Justice by Lottery

Borges does not say whether or not Babylon counts as a just society, but the lottery, as a mechanism that delivers to each recipient a particular fate and that moreover advertises its reason—or lack of reason—for doing so, must occupy the same terrain reserved for the question of justice. To be outrageous, one might even propose it as a means to the latter. This, as it happens, is the very argument put forward by Barbara Goodwin, in a seemingly wacky but actually remarkably astute and tough-minded recent work, unblushingly titled Justice by Lottery (1992).^[2]

Goodwin calls for a "Total Social Lottery," one that distributes all goods and offices and that, according to her, is simpler, fairer, and less brutalizing than any distributive principle to date. The lottery abolishes all human distinctions; it treats everyone alike, giving everyone

an equal chance. Since it has no foreknowledge of its outcome, it also has no biases, no vested interests, no preconceived notions about particular ends. And so, bizarre as it might seem, the lottery actually fulfills those very conditions of procedural neutrality ordinarily taken as requisite for justice. Furthermore, since there is no attempt at justification here, no attempt to explain reward by reference to merit, what the lottery distributes is also distributed without judgment, carrying neither moral approval nor moral opprobrium. The burden would be in the tasks themselves and not in any invidious nuances we attach to them. According to Barbara Goodwin, then, allocation-by-lot might turn out to be our best bet for social justice, more egalitarian than any allocation we have thus far been able to implement and more humane than any we have thus far been able to imagine.

And indeed, dubious and outlandish as it might now seem, the lottery actually has a genealogy which might prove surprising to some of us. As James Wycliffe Headlam-Morley has shown in his pioneering (and still astonishing) study of the Athenian democracy, the lottery was its central political instrumentality. Elections in Athens were strictly "the verdict of chance," Headlam-Morley writes. "It is scarcely too much to say that the whole administration of the state was in the hands of men appointed by lot: the serious work of the law courts, of the execution of the laws, of police, of public finance, in short of every department (with the exception of actual commands in the army) was done by officials so chosen."^[3] More recently, E. S. Staveley, in corroboration of this view, has described in great detail the kleroterion^[*], the Athenian allotment machine, in steady use after the fifth century B.C.^[4]

Even in our own time, the lottery is by no means an unheard of proposition, and some influential thinkers have been its advocates. Most of them have championed it, however, not as a first principle but as a last resort, to be used in exceptional cases when the idea of "rational choice" is rendered especially disconcerting, distasteful, or impossible. Guido Calabresi and Philip Bobbitt, describing situations which they call "a nightmare of justice,"^[5] have suggested that, in these instances, the lottery—the "choice not to choose"—would be an acceptable recourse. Such nightmares of justice include, for example, choosing one hostage from among a group of children; here, the blindness of the lottery works with a "simple, sweeping conception of egalitarianism" which "allows us to choose when we can no longer

tolerate choice."^[6] Bernard Williams, thinking of similar situations where choice is a burden and an unchosen choice a blessing and a respite, has also argued for the instrumental benefits of randomization, though with the important proviso that "the 'random' element in such events, as in certain events of tragedy, should be seen not so much as affording a justification . . . as being a reminder that some situations lie beyond justification."^[7]

In making choices that are patently random—patently without adducible reason—the lottery openly proclaims its arbitrariness. It offers no justification for what it does and, in so doing, it also raises the question whether justification is ever possible, whether any choice can carry a rationale with the requisite moral weight. What the lottery challenges is perhaps nothing less than the idea of "rational deliberation" itself: not only its situational efficacy but also its epistemological ground, its premise that competing claims are commensurate, weighable and resolvable by the scales of reasoning. In jettisoning those scales and in resorting to the dice, the lottery thus throws into jeopardy considerably more than the outcome of some particular decision. It also throws into jeopardy something like the adjudicative power of reason, something like its claim to justice.

This deep skepticism about the adjudicative power of reason is very much a live issue for contemporary philosophers, who, confronting choices that are necessarily arbitrary and unjustified, have begun to see them not as peripheral aberrations but as central embarrassments, embarrassments that challenge our long-standing faith in the scope and efficacy of reason.^[8] The work of Bernard Williams is especially illuminating here.^[9] In a series of influential essays collected into Moral Luck (1981) and Ethics and the Limits of Philosophy (1985), Williams seizes upon the inadequacy (or sheer absurdity)^[10] of justification to critique what is arguably the central tradition in Western philosophy, a Kantian tradition, based on the morality of reason. Kant, aspiring always to a moral foundation sufficiently general and sufficiently unconditional, has tried to locate that foundation in the deliberative rationality of the moral subject: a being supposedly capable of (and held accountable for) reasoned choices, choices not only universally possible but possible in ways that make "justification," or the lack of it, ethically meaningful. Rational choice for Kant is the primary activity of the moral subject, and the entire edifice of philosophy might be said to stand or fall on the intelligibility of this concept.

It is the noncontingency of rational choice—the fact that everyone is capable of it and accountable for it—which allows morality itself to be seen as a categorical imperative: absolute, foundational, and underived.^[11]

Against this Kantian ideal of noncontingent reason, Bernard Williams introduces luck as a nuisance, a complication, and an intellectual puzzle. As a web of unwilled occurrences that nonetheless interferes with any willed decision, luck makes the concept of "rational choice" shaky, unduly optimistic, perhaps even blindly fatuous. In "choosing" to attend one school rather than another, does the college-bound teenager also "choose" the particular friendships and opportunities, the particular shapings of life and work, that follow as a consequence? Luck undermines not only the extensional integrity of choice, its ability to retain its intended shape in time, but also its autonomous justifiability, its ability to be judged in its own right as intrinsically right or wrong, just or unjust. Williams, in fact, believes that justification is never self-executing, never a feature resident in any particular choice, but always retrospective, always conferred after the fact, rendered possible only by subsequent occurrences. There are no decisions that are inherently wrong, only decisions that go wrong, decisions that are proven wrong by unfolding events and conspiring circumstances—which is to say, by luck. The agency of luck, the vexing uncertainty that it introduces between choice and consequence, thus appears for Williams as an exemplary instance of a pattern of disjunction in the world: a disjunction that undermines not only the instrumental claims of deliberative reason but also the moral judgment issuing from it and reflecting upon its exercise.

For choice, according to Kant, is of course eminently judgeable . One chooses deliberately and lends oneself to the verdict of moral rightness or moral wrongness. If we were to agree with Williams, however, about the intervening agency of luck—about its ability retrospectively to prove a choice right or wrong—then the judgeability of any decision may no longer be taken for granted. Choice, in other words, is no longer so clearly located within the domain of morality: no longer strictly exercisable on its own terms, analyzable within its limits, or justifiable under its auspices. Indeed, to push Williams's argument to its logical (if extreme) conclusion, we might say that all choices, whether rational or not, whether deliberated or not, are necessarily arbitrary, necessarily without intrinsic justification, and so

are no different from the action of the lottery, or else they differ only in that the latter professes its arbitrariness rather than disguising it. In this sense, the lottery might even be said to be at the cutting edge of a new philosophical doctrine. It reminds us, as Jon Elster writes, that "some decisions are going to be arbitrary and epistemically random no matter what we do, no matter how hard we try to base them on reasons."^[12]

Still, even given this philosophical appeal, probably not everyone would agree with Barbara Goodwin's sweeping (and only slightly tongue-in-cheek) proposal for a "Total Social Lottery." Fewer, no doubt, would agree with her conjectural portrait of those human beings who would make such a lottery work. For as she herself is the first to admit, her theory of justice (like every other theory of justice) is ultimately a theory about the political subject, about those human beings whose humanness, however defined and however hypothesized, must underwrite and validate her proposal for their ideal terms of association. Goodwin, of course, would like to believe that this humanness consists above all in an overriding identity , an overriding sameness among these beings, for the lottery can work only if people are more alike than they are different, so that the task randomly assigned to one can just as fitly be assigned to another, and benefits just as fitly reapportioned. Indeed, for her, "personhood" means not so much the particularity of persons as its opposite, something like the substitutability or interchangeability between persons. Only on that premise can the blind justice of the lottery not count as a handicap, for the blindness, cast among persons of overriding sameness, is hardly a liability but rather is a boon to justice.

It is this assumption of sameness—of substitutability and interchangeability—that strikes me as the fatal flaw in a "Total Social Lottery." My aim in this chapter, then, is to acknowledge the force of Goodwin's proposal but also to think through the implications of her unpersuasiveness. Like Goodwin, I want to bring "arbitrariness" into the analytic foreground as an ethical (not to say political) consideration. Unlike her, however, I want not so much to instrumentalize it, turning it into a vehicle of justice, as to emphasize its irreducible presence, its status as a conundrum (perhaps even a counterpoint) to our thinking about justice, about reason, and about the supposed coincidence or entailment between the two. What I have in mind, then, is

something like a constitutive theory of luck, one that studies its arbitrary agency not only in our actions but in our very selves, in that accidental conjunction of circumstances and attributes which make us what we are. Understood as something that constitutes us (rather than something that merely confronts us), luck fits awkwardly, or perhaps not at all, into the idea of justice—an awkwardness which helps to explain, I think, not only its limited presence within the language of Kantian philosophy but also the limited ability of that language to describe the world as we know it.

The language of justice, I want to suggest, precisely because it is a language of rational adequation, a language that refines out of existence the category of luck—the category of what is not amenable to reason—is also a language that refines out of existence much of what most compels us or frightens us, a language too porous, finally, to render intelligible the particular delights and vulnerabilities of our lives. It is with this sense of linguistic porousness—this sense that the language of justice is both thinner and coarser than our experiential sense of ourselves and of one another—that I turn to luck as an undertheorized and for a long time barely noticed concept, one that has slipped through the sievelike fabric of our political discourse. And rather than rehabilitating it in one specific domain of experience (in the domain of rational choice, as Bernard Williams has done), I want to claim for it a kind of troubling ubiquity, a ubiquity which alters the very landscape—the very scope and authority—of justice itself.

My argument, for the most part analytic, is to some extent historical as well, winding up (after an estimable detour) in a tradition more ancient and more venerable than Kant's. Christian theology, with its doctrine of grace—espoused by Augustine, revitalized by Luther, and further elaborated in the American context by Jonathan Edwards—for centuries taught what, from the human perspective, had amounted to a doctrine of luck.^[13] Grace was freely, gratuitously, and incomprehensibly given by God; it had nothing to do with the desert of the recipient. Edwards would not have used the word "nonfoundational," but that was what justice was in his cognitive universe, a universe governed by what he called "mere and arbitrary grace."^[14] Christian theology, wary of the discrepancy between human reason and divine action, had historically treated justice with a kind of nonabsolutist circumspection, which makes it, to my mind,

one of the most important challenges to the discourse of philosophy. In the nineteenth century, it was the "sentimental" women writers—the true heirs to Edwards, I would argue—who would keep alive this nonabsolutist circumspection, as they continued to wrestle with the problem of justice in a world of inescapable arbitrariness. The novels of these women—novels of mere and arbitrary grace, mere and arbitrary affections—not only darkened the democratic hopes of a poet like Whitman but also revised, reinvigorated, and (their authors' professions notwithstanding) recast into a secular idiom the complex thinking about justice that had animated their theological predecessors.