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Specifying Contractualism: How to Reason About What We Owe to Each Other

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  1. For typical statements of the objection see: Johnathan Hughes and Stephen De Wijze, “Moral Contractualism Comes of Age,” Res Publica, Vol. 7, No. 2, (2001), pp. 189–196; Colin Macleod, “Making moral judgments and giving reasons,” Canadian Journal of Philosophy, Vol. 31, No. 2, (2001), pp. 263–289; David Gauthier, “Review: Are We Moral Debtors?” Philosophy and Phenomenological Research, Vol. 66, No. 1, (2003), p. 166; Joseph Raz, “Numbers, with and without contractualism,” in Philip Stratton-Lake, ed., On What We Owe to Each Other (Oxford: Blackwell Publishing, 2004), pp. 64–65; Jean Hampton, “Feminist Contractarianism,” in Daniel Farnham, ed., The Intrinsic Worth of Persons: Contractarianism in Moral and Political Philosophy (Cambridge: Cambridge University Press, 2007), p. 18. As I understand it, the indeterminacy objection specifically takes issue with the contractualism as an account of our moral reasoning. As such, it is distinct from the objection that the contractualist procedure is circular or redundant as a metaethical explanation of an act’s wrongness. However, my arguments may serve to alleviate some doubts of the latter sort as well, to the extent that such worries are predicated on contractualism’s inability to deliver determinate normative verdicts in specific cases. See Nicholas Southwood, Contractualism and the Foundation of Morality (Oxford: Oxford University Press, 2010), pp. 61–62.

  2. I say “almost always,” since there could be cases of genuine moral indeterminacy (such as tragic moral dilemmas or dirty hands cases) in which there is no answer to what is the morally right thing to do. I believe that the framework provided in this article can be extended to account for such cases. One need only claim that, in certain instances, acknowledging the existence of irreconcilable conflict constitutes the most coherent interpretation of the moral claims at stake. See Ronald Dworkin, Justice for Hedgehogs (Cambridge, Mass.: Harvard University Press, 2011), p. 120.

  3. T.M. Scanlon, What We Owe to Each Other (Cambridge, Mass.: Harvard University Press, 1998), p. 4. Hereafter cited as WWO.

  4. WWO, p. 4.

  5. See WWO, pp. 155–156 and R. Jay Wallace, “Scanlon’s Contractualism,” Ethics, Vol. 112, No. 3, (2002), p. 451, respectively.

  6. WWO, p. 4.

  7. WWO, p. 193.

  8. Hampton, op. cit., p. 18.

  9. WWO, p. 218.

  10. WWO, p. 157.

  11. T.M. Scanlon, “Reply to Gauthier and Gibbard,” Philosophy and Phenomenological Research, Vol. 66, No. 1, (2003), pp. 180–187.

  12. Southwood, op. cit., p. 62.

  13. Rahul Kumar, “Reasonable Reasons in Contractualist Moral Argument,” Ethics, Vol. 114, No. 1, (2003), p. 14.

  14. T.M. Scanlon, “Replies” in Philip Stratton-Lake, ed., On What We Owe to Each Other (Oxford: Blackwell Publishing, 2004), p. 128. See also Kumar, op. cit., pp. 35–36; Tamra Frei, “The Redundancy Objection, and Why Scanlon is Not a Contractualist,” The Journal of Political Philosophy, Vol. 17, No. 1, (2009), pp. 59–60.

  15. WWO, p. 4.

  16. Henry Richardson, “Specifying Norms as a Way to Resolve Concrete Ethical Problems,” Philosophy and Public Affairs, Vol. 19, No. 4, (1990), p. 283.

  17. Ibid., pp. 287–288. See John Rawls, A Theory of Justice (Cambridge, Mass.: Harvard University Press, 1971), pp. 41–42.

  18. WWO, pp. 155–157.

  19. See Henry Richardson, “The Stupidity of the Cost-Benefit Standard,” The Journal of Legal Studies, Vol. 29, No. 2, (2000), p. 972.

  20. Henry Richardson, Practical Reasoning About Final Ends (Cambridge, Mass.: Harvard University Press, 1994), p. 6. Richardson defines an end quite broadly, as “something for the sake of which action is done.” An end in this sense can be restated as a norm or principle by expressing its connection to action in fully propositional form (for instance, the end of “crossing the road” could be expressed as an end-norm stating that “one should do what is necessary in order to cross the road.”) Following Richardson, I will treat these two uses of ends interchangeably. Ends can also be viewed as roughly equivalent to values; as when we speak of the values that are pursued or realized through a specific course of action (ibid., pp. 50–51).

  21. WWO, p. 162.

  22. Richardson's account of deliberation has obvious affinities with Dworkin's method of interpretation (Dworkin, op. cit., pp. 160–161) as well as with John Rawls’ method of reflective equilibrium (Rawls, op. cit., pp. 48–50). One difference is that whereas Richardson speaks of the specification of ends, Dworkin speaks of the interpretation of concepts, and Rawls speaks of achieving a balance between our considered judgments and the regulative principles that make up a theory of justice. I find it more helpful to adhere to Richardson's terminology, partly because speaking about ends, rather than concepts or considered judgments, better captures the ideal-guided character of contractualist reasoning emphasized at the beginning of this section.

  23. Richardson, op. cit., pp. 137–138. One theory that neatly exemplifies this model is the classical utilitarianism of Sidgwick. According to this view, the ultimate commensurating end is that of maximizing happiness or pleasure, and all other ends are justified only to the extent that they are conducive to this end. The ultimate end of happiness is not justified on the basis of any higher-order end, however, but is accorded the status of a fundamental intuition that can be pressed no further. See Henry Sidwick, The Method of Ethics: Seventh Edition (Indianapolis: Hackett Publishing Company, 1981), pp. 387–388.

  24. Richardson, op. cit., 140–141. See also Henry Richardson, Democratic Autonomy: Public Reasoning About the Ends of Policy (Oxford: Oxford University Press, 2002), pp. 110–111.

  25. Richardson, Practical Reasoning About Final Ends, p. 212.

  26. Ibid., p. 214. See Nicomachean Ethics, 1097b15–20. Note that my intention is not to argue in favor of the above line of reasoning, much less to defend it as the correct interpretation of Aristotelian eudaimonia. See Richard Kraut, Aristotle on the Human Good (Princeton: Princeton University Press, 1989), pp. 267–311, for a contrasting view.

  27. Richardson, op. cit., 217. See also Aurel Kolnai, “Deliberation Is of Ends,” Proceedings of the Aristotelian Society, Vol. 62, No. 1, (1961), pp. 213–214; David Wiggins, Needs, Values, Truth: Essays in the Philosophy of Value (Oxford: Oxford University Press, 1987), p. 223.

  28. WWO, p. 169. See also R. Jay Wallace, The Moral Nexus (Princeton: Princeton University Press, 2019), pp. 185–186.

  29. T.M. Scanlon, The Difficulty of Tolerance (Cambridge: Cambridge University Press, 2003), pp. 151–152.

  30. Ibid., p. 141.

  31. WWO, pp. 205–206.

  32. WWO, p. 242.

  33. WWO, p. 176: “The ideal of justifiability to others is what gives rise to the categories of moral argument, shapes them, and gives them their importance.”

  34. WWO, pp. 170–171.

  35. The division of three stages is loosely based on Ronald Dworkin, Law’s Empire (Cambridge, Mass.: Harvard University Press, 1986), pp. 65–66.

  36. This mutual adjustment of ends can take place between ends of the same category (so that constraints are specified in relation to other constraints, interests in relation to other interests, and so on), but they can also cut across them. For instance, Scanlon points out that “our sense of the relative strength of the claims that various interests make on other people depends … on our assessment of what constitutes a workable principle specifying the ways in which we can be asked to take others’ concerns into account” (WWO, p. 394, n. 14).

  37. WWO, p. 246.

  38. Dworkin, Justice for Hedgehogs, p. 160.

  39. As we noted above in discussing Kumar’s interpretation of contractualist moral reasoning, paradigmatic instances of wrongdoing will include depriving individuals of certain basic resources that anyone would need in order to live rationally self-directed lives.

  40. Rawls, op. cit., p. 440.

  41. Elizabeth Anderson & Richard H. Pildes, “Expressive Theories of Law: A General Restatement,” University of Pennsylvania Law Review, Vol. 148, (2000), pp. 1527–1531. See also Kumar, op. cit., p. 10.

  42. The movement of thought elaborated in this paragraph may be viewed as a reconstruction, along Scanlonian contractualist lines, of Rawls’ argument to the effect that the social bases of self-respect is “the most important primary good” (Rawls, op. cit., pp. 178–179; p. 440). In the theory of Rawls, of course, the higher-order ideal that guides this reasoning is not the ideal of mutual recognition among rational self-governing creatures, but rather the ideal of society as a fair system of cooperation. See John Rawls, Justice as Fairness: A Restatement (Cambridge, Mass.: Harvard University Press, 2001), pp. 24–26.

  43. I do not claim that this brief discussion conclusively settles the question of what one morally ought to do under the circumstances, nor that this is the only reasonable way in which the moral considerations at stake can be specified and the disagreement in question can be resolved. The example is merely intended to illustrate how rational deliberation and argument about what we owe to each other can proceed in the face of seemingly intractable conflicts of the sort in question, in such a way that avoids appealing to the intuitive assignment of weights (for my concerns with the method of intuitive balancing, see the discussion towards the end of Section 3 of the present paper). I thank an anonymous reviewer for this journal for prompting me to clarify this point.

  44. WWO, p. 169.

  45. WWO, p. 170.

  46. “One begins from one’s own view of the substantive goods which, in general, make life better and with a knowledge of how other individuals differ in their circumstances and in their views about what is substantively good. The pressure to formulate a system of common values is then provided by the moral aim of finding a way of evaluating principles of action which all individuals could accept despite their differences” (Scanlon, op. cit., p. 184).

  47. Kumar, op. cit., pp. 24–25. See also Richardson, Democratic Autonomy, pp. 156–161.

  48. WWO, p. 105, pp. 170–171.

  49. See, for example, WWO, pp. 196–197. In my view, the specification process, or rational deliberation regarding a particular moral issue, can be said to have reached its end once the moral considerations at stake are coherently specified in such a way that settles the question of what we ought, morally, to do under the circumstances, all things considered. In practice, of course, it will be difficult to tell when a course of rational moral deliberation regarding a given moral issue has reached its end, and so the particular all things considered judgments that we arrive at through this process will often retain a tentative character. However, I would argue that this is simply reflective of the inherent difficulty of moral thinking in general, and that it is a virtue of my account that it can incorporate this fact. I thank an anonymous reviewer for this journal for pressing me on this matter.

  50. See Henry Richardson, “Degrees of Finality and the Highest Good in Aristotle,” Journal of the History of Philosophy, Vol. 30, No. 3, (1992), p. 352.

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This study was supported by Japan Society for the Promotion of Sciences (Grant No. 15J07262).

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This work was partially supported by Grant-in-Aid for JSPS Fellows (15J07262). I thank Wataru Inukai, Masaya Miyamoto, Hiroki Narita, Ryo Ogawa, Satoshi Okuno, Masato Tanaka, Masashi Yazawa, and an anonymous reviewer for this journal for their insightful and constructive feedback on earlier versions of this paper.

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Correspondence to Ken Oshitani.

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Oshitani, K. Specifying Contractualism: How to Reason About What We Owe to Each Other. J Value Inquiry 58, 151–168 (2024). https://doi.org/10.1007/s10790-021-09873-3

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