Abstract
Scanlonian contractualism rejects the consequentialist assumptions about morality, value, and rationality in virtue of which deontological constraints appear paradoxical. And yet, Jeffrey Brand-Ballard and Robert Shaver have claimed that it cannot succeed in defending the said restrictions. That is because they see Scanlon’s tie-breaking argument as threatening to justify aggregation in paradox of deontology cases. I argue that this claim rests upon a failure to appreciate contractualism’s relational character. Once we take this feature of the view into account, it becomes clear that the tie-breaking argument is ruled out in cases where the only way for us to prevent several killings would be to commit one ourselves. To show this, I provide a contractualist explanation of why our duty not to harm persons is stricter than our duty to help them when they are threatened with harm. I conclude by distinguishing two ways in which this defense of deontological restrictions might bring contractualism objectionably close to absolutism.
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Notes
A note on terminology: I will use the expressions ‘agent-centered restrictions’, ‘deontological constraints’ and ‘deontological restrictions’ interchangeably.
As Hurley puts it (1997: 127), “[i]t is hard to see how even defenders of restrictions could take issue with the claim that the impersonal standpoint”, which, as he says, dictates the overall good, “is the appropriate moral standpoint for the evaluation of states of affairs”.
He argues against the teleological conception of value and the maximizing conception of rationality in Chapter 2 of What We Owe to Each Other, and lays out his contractualist account of the morality of right and wrong in the Chapters 4 and 5 that follow.
I have learned much from Kumar’s reply to Otsuka (see Kumar 2001) and from his later essay on the problem of aggregation (Kumar 2011). In Kumar’s phrasing, what we should do in rescue cases like Scenario 1 is ultimately settled by the “remaining undefeated claim” that can be placed on us (i.e., the claim of C).
This scenario is taken from Scheffler (1993: 84). In order to preserve the same pattern of outcomes as in Scenario 1 (either one or five people will die), I have replaced ‘harmed’ and ‘harming’ by ‘killed’ and ‘killing’. Given that we wonder whether deontological constraints are defensible from a contractualist point of view, I have changed the phrase ‘whom it would be just as undesirable from an impersonal standpoint to have harmed’—which reveals Scheffler’s endorsement of (at least some of) the three assumptions about morality, value, and rationality discussed earlier—into ‘who could just as much object to being killed by A2…A6 as P1 could object to A1 were he to kill him in less dramatic circumstances (that is, in a case where killing P1 would not be a way for A1 to prevent P2…P6 from being killed)’.
The practical implications of this divergence are significant in cases like Scanlon’s Transmitter Room example (Scanlon 1998: 235). Here we need to decide whether to interrupt, for about 15 mins, the live transmission of a World Cup match watched by many people, or to let Jones endure painful electrocutions for a further sixty minutes. Whereas consequentialists—or at least those among them (e.g., utilitarians) who attach no particular importance to how benefits and burdens are distributed in their rankings of states of affairs from best to worst—would recommend not to interrupt the transmission so as to produce the best overall outcome impersonally judged (i.e., the one in which the preferences of the many are satisfied); contraquentialists would forbid this course of action on the ground that it would lead to the outcome against which the strongest individual objection could be raised, namely that of Jones.
But, he adds, only if they presuppose that a harm that one inflicts directly (what he calls a “positive harm”) is worse than a harm that one merely fails to prevent (what he calls a “negative harm”), since he takes contractualism to be unable to account for the familiar deontological distinction between doing and allowing harm (2004: 280).
As Kumar has noted (2011: 150): “At the heart of deontological or non-consequentialist ethical theory, as Christine Korsgaard puts it, is the thought that the ‘subject matter of morality is not what we should bring about, but how we should relate to one another.’ In this respect, Scanlon’s contractualism is avowedly deontological, emphasizing the importance to the morally motivated of standing in a particular type of relationship to all others, one of mutual recognition”.
Kumar is here discussing his example with Allie, who will die if bitten by a rabid dog, and Geoff, whose only way of preventing this is to put himself between Allie and the dog and let the latter bite off his arm. The part in square brackets replaces the words “Geoff’s arm being forfeit”.
The following discussion of whether GH/BP is reasonably rejectable draws on some of Kumar’s powerful arguments showing that contractualism can generate agent-centred prerogatives (see Kumar 1999: 283–303). These arguments deserve to be discussed in more detail than I can do here.
I am grateful to Sam Scheffler for raising this point in discussion.
Cohen (2000: 20–26), for instance, has argued that he is not.
Providing a full defense of the doing versus allowing harm distinction would require addressing the additional question of whether the duty to refrain from killing the innocent incorporates a parallel exception, according to which whenever our only way of abstaining from killing the innocent is by committing suicide, we are permitted to kill the innocent. Answering this question, however, is not necessary for showing that contractualism can explain why, in paradox of deontology cases, deontological constraints may not be violated. Indeed, in Scenario 2, the question of whether A2…A6’s duty to refrain from killing P2…P6 incorporates the said exception is not directly relevant to what A1 should do. (I thank Sam Scheffler for raising this objection in discussion).
That is indeed the “equalization” strategy pioneered by Scheffler, and which restriction skeptics following his lead typically embrace. Brand-Ballard (2004: 281) helpfully describes this strategy thus: “In whatever way the restrictionist characterizes [A1’s action in killing P1], the skeptic tries to use that same characterization for what [A2…A6] threaten to do to [P2…P6] (modifying the hypothetical facts, as necessary). The interesting question is: for any given generic reason which [P1] has to reject the minimizing-violation-permitting rule [i.e., a rule that allows one to violate a restriction for the sake of minimizing the overall number of identical violations], can the skeptic equalize the hypothetical facts, and the description thereof, such that [any member of the group formed by P2…P6] has a generic reason, of at least equal weight, to reject the nonminimizing-restriction rule?” I have argued that it is only to the extent that Brand-Ballard and Shaver (incorrectly) ascribe to Scanlon the contraquentialist claim according to which our objections to one another’s actions consist in nothing more than our reasons to avoid the outcomes that would result from these actions, that they believe that, for contractualism, P1’s and P2’s demands on A1 can be equalized.
This will arguably depend on the size of the burden at stake, such that the greater the burden, the less permissible it will be for Lucy to impose it on Kat regardless of whether she would consent. That is, although Scanlon’s dismissal of the idea of a “threshold of reasonable rejection” implies that one might always be required to bear a certain burden, no matter how great, when this is necessary to prevent a greater burden from befalling someone else, others might not always be permitted to impose this burden on us, depending on how great it is. Indeed, when doing what is right requires us to sacrifice highly important interests (e.g., having both legs amputated), it might not be up to others to coerce us into doing it (even if in some cases they may rightly blame us if we do not). This, however, hardly threatens the argument of the above paragraphs. For, first, the greater the burden one would have to bear for the sake of preventing an even greater burden from befalling someone else, the closer these two burdens would be on a scale running from ‘not burdensome’ to ‘extremely burdensome’—for it is plausible to assume that, due to human constitution, this scale is upwardly limited. And, second, PSUH states that it might be permissible to violate a deontological restriction only when this is necessary to prevent a sufficiently more serious harm from befalling someone else.
This claim should be somewhat qualified: Tim Scanlon rightly noted in private correspondence that, although he is not convinced that dropping the individualist restriction would be the right way to go, the results of doing so would not necessarily be as catastrophic as I suggest, for there would still be the question of what greater number could justify the permissibility of violating deontological restrictions.
I am grateful to an anonymous reviewer for Philosophical Studies for inviting me to consider this possibility.
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Acknowledgements
I would like to thank audiences at the second Philosophy in Progress (PiP) Postgraduate Conference (University of Nottingham, January 2019), the third Reading Ethics and Political Philosophy (REAPP) Graduate and Early Career Conference (University of Reading, June 2019), the conference “Egalitarianism and Consequentialism: On the Philosophy of Samuel Scheffler” that Luc Foisneau and I co-organized at the School for Advanced Studies in the Social Sciences (EHESS, June 2019), and the tenth Braga Meetings on Ethics and Political Philosophy (University of Minho, June 2019). I am especially grateful to Sam Scheffler and to my PiP commentator, Chris Woodard, who provided challenging feedback and kindness in response to my presentations. For helpful comments on draft versions of this article, I am much indebted to Jeff Brand-Ballard, Rahul Kumar, Tim Scanlon, and Rob Shaver. This paper also benefited from questions from Luc Foisneau, Brad Hooker, Véronique Munoz-Dardé, and Victor Tadros, as well as from Adrian Morfee’s excellent proofreading services. Thanks are also due to an anonymous reviewer for Philosophical Studies for helpful suggestions.
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Mardellat, V. Contractualism and the paradox of deontology. Philos Stud 177, 3749–3774 (2020). https://doi.org/10.1007/s11098-019-01406-w
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DOI: https://doi.org/10.1007/s11098-019-01406-w