This is a chapter on contractualism for Ethical Theory in Global Perspective, edited by Michael Hemmingsen (SUNY Press). The chapter (i) outlines contractualism as an ethical theory, (ii) explains how it differs from classical utilitarianism, (iii) explores the differences between ex post and ex ante contractualism, and (iv) finally looks at two traditional objections to the view.

Scanlonian contractualism rejects the consequentialist assumptions about morality, value, and rationality in virtue of which deontological constraints appear paradoxical. And yet, Jeffrey Brand-Ballard and Robert Shaver have claimed that it cannot succeed in defending the said restrictions. That is because they see Scanlon’s tie-breaking argument as threatening to justify aggregation in paradox of deontology cases. I argue that this claim rests upon a failure to appreciate contractualism’s relational character. Once we take this feature of the view into account, it becomes (...) clear that the tie-breaking argument is ruled out in cases where the only way for us to prevent several killings would be to commit one ourselves. To show this, I provide a contractualist explanation of why our duty not to harm persons is stricter than our duty to help them when they are threatened with harm. I conclude by distinguishing two ways in which this defense of deontological restrictions might bring contractualism objectionably close to absolutism. (shrink)

According to contractualist theories in ethics, whether an action is wrong is determined by whether it could be justified to others on grounds no one could reasonably reject. Contractualists then think that reasonable rejectability of principles depends on the strength of the personal objections individuals can make to them. There is, however, a deep disagreement between contractualists concerning from which temporal perspective the relevant objections to different principles are to be made. Are they to be made on the basis of (...) the prospects the principles give to different individuals ex ante or on the basis of the outcomes of the principles ex post? Both answers have been found to be problematic. The ex ante views make irrelevant information about personal identity morally significant and lead to objectionable ex ante rules, whereas ex post views lead to counterintuitive results in the so-called different harm and social risk imposition cases. The aim of this article is to provide a new synthesis of these views that can avoid the problems of the previous alternatives. I call the proposal ‘risk-acknowledging’ ex post contractualism. The crux of the view is to take into account in the comparisons of different objections both the realized harms and the risks under which individuals have to live. (shrink)

In most of the introductions to Rawls and contemporary contractarianism, Rawls is seen as the representative of Kantian contractarianism. He is understood as inheriting a contractarian tradition that can be traced back to Kant and which has inspired followers such as Barry and Scanlon. This paper argues that the label does not fit Rawls. While a Kantian contractarian would presuppose a monistic conception of practical reason, Rawls is a hybrid contractarian who presupposes a dual conception. I shall first argue that (...) the way in which a contractarian model is labeled is determined by its conception of practical reason. Then I show that Rawls and Kantian contractarians assume different conceptions of practical reason, and therefore should be seen as belonging to two strands of thought. I further argue that, although Rawls acknowledges his intellectual affiliation with Kant, he cannot be considered a Kantian contractarian in the commonly understood way. In his Lectures on the History of Moral Philosophy, Rawls interprets Kant as endorsing a hybrid contractarian model that is similar to his. By understanding Rawls as a hybrid contractarian and not confusing his philosophical project with that of Kantian contractarians, Rawls’s contribution to the history of contractarianism can be better evaluated. (shrink)

It is a commonplace that there are limits to the ways we can permissibly treat people, even in the service of good ends. For example, we may not steal someone’s wallet, even if we plan to donate the contents to famine relief, or break a promise to help a colleague move, even if we encounter someone else on the way whose need is somewhat more urgent. In other words, we should observe certain constraints against mistreating people, where a constraint is (...) a moral principle that we should not violate, even when that is the only way to prevent further, similar violations or other, greater evils. But, despite its intuitive appeal, the view that there are constraints has drawn considerable criticism, and attempts to provide a rationale for constraints have been, at best, substantially incomplete. In this paper, I develop a novel rationale for constraints that fills important gaps left by views in the literature. The account helps make sense of constraints by identifying a morally significant relation that we bear to people when, and only when, we observe certain constraints against mistreating them. Put roughly, observing these constraints is a condition for being worthy of a form of trust that I call civic trust, and being worthy of such trust is an essential part of living with others in the sort of harmony that characterizes morally permissible interaction. By focusing, in ways other accounts do not, on the role that observing constraints plays in our psychological lives, this approach not only makes the structure of constraints more intelligible, but also helps us better appreciate the force of our reason to observe constraints, and better understand the kind of moral community to which we should aspire. (shrink)

This paper examines the efforts of contractualists to develop an alternative to aggregation to govern our duty not to harm (duty to rescue) others. I conclude that many of the moral principles articulated in the literature seem to reduce to aggregation by a different name. Those that do not are viable only as long as they are limited to a handful of oddball cases at the margins of social life. If extended to run-of-the-mill conduct that accounts for virtually all unintended (...) (in the sense of undesired) harm to others—noncriminal activities that impose some risk of harm on others—they would rule out all action. Moreover, because such conduct poses an irreducible conflict between freedom of action and freedom from expected harm, it can be regulated only by principles that accept the necessity of making precisely the sorts of interpersonal trade-offs that contractualism is foundationally committed to reject: trade-offs in which the numbers count, such that a risk of serious harm to one person can be justified by small benefits to the many. (shrink)

An increasingly popular moral argument has it that the story of human evolution shows that we can explain the human disposition to make moral judgments without relying on a realm of moral facts. Such facts can thus be dispensed with. But this argument is a threat to moral realism only if there is no realist position that can explain, in the context of human evolution, the relationship between our particular moral sense and a realm of moral facts. I sketch a (...) plausible evolutionary story that illuminates this relationship. First, the sorts of adaptive pressures facing early humans would have produced more than just potent prosocial emotions, as evolutionary antirealists like to claim; it would have produced judgments—often situated within emotions—to the effect that others could reasonably disapprove of some bit of conduct, for an early human who cared deeply about how others might respond to her action enjoyed the benefits of more cooperative exchanges than those early humans who did not. Second, according to objectivist versions of moral constructivism, moral facts just are facts about how others, ideally situated, would respond to one's conduct. Thus if any objectivist moral constructivism story is true, then we can intelligibly assert that a) our capacity for moral judgment is the product of adaptive pressures acting on early humans and b) some moral judgments are objectively true. (shrink)

This article provides a critical introduction to contractualism as a moral or ethical theory, that is, as a theory of the rightness and wrongness of individual conduct – focusing specifically on the influential 'Kantian' version of contractualism due to T. M. Scanlon. I begin by elucidating the key features of Scanlon's contractualism: justifiability to others; reasonable rejectability; the individualist restriction; and mutual recognition. I then turn to discuss both its appeal and the main objections that have been raised to it (...) – objections concerning our duties to the cognitively limited and impaired, aggregation, demandingness, normativity and explanatory adequacy. I conclude by mentioning some contractualist alternatives to Scanlon's theory. (shrink)

When our nearest and dearest experience medical crises, we may need to step into caregiving roles. But in doing so, we may find that our new caregiving relationship is actually in tension with the loving relationship that motivated us towards care. What we owe and are entitled to as friends, spouses, and family members, can be different from what we owe and are entitled to as caregivers. For this reason, caregiving carries with it the risk of a type of moral (...) distress that I call “role conflict distress.” Rather than view role conflict distress as a sign that we are falling short, I suggest that it actually speaks to the commitment that we have to the loving relationship that grounds our duty of care. (shrink)

When policymakers craft rules for use by the general public, they must take into account the ways in which their rules are likely to be misapplied. Should contractualists and rule consequentialists do the same when they search for rules whose general acceptance would be non-rejectable or ideal? I argue that these theorists face a dilemma. If they ignore the possibility of misapplication, they end up with an unrealistic view that rejects rules designed to protect us from others’ mistakes. On the (...) other hand, if they take misapplication into account, they end up rejecting rules that appeal to what really matters morally in favor of easier-to-apply proxies for these rules. This leaves them unable to say why certain wrong acts are wrong, which in turn may lead them to mistaken verdicts about moral worth and wronging. I show how this misapplication dilemma applies to standard contractualist and rule consequentialist theories, but also suggest how it might generalize to other two-level theories, including those designed to avoid the ideal world objection. (shrink)

I evaluate two contractualist approaches to the ethics of risk: mutual constraint and the probabilistic, ex ante approach. After explaining how these approaches address problems in earlier interpretations of contractualism, I object that they fail to respond to diverse risk preferences in populations. Some people could reasonably reject the risk thresholds associated with these approaches. A strategy for addressing this objection is considering individual risk preferences, similar to those Buchak discusses concerning expected-utility approaches to risk. I defend the risk-preferences-adjusted contractualist (...) approach, which calculates a population’s average risk preference and permits risk thresholds below that preference, only. (shrink)

Brad Hooker’s rule-consequentialism and T.M. Scanlon’s contractualism have been some of the most debated ethical theories in normative ethics during the last twenty years or so. This article suggests that these theories can be compared at two levels. Firstly, what are the deep, structural differences between the rule-consequentialist and contractualist frameworks in which Hooker and Scanlon formulate their views? Secondly, what are the more superficial differences between Hooker’s and Scanlon’s formulations of these theories? Based on exploring these questions and several (...) purported differences between Hooker’s and Scanlon’s views, this article argues that, at the structural level, the two theories are more similar than previous recognised. It suggests that there is only one candidate for a deeper difference and even it may not be that significant. This insight sheds new light on both contractualism and rule-consequentialism, and it will also help us to formulate better versions of the views. (shrink)

Directed duties are those duties whose violation would wrong someone in particular. Under what conditions, and in virtue of what, is a duty directed to someone? This is the Question of Direction. In this article, I explore the possibility of providing a Contractualist answer to the Question of Direction—one where the directedness of a directed duty is explained by the way in which that duty is derived in Contractualist moral reasoning. After presenting and rejecting three attempts at such an answer, (...) I arrive at a satisfactory one: An agent has a duty to an individual to perform some action just in case and because, were the agent not to perform that action, the agent would make the individual occupy the standpoint relative to which any principle that permits the agent not to perform that action is unacceptable. (shrink)

It is common for philosophers to reject otherwise plausible moral theories on the ground that they are objectionably demanding, and to endorse “Moderate” alternatives. I argue that while support can be found within the method of reflective equilibrium for Moderate moral principles of the kind that are often advocated, it is much more difficult than Moderates have supposed to provide support for the view that morality’s demands in circumstances like ours are also Moderate. Once we draw a clear distinction between (...) Moderate accounts of the content of moral principles, and Moderate accounts of morality’s demands in circumstances like ours, we can see that defenses of Moderate views that include both of these components are subject to both methodological and substantive objections. I consider arguments for Moderate views that have been made by Samuel Scheffler and Richard Miller, and argue that both are methodologically problematic because they rely on appeals to intuitions that we have strong grounds to think are unreliable. I conclude that we must take seriously the possibility that Moderate principles, applied to well off people in circumstances like ours, imply demands that are much more extensive than Moderates typically accept. (shrink)

I argue that an act can be wrong _because_ it wrongs a particular person. I then show how this thesis serves as a constraint on moral theories, using Kantian ethics as a case study.

Many people hold the constraint against doing harm, the view that the reason against doing harm is stronger than the reason against merely allowing harm, everything else being equal. Mogensen and MacAskill (2021) have recently argued that when considering indirect long-term consequences of our everyday behavior, the constraint against doing harm faces a problem: it has the absurd implication that we should do as little as possible in our lives. In this paper, I explore the view that, for behavior that (...) does not increase anyone’s ex ante risk of suffering harm, the reason against doing harm is not stronger than the reason against merely allowing harm, everything else being equal. I argue that this view is plausible, show how it solves the paralysis problem, and defend it against objections. (shrink)

In Citizens United v. Federal Election Commission , the US Supreme Court sharply curtailed the ability of the state to limit political speech by for-profit corporations. This new legal situation elevates the question of corporate political involvement: in what manner and to what extent is it ethical for for-profit corporations to participate in the political process in a liberal democratic society? Using Scanlon’s version of contractualism, I argue for a number of substantive and procedural constraints on the political activities of (...) businesses. Central to this contractualist analysis is an identification of the self-governance-based interests of individuals that are affected by corporate political activity and a method for judging the various assignments of social rights, duties and roles according to how they collectively meet those interests. Together, these two features make this contractualist approach distinctive and allow it to generate substantive ethical results. (shrink)

How should we assess the burden of moral demands? A predominant assessment is provided by what Murphy calls the baseline of factual status-quo (FSQ): A moral theory is demanding if the level of agents’ well-being is reduced from the time they begin to comply perfectly with the theory. The aims of my paper are threefold. I will first discuss the limits of the FSQ baseline. Second, I suggest a different assessment, which examines moral demands from a whole-life perspective. My view (...) is that even if agents’ compliance with a moral theory will not cause a substantial reduction to their existing level of well-being, the total quality of life that they may obtain from complying with this theory may still be lower than what they could have obtained by following some other moral theories. The third aim of this paper is that, through this investigation, I hope to explicate the relation between agents’ acceptance of a moral theory and the burden of demands that is created by it. I believe that we can achieve a more comprehensive understanding of the nature of moral demands by paying attention to the psychological development of agents as they accept and internalize a moral theory. (shrink)

In this paper, I argue that accounts of the normative basis of morality face the following puzzle, drawing on a case found in Susan Wolf’s influential discussion of conflicts between the moral and personal points of view. On the one hand, morality appears to constitute an independent point of view that can intelligibly conflict with, and can conceivably be overruled by, the verdicts of other points of view. On the other hand, moral demands appear to carry a distinctive sort of (...) authority; moral reasons normally seem to take priority over other kinds of considerations, and the verdicts of morality seem to possess a distinctive place in our deliberations, in that they appear to represent standards that we are open to legitimate complaint for failing to honor. After clarifying the nature of the problem, I argue that a contractualist theory of morality can resolve the puzzle by offering a compelling vindication of the independence of the moral perspective, the normal priority of moral reasons, and the deliberative significance of moral verdicts, within a unified theoretical framework. Furthermore, I claim that this contractualist analysis can help account for the sense of deep conflict that is characteristic of the sort of troubling moral choices that Wolf calls to our attention. (shrink)

The union of contemporary philosophy and tort law has never been better. Perhaps the most dynamic current in contemporary tort theory concerns the increasingly sophisticated inquires into the doctrinal elements of the law of torts, with the tort of negligence in particular garnering the most attention from theorists. In this article, I examine philosophically rich issues revolving around each of the elements constituting the tort of negligence: compensable injury, duty, breach, actual cause, and proximate cause.

Extremism about Demands is the view that morality is significantly more demanding than prevailing common-sense morality acknowledges. This view is not widely held, despite the powerful advocacy on its behalf by philosophers such as Peter Singer, Shelly Kagan, Peter Unger, and G.A. Cohen. Most philosophers have remained attracted to some version of Moderation about Demands, which holds that the behavior of typical well-off people is permissible, including the ways that such people tend to employ their economic and other resources. It (...) is difficult to resist the conclusion that proponents of Extremism have not taken sufficiently seriously the central convictions that motivate the Moderate view. -/- This dissertation offers an improved defense of Extremism about Demands. At its center is an argument that appeals dialectically to requirements of justice that Moderates themselves already implicitly accept. Specifically, I claim that any plausible set of Moderate moral principles will, when applied to a world like ours, yield demands on typical well-off people that far exceed the demands of common-sense morality. -/- My argument has two cruxes. The first is the idea that our concern for justice is at least partially grounded in a concern for individuals’ interests, broadly construed. The other is a principle that I call Injustice entails Obligations, which says that we are collectively subject to requirements of justice that, if fully complied with, would ensure the transition from current injustice to a just state of affairs. Any view that is compatible with both the interest-based view of (part of) our concern for justice and Injustice entails Obligations will, I argue, require sacrifices from typical well-off people that substantially exceed what prevailing common-sense morality requires of them. -/- Moderates typically emphasize the idea that each person has an important interest in pursuing the projects, plans, relationships, and commitments that are most important to her. But they also believe that acceptable Moderate principles will properly balance this idea with the idea that from a properly impartial perspective everyone, and everyone's interests, are equally morally important. Because Moderates accept the latter idea, they are already committed to thinking that in a just world, everyone would have a sufficient minimum share of society’s resources. I argue that even if we limit our focus to distributive justice in a single society such as the United States, and even if we assume that distributive justice requires only a sufficient minimum, the extent to which the status quo must be transformed in order for justice to be achieved is still too great to be compatible with Moderate demands on typical well-off people. -/- There are a number of ways to try to argue that Moderate principles and Injustice entails Obligations are compatible with Moderation about Demands. For instance, it might be argued that all or nearly all of the demands to sacrifice in order to promote justice can be assigned to the super-rich, rather than to typical well-off people. Or it might be argued that the sacrifices of a single well-off person cannot be required because they amount to a mere “drop in the bucket” relative to what needs to be done in order to fully achieve justice. I show that such arguments fail. -/- The argument that I consider in greatest detail derives from John Rawls’s view that the principles of justice apply to the institutions of the “basic structure of society,” and do not apply directly to the conduct of individuals. If this “Institutionalism” is right, then it cannot be the case that individuals are obligated to promote justice directly in the way that I suggest they are. Furthermore, it might seem that a view that assigns all of the burdens of promoting justice to the basic structure satisfies the imperative to transition from injustice to justice, since if the relevant institutions were to begin doing everything that the Rawlsian view says they ought to be doing, the requirements of justice would be met. I argue, however, that there is no understanding of Institutionalism on which it is itself consistent with the following desiderata: Moderate principles, and the associated interest-based view of (part of) the ground of our concern for justice; Injustice entails Obligations; and Moderate demands. So, Institutionalism cannot make Moderate principles and Injustice entails Obligations compatible with Moderate demands. -/- Moderate principles and Injustice entails Obligations, then, remain incompatible with Moderation about Demands. Since there are compelling reasons to accept both Moderate principles and In justice entails Obligations, I conclude that we must reject Moderation about Demands. The obligations that justice places on typical well-off people are substantially more extensive than is acknowledged by prevailing common-sense morality. (shrink)

In the third volume of On What Matters, Derek Parfit argued that the distinction between imposing a newly created threat on someone and making what threatens some people instead threaten someone else has no genuine moral significance. This article's central thesis is that although there is much to learn from Parfit's arguments, they are ultimately unsuccessful at establishing that the redirected versus newly created threats distinction is morally irrelevant. In particular, I show that my Causal Sequences Principle specifies this distinction (...) in such a way that it is immune to Parfit's objections against the Redirection Principle. It follows that any moral theory that can provide a sound rationale for the Causal Sequences Principle can solve the trolley problem. (shrink)

In this thesis, I discuss the aggregation problem for T. M. Scanlon’s “contractualism”. I argue that Scanlonian contractualists have the following two options when it comes to the aggregation problem. First, they can choose to limit aggregation directly via a specific version of the Relevance View, “Sequential Claims-Matching”. Second, Scanlonian contractualists can adopt a so-called “mixed solution” of which I propose a specific version. My mixed solution does not limit aggregation. Rather, it either avoids some of the counterintuitive results in (...) certain cases, or at least makes these same results look a lot less counterintuitive by putting them into perspective thanks to a plausible plurality of precisely specified values. The stakes between these two options are as follows. The first option justifies Scanlon’s intuition in one vs. many cases of which his “World Cup Case” is one example, but it comes at the cost of a seemingly quite limited range of application: any version of the Relevance View only works in cases in which we have no more than two groups of competing claimants. The second option has the exact opposite implications: my mixed solution cannot justify Scanlon’s intuition in one vs. many cases, but it could be applied to any case with any number of groups of competing claimants. In this choice between pre-theoretical intuition and feasibility, I would urge Scanlonian contractualists to choose feasibility. (shrink)

In response to the charge that deontic ("argent-centered") restrictions are paradoxical, several recent writers suggest that such restrictions find support within T.M. Scanlon's contractualism. I suggest that this claim is only interesting if these restrictions are stronger than those supported by indirect consequentialism. I argue that contractualism cannot support restrictions any stronger than those supported by indirect consequentialism. The contractualists have mislocated the source of the paradox, which arises under any theory that defines right action in patient-focused terms. Consequentialism and (...) contractualism share this feature, so contractualism cannot support stronger deontic restrictions than consequentialism supports. (shrink)

In this article, we defend pairwise comparison as a method to resolve conflicting claims from different people that cannot be jointly satisfied because of a scarcity of resources. We consider Michael Otsuka's recent challenge that pairwise comparison leads to intransitive choices for the (someone who believes the numbers should not count in forced choices among lives) and Frances Kamm's responses to Otsuka's challenge. We argue that Kamm's responses do not succeed, but that the threat they are designed to meet is (...) illusory. Once the method of pairwise comparison is understood in a manner consistent with its proposed use, the challenge disappears. In making this argument, we examine questions about the interpretation of pairwise comparison and maintain that it must be understood as a method for ensuring that decisions are justifiable from the perspective of each affected individual. (shrink)

We can imagine agents who would have the moral status to demand contractualist justification but still lack an especially strong claim against interference. In contrast, agents who can conceive of their lives in a temporally unified way have a distinctive, strong interest in non‐interference. This contrast helps illuminate the moral importance of self‐authorship. The upshot is that ordinary persons have a more general and less variable right against interference than is often supposed. Self‐authorship can also help appreciate the sense in (...) which the value of persons may be characterized as ‘self‐existent’. (shrink)