Abstract
Several authors have argued that contractualism faces a dilemma when it comes to justifying risks generated by socially valuable activities. At the heart of the matter is the question of whether contractualists should adopt an ex post or an ex ante perspective when assessing whether an action or policy is justifiable to each person. In this paper I argue for the modest conclusion that ex post contractualism is a live option notwithstanding recent criticisms raised by proponents of the ex ante perspective. I then consider how an ex post contractualist can best respond to the problem that it seems to prohibit a range of intuitively permissible and socially valuable activities.
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Notes
Ex post contractualists will not, I suspect, share Frick’s intuition about the inoculation case in so far as the inoculations do not prevent deaths but nonfatal diseases. Their claim is that it is morally significant that someone is going to be killed for sure. Thus, my aim is not to show that ex post contractualists can maintain that inoculation is not morally on par with a situation in which a known individual is sacrificed. I will however consider how ex post contractualists can avoid being committed to e.g. banning aviation.
It is important to note that Mass Vaccination (Unknown Victims) is relevantly different from a situation in which we do not know in advance whether anyone will be harmed and someone does get harmed. In that case the harm-based complaint of the unknown unlucky person cannot be “augmentet” by pointing out that we know that someone will end up being killed for the simple reason that we do not know this. Thus Reibetanz (1998, 303-304) suggests that in this sort of situation the harm-based complaint should be discounted by its probability along the lines of expected utility theory.
Several authors (e.g. Ashford 2003; Fried 2012; James 2012, and Kumar 2015) have pointed out that ex post contractualism does not permit a wide range of intuitively morally permissible and socially productive activities from aviation to bridge building. Scanlon is aware that ex post contractualism faces the problem of being “too confining.” I will return to this problem in Section 6.
Throughout the paper I will follow Frick and consider the perspective of Clara in terms of expected utility. However, as noted by an anonymous referee Frick’s line of argument does not seem to depend on an interpretation of prudence in terms of expected utility.
This does not entail that an individual such as Clara may not have a full harm-based complaint if she is actually killed. This only follows if we assume that her harm-based complaint is discounted by the ex ante probability that she will actually suffer the harm. However, this is what is up for discussion. I come back to this point in Section 5.
In this paper I focus on two premises of Frick’s rejection of ex post contractualism. However, let me note a couple of other problems that I think are not adequately dealt with by Frick. First, if we accept Frick’s account, then policies that are much riskier than we currently allow may be permissible simply because they do not give any individual a justified complaint from the perspective of individual expected utility. Second, Frick relies on the assumption that there is a sense in which we can compare the expected utility of a 1/1000 chance of death with outcomes such as becoming paralysed in one leg. While there might be a basis for doing so, Frick does not give any hint about how this is possible.
Strictly speaking the statistical independence of each single-person gamble entails that it is not the case that if a child does not get killed some other child will be. Hence Frick’s rhetorical question seems to rely on a false assumption. I owe this point to Andreas Christiansen.
This point echoes Riebetanz’ formulation of the Argument from Certain Loss quoted in section 2.
See Otsuka 2015, 84 ff. It is unclear whether anyone has ever put forward this challenge. Otsuka does not reference anyone. Also, for ease of exposition I will from now on discuss Otsuka’s view in relation to Frick’s vaccination cases.
I will use “(i)-(iii)” to refer to the one million counterfactuals that would make up the full list.
One might object that it is extremely plausible to suppose that we do the right thing, when we give Clara Vaccine 2 in Individual Vaccination. I think that recent discussion of prioritarianism reveals that the premise is not as plausible as Frick seems to assume (see e.g. O'Neill 2012, 334–338; Parfit 2012, 412; Porter 2012, 351–353). To present an in-depth positive argument in favour of the alternative claim and provide a detailed account of ex post contractualism in light of the distinction between wrongness of decisions and wrongness of actions is the topic of another paper. Here my aim is simply to show that Frick neglects an important possible reply to his argument on behalf of the ex post view.
While this sounds very much like Otsuka’s account, it is different. On Otsuka’s account the probability that someone will be killed is what establishes the wrongness of an action. On this account the fact that someone will be killed establishes the wrongness of the action. Knowing the probability (1/1) that someone will in fact be killed is why we should decide not to give Vaccine 2. It is not what makes the action of giving Vaccine 2 wrong.
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Acknowledgements
I am grateful to the members of the Research Seminar in Practical Philosophy at the University of Copenhagen for valuable discussion of the initial draft of this paper. In particular I want to thank Andreas Christiansen for his valuable comments on a written draft. Work for this paper was funded by the University of Copenhagen’s Excellence Programme.
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Holm, S. The Luckless and the Doomed. Contractualism on Justified Risk-Imposition. Ethic Theory Moral Prac 21, 231–244 (2018). https://doi.org/10.1007/s10677-018-9882-x
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DOI: https://doi.org/10.1007/s10677-018-9882-x