## 1. What is contractualism?



Scanlon introduces contractualism as a distinctive account of moral
reasoning. He summarises his account thus:



> 
> An act is wrong if its performance under the circumstances would be
> disallowed by any set of principles for the general regulation of
> behaviour that no one could reasonably reject as a basis for informed,
> unforced, general agreement. (Scanlon 1998, p. 153).
> 



But Scanlon's version of contractualism is not just concerned
with determining which acts are right and wrong. It is also concerned
with what reasons and forms of reasoning are justifiable. Whether or
not a principle is one that cannot be reasonably rejected is to be
assessed by appeal to the implications of individuals or agents being
either licensed or directed to reason in the way required by the
principle. Scanlon's version offers an account both of (1) the
authority of moral standards and of (2) what constitutes rightness and
wrongness. As to the first, the substantive value that is realised by
moral behaviour consists in a relation of "mutual
recognition". As to the second, wrongness consists in
unjustifiability: wrongness *is* the property of being
unjustifiable. The wrongness of an action is not to be equated with
the properties that make it unjustifiable. Rather, it is to be equated
with its being unjustifiable; the character of wrongness is captured
by the higher order fact that wrong acts are unjustifiable. What wrong
acts have in common is that they cannot be justified to others. Thus
the various moral considerations that guide our substantive moral
reflection are unified by a single normative subject matter. In this
way, contractualism guides our substantive reflection about wrongness.
Wrong is the primary moral predicate; right is defined as "not
wrong". One reason for focusing on wrong is to draw attention to
the domain that contractualism is concerned to map, concerning what it
is for one person to have been *wronged* by another.



Moral requirements determine what it is to respond properly to the
value of persons as rational agents. The distinctive value of human
life lies in the human capacity to assess reasons and justifications.
Therefore, appreciating the value of a person involves recognising her
capacity to appreciate and act on reasons. The way to value this
capacity is to treat persons in accord with principles they could not
reasonably reject. In doing so, the agent is guided by a principle
that can rightly be characterised as one that the person herself
authorised that agent to be guided by, in thinking about the
appropriate way to relate to her. Contractualism illuminates the
compelling Kantian insight that we ought to treat persons never as
mere means but always as ends in themselves. It interprets this as
treating them according to principles they could not reasonably
reject.


## 2. How does contractualism differ from other social contract theories?



Contractualism appeals to the idea of a social contract. It attempts
to derive the content of morality (and, in some versions, also the
justification for holding that we are obligated to follow morality)
from the notion of an agreement between all those in the moral domain.
Contemporary moral philosophy offers several other interpretations of
the social contract tradition. It is useful to distinguish
contractualism from these alternatives.



*Contractarianism* has its roots in Hobbes, whose account is
based on mutual self-interest. Morality consists in those forms of
cooperative behaviour that it is mutually advantageous for
self-interested agents to engage in. (The most prominent modern
exponent is David Gauthier. See Gauthier 1986.)



By contrast, any form of *contractualism* is grounded on the
equal moral status of persons. It interprets this moral status as
based on their capacity for rational autonomous agency. According to
contractualism, morality consists in what would result if we were to
make binding agreements from a point of view that respects our equal
moral importance as rational autonomous agents. Contractualism has its
roots in Rousseau, rather than Hobbes: the general will is what we
would jointly will if we adopted the perspective of free and equal
citizens. Contractualism offers an alternative to contractarianism.
Under contractarianism, I seek to maximise my own interests in a
bargain with others. Under contractualism, I seek to pursue my
interests in a way that I can justify to others who have their own
interests to pursue.



We next distinguish contractualism from the specific moral theory of
Kant. Kantian moral philosophers seek principles to which all rational
agents would agree, under certain idealised conditions. In order to
reach such an agreement, Kant notoriously needs to abstract away from
many (some would say too many) concrete features of our moral lives.
(See Onora O'Neill's gloss on the notion of agreement in
Kantian ethics; O'Neill 2003.)



Contractualism departs from Kant in various respects. In particular,
it offers a substantive account of the normative force of morality,
based on the value of a relation of mutual respect. Reasonableness is
not taken to be something that can be demonstrated outside the moral
point of view. Another difference is that contractualism seeks
principles that no one can reasonably reject, rather than principles
all would agree to.



However, Scanlon's contractualism has Kantian elements, as it
seeks a free agreement that elucidates both freedom and equality. We
might say that contractualism gives expression to ideas latent in
Kant's discussions of the Categorical Imperative (especially in
the Formula of Humanity and the Formula of the Kingdom of Ends, rather
than the more familiar Formula of Universal Law). Indeed, as we shall
see in
 section 5,
 Derek Parfit argues that, despite their differences, contractualism
does coincide with the best interpretation of Kant's moral
theory.



The most influential recent social contract theorist is John Rawls.
Rawls's contract differs from Scanlonian contractualism in two
key ways. (1) Rawls's contract is more Kantian, as he seeks
principles everyone *would agree to*, rather than principles
no-one *could reasonably reject*. (This contrast is especially
marked if we consider Rawls's Dewey Lectures (Rawls 1980), where
his work is at its most Kantian.) (2) Rawls's contract is
political--it aims to set the general social framework for a
liberal society, rather than determining moral principles. As a
result, Rawls places the parties to his agreement behind a *veil of
ignorance*, where they do not know many key facts about their own
identity. This is to ensure that the resulting principles of justice
embody Rawls's commitment to liberal neutrality. For Rawls, we
ought to follow the principles that it would be rational for everyone
to choose, if they had to choose those principles without knowing
anything about themselves or their circumstances. Because each person
knows that they could end up being anyone, each must have concern for
all. In essence, Rawls uses self-interest behind a veil of ignorance
to represent a commitment to justice, construed as fairness to
all.



Contractualism, by contrast, invokes no veil of ignorance. I know my
own circumstances. It is not self-interest combined with ignorance of
self that makes me take account of everyone's interests, but
rather my concern to justify myself to everyone else. This motivation
is a key feature of Scanlon's contractualism. All social
contract theorists--even contractarians--agree that agents
want to justify themselves to others. However, for the contractarian,
such a desire is merely strategic--justification is
instrumentally useful because it enables me to get others to do what
serves my interests. For the contractualist, by contrast, agents are
morally motivated by an intrinsic desire to justify themselves to
others. Having this desire is part of what it *is* to be a
moral agent.



Despite these differences, contractualism does have several points in
common with other social contract theories. In particular,
contractualism aspires to provide a non-utilitarian theory that
grounds moral status on a universal trait of persons--rational
moral agency--and thus provides general principles whose scope is
global. It is to this contrast with utilitarianism that we now turn.



## 3. How does contractualism differ from utilitarianism?



Contractualism is an impartial moral theory. In contemporary moral
philosophy, the main impartial moral theory outside the social
contract tradition is utilitarianism. Utilitarianism takes
persons' moral status to be grounded on their capacity for
well-being and suffering, and takes well-being to be the sole moral
value. It takes the appropriate response to this value to be to
promote it. Utilitarianism is thus a *consequentialist* moral
theory--morality is concerned with bringing about valuable
outcomes.



There are three fundamental contrasts between contractualism and
utilitarianism. The first difference is one of scope. (1)
Utilitarianism applies to every area of morality, while contractualism
covers only the realm of what we owe to one another. Scanlon himself
acknowledges that this is not the whole of morality. We return to this
difference in sections
 12
 and
 13.



The remaining two differences between contractualism and
utilitarianism relate to content. (2) Contractualism does not
*aggregate*, but rather focuses on the standpoint of individual
persons. (3) Contractualism does not regard well-being as a basic
moral concept, but instead allows a variety of personal reasons.



The only reasons for and against a principle that count when we are
judging whether or not it can be reasonably rejected are
"various individuals' reasons for objecting to that
principle and alternatives to it" (Scanlon 1998, p. 229). The
acceptability of a principle depends on a one-by-one assessment of the
strength of the reasons that individuals would have for rejecting the
principle, compared to the alternatives to it. Since individuals must
be objecting on their own behalf and not on behalf of a group, this
restriction to single individuals' reasons bars the
interpersonal aggregation of complaints; it does not allow a number of
lesser complaints to outweigh one person's weightier
complaint.



Unlike utilitarianism, therefore, contractualism rejects the
interpersonal aggregation of burdens. (We discuss some important
exceptions below.) This is one of the main respects in which it
differs from utilitarianism. Contractualism thus captures a key
feature of our moral life that, as Rawls famously argues,
utilitarianism ignores: the feature he calls "the separateness
of persons" (Rawls 1971). Instead of lumping everyone together
and allowing one person's rights to be trampled to provide
greater aggregate benefits to others, contractualism recognises that
each of us has a unique life to live. Contractualism therefore seeks
principles that benefit each person individually and that command each
person's free assent.



Aggregation (in some form) is essential to utilitarianism. Situations
frequently arise where one person's pleasure is in conflict with
another's, or where the only way to secure one person's
pleasure is to cause someone else pain, or where we must choose which
person suffers which pain. We must find a way to balance the moral
reasons generated by different people's pleasures and pains. If
we retain a utilitarian perspective, then it is hard to see how we can
do this without some kind of aggregation--adding different
pleasures and pains together.



By contrast, contractualism seems able to avoid aggregation, because
it begins, not with individual pleasure and pain, but with the more
flexible concept of reasons. Unlike my pleasures and pains, my reasons
can be responsive to the situation of others. To see this, we explore
two features of Scanlon's use of reasons: rejection must be
reasonable, and reasons are not limited to well-being.


### 3.1 Reasonable Rejection



In order to reasonably reject a principle, I must have some objection
to it. This objection may begin with some direct harm I suffer as a
result of the principle. So far, if the harm involved is pain or
suffering, contractualism mirrors utilitarianism. However, the fact
that a principle impacts negatively on me is not *sufficient*.
To know whether I can *reasonably* reject the principle, I must
also ask how it impacts on others. If a principle imposes a certain
burden (*b*1) on me, but every alternative imposes a greater
burden (*b*2) on someone else, then *b*1 does not give
me a reason to reject the principle. If I am reasonable, then I
withdraw my objection when I see that your reason is more pressing.
(By contrast, it would make no sense to say that a utilitarian has
'withdrawn her pain' because she has noticed that someone
else's pain is greater.) So we conclude that the principle
imposing *b*1 on me cannot be reasonably rejected. And we reach
this conclusion without having to aggregate anything.



In contractualism, individuals are motivated both by self-regard and
by respect for others. Since each person is partly motivated by
concern for her own interests, contractualism can ground
consequentialist reasons. Part of what we owe others is to promote
their interests. Contractualism can therefore accommodate important
consequentialist aspects of the structure of moral thought.



Unlike utilitarianism, however, the account of value underlying
contractualism does not claim that there is only one rational attitude
to have towards value. So contractualism can accommodate
consequentialist aspects without being a completely consequentialist
theory. (This represents an advantage of contractualism over
naive versions of Kantian ethics, which reject all
consequentialist reasons and thus make it very difficult to explain
why the consequences of our actions have any moral significance at
all.) In contrast to an outcome ethics (such as utilitarianism), what
is foundational for contractualism is *not* minimising what is
undesirable, but considering what principles no-one could reasonably
reject. Moral principles are grounded in the idea of living with
others on terms of mutual respect. This means that as well as
accommodating some consequentialist aspects, contractualism can also
accommodate certain deontological intuitions: commonsense prohibitions
against treating persons in certain ways even in circumstances in
which the aggregate value of the consequences of doing so is very
great. Which prohibitions are justified? This question "is best
answered by considering what principles licensing others to take our
lives could be reasonably rejected" (Scanlon 1998, p. 85). Among
these principles might be ones that involve "accepting a certain
view of the reasons one has: that the positive value of saving others
does not justify killing someone" (Scanlon 1998, p. 84).


### 3.2 Reasons beyond well-being



A further resource available to contractualism that is not available
to utilitarianism is that my reasons for rejecting a principle are not
limited to my well-being--however broadly that notion is
construed. For ease of exposition, let us for the moment follow the
utilitarian, and think of 'burdens' solely in terms of
negative impact on my well-being. My reason for rejecting a principle
might be, not so much that it imposes a certain burden on me, but the
way in which it imposes that burden--and what the principle thus
says about me. For instance, consider a principle that allocates
benefits and burdens on the basis of race, and contrast this with a
principle that allocates the same benefits and burdens randomly. I
cannot reject the racist principle simply because of the burden it
imposes on me--after all, the random principle imposes an
identical burden on someone else. Rather, I reject the racist
principle because, by regarding my race as a relevant ground for the
distribution of benefits, it imposes that burden in a way that
constitutes a failure to respect my status as a person.



If we abandon the utilitarian link between burdens and well-being,
then we might say that the method of distribution of burdens itself
imposes an additional burden of a different kind--the burden of
not being respected. Similarly, I might reject a principle that
arbitrarily exempts some people from a burden borne by everyone else,
on the grounds that such a principle treats me unfairly--even if
the alternative is a principle that places that burden on everyone.
For instance, imagine a situation where, in order to preserve the
grass, we need at least 90% of the people to avoid walking on the
grass, but it doesn't do any harm if 10% do walk on the grass. I
might object to a principle that allows the members of a privileged
racial minority to walk on the grass, even if my preferred principle
is one where no-one gets to enjoy grass-walking. My rejection is not
based on envy, but on the disrespect this principle shows by regarding
race as a legitimate ground for distribution.



Contractualist *reasons* are more flexible than
*aggregation*, as they allow us to respond directly to morally
relevant considerations, rather than having to rely upon some complex
utilitarian calculation. (Think of the artificial epicycles a
utilitarian needs to go through to reject a principle that efficiently
maximises happiness, but happens to be racist or arbitrary.) By moving
straight to the moral heart of the matter, contractualism also seems
to offer a more satisfying explanation of *why* certain
behaviour is wrong.



Contractualism can thus produce principles that balance the interests
of different people against one another, without explicit appeal to
aggregation. This is a significant development in moral philosophy, as
it enables us to separate arguments against utilitarianism into two
classes: arguments against *impartiality* and arguments against
*aggregation*. Objections in the first class also apply to
contractualism, while those in the second class do not. We return to
aggregation in
 section 8;
 and consider one common objection to impartiality in
 section 9.
 Once contractualism has entered the field, we cannot treat arguments
for impartiality as if they were arguments for utilitarianism
itself.


## 4. How does contractualism differ from other non-consequentialist ethical theories?



Although it is not solely devoted to contractualism, Scanlon's
2008 book *Moral Dimensions: Permissibility, Meaning, Blame*.
addresses several issues of relevance to Scanlonian contractualism,
notably the irrelevance of intent for judgements of permissibility,
the distinction between two kinds of responsibility, and the analysis
of blame. These issues help to differentiate contractualism from some
of its non-consequentialist rivals.


### 4.1. The irrelevance of intent to permissibility



Many theorists distinguish non-consequentialist moral theories from
consequentialist rivals such as utilitarianism by emphasising the
significance of agents' *intentions*. Otherwise
permissible acts become impermissible when done for the wrong reason
or in pursuit of the wrong aim. For instance, the *doctrine of
double effect* forbids actions that aim at the death of an
innocent person either as an end or as a means to an end, even when
the same result could be permissible as a side-effect. Consider two
familiar examples:



*Drug*: "If the limited amount of a drug that is
available could be used either to save one patient or to save five
others, it is permissible to give it to the five, even though the one
will die. But it would not be permissible to withhold the same drug
from the same person in order to save the five others by transplanting
his organs into them after he is dead." (Scanlon 2008, p. 1)



*Military Target*: "Many people believe that in war it
can be permissible to bomb a military target even though this will
also cause the deaths of some noncombatants living nearby, but that it
would not be permissible to bomb the same number of noncombatants in
order to hasten the end of the war by demoralizing the
population." (Scanlon 2008, p. 2)



Despite its intuitive appeal, Scanlon rejects the doctrine of double
effect, arguing that intention is not *directly* relevant to
permissibility. Scanlon concedes that intentions have
*predictive* significance - they help predict
*how* an agent will perform an action, and whether she is
likely to succeed in performing the action or in implementing any
larger plan of which this action might be a part. But such predictions
are only indirectly relevant to judgements of permissibility. Scanlon
also agrees that intentions matter when assessing how an agent has
*deliberated* on a given occasion. But they are not relevant to
judgements of *permissibility*, which ask instead
"whether an agent may perform an action of a certain
kind." (Scanlon 2008, p. 2.)



Drawing on the work of Judith Thomson (Thomson 1986, pp.
101-102), Scanlon argues that a focus on intention can lead to
implausible conclusions about permissibility. Consider two familiar
thought experiments.



*Loop*: "In the well-known trolley-problem case it seems
permissible to switch a runaway trolley onto a sidetrack on which it
will hit only one person rather than allow it to continue straight
ahead and hit five. But it also seems permissible to switch the
trolley in [Thomson's] Loop case ... in which the sidetrack
loops around and rejoins the main line, so that if the trolley does
not hit the one person and thereby come to a stop, it will continue
around the loop and hit the five." (Scanlon 2008, p. 18.)



*Doctor*:"Suppose that a patient is fatally ill and in
great pain. The only course of medication that will relieve this pain
will also cause the patient's death. Suppose that the patient
wants to be given this drug. Does the permissibility of administering
it depend on the doctor's intention in doing so?" (Scanlon
2008, p. 19.)



Most people agree that switching the trolley is permissible in Loop
even though "one switches the trolley only because it will, by
hitting the one person, be prevented from hitting the five".
(Scanlon 2008, p. 18) But this verdict clearly violates the doctrine
of double effect. Most also agree that it is permissible for the
doctor to administer the drug whatever his intention - whether
to relieve the patient's pain, to hasten her death and thus end
her suffering, or even to hasten the patient's death in order to
inherit her wealth. This last intention affects our evaluation of the
doctor's character and deliberation. But it does not render his
*action* impermissible. "What makes an action wrong is
the consideration or considerations that count decisively against it,
not the agent's failure to give these considerations the proper
weight." (Scanlon 2008, p. 23)



For the contractualist, justification to others provides the standard
that determines which considerations count decisively against
particular actions. In transplant cases, the contractualist question
is whether the possibility of saving lives via transplant justifies an
exception to the general duty to aid one's patients. Scanlon
argues that it does not do so, because a principle permitting such an
exception could reasonably be rejected by prospective patients. If
doctors withhold treatment because they intend to transplant their
patients' organs, then this intention is wrongful because the
act intended is wrong, and not vice versa.



It is worth noting that, while most philosophers who discuss Thomson's
Loop share Scanlon's intuition that switching the trolley is
permissible, this agreement is not unanimous. For instance, Liao et al.
2012 argue that actual intuitions about Loop cases are highly variable
and dependent on the context of presentation, and therefore that moral
theorists should be wary of putting too much weight on such
intuitions. Scanlon could take this criticism on board, as his
contractualist framework is not wedded to any specific conclusion
about Loop. But he would then need to find other cases to illustrate
his general claims about the significance of intention. 


### 4.2. Blame and responsibility



While they are not relevant for permissibility, intentions do affect
the meaning of actions, and thereby affect the ways that it is
appropriate for others to respond to the agent. This brings us to
Scanlon's discussions of blame and responsibility. Scanlon
distinguishes two forms of responsibility.



(1) *Moral reaction responsibility* is relevant when we ask
certain positive or negative moral reactions to a person - such
as blame, resentment, praise, or gratitude - are appropriate.
Intuitively, "what a person has done makes such reactions
appropriate only if the person was responsible for behaving in this
way" (Scanlon 2015, pp. 89-90). Scanlon originally called
this "responsibility as attribution", but he has come to
prefer the label "moral reaction responsibility".



(2) *Substantive responsibility* is relevant when we ask
whether a person's actions change her obligations to others, and
their obligations to him or her. "Making a promise, handing over
some money, taking a risk, or choosing not to avail oneself of an
opportunity can change a person's obligations to others, and
theirs to him or her, if the person is responsible for doing these
things." (Scanlon 2015, pp. 89-90) We return to the
contractualist account of substantive responsibility in section
10.



The central question for the contractualist account of moral reaction
responsibility is "what must be true for an agent to be
identified with a particular attitude, and thus eligible for moral
responses such as praise and blame". (Kumar 2015, p. 251) In the
background, of course, lie traditional puzzles about free-will and
determinism. Can agents fairly be blamed for actions or attitudes
whose ultimate causes lie beyond their control? It seems unfair to
evaluate someone negatively for something she could not control. For
the contractualist, however, blame goes beyond mere evaluation. Blame
is intimately linked to both the *meaning* of actions and our
*relationships* with others. "The meaning of our
interactions with others depends on what they see as the reasons
governing those interactions. ... we have reasons not to have
attitudes of friendship or trust toward people whose attitudes toward
us make these attitudes inappropriate." (Scanlon 2015, p.
93)



For Scanlon, a person is *blameworthy* if her action shows
something about her attitudes toward others that impairs the relations
they can have with her. I *blame* you if both (a) I judge you
to be blameworthy, and (b) I take my relationship with you to be
modified in a way that this judgement of impaired relations holds to
be appropriate. (Scanlon 2008, pp. 128-9) Appropriate blame
reactions include withdrawal of trust and decreased readiness to enter
into special relationships such as friendship or to help the person
with his projects. (Scanlon 2015, p. 92)



Suppose I discover that my close friend Joe laughed at cruel jokes at
my expense at last week's party. (Scanlon 2008, pp.
129-30) Joe's behaviour clearly reveals attitudes that are
inconsistent with friendship. I may therefore conclude that my
relationship with Joe is impaired, and adjust my own attitudes or
behaviour accordingly.



Contractualist blame thus only makes sense within a relationship, such
as friendship or family relationships. Impairment must be judged
against the standard of what is appropriate *within that
relationship*. This raises an obvious problem. What
*relationship* could possibly ground judgements of
blameworthiness and reactions of blame in the general moral case?
Suppose a stranger steals my bag as I walk down the street.
Intuitively, I can blame her. But what is my relationship to her?
"Do we have a relationship with every total stranger whom it
makes sense to blame?" (Scanlon 2008, p. 138) Scanlon replies
that we do.



"The contractualist claim is that all persons stand in a
particular kind of relationship to one another, the ideal form of
which realizes a distinct value, that of mutual recognition."
(Kumar 2015, p. 258) This idea sounds odd if we imagine a moral
relationship that is analogous to *actual* relationships such
as a particular friendship. Contractualists instead treat the moral
relationship as "a normative ideal, like a normative ideal of
friendship that specifies attitudes and expectations that we should
have regarding one another. ... morality requires that we hold
certain attitudes toward one another simply in virtue of the fact that
we stand in the relation of 'fellow rational
beings'." (Scanlon 2008, pp. 139-40) There are some
basic attitudes that we expect even from total strangers,and we are
entitled to blame them if their behaviour demonstrates a lack of those
attitudes.



Within contractualism, the idea of a universal moral relationship
unifies the impersonal judgement that someone has failed to act on
principles that no-one could reasonably reject with the personal
reactions that characterise blame. Suppose I witness your bag being
stolen. We both judge that you have been wronged. These judgements
rest on "the general claim that it is impermissible for one
person to relate to another in the way she has in the type of
situation we find ourselves in." (Kumar 2015, p. 260) But when
*you* blame the perpetrator, you do something much more
personal, by also raising "an objection to her attitudes toward
you in particular, and what they say about your relationship."
(Kumar 2015, p. 260)



Some betrayals are so severe that they bring a friendship to an end.
The relationship cannot survive. Similarly, moral retributivists argue
that some horrendous actions can sever the moral relationship itself,
casting the person out of the sphere of mutual recognition that
characterises morality. Contractualists disagree. "Even those
who have no regard for the justifiability of their actions toward
others retain their basic moral rights ... not to be hurt or
killed, to be helped when they are in dire need, and to have us honour
promises we have made to them." (Scanlon 2008, p. 142)
Instead,"blame ... involves a suspension ... of
one's readiness to enter into ... the range of interactions
with others that are morally important but not owed unconditionally to
everyone". (Scanlon 2008, pp. 142-3) For instance, I might
refuse to make agreements with an untrustworthy person, to enter into
other specific relations that involve trust and reliance, or to
voluntarily assist her pursuit of her projects even when I can do so
at little cost to myself.



Scanlon's contractualist account of blame sets aside issues of
freewill and determinism. Because blame is a reaction to the attitudes
a person actually has, it is not undermined by the discovery that he
"had no control over the factors that made him the kind of
person that he is." (Scanlon 2008, p. 178) Even if you cannot
help being callous, unreliable, and untrustworthy, I cannot be
expected to continue to treat you as if you had not revealed that, for
whatever reason, *that is the kind of person you are*.


## 5. The convergence argument



Before turning to problems for contractualism, we first address a
challenge to its distinctiveness. In *On What Matters*, Derek
Parfit argues that rule consequentialism, contractualism, and the best
interpretation of Kant's moral theory all coincide. The result
is a triple theory, according to which "an act is wrong just
when such acts are disallowed by some principle that is optimific,
uniquely universally willable, and not reasonably rejectable"
(Parfit 2011, volume 1, p. 413). As contractualism presents itself as
an alternative to both consequentialism and Kant, this would be a very
significant result.



The convergence argument explicitly deals, not with Scanlon's
own theory, but with "what I believe to be the best version of
Scanlonian contractualism" (Parfit 2011, volume 1, p. 412).
Parfit defends two key 'improvements', by rejecting two
restrictions that Scanlon places on the reasons that can be offered
for rejecting a moral principle, namely:


1. "Individualist Restriction: In rejecting some moral
principle, we must appeal to this principle's implications only
for ourselves and for other *single* people" (Parfit
2011, volume 2, p. 193). Or, in Scanlon's own words: "the
justifiability of a moral principle depends only on individuals'
reasons for objecting to that principle and alternatives to it"
(Scanlon 1999, p. 229).
2. "Impersonalist Restriction: In rejecting some moral
principle, we cannot appeal to claims about the impersonal goodness or
badness of outcomes" (Parfit 2011, volume 2, p. 214). Or, in
Scanlon's own words: "impersonal values are not themselves
grounds for reasonable rejection" (Scanlon 1999, p. 222).



In other words, the convergence argument replaces Scanlon's
original formulation of contractualism, where all reasons for
rejection must be the personal complaints of specific individuals,
with a more impersonal version.



In
 section 2,
 we noted a number of differences between Kantian and Scanlonian
contractualism. Despite these differences, Parfit argues that
Scanlonian contractualism coincides with the best interpretation of
Kant. In a cumulative argument spread over several chapters, Parfit
argues that the best interpretation of Kant's moral ideas yields
the following claim:



> 
> Kantian rule consequentialism: Everyone ought to follow the optimific
> principles, because these are the only principles that everyone could
> rationally will to be universal laws. (Parfit 2011, volume 1, p. 411)
> 



Even if we accept the convergence of Kant and rule consequentialism,
it still remains to be shown that these optimific and uniquely
universally willable principles are the only set of principles that
no-one could reasonably reject. The key step in this second prong of
the convergence argument is the claim that "when there is only
one relevant principle that everyone could rationally choose, no
one's objection to this principle could be as strong as the
strongest objection to every alternative" (Parfit 2011, volume
2, p. 245).



This key claim seems open to obvious counter-examples--cases
where contractualism seems to diverge from rule consequentialism. Most
striking are those cases where "we can either save one person
from some great burden, or give much smaller benefits to many other
people, who are all much better-off" (Parfit 2011, volume 2, p.
246). 



Proponents of the convergence argument must somehow explain away these
apparent counter-examples. Following Parfit, they will first will
divide such cases into two classes. In some cases, the optimific rule
consequentialist principles instruct us to favour the individual.
Consider Scanlon's own example where we must choose between
electrifying an innocent person and disrupting millions of
people's enjoyment of a televised sporting event (Scanlon 1998,
p. 235). Here, many rule consequentialists will argue that the
optimific rules do instruct us to save the innocent person. If so, the
convergence between rule consequentialism and contractualism is
straightforward. In its contest with rule consequentialism,
contractualism cannot draw its intuitive appeal from such cases.



We must turn, then, to those cases where the optimific rule
consequentialist principles do instruct us to provide the smaller
benefits to many others. Here, the convergence argument must deny that
the solitary individual can reasonably reject the optimific
principles. This is where Parfit's 'improvements' on
contractualism are vital to the convergence argument. As originally
formulated, contractualism departs from utilitarianism by allowing the
individual to reject the optimific principles whenever they place a
greater burden *on her* than her favoured principle places on
any other single individual. Proponents of the convergence argument
will favour instead a more impersonal formulation. While the
individual's own complaint is left undiminished, other people
can now reject her principle on *impersonal*
grounds--precisely because it fails to maximise everyone's
well-being. Faced with these impersonal reasons, the single individual
cannot reasonably reject the optimific principles.



Despite its provocative claims, the convergence argument is, in one
respect, quite modest. It does not set out to prove that rule
consequentialism, Kantian ethics and contractualism necessarily
coincide. Rather, the conclusion is merely that plausible versions of
the three theories do not *necessarily* conflict. For this
modest purpose, it would be sufficient to construct one plausible
version of contractualism on which the optimific principles cannot
reasonably be rejected.



There is a methodological issue here. In his presentation of the
convergence argument, Parfit tests competing versions of
contractualism against intuitions regarding specific idealised cases.
This is not a peculiarity of Parfit's own presentation. Without
intuitions of this kind, the convergence argument cannot get off the
ground. Proponents of individualist formulations of contractualism
might reply that, in some key cases, Parfit's intuitions are not
neutral benchmarks, but rather reflect the considered moral judgements
of a consequentialist mind. This leaves it open to Contractualists to
simply stick to their guns--and argue that their view is
distinctive at the normative level, as well as the meta-ethical
level.



Commenting on Parfit's earlier claim that the best
interpretation of Kant coincides with the best form of rule
consequentialism, Scanlon observes that "the degree to which
Parfit's conclusion should seem surprising depends to a certain
extent on how close the theories he is discussing are to
Kant's" (Scanlon 2011, p. 117). Similar remarks apply to
the convergence argument. The appeal of contractualism is that it
presents a genuine alternative to both consequentialism and Kantian
ethics. Those who are attracted to contractualism because, in certain
key cases, it coheres with distinctively non-utilitarian intuitions,
are likely to regard the impersonal contractualism deployed in the
convergence argument as an abandonment of the core commitments of
contractualism. The convergence argument would then be of limited
relevance. We return to these issues below, when we consider the
Individual and Impersonal Restrictions in more detail. (See sections
 8,
 9, and
 13.)



Parfit's convergence argument has not attracted as much
attention as other aspects of either his work or Scanlon's. (One
exception is Kumar 2011.) However, the general issue of the
relationship between contractualism and consequentialism is very
relevant to a number of objections to contractualism. It is always
worth arking whether contractualism can cope adequately with new
challenges (such as aggregation, substantive responsibility, risk, or
future people) without collapsing into rule consequentialism.


## 6. Is contractualism circular or redundant?



The remainder of this entry examines problem cases for contractualism.
The first two concern the logical structure of
contractualism--asking whether its account of wrongness is either
circular or incomplete. The next four are puzzle cases where the most
obvious interpretation of contractualism seems to yield implausible
results. The last two are groups who should be included in the scope
of morality, but who seem to be left out by contractualism: animals
and future people.



As we saw in section 3.2, contractualism allows for the reasonable
rejection of principles on grounds other than their direct impact on
the individual's well-being. However, this appeal to reasons
beyond well-being brings out a common objection to
contractualism--that the whole apparatus of reasonable rejection
is redundant. The objection is as follows. Contractualism says
*x* is wrong if and only if *x* is forbidden by
principles no-one can reasonably reject. Anyone can reasonably reject
a principle on the grounds that it permits actions that are wrong. So
a principle that no-one can reasonably reject is a principle that
permits no actions that are wrong. If we don't already know
which actions are wrong, then we cannot use the contractualist
apparatus. But if we do already know which actions are wrong, then we
don't need to use it.



There is a related objection using 'unfair' instead of
'wrong'. Suppose, following our previous discussion in
 section 3,
 we agree that contractualism allows 'because it treats me
unfairly' to count as a reason for rejecting a principle. We
then face the challenge that our judgments of unfairness are doing all
the real moral work, as contractualism now says that a principle is
wrong if and only if it treats someone unfairly.



To respond to this objection, contractualists must explain why
'*x* is wrong' and '*x* is
unfair' are not the sort of claims that can feature as a reason
for rejecting a principle. They must also demonstrate that admitting
reasons not based directly on well-being does not commit us to
admitting '*x* is wrong' and '*x* is
unfair'.



The Contractualist answer appeals to the conceptual link between
wrongness and justification. Whether an act is wrong depends, not only
on its direct impact on individuals, but also on whether a principle
permitting it can be justified to all concerned. 'Because it is
wrong' is not the kind of reason that can be fed into the
contractualist apparatus, since it is not something that happens to
individuals. Instead, wrongness is something that is constructed out
of individuals' reasons using that very apparatus. The same goes
for 'because it is unfair'. In the example of the racist
principle introduced in section 3.2, I reject the principle, not
because it treats me unfairly overall, but because it illicitly places
weight on an inappropriate moral distinction. My *complaint*
concerns how a principle treats *me*. To know whether an action
is wrong, we must compare different people's complaints, which
we do by comparing one principle's treatment of me with the way
alternative principles treat others.


## 7. Is contractualism too tidy? (The pluralist challenge)



An advantage of contractualism is that it can capture the wide range
of considerations that are relevant to moral deliberation. All the
considerations that provide individuals with reasonable grounds for
objecting to a proposed principle are relevant. As we saw in section
3.2, these considerations include more than the direct (and even the
indirect) impact of a proposed principle on individual well-being.
This plurality of considerations is nevertheless *unified* by a
single normative domain or subject matter: unjustifiability.



Some opponents of contractualism will object that contractualism is
not pluralist enough. They will object to the unified account of
wrongness. Is it plausible that all the considerations relevant to
what we owe to each other are unified by their relevance to whether
the principle permitting the conduct could be reasonably rejected? In
our moral deliberation about right and wrong actions, are all moral
considerations only relevant in virtue of how they affect whether or
not a principle licensing the proposed action is justifiable?



Take for example, the claim that it is wrong to inflict gratuitous
suffering on persons, and sentient beings in general. Imagine someone
torturing someone else. A utilitarian will object that, in our grasp
of the wrongness of the action, the most salient fact is that the
behaviour would inflict gratuitous suffering. This is much more
salient than the fact that the person could reasonably reject a
principle permitting such conduct. The utilitarian concludes that
morality is fundamentally about the avoidance of suffering. A
*pluralist* will conclude instead that morality is irreducibly
plural--some moral reasons are grounded on justifiability, but
others are grounded directly on suffering or pleasure.



The contractualist replies that what is most morally relevant in the
case of torture is that suffering is brought about *through the
agency of another*--not just that suffering occurs. This is
why being tortured is morally much worse than suffering similar
injuries through a lightning strike--the former is an affront to
my human dignity in a way that the latter is not. If we agree that
this is the really significant fact, then the advantage now lies with
the contractualist, whose moral theory explicitly gives a central
place to the notion of agency. (As ever, the dialectic can continue,
as utilitarians can reply that torture is morally worse than a
lightning strike because it involves a gross failure of benevolence).
For a foundational consequentialist account of morality (such as
utilitarianism), the wrongness of the action is based solely and
directly on the suffering it would cause. Against such an account, the
contractualist argues that the moral importance of promoting
well-being is always mediated via its effect on the justifiability of
the relevant principle: if an action fails to show sufficient concern
for someone's well-being then that person has strong grounds for
objecting to the principle.



It is, furthermore, important to recall that contractualism deals in
'could reasonably reject' not in 'does
reject'. Contractualism does not say that gratuitously causing
suffering is not wrong *until* someone objects to it, or that
gratuitously causing suffering would not be wrong at all *if*
no-one happened to object to it. There is nothing accidental about the
fact that a particular act of gratuitously causing suffering is wrong.
Rather, gratuitously causing suffering is always intrinsically
wrong--because it is (always and everywhere) the kind of thing
that provides grounds for reasonable rejection.



Contractualism and consequentialism thus gloss what is objectionable
about the same conduct in different ways. Instead of a decisive
intuition that counts against contractualism, we have a case of
distinctive intuitions, where different theorists, beginning from
different intuitive starting points, end up with different theoretical
priorities.



## 8. Can contractualism really avoid aggregation?


 We saw earlier that, unlike utilitarianism, contractualism rejects
aggregation. However, there are some cases where
contractualism's aversion to aggregation seems to lead to
undesirable results. (For a variety of contractualist responses to
aggregation, see Reibetanz 1998, Norcross 2002, Kumar 2011, Fried
2012a. See also sections 9 and 12, as contractualists and their
opponents often discuss aggregation alongside either demandingness or
risk.)



Consider the following situation, drawn from a
famous article by John Taurek (Taurek 1977).



> 
> 
> *The Rocks*. Six innocent swimmers have become trapped on two
> rocks by the incoming tide. Five of the swimmers are on one rock,
> while the last swimmer is on the second rock. Each swimmer will drown
> unless they are rescued. You are the sole life-guard on duty. You have
> time to get to one rock in your patrol-boat and save everyone on it.
> Because of the distance between the rocks, and the speed of the tide,
> you cannot get to both rocks in time. What should you do?
> 
> 
> 



Suppose you decide to save the lone swimmer on the second rock.
Intuitively, this seems wrong. Surely you should have saved five
people instead of one. The challenge for contractualism is to explain
why what you did is wrong. Utilitarians have a straightforward answer,
based on aggregation. You should save the five people instead of the
one simply because five deaths is a worse result than one death. This
case is tricky for contractualism because it rejects aggregation. The
five people will *each* want to reject the principle that
allows you to save the one, by appealing to the fact that such a
principle leaves them to die. But the lone person on the second rock
will want to reject any principle that allows you to save the five.
And the reason for objecting to the principle is exactly the same in
each case--this principle leaves *that person* to die. The
five people cannot appeal to the fact that there are more of
them--because this is not an individual reason. (Suppose you are
one of the five. The fact that four other people will die is not
something you can object to, as it is not something that happens to
you.) It therefore looks as if we have reached a stalemate--and
perhaps the best solution (the principle that no-one can reasonably
reject) is to toss a coin. That way, each of the six people gets a
fifty-fifty chance of survival. No-one can reasonably reject
*this* principle on the grounds that it *only* gives
them a fifty-fifty chance of survival, because any alternative gives
someone even less chance. Tossing a coin is the only principle that
guarantees everyone *at least* a fifty-fifty chance. So it is
the only principle that no-one can reasonably reject.



One contractualist response is to bite the bullet, and accept that
coin tossing is the right answer. Many contractualists, however, wish
to capture the intuition that you ought to save the five. Recall that
an agent's reason for rejecting a principle can be based, not on
its effect on her well-being, but on what that principle says about
her or how it treats her. Imagine one of the five swimmers on the
first rock arguing as follows: "Coin tossing is clearly the
right principle if there is one person on each rock, as it balances
their competing reasons. If you apply the same principle when there
are five on this rock, you are saying it makes no difference that
there are five rather than one. So you are acting exactly as if I
wasn't here, facing this life and death situation. A principle
that allows you--in effect--to ignore my plight in this way
doesn't show respect for me. If there were one person on each
rock, their claims to be rescued would cancel out. So we then look to
see whether there are other people on either rock. There are several
such people, and I am one of them. My claim to be rescued remains
un-trumped. So you should rescue the five." (For a critique of
this argument, see Otsuka 2001.)



A further difficult kind of case for contractualism is where the
burdens that different persons stand to suffer are unequal--and
so cannot balance each other and cancel each other out--but are
still very severe in each case. The following example is suggested by
Derek Parfit's discussion of contractualism and aggregation
(Parfit 2003). Consider a choice between two scenarios. In the first,
one person suffers agony for a hundred years; while in the second a
million people suffer agony for a hundred years minus a day. An
additional day of agony is a considerable burden. Therefore if we
consider the situation from the perspective of the single individuals
involved, it would seem that the first person's complaint
('I will suffer for a hundred years') outweighs the
complaint of any other single individual ('I will suffer for a
hundred years minus a day'). However, a utilitarian would argue
that, in this case, the second scenario is worse.



A utilitarian might conclude that, while this ideal of choosing a
scenario that is acceptable to each person from his or her personal
point of view is extremely appealing, it is not always attainable. In
particular, this ideal is not practical when we cannot avoid placing a
severe burden on at least one person. Contractualism focuses each
person's mind on the burdens imposed on himself or herself, and
on other individuals--and invites us to withdraw our burdens if
we see other individuals suffering much more under a competing
principle. However, in our present example, each of the individuals in
the second scenario would find the situation unacceptable from their
personal point of view, simply because of the magnitude of the
suffering it involves. It is not plausible that they would withdraw
their complaint because the person in the first scenario stands to
suffer a slightly greater burden. It can be argued that in such cases
we should give intrinsic moral weight to the number of persons who
suffer a severe burden and so minimise the number of persons for whom
the situation is unacceptable.



The contractualist has several possible replies. They could simply
deny the utilitarian's intuition. Perhaps it is wrong to impose
a greater burden on a single person, even to save many others from a
slightly worse burden. Contractualists who want to capture the
utilitarian's intuition might argue that, just as complaints are
not always tied to well-being, the strength of an individual's
complaint need not be proportional to the loss of well-being. Perhaps
a principle that allows me to suffer for a century minus a day is just
as objectionable to me as one that allows me to suffer for a century.
Once the complaints are on a par, we can then appeal to our earlier
tie-breaking method, and conclude that it is wrong to favour the one
over the many. (A utilitarian will reply that in any context a day of
agony is an enormous moral burden--it is no less bad if the
person has already suffered for almost a century--so that the
complaint of the individual in the first scenario has to be seen as
significantly greater than that of any individual in the second
scenario.)



In chapter 21 of *On What Matters*, Parfit presents further
arguments that can be deployed against the individualist
restriction--which limits the grounds for rejecting a principle
to its implications for *single* people. First, Parfit presents
a series of cases where, he argues, "any contractualism that
incorporates the individualist restriction must conflict with all
plausible views about the distribution of benefits and burdens"
(Parfit 2011, volume 2, p. 198). One representative case is the
following (Parfit 2011, volume 2, pp. 199-200):



> 
> *Case Six*: The only possible alternatives are these:
>   
> 
> 
> 
> |  |  |  |
> | --- | --- | --- |
> |  | Blue will live to the age
> of: | Each of some number of
> other people will live to: |
> | We do nothing | 30 | 30 |
> | We do *A* | 70 | 30 |
> | We do *B* | 35 | 35 |
> 
> 
> 



Following Parfit, utilitarians will object that, if we endorse the
individualist restriction, then "we ought to give Blue her 40
more years of life rather than giving 5 more years to Blue and to as
many as a *million* of these other people. ... this is
clearly false" (Parfit 2011, volume 2, p. 200).



Second, Parfit offers a new argument that, when the individualist
restriction does enable the contractualist to reach the right
conclusions, it cannot do so for the right reasons. Consider the
following case (Parfit 2011, volume 2, p. 196):



> 
> *Case Three*: The only possible alternatives are these:
>   
> 
> 
> 
> |  |  |
> | --- | --- |
> |  | Future days of pain |
> |  | for Blue: | for each of some number of
> other people: |
> | We do nothing | 100 | 10 |
> | We treat Blue | 0 | 10 |
> | We treat the others | 100 | 0 |
> 
> 
> 



Here, the utilitarian says that, if the number of other people exceeds
ten, then we should treat the others, as this maximises total
well-being. Parfit argues that "most of us would reject this
utilitarian claim, believing instead that we ought to save Blue from
her great ordeal. We might even believe that we ought to save Blue
from her 100 days of pain rather than saving *any* number of
such other people from their much smaller burden of 10 days of
pain" (Parfit 2011, volume 2, pp. 196-7).



The individualist restriction enables contractualism to diverge from
utilitarianism in this case. Because the other people's reasons
cannot be aggregated, they cannot ever outweigh Blue's reason.
But opponents of the individualist restriction will object that this
is a coincidence. The real reason we should treat Blue is not because
Blue's burden would otherwise be greater, but because Blue would
otherwise be so much worse-off. For instance, suppose instead that, if
we do nothing, everyone (Blue included) will suffer 100 days of pain
[This is Parfit's *Case Four*]. We must now choose
between relieving Blue of *all* of her 100 days, or relieving
everyone (Blue included) of 10 of their 100 days of pain. Those who
favour a more impersonal formulation of contractualism will object
that the individualist restriction must instruct us to do the former.
"And [this conclusion] is clearly false" (Parfit 2011,
volume 2, p. 202).



In Cases Four and Six, opponents of the individualist restriction will
argue that we can only get the right result by allowing the other
people to pool their individual complaints--otherwise, they
cannot hope to overrule Blue. Those who find this intuition compelling
may conclude that contractualists must drop the individualist
restriction, and instead accommodate Case Three by saying that
"people have stronger moral claims, and stronger grounds to
reject some principle, the worse off these people are" (Parfit
2011, volume 2, p. 202). Other contractualists may be prepared to bite
the bullet here, or to seek alternative ways to accommodate these
intuitions, on the grounds that the individualist restriction is an
essential feature of contractualism, without which contractualism
cannot hope to escape the extreme and alienating demands of
utilitarianism--the topic of the next section.


## 9. What does contractualism demand?



Impartial theories are often accused of being unreasonably demanding.
For instance, consider the fact that there are very many very needy
people in the world. A variety of aid agencies, which currently rely
on donations from private individuals, can alleviate these needs. No
doubt governments, multinationals, and others could do far more than
they do. But the question still remains: faced with such urgent needs,
at least some of which I could meet at comparatively little cost to
myself, how should I as an individual act?



Impartial moral theories often seem to give very demanding answers to
this question. This is easiest to see for utilitarianism.
Utilitarianism tells me to put my dollars wherever they will do the
most good. In the hands of a reputable aid agency, my dollar could
save a child from a crippling illness, and so I am obligated to donate
it to the aid agency. I should give my next dollar to an aid agency,
and I must keep donating till I reach the point where my own basic
needs, or my ability to keep earning dollars, are in jeopardy. Most of
my current activities will have to go. Nor will my sacrifice be only
financial. According to utilitarianism, I should also spend my time
where it will do most good. I should devote all my energies to aid
work, as well as all my money.



Perhaps we would admire someone who behaved in this way. But is it
plausible to claim that those of us who do not are guilty of
wrongdoing; or that we have a moral obligation to devote all our
resources to charity? Such conclusions strike many people as absurd.
This leads to the common objection that utilitarianism is unreasonably
demanding, as it leaves the agent too little room (time, resources,
energy) for her own projects or interests.



This is a serious objection to utilitarianism. If contractualism can
avoid a similar fate, then this will be a significant advantage. But
is contractualism less demanding than utilitarianism? It certainly
seems possible that contractualism will generate very demanding
principles, as it seems reasonable for those who are starving to
reject any principle permitting me to retain inessential resources
rather than meeting their most basic needs. I would then be doing
something wrong unless I do all that I can to save other
people's lives--at least until I reach the level below
which I would be giving up necessary components of my own
well-being.



A similar problem for contractualism is presented by Thomas Nagel, who
argues that, in the present state of the world, it may be impossible
to construct *any* set of principles which no-one can
reasonably reject. Any possible principle of aid will either make
unreasonable demands on the affluent (from their point of view), or
pay inadequate attention to the basic needs of the destitute (from
their point of view). If the notion of reasonable rejection is at
least partly determined by the agent's own perspective, then any
principle will be reasonably rejected by someone. (Nagel 1991 and
1999).



Contractualists might reply that principles of aid presuppose some
background set of entitlements, guaranteeing me the free use of my own
resources. This raises two problems. The first is that, from the fact
that I own something, it does not follow that I do not have an
obligation to give it away. The most that might follow is that others
may not force me to do so. The second problem is that, if our overall
theory is Contractualist, then the property rights themselves must be
given a Contractualist justification. We need a system of property
rights no-one can reasonably reject. Any system where property rights
are very unequally distributed will be rejected by those who miss
out.



How might contractualism reply to this demandingness objection? Like
any impartial moral theory, contractualism can bite the bullet, and
argue that morality is very demanding. The contractualist apparatus
explains *why* morality is demanding--if we seek to act in
a way that we could justify to others, then we must adopt principles
that no-one can reasonably reject. Given the state of the world, these
principles will seem very demanding to those who are
affluent--but the alternative would be principles that place an
even greater burden on those who are worst-off.



For instance, Scanlon himself reaches the following principle through
contractualist reasoning:




The Rescue Principle:
If we can prevent something very bad from happening to someone by
making a slight or even moderate sacrifice, it would be wrong not to
do so (Scanlon 1998, p. 224).


This principle could make very significant demands, especially if we
were continually facing situations where a slight sacrifice would save
someone's life. If my sacrifice is much less than the very bad
thing I prevent, it is hard to see how I can reasonably reject this
principle.



More controversially, one of us has argued previously that analogous
reasoning leads to an even more demanding principle.



The Stringent Principle:
If we can prevent something very bad from happening to someone by
making a great sacrifice (e.g., giving most of our income to aid
agencies and spending a lot of our spare time on campaigning and
fund-raising), it would be wrong not to do so (Ashford 2003, p.
287).


If the 'great sacrifice' is nevertheless significantly
less bad than the 'very bad thing' that might happen, it
is hard to see how I can reasonably reject this principle. If the
'very bad thing' is an agonising death, this principle can
be very demanding indeed.



It may be argued that even if this stringent principle follows from
contractualism, that is not a problem for the theory. Perhaps, in the
current state of the world, we should expect any moral theory grounded
on each person's equal moral status to be extremely demanding,
given the drastic and irrevocable impact on those in need if they are
not helped, and the fact that there are constantly so many in this
position (Ashford 2003, p. 292-2).



However, many moral philosophers--contractualists
included--seek a more moderate moral theory. If contractualism is
to avoid being extremely demanding, the challenge is to stop short of
the stringent principle. We need to find a principle that allows me to
choose my own lesser good over a (significantly) greater good for
someone else--and then to show that this principle cannot be
reasonably rejected. For instance, suppose I spend my spare evening
(and spare income) going to the movies rather than donating the time
and money to a charity which could thus have saved someone's
life. We need an explanation of why those who die as a result cannot
reasonably reject the principle that permits this behaviour.



The most promising answer lies, once again, in the possibility that my
grounds for rejecting a principle are not necessarily confined to its
direct impact on my well-being. I might reject a principle requiring
me to devote all my time and energy to charity, not simply because of
the burdens it imposes on me but because, in leaving me no room for my
own personal projects, it fails to respect me as a person. (The
destitute person will reply that a principle allowing me to leave her
to starve fails to respect her as a person. The challenge for the
contractualist is to distinguish these two complaints. For one
attempt, see Kumar 2000.)



Responding to Parfit's presentation of the convergence argument,
and his critique of the individualist and impersonal restrictions,
Scanlon notes that, because it rejects those restrictions, any
impersonal reformulation of contractualism is much more demanding than
the original formulation of contractualism (Scanlon 2011). This charge
has a particular dialectical significance, as rule consequentialists
often present their theory as a more moderate alternative to the
extreme demands of act consequentialism. If it retains those
restrictions, contractualism will always be less demanding than these
alternative theories--even if its demands are greater than
commonsense morality might normally expect.


## 10. The contractualist account of substantive responsibility



Questions of substantive responsibility arise when we must decide who
will bear what burdens. "To hold a person who has ended up
burdened to be substantively responsible for that burden is to hold it
to be hers to bear, ceteris paribus. No one owes it to her to share or
alleviate it." (Kumar 2015, p. 252) Kumar explains the
contractualist account of substantive responsibility as follows.
"A person who ends up burdened is substantively responsible for
it if no one owed it to her to do more to enable her to avert it. To
hold her not to be wronged in ending up burdened just is to hold her
to be substantively responsible for it. The reasons that are relevant
to the justification of why she is not wronged are those that
establish that she has good reason to want what happens to her in that
type of situation to depend on how she responds to alternatives, and
that enough was done to secure that dependence." (Kumar 2015, p.
253)



Contractualism claims to offer an intuitive account of when agents can
reasonably be expected to bear burdens. Critics argue that this
promise is illusory and that contractualism fails to respect our
intuitive judgements of substantive responsibility. (Williams 2006,
Voorhoeve 2008.)



Discussion often focuses on the following example:



*Hazardous Waste*: A city's officials need to remove and
dispose of hazardous waste found near a residential area. This removal
will release some hazardous chemicals, but it is much less dangerous
than leaving the waste where it is. Even if the officials take all
reasonable precautions, some hazardous material will be released
- enough to cause lung damage to anyone directly exposed but not
enough to pose a serious threat to anyone who stays indoors and away
from the excavation site. (Scanlon 1998, p. 257; Kumar 2015, p.
264)



Intuitively, so long as they warn people to stay indoors while the
waste is being removed, the city officials can legitimately remove the
hazardous waste. This does expose some people to a risk of serious
harm. But all available alternatives are worse: the waste cannot be
left where it is, and evacuating the city is not feasible. A principle
permitting officials to expose some people to a risk of harm in order
to protect public health is one that no one can reasonably reject.



Suppose the officials have done enough to reduce the risk. Leaflets
have been delivered to all households, announcements made on radio,
television, and social media, advertisements placed in newspapers,
barriers erected around the excavation site, warnings posted at all
entrances, and so on. But now consider one citizen of the city (call
her Curious), who is counter-suggestible. Warnings and barriers merely
serve to pique her curiosity. Curious had no prior interest in
hazardous waste. But she now develops a desire to see what all the
fuss is about. Ignoring the warnings, Curious climbs over the barriers
and exposes herself to a dangerous dose of hazardous chemicals.



Curious's burden results, in a fairly predictable way, from her
own reckless choice. Intuitively, this renders her substantively
responsible for that burden. Curious cannot hold others responsible
for her burden. For instance, she cannot sue the city (or its
officials) to cover her medical costs. One natural explanation for
this intuition is the *Forfeiture View*: by disregarding
warnings, Curious has forfeited her right to expect others either to
avoid exposing her to harm or to alleviate her burden if she is
harmed.



Scanlon rejects the Forfeiture View in favour of a *Value of
Choice* account, which emphasises: "the reasons that
individuals have to want what happens to them, and their obligations
to others and others' obligations to them, to depend on how they
respond." (Scanlon 2015, p. 106) On this view, it is the
*availability* of choice that matters, not whether the agent
has made any *actual* choice. If I am told that I must collect
my theatre tickets by a certain time and I then absentmindedly fail to
collect them in time, then I am responsible for the fact that I miss
the performance. What matters is that I had the opportunity to avoid
this situation, even though I made no conscious decision. (Scanlon
2015, p. 108)



Contractualist principles must be justified to each person. This
justification must cite some reason why a given principle makes sense
to that person. In the Hazardous Waste case, contractualists argue
that each person has reason to value living in a society where her
fate depends (in part) on her own choices, even if the result is that
she sometimes finds herself responsible for burdens that she could
have avoided and has not conscious chosen.



Critics argue that contractualists who cite the Value of Choice cannot
justify intuitive principles in the Hazardous Waste case. The
opportunity to choose is *not* valuable for Curious. On the
contrary, that opportunity clearly makes her worse-off! Consider the
following variant of the original case.



*Cautionary vs Covert*: Officials have two options for dealing
with hazardous waste. Under a *Cautionary Policy*, officials
issue public warnings, erect barriers, and so on. Under a *Covert
Policy*, officials remove the waste in secret, depriving the
public of any knowledge of the risk. Suppose officials know that,
while the Cautionary Policy will result in a larger number of lung
damage cases, every afflicted person will be someone who heard the
warnings and failed to heed them. By contrast, while the Covert Policy
will result in a smaller number of lung damage cases, none of
*those* people will have had any opportunity to avoid harm.
Which policy should the officials choose? (Williams 2006, p. 253;
Kumar 2015, p. 269)



Intuitively, the officials should choose the Cautionary Policy instead
of the Covert one, even though more people will suffer harm. Critics
object that contractualists using the Value of Choice cannot capture
this result. (Williams 2006). Consider Curious. The Covert Policy
offers her greater protection from harm than the Cautionary Policy,
because her chance of suffering harm is higher under the latter than
under the former. And because she is impetuously curious, warnings and
other information have negative value for Curious. The opportunity to
choose only makes her worse-off. Therefore, Curious can reasonably
reject the Cautionary Policy.



Contractualists agree that the Cautionary Policy is "the only
morally defensible choice" (Kumar 2015, p. 269). However, they
argue that contractualism can deliver this result, for two reasons.
First, even if the covert policy is *instrumentally* superior,
all moral agents have strong *symbolic* reasons for "not
wanting it to be permissible for public officials to hide important
information because they decide that members of the public are not
competent to assess it and respond appropriately" (Kumar 2015,
p. 270). Covert paternalism clearly fails to treat people as
responsible adults, and therefore everyone has reason to reject it.
Second, Contractualists will appeal to the need to evaluate principles
against generic standpoints, rather than against the eccentric
preferences of particular individuals."Our assessment cannot be
based on the particular aims, preferences, and other characteristics
of specific individuals. We must rely instead on commonly available
information about what people have reason to want ... about
generic reasons." (Scanlon 1998, p. 203) What matters is not
what *Curious* wants, but what a *representative person*
in her situation would have reason to want. And people in general have
reason to want control over their exposure to risk. Generic reasons
also play a key role in contractualist accounts of risk (section 11)
and our obligations to future people (section 13).


## 11. How does contractualism deal with risk?



Moral philosophers often discuss artificial examples involving
certainty. In particular, discussion of the ethics of harm focuses on
cases where each action will definitely harm some particular person.
But real-life ethics invariably involves widespread uncertainty. Most
actual "harmful" activities are socially productive ones
that impose some risk of harm on others. (Fried 2012a, 2012b) Can
Contractualists provide a plausible and distinctive account of when
and why such activities are permitted? (For more detailed discussion
of a variety of Contractualist accounts of risk, see Frick 2015, Fried
2012a, Horton 2017, Kumar 2015.)



We begin with a simple example:



*Driving*: Bob lives in a large city in the developed world.
His daily life is greatly enhanced by the fact that he and others are
able to drive cars. Bob drives to work, drives out of town for the
weekend, drives to the local shopping mall, enjoys goods and services
that are only available because others can drive, and so on. One
morning, while walking his dog along the street, Bob is killed in a
traffic accident. The driver was not at fault - she was not
speeding or drunk or otherwise irresponsible. Bob is just unlucky. In
a large city where millions of people drive every day, faultless fatal
accidents like this are bound to happen from time to time.



Over the course of his life, Bob received many benefits from his and
others' driving. But suppose these are outweighed by the cost of
his untimely death. As things turned out, Bob would have been
better-off if driving had not been permitted. This seems to give Bob a
reason to reject any principle that permits driving. And this reason
seems to outweigh other people's reasons to want driving to be
permitted. (After all, any inconvenience they suffered would not be as
bad as an early death.) It therefore seems that contractualism cannot
permit driving. Indeed, contractualism must prohibit *all*
socially useful activities that carry *any* risk of harm
- on the grounds that, in a large population, over the course of
a lifetime, any such activity is virtually certain to lead to at least
one death.



Utilitarians have an easy solution. Driving should be permitted if it
maximises expected aggregate welfare. A small risk of death is
outweighed by a large number of individual benefits. If Contractualism
cannot permit any risky activities, then this places it at a distinct
disadvantage against utilitarianism.



One simple solution is to restrict the scope of contractualism. If
contractualism deals only with cases where harm is certain, then it
need not address risk at all. We could then combine a contractualist
account of certain harm with a utilitarian account of risks of harm.
Unfortunately, this solution has a high cost. Given the ubiquity of
risk, and the comparative rarity of cases of certain harm, this
pluralist option effectively sidelines contractualism.



A second simple solution is to bite the bullet, and insist that risky
social activities are never permitted. Few contractualists embrace
this extreme revisionism. And it too threatens irrelevance. People
will never abandon risk altogether, and we naturally turn to ethical
theory to guide us through our risky activities. If contractualism is
silent in this crucial area, then it loses any claim to be of
practical relevance.



The challenge for contractualism is to steer a middle-way between
banning risk altogether and collapsing into utilitarianism.



One central question is whether our contractualist evaluation of risk
should be ex post or ex ante. Contractualism tells us to justify our
moral principles to each person. A principle permitting driving must
be justified to Bob. But when do we imagine this justification
occurring? Suppose we were to offer Bob a choice between two
principles: one permits driving and the other forbids it. When does
Bob make this choice? Does he choose in advance - perhaps before
he moves to the city or before his life begins? Or does he choose in
retrospect - after he knows how his life has actually gone?



In cases involving risk and uncertainty, these two temporal
perspectives represent very different epistemological standpoints. Ex
ante, Bob knows that living in a city where driving is permitted
exposes him to a very small risk of death in a car accident where no
one is at fault. Ex post, Bob knows that living in a city where
driving is permitted has in fact resulted in *his* death.



Some forms of contractualism explicitly favour ex ante rather than ex
post evaluation. Rawls, for instance, asks his parties to choose
principles to govern their society on the basis of general knowledge
about how their lives might go, rather than particular information
about their specific circumstances. Scanlonian contractualism, by
contrast, usually requires justification to actual people who are
aware of their own situation. In his 1998 book, Scanlon explicitly
favours ex post justification. However, most contractualists
(including Scanlon himself) now favour either ex ante contractualism
or some hybrid view combining both ex ante and ex post evaluations.
(Scanlon 2013, Kumar 2015, Frick 2015.)



In our original Driving case, ex ante justification seems to delivers
the intuitively correct result. When he views the prospects in
advance, Bob may well conclude that the very small risk of death is
outweighed - from his own perspective - by the large
number of benefits he is almost certain to enjoy. If the imbalance is
sufficiently great, we might conclude that it would not be reasonable
for Bob to reject a principle that permits driving. (Some extremely
risk-averse individuals will perhaps still object to driving, but
contractualists can reply that this rejection is not reasonable.)



Unfortunately, there are two problems with this contractualist
response. First, if all citizens face the same pattern of risks and
benefits, then this ex ante justification threatens to collapse into
utilitarianism in practice. Contractualism thus risks losing its
distinctiveness. Second, if citizens face different risk profiles,
then even ex ante contractualism may still find itself unable to
justify any risky behaviour. Consider a new example:



*Flying*: Commercial air travel brings many benefits to many
people. However, it also brings small risks of death. Some of this
risk falls on people who benefit from air travel - notably
passengers. But some people exposed to the same risks enjoy no
benefits. Jeb is an Amish farmer who completely eschews all the
'benefits' of modern life. Jeb lives under the flightpath
of air traffic between two major cities. (Jeb was not consulted about
this flightpath.) One day, debris from a passing airplane falls on Jeb
and kills him. (This example is adapted from Kumar 2015, which draws
on Ashford 2003.)



Jeb obviously has a strong ex post complaint against any principle
permitting flying. But he also has an ex ante complaint. Even before
he knows that he will be killed by falling debris, Jeb expects no
benefit whatsoever from flying. (Indeed, he does not regard flying as
truly beneficial to anyone!) Jeb will want to reject in advance any
principle that imposes on him a risk of death without any compensating
benefits. From a contractualist perspective, this rejection seems
reasonable.



The two challenges for ex ante contractualists are (a) to offer a
principled justification for rejecting Jeb's complaint; and (b)
to ensure that that justification does not collapse into
utilitarianism. One possibility is to argue that, like Curious, Jeb is
too eccentric for contractualist purposes. We should be asking what
people in general have reason to reject, rather than examining the
strange predilections of singular individuals. However, unlike
Curious's counter-suggestible risk-seeking, Jeb's
rejection of modern life is considered and (prima facie) reasonable.
If contractualism rejects Jeb's considered worldview as
"unreasonable", then he might object that contractualism
thereby fails to treat him with the respect due to a rational
agent.



A better alternative for the contractualist is to focus on broader
principles that apply to all risky activities, rather than artificial
principles relating only to flying. Jeb gains no benefit from air
travel. But he, along with everyone else, does benefit from living in
a society where everyone is free to pursue their own goals according
to their own values. Jeb thus has reason to reject any principle that
prevents people in general from pursuing reasonable lifestyle options,
even if some of those options impose small risks of death on
others.



Another problem for ex ante contractualism is that, in some other
possible cases, it is ex post evaluation that seems most appropriate.
Contrast two scenarios introduced by Frances Kamm (Kamm 2007, p. 273;
Fried 2012a, p. 47):



*Ambulance I*: Should our city authorize its ambulances to
speed on the way to the hospital whenever it is the case that doing so
will save five sick passengers for every one pedestrian who is killed
as a result of the speeding?



*Ambulance II*: Should our city also prohibit its ambulance
drivers from braking to save an identifiable pedestrian's life
whenever it is the case that the time lost by braking will cause the
five passengers inside the ambulance to die?



Many people judge that the first policy is permissible while the
second is not. (Kamm 2007, Lenman 2008) This leads some
contractualists to favour hybrid view that combine ex post and ex ante
evaluation. (e.g., Lenman 2008) It is one thing to ask everyone to
agree in advance to a policy that will predictably result in the
deaths of some pedestrians, but another thing altogether to ask
*this particular pedestrian* to lay down her life for the
greater good!



Unfortunately, critics of contractualism allege that hybrid views
produce implausible results of their own in cases where the parties
have asymmetric information about their fate. (Fried 2012a, pp.
53-54) Consider a final case introduced by Sophia Reibetanz
(Reibetanz 1998):



*Unexploded Mines*: One hundred workers are working in a field
known to contain an unexploded mine. Another person, Z, is the only
one who could disarm the mine. If Z disarms the mine, then Z is
certain to get pneumonia. If Z doesn't disarm the mine, then it
is certain that 1 of the 100 workers will be seriously injured. This
serious injury is ten times worse than suffering pneumonia.



Z faces a certainty of (minor) harm, while each worker faces a 1%
chance of (greater) harm. If Z is allowed to appeal to this
information asymmetry, then Z's complaint trumps the complaint
of any individual worker. Z can thus reasonably reject any principle
that requires Z to disarm the mine. But this seems counter-intuitive,
as the certain result is a much greater harm for someone else. The
challenge for hybrid contractualists is either to avoid this result or
to explain why it is justified. (Ostuka 2011, Reibetanz 1998. For an
argument that contractualism cannot solve this problem, see Fried
2012a, p. 54)


## 12. Can contractualism protect animals?



Social contract theories notoriously leave out non-human animals. If
all moral obligations are between parties to the social contract, then
we have no obligations regarding animals who cannot be parties to the
contract. So (for instance) torturing non-rational animals cannot be
wrong. By contrast, utilitarians have no difficulty explaining why it
is wrong to torture animals. This seems to place contractualism at a
comparative disadvantage. Can contractualism provide an adequate
account of our moral obligations to animals? Does it need to?



Scanlon offers two solutions. The first is to limit the scope of his
account. Contractualism is not an account of the whole of morality,
but only an account of the morality of what we owe to other persons.
This leaves open the possibility that our obligations to animals fall
outside this part of morality. Scanlon also explicitly puts aside any
moral obligations we might have in regard to the natural environment
(Scanlon 1998, p. 179). 



Scanlon also suggests a possible way that obligations to animals could
be accommodated within contractualism. This is via the notion of
trustees, to whom justifications of proposed principles can be
offered, on behalf of the animals they represent (Scanlon 1998, p.
183).



Utilitarians will object that this second solution provides too
indirect an account of what ultimately grounds our obligations to
animals. The fact that it is wrong to inflict unnecessary pain on
animals is not most plausibly explained via the notion of whether this
behaviour could be justified to a trustee of the animals. Rather, it
is wrong simply because of the suffering the animal feels. A
utilitarian will add that, once we realise that this is what is wrong
in the case of animal suffering, we should draw the same conclusion
about human suffering. It is their capacity for suffering rather than
their capacity for rational agency that plays the most salient role in
explaining the wrongness of torturing humans.



A contractualist can reply as follows. Contractualism captures the
central sense of wrongness, one that plays a role in how individuals
understand what they are accountable to one another for. The case of
animals shows that this is not the only notion of wrongness. But, once
we reflect on the differences between the two cases, we see why our
obligations to one another are so different from any obligations we
might have to animals--precisely because we cannot meaningfully
justify ourselves *to* them. Animals are not a special problem
for the contractualist, but rather an opportunity to explore what is
distinctive about the contractualist approach.


## 13. Can contractualism protect future people?



Another problem facing any social contract theory concerns our
obligations to future people. It is hard to see how we can have any
obligations to such people, as they cannot be parties to our contract.
This is principally because of the absence of any possibility of
mutually advantageous *interaction* between distant
generations. The quality of life of future generations depends to a
very large extent on the decisions of the present generation. By
contrast, our quality of life is not affected at all by their
decisions. We can do a great deal to (or for) posterity but posterity
cannot do anything to (or for) us. This power imbalance is often
characterised in terms of the absence of Hume's
"circumstances of justice". (The phrase is borrowed from
Rawls 1971, pp. 126-130.)



For contractarians, for whom morality *is* an agreement for
mutual advantage, it follows that we have no obligations to future
people with whom we cannot interact. A similar problem arises for
those like Rawls who seek to base the social contract on some
modification of self-interested behaviour--such as self-interest
behind the veil of ignorance.



Contractualism, by contrast, easily avoids this particular problem, as
it begins by assuming that moral agents are motivated by a desire to
justify themselves to others. There is no reason why those others must
be currently existing people. When deciding how to act, I can ask
myself whether future people who are affected by my actions might
reasonably reject a principle permitting those actions. For instance,
if I want to construct a power plant that will leak radiation in the
future, it makes perfect sense to ask whether those who will suffer as
a result might reasonably object to my behaviour. Because it works
with the possibility of reasonable rejection--rather than actual
bargaining--contractualism can accommodate obligations to future
people. This is a significant advantage over other social contract
theories.



However, there is a second problem regarding future people--one
that does seem to apply to contractualism. This problem owes its
prominence in recent philosophical debate to the work of Derek Parfit,
to whom we owe the following example (Parfit 1984, pp.
351-379):



> 
> *The Summer or Winter Child*. Mary is deciding when to have a
> child. She could have one in summer or in winter. Mary suffers from a
> rare condition which means that, if she has her child in winter, it
> will suffer serious ailments which will reduce the quality of its
> life. However, a child born in winter would still have a life worth
> living, and, if Mary decides to have a child in summer, then an
> altogether different child will be born. It is mildly inconvenient for
> Mary to have a child in summer. (Perhaps she doesn't fancy being
> heavily pregnant during hot weather.) Therefore, she opts for a winter
> birth.
> 



Mary's behaviour seems morally wrong. Utilitarians have a simple
account of why Mary's behaviour is wrong, as she brings about
less human happiness than she could have done. Yet it seems that
contractualism cannot capture this intuition. Consider a principle
permitting Mary's behaviour. If Mary's behaviour is wrong,
then this principle must be one that someone can reasonably reject.
But who? Not the Winter Child--because he would otherwise never
have existed at all. And not the Summer Child--because he
doesn't exist.



Perhaps the most promising contractualist defence lies, once again, in
the possibility that my grounds for rejecting a principle are not
necessarily confined to its direct impact on my well-being. We might
separate two moves the contractualist can make here. They might argue
(1) that the grounds for rejecting a principle need not be its impact
on my *well-being*; or (2) that it need not be its impact on
*my* well-being. Intuitively, what is objectionable about
Mary's behaviour is not anything to do with well-being, or with
the identity of future individuals. What is wrong is rather that Mary
fails to show adequate respect for 'her future
child'--whoever that child may turn out to be. Even though
there is no particular individual who can be said to have been harmed,
there is still legitimate ground for a complaint that a principle
permitting Mary's behaviour shows inadequate respect to future
people. The challenge for the Contractualist is to translate this
complaint into one that can be made on behalf of the Winter Child.
(For one recent attempt at such a translation, see Kumar 2003a, 2009.
For a critique, see Parfit 2011, volume 2, p. 235)



In chapter 22 of *On What Matters*, Parfit argues that the
impersonalist restriction--which rules out appeals to the
impersonal goodness or badness of outcomes--leaves any form of
contractualism that incorporates the individualist restriction unable
to respond to the non-identity problem.



Instead, Parfit argues that contractualists should permit both
*personal* and *impartial* reasons as grounds for
reasonable rejection. Impartial reasons, here, *are* grounded
in the moral claims or the well-being of individuals. "We have
such impartial reasons to care about the well-being of every
individual or person" (Parfit 2011, volume 2, p. 238). The
crucial feature of impartial reasons is that they are not narrowly
person-affecting. In a different people choice, we have an impartial
reason to maximise the well-being of future people--even though
different possible futures include different groups of possible
people. "Since [because of the non-identity problem] we cannot
appeal to the *personal* reasons that are had by people who
*never* exist, we should appeal to the *impartial*
reasons that are had by people who *do* exist" (Parfit
2011, volume 2, p. 240).



As with the individualist restriction, we might wonder whether the
admission of impartial reasons effectively abandons the spirit of
contractualism. If every present person has the same impartial
reasons, and if those reasons cannot outweigh any individual's
personal reasons, then the resulting more impartial formulation of
contractualism will converge with rule consequentialism. But does this
result tell us anything interesting about *Scanlon's*
contractualism? More generally, will the resulting theory retain the
distinctive features of contractualism that appeal to those who are
unsatisfied with familiar alternatives such as Kantian ethics or rule
consequentialism?



Debates about future people also connect to other recent controversies
within contractualism, especially the literature on risk. The divide
between ex post and ex ante justification is especially significant in
non-identity cases, where ex post justification can be offered to
particular individuals while ex ante justification can only deal with
person types. Should contractualists give their person-affecting
principles an ex post or ex ante interpretation? (Weinberg 2003 and
2015 defends an ex post interpretation, albeit within a Rawlsian
framework rather than a Scanlonian one; while Parfit 2017 clearly sets
out the ex ante alternative.)



Another emerging debate is whether contractualism can deliver
plausible verdicts in cases involving risks of human extinction. The
prima facie problem for contractualism here is that, because the
outcome where we fail to avoid imminent extinction contains no future
people at all, there is no (particular or representative) future
person who has the standing to reasonably reject principles
instructing present people to ignore extinction risks and focus
entirely on meeting present needs. (Finneron-Burns 2017, Frick
2017.)