Puertos de llegada: Shanghái

Before we can speculate about insurers’ decisions, we first need better to understand

the choices that they face. This is because the model of fair insurance yields determinate results only if we specify in further detail the rights that an individual

would enjoy were she to purchase or fail to purchase a given insurance policy. Society’s background conditions determine this information.32 _{In this section, I highlight two}

ways in which these background conditions may constrain an insurer’s decisions.

30 _{For further discussion of this claim, see Luc Bovens, ‘Concerns for the Poorly Off in Ordering Risky} Prospects’, Economics and Philosophy (forthcoming).

31 _{Dworkin, Sovereign Virtue, 322.}

32 _{Ibid., ch. 3. See also Colin MacLeod, Liberalism, Justice, and Markets: A Critique of Liberal Equality} (Oxford: Clarendon, 1998), 168-70.

5.3.1

The Basic Rights Constraint

First, as noted several times, the model of fair insurance helps us to select between various arrangements and distributions of work that are consistent with the protection

of basic rights. A consequence of this is that, when considering an insurer’s decisions, we should do so against an institutional background that protects these basic rights.

We can call this the basic rights constraint.33

The basic rights constraint is important, since these background conditions

affect the appeal of various insurance policies. This is because these conditions determine the severity and likelihood of occupational disadvantage that an individual

risks suffering. To illustrate this point, it may help for us to consider an example. Let’s suppose that it is possible to justify an unconditional basic income exclusively by

reference to the role that this policy plays in protecting basic rights. If this were the case, it would not make sense to consider whether we could (also) justify the policy by

referring to the model of fair insurance. Fairly obviously, this is because insurers would have no reason to take out such a policy, were the protections that it promised already

in place. In fact, if there is already protection in place, there is in fact no risk to be insured against.

This conclusion presents a problem for the ambitions of this and the following chapter. It implies that we cannot speculate about the decisions of insurers unless we

first clarify which social institutions best protect individuals’ basic rights, which is an issue that I have not considered in any detail. This is a genuine worry. My response is

33 _{To be sure, the basic rights constraint may not be the only constraint. Other constraints may be} generated by our concern for other features of political morality, such as our concern to ensure a just legal system and our concern to ensure legitimate government through the protection of democratic procedures, say. See Dworkin, Justice for Hedgehogs, chs 12 and 13.

to emphasise the modesty of my earlier conclusions: whilst our concern for basic rights justifies some interventions in the job market, these interventions are fairly minimal.

Contrary to what some have argued, our concern for basic rights does not justify extensive job market regulation, perhaps in the form of job sharing, worker ownership,

or an unconditional basic income, for example. Rather, we can protect these basic rights by more targeted measures that do not demand great interference in the job

market. This reply exploits the fact that we do not need to know precisely which social institutions we can justify by appeal to basic rights. We need to know only that our

concern for basic rights does not justify extensive job market regulation of the kind that pre-empts the initiatives that we shall later consider.

5.3.2

The Consent Constraint

Let’s turn now to the second way in which background conditions may affect an

insurer’s decisions. To help frame the issue, let’s begin by considering a case in which an insurance firm offers individuals the opportunity to buy into a Survival Lottery,

whereby, if any two members of the scheme need vital organ transplants in order to survive, a lottery is carried out amongst all of the scheme’s members in order to

determine who must provide the two vital organs.34 _{Let’s further assume that this}

scheme would be attractive to many insurers, ignorant of their likelihood of needing a

vital organ transplant. Even under these conditions, it is not obvious that we can justify coercive vital organ transplants on these grounds. In other words, even if we knew that

a given individual, Qadira, would have bought into the Survival Lottery, this looks insufficient to justify taking Qadira’s organs if her name were pulled out of the hat.

This is because merely hypothetical consent is sometimes not enough.35 _{To see the}

importance of actual consent (as opposed to merely hypothetical consent), we can note

that the Survival Lottery seems less problematic when actual consent is given, even if it remains morally problematic in certain ways.36 _{If correct, the upshot of this is that a}

Survival Lottery is not the kind of policy that we can justify by appeal to the model of fair insurance.

I mention this case to make a more general point: there may be limits on the model of fair insurance that correspond to the limits of the moral force of hypothetical

consent. If an individual can waive a given right only by giving actual consent and not merely hypothetical consent, then the fact that she would have waived that right under

certain conditions cannot help us in justifying regulations that do in fact violate that right. We can call this the consent constraint.

There may be an intimate relationship between the basic rights constraint and the consent constraint. More specifically, the two may converge. This would be the

case if the set of rights that could not be waived by merely hypothetical consent were identical to the set of basic rights. Moreover, it could even be that this convergence is

non-accidental. This would be the case if we should determine the set of rights that could not be waived by merely hypothetical consent by referring to the set of basic

rights. On this view, the explanation for why merely hypothetical consent is not enough in the Survival Lottery appeals to the idea that individuals have a basic right to

retain their vital organs.

35 _{Tadros, ‘Consent to Harm’, 27.}

36 _{For discussion of what may make this case morally problematic even when actual consent is given, see} Anne MacLean, The Elimination of Morality: Reflections on Utilitarianism and Bioethics (London: Routledge, 1993), ch. 7.

Other people may favour an alternative account of the relationship between the basic rights constraint and the consent constraint. One possibility is that the two

constraints diverge such that there may be non-basic rights that cannot be waived by merely hypothetical consent. Some people think this about the right to self-ownership.

If this were the case, we would not be able to appeal to the model of fair insurance in order to justify any form of job market regulation that violates self-ownership, even

though the right to self-ownership is not a basic right. Depending upon how we understand self-ownership, this could significantly reduce the menu of options that

insurers face.

My aim in this section is not to develop an account of the relationship between

the basic rights constraint and the consent constraint, nor shall I here comment on whether we ought to accept a right to self-ownership and its implications. Instead, my

more modest aim is merely to highlight two ways in which a society’s background conditions constrain the decisions of insurers. I shall say more about the content of

these constraints, and a right to self-ownership in particular, in the next chapter. The important point to note for now is that any satisfactory defence of disadvantage-based

job market regulation must meet two challenges. First, a defender must show that the policy would be attractive to many individuals, perhaps including the average

individual. Second, she must show that the policy satisfies both the basic rights constraint and the consent constraint.

To be sure, in discussing these two constraints, I do not mean to imply that these are the only relevant conditions that affect insurers’ decisions. As I shall explain

in chapter 7, we also have reasons to restrict the menu of options available to insurers to those policies compliance with which is publicly verifiable to all relevant parties.

This gives us reasons to rule out policies that are highly epistemically demanding. I do not focus on this consideration here for two reasons. First, my discussion of this

consideration is complex and it would risk derailing us from the present task, which is to theorise about the just response to occupational disadvantage. Second, though

sometimes relevant, this consideration is not decisive in any of the cases that I consider in this and the following chapter. For these reasons, I believe it is best (temporarily) to

put it to one side.