Defending the moral moderate: Contractualism and common sense

Philosophy and Public Affairs

Volumn 28, Issue 4, 1999, Pages 275-309

  Kumar, Rahul ^a  

^a NONE

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EID: 33748924959     PISSN: 00483915     EISSN: 10884963     Source Type: Journal    
DOI: 10.1111/j.1088-4963.1999.00275.x     Document Type: Article

References (48)

1. "Permission" should here be understood in the strong sense, as a specific kind of practical discretion in certain circumstances that morality grants individuals. This is to be distinguished from a weaker sense of permission that is only of interest in circumstances where one's practical discretion over the determination of what one has reason to do is the result of morality's indifference. "Morality," in this discussion, should be understood in the narrow sense, as concerning standards of conduct and consideration compliance with which it is appropriate to expect from all persons in virtue of their being persons.
2. See Samuel Scheffler, The Rejection of Consequentialism (Oxford: Oxford University Press, 1982), pp. 84-87.
3. See, in particular T. M. Scanlon, "Contractualism and Utilitarianism," in Utilitarianism and Beyond, ed. Amartya Sen and Bernard Williams (Cambridge: Cambridge University Press, 1982), pp. 103-28;
4. Scanlon, "The Significance of Choice," in The Tanner Lectures on Human Values (Salt Lake City: University of Utah Press, 1988), vol. 8: 155-216;
5. Scanlon, "Levels of Moral Thinking," in Hare and Critics: Essays on Moral Thinking, ed. Douglas Seanor and Nick Fotion (Oxford: Oxford University Press, 1988), pp. 129-46.
6. Work on this paper was largely completed before the publication of Scanlon's recent statement of contractualism in What We Owe to Each Other (Cambridge, MA: Harvard University Press, 1999). The view presented here may not, therefore, be wholly consistent with Scanlonian contractualism as it now stands. Some of the apparatus used in this discussion, particularly the concept of an "exclusionary reason," does not appear in Scanlon's discussion. However, I believe that such an idea is clearly present in the account of practical deliberation he offers in the book. Where my discussion may significantly differ with Scanlon's stated view has to do with how one understands the interpersonal importance of options and constraints. In particular, it is not clear to what extent Scanlon sees the contractualist framework as helpfully illuming the role of permissions and constraints in specific kinds of valuable, on-going relationships.
7. Unless otherwise noted, I will take a sophisticated form of indirect consequentialism (e.g., some form of sophisticated rule-consequentialism) as a foil for contractualism. I do so for three reasons. First, rule- consequentialists are distinct amongst consequentialists, insofar as they aim to show that the structure of commonsense moral reasoning is amenable to analysis in consequentialist terms. Many of the points I will make in defense of contractualism's plausibility will not impress anyone of a revisionist temperament (e.g., an actconsequentialist), who is not concerned with trying to defend the structure of commonsense moral reasoning as basically sound. Second, I believe a theory like rule-consequentialism, amongst the systematic moral theories, to be the theory with the greatest intuitive appeal for those who take commonsense moral reasoning to be basically sound, but are left cold by theories that are largely Kantian in spirit. Finally, it seems to me that, of the systematic moral theories that attempt to make sense of commonsense moral reasoning, contractualism and rule-consequentialism are the most clearly diametrically opposed to one another. Contrasting the two, therefore, is helpful for drawing attention to what is distinctive about the contractualist understanding of certain central features of commonsense morality. An assessment of the plausibility of contractualism as a foundational account of commonsense morality would, of course, require the consideration of more than just the rule-consequentialist alternative. Such an undertaking is beyond the scope of this paper.
8. The principles are for the general regulation of behavior, in a world as we know it, in two ways. First, they serve as regulative standards that we may appeal to in assessing the conduct of others, justifiably criticizing them for failures to comply with these standards. Second, they form the basis of the practical deliberations of those who do in fact care about being able to justify their conduct to anyone by appeal to principles no one can reasonably reject.
9. Scanlon, "The Significance of Choice," p. 136.
10. Where respect is understood as recognition respect, not appraisal respect. See Stephen Darwall's discussion of the distinction in his Impartial Reason (Ithaca: Cornell University Press, 1983), pp. 148-50.
11. There is an important question here about how to explain the salience of the kinds of considerations that are recognized by contractualism as salient for moral argument. I do believe that the salience of certain classes of considerations can be motivated by certain general contractualist commitments concerning the aim and importance of morality; there is certainly more to it than an ad hoc appeal to intuitions. The discussion of this issue, however, involves questions that are too complex to pursue here.
12. See David McNaughton and Piers Rawling, "Agent-Relativity and the Doing-Happening Distinction," Philosophical Studies 63 (1991):167-95.
13. See Scheffler, The Rejection of Consequentialism, p. 90;
14. also Stephen Darwall, "Agent-Centered Restrictions from the Inside Out," Philosophical Studies 50 (1986):291-319.
15. On the importance of the promoting/honoring value distinction, see Philip Pettit, "Consequentialism," in Blackwell's Companion to Ethics, ed. Peter Singer (Oxford: Basil Blackwell, 1992), pp. 230-39.
16. See, in particular, Chap. 2 of Scanlon's What We Owe to Each Other;
17. Elizabeth Anderson, Value in Ethics and Economics (Cambridge, MA: Harvard University Press, 1993), pp. 10-11, 33;
18. Gerald Gaus, Value and Justification (Cambridge: Cambridge University Press, 1990), pp. 136-40.
19. Gaus, Value and Justification, p. 138.
20. Shelly Kagan, The Limits of Morality (Oxford: Oxford University Press, 1989), pp. 39-46. Kagan is mainly concerned with the hypothetical consensus device as it is deployed by Rawls, Harsanyi, and Richards, but the same style of argument is applicable to contractualism.
21. More accurately, the claim is that in order for one's actions to be expressive of mutual respect for others it is necessary that one's practical deliberations be framed by principles for the general regulation of behavior that no one can reasonably reject. What is primary is taking into account the right considerations in the right way, because this is what respecting the value of persons requires. The expression, through one's actions, of a respectful attitude towards others is, however, just a consequence of correct deliberation, not the aim of correct deliberation.
22. The term "reactive attitude" is from Strawson's "Freedom and Resentment," in Free Will, ed. Gary Watson (Oxford: Oxford University Press, 1982), pp. 59-80.
23. I am grateful to Maggie Little for very helpful discussion of this point.
24. There are two ways legitimate expectations that persons have for one another may vary, depending on the character of their relationship. Some variations in legitimate expectations will be a result of certain legitimate expectations just being characteristic of one kind of relationship, but not another, where this is a kind of sui generis fact about such relationships. The kind of variation that is of concern in this discussion is variation that has to do with what a person, given her status as a person, may legitimately expect of another, out of respect for her as a person. This is a source of variation that can be explicated in contractualist terms.
25. Some are drawn to an analogy here between the role of legitimate expectations in the analysis of promise keeping and their importance in other kinds of relationships, like friendship. On my view, this is a mistake. Being able to form legitimate expectations about another's conduct in cases of promise keeping is primarily important for helping the promisee shape her plans for the future. In the case of friendship, much of the importance of legitimate expectations will have to do with the value, both symbolic and as a vehicle for creating a distinctive bond, of having certain legitimate expectations for one another's conduct.
26. Note, however, that the claim to priority that certain considerations may have is defeasible.
27. Note that the idea of authorizing someone to act on a reason is here quite different from that of requiring them to act on a reason. Authorizing someone to do something is akin to the idea of putting the decision in her hands; it is a notion that is fundamental for understanding permissions. A requirement that a person act or not act on a certain reason, though defeasible, sets out a course of action that a person must (or must not) pursue, where a failure to comply constitutes an instance of having done something wrong.
28. The term, and the pioneering work on which this section is based, is that of Joseph Raz. See his Practical Reason and Norms (Princeton: Princeton University Press, 1990), sects. 2.2, 2.3, and 3.1;
29. Raz, "Promises and Obligations," in P.M.S. Hacker and Joseph Raz, eds. Law, Morality, and Society: Essays in Honour of H.L.A. Hart (Oxford: Oxford University Press, 1977), chap. 12.
30. See also G. J. Warnock, The Object of Morality (London: Metheun & Co., 1971), pp. 53-70.
31. Bernard Williams, "Persons, Character and Morality," citing Charles Fried, An Anatomy of Values: Problems of Personal and Social Choice (Cambridge, MA: Harvard University Press, 1970),
32. repr. in Williams, Moral Luck: Philosophical Papers, 1973-1980 (Cambridge: Cambridge University Press, 1981), pp. 1-19, pp. 17, 18.
33. Williams, Moral Luck: Philosophical Papers, 1973-1980 (1981), pp. 1-19, Ibid.
34. If there is a duty for a man to save his wife, it will be a further question as to what the character of this duty is. It may be owed to her out of respect for her as a person, or it is a duty whose importance lies in the expression of the bond between husband and wife. Such a duty would be a duty internal to the relationship that is not required by respect for persons, but is one that respect for persons (and what they have reason to care about) must accommodate.
35. This is an objection that someone like Peter Railton, given his sophisticated consequentialism, might justifiably press. See his "Alienation, Consequentialism, and the Demands of Morality," in Consequentialism and Its Critics, ed. Samuel Scheffler (Oxford: Oxford University Press, 1988), pp. 93-133.
36. It is also one that Conrad Johnson could press; see his interesting discussion of rule-consequentialism, which exploits the notion of an exclusionary reason to defend his version of rule-consequentialism. Conrad Johnson, "The Authority of the Moral Agent," in Consequentialism and Its Critics, ed. Scheffler, pp. 261-87.
37. The following distinction may clarify matters: a person conforms to the reasons that apply to her if, by being motivated by considerations other than those reasons, she better achieves what she has reason to do. A person complies with the reason if she is motivated directly by the thought of what she has reason to do (cf. Raz, Practical Reason, p. 178). The indirect consequentialist justifies the man's motivating thought by the fact that this pattern of thinking results in his coming closer to achieving the goal that morality sets him, which is to promote well-being; in being moved to save his wife, then, the man conforms to reason. Contractualism can claim that the man is complying with reason, for in saving his wife because she is his wife, he is treating his wife with the kind of consideration that is owed her according to a principle, which no one can reasonably reject, governing the duties owed between spouses (assuming, as I have, that there is such a principle). In saving his wife, the man is, according to contractualism, simply complying with the general aim of morality.
38. Throughout this part of the discussion I will speak of principles' being proposed and adopted, as well as the characters in the examples offering reasons to one another. This is potentially seriously misleading if one does not keep in mind that this is only a way of thinking about the kinds of considerations that might be identified as salient in reasoning on the contractualist characterization of moral reasoning.
39. To avoid complications, everyone in all the examples are strangers to one another, and no one holds any particular office that is relevant, e.g., the stranger is not a policeman, and Allie is not a dog catcher.
40. A proposal suggested by Thomas Nagel's discussion of unanimity in "Equality," in Nagel, Mortal Questions (New York: Cambridge University Press, 1979), pp. 106-27, p. 117.
41. Scanlon, in "Contractualism and Utilitarianism," p. 123,
42. also suggests a view along these lines. A sophisticated proposal for the kinds of considerations that are relevant for assessing the reasonable rejectability of a proposed principle along these lines, that draws upon Nagel and Scanlon, is suggested by Derek Parfit in "On Giving Priority to the Worse Off" (manuscript). For purposes of this discussion I want to avoid considering the details of Parfit's proposal, though some of what I say about the proposal in the text will be applicable to that view.
43. It might be thought that this introduces a "veil of ignorance" device into contractualist moral argument. To claim this, though, is to confuse having to abstract to some extent from one's current situation when thinking about the justifiability of principles with reasoning as if you did not know who you were. Scanlon's criticisms of the "veil of ignorance" in his "Contractualism and Utilitarianism" are directed at the claim that moral reasoning requires reasoning as if you did not know who you were, not at the claim that moral reasoning may require that you abstract, to some extent, from your current situation.
44. Note that the character of Allie's action is crucial here; it is, intuitively, harder to say whether Allie would have wronged Geoff if, for instance, she simply jumped back, out of harm's way, without first warning Geoff of the impending danger.
45. That the force of autonomy considerations of the kind thus far relied upon as objections to a principle diminish as one continues to narrow the range of situations to which. a principle may be relevant (as is done in this paragraph) suggests that autonomy considerations are not as fundamental to understanding permissions and constraints as one might expect. I thank Frances Kamm for drawing my attention to this point.
46. Here I have here benefited from Warren Quinn's discussion of the rationale for this kind of constraint, in his "Actions, Intentions, and Consequences: The Doctrine of Doing and Allowing," in his Morality and Action, ed. Philippa Foot (Cambridge: Cambridge University Press, 1993), pp. 149-74- Frances Kamm also emphasizes the importance of how a person sees herself as a result of the design of the moral system;
47. see her "Non-consequentialism, the Person as an End-in-Itself, and the Significance of Status," Philosophy & Public Affairs 21, no. 4 (Fall 1992): 354-89.
48. As the common saying puts it, "actions speak louder than words."