Workshop: Issues in Contemporary Contractualism

Topics

Contract theorists generally hold that rules and institutions must be capable of justification to the individuals whose lives they affect, but disagree profoundly on what the sought justification consists in. Contract theorists in the Hobbesian tradition have usually started out with the idea that to justify rules is to show that their general acceptance would be in everyone’s true self-interest. The genuinely normative force of rules would thus arise from the hypothetical fact that, were people sufficiently enlightened about what is in their self-interest, they would consent to having the rule imposed on everyone. This proposal has always been under pressure from various directions. An old but extant problem is that people may often lack sufficient self-interested reason to comply with general rules they have reason to accept. Furthermore, people’s interests can seem to conflict so pervasively that it is hard to see how they could, even in a hypothetical choice situation, possibly come to accept one common set of rules. And there is also the worry that the outcomes of collective hypothetical choice will be deeply unfair as long as they reflect real-world inequalities among the contractors in terms of both power and knowledge.

Contemporary contractarians have responded to these problems by introducing additional constraints into the hypothetical choice situations of their respective theories, the most influential such theory, David Gauthier’s (1986), proposing that justified rules are rational bargaining solutions in hypothetical deliberations.

Meanwhile, a very different response has famously been given by John Rawls (1971/1999). If the hypothetical choice situation were tailored so as to be fair, Rawls held, the agreed-on rules could count as just, hence justified. In order to ensure that the choice situation would be fair, Rawls famously proposed to conceive of people as deliberating under a ‘veil of ignorance’ that would conceal to everyone their own future position within the ‘basic structure’ under deliberation, thus rendering it rational for the subjects in the ‘original position’ to worry about the fate of whoever will be worst-off. The conception’s invocation of a ‘veil of ignorance’ would in turn be justified because its consequences would be in a wide reflective equilibrium with people’s considered normative intuitions. What justifies rules and institutions according to Rawls’ theory is thus in the last instance no longer people’s enlightened self-interest, but a genuinely moral concern with justice of which the veil of ignorance is but one (albeit centrally important) reflection.

As a result of Rawls’ work, it has become apparent that contemporary contract theories are thus ultimately driven by highly divergent underlying motives—which observation has given rise to the now widely accepted distinction between Hobbesian-inspired ‘contractarian’ and Kantian-inspired ‘contractualist’ theories. While Hobbesian contractualists have often aimed to offer naturalist accounts of practical normativity, to ground morality in rationality and/or to refute the radical amoralist on her own terms, ‘Kantian’ contractualists in the wake of Rawls typically see these aims as over-ambitious to begin with. Instead, Kantian contractualists defend that there is normative reason to be moral beyond mere self-interest.

This Kantian motivation and its significance have become fully explicit in the work of Thomas M. Scanlon, around which much of recent contractualist discussion has revolved. Scanlon has sought to elucidate, within the domain of normative reasons, how specific moral reasons can be explained in terms of 1) a general and fundamentally moral reason to live in relations of mutual recognition (the ‘aim’ of contractualism), and 2) individuals’ personal reasons to reject a rule as a basis for this kind of life; where the latter reasons include, but are in no way exhausted by, prudential reasons. According to Scanlon, rules are justified only if they form part of a set of rules that no one who shares the contractualist aim could reasonably reject. His theory has thus shifted attention from the formal features of hypothetical choice situations back toward the actual normative reasons that individuals have to prefer life under one set of rules over life under another.

With the workshop “Issues in Contemporary Contractualism”, we seek to promote the further development of Kantian contractualist theory through thorough discussion of recent developments in the field. To this end, the event will feature talks covering the following interacting topics and questions.

1) Recent Revisions: Scanlon has recently (2021) revised his classic (1998) exposition of contractualism in several important respects. Some of these revisions concern the very core of his theory—especially the question of what it means to ‘reasonably’ reject a rule, or principle. Has Scanlon’s theory really been in need of revision? If so, do the revisions solve the problems they are meant to solve? Do they also give rise to new problems?

2) Contractualist Foundations of Morality: A growing number of philosophers have come to think that what ultimately grounds the importance of morality are relations of mutual recognition. Should morality really be understood as thoroughly relational? If so, as how extensive should the notion of a moral relationship, or ‘nexus’, be construed? Do present people stand in a relationship of mutual recognition with future people, for example? If not, does this pose a problem for contractualist theory?

3) Concrete Challenges for Contractualism: Contractualist theories have long been under suspicion of having counter-intuitive consequences. How should contractualists respond? Can varieties of contractualism be identified that escape these problems?

(a) Interpersonal Aggregation: When people’s lives are threatened, it often seems obligatory to save as many people as possible; but Scanlon’s moral contractualism has come under discussion for its apparent failure to explain why. Should contractualists acknowledge interpersonally aggregative forms of moral reasoning after all? If so, how can contractualism consistently remain committed to its relational and individualistic claims?

(b) Probabilities: Cases of social risk imposition raise the question of how to reason with probabilities in the contractualist framework. Should contractualists sometimes take the ex ante point of view (as Scanlon has more recently been suggesting), or should they judge ‘risky’ policies and rules from an ex post perspective? Is this distinction exhaustive?

(c) Future People: Contractualists have remained reluctant to weigh in on the question of obligations with regard to future people, which arise mainly, but not exclusively, in the context of environmental and climate ethics. Do we owe something to future generations, and if so, what? What is the nature of the respective obligations, and what, if anything, can contractualism contribute to their elucidation? Are Kantian contractualists well-equipped for this task?

(d) Diversity and Plurality: In his “Political Liberalism” (1993), Rawls famously sought to address the theoretical challenges arising from the fact that socially diverse societies are marked by a reasonable pluralism of ethical and political doctrines. What, if anything, enables Kantian contractualism to respond to these challenges?

4) Contractualism Meets Contractarianism: Are fruitful interactions between contemporary contractualists and contemporary contractarians possible despite the divergent history of contract theory? In addressing said issues, is there something that contractualists could learn from contemporary contractarians? Are the two sorts of account mutually exclusive, or should they rather be seen as complementary parts of a more encompassing account of normativity?

References

Gauthier, David P. 1986. Morals by Agreement. Oxford: Clarendon Press.

Rawls, John. 1971. A Theory of Justice. Cambridge, Mass: Belknap Press of Harvard University Press.

Rawls, John. 1993. Political Liberalism. New York: Columbia University Press.

Rawls, John. 1999. A Theory of Justice. Revised Edition. Cambridge (Mass.).

Scanlon, Thomas. 2021. “Contractualism and Justification.” In Reason, Justification, and Contractualism: Themes from Scanlon, ed. by M. Stepanians and M. Frauchiger, 17–44. Lauener Library of Analytical Philosophy 7. Boston: De Gruyter.

Scanlon, Thomas. 1998. What We Owe to Each Other. Cambridge / London: The Belknap Press of Harvard University Press.