Abstract
This paper examines the efforts of contractualists to develop an alternative to aggregation to govern our duty not to harm (duty to rescue) others. I conclude that many of the moral principles articulated in the literature seem to reduce to aggregation by a different name. Those that do not are viable only as long as they are limited to a handful of oddball cases at the margins of social life. If extended to run-of-the-mill conduct that accounts for virtually all unintended (in the sense of undesired) harm to others—noncriminal activities that impose some risk of harm on others—they would rule out all action. Moreover, because such conduct poses an irreducible conflict between freedom of action and freedom from expected harm, it can be regulated only by principles that accept the necessity of making precisely the sorts of interpersonal trade-offs that contractualism is foundationally committed to reject: trade-offs in which the numbers count, such that a risk of serious harm to one person can be justified by small benefits to the many.
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Notes
What we count as benefits and costs and how we measure them is itself a huge issue under any system that requires us to make interpersonal comparisons of well-being. For present purposes, I think it is sufficient to say that the meaning adopted in the contractualist literature is roughly the meaning adopted by aggregative welfarists: costs and benefits reflect individuals’ own subjective evaluations of different outcomes, laundered where deemed appropriate to eliminate morally offensive preferences, or idiosyncratic preferences that are thought not to have a legitimate claim on collective resources.
Scanlon (2000, p. 313) succinctly states the moral importance Kantians attach to physical harm to others: “[T]he idea that each person has a special claim to and authority over his or her own life and body” is “one that no one could reasonably reject.”
This is an overstatement. All rules impose interpersonal trade-offs, by virtue of the fact that they will always be under- or over-inclusive of the sorts of conduct we wish to prohibit. Moving from the moral to the legal sphere, they will also be under- and over-inclusive as enforced, and enforcement imposes costs on all of us to generate benefits for only a few. I set to the side these and other trade-offs that are endemic to all moral and legal norms.
For discussion of these cases, see Sect. 3.2.
Scanlon (1982, pp. 122–123) (italics added). It has been suggested that Scanlon’s substitution of “representative types” and “generic reasons” signals a shift to an ex ante POV. Brand-Ballard (2004). There is some textual support for that reading, but on balance I do not think it can be what Scanlon intended. As Elizabeth Ashford has suggested, to read Scanlon otherwise is to assume that he has jettisoned sub rosa the central commitment of his version of contractarianism: that every candidate principle must be judged based on its actual effects on particular individuals (that is, from an ex post POV). Ashford (2003, p. 277). The better reading, I think, is that the substitution is meant to avoid the impossible informational burdens of having to consider what every potentially affected individual actually would prefer, as well as to screen out idiosyncratic or objectionable reasons that are not plausible candidates for universal agreement. For textual support for maintaining an ex post POV, see Scanlon (1998, pp. 202–205).
Different authors have drawn the line between “certain” and “uncertain” harms in different places. Reibetanz (1998, pp. 301, 308), Scanlon (1998) and Kumar (1999, p. 295), for example, require the identity of the victim to be known with certainty in order for the would-be victim’s complaint to be weighted at the full ex post value of the harm, and would weight all complaints about uncertain harms by the probability that will befall a particular person. Otsuka (2011) would require only that it be certain that someone will be harmed in order for the future victim to have her complaint weighted at the full ex post value of the harm—a difference that, in most large-number samples, will put almost all risky conduct on the “certain” side of the line. He would also weight harms that fall on the “uncertain” side of the line differently, discounting a given individual’s risk not by the probability that she in particular will be harmed, but by the probability that someone will be harmed. Both differences push the scheme strongly towards an ex post valuation across the board, with resulting moral gridlock. Otsuka, foreseeing this difficulty with the second difference, suggests that in valuing “uncertain” harms, we could revert to individualized expected value, at least for individuals who are expected to benefit over their lifetime if society permits reasonable risks. As discussed in Sect. 3.2 below, this exception is likely to swallow his alternative rule.
Scanlon (1998, p. 236, italics added). Consent also plays a role in this and other hypotheticals. Scanlon explicitly requires that, for the construction project to be permissible, the construction workers must consent to the risk they are assuming. Consent is surely morally relevant, but its relevance is complicated, and cannot ultimately be separated from our judgment about the reasonableness of the risk to which someone has implicitly or explicitly assented. For further discussion of this point, see Sect. 3.6.
It is not clear what else Scanlon could have in mind here, since, in the two scenarios he describes as ‘intentional,’ he clearly does not mean ‘intent’ to refer to motive/mens rea. What the two examples have in common is that the actor knows with certainty the consequences of acting or not acting.
As noted in Luban (2009, 2011), this is true as well of the moral dilemmas of war that are often taken to be the closest real-life analogues to trolley-type hypotheticals—e.g., whether it is permissible to torture others to obtain information that will (‘certainly’) save innocent lives, or to kill enemy noncombatants to save the lives of one’s own combatants or citizens.
Some Kantians would distinguish these cases on a different basis: that self-regulation and regulation by the state are governed by entirely different norms. See e.g., Ripstein (2009). That position is (in my view) equally hard to defend, but for different reasons I cannot adequately explore here.
For a particularly strong version, which not only treats statistical certainty as certainty but also treats statistical foresight as providing the mens rea necessary for murder, see Heinzerling (2006).
Otsuka (2011), for example, would require “objective certainty” that a predetermined individual will die, but would not require that decisionmakers themselves know who that individual is.
For discussion of the latter issue, see Sect. 3.2.
Indeed, contractualists are often unwilling to live with the implications of the ex post POV even in cases of ‘certain’ harms. Kumar (1999), for example, qualifies his commitment to an ex post POV for certain harms, to say that you may use the information you possess about your own fate only to the extent doing so is “impartially justifiable,” which he equates with the probability that an average person will benefit (suffer) from the principle. Id. at 298. I am not entirely certain how Kumar intends this to operate, but it appears to weight all benefits and harms on an ex ante basis, producing straight aggregation.
See Munoz-Dardé (2005), Lenman (2008, p. 121, n. 40), Ashford (2003, pp. 298–299). The example is a variant of a hypothetical originally raised by Scanlon, in which the group facing a disproportionate share of the downside risks was the poor rather than the Amish. Scanlon (1998, pp. 208–209). For a variant on this problem, see Otsuka (2011).
It is not always clear whether this argument is addressed to the permissibility of the risky conduct or the obligation to compensate victims. My comments should be read to apply only to the former.
“We do not think that a higher level of safety must be provided for workers on a building that will benefit only one family as opposed to an apartment house or a public bridge” (1998, p. 236).
It is not clear that Scanlon would make that threshold determination any differently from aggregationists. “In each case, in order to defend the practice in question we need to argue [first] that the importance of the social goal justifies creating the risk…” (1998, p. 264).
For a discussion of the transitivity problem, see Norcross (1997).
For a representative statement, see Scanlon (2000, p. 313): “[T]he idea that each person has a special claim to and authority over his or her own life and body” is “one that no one could reasonably reject.”
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Acknowledgments
I would like to thank the Center for Advanced Studies in the Behavioral Sciences (Stanford, CA), where this article was written. I have profited from discussions of this project with a number of people, including Joe Bankman, Josh Cohen, Barbara Herman, Mark Kelman, Rahul Kumar, Arthur Ripstein, Debra Satz and Philip Pettit. Special thanks go to Leif Wenar for helping me sort out the various strains of contractualist thought. Some of the aforementioned disagree with much of what is written here, and I thank them for their willingness to engage seriously with the project nonetheless.
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Fried, B.H. Can Contractualism Save Us from Aggregation?. J Ethics 16, 39–66 (2012). https://doi.org/10.1007/s10892-011-9113-3
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DOI: https://doi.org/10.1007/s10892-011-9113-3