Abstract
Rawls developed a contractualist theory of social justice and Scanlon attempted to extend the Rawlsian framework to develop a theory of rightness, or morality more generally. I argue that there are some good reasons to adopt a contractualist theory of social justice, but that it is a mistake to adopt a contractualist theory of rightness. I begin by illustrating the major shared features of Scanlon and Rawls’ theories. I then show that the justification for these features in Rawls’ theory, the centrality of cooperative fairness to social justice, cannot be used to defend their use in Scanlon’s. Finally, I argue that Scanlon has not provided an adequate alternative defense of these features, and show that they create problems when contractualists try to explain major features of our common-sense morality.
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Notes
I don't mean to fully endorse this suggestion, but it will be useful, for the sake of simplicity, to follow Scanlon in making it.
Scanlon does not actually use the word “fairness” in What We Owe to Each Other to describe the fundamental basis of his view, but he does say elsewhere say that contractualism incorporates his earlier view, in “Rights, Goals, and Fairness,” that individual rights are determined by which rules would produce “fair” distributions of well-being (Scanlon 2008, Introduction). In any case, I think the description I have given of the motivation for, and effect of, the contractualist thought experiment is accurate.
Scanlon himself emphasizes this contrast. See Scanlon 1998, Chapt. 7.
Some recent writers, so called “particularists”, such as Dancy 2006, have denied that general principles have any important role to play in the explanation of why particular actions are wrong or why we judge them to be wrong. But it seems to me that they do and, for present purposes, I’ll grant Scanlon that they do.
Sheinman 2011 also points out that JT does not provide any reason for evaluating principles by considering their use as rules for general regulation.
See, for instance, Brand-Ballard 2004.
You might say that actually my action is unfair if we understand fairness broadly enough, so that it isn’t just concerned with the equitable distribution of benefits and burdens. But if there is such a broad notion of fairness available, then it doesn’t seem that the contractualist apparatus would play any useful role in helping us to capture it.
References
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McGinn, C. (1999). Reasons and unreasons (pp 34–38). The New Republic, May 24.
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Rawls, J. (1999). A theory of justice. Cambridge: Belknap Press.
Scanlon, T. M. (1998). What we owe to each other. Cambridge: Harvard University Press.
Scanlon, T. M. (2003). The difficulty of tolerance. Cambridge: Cambridge University Press.
Scanlon, T. M. (2008). Moral dimensions: permissibility, meaning and blame. Cambridge: Harvard University Press.
Sheinman, H. (2011). Act and principle contractualism. Utilitas, 23(03), 288–315.
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Hosein, A. Contractualism, Politics, and Morality. Acta Anal 28, 495–508 (2013). https://doi.org/10.1007/s12136-013-0198-0
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DOI: https://doi.org/10.1007/s12136-013-0198-0