Rightness as Justifiability: Thomas Scanlon’s moral contractualism

Objectives motivating moral contractualism

The contractualism of American philosopher Thomas Scanlon is a non-consequentialist theory of interpersonal morality, first set out in the seminal 1982 article “Contractualism and Utilitarianism”1 . It has two objectives. The first is to specify the subject matter of our moral judgements, and so identify the standards of reasoning we need to respect to ensure these judgements can be true – in the same way as algebraic theory defines the rules of calculation we use to be able to formulate adequate judgements about the realm of numbers2 . The moral domain that interests the contractualist – circumscribed by the formula “what we owe to each other3 ”, the title of Scanlon‘s major book – corresponds to that sub-section of morality within which we address legitimate demands to each other on our own behalf. Hence contractualist theory about this narrow domain does not seek to produce moral appraisal of our relationship to nature and animals, or to art and sexuality, even though it makes perfect sense to make moral judgements about how we relate to these values, as when it is said to be immoral to torture an animal for pleasure4 . This restriction of contractualism’s field of application brings out its modesty as a theory. For it does not seek to provide a theory of objectivity for all judgements that could be described as “moral”. Rather, its purpose is to provide us with the conceptual tools with which we may appraise the moral validity of the demands we make of each other.

The second objective targeted by Scanlon’s moral theory is to successfully account for the practical significance of moral judgements about what we owe each other. These are meant to conclusively guide our actions, in that my moral duty to others cannot be weighed against some selfish desire to satisfy a private interest, nor even against what is required by other values, such as friendship or protecting wildlife, should such a conflict arise between these values and my moral duties – for instance, we are not allowed to favor our friends’ interests to the detriment of what we owe others. If our moral obligations towards each other enjoy such priority over all other practical considerations, then it is better to describe them in terms that make us appreciate their importance. Thus the justificatory theory offered in response to the first objective – that is to say, the standards of reasoning identified as needing to be met to ensure the objectivity and validity of our judgements about what we owe others and what we may demand of them – needs to be such that we can see we have good reason to be concerned with interacting with others as prescribed or authorized by the moral principles that the theory holds to be valid. A theory which justified moral principles by drawing on considerations that leave us cold would fail the second challenge, since in that case it would not be clear why we should take the demands of interpersonal morality seriously5 .

Cover of What We Owe to Each Other by Thomas M. Scanlon

Cover of What We Owe to Each Other, by Thomas M. Scanlon.

Consequentialists hold that, to know how to act, it suffices to look at the consequences our actions may have. Since they establish strict equivalence between our moral duty and the injunction to maximize good (or minimize bad), they identify a value – well-being, equality, etc. – that our actions should promote, by bringing about states of affairs that maximize this value. Hence, for example, utilitarian appraisal of our actions focuses on the sole measure of aggregate well-being. It requires that we concern ourselves with considerations – such as the value attached to maximizing the happiness of the greatest number – that are, for Scanlon, far removed from what really motivates our moral sensibility, namely, as we shall see, our concern for others’ interests and for the quality of interpersonal relationships regulated by the ideal of mutual justifiability. When I am moved by promoting aggregate well-being, I am more concerned with the quality of a state of affairs – one that by definition is impersonal, since no single individual enjoys the sum of benefits produced – than with how my action affects others. This does not seem able to adequately account for our concern with morality, since it is not self-evident that we should concern ourselves with the impersonal quality of states of affairs6 , rather, for example, than with demands others may make of me on their own behalf.

So, due to their insistence, as just seen, on impersonal considerations, consequentialist theories are unable to explain our concern for the demands of morality. Utilitarianism – the consequentialist theory that values producing the state of affairs that brings about the greatest good of the greatest number of individuals – is in turn unable to justify valid moral principles. Contractualist theory was devised in response to this. Here, speaking of failure rather than inherent inability is significant. For contractualism takes the same starting point as the utilitarian project, namely the idea that what matters, from the perspective of morality, is to satisfy others’ needs, and how my action affects their interests by furthering or harming their interests. (Seen from this angle, contractualism has far more in common with utilitarianism than with ethical egoism or libertarianism.) The utilitarian, however, departs from this path as soon as he becomes a consequentialist: it is then no longer satisfying an individual’s needs that matters, but bringing about the state of affairs with the greatest aggregate utility7 . The purpose of my action is to produce the best possible state of affairs, as measured by the extent to which it promotes the value attached to aggregate utility. The standards of reasoning utilitarians recommend we respect for ranking different states of affairs and selecting the best among them leads us to defend counterintuitive conclusions and justify questionable moral principles.

Let us consider two examples. Suppose you are the fortunate owner of a small yacht and are out sailing. Not far off are two little islands about to be submerged by the rising tide, with one person on one, and two on the other. Because of the time needed to reach the two islands in turn before they are covered by the waves, you cannot reasonably hope to come to the assistance of all three individuals. You can only rescue one of the two groups. What must you do? For a utilitarian the answer is simple: you have to save the greatest possible number of people, in this case, two, so as to produce the best consequences. Initially at least, that seems to match most people’s moral intuition. Now suppose that Jones has had an accident in the transmitter room being used for the live broadcast of a World Cup football match that has just started and is being watched by millions of people. Jones is experiencing very painful electric shocks that he can only be spared by interrupting the broadcast for fifteen or so minutes8 . Should we stop the broadcast to help him, or on the contrary should we leave him to suffer until the match is over? A utilitarian will reason that the sum of the individual utilities of the viewers is such that the level of aggregate well-being would be less overall if we rescue Jones rather than allowing the broadcast to continue. He will therefore recommend that we satisfy the preferences of the greatest number even though, taken individually, they are trivial in comparison to the intensity of Jones’s suffering. If the consequentialist reasoning adopted by utilitarians leads to this eminently counterintuitive conclusion, does this not signal that we should resist the change of focus mentioned earlier on, between, on the one hand, taking into account the well-being of the individual and, on the other, promoting aggregate well-being? Further, is it really possible to defend the judgement according to which you should steer your yacht towards the island with the greatest number of people without thereby having to fall back on consequentialist reasoning? That is the challenge contractualism sets itself.

Trailer of the series The Good Place.

The value of rational life, and justifiability to others

As we have seen, contractualism is a theory of interpersonal morality, examining what we are entitled to demand of others, the manner in which we may legitimately interact with them, and what we owe them. The value of human or rational life9 is thus central to this sphere of interpersonal morality10 . Hence moral reasoning about what we owe each other is informed by adequate understanding of the demands placed on us in recognizing the value of rational life. For – in contrast to the idea that valuing a thing implies there is only one sort of behavior we may rationally adopt towards it, namely promoting the number of occurrences of the object of our value judgement – it is in fact the distinctive properties endowing an entity with singular value that should guide us in our enquiry about the nature of this value, and about what respecting it requires of us. Scanlon deploys examples to reject the idea that there is a single line of conduct to adopt irrespective of the values in question11 . For example, the scheme we apply when striving to avoid pain as much as possible would be disastrous if we sought to deduce prescriptions about how we should relate to our friends. Valuing friendship does not consist in seeking to produce as many friendships as we can, even at the cost of betraying a friend so that they strike up new friendships: if we value friendship as a relationship of mutual trust based on shared common purposes, then any such attitude is automatically excluded, and is largely void of meaning. Equally, holding that the world would be better if it contained more human lives is an inadequate appreciation of the value of human beings for deducing precepts of interpersonal morality. As with other values, the question is: in what does the value of human life consist, and what does respecting it imply?

For Scanlon, the value of human beings stems from their rationality, that is, the faculty all rational creatures have to understand, formulate, assess, and reject normative judgements about reasons, that is, “considerations that count in favor of adopting”12 any belief, attitude, or behavior. What respecting human life recommends is that, in my practical deliberation, I take other people into account as beings who have reasons to want to lead a good life, who are able to select between various ways in which a life is worth living, and who thus lead their life in an active and autonomous manner. When I ask how to act, this recognition involves taking the reasons of others into account, together with the way in which they may, from their own viewpoint, appraise the reasons for acting I am envisaging following. If I step on your foot out of gross negligence, I am disregarding your value as a rational creature, for I do not take into account your reasons for being opposed to my acting in this manner: in addition to the physical discomfort it causes you, and the harm it does to your right to control how others interact with your body, my action also generates what Philippa Foot calls a “second-order evil13 ”, linked to your ability to appreciate how little importance I attach to your reasons in my practical reasoning, and thus the lack of significance I attach to you and your value as a human being.

Campain in the public transportation in Madrid against manspreading.

Campain in the public transportation in Madrid against manspreading.

In short, the principles of interpersonal morality bear on the various ways in which I may represent others’ reasons in my practical reasoning. Since taking account of the reasons that others may put forward to dispute the permissibility of my behavior comes down to wondering if my behavior may be justified to them, it follows that the criterion for the moral validity of my action is its interpersonal justifiability. For a demand made of others to be acceptable from the perspective of moral theory, it must be such that all those concerned – the person acting, the person acted upon, and any third parties who may be affected by a principle authorizing individuals to make such demands of one other – can accept it, or, in Scanlon’s formulation, which we shall examine shortly, that none of them can reasonably reject it. The behavior I envisage adopting is thus morally right only if the principle authorizing me to interact in this way with others is justifiable to them. Equally, the way in which I treat others’ interests is morally wrong only if the latter are in a position to make a decisive objection against the permissibility of my action. That means that we cannot think of wrongness, at least in how it relates to the precepts of interpersonal morality, independently of justifiability14 .

What we owe each other, in virtue of the value attached to the singular capacity we have to understand and assess normative judgements, is thus to act solely in a manner which may be justified to each of those affected by our action. The fact that an action may be justifiable to others does not mean, however, that the moral validity of the principle authorizing me to treat them as I do is grounded simply in their psychological disposition to accept such or such a justification for this action. To be valid, a moral principle must be not reasonably rejectable. If the principle authorizing my action is contested by others out of pure selfish interest or lack of regard for the reasons which drove me to act as I do, then this is not such to establish that this principle is unjustifiable. Equally, if by abusing the low self-esteem of the person I am mistreating, and by misleading them, I manage to get them to accept the treatment I am inflicting on them, it does not thereby become morally acceptable. In fact, it is doubtless made even less so by the “ideological recognition”15 whereby I would tend to value that person’s tendency to submission and so lead them to act in accordance with my illegitimate claims on them. What matters is thus not the possibility of reaching a concrete agreement with others about the permissibility of my action, but the fact that the latter be ideally justifiable to them16 . In the following sections we shall see what ideal justifiability consists in. But it is important to insist first on the appeal of relationships of mutual justifiability.

Cover of Épreuve de la tolérance by Thomas Scanlon

Cover of the Épreuve de la tolérance, first book of Thomas Scanlon translated into French.

The question of moral motivation as conceived by Scanlon is distinct from the challenge posed by the immoralist who, moved by the desire to satisfy his own best interest, weighs what he will gain or lose if he decides to live a life in accordance with the precepts of morality. Instead, Scanlon addresses the question of the practical significance of morality from the viewpoint of someone who already takes the precepts of interpersonal morality seriously17 . The question is to know what the fact of being concerned with respecting others, when we are effectively thus concerned, adds to our life. (It is important not to confuse this issue with that of knowing why we must act morally, as one might otherwise believe that Scanlon is seeking to justify our duty of acting in ways justifiable to others on the grounds of the appeal he attributes to relations of mutual justifiability18 . As we have seen, the reason we should act in interpersonally justifiable ways is because this is what the value of all rational creatures requires of us.) What Scanlon is seeking to show is that interacting with others in justifiable manner contributes to the happiness of those who are effectively moved by the concern to respond to the legitimate demands made of them – rather than by consideration of how respecting laws may benefit them (by avoiding prison, for instance).  

When we attach importance in our conduct to the legitimate demands of others, we appreciate the appeal of the ideal of a moral community within which we relate to one another on the basis of mutual recognition: we appreciate living in “unity19 ” with others. The particular appeal of this type of relationship becomes especially noticeable under negative conditions, that is to say when we transgress the demands of mutual justifiability. The reason we suffer from the guilt we feel towards the person we have mistreated is due to the feeling of estrangement, separation, or distance from them20 . That is also why it is the ideal justifiability of my action that counts, far more than any effective agreement on its moral status. First, even if an individual accepts or is at least not openly opposed to the nonetheless unjustifiable treatment I am guilty of towards their interests, our relationship is still shorn of the appeal specific to all true relationships of mutual justifiability, within which each knows that he has always acted toward the other as ordered by recognizing their value qua human being. Second, the feeling of unity specific to the relationship of mutual recognition is preserved by the fact that my behavior is ideally justifiable to others even when they unreasonably contest my action’s moral permissibility.

Thus living morally is an integral part of the good life, at least for those who are truly concerned with the legitimate demands others may make on them. It is hard to see, in comparison, how a concern – as imputed by consequentialists – with the impersonal quality of a state of affairs could significantly contribute to our happiness. Unless, that is, we view it as satisfying a desire about how we would like the world to be, but that happiness would be linked to the satisfaction of a subjective desire about the state of the world, rather than to the relationship of mutual recognition or to satisfying the needs of others. For the contractualist, the happiness I experience on fulfilling my moral duties is on a par with my concern with the interests of others.

Moral contractualism in the social contract tradition

It is to the extent that Scanlon’s moral theory conceives of what we owe each other in terms of interpersonal justifiability that it is contractualist: an action is morally right if it can be justified to others as permitted by a principle that could be reasonably agreed upon by those concerned. For example, an individual who arbitrarily neglects the legitimate demand I make of him by asking him to keep a promise he has made to me under adequate conditions, is in fact refusing to respect a principle21 to which he would himself consent – or could not contest – were he to adopt the ideal viewpoint of a person who would be motivated to interact with others along mutually justifiable lines. Although Scanlon uses the term “contractualism” to connect his moral theory to the contract tradition – or explicitly to Rousseau22 , at least – the object of his contractualism – the validity of our moral judgements about what we may demand of others – stands out with regard to the questions that expressly political theories of the social contract seek to answer. Unlike Hobbes, he is not enquiring into the foundations of the political authority of the state and our obligations towards the sovereign. Unlike Locke, he is not concerned with the incompatibility between an absolute monarchy and the state of natural equality between men. Unlike Rousseau, he is not arguing for the legitimacy of republican government, alone capable of guaranteeing, first, to pacify social relations and keep war at bay, and, second, to safeguard individual liberty. And, unlike Rawls, his primary concern is not with the principles of justice to be respected by the main institutions of our democracies.  

In determining which moral principles apply in a given situation, Scanlon, unlike Hobbes’s successors23 , refuses to analyze these principles as those which could be agreed upon by mutually disinterested individuals seeking to maximize their utility. For were he to do so, this would lead him to depict morality as a compromise between conflicting interests it would nevertheless be in each individual’s best interest to accept. Instead, Scanlon aligns himself with a tradition stretching back to Rousseau, in that he suggests moral principles are valid provided they may be reasonably agreed upon by individuals moved by a common desire, namely they are all seeking to act solely in a way that could be justified to others. That is why his contractualism insists on the fact that the agreement on moral principles must be reasonable rather than rational24 . Being reasonable is a matter of being disposed to take into account in non-instrumental manner the demands others make on me, rather than seeking to satisfy my own interest as effectively as possible, including potentially to the detriment of the interests of others. If I recognize having good reason to conduct my life in such a way that my behavior may always be justifiable to others, I attach importance to responding to their legitimate demands, which are thus thought of not as obstacles to the full satisfaction of my interests, but rather as one of the parameters I am disposed to factor into all practical deliberation. It is not so much a matter of downplaying the pursuit of my personal interests, as being guided by them only to the exact extent that their fulfilment does not have the effect of imposing unreasonable demands on others.  

The Conversation by Henri Matisse

La Conversation by Henri Matisse.

Rawls’ theory of justice as fairness25 is also part of this Rousseauist tradition, in that it holds as justified principles of justice that are likely to be the object of a hypothetical reasonable agreement between citizens (or at least their political representatives). But unlike Rawls – who briefly envisages the possibility of expanding his theory of justice as fairness to the field of interpersonal morality (in which case it would become a theory of rightness as fairness26 ) – Scanlon refuses to have recourse to the veil of ignorance in modelling the choice of principles for his contractualist theory27 . Rawls uses this method to prevent the choice of principles of justice being biased by morally arbitrary factors such as class, gender, or religion. It would not be reasonable of me to seek, for example, to grant myself an unfair advantage in sharing out the fruits of social cooperation by choosing principles of justice that tend to favor the interests of white men, simply because I happen not to be a black woman. The choice of principles of justice behind the veil of ignorance thus corresponds to the choice of mutually disinterested individuals seeking to maximize their utility in a state of uncertainty as to which social group they will belong to once the veil is removed. The uncertainty thus imposed on the contracting parties in the Rawlsian “original position” determines the conditions of fairness under which each is meant to rationally choose the principles on which they could all reasonably agree. In other words, Rawls’s theory describes the choice of rational individuals wishing to maximize their utility, and assumed to be indifferent to the fate of others (since they are “mutually disinterested”). It is thus the external restrictions the theorist imposes on their reasoning, by incorporating them into the choosing conditions, that reduce the range of considerations they may call on in choosing one principle over another. Since I may be in the position of the worst off (I have no information about my social status), it would not be rational to choose a principle for sharing out common resources which did not stipulate that the fate of the worse off should be improved by all tolerated inequality28 .

In contrast, the reasoning in Scanlon’s theory that enables us to alight on principles that cannot be reasonably rejected is devised as that which a person who is seriously disposed to act justifiably to others would adopt of their own accord, and which, as such, would attach importance to satisfying others’ needs. Since the moral contract is not between mutually disinterested parties, there is no need to be deprived of all information about our social position so as to conceal certain of our interests. Reasoning as a moral agent is not here a matter of seeking to maximize my utility under the constraint of reasonableness, to employ the language of rational choice theory beloved of economists. It is, on the contrary, a matter of being reasonable by excluding from my practical deliberation considerations that do not accord with the fact that I take myself to have good reason to want to relate to others in a fashion based on mutual recognition. For Scanlon the question is not, therefore, to know which external constraints need to be brought to bear on the choice of a rational maximizing individual in order for the principles validated by the choice procedure to be the object of a hypothetical reasonable agreement. Instead, it is a matter of knowing in what way an individual assumed to be predisposed to the principles of mutual justifiability should reason in order to arrive at knowledge of such principles. We shall now turn to this question.

The contractualist test of reasonable non-rejectability

Justifying an action consists in providing others with reasons that count in favor of this action and that it would not be reasonable for them to set aside, while also taking into account reasons others may present to me from their viewpoint in contesting the validity of the maxim for action I envisage following. In Scanlon’s theory, an action is morally wrong if and only if any set of principles authorizing it, under the present circumstances or in any similar situation, could be reasonably rejected by people moved by regulating their behavior on general principles intended as the basis for an informed, unforced agreement between individuals sharing this motivation29 . Contractualist theory then identifies the kind of considerations we need to take into account, and the standards of reasoning which need to be followed, in formulating principles that are not reasonably rejectable. To know if our moral judgements are valid, we need to see to what extent the actions they authorize, recommend, or prohibit comply with such principles.

Scene of the film The Godfather by Francis Ford Coppola.

For an action to be justifiable, the principle authorizing it should be such that nobody could reasonably reject it. Hence the arguments we need to examine take the form of objections to the moral validity of a rival principle to the one we are seeking to defend. In answer to the question why we need to think of moral justification in terms of a double negative, Scanlon answers that, while it is perhaps not unreasonable for me, given my inclinations, to accept a principle demanding that I sacrifice certain of my legitimate interests for the benefit of others, it may nevertheless be perfectly wrong of the latter to take advantage of this predisposition of mine30 . That means that the validity of our moral judgements does not depend wholly on our predisposition to be reasonable in the demands we make of others. While it is certainly not always unreasonable to be “too kind”, it is not morally right to take advantage of any such penchant shown by others.

The theory set out in What We Owe to Each Other stipulates that, in our practical deliberation, we should only take into account objections (to the validity of moral principles) that comply with the three following restrictions: to be acceptable, an objection must be personal, individual, and generic31 . This means it must be such that it could be made by an individual on their own behalf, and, further, that it should refer to how the interests of any person who found themselves in their position would be affected by the action under appraisal. Since contractualism is a theory of interpersonal morality, it excludes from practical deliberation all impersonal demands referring to something other than the human interests at stake in the situation under examination. Because it is the moral value of other individuals that is to be recognized, it debars all collective demands, for what matters are the interests individuals may defend on their own behalf, not those of a group of people. And it disallows all non-generic demands – that is to say, demands specific to a particular individual involved in the situation in question, as opposed to the interests at stake of any person who might one day find themselves in the same situation, for we are seeking principles that could be true in a generality of cases. Being reasonable thus means taking into account all the personal individual generic objections that others may make to the permissibility of my action.

Once we have identified the objections that each may make on their own behalf against the principle favored by the other party, the principle which will pass the test of reasonable non-rejectability is that which best resists the strongest of these various objections. If, for example, Peter and James have both had an accident, but Peter is more seriously injured than James, each of them have personal individual generic reason to demand they be treated as quickly as possible. But Peter’s state of health is more alarming than that of James, so the principle authorizing the rescuers to look after James first, to the detriment of Peter, may be reasonably rejected by the latter. Whereas James cannot reasonably reject a principle granting priority to the person in the most urgent situation. The considerations that are morally relevant pertain to how the various principles would affect the interests of the individuals concerned. Thus it is objections relating to personal interests that need to be taken into account, not moral beliefs in the validity of any given behavior, otherwise the contractualist test of reasonable non-rejectability would be circular, for it would allow into the deliberation the very type of judgement we are seeking to test.

The contractualist hopes that these restrictions and the comparison between the relative strength of the objections to rival principles can lead to the formulation of valid moral judgements, which we could furthermore see we have good reason to be concerned about, assuming we buy into morality. If this is not a vain hope, contractualism will have managed to avoid the pitfalls of utilitarianism that led Scanlon to devise his own moral theory. Let us now see how this theory may guide our action in the situations presented in the first section, namely the broadcast of the football match, and the choice between two islands.

The problem of aggregation: is contractualism really non-consequentialist?

Let us first look at the case of Jones, who, the reader will remember, has been electrocuted in the transmitter room of a live sporting event. Objections to the moral principle requiring that we come to his assistance even if it means interrupting the broadcast must not be collective in nature, that is to say put forward in the name of the interests of the group formed by the spectators, arguing for example that the sum of their preferences outweighs Jones’s demand. Therefore the demands of each spectator must be considered in isolation. What each of them demands is that the broadcast of the match continue without interruption, not even for fifteen minutes, in order to satisfy their interest in watching it. In comparison to the hour-long suffering that Jones would be spared, the interest the TV spectators have at stake is derisory. None may thus reasonably demand on their own behalf that Jones be made to suffer a further hour of electrocution. In a case such as this, the counterintuitive conclusions of aggregate reasoning adopted by consequentialists are very easily avoided thanks to the restrictions described earlier.

Video of a Spanish football player stoping to save a bird during the World Cup 2018.

However, we may consider that utilitarians, without wholly renouncing consequentialism, may seek to avoid inflicting the suffering that Jones can be spared only at the cost of frustrating the (fairly trivial) preferences of each TV spectator. For in effect, the harm each is seeking to avoid – an hour of electrocution for Jones, a brief interruption of the match for the supporters watching on TV – are not comparable. Rather than a problem of aggregation, we are here dealing with a situation involving what Frances Kamm calls “irrelevant utilities32 ”. That is to say that certain adverse effects, though not strictly equivalent, are relevant to each other in that – unlike in the case of Jones who we should assist no matter the number of TV spectators whose desires may be frustrated – it is sometimes important to take into account the number of people who would suffer a certain harm, even though this be slightly less substantial than the harm we would do to an isolated individual were we to decide to help the former rather than the latter. Such is no doubt the case in a situation in which we envisage protecting several people from a major disability (such as general paralysis) at the cost of letting another person die33 , but certainly not in the situation envisaged here. In one case the utilities are relevant to one another, but in the other they are not.

A consequentialist might seize on the principle of irrelevant utilities as invoked by Kamm and Scanlon to treat Jones’s case and other similar ones, and to adopt it as a constraint framing aggregate reasoning, stipulating for example that demands may only be aggregated if they are equal, or at least relevant to the one demand they are supposed to outweigh once aggregated. However, that would consist in calling the principle of utility itself into question. Respecting it would not produce the best consequences precisely because this principle does not bother itself with the distribution of goods and harms among individuals: provided that the sum total of good produced in a state of affairs is greater than the sum total of good produced in a more equal situation, utilitarianism judges that the first state of affairs must be preferred over the second34 . So while certain consequentialists may develop a theory that, in ranking the various states of affairs, grants importance to distributive considerations, this option is not available to utilitarians, who thus recommend that the match continue to be broadcast35 . By admitting solely demands that others may make on their own behalf, and not the impersonal value of states of affairs, Scanlon’s contractualism avoids these difficulties.  

The relation of prototypical relevance is that of strictly equivalent harm. For Scanlon, when we can spare several individuals equal harm, then the number of people should be taken into account. The question is to ascertain whether that does not imply presupposing at some stage in our reasoning a consequentialist judgement, such as, for example, the idea that a state of affairs in which the greatest number of people is spared would be better than another. To check this, let us go back to the example of the yacht and the two islands: given that you cannot help everybody, should you help the two people, or the single individual?

To defend the principle requiring that, in such a situation, you should save the greatest number of individuals, Scanlon argues numbers should work as tie-breakers36 . Here is the argument. On the first island there is an individual making a demand of you (asking you to assist him) that you cannot reasonably ignore. In the absence of any sufficient justification, you are morally obliged to rescue him. On the second island, however, is another person making the same demand of you: that constitutes a sufficient justification which diminishes what you owe to the person who made the first demand of you. For the first person would be unreasonable to defend a principal demanding that you save them rather than the other person, since that would involve not taking into account the equivalent demand of the second person. As things stand at this stage, your moral obligation is to help one or other of the two people indifferently. You are free to draw lots to decide who to rescue, but each may reasonably reject a principal allowing you to carry on your way (you may have spotted some dolphins on the horizon…) without assisting either. But the thing is, on one of the two islands there is a supplementary person. Drawing lots to decide which group to rescue is not acceptable37 , since that would amount to acting as if this other person were not present, and thus not taking their demand on you into account. If you have to save the larger group, it is because this additional person may, on their own behalf, reasonably reject a principle of drawing lots as being indifferent to their distress.

Caravaggio - Isaac's Sacrifice

Caravaggio - Isaac's Sacrifice.

Various interpretations of this line of reasoning have been put forward in the literature. Some doubt that we may really conclude that the largest number of people should be saved without thereby having to combine the demands of several individuals for them to collectively outweigh the demands of the individual person38 . Others reckon this line of reasoning can do without consequentialist presuppositions only when one of the two groups has no more than one individual39 – if one additional person is to have the power to break the tie stipulating that we should rescue indifferently either one or the other of the two groups of at least two people, it is because we have previously aggregated the demands of the people in each of these two groups so as to establish it is even possible to break a tie. Whatever resources contractualism has for answering these criticisms, it is even more doubtful that non-aggregative reasoning could arrive at the conclusion that we should, say, save ten people threatened with severe handicap rather than prevent the death of another individual (in the event that all cannot be saved). Thus even if contractualism is able to defend in non-consequentialist terms moral judgements matching our intuitions in the case of Jones and that of the two islands, we may doubt its capacity to handle situations involving a choice between saving, on the one hand, several individuals from major harm, and, on the other, sparing one other person significantly more substantial harm, at least when we are not dealing with irrelevant utilities.

Maybe this is a price that the contractualist is prepared to pay, for contractualist theory avoids the main failings of utilitarianism, and is more convincing than consequentialism on the issue of the practical significance of morality. After all, we do not expect a moral theory to be able to handle all possible cases we may encounter, even less all those dreamt up by philosophers. What we expect of a moral theory is that it clarifies the terms we should use when deliberating about how we should interact with others. From this perspective, contractualism is and will continue to be an invaluable contribution to the inextricable issues of moral philosophy. In addition, the limitations just mentioned are invitations to help refine a moral theory to which this brief overview cannot do full justice.

Unfold notes and references
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1

Thomas M. Scanlon, “Contractualism and Utilitarianism”, in A. Sen, B. Williams (eds.), Utilitarianism and Beyond, Cambridge, Cambridge University Press, 1982, p. 103-128. Reissued as T. M. Scanlon, “Contractualism and Utilitarianism”, in T. M. Scanlon, The Difficulty of Tolerance. Essays in Political Philosophy, Cambridge (MA), Cambridge University Press, 2003, p. 125-126.

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2

Thomas M. Scanlon, “Contractualism and Utilitarianism”, in T. M. Scanlon, The Difficulty of Tolerance. Essays in Political Philosophy, Cambridge (MA), Cambridge University Press, 2003, p. 125-126.

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3

Thomas M. Scanlon, What We Owe to Each Other, Cambridge (MA), Harvard University Press, 1998.

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4

Thomas M. Scanlon, What We Owe to Each Other, Cambridge (MA), Harvard University Press, 1998, p. 171-177.

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5

The question of the practical significance of morals (or moral motivation) and that of justification are discussed in detail in chapters 4 and 5 of What We Owe to Each Other.

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6

See in particular the doubts expressed by Philippa Foot in “Utilitarianism and the Virtues”, in S. Scheffler (ed.), Consequentialism and its Critics, Oxford, Oxford University Press, 1988, p. 224-242.

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7

For an illuminating distinction between "political" utilitarianism based on satisfying the needs of individuals, and the consequentialist utilitarianism of philosophers concerned with promoting values intrinsic to states of things (aggregate well-being), see Véronique Munoz-Dardé, “Equality and Division: Values in Principle”, Proceedings of the Aristotelian Society, Supplementary Volumes, vol. 79, 2005, p. 255-284.

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8

Thomas M. Scanlon, What We Owe to Each Other, Cambridge (MA), Harvard University Press, 1998, p. 235.

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9

The term "rational life" is intended to be broader than that of "human life", for nonhuman rational creatures may exist, and should thus be taken into account in moral contractualism: it is "the life of any rational creature”, or "the fact that rational creatures exist", or "the incarnation of rationality".

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10

Thomas M. Scanlon, What We Owe to Each Other, Cambridge (MA), Harvard University Press, 1998, p. 103-107.

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11

Thomas M. Scanlon, What We Owe to Each Other, Cambridge (MA), Harvard University Press, 1998, p. 87-103.

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12

Thomas M. Scanlon, What We Owe to Each Other, Cambridge (MA), Harvard University Press, 1998, p. 17.

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13

Philippa Foot, “Rationality and Virtue”, in H. Pauer-Studer (ed.), Norms, Values, and Society, Dordrecht, Kluwer, 1994, pp. 205-16, p. 210. Mentioned in Rahul Kumar, “Reasonable Reasons in Contractualist Moral Argument”, Ethics, vol. 114 no. 1, 2003, p. 6-37, p. 10.

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14

Thomas M. Scanlon, Alex Voorhoeve, “The Kingdom of Ends on the Cheap”, in Alex Voorhoeve (ed.), Conversations on Ethics, Oxford, Oxford University Press, 2009, p. 178-192, p. 185.

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15

On this topic see Axel Honneth, “Recognition as Ideology”, in B. Van den Brink, D. Owen, Recognition and Power: Axel Honneth and the Tradition of Critical Social Theory, Cambridge, Cambridge University Press, 2007, p. 323-347.

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16

Thomas M. Scanlon, What We Owe to Each Other, Cambridge (MA), Harvard University Press, 1998, n. 18 p. 395.

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17

Thomas M. Scanlon, What We Owe to Each Other, Cambridge (MA), Harvard University Press, 1998, p. 147-158.

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18

This erroneous interpretation is put forward by Stephan Darwall in “Contractualism, Root and Branch: A Review Essay”, Philosophy & Public Affairs, vol. 34, no. 2, 2006, p. 193-214, and in The Second-Person Standpoint: Morality, Respect, and Accountability, Cambridge (MA), Harvard University Press, 2006, chapter 12.

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19

Thomas M. Scanlon, What We Owe to Each Other, Cambridge (MA), Harvard University Press, 1998, p. 154.

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20

Thomas M. Scanlon, What We Owe to Each Other, Cambridge (MA), Harvard University Press, 1998, p. 162.

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21

Stipulating for example that the promises with which we bind ourselves in adequate conditions ought to be respected unless we have a particular justification. For the justification of such a principle of keeping our promises, see T. M. Scanlon, What We Owe to Each Other, Cambridge (MA), Harvard University Press, 1998, p. 295-309.

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22

Thomas M. Scanlon, What We Owe to Each Other, Cambridge (MA), Harvard University Press, 1998, p. 5.

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23

For instance, the argument put forward by David Gauthier in Morals by Agreement, Oxford, Oxford University Press, 1986, in which morality is thought of as a means of making up for market deficiencies.

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24

Thomas M. Scanlon, What We Owe to Each Other, Cambridge (MA), Harvard University Press, 1998, p. 191-197.

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25

John Rawls, A Theory of Justice, Harvard (MA), Harvard University Press, 1971.

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26

John Rawls, A Theory of Justice, Harvard (MA), Harvard University Press, 1971, p. 17, 111.

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27

Thomas M. Scanlon, “Contractualism and Utilitarianism”, in T. M. Scanlon, The Difficulty of Tolerance. Essays in Political Philosophy, Cambridge (MA), Cambridge University Press, 2003, p. 125-126.

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28

This is Rawls’ famous "difference principle".

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29

Scanlon, What We Owe to Each Other, Cambridge (MA), Harvard University Press, 1998, p. 4, 106, 153.

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30

On this point, see Thomas M. Scanlon, Alex Voorhoeve, “The Kingdom of Ends on the Cheap”, in Alex Voorhoeve (ed.), Conversations on Ethics, Oxford, Oxford University Press, 2009, p. 178-192, p. 181.

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31

Thomas M. Scanlon, What We Owe to Each Other, Cambridge (MA), Harvard University Press, 1998, chapter 5.

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32

Frances Kamm, Morality, Mortality, Oxford, Oxford University Press, 1993, p. 146.

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33

On the relationship of relevance between different instances of harm, see T. M. Scanlon, What We Owe to Each Other, Cambridge (MA), Harvard University Press, 1998, p. 239-240.

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34

On this point, see John Rawls, A Theory of Justice, Harvard (MA), Belknap, 1971, p. 24-27.

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35

It should be noted that Scanlon initially defended this type of position granting importance to considerations of distribution. See Thomas M. Scanlon, “Rights, goals, and fairness”, in T. M. Scanlon, The Difficulty of Tolerance. Essays in Political Philosophy, Cambridge (MA), Cambridge University Press, 2003, p. 26-41.

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36

Thomas M. Scanlon, What We Owe to Each Other, Cambridge (MA), Havard University Press, 1998, p. 240.

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37

Contrary to what John M. Taurek argues in “Should the Numbers Count?”, Philosophy & Public Affairs, vol. 6, no. 4, 1977, p. 293-316.

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38

See especially Michael Otsuka, “Scanlon and the claims of the many versus the one”, Analysis, vol. 60, no. 3, 2000, p. 288-293, and the insightful reply by Rahul Kumar, “Contractualism on saving the many”, Analysis, vol 61, no. 2, 2001, p. 165-170.

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39

Véronique Munoz-Dardé, “The Distribution of Numbers and the Comprehensiveness of Reasons”, Proceedings of the Aristotelian Society, vol. 105, no. 2, 2005.

Stephan Darwall, “Contractualism, Root and Branch: A Review Essay”, Philosophy & Public Affairs, vol. 34, n° 2, 2006, p. 193-214.

Stephan Darwall, The Second-Person Standpoint: Morality, Respect, and Accountability, Cambridge (MA), Harvard University Press, 2006.

Philippa Foot, “Utilitarianism and the Virtues”, in S. Scheffler (ed.), Consequentialism and its Critis, Oxford, Oxford University Press, 1988, p. 224-242.

Philippa Foot, “Rationality and Virtue”, in H. Pauer-Studer (ed.), Norms, Values, and Society, Dordrecht, Kluwer, 1994, p. 205-16.

David Gauthier, Morals by Agreement, Oxford, Oxford University Press, 1986.

Axel Honneth, “Recognition as Ideology”, in B. Van den Brink, D. Owen, Recognition and Power: Axel Honneth and the Tradition of Critical Social Theory, Cambridge, Cambridge University Press, 2007, p. 323-347.

Frances Kamm, Morality, Mortality, Oxford, Oxford University Press, 1993.

Rahul Kumar, “Contractualism on saving the many”, Analysis, vol. 61, n° 2, 2001, p. 165-170.

Rahul Kumar, “Reasonable Reasons in Contractualist Moral Argument”, Ethics, vol. 114, n° 1, 2003, p. 6-37.

Véronique Munoz-Dardé, “The Distribution of Numbers and the Comprehensiveness of Reasons”, Proceedings of the Aristotelian Society, vol. 105, n° 2, 2005.

Véronique Munoz-Dardé, “Equality and Division: Values in PrincipleProceedings of the Aristotelian Society, Supplementary Volumes, vol. 79, 2005, p. 255-284.

Michael Otsuka, “Scanlon and the claims of the many versus the one”, Analysis, vol. 60, n° 3, 2000, p. 288-293.

John Rawls, A Theory of Justice, Harvard (MA), Harvard University Press, 1971.

Thomas M. Scanlon, “Rawls’ Theory of Justice”, University of Pennsylvania Law Review, vol. 121, 1973, p. 1020-1069.

Thomas M. Scanlon, “Contractualism and Utilitarianism”, in A. Sen, B. Williams (eds.), Utilitarianism and Beyond, Cambridge, Cambridge University Press, 1982, p. 103-128.

Thomas M. Scanlon, What We Owe to Each Other, Cambridge (MA), Havard University Press, 1998.

Thomas M. Scanlon, Alex Voorhoeve, “The Kingdom of Ends on the Cheap”, in A. Voorhoeve (ed.), Conversations on Ethics, Oxford, Oxford University Press, 2009, p. 178-192.

Thomas M. Scanlon, “Rights, Goals and Fairness”, in T. M. Scanlon, The Difficulty of Tolerance. Essays in Political Philosophy, Cambridge, Cambridge University Press, 2003, p. 26-41.

Thomas M. Scanlon, “Contractualism and Utilitarianism”, in T. M. Scanlon, The Difficulty of Tolerance. Essays in Political Philosophy, Cambridge (MA), Cambridge University Press, 2003, p. 125-126.

John M. Taurek, “Should the Numbers Count ?”, Philosophy & Public Affairs, vol. 6, n° 4, 1977, p. 293-316.

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