcomes,then Otsuka’s theory permits the abandonment of uninsured

drivers. Luck egalitarians preclude such abandonment in three

distinct manners: through paternalistically forcing individuals to

take out insurance, through forcing individuals to insure on the basis

that their failure to do so will impose costs on others, and through

making the abandonment of individuals impermissible by appeal to

a value other than equality, or to another egalitarian value. I arguethat forcing individuals to take out insurance in order to preclude

Richard Rowland – [email protected] 1

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abandonment on the basis of the costs otherwise imposed on others

or on paternalistic grounds is in direct conflict with Otsuka’s theory,

and that so is any strategy of precluding abandonment by appeal to

other values—such as basic human needs or another conception of equality. I conclude that Otsuka must either modify his theory in

order to preclude abandonment or hold that justice and equality do

not require that uninsured drivers be given medical attention, even

if they will die without it, after they are involved in accidents which

they are responsible for.

1. Introduction

This paper is inspired by a concern that although Michael Otsuka’s

left-libertarian theory of distributive justice is deeply attractive, it

may have consequences that detract from its allure, and/or that do

not cohere with our intuitions; that give us reasons to reject his

theory. In the following I present one reason to reject Otsuka’s left-

libertarianism. I argue that Otsuka’s theory leads to the

permissibility of the abandonment of uninsured drivers by

emergency services; that is, the permissibility of leaving drivers who

are involved in car crashes but have no medical insurance to suffer

and even die without medical attention. The wealth of discussion

of, and responses to, the abandonment objection demonstrates that

many hold the intuition that a just and/or egalitarian society should

not permit the abandonment of uninsured drivers1. But I do not

here argue that the intuition that uninsured drivers should not be

abandoned is an intuition that should lead us to reject a theory that

permits such abandonment. Instead, I argue that those who hold

that it is always impermissible for uninsured drivers to be

abandoned by medical services have a reason to reject Otsuka’s

theory since his theory permits such abandonment. In section 2 I

1

See Segall (2007), Bou-Habib (2006), Brown (2005, pp.298-308), Knight (2005,pp.56-59) (2009, pp.136-142, pp.199-210, p.233), and Dworkin (2002, pp.114-115).








elaborate Otsuka’s theory of distributive justice, and demonstrate

that Otsuka’s theory appears to permit abandonment. In section 3 I

elaborate three types of responses to the abandonment objection

made by luck egalitarians that show how luck egalitarians can avoidpermitting abandonment. In section 4 I argue that Otsuka cannot

preclude abandonment by utilising these strategies.

2. Otsuka’s Left-Libertarian Theory of Distributive Justice

2.1 Distribution

In the first chapter of his Libertarianism without Inequality (LWI)

Michael Otsuka elaborates the fundamentals of his theory of

distributive justice, which consists of the requirements of his

particular conceptions of two values: self-ownership and equality.

For Otsuka, equality requires that each person is distributed—or

rather distributed permission to acquire2—a particular amount of

worldly resources, varying with the opportunities for welfare persons

possess naturally and the opportunities for welfare shares of worldly

resources will provide to particular persons3. Individuals are entitled

to an ‘equally advantageous share of unowned worldly resources’4,

where Alpha’s share is as advantageous as Beta’s share if Alpha

2 In Libertarianism without Inequality (Otsuka 2003, hereafter LWI) Otsukaelaborates an ‘egalitarian proviso’ that allows the acquisition of certain resources;See LWI, p.24, see also pp.22-29 for the unfolding of the fully specified proviso.But acquisition is a very thin notion in Otsuka’s theory: in order to acquire aproperty right in worldly resources that they are permitted to acquire, Otsukastates that individuals are able to (or rather ‘ought to be able to’) publiclyproclaim those worldly resources that they have laid claim to, perhaps subject to‘the resources in question being of some use to the claim-staker, where “use” isread broadly to include the benefit one could derive from trading them forsomething else or from investing them’; See LWI p.22 n.29. Due to the thinnessof the notion of ‘acquisition’ I discuss the ‘distribution’ of resources, for the sake

of simplicity.3 See LWI pp.25-274 LWI, p.24








‘would be able (by producing, consuming, or trading) to better

herself to the same degree’5 with her (Alpha’s) share of resources,

as Beta can better himself with his (Beta’s) resources. Better

himself/herself to the same degree is specified as meaning ‘to thesame absolute level of welfare’6. That is, Alpha’s share is as

advantageous as Beta’s share if and only if Alpha’s share allows

Alpha opportunity for the same absolute level of welfare7 as Beta

has with his share; not ‘Alpha has opportunity to obtain the same

amount of additional welfare from her share of resources, on top of

the level of welfare Alpha had before receiving her share of

resources, as the amount of additional welfare Beta can gain from

his share of resources, on top of the level of welfare Beta had before

receiving his resources’8.

The same absolute level specification demands that Alpha and

Beta be distributed vastly differential shares of resources, if, for

instance, Alpha is physically unable to engage in productive labour,

Beta is able to engage in productive labour, and Alpha and Beta are

otherwise similar. Because without such a capacity for productive

labour Alpha will ceteris paribus be unable to attain the same level

5 LWI p.276 LWI p.28, see pp.28-297 Welfare is ‘understood as the “satisfaction of the self-interested preferences thatthe individual would have after ideal deliberation while thinking clearly with fullpertinent information regarding those preferences”’; LWI p.27, quoting Arneson(1990, p.448).8 The following is an illustration of the difference between distributing equalshares that entitle individuals to equal absolute welfare and distributing equalshares that entitle individuals to equal additional welfare, in terms of the affect on

welfare levels:

Equal addit

welfarEqual a

welf








of welfare as Beta with the same amount of worldly resources, more

worldly resources are eo ipso distributed to Alpha. The additional

resources enable Alpha to trade with Beta, and/or others, so that

Beta’s productive labour can be exchanged for Alpha’s greaterworldly resources, and it is thus possible for Alpha to attain a level

of welfare equal to that which Beta can attain.

Worldly resources are distributed to provide persons with

equality of opportunity for welfare, but the distribution of worldly

resources in line with such is limited by the requirement that all

individuals must have ‘rights over enough worldly resources to

ensure that [they] will not be forced by necessity to come to the

assistance of others in a manner involving the sacrifice of [their] life,

limb, or labour’9. This limit on differential shares of worldly

resources is one that flows from Otsuka’s concern to make

individuals’ libertarian self-ownership rights (which I elaborate in

section 2.3) robust and not merely formal; and precludes such

distributions, demanded by equality alone, as one that, for example,

on a two person desert island, provides equality of opportunity for

welfare by allowing one person to acquire the whole of the island

and thereby force the other to work for him, if without those

resources the two individuals would not be able to subsist10, even if

such a distribution were the only way to establish equality of

opportunity for welfare11. Otsuka states that the self-ownership of

the able-bodied in such a case would be merely formal since their

alternative to not working for others is to die; Otsuka is concerned

that individuals have the option to subsist without having to work

for the good of others12. Still the robustness of self-ownership will

be a merely formal notion for many, since the robustness condition

only ensures that resources are distributed to individuals so that if

they were able to engage in productive labour they would be able to

9 LWI p.3210

See LWI p.33.11 See LWI pp.31-3212 LWI pp.32-3








subsist13.

Thus worldly resources are distributed in line with the following

two desiderata:

1. Firstly, worldly resources are distributed so that eachindividual has rights over enough worldly resources to ensure that,

if, or so long as, they are capable of productive labour, they will be

able to subsist without being forced ‘to come to the assistance of

others in a manner involving the sacrifice of [their] life, limbs or

labour’14.

2. Secondly, worldly resources are distributed to provide equality

of opportunity for welfare: Worldly resources are distributed so that

individuals are able to attain equal welfare via trading, labouring or

otherwise consuming their worldly resources15.

Otsuka provides the following ‘simple and artificial’ example of a

distribution of worldly resources that fulfils these two desiderata:

Imagine an island society divided into a large number of able-bodied

and a smaller number of disabled individuals. All the sea-front

property is divided among the disabled, and farmable land in the

interior is divided among the able-bodied. The able-bodied each

voluntarily purchase access to the beach in exchange for the provision

of food to the disabled. The result of this division of land is that the

disabled and the able-bodied are each able to better themselves to an

equal degree without anyone’s being forced to come to the assistance

of anybody else16.

2.2 Ownership Thus individuals’ shares of worldly resources are specified, but what

ownership of these shares of resources entails remains to be

understood. There are three specifications of the ownership of

worldly resources that determine what ownership of a worldly

resource means in terms of when one owns the worldly resources

13 See LWI, pp.32-33, see also pp.41-42.14

LWI p.3215 See LWI p.35, p.11, see also pp.33-35.16 LWI p.33








one has been distributed, and what this ownership enables one to

do with a resource. First, Otsuka specifies that one may not

bequeath worldly resources17; secondly, non-market transfers or

sharings of worldly resources that significantly disrupt equality of opportunity for welfare are prohibited or regulated, unless it is

possible to compensate non-beneficiaries18; and thirdly, when one

owns worldly resources is specified by the condition that individuals’

shares of worldly resources are subject to revision: the state is

justified in engaging in ‘ex post facto adjustments to people’s initial

shares in order to achieve equality’ of opportunity for welfare19.

Thus an individual owns a worldly resource only when their owning

such a resource is consistent with the realization of equality of

opportunity for welfare. Such redistribution for the sake of equality

of opportunity for welfare is, however, only justified when

departures from equality of opportunity for welfare are not the

result of choices ‘for which individuals can be held morally

responsible’20. (I discuss which choices individuals can be held

morally responsible for in section 4.1.2.)

These three specifications of the meaning of ownership of

worldly resources are specifications that flow from the conception of

equality that specifies the amount of worldly resources individuals

are distributed, namely equality of opportunity for welfare. The

limits on what one can do with one’s worldly resources and the

specification of when one owns the resources one was distributed

are made in order that worldly resources are exclusively patterned

to provide individuals with equality of opportunity for welfare—

restricted by the requirement that all individuals must possess

robust libertarian self-ownership rights—before individuals make

choices they can be held morally responsible for.

2.3 Permissions17 LWI pp.37-3818

LWI, pp.38-3919 LWI pp.39-4020 LWI p.40








As Otsuka’s theory stands individuals may do anything with their

shares of worldly resources, within the three specifications of their

ownership of such resources, as well as with the income they can

derive from their worldly resources

21

, and with themselves, and theincome and resources they can gain from themselves—these four

types of property individuals own I will refer to as ‘resources’ (tout

court )—so long as they do not breach others’ rights to their so

specified shares of resources, and others’ libertarian self-ownership

rights.

The following two rights of libertarian self-ownership establish

the remaining limits on that which individuals may do with their

resources, as well as establishing that individuals are entitled to the

income and resources they can gain from themselves and their

labour alone. As libertarian self-owners individuals possess,

(1) A very stringent right of control over and use of one’s mind and

body that bars others from intentionally using one as a means by forcing

one to sacrifice life, limb, or labour, where such force operates by means

of incursions or threats of incursions upon one’s mind and body (including

assault and battery and forcible arrest, detention, and imprisonment).

(2) A very stringent right to all of the income that one can gain from

one’s mind and body (including one’s labour) either on one’s own or

through unregulated and untaxed voluntary exchanges with other

individuals22.

Thus, individuals may not ‘intentionally’23 force others or threaten to

force others to perform any action, and may not rob others of the

income they gain from their mind and body alone or from their mindand body alone through transfers with others; that is, by such as

weaving one’s hair into clothes or entertaining respectively24.

If individuals may do whatever they wish with their resources

within these boundaries, if individuals are only distributed worldly

21 I have not demonstrated that individuals are entitled to all the income andresources they can derive from their shares of worldly resources, though no limitsor taxes on such income and resources are elaborated by Otsuka; I discuss this insection 4.1.4.22

LWI p.1523 See LWI pp.12-1524 See LWI pp.16-18








resources to give them opportunities and not outcomes, and if the

redistribution of worldly resources is not provoked by changes in

individuals’ opportunities that are the result of choices that they are

morally responsible for, then it would appear that Otsuka’s theorypermits the abandonment of uninsured drivers, since individuals

may decide to, or simply fail to, take out medical insurance to cover

them in the case of an accident, thereby precluding abandonment

by the medical services, and if individuals failed to take out such

insurance, it seems that on Otsuka’s theory, no-one could

legitimately force anyone to come to these non-insurers’ aid25. In

the next section I explain how ‘luck egalitarians’, who have been

made to face this objection, the abandonment objection, have

demonstrated that they can preclude the abandonment of

uninsured drivers.

3. The Abandonment Objection

In her 1999 paper ‘What is the point of Equality?’ Elizabeth

Anderson launched a thorough attack on a group of political

philosophers that Anderson named ‘luck egalitarians’26. In one of

her objections to luck egalitarianism Anderson asks her readers to

imagine that through his own choices, and not through chance or

luck, an individual does not take out the relevant medical insurance

policies, he then

negligently makes an illegal turn that causes an accident with another

car. Witnesses call the police, reporting who is at fault; the police

transmit this information to emergency medical technicians. When

they arrive at the scene and find that the driver at fault is uninsured,

they leave him to die by the side of the road27.

Anderson claims that in such a case luck egalitarians are committed

to justifying the act of abandoning the driver at the side of the road

25

See Infra note 2826 Anderson, (1999, p.290)27 Ibid. p.295.








even if this involves his death28, because the driver is responsible

for the crash, and responsible for not taking out medical insurance29,

on luck egalitarians’ conception of responsibility30, and luck

egalitarians are committed to the position that agents may sufferthe costs of choices they are responsible for31.

Those whom Anderson dubbed luck egalitarians have

responded to the abandonment objection in three distinct ways.

Ronald Dworkin restated his commitment to compulsory insurance,

which prevents such abandonment of individuals. One of the two

justifications for such compulsory insurance that Dworkin favours is

an ‘openly paternalistic’ justification, namely that ‘a decent society

strives to protect people against major mistakes they are very likely

to regret’32. Thus, one strategy is to make insuring against

abandonment compulsory on paternalistic grounds; individuals

should be forced to use some of their resources to take out

insurance to preclude the possibility of their abandonment.

A second justification of compulsory insurance against

abandonment is made on the basis of the costs imposed on others

absent such compulsory insurance. Dworkin argues that,

when someone fails to buy any personal accident insurance, and is

28 Anderson (1999, pp.295-296) asserts that there may be ‘sound policy reasonsfor not making snap judgments of personal responsibility at the scene of anemergency’, and thus luck egalitarians may not abandon individuals by the sideof the road but rather turn off individuals’ medical equipment and aids that areessential for their survival once they are in the hospital. I do not use thisqualification of Anderson’s, regarding the fact that individuals may be rescuedfrom the side of the road due to policy considerations, for the sake of simplicity,

and because it seems to me that Otsuka will permit the abandonment of uninsured drivers by the side of the road as well as in hospitals. He will permitsuch because there may be a multiplicity of emergency services in the societiesthat exist within his utopian ‘Lockean archipelago’ (LWI p.117), and if theseemergency services cannot be forced to come to the aid of anyone, except thosethey have engaged in contracts with, then emergency medical services may welloperate that only help their clients; perhaps such emergency services will onlyrespond to, or administer help to, the drivers and passengers of cars that areregistered with them, for example.29 If the uninsured driver is not responsible for the crash he might be owedcompensation from the other driver. For simplicity I thus, throughout this paper,consider uninsured drivers who are responsible for both the crash and for notinsuring.30

See Anderson (1999, p.291)31 Ibid. p.29132 Dworkin (2002, p.114)








therefore unable to afford medical care when needed, costs are borne

by the rest of the community, including employers and dependents,

that are not internal to his decision33.

Thus a second strategy of response to the abandonment objection is

to force individuals to use their resources to take out medical

insurance that will preclude their abandonment based on the costs

their failing to do so would impose on others. However, in order to

claim that if individuals do not take out insurance, then costs will be

imposed on others, Dworkin must hold that individuals cannot waive

their right to receive medical care in advance. There needs to be an

argument for why individuals must always be provided with medical

assistance, even if they wish to waive their rights to this assistance,

and why they should be made to pay for the cost of such assistance

in advance, even if they would rather have waived their rights to

assistance and not paid for the costs of such assistance (in the form

of insurance) in advance34.

Bou-Habib attempts to make such argument, claiming that

that compulsory insurance is justified because of the moral costs

imposed on others in such cases as that of an uninsured driver

being involved in a car crash. Bou-Habib argues that there is a

moral duty to preserve autonomy that cannot be negated by a

person, whose autonomy we have a duty to preserve, declaring that

we are excused from this duty35. That is, there is an unconditional

moral duty to preserve autonomy, and those who do not take out

insurance against abandonment therefore impose either moral costs

or financial costs on others because the unconditional duty to

preserve autonomy entails that a person who knows of a potential

abandonment has an unconditional moral duty to prevent the

abandonment of an individual36; at least as long as the costs of such

are not ‘prohibitively high’37.

33 Ibid.34 Bou-Habib (2006, p.258)35

Ibid. pp.260-26136 Ibid. p.253, p.26137 Ibid. p..254








A third response to the abandonment objection has been to

affirm a form of value pluralism about justice and/or equality38.

Such responses assert that luck egalitarianism must be combined

with other values and/or other egalitarian values in order to arrive atan adequate theory of justice, and that such a theory precludes

abandonment. Brown claims that a ‘moderate luck egalitarian’ who

does not hold that luck egalitarianism is the only egalitarian value

pertinent to justice can respond to the abandonment objection by

arguing for a pluralistic approach to equality that combines luck

egalitarianism with Anderson’s Democratic Equality, which

precludes abandonment since it demands that individuals are

ensured a basic set of capabilities39. Carl Knight argues that a

pluralistic approach to justice can answer the abandonment

objection, asserting that the most attractive form of such a

pluralistic approach involving luck egalitarianism as one of a

plurality of values is ‘luck egalitarianism plus utilitarianism plus

basic needs’, since this approach ensures basic needs are met

except for when doing so (for a particular individual) is crippling for

the welfare of sufficiently many others40.

In the following section I argue that Otsuka’s left-libertarian

theory of justice cannot preclude the abandonment of uninsured

drivers by utilising either the paternalistic, costs-based, or pluralistic

strategies that luck egalitarians have used to answer the

abandonment objection.

4. Otsuka’s theory and the abandonment objection

4.1 Precluding abandonment via resource red istribution or taxation

4.1.1 The taxation of income and resources derived from one’s self

alone

At the end of section 2 I concluded that if individuals could do38 Brown (2005, pp.328-332); Knight (2009, pp.199-223)39

Brown (2005, pp.307-308). See Barry (2006, p.100) and Segall, (2007, p.197)for similar proposals to preclude abandonment.40 Knight (2009, p.222)








whatever they wished with their resources within the boundaries

Otsuka sets out in his theory, then the abandonment of uninsured

drivers is permitted by Otsuka, since individuals may decide to, or

simply fail to, insure against abandonment, and no-one could belegitimately forced to rescue them from abandonment.

In order to preclude the abandonment of uninsured drivers

Otsuka would have to hold at least one of the following:

i) Another egalitarian value, or some other value pertinent to

justice, demands that individuals’ deaths be prevented or basic

needs be provided for via redistribution of worldly resources or

taxation and redistribution of other resources.

ii) Individuals may not do as they wish with their resources

within the boundaries set out in section 2.

iii) Individuals are to be forced to come to the aid of others

when those other individuals would be otherwise abandoned

The third position is straightforwardly ruled out by Otsuka’s

commitment to libertarian self-ownership rights, since individuals’

libertarian self-ownership rights prevent them from being

intentionally forced to aid others41 (see section 2.3). The first

position leads to an answer to the abandonment objection of the

third kind elaborated in the previous section: a pluralist response.

Whilst the second position, with the relevant justification added,

leads to an answer to the abandonment objection of the first or

second kind elaborated in the previous section: a paternalistic or

costs-based response.

I begin by assessing whether the first position, that another

value demands that individuals’ deaths by abandonment be

prevented by taxation or worldly resource redistribution, is held by

Otsuka, or can be held consistent with his theory. If Otsuka held

this position, he would be holding that equality of opportunity for

welfare is not the only egalitarian value, or that equality and the

robustness of libertarian self-ownership rights are not the only

41 LWI p.15








values, that are relevant to distributive justice. From certain parts

of his work it may seem that Otsuka does hold such a position. In

discussing the case of an individual who weaves a wardrobe of

clothes out of her hair alone, and thus does not use worldlyresources at all to make these clothes, Otsuka asserts that a

reasonable case might be made that equality requires the

imposition of a luxury income tax on such resources, if this income

tax were both necessary and sufficient to prevent another individual

from freezing to death:

In order to rebut the libertarian’s objection to taxation in this instance,

the egalitarian must hold either that the weaver does not possess a

libertarian right of self-ownership or that this right is not as stringent

as the libertarian thinks it is and may justifiably be infringed in these

circumstances. But this is to acknowledge that if there is such a thing

as a libertarian right of self-ownership, then it comes into conflict with

equality in these circumstances. If the imposition of a luxury income

tax on the weaver were both necessary and sufficient to prevent

another human being from freezing to death, opponents of

libertarianism could justifiably hold that only an unreasonably fanaticaldevotee of a right of self-ownership could insist that such a right is so

stringent that it rules out the imposition of this tax42.

I can only read this passage as suggesting that though such a

tax may be justified all things considered, if such a tax is required,

then the libertarian self-ownership rights that Otsuka upholds have

been given up. In these circumstances Otsuka might be of the

position that libertarian self-ownership rights should drop away, but

then his left-libertarian theory seems to have dropped away, since

his theory is based on the self-ownership and world-ownership rights

of individuals. Otsuka does not argue for a ‘full’ right of self-

ownership, instead Otsuka’s libertarian self-ownership rights permit

certain unintentional incursions on individuals; these unintentional

incursions on individuals are not incursions on Otsuka’s libertarian

self-ownership rights, rather libertarian self-ownership does not

42 LWI p.19








entitle one to freedom from unintentional incursions on one’s self 43.

But Otsuka’s libertarian right of self-ownership is not further

qualified as Otsuka develops his theory so that not only

unintentional incursions are not included in it, but also incursions onthe sole products of one’s labour are permitted when such

incursions (taxes) are necessary and sufficient to preclude another

individual’s death.

The case for this tax is also only mentioned again during another

of Otsuka’s proposals44, that when the preferences of the able-

bodied are not so felicitous as to ensure that the disabled’s basic

needs will be provided for—that is, if the able-bodied would prefer to

merely live at subsistence level than to let the disabled, who are not

capable of productive labour, benefit in any way from their labour,

including benefiting by surviving45—then the unjust may be taxed to

provide for the disabled’s basic needs46. This proposal ensures that

the basic needs of the disabled will be met unless the able-bodied

do not have preferences for more worldly resources than enable

them to subsist47 and there are no, or insufficient, unjust individuals.

In this extremely unlikely circumstance Otsuka seems to believe

that breaching libertarian rights of self-ownership is justified48. But

the disabled for whom Otsuka justifies the taxation of the unjust are

a particular segment of the disabled: ‘through no fault of theirs,

they lack the ability to engage in productive labour’49. This makes

the case for the provision of such disabled individuals’ basic needs a

special case since such disabled individuals are clearly not morally

responsible for the preferences of the able-bodied who fail to

provide them with their basic needs, and nor are they responsible

for their disabilities, which preclude them from engaging in

productive labour.

43 See LWI pp.12-1544 See LWI p.42 n.145 See LWI pp.32-3546 See LWI pp.41-4247

LWI p.3348 See Otsuka (2006b, pp.6-7).49 LWI p.41








In the passage legitimising taxation to prevent starvation,

quoted above, Otsuka does not specify whether the individual who

would be prevented from starving via the imposition of a luxury

income tax on others, which Otsuka appears to justify, isresponsible for his plight. But since Otsuka only mentions the

justifiability of this tax again when discussing the taxation of the

unjust for the sake of providing for disabled individuals who are not

responsible for their disability it might be thought that Otsuka

means to only justify such a tax when the individual who will benefit

from the tax is not responsible for his plight. I believe this is the

case since Otsuka also asserts, without qualification, that

it would not be proper for the state to level differences that arise from

choices for which individuals can be held morally responsible so long

as these choices are made against a background of property rights

that ensure equality of opportunity for welfare50.

Otsuka’s concern to justify the taxation of the unjust solely for

the sake of providing for the basic needs of those disabled

individuals who are not responsible for their disability51, his concern

to demonstrate that ‘as a contingent fact’52 libertarian self-

ownership and equality of opportunity for welfare will be compatible

due to the ‘ordinary preferences for material resources among the

able-bodied’53, and that he does not mention the case for this tax

after demonstrating the extremely likely provision of the basic

needs of the disabled via the preferences of the able-bodied and the

taxation of the unjust, further leads me to believe that Otsuka only

believes that such a tax, which breaches self-ownership, is justified

when the individuals whose basic needs are at issue are not

responsible for their condition. It does not seem that Otsuka would

give up his theory’s reconciliation of self-ownership and equality54

and justify a tax on the products of individuals’ labour alone to fulfil

50 LWI p.4051 LWI ch.252

LWI p.11, p.3353 LWI p.3354 See LWI p.11, pp.32-33








the basic needs of individuals who are responsible for their basic

needs not being fulfilled.

4.1.2 Responsibility If such a tax to benefit those responsible for their plight is not

justified by Otsuka, as I am arguing, and if uninsured drivers are

responsible for their plight, then Otsuka does not justify such a tax

to preclude the abandonment of uninsured drivers. Otsuka does

not, however, clearly state that individuals who choose to use their

resources in certain ways are thus responsible for their choices; it is

not perfectly clear on Otsuka’s theory that those who choose not to

insure against abandonment are cast as morally responsible for that

choice.

Elsewhere in his theory of justice, however, Otsuka asserts

that so long as individuals are capable of productive labour,

provided with a background of opportunities for welfare—by which

he means the distribution elaborated in section 2.1 and 2.2—and

provided with adequate opportunity to learn to reason in a

minimally sufficient manner and to develop sufficient choice-making

abilities55, individuals can be held morally responsible for their

choices56. Once these conditions are fulfilled Otsuka asserts that

individuals’ choices to enter into voluntary agreements of whatever

form should be respected57; though he does not claim that they

ought to be enforced, but that they may permissibly be enforced.

Thus it seems individuals are held responsible by Otsuka’s theory of

justice, even if Otsuka does not cast individuals as morally

responsible for their choices. Once the above conditions are fulfilled

Otsuka’s theory grants that an individual may even gamble away

his freedom; that is enter into agreements that, if certain outcomes

obtain, will transfer his rights to himself over to another (enter him

55 See LWI p.120, p.126. See also section 4.2.1 below.56

So long as they have a sufficient range of choices; see LWI pp.103-104; this is of no consequence presently.57 LWI p.126








into non-hereditary slavery)58. Individuals’ freedom is not

redistributed to them in these circumstances, and thus they seem to

be held responsible for their choices.

However, it might be held that though Otsuka will notredistribute an individual’s freedom to him if he gambles with it this

does not mean that he will not redistribute resources to an

individual if he gambles with them, and loses, if redistributing the

amount of resources to an individual, that he loses, would be

necessary and sufficient to keep an individual from dying. Such an

argument would depend on Otsuka not legitimising gambling with

one’s life, though he legitimises gambling with one’s freedom. But

such a response would not succeed because Otsuka does legitimise

gambling with ones life; Otsuka legitimises such as ‘entering into an

agreement to be subjected to a low chance of being seized against

[one’s] will and killed as the price to be paid for the elimination of a

much higher chance of being killed’59, and does not assert that in

such circumstances these agreements should become void, but

instead that in such circumstances it is permissible that such an

individual is killed60.

Furthermore, it seems that individuals who have been given

such opportunities are considered morally responsible by Otsuka,

since otherwise why would he stipulate without further elaboration

that differences in the opportunities worldly resources provide

individuals that are the result of the choices of those who are to be

held responsible for the choices they make ‘against a background of

property rights that ensure equality of opportunity for welfare’ do

not motivate worldly resource redistribution61? I thus presume that

individuals who have been presented with sufficient opportunities

via resources, education, and endowment to engage in productive

labour, and choose to use these opportunities in a particular way

are eo ipso morally responsible for such choices. If this is the case,58 LWI p.124, pp.116-11859

Otsuka (2006, p.331)60 This is implicit in Otsuka’s discussion at Ibid. pp.330-331.61 LWI p.40








uninsured drivers who are uninsured due to their own choices are

considered morally responsible for being uninsured by Otsuka’s

theory.

4.1.3 The redistribution of worldly resources

But could worldly resources be redistributed to preclude

abandonment consistent with Otsuka’s theory? They cannot for the

redistribution of worldly resources to those who have already been

distributed an equal share and no longer possess that equal share

due to choices they can be held morally responsible for is in conflict

with the distribution of worldly resources Otsuka espouses.

Individuals distributed further resources to (such as) prevent

abandonment would be given a greater share of worldly resources

than equality of opportunity for welfare requires on Otsuka’s theory,

and thus worldly resources would not be distributed in line with

equality of opportunity for welfare if such a distribution obtained;

and when worldly resources are not distributed in line with equality

of opportunity for welfare Otsuka’s theory demands redistribution in

order that worldly resources are exclusively patterned to provide

individuals with equality of opportunity for welfare—limited by the

requirements of robust libertarian self-ownership rights—before

individuals make choices they can be held morally responsible for

(see section 2.2 and 2.3)62. Thus Otsuka’s theory cannot be

extended to prevent abandonment by the redistribution of worldly

resources without such an extension conflicting with the explicit

demands of his existing theory.

4.1.4 Taxation of income derived from worldly resources

Perhaps, however, the income and resources individuals gain from

their worldly resources could be taxed and transferred to those

responsible for their basic needs not being met, such as uninsured

drivers. But this seems to be exactly what Otsuka is attempting to

62 LWI pp.39-40








avoid by stipulating the equal shares of worldly resources he does,

and specifying what ownership of worldly resources means as he

does. Before specifying how equality of opportunity for welfare

requires worldly resources to be distributed and what the ownershipof worldly resources entails, Otsuka distinguishes two different

models of worldly resource ownership: On one model,

we can come to own any bit of land or other worldly resource only on

the condition that we share some of whatever we reap from it with

others;

On an alternative model,

we might be entitled to acquire rights of ownership over land and

other worldly resources that are as full as the libertarian right of self-

ownership. But this entitlement might only extend to such acquisition

as is consistent with the realization of equality63.

It seems clear that the latter type of entitlement is found in the

resource distribution Otsuka espouses (sections 2.1 and 2.2), since

what worldly resources an individual can come to own and what his

owning those worldly resources entails is explicitly specified and

curtailed by Otsuka’s favoured conception of equality; and Otsukadoes not establish limits on what one may do with that which one

reaps from one’s worldly resources. If this is so, then taxation on

income or resources derived from worldly resources would

contravene the conditions of the ownership of worldly resources

propounded by Otsuka, and so Otsuka’s theory could not be

extended to prevent abandonment via such a tax without such an

extension conflicting with the demands of his existing theory,namely that individuals are entitled to all they can gain from their

shares of worldly resources so long as they are entitled to own their

shares of worldly resources.

Furthermore, the case that Otsuka’s theory would legitimise

such a tax to rectify the condition of individuals responsible for their

basic needs not being catered for seems weak. As I have already

made clear, Otsuka explicitly does not believe that it would be right63 LWI pp.21-22








for the state to level differences that arise from choices for which

individuals can be held morally responsible64, and advocating

taxation of the income and resources individuals derive from their

worldly resources for the sake of ensuring the basic needs of uninsured drivers, who are responsible for their choices not to

insure, would be such a state action that Otsuka does not believe to

be justified. Furthermore, as I argued in sections 4.1.1 and 4.1.2

the only time basic needs are considered in Otsuka’s theory they

overwhelmingly seem to be the basic needs of those not responsible

for their basic needs not being met; whilst Otsuka explicitly states

that once certain opportunities are secured for individuals nothing

more is owed to them on his left-libertarian theory of justice65. I

thus conclude with reasonable certainty that resource redistribution

or taxation to preclude the abandonment of uninsured drivers is not

demanded by Otsuka’s theory and cannot be demanded consistent

with Otsuka’s theory as it stands.

4.2 Precluding abandonment via constraining resource use

4.2.1 The paternalistic strategy

The second strategy to preclude abandonment involves constraining

how individuals may use their resources by forcing individuals to

take out insurance against abandonment. It might be argued that it

is perfectly consistent with Otsuka’s theory that individuals be

paternalistically forced to take out insurance to preclude their

abandonment because it is better for them to takeout insurance and

not be abandoned. It might even be argued that there is textual

support for such a paternalistic policy to be found within Otsuka’s

theory, since Otsuka asserts that equality demands that individuals

be able to make ‘free, rational, and informed choices’66. It might be

argued that imprudent non-insurers do not make such free, rational,

64

LWI p.4065 See LWI p.12666 LWI p.120, p.126








and informed choices and so are legitimately precluded by

guardians such as the state, or an agent of the state, from making

such irrational, imprudent choices.

But Otsuka’s insistence that persons be able to make free,rational, and informed choices is not the insistence that persons be

helped to make the choice that would be most rational given all the

relevant information by being forced to make that and only that

choice. Rather what is meant by a ‘free, rational, and informed

choice’ is merely that a choice is made in knowledge of many

possibilities that include a choice to have one’s claim to an equally

advantageous share of worldly resources and non-interference with

one’s person simply fulfilled67, that such a choice is made with

sufficient, not epistemically complete, knowledge of one’s options,

and made with minimally knowledgeable and skillful reasoning

ability68—parents have an obligation to provide children with

schooling sufficient to give individuals the opportunity to develop

such ‘skills, capacities, and knowledge’69.

Furthermore, Otsuka argues that when individuals make choices

that fulfil the above desiderata these choices should be respected,

and that ensuring that individuals have these capabilities fulfilled,

and these opportunities provided to them, and respecting

individuals’ subsequent choices (once they have been provided with

these capacities and opportunities) is how his left-libertarian theory

of justice treats individuals with equal concern70. Among these

choices that Otsuka asserts are to be respected, and thus whose

consequences are to be permitted, are an individual’s selling

himself into non-hereditary slavery71, and an individual’s putting

himself at risk of his intentional killing72. And Otsuka clearly and

generally states his commitment to the libertarian ‘anti-paternalism’

67 LWI p.11468 LWI p.12069 LWI p.12070

LWI p.12671 LWI p.124, pp.116-11872 Otsuka (2006, p.331)








and ‘anti-moralism’ that seems implicit in the previous arguments,

and rules out such constraining of individuals’ use of resources73.

Thus the paternalistic strategy would appear to be in conflict with Otsuka’s

theory.

4.2.2 The costs strategy

But perhaps an argument from the costs that uninsured drivers

impose on others could justify compulsory insurance consistent with

Otsuka’s theory. This is clearly not the case. In Otsuka’s theory

individuals are not entitled to be prevented from suffering any costs

other than those that are direct by-products of breaches of their

rights to themselves, their worldly resources, and the resources

they can derive from each; and nor must individuals be prevented

from causing others to suffer costs, other than those costs involved

in rights violations. Persons are entitled to subsist as such, with

only these rights fulfilled74, but they are entitled to no more than

this. Individuals may voluntarily enter into societies and

agreements in which they are prevented from acting in a way that

will cause additional costs, and/or may enter societies where they

must pay into a compulsory insurance scheme to avoid other costs

being suffered by others, or in which individuals will come to their

aid to prevent their abandonment whatever they do. But individuals

are also at liberty to not enter such a society or such an agreement,

and to impose such costs on others. Individuals are thus free to

expose themselves to the risk of being abandoned by the side of the

road, and individuals are free to leave them there. Holding

otherwise would alter the very baseline of equality that Otsuka

guarantees individuals and the voluntarism Otsuka justifies beyond

this75.

73 LWI p.2; Otsuka (2006a pp.1-2) See also LWI ch.6, esp. p.123.74 See LWI p.33, see also LWI pp.99-10075 It might be thought that Otsuka does not have to preclude the possibility of abandonment but only contingently preclude abandonment, in the same manner

that he demonstrates that assuming normal preferences among the able-bodiedthe disabled will be contingently provided for. However, there are severaldifferences between contingently ensuring equality of opportunity for welfare for








5. Conclusion

I thus conclude that Otsuka’s theory as it stands permits the

abandonment of uninsured drivers, and that in order for Otsuka toensure that uninsured drivers are not abandoned Otsuka would

have to significantly modify his theory by either adding another

value by which resources are to be distributed and/or redistributed,

or by forcing individuals to do certain things with themselves or

their resources. Thus, Otsuka must either modify his theory, or hold

a theory that many will object to on the grounds that it allows the

abandonment of uninsured drivers; a consequence that many find

at least counter-intuitive, and that others believe conflicts with

justice or equality.

It may well be, however, that we are only each morally

required to aid those who would otherwise be abandoned, but who

are responsible for their predicament, or that we should do so if we

are to live up to an ideal, such as that of living in a compassionate

society that does not value anything higher than human life—

preserving a good quality of life for others, no matter what they do.

If this is the case, then it may be that we should not be forced to

come to the aid of those who are responsible for their condition,

where their condition is not having their basic needs provided for, or

being in a position where they will die if we do not help them, and

that it is not the case that even some state or community of

individuals have a duty to come to such individuals’ aid, that can

(always) be legitimately coercively enforced. That is, if Otsuka

the disabled and contingently precluding the abandonment of uninsured drivers.Most strikingly, contingently ensuring equality of opportunity for welfare for thedisabled is achieved because the able-bodied will prefer to trade with the disabledthan to live a life at the level of mere sufficiency; see LWI p.33. But a similarcontingent preclusion of abandonment is not possible since medical servicepersonnel will not be left with a life of mere subsistence if they do not aiduninsured drivers, and thus do not have the same self-interested motivation tohelp uninsured drivers. Furthermore, there may be negative effects of treatinguninsured drivers, such as decreasing the amount of people who take out the

relevant medical insurance, and difficulties concerning the obtaining of paymentfor the treatments and services rendered subsequent their rendering.








wishes his theory to permit abandonment this does not necessarily

mean that Otsuka’s theory is in error, or is impoverished in a certain

way, but may mean that Otsuka has a substantial position regarding

that which can and cannot be coercively enforced; and this may bea plausible position, but is certainly in need of further elaboration

and defence.

Although I have focussed on the abandonment of uninsured

drivers in this paper, it is not just the abandonment of uninsured

drivers that Otsuka’s theory will permit; but also the abandonment

of people who are involved in all kinds of accidents, and perhaps

even those who are attacked, who have not taken out the relevant

insurance and are responsible for their accidents, or for putting

themselves in particular situations. It seems that the abandonment

objection points towards a more general line of divergence between

those who believe that we should provide for the basic needs of

others no matter what they do—at least so long as the costs of

doing so are not extreme or too great—and that if we are not willing

that we should be forced into making such provisions, and those

who believe that it is not the case that justice and/or equality

require that we must be forced to provide for individuals’ basic

needs no matter what they do (though we may be morally required

to ensure that individuals’ basic needs are provided for). Otsuka

must decide whether we are to be forced to provide for such

individuals’ basic needs. My hunch is that he would not alter his

theory, that the abandonment of uninsured drivers is just one

consequence of a position that we are not to be forced to provide

for individuals’ basic needs when they have been given an

opportunity to provide for them themselves.

Richard RowlandBirkbeck College, University of London

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Richard Rowland - Otsuka's Left-Libertarianism and the Abandonment Objection