Paper presented at the Joint Session of the Aristotelian Society and the Mind Association

Exeter, 2013

A revised version is forthcoming in

Politics, Philosophy and Economics

RISK IMPOSITION AND FREEDOM

Maria Paola Ferretti

Institut für Politikwissenschaft

TU Darnstadt

E-Mail: ferretti@pg.tu-darmstadt.de

Abstract:

Various authors hold that what is wrong with risk imposition is that being at risk diminishes

the opportunities available to an agent. Arguably, even when risk does not result in material or

psychological damages, it still represents a setback in terms of some legitimate interests.

However, it remains to be specified what those interests are. This paper argues that risk

imposition represents a diminishment of overall freedom. Freedom will be characterized in

empirical terms, as the range of unimpeded actions available to an agent. After briefly

outlining the main characteristics of overall freedom as defended by Hillel Steiner and Ian

Carter, the paper shows that this notion is able to capture many of our intuitions about when

and how risk imposition disadvantages an agent, without reference to welfare indicators. The

paper argues that if this non-welfarist perspective can be defended, then it would be easier to

approach a number of applied questions about risk, including the questions of when risk

imposition is permissible or legitimate, in which ways risk can be an object of distributive

justice, and how one can be compensated for being subject to a risk.

___________________________________________________________________________

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1. Introduction

Risk taking is a very important part of our life. We cannot imagine a society in which risks are

not run, and, at least in some circumstances, we praise risk taking, for example as necessary

for scientific innovation and economic progress. But although risk taking is generally

motivated by the chance of benefits, it often has (as a byproduct) negative consequences.

These negative consequences are in many cases distributed differently among various agents

in society, and they are sometimes imposed on those who had no chance of benefitting from

the risk that was taken.

Most people would intuitively agree that imposing a risk on someone else is at least in

some cases wrong and sometimes gives rise to claims of compensation and redistribution. But

it is hard to know exactly why this is, especially in cases where the risk does not actually

result in the negative outcomes it threatens.

Theorists disagree on what exactly is wrong with risk imposition, how exactly it

makes people worse off, what exactly we are meant to compensate for, and what precisely the

object of distribution is. My aim in this paper, therefore, is to present a plausible explanation

of the wrong of risk imposition. The question I address is not about the ‘outcome harm’ that

can follow from risk imposition (i.e.: the harm inflicted when the more or less probable

negative outcomes are actually realized), but what, if anything, is morally problematic with

risk imposition as such.

I argue that references to people’s welfare cannot account for all our intuitions on why

and in which respect risk imposition treats people in the wrong way. Instead, in order to

understand what is specifically morally problematic about risk, I submit, we should ask

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whether risk imposition is compatible with respecting people as moral agents. I argue that the

notion of overall freedom, as defended by Hillel Steiner (1994) and Ian Carter (1999), can be

very useful to capture the sense in which risk imposition is (in certain cases) problematic with

respect to the moral agency of those at the receiving end. In particular, by focusing on the

concept of overall freedom it is possible to give an account of what I will call the ‘non-

specific negative impact’ of risk on the whole range of options open to an agent. The basic

idea is that when imposing a risk on someone (often in pursuit of my own ends) I am

interfering with a person’s range of external options (more precisely, her set of sets of

options), i.e. her overall freedom. One basis of the judgment that interference with our set of

sets of options is wrong lies in the idea that each of us, as a moral agent, is owed respect. In a

broadly Kantian approach, in virtue of respect each of us is entitled to a measure of external

freedom (equal or otherwise, depending on the substantive moral theory one endorses). It is

this entitlement that best explains the moral wrongness of the particular kind of interference

that is constituted by risk imposition. Risk imposition, I will argue, diminishes the overall

freedom of those at the receiving end, rather than (trivially) their probability of being free.

Decreasing people’s overall freedom under a certain acceptable level fails to treat them in the

appropriate manner.

This approach contrasts with ‘actualist’ views according to which the wrong of risk

imposition is realized only at the moment in which the harm being risked is actually realized.

What is more it offers an alternative to ‘probabilist’ views that see risk imposition as bad

because of its adverse effects on the agent’s wellbeing (e.g. creating fear or anxiety), or on the

agent’s autonomy; and to capability approaches that consider the impact of risk on a closed

list of opportunities for specific functionings. In the next section I will explain my reasons for

focusing on risk imposition itself, rather than its effects on persons’ wellbeing (§2). I will then

present two versions of why risk imposition, rather than just its outcomes, is morally

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significant (§3). I elaborate on these in order to explain how risk impacts on people’s freedom

and defend an approach based on overall freedom. I argue that, unlike other approaches, the

freedom based view is able to account for the social dimension of risk imposition and identify

what is specifically problematic with risk in inter-human relations (§4). In §5 I explain how

both dimensions of risk magnitude, i.e., risk probability and risk impact, can be said to

diminish people’s overall freedom. In §6 I ask how we can make sense of the fact that some

persons are more vulnerable to risk than others. I conclude (§7) by considering the

consequences that my conception of risk as a decrease in freedom has for the debate over

compensatory and distributive issues in the regulation of risk. I also point out the

methodological advantages of the overall freedom-based approach.

2. The Wrong of Risk Imposition

Roughly defined, risk is the probability of the occurrence of a negative outcome.1 Thus,

without the probability of a negative outcome it would be impossible to talk about risk.

However, I am interested in whether being subject to a risk means being made worse off,

whether or not the probable negative outcomes actually materialize. What is more I will

mainly discuss risks that involve the probability of negative effects being imposed by some

agents (who expect possible benefits) on some other agents. I will only consider cases where

risk is imposed, rather than freely chosen. Accordingly, when I refer to risk, what I really

mean is risk imposition. I will consider simplified cases of risk imposition (by setting aside

questions of responsibility, which is relevant in cases of self-imposed risks or consensual

risks) in order to focus in on what is problematic with imposing the possible negative

outcomes of risk. In this context, natural risks are relevant only to the extent that they result

from risk imposition. For example, in the case of floods it may be that, say, failure of the city

council to secure the river banks results in risk imposition on those probably affected by the

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flood. The reason to focus on risk imposition, rather than on risk in general, is that risk

imposed by some human beings on others represents a special way to treat persons (rather

than being simply something that happens to persons) and, as such, is the core moral issue

when discussing risk. The cases that I am thinking of are those where an actor takes a risky

action (normally in the hope of obtaining a benefit for herself or others) but in so doing

imposes a burden of risk on some third party. For this latter person there is a chance of loss or

non-loss, but no chance of gain. This would be the case if, for instance, emissions from a

factory created health risks for the surrounding populations, but there was no prospect of these

populations benefitting, in any way, from the presence of this factory. In real life, often,

expected benefits come together with risks, and towards the end of the paper it will become

clear that my approach is able to account for the impact of both risks and expected benefits on

an agent’s freedom. However, for analytical purposes, I will concentrate on risk only.

One obvious objection to my project of focusing on risk in itself is that what strikes us

as problematic when considering risk imposition is not that risks are run, but that adverse

effects materialize, which diminish individual wellbeing. On this view, sometimes called

‘actualism’, the wrong is realized only at the moment in which the harm being risked

materializes. Yet if someone plays with explosive materials in your cellar - you are not aware

of it - and no accident actually happens, then there is neither harm nor loss (Arneson 2010:

346). In this perspective there are still reasons to prevent actions that are very likely to

produce substantial loss (even if we do not know exactly who will suffer that loss) by treating

risk as a proxy for harm (Perry 2007). In this view, however, what is morally relevant is the

outcome, not risk imposition as such.

An alternative way of looking at the question is to consider that the very fact of being

at risk, even when it does not result in the negative effects that it threatens, may cause

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decreases in wellbeing when it gives rise to fear or anxiety among those on which the risk is

imposed. What is more, it may induce people to take costly precautionary measures, whether

or not the risk realizes (Wolff and de-Shalit 2007). In this view, what is crucial is risk

awareness and the psychological reactions to the fact of being exposed to a risk. As a

consequence risk imposition here is morally problematic only in cases in which the awareness

of risk diminishes the wellbeing of those on which risk is imposed. To wit, what makes an

instance of risk imposition morally relevant is not what kind of risk is imposed on someone,

or the magnitude of that risk, but rather the consequences of risk awareness in terms of

wellbeing.

Such an approach must allow for a high degree of individual variation in risk

assessment, based on risk perception. What some people find frightening may leave others

indifferent. Moreover, people may be scared by risks that are relatively small in terms of

objective probability but remain indifferent to risks that in probabilistic terms are quite

serious. Although some theorists argue that this awareness-based understanding is appropriate

in the regulatory context, others have exposed the absurdities and inefficiency of risk policies

that respond to people’s subjective levels of fear and anxiety rather than risk objectively

measured.2 For example, in a number of countries there is a very low level of awareness of the

risk threatened by climate change, despite empirical evidence pointing to the need to take

precautionary measures to avoid severe damage to humans and the environment (UNEP

2006).

For Wolff and de-Shalit, however, risk awareness and its material or psychological

consequences are not the only way to account for how risk may affect people’s lives, or - as

they put it- may render insecure their future functionings. Wolff and de-Shalit explicate the

different ways in which risk may impact on functionings (such as life, health, shelter etc…)

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by identifying three categories of risk: first, threats to a specific functioning, such as the threat

to one’s health; second, what they call ‘cross-category risk’; and, third, ‘inverse cross-

category risk’. Cross-category risks are risks likely to spread their effects from one

functioning to another. For example, the risk of losing one’s job may involve at the same time

the risk of not being able to pay the rent and thus to have shelter. What is more, the risk of

losing one’s house is an ‘inverse cross-category risk’ if the agent in order to secure shelter has

to give up, say, nutritious food (Wolff and de-Shalit 2007: 70-71).

This classification is useful to understand the different ways in which risk may affect

wellbeing, but also – and more interestingly in my opinion – shifts the focus onto the

opportunities open to an agent. What seems specifically interesting about risk is not (or at

least not only) the indication it gives us of future states of wellbeing, but how risk modifies

the opportunities of a subject at the very moment in which it is imposed. Although their risk

classification seems to point in the right direction, Wolff and de-Shalit discuss the impact of

risk by reference to actual functionings. Yet, when considering the impact of risk at the

moment of its imposition, a focus on specific functionings hardly gives a satisfactory picture

of the impact of risk, because it is very difficult to identify the particular functionings that will

be actually impaired (Murphy and Gardoni 2012: 993). What is needed instead is a way to

capture the impact of risk on the whole range of opportunities available to an agent under risk

imposition. In the next section I will discuss two different proposals that help us to understand

how risk imposition as such affects opportunities. In § 4 I will then present my own position

on this issue. The wellbeing-based approach involves consequentialist accounts of right and

wrong (low risk is a means to increased wellbeing). By contrast I will offer an approach

which is anti-consequentialist, at least in the sense that it aims to show how risk imposition is

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a wrong in itself when it entails a reduction of external freedom under a certain acceptable

level.

3. Risk Imposition as a Setback of a Legitimate Interest

Claire Finkelstein suggests that the harm involved in exposing someone to a risk can

be explained in the same way as the good involved in exposing someone to the chance of a

benefit. Suppose that someone gives me a lottery ticket. Whether or not I win a prize,

Finkelstein argues, the very fact that I have the chance to win constitutes an advantage. By

analogy, when you put me at risk, you somehow put me at a disadvantage, whether or not the

negative outcome materializes (Finkelstein 2003; 2013).

What is more, if you give me a lottery ticket, I feel grateful, even if I do not end up

winning a prize, and the sentiment of gratitude seems appropriate because I was offered a

chance. When someone puts me at risk, I feel that they damaged me somehow, and the feeling

of being disadvantaged persists even if the damage never, in fact, materialises.3 This, for

Finkelstein, can be explained not (only) in psychological terms but by the fact that when a

person is intentionally exposed to a risk, she is deprived of a particular set of opportunities.

This constitutes harm if it involves a set-back or an impairment of a legitimate interest in

avoiding unwanted risk. Any normal, non-suicidal agent has reasons to prefer not to be

exposed to, for example, the risk of developing cancer. Thus, it is not necessary to know the

subjective status of an agent in order to know that exposing her to the risk of cancer

constitutes a set back to her interest in basic health (Finkelstein 2003: 972-4). However, it is

not entirely clear to me what exactly makes this a harm. We could understand the harm

involved in putting someone at risk as derivative from the harm that is risked. We have a right

to basic health and what intentionally jeopardizes our health is wrong. However, this view is

vulnerable to an objection envisaged by Nozick: if this view is sound, then any risk that

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threatens the violation of a right does, in fact, actually violate that right; so, all actions that

entail a non-zero probability of violating a right are impermissible (Nozick 1974: 74).

Alternatively, we may think that that we have a legitimate interest in avoiding the unwanted

status of being at risk. Yet, obviously, not everything that puts us in a status that is not our

preferred one constitutes a harm. So, if we take this view, then in order to avoid the result that

all unwanted risks are illegitimate, we would need a substantive account of which risks status

it is legitimate to want to avoid, both in terms of probability and impact.

These difficulties notwithstanding, the intuition captured by Finkelstein is an

important one. In particular, the idea that risk imposition corresponds per se to a setback of

our interests indicates that risk is disadvantageous and that such disadvantage is linked to the

diminished chances of pursuing one’s interests, independently of one’s subjective perspective

on what those interests are and the actual impact on those interests.

John Oberdiek (2012) elaborates on this idea and suggests that the interest set-back

caused by risk imposition must be identified with a diminishment of personal autonomy. The

argument, in a nutshell, is that risk, being the probability of a negative outcome, is like a trap

that forecloses an option, by rendering unsafe the path where the trap has been set. Thus, risk

modifies the opportunities open to people and, with that, the ways of life that they can choose

to lead. This, in turn, affects people’s autonomy, whether or not it has a material impact on

people’s lives.

Oberdiek argues that even where the will of an actor is not modified by the risk

situation—even if the risk trap is put on a path that she would not choose anyway—her

autonomy is affected and the risk imposition stands in need of justification. What is more,

even if she is not aware that she is running a risk, the very fact of risk imposition diminishes

her options by making them unsafe. For this reason, risk imposition is prima facie wrong.

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Oberdiek offers an example in which someone shoots a bullet in your range of action.

You do not move, and hence you do not get killed. But if you had moved in the direction of

the bullet, so the example goes, you would have been killed. However, it is not clear that your

autonomous will has been affected here if you do not know about the bullet and you do not

move in the direction of the bullet. Although Oberdiek’s focus on the agent and the

opportunities open to her is appealing and points in the right direction, I find that describing

the impact of risk in terms of autonomy does not really hit the nail on the head, and fails to

capture what we find wrong with the bullet shooting in the example above.

Autonomy is a complex concept, and Oberdiek follows Joseph Raz’s definition of

personal autonomy, which involves having (a) appropriate mental abilities; (b) an adequate

range of valuable options; and (c) independence from external manipulation (Raz 1986: 372).

By Oberdiek’s own admission, of these three elements, what counts, really, are external

impediments to options, not the subject’s abilities, or her actual choices (Oberdiek 2009). It is

rather controversial that a diminishment in an agent’s options always amounts causally to a

diminishment in an agent’s autonomy, and it is difficult to establish when this occurs

(Dworkin 1998: 14-17).

Certainly, we would not say that someone who decided to move in a certain direction

and as a lucky result was not killed by a flying bullet acted in a non-autonomous way, but

only that under risk imposition there are less options available. I contend that autonomy is still

too wide and complex a concept to be useful in understanding the impact of risk in the bullet

example, and so the focus of the analysis should be sharpened further. In particular, we need

an interpretation that is insensitive to the choices of the agent subject to risk, and that

concentrates on open and impeded opportunities only. Moreover, as I will argue, it is

necessary to consider the whole horizon of opportunities open to an agent, rather than

focusing on the security of particular options in isolation. Such an interpretation, I argue in the

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next section, is one that draws a connection between risk imposition and the diminishment of

freedom. By focusing on freedom, I submit, we can better understand how risk imposition

negatively affects people, even if it does not change their material situation, or affect their

will.

4. Freedom and Options for Actions

Although they follow different strands of reasoning, both Finkelstein and Oberdiek

suggest that what is wrong with risk imposition is that it negatively affects the opportunities

open to a subject. This notion is captured by economists and social choice theorists using the

concept of an opportunity set, that is, a set of available alternatives from which an individual

can choose an element (Pattanaik and Xu 1990). Different opportunity sets provide different

degrees of freedom of choice. Here, freedom of choice refers not to the faculty or the action of

choosing but to having choices, or external options.

As characterized so far, risk imposition is not simply a factor that diminishes the range

of choices for an agent, but an impediment imposed by someone on someone else’s options

for action (that were otherwise unconstrained) and, as such, represents a problematic aspect of

human interrelations. This problem, as I will show, is best captured by Hillel Steiner’s and Ian

Carter’s idea of social freedom, which conceptualizes freedom as those actions that are free

from humanly generated impediment (Steiner 1994: 42-54; Carter 1999: 23-30; for a

discussion on what counts as human constraint on freedom see Miller 1983; Kramer 2003).

So understood, options for action refer not only to opportunities as Rawls understands

them, i.e. a “normal opportunity range” that is mainly concerned with the availability of jobs

and offices, but more generally to the available alternatives open to an agent. The overall

freedom approach also contrasts with proposals, such as those based on the capability theory,

which assess the wrong of risk on the basis of its impact on opportunities to do or become

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valuable things. A capability describes the freedom to choose things of value (for example the

freedom to eat or fast) and the freedom to choose things of no value is not a capability (and

deserves no consideration in this approach). For this reason it is very important to list what the

relevant capabilities are. Because a capability, on the capability theory, identifies the freedom

to choose a specific functioning, it is necessary to identify which functionings are of value

and which are of no value before being able of making any assessment in terms of wellbeing.

Sen has intentionally left open the list of capabilities, and different theorists have proposed a

variety of solutions. Those aimed at explaining the impact of risk are especially problematic.

To give an example, Murphy and Gardoni conceptualize and assess risk in terms of impact on

capabilities (or genuine opportunities to achieve valuable functioning). Their first

methodological step is to select the capabilities relevant for the kind of risk in question and

explain that in order to do this it “is necessary to identify which capabilities will provide an

accurate picture of the impact of a hazard” (Murphy and Gardoni 2012: 86). Yet if risk is

defined according to its impact on capabilities, the attempt to define relevant capabilities as

those which will give an accurate picture of the hazard seems to be circular. Thus there are

two alternatives: either (a) one considers the impact of risk on all options, or (b) one has to

decide on a list of capabilities that make a certain action risky in a relevant way. Murphy and

Gardoni go for solution (b) and list some basic capabilities (including some basic

opportunities that appear in most capability lists such as the opportunity to have shelter, food

etc…) that may be relevant when considering the impact of natural hazards, and suggest that

this list can be appropriately modified to assess other kinds of risk.

However, in the context of humanly imposed risk, the relevant question is whether risk

imposition is a morally acceptable way of treating people, and it would be awkward to

consider the consequences of our actions only on a restricted set of basic capabilities.

Imagine, for example, that the house with the cellar in which you are playing with explosives

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is my holiday home and the risk of an explosion does not impair my basic capability of having

a shelter. This fact does not seem to render morally irrelevant the fact that you are risking

destroying my holiday home. In particular, considering that the motivation of risk imposition

on others is to gain a benefit (often confined to the risk imposer herself), it seems important to

ask whether by imposing a certain risk I am unduly interfering with the subject’s

opportunities for pursuing her own ends (and not just the ends that I think are relevant, or that

normal people consider as basic, or that have been democratically selected, and so on…). In

this sense the solution of considering the impact of risk on all options (a) seems the only

appropriate one.

The most relevant consideration seems to be that by taking a risky action I may reduce

the options for some other agents, and that these, before my intervention, were options against

which they could form or reform their plan of life. Considered in this perspective, it seems

that the wrong of risk imposition finds its source in the Kantian requirement according to

which respect for people prohibits subordinating other people’s goals to my own goals, or

sacrificing their ends for the promotion of a social goal (Hills 1980). Thus, the appropriate

moral question to be asked is whether (and in which cases) risk imposition is compatible with

treating people as sources of ends, and in which cases it reduces their options in a way that is

incompatible with this requirement. This seems to require moving away from an idea that

freedom has value only when is used for the right purposes (as in the capability approach), but

to attribute value to freedom as such and to recognize freedom as a condition for people’s

purposiveness (Carter 2009: 177).

One way to give theoretical coherence to this intuition is to refer to the notion of

overall freedom. Ian Carter and Hillel Steiner have argued that whatever treating people with

respect may mean, it must involve according to them ‘a measure of overall freedom’ and in

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this sense non-interference with a certain measure of freedom is constitutive of a respectful

conduct towards persons.

Steiner holds that freedom is a relation between agents, constraints and actions. He

proposes that the measure of one’s freedom is given by the ratio between the free options (F)

and the sum of free and unfree options (U). This can be expressed by the formula (F/F+U). By

expressing freedom as a fraction it is possible to take into account not only the unconstrained

options one has, but also the humanly imposed constraints on all the feasible (constrained and

unconstrained) options. The reason to use a ratio is that when an agent’s options expand, we

should not necessarily conclude that the agent has more overall freedom. Indeed, one may

also be subject to a higher number of interferences. For example, it may be that technological

advancements make actions feasible that were foreclosed previously. Any given agent can be

either free or unfree to choose those actions, because some other agents may physically

impede her freedom to perform them. To wit, the ratio is an expression of the social and

political dimension of freedom, and considers humanly imposed constraints, rather than mere

inabilities. The problem, when expressing freedom in the form of a ratio, is that the

denominator in the fraction has to be a finite number, and therefore we need a criterion for

saying which actions count as ones you can be either free or unfree to perform. There are

various solutions available. Steiner considers the set of all logically possible actions; other

solutions consider technological possibility or actions that are possible given the laws of

nature.4

My argument would go through whichever of these formulae were correct. Because

risk imposition should be taken into consideration as an aspect of interpersonal and social

relations, I believe that it is important to use a ratio despite its difficulties. I will present a

version of that argument that follows Carter’s formula. However, it will be readily seen that,

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by making the relevant adjustments, the argument could be presented using another formula,

which is able to account for the impact of probability on overall freedom.

Note that, so conceived, overall freedom is an extensive quality, which can be

possessed in various degrees. In other words, we are not merely free or unfree to do this or

that, but are also more or less free overall. What is more, we value freedom (rather than only

valuing the various things that freedom allows us to do) because freedom is a good for many

ends (Rawls 1971). In other words, freedom has non-specific value. Money is an example of a

good with non-specific value. We value it because of the things that we can buy. Yet, other

things being equal, we prefer money to, say, tokens for books, food or other goods for which

we have a subjective preference, because money offers us flexibility across the things that we

may want to buy in the light of an indeterminate set of present and future preferences.

Analogously, freedom is non-specifically valuable for it gives an agent several options. An

agent’s preference satisfaction can be increased by removing constraints on the options that

she favors; freedom, on the other hand, is measured by non-impediment on action tout-court,

both chosen and non-chosen. People can be understood as sources of ends only by granting

them a certain measure of freedom understood as non-specific value. Overall freedom has a

non-specific constitutive value in the sense that is a necessary (albeit not sufficient) condition

for moral agency (for a discussion see Carter 1999: 43-50; Hees 2000: 156). Behavior that

accords to another person a measure of overall freedom is constitutive of respect for her moral

agency (Carter 2009: 181).

Carter’s revision of Steiner’s formula, as I will show, offers a framework which is

useful to understand how risk affects freedom, and this in turn captures many of our intuitions

about what we find problematic about risk imposition. This is because Carter takes into

account a number of different ways in which freedom can be constrained, in particular the

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compossibility of unimpeded actions and the probability that a constraint is successfully

applied.

Let us consider compossibility first. According to Carter, when measuring freedom

one should consider both basic actions and causally generated actions that could in principle

be foreseen by the best-informed person at the time at which the agent has the degree of

freedom under investigation (for a discussion see Kramer 2003: 420-5).5 A constraint might

not affect one’s freedom to perform any single action-option, but instead restrict the number

of sets of actions that are possible in combination. The availability of certain options in

combination is what Carter calls action compossibility. Recall the example of housing and

food under condition of unemployment in Section 2. The agent in the example is free to get

food, but – given the constraints in place - the action required to exercise that freedom

excludes the possibility of performing the actions necessary to get shelter. Thus the particular

option to get shelter and the option to get food are there, but the overall freedom of the agent

is diminished because the two freedoms are not exercisable in conjunction (and thus the set of

options ‘shelter and food’ must be subtracted from the calculus of overall freedom). The

availability of these sets of options open to an agent can be expressed in the measurement of

freedom by aggregating over sets of compossible actions, rather than single actions. Rather

than on particular functionings in isolation, the focus is on how the options are conjunctively

possible, how they affect one another and how they can be computed in the calculus of overall

freedom, and bypasses the problem of evaluating different options (and ranking them) that

afflicts capabilities theories. What is more, unlike the approaches based on capability, it

explains the intuition that risk imposition is a special kind of harm by reference to an idea of

social freedom. Regardless of one’s views on the maximization or distribution of social

freedom, in order to recognize others as moral agents (rather than simply being concerned

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with their well-being as patients) we have to respect a certain measure of overall freedom

(Carter 2009).

Carter’s revised version of Steiner’s formula describes one’s freedom as equal to the

ratio of the set of sets of compossible actions unconstrained for a subject divided by the set of

sets of compossible actions unconstrained (F) for a subject plus the set of sets of compossible

actions constrained (U) for the subject (Carter 1999: 182).

The second element added by Carter, which is the most relevant given our interest in

risk, is that of probability (Carter 1999: 189-91). Commonsensical attributions of freedom or

unfreedom take into account the fact that we rarely know with certainty the constraints that

will be faced by an agent, and most constraints are not certain but only probable.

On the one hand, if we take the possibility of interference as non-probabilistically

relevant in attributions of freedom - and consider that any possibility of interference

diminishes freedom - then we will hardly find any freedom in our society, since risk is

ubiquitous. On the other hand, if only constraints that certainly result in actual unfreedom

were to count as restraining the freedom of an agent, then we would take into account very

few constrains on freedom (Petit 1983; Goodin and Jackson 2007). A formal measure of

freedom that is closer to our commonsensical way of attributing freedom is one that considers

probability. Note that probability refers to the existence of a particular unimpeded set of

options for an agent. Probabilistic qualification expresses the confidence with which we can

attribute particular unimpeded sets of options and impeded sets of options to agents, and thus

the overall freedom that we attribute them (Kramer 2003: 418).

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The intuition is that a probability that a constraint will be imposed affects the degree

of overall freedom contributed by the availability to the agent of the

constrained/unconstrained set of actions. Probability can be integrated into the freedom

formula in the same way that economists calculate probable utility gains. In the formula

denominator, a number is assigned to each set of options identified as relevant (i.e. the list of

conceivable, or nomologically possible, or technologically possible sets of actions). Then, for

each set, we consider the probability that it is unimpeded for the agent (i.e that the agent

would succeed in performing that complete set of actions if she tried) and the probability that

the set of actions is impeded for the agent (i.e that the agent would not succeed in performing

that complete set of actions if she tried). Thus, for a set that has a 60% probability of being

available we multiply the number assigned to the set of actions by 0.6. The resultant number

for the action set being unprevented then goes into the numerator in the formula.

Ceteris paribus, the higher the probability of being unprevented from a set of

compossible actions, the higher the degree of overall freedom one has. Carter’s revised

formula is such that it factors in the probability that a set of actions will remain unimpeded.

Although applying this formula to practical cases would give rise to various technical

difficulties it offers a model that allows us to identify what happens to an agent’s empirical

freedom when a risk is imposed on her. Carter’s formula makes it possible to take into

account risk as a factor that diminishes freedom.

Imposing a risk on an agent amounts to imposing an increased probability that some of

her sets of options will be constrained, and this in turn diminishes her overall freedom. Note

that this is different than stating, trivially, that risk increases the probability of being unfree,

but asserts that the degree of overall freedom of an agent is actually modified by the impact of

risk.

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Thus, risk concerns all the sets of compossible actions that one cannot take as

unimpeded with certainty, but rather have a certain probability of being impeded. A less

probable and more remote risk will have a negligible impact on overall freedom, a higher risk

will be more weighty. Moreover the impact of a risk will be indicated by the size and number

of sets of compossible actions that are (more or less probably) removed. A risk imposed on a

particular option may have repercussions on many other options (because that option is a

member of many sets), and this fact is expressed in terms of a correspondingly greater loss of

freedom.

By comparing the amount of freedom that an agent has in the absence of risk

imposition and the amount of freedom that she has under risk imposition we can in theory

calculate the loss of freedom caused by risk imposition. This loss of freedom indicates how

much worse off the agent under consideration has been made by the risk itself (in terms of

overall freedom). For the sake of risk management, most of these comparisons will be made

thinking of the state of freedom at the moment of risk imposition. Thus the freedom that an

agent will have at a time T in the absence of risk will be compared with the freedom that the

agent would have at T under risk imposition. There may be instances of risk imposition that

are illegitimate because they reduce freedom to an unacceptable degree, others that may be

legitimate but still call for some redress or compensation, and others still that are acceptable.6

Thus a loss of freedom, per se and without being connected to a normative theory of freedom,

does not tell us anything about the permissibility or impermissibility of risk imposition, or

what moral claims this may give rise to, but simply indicates how risk affects an agent

without reference to welfare indicators. What we find prima facie wrong in risk imposition is

that it diminishes people’s overall freedom.

5. Probability of Occurrence and Impact

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One objection to my reasoning may be that so far I have considered only one dimension of the

magnitude of risk, namely the probability of occurrence of the negative effects, while the

second dimension, qualitative impact, is ignored. Welfarists presuppose either that risks that

threaten the satisfaction of basic needs such as health, nutrition, or education are qualitatively

more important than other risks, or that subjective preferences should be used to determine

which risks are more damaging for people. Can we account for impact without making a

qualitative distinction between different kinds of possible effects and without resorting to a

preferentialist approach?

Carter suggests that, when measuring freedom, we should consider the ‘fecundity’ of

an action; that is, we should consider the extent to which the performance of an action is a

precondition for other possible generationally distinct actions (Feinberg 1980; Carter 1999:

204). Many of the freedoms that we consider qualitatively more important are simply

freedoms for actions that are more fecund. Impeding those actions renders impossible many

other actions that would otherwise have been possible.

In the same way, I submit, the risk of interference with a particularly fecund action is

particularly weighty in the balance of overall freedom because it threatens to impede all of the

other actions the availability of which depends on its performance. Thus, we can explain why

some risks are weightier than others, in terms of their impact rather than their frequency:

Risks that apply to actions that are more fecund are, other things being equal, of greater

magnitude.

This analysis also allows us to explain why we should try to make some rights, such as

the right to bodily integrity and the right to political freedom, as secure as possible: these

rights protect options that are very fecund (Carter 1999: 205). In this way, we can make sense

of the claim, made by neo–republican theorists, that certain options deserve special protection,

durable in time. The question is then what actual and possible constraints we should remove

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in order to guarantee ‘resilient non-interference’ for these options (Pettit 1993: 17).

‘Possibilists’ would say that this requires us to make an option completely secure, but this is

impracticable (for a discussion see Goodin and Jackson 2007). For example, in order to

prevent threats to political freedom we need measures aimed at reducing the power of certain

individuals such a tyrants, because there is a high probability that they will act to constrain

our political freedom. However, provisions against, say, possible psychopaths who may

decide to commit political crimes may be difficult to implement, and indeed too costly for

society unless there is evidence (and thus a probability) that there are some psychopaths ready

for action. Similarly, the Precautionary Principle makes sense when applied to cases where it

is expected a severely negative outcome (say, a natural disaster), even if we are not sure about

the exact probability of this outcome being brought about.7 But to use the precautionary

principle where we have no indication of the probability and impact of a catastrophic outcome

would impair too many social activities. Thus, even republicans must concede that given

constraints on our time and resources we must resort to calculations of which impediments are

more probable in order to enhance freedom. This is what Pettit calls ‘bounded probabilism’

(Pettit 2008). Bounded probabilism is compatible with the idea that we should incorporate

risk into the measurement of freedom.

Thus, to sum up, by coupling the idea of the fecundity of an option with Carter’s

‘probabilist’ approach we are able to account for the fact that the impact of risk on certain

options is greater than on other options, without resorting to a qualitative distinction. Risk

impact and probability can be built into a unitary formula and calculated together to produce a

measure of overall freedom. To come back to our initial question, my idea is that risk

imposition disadvantages those subject to it by decreasing their overall freedom. Not all

decreases in an agent’s freedom are illegitimate, or give rise to injustice. In order to decide

when reducing an agent’s freedom is wrong, or gives rise to compensation claims, one would

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need a normative perspective on freedom, for example one may want to equalize overall

freedom, or rather maximize it, or merely guarantee a minimum of it at all times to all of the

relevant persons. For the sake of this paper, I can be agnostic about this. The important point

is that our judgments about risk imposition should be guided by the normative theory of

freedom-distribution that we favor. For example, if we are egalitarians about freedom, all risk

imposition that causes a departure from an equal distribution of freedom is problematic. Thus

the point is not to ensure that everyone is equally subject to risk. This would be too strong a

requirement in many cases, and probably demand that nothing is risked so that no one is

subject to risk more than others. Instead, in the model that I have offered, a loss in freedom

due to risk imposition can in some cases be compensated by other freedom enhancing

resources, such as money or free services.

Talking about risk is useful as it describes a specific way in which overall freedom

may decrease. And it may turn out to be useful, for example, when discussing compensatory

measures. For example, if a subgroup of society is exposed to an increased risk of cancer

because of a hazardous waste site, it may be appropriate to compensate this population by

giving them the money that they need to move house to a safer location, rather than to try to

compensate them for the harm that cancer might cause them. If the probability that this

subgroup would develop cancer was lower, the impact that this risk would have on their

freedom would be lower, and so it might be appropriate to offer them a different kind of

compensation—for example, the money needed to cover regular medical checkups. It goes

without saying that the choice of whether to convert resources into medical care, or a new

house or into something else, can be entirely left to the agent. In this sense the compensation

method based on overall-freedom, as well as any other risk policy based on overall freedom is

compatible with respecting people as sources of ends and strongly anti-paternalistic.

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How risk imposition should be matched by other resources is a separate question, but as a rule

of thumb, a bundle of resources that gives to the agent the same amount of freedom that is

detracted by the imposed risk seems to be appropriate. In this way, the compensation (if any)

that is appropriate in any given case of risk imposition will be sensitive to the frequency and

the impact of the risk on the overall freedom of the agent (rather than on the probable

negative effects on specific options for an agent), and it will not be sensitive to the agent’s

subjective attitude to the risk.8 This – just to be sure - does not mean that any risk, under

compensation, can be imposed non-consensually on a subject at any time.

6. Risk and Vulnerability

A further worry may be whether the framework that I have offered actually helps us to

understand the cases that I used in the introduction to explain how risk imposition can cause

injustice, such as the case in which the poor become more exposed to environmental risks.

What we find problematic is not (or at least not only) risk imposition, but the special

vulnerability of certain population groups to risk.

I think that in these cases it is useful again to think about constraints on freedom in

order to draw out our intuitions. Consider poverty. The fact that money is necessary in order

to perform certain actions shows that a lack of money is an indicator of a high probability of a

constraint on freedom—some options are impeded for those who cannot afford them. If

houses were free, my lacking money would not limit my freedom to occupy one, but because

landlords normally make paying rent a condition for anyone to occupy a house, my lack of

money is, in fact, indicative of a very high probability of landlords and law-enforcers

impeding my entry to, and use of, a house should I try to gain such entry or to engage in such

use. The set of compossible actions available to an agent depends on the market prices and the

resources at their disposal (Cohen 1995; Carter 1999: 58-59).

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In cases of environmental classism, the injustice of risk imposition is not (only) that

hazardous waste sites are typically located where low-income populations live, but that

members of that group tend to have less resources, and thus are in the worst position to cope

with or avoid the imposed risk. Thus, if two persons with different amounts of resources live

in an area where an incineration site is to be placed, the imposed risk is the same for both, but

the freedom-impact for the poorer of them is higher, at least if (other things being equal) her

lack of resources is a barrier, say, to moving house to a healthier place. The idea defended by

some, including Wolff and de-Shalit, according to which some goods are non-replaceable

fails to capture the idea that we normally find it more unjust that a poor person loses his

house, or has to relocate, rather than a rich one. If we accept that one’s home is non-

replaceable by other goods, we would think that the risk of losing one’s home is equally bad

both for the rich and the poor. Instead we tend to think that the risk is more worrying for the

poor, exactly because the rich has more resources that can be converted so as to replace what

has been taken away by the loss of a particular house.

This may become clearer with an example in which risk imposition is not

geographically identifiable. Consider pesticide residue in food. Both the rich and the poor are

exposed to the health risk attached to consuming such food. However, it is likely that lower

income people are more vulnerable to this risk because they may have more difficulty

accessing organic food (because of lack of money) and so have to eat the affected food.

‘Difficulty’ here is sensitive to the sets of compossible actions available (as described in §4) to

the poor and affluent, given the total exchange value of the resources available to them.

Affluent people can, with their abundant resources, buy organic food (call this option a) and

other goods essential to a healthy life (option b). So, the set of compossible actions for them

includes (a), (b), and (a, b). For poorer people this and/or combination may not be available;

25

they can buy either organic food or other goods essential to a healthy life. So understood,

difficulty is described in terms of high opportunity costs.

By focusing on the way in which risk impacts on freedom, we can better explain the

injustice of risk. Poor and rich people are equally exposed to certain risks, but since they are

more likely to have more options (and not simply valuable options in the sense indicated by

capability lists), the rich are in a better position to avert the negative outcomes that a risk

threatens. Poverty, of course, is not the only ground for the preclusion of certain options.

Members of certain ethnic groups, even when group membership is not an indicator of

poverty, tend to be impeded in the performance of certain actions. For instance, a black

person may be prevented from renting a flat in an area populated mainly by white people,

which is less degraded than other areas, despite the fact that she could pay for it. Thus,

because of racial barriers, it may be more difficult for a black person with the same income to

move away from a hazardous waste site.

An agent who starts with a smaller measure of overall freedom (because she has less

resources or is subject to racial barriers, or indeed is subject to any other kind of barrier) is

more vulnerable to risk because the relative impact of risk on her overall freedom will be

greater than it would be for someone with a greater measure of overall freedom. For the same

reason, a fine of 1000 Euros will have a significant impact on someone who has, say, 1001

Euros, but a negligible impact on someone who has, say, 30 billion Euros. Carter’s formula

allows us to perform exactly these kinds of calculations.

These examples show how focusing on the overall freedom and the whole set of sets

of options available to an agent, rather than on the security of specific options, allows us to

understand how differently situated people may be differently burdened by risk imposition in

a way that is non-specific with respect to the actions that are directly threated by risk, but that

affects all the options (and their combinations) available to the agent.

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7. Conclusions

I have argued in this article that the wrong of risk imposition is that it decreases the overall

freedom of an agent. There are some instances of risk imposition that have either negligible

consequences or a justified impact on people’s freedom, and thus are unproblematic. But

other cases do affect people’s overall freedom in ways that make them impermissible, or that

are permissible but generate claims to compensation.

Our judgments as to the permissibility or impermissibility of a risk imposition, or as to

whether a risk imposition makes redistribution or compensation appropriate, will be guided by

the theory of justice that we favor and the way in which it weighs freedom relative to other

values. Prioritarian views, for example, will make different judgments about what kinds of

diminishments of freedom are permissible than equalizing or maximizing views would. But

whatever theory we favor, cases involving risk imposition must be adjudicated by considering

the impact of risk on a certain measure of overall freedom to which each of us is entitled.

What is more, by focusing on overall freedom, we can make sense of our intuition that

risk imposition makes us worse off even when no damage occurs. It is not simply the

materialized negative effects of risks that can disadvantage agents, or the fear and anxiety

caused by agents knowing about these possible bad effects, but also the way in which risk

determines which sets of options are available or not available to agents, and thereby affects

their overall freedom and their ability to form, revise, and pursue their own life plans. In this

sense imposed risk contributes negatively in a non-specific way to what an agent is free or not

free to do. Most importantly, diminishments of overall freedom under a certain measure are

incompatible with respect for others as sources of ends, and this explains the wrong of risk

imposition. Framing risk in terms of the impact it has on the overall freedom of those at the

receiving end establishes the prohibitions to take risky action that interfere with the life of

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others as moral agents, and to overpower them by restricting their options in order to pursue

our ends, or ends we ourselves ascribe to them, or ends that we think socially valuable. This is

the ground for risk policies that are strongly anti-paternalistic, and refuse to identify and rank

the options that should be valuable for people.

Finally, my model is able to explain why people are differently vulnerable to risk.

People have different degrees of overall freedom because some face more constraints than

others. Risk imposition has a greater impact, ceteris paribus, on the overall freedom of those

who already have less freedom. This allows us to make sense of the fact that the same risk

may represent a greater disadvantage for people differently situated in society.

To conclude, what I have offered in this paper is a framework that conceives of risk

imposition as a wrong or, in distributive contexts, a burden. Measuring the impact of risk on

overall freedom brings with it some important technical difficulties that deserve more

accurate analysis. However, my aim was rather to sketch a framework that makes sense of our

intuitions about risk, and that offers a plausible alternative to ‘actualist’ approaches and to

approaches that focus on the impact of risk on welfare; or on the agents’ capacity for

autonomous choice; or on the autonomy of the agent’s actual choices.

I suggested that if we can calculate the impact of risk on people’s overall freedom, we

can explain the sense in which people are negatively affected by risk as such. This puts us in a

better position both to understand the injustice that can be caused by risk imposition and to

start to think of ways to bring about a more equitable distribution of risk and its negative

effects.

Notes

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1 Risk, technically defined, involves knowledge of probabilities, whereas uncertainty arises

where there is not such knowledge (Altham, 1994: 15). However, some have pointed out that

for most risk situations, estimates in probabilistic terms cannot be made without making

controversial and arbitrary assumptions. While these disputes are important, I want to leave

these epistemological questions in the background and focus on the normative question: If we

could agree on how to evaluate risk, how should we consider risks in terms of justice? In this

specific sense the article discusses risk rather than uncertainty. However, in principle, I have

nothing against the proposal of taking into account evaluations of uncertainty, for example by

adapting the guidelines suggested by Taylor and Kuyatt (1994).

2 Adler (2005) argues that if a person believes that her action creates a relevant risk of harm

to someone else, then she is prima facie culpable; Sunstein (2002) exposes the bias that affect

people’s risk perceptions and judgements.

3 Of course, the ‘other things being equal’ rule applies, because many of us may prefer an

actual benefit to a lottery ticket, which only provides a probability of a material benefit.

4 For a discussion of a number of infinity objections see Carter (1999: 175-188). One

important objection is Kramer’s case against bivalence (Kramer 2003: 359-62).

5 A basic action is one that is not performed by performing any other action; its performance

is direct and unmediated (Davidson 1980).

6 My discussion of freedom does not presuppose that empirical freedom must be maximized,

trumps other values, or that it is the only kind of freedom that we value. Empirical freedom is

one important value, and independently of whether we think that it should be maximized or

equalized or balanced with other values, we can appreciate that risk decreases freedom.

7 The Wingspread Statement on the Precautionary Principle (1998) defines the principle this

way: "When an activity raises threats of harm to human health or the environment,

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precautionary measures should be taken even if some cause and effect relationships are not

fully established scientifically."

8 In cases in which it seems that no amount of resources could compensate for the risk

imposed on an agent, we should conclude that the risk diminishes the agent’s freedom so

much as to be impermissible. What is more, if the practical cases under consideration were

different, for example if it was the case that the risk is such that the agent can expect benefits,

then the risk will have both a positive and a negative effect in terms of probabilities and

freedom. Compensation is due only in cases in which overall freedom decreases after risk

imposition. Thus, if someone is put at risk of cancer, she should receive compensation

proportional to her calculated loss of freedom, whether or not she develops cancer, and in

cases in which she actually develops cancer, she should receive the treatment that is due to

any cancer patient in that society—the treatment that she would receive anyway, regardless of

how she came to be at risk of cancer.