Contractualism
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Contractualism is used to refer to two different positions. First, it can be used to refer to moral theories based on social contract theory, that argue that what people ought to do is determined by contracts or agreements reached between those people. When used in this way, it is also known as 'contractarianism'. Second, the term was used by T. M. Scanlon to refer to a theory initially developed in his book What We Owe to Each Other. Scanlon's use of the term has been adopted by a significant number of philosophers who have continued to criticise and develop his original theory.[1] This article refers primarily to Scanlon's contractualism.
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[edit] Contractualism
Contractualism is an ethical theory developed from social contract theory. Social contract theory posits a hypothetical agreement between people, setting out the rules for our interactions and spelling out what is acceptable behaviour by mutual consent. Tim Scanlon, the most popular contemporary proponent of contractualism, has taken this idea and moulded it into an ethical theory based on the idea that:
An act is wrong if its performance under the circumstances would be disallowed by any set of principles for the general regulation of behaviour that no one could reasonably reject as a basis for informed, unforced general agreement.
This differs from other popular ethical theories such as utilitarianism, Kantian ethics and virtue ethics.
[edit] Does contractualism contain the desirable features required in an ethical theory?
One very important feature of an ethical theory is that it be capable of explaining and justifying our instinctive moral convictions. Without this, ethical theories could blandly claim whatever they desired, and would have bearing on reality. Ethics is meant to guide our behaviour in real life, not form pleasingly deductive structures. If an ethical theory does not accord with and give a rationale for our beliefs, it is not grounded in reality. If it does not justify our beliefs, we must question either them or the completeness of the theory. We must judge an ethical theory against our moral intuition, and check our moral intuition against the best moral theories: a reflective disequilibrium protecting us from falling into dangerous complacency regarding our moral beliefs. Some of our strongest and most universal innate convictions are in the wrongness of murdering the innocent, torture, and theft. Any serious moral theory condemns these, but we can discriminate between them by how logically clear and strong their condemnation is, we seek an objective, impartial, and difficult to disagree with justification for our strong beliefs.
Contractualism supports these intuitions by giving our actors ample ability to reasonably object to being the victim of these acts, or any principle that could allow them to be so victimized. Stealing, for example, would be morally acceptable if the thief could justify his actions to the victims on grounds they could not reasonably reject. Most of the time, this would be impossible: allowing the thief to choose burglary as an easy way of making a living without work is obviously unacceptable to the victim. It has a strong negative impact on him, which far outweighs the harm to the thief of desisting from his crime. So he is perfectly reasonable to reject the crooks right to rob him. If, however, the thief was stealing a loaf of bread from a rich man to feed her starving family, contractualism recognizes our instinctive sympathy for her action. She could attempt to justify her action on the grounds that her burden would be unbearable without this theft, that it lead to her child starving to death. Given that the harm to him from a single lost loaf is relatively minor, the rich man could not reasonably object to this. Contractualism also has a key advantage over most ethical theories in that it recognizes our innate feeling that motive is ethically highly important. If a cyclist slips on an oil slick and loses half her skin, consequentalism, for example, makes no distinction as to whether the oil leaked from a car accidentally, or was deliberately poured there by bored teenagers. The net utility is the same, indeed it is higher in the second scenario due to the enjoyment of the teens hiding in the bushes watching. Under consequentalism it seems to be just as wrong to have a leaky car as to set deliberate traps, if not more so. Contractualism, on the other hand, recognizes that the second scenario is horribly wrong, the teens’ actions are eminently impossible to justify to the cyclist in such a way that she cannot reasonably reject them. In the first scenario, however, the driver of the car could not reasonably be expected to predict the consequences of his oil leak, and would have a much better chance of successfully justifying his poor maintenance, depending on variables such as how aware of the problem he was and his financial situation, etc. So, contractualism agrees with and lends intellectual support to our instinctive beliefs about morality. However, I have only examined interactions between rational beings. It is desirable for an ethical theory to capture the entire range of our ethical beliefs, to be complete. It is fine to talk of justifying actions to one another when we only consider currently existing rational beings, but these are not the only creatures we extend moral consideration to.
The obvious examples are infants, the severely mentally impaired, and animals. (Future people are another category contractualism struggles with, but I will not investigate them here.) None of these are capable of rational thought; it is nonsense to speak of justifying our actions to them. However, they are patently not outside the scope of morality: we intuitively feel that cruelty to a small child is at least as bad as cruelty to an adult. Cruelly torturing a house is at worst eccentric, whereas cruelly torturing a mouse is instinctively distasteful and wrong. It seems obvious that the difference here is the ability of the mouse to experience pain. Parents will tell their kids “no, the hook doesn’t hurt the fish” to assuage their guilt about fishing and even very young children seem to accept that this is an important distinction: the moral relevance of pain is a deeply held innate belief. Consequentalism, for example captures this intuition directly by ascribing moral weight to all pain. Contractualism is disadvantaged in that it will have to go through a few contortions to get there. A common response is to claim that harming babies or animals is bad because parents or other concerned rational people would object. In a similar vein, some suggest imagining that some rational people act as proxies for non-rational animals and suchlike, rejecting harmful principles on their behalf. While this could work, it is untidy and does not mesh with our intuition. We feel that torturing children is inherently bad because of the harm to the child, not just because others happen to dislike it. Another answer rests on how most variants of contractualism already idealize the rational actors to some extent or another: assuming they are reasonable, value their utility and respect that of others, etc. Why can’t we simply extend these same assumptions to non-rational creatures? The legal world has a rich tradition of appointing proxies for humans who lack capacity, and pretending that these proxies speak directly for the individual in question, there is no reason ethics cannot imagine non-rational creatures acting rationally and reject harmful actions on their behalf, acting as they would if they were rational.
The wrongness stems not from the rejection of the proxy, but from the fact that the infant would reject the action, just as torture does not suddenly become wrong when the victim rationally rejects the justification, but is inherently wrong because he could reasonably reject it. (We can still discount the importance of animals to a degree to allow meat-eating and weighing human suffering more heavily than animal suffering, this arbitrariness is no worse than any other ethical theory.) This is still, however, a rather ad-hoc way of bringing non-rational creatures into the moral universe. In a hypothetical world with one rational sadist and a number of infants or animals, most ethical theories have no trouble forbidding him from cruelty, whereas contractualism has trouble justifying prohibiting his cruelty.
For this reason, Scanlon decides to admit that these problems are outside of the domain of contractualism. He concerns himself only with interactions between rational agents, and leaves the problem of non-rational creatures to other theories. For example, we can accept the premise “pain should be avoided” to explain why we should not mistreat animals or low-functioning humans. Mistreating a rational human then violates this principle as well as breaking the contract. This means some other ethical theory must be used to protect non-rational beings, a rather untidy solution. Whichever route we choose, this is a problem with contractualism. So contractualism has some distinct advantages over other theories, but also some glaring weaknesses. To really understand why this is so, it is not enough to simply describe contractualism and insist one accept it: we must investigate the intellectual roots of the theory. In this next section I will investigate the starting point of contractualism, the basic principles that it accepts as paramount and builds it framework around.
[edit] What basic ideas does contractualism develop?
Contractualism is based upon two fundamental ideas: that ethics is an essentially interpersonal matter, and that right and wrong are a matter of whether we can justify the action to other people. How does contractualism develop these ideas? The idea that ethics is rooted in how we relate to each other sets Scanlon’s contractualism apart from contractarianism, with its roots in Hobbes’ philosophy. Contractualism is not designed as an egoistic way to best fulfil our own desires, rather, it is an heir of Kant’s focus on respecting individuals as end in their own right. The key idea, and the title of Scanlon’s book, is “what we owe to each other.” What we owe each other is basic mutual respect, recognition of each other’s intrinsic value. Contractualism respects other’s intrinsic value by basing the definition of right and wrong on whether or not others can rationally reject it. “Wrongness” is the property of not being justifiable to a reasonable rational being: an action that can reasonably be rejected is wrong. An action that is not wrong is permissible, and when one could reasonably reject a course of action that leaves themselves worse off and others better off, but chooses not to exercise this right, that is supererogatory: above and beyond the call of duty, something to be admired. So ethics is basically a matter of conducting our interpersonal relations with respect for one another, and demonstrating this respect by defining right and wrong in terms of what we can justify to other reasonable creatures. What is the practical upshot of this? The focus on ethics as relations between equals obviously rules out consequentalist thinking, we cannot choose a course of action based on the total amount of good it will produce rather than how each individual fares. Forcibly harvesting someone’s organs denies their worth as a rational independent agent, no matter how many lives it would save. We cannot override an individual’s rights for the greater good. This does lead to some problems for contractualism where our intuition supports the consequentalist approach.
Imagine an island with a hundred inhabitants. A demon comes and offers them the choice of each suffering one day of agonizing explosive diarrhoea, or one of them, little Johnny, suffering a hundred days of equally bad runs. Consequentalism is silent, whereas contractualism accords with our intuition that it is more fair to suffer one day of the trots each, as little Johnny could very reasonably reject the idea of him having a burning ring of fire for over three months to save what would be, for each individual, a relatively short-lived disturbance to his movements. What if, however, the demon demanded either 80 days of loose stools from all but little Johnny, or 90 days from little Johnny and none from the rest? Contractualism, with its fierce rejection of aggregation, still takes little Johnny’s side. Nobody could reasonably justify to little Johnny the idea that he should take 90 days of Montezuma’s revenge rather than them suffering 80 days. The fact that there are 99 others who also stand to suffer the same fate should not factor in: total harm is unimportant, what matters is respecting each individual as a person, and no individual stands to suffer a worse case of the shits than little Johnny, so he could always reasonably reject the idea of him taking one for the team, although it would of course be admirable if he would supererogate and save the rest of them from the Aztec two-step.
This emphasis on processes over outcomes on ethics is a result of contractualism’s founding idea of ethics as an essentially interpersonal matter, and an insistence that the objects of an action be must be unable to reasonably reject it for this action to be right. As stated, this is descended from Kant’s ideas of respect for the individual as an end, rather than a means to the greater good. I believe this is a worthy offspring of the Kantian tradition, fulfilling the potential power of these ideas in a readily applicable framework that makes concrete predictions for the real world in a way that accounts for the value of persons. However, the value of persons, ethics as an interpersonal affair, and the idea of justifiability as the arbiter of right and wrong are by no means the only key ideas in ethics. Other ethical theories place commensurate importance on other basic ideas, and it is important that contractualism be able to address these ideas.
[edit] Can contractualism account for other basic ethical ideas?
Ethical theories, while multifarious, are at the heart based on surprisingly few basic ideas. Kantianism and contractualism are fundamentally predicated on respect for others. Consequentalism is, not surprisingly, based on the idea that consequences of actions are what matter. Natural Law theory and Divine command theory appeal to supernatural mysteries, and virtue ethical theory claims that right action is what a virtuous person would do. Respect for persons is already well covered in this essay, and between secularism and space constraints I feel justified in not tackling how contractualism deals with the idea of a supernatural basis for ethics. This leaves Consequentalism and virtue ethics for me to address from within the contractualist paradigm. I have already touched upon contractualism’s relationship with consequentalism. The fundamental motivation for consequentalism is the idea that consequences, outcomes, results, are the only morally relevant factors we should measure when we assess the rightness of an action. Specifically, we need to focus on the overall utility generated as the result of an action. The unhappiness (I will use “happiness” as a generic term covering whatever desirable features the consequentalist chooses to measure) of a few can be outweighed by the happiness of the many. We should not distinguish between how the happiness is distributed over time and space, only the final total. Contractualism has no problem dealing with the idea that outcomes are morally relevant, it just denies they are the only morally relevant factors. Contractualism condemns the man who failed to fix his car’s oil leak, because of the negative consequences that resulted. It is a strength that contractualism can condemn him less strongly than the teenagers whose acts led to the same consequences, because their motives are also morally relevant. I will return to this. What contractualism does fail to deal with is our intuition that many people suffering is worse than one person suffering. This is the problem we are really grappling with in the diarrhoea example. Intuitively it seems most of us would think it preferable for little Johnny to take the hit and spare so many others an individually smaller, but in total much, much larger, unhappiness. It does indeed seem that this could be a black mark against contractualism, at least in consequentalist eyes. If we were allow agents to argue from the total happiness created from a course of action as a legitimate way of justifying said actions contractualism collapses into a pointless façade tacked on to consequentalism, an unacceptable outcome. If we do not then contractualism seems to run counter to our intuitions. I believe the best contractualist response to these consequentalist ideas is to take the offensive, and deny the premise of the consequentalists that it is utterly irrelevant how the happiness is distributed. No, it is of fundamental importance how the happiness is distributed. Otherwise we cannot object to forcing gladiators to fight to the death to entertain a large crowd, or tormenting the weakest member of a group for the enjoyment and bonding of the others. There are many examples of the counterintuitive results of ignoring the distinction between persons, indeed this is one of the most common lines of attack on consequentalism. In the diarrhoea example, if it is not enough to urge little Johnny to supererogate, the contractualist may be able to weasel out by claiming that 80 and 90 days are really not so different that one is a significantly greater burden than the other. The other islanders could then claim that any one of them and little Johnny had to choose whether one would suffer 80 days or the other 90, there would be no really compelling reason to favour one over the other. When another individual is added, this must swing things in favour of the two of them not taking the hit, otherwise we treat the new addition as if he has no moral value. And there are 97 more.
This is in some ways a backdoor to consequentalist style aggregation, and a little bit dodgy. I think the best way of recognizing the importance of total outcomes within a contractualist framework requires a two-pronged strategy. Firstly, point out the major flaws in aggregative consequentalism: It is impossible to measure total happiness with any degree of accuracy, and even if it was, it is more important to recognize the distinctions between people, otherwise you will inevitably be treating some people as a means to an end, and as human beings we deserve more respect that that. Secondly, acknowledge that the idea still exerts a powerful pull on the imagination.
In most realistic situations, contractualism will in fact tend to realize a large percentage of the total happiness that pure consequentalism would achieve. Moreover, if we examined the source of the differences, we would probably intuitively side with contractualism over consequentalism: such as when we decide not to kill homeless people to keep others from having to get depressed by seeing them (or indeed, to increase total average happiness directly.) In rare situations such as diarrhoea island contractualism can content itself with urging -but not penalizing the lack of- supererogation on Little Johnny’s part. Furthermore, in almost any realistic formulation of this dilemma, the other islanders would be able to somehow compensate Little Johnny for his taking the bullet on their behalf, to a degree that he couldn’t reasonably object to the overall deal. Thus is my response to one of the two alternative basic ethical ideas I will discuss: that results are what matter ethically. The other has its roots in virtue ethical theory; it is the idea that ethics is about our good character, what matters in ethics is our motivation in acting.
The way contractualism is presented can leave a sour taste in the mouths of those with a more character-based view of ethics. Presenting “wrongness” as “the property of being unjustifiable” takes the meat and potatoes out of ethics, they say. Virtue ethics focuses on what makes something right: acting in the way a virtuous person would, or acting from proper motivations: having and acting on a genuine desire to do good and right is what we should strive towards, not simply having others find our actions unacceptable. How can contractualism capture our intuition that motives are morally relevant? The fact that contractualism is so firmly rooted in the idea of ethics as an interpersonal matter means that it will always struggle to fully capture the importance many place on our internal mental processes. It is easy to conceive of a contractualism that works like national politics: true motives always concealed beneath a veneer of concern for others, indeed, this is similar to some bleaker contractarian views.
However, as I have hinted at, I do not believe contractualism is totally unable to meet these concerns. We can idealize our justifications do a degree, so that the actors have a reasonable idea what the others motives are. Indeed, this will often be obvious, as with the cyclist’s oil-caused crash. When another’s motives are visible and distasteful to us it gives us stronger grounds for rejecting their action. And we can imagine motives being more transparent then they are in reality. Perhaps the two theories could even coexist: contractualism guiding our interpersonal relations, and a strong focus on the importance of character and motive protecting non-rational beings from the deprivations of the rational. This is an untidy solution, detangling the two and delineating their boundaries could keep the world’s philosophers gainfully employed for years. Ethics, however, is an untidy business. For a theory to fully capture our focus on motivations we would have to forgive misguided zealots who inadvertently cause more harm than good through their enthusiastic pursuit of what they see as right. And, as we have seen, focussing only on outcomes as per consequentalism leads to equally counterintuitive results.
History shows us that clear-cut, straightforward, tidy ethical theories that explain everything in our world and guide our actions using a few simple rules usually lead to mass deaths. Ethics is a murky pool of competing ideas and contradictory intuitions, and simple answer is guaranteed to be wrong. Contractualism sets out a framework to govern this swamp of people and ideas, and of course it has holes. Contractualism deals poorly with non-rational beings. It does not always seem to agree with our convictions about the importance either results or motives.
Nonetheless, contractualism has many strengths over other ethical theories: it focuses our moral thought on the sanctity of the individual, and shows us how to respect this in a practically applicable fashion. In most situations it does mesh with our moral intuition as well as or better the competition. I am unable to definitively prove that this is the best ethical theory, anyone who claims to be able to do so for any theory is a liar. But I have shown that contractualism is still a strong ethical theory, and one could do much worse than to judge the rightness of their actions by its precepts.
[edit] Footnotes
- ^ Ashford & Mulgan, 2007
[edit] References
- Ashford, Elizabeth and Mulgan, Tim. 2007. 'Contractualism'. In Edward N. Zalta (ed.), Stanford Encyclopedia of Philosophy (accessed October 2007).
- Cudd, Ann. 2007. 'Contractarianism'. In Edward N. Zalta (ed.), The Stanford Encyclopedia of Philosophy. (Summer 2007 Edition).
- Matravers, M. 2003. Scanlon and contractualism. Portland, Oregon: Frank Cass.
- Reibetanz, S. 1988. 'Contractualism and Aggregation'. Ethics, 108 (2): 296-311.
- Scanlon, T. M. 1998. What We Owe to Each Other. Cambridge, Mass.
- Wallace, R. Jay. 2002. 'Scanlon's Contractualism'. Ethics, 112 (3): 429-470.
