JONATHAN HUGHES and STEPHEN DE WIJZE
MORAL CONTRACTUALISM COMES OF AGE
T. M. Scanlon, What We Owe to Each Other. Cambridge, MA: Harvard University Press, 1998, 480 pp. David Gauthier’s Morals by Agreement1 argues for a form of contractualism which seeks to explain the special authority of moral principles in terms of non-moral prudential grounds. The aim is to show that rational self-interest alone can move agents to become “constrained maximisers”, agents who will continue to cooperate even when it is instrumentally rational for them to defect. If morality can be derived entirely from rational self-interest, then this would provide a powerful and unassailable foundation for moral constraints taking priority within our practical reason. However, Gauthier’s project fails for at least this reason. In order to develop moral principles in terms of mutual advantage, there has to be an unacceptable degree of exclusion. If a person has nothing to offer others, rational self-interest dictates that there would be no basis to enter into an agreement with her. She would be excluded from the umbrella of moral concerns. However, contractualism need not take this exclusionary route. There is a way of characterising it so that it is inclusive and based on a notion of impartiality rather than self-interest. Such an approach is made possible by using a notion of “reasonableness” rather than “rationality” and was first developed by Thomas Scanlon in his seminal article, “Contractualism and Utilitarianism”, published in 1982.2 So influential was this article, that its central ideas found their way into the work of eminent political philosophers such as John Rawls and Brian Barry, among others, where they described their approach as Scanlonian.3 Consequently, Scanlon’s mature and carefully examined account of contractualism in What We Owe to Each Other has been eagerly awaited. It has been a long time coming, and now that it is with us it has been 1 D. Gauthier, Morals by Agreement (Oxford: Oxford University Press, 1986). 2 T. M. Scanlon, “Contractualism and Utilitarianism”, in A. Sen and B. Williams, eds.,
Utilitarianism and Beyond (Cambridge: Cambridge University Press, 1982), 103–28. 3 B. Barry, Justice as Impartiality (Oxford: Oxford University Press, 1995); J. Rawls, Political Liberalism (New York: Columbia University Press, 1993). Res Publica 7: 187–194, 2001. © 2001 Kluwer Academic Publishers. Printed in the Netherlands.
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rightly hailed as a philosophical event. It would not be a surprise if this book does for moral theory what John Rawls’ A Theory of Justice did for political philosophy. Its originality, clarity, rigorous argument, depth and subtlety offer a contractualist approach to moral justification which is truly pathbreaking. Scanlon’s book seeks to offer answers to questions such as “why be moral?”, “why do moral imperatives have a special stringency and priority within our practical reasoning?”, and “what do we owe one another and how do we justify our answer?”. Whether one is concerned with meta-ethics, practical ethics, or political philosophy, a close reading of this book will be particularly rewarding. What is more, for those readers who are already acquainted with Scanlon’s work from his 1982 article, the book will fill in gaps and take them step by step through his reworking and refinement of key ideas in his contractualist approach. In the interim years since “Contractualism and Utilitarianism” was published, there have been substantive revisions to both the scope of his project and its motivational basis. Of the many themes pursued and discussed in Scanlon’s book, one which stands out is his treatment of the problem of moral motivation. Firstly, he attempts to offer a unique solution to what he refers to as “Prichard’s dilemma”, that is the task of finding a non-trivial yet appropriate response to the question, “why be moral?” The standard answers, ranged according to their degree of moral content, appear either to be circular and trivial (we ought to be moral because not to do so would be wrong) or to offer reasons that are too external or instrumental to form the basis for truly moral behaviour (we ought to be moral because it is in our interest to do so). Scanlon seeks to explain the reason-giving force of moral judgements by offering a substantive characterisation of the particular form of value which we respond to in acting rightly (or violate when doing wrong). Secondly, Scanlon intends his account to avoid the problems which plague both formal and substantive accounts of moral motivation. The former (best illustrated by the austerity of Kantian ethics) seeks a universal motivational basis independent of any particular good by arguing that moral requirements are one and the same as rational requirements, while the substantive approach (of which utilitarianism is the leading contemporary contender) seeks moral motivation in the pursuit of a key value, such as the promotion of happiness. However, Scanlon rightly points out that both these approaches are far from satisfactory. The formal approach fails because, even if one accepts the Kantian link between rationality and morality, the special force of moral requirements is phenomenologically different from that of mathematical or logical principles. What is
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more, should one fail to be moved by moral requirements (for example, one simply does not share the awe and reverence for the “moral law”) this, in Scanlon’s words, “does not seem to be a form of incoherence” (51). The problems with existing substantive accounts of moral motivation are equally severe. In general, substantive accounts face the difficulty of explaining why the particular value which underpins morality should have priority over others. At first glance the pursuit of happiness appears plausible in this role, being both connected to the content of morality and sufficiently important independently of it to justify the importance and priority attributed to moral claims. However, as Bernard Williams, among many others, has pointed out, the idea of pursuing the greatest happiness often fails to cohere with our deeply held intuitive ideas of right and wrong. Utilitarianism is found particularly wanting when it conflicts with the values of individual integrity, personal relationships, and the pursuit of cherished projects. Scanlon’s response to these difficulties is to offer a contractualist account of motivation based on a notion of reasonable rejection. According to this account [A]n 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 (153).
Scanlon intends this not only as a procedure for identifying right and wrong actions, but as an account of what it is for an action to be wrong (or what the property of wrongness is). If his account succeeds, Scanlon will have also have provided us (as he himself points out) with a better account of the phenomenology of moral judgement and a plausible account of why we are motivated to refrain from acting immorally (and the sense of guilt that arises when we do not). In addition, he will have given a persuasive account of why moral considerations take priority within our practical reasoning while offering a plausible and highly attractive account of the process of moral deliberation itself. We shall return to some of these points later. However, at this point it is worthwhile tracing the shift in Scanlon’s views since his 1982 article. Scanlon described his earlier project as “an investigation of the nature of morality”, where the motivational basis of this account was understood as “a desire to be able to justify one’s actions to others on grounds that they could not reasonably reject” (6). Scanlon now believes that both these claims were incorrect. While the scope of his earlier account was far too wide and ambitious, the reliance on people having the requisite desire left him unable to explain what is wrong with a person who simply lacks this desire, or how such a person could have a reason not to perform wrongful
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acts. Consequently, Scanlon has moved from a desire-based to a reasonbased theory of motivation, and he has circumscribed the scope of his contractual principle to apply to a domain narrower than morality as a whole (in the broad sense in which that term is generally used) although broader than a notion either of justice (morality applied to social institutions) or of obligations which arise from specific actions or undertakings. This restricted moral space, according to Scanlon, “comprises a distinct subject matter, unified by a single manner of reasoning and by a common motivational basis” (7), and is best captured by the phrase “what we owe to each other”: hence the title of the book. The reason-based theory of motivation to which Scanlon now subscribes applies not just to morality in this narrow sense, but to practical deliberation in general. He powerfully argues that desires, considered as something wholly distinct from reasons, cannot motivate or justify action. “Desire” is not the simple and homogeneous concept that is often supposed, and those desires which have motivational force do so because they consist, at least in part, in a tendency to see certain considerations as counting in favour of the action in question, or to judge that the action is one that the agent has reason to do. Such tendencies can, however, persist in the face of our considered judgements to the contrary (as when I find myself repeatedly thinking of the features of a new computer as reasons to buy one, despite my considered judgement that none of them would provide me with any real benefit4 ). Thus, even those “desires” that have motivational force through their connection with judgements about reasons are not themselves a source of reasons. If I do have reason to buy a new computer my reason is not that it will satisfy my desire but that it will give me pleasure, help me with my work, etc. Scanlon also argues that a reason-based account of practical deliberation is more complex and truer to our experience than one based on the purely quantitative weighing of competing desires. To endorse a value or adopt an aim, on Scanlon’s account, is not simply to assign it a positive weight, but to give it a particular role within one’s life. That role will affect both the circumstances in which we take the reasons associated with the aim to be relevant to our deliberations and the priority accorded to them. A reason may conflict with others not merely by pulling in a different direction but by challenging their status as reasons, within the particular context; by determining what counts as a relevant consideration. The significance of this for the narrower domain of “what we owe each other” is that – whether we recognise it or not – we all have reason to want to be able to justify our actions to others on grounds that they (if simil4 This example is discussed by Scanlon on p. 43.
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arly motivated) could not reasonably reject (154). A person who lacks this desire is therefore rationally criticisable, for failing to see, or to be guided by, a reason that objectively exists. It is important to see that the ideal of agreement implied by Scanlon’s contractualist principle is hypothetical rather than actual. It is pleasant to live in harmony with others and it may sometimes be morally incumbent upon us to seek actual agreement, but this cannot be the basis for morality, since morality often requires us to resist the prevailing consensus. Principles which are not in fact rejected may be reasonably rejectable by those who suffer under them, and vice versa. How, then, does Scanlon defend the claim that this hypothetical agreement is one which we all have reason to seek, and which forms the basis for moral motivation? He offers three arguments (155). Firstly, this account is “phenomenologically accurate”: if I ask what reason the fact that an action is wrong gives me not to do it, my answer will involve the relationship to others that such an act would put me in, and the fact that (whether or not they actually do so) they could reasonably object to what I do. Secondly, Scanlon’s account offers a way out of Prichard’s dilemma. The question, “why be moral?” is answered by describing an ideal of relations with others which has clear moral content, yet also “has strong appeal when viewed apart from moral requirements” (155). This ideal, which Scanlon terms a “relation of mutual recognition” (162), is worth seeking for its own sake, and is a condition for the realisation of other values such as friendship or the pleasures of co-operative achievement; but the duties that such a relation imposes on us are sufficiently closely tied to what we value in it for this not to seem an unduly external motivation for moral action. This is further illustrated by Scanlon’s third argument, which is that the ideal of justifiability to others succeeds in capturing the complexity of moral motivation. In morality, unlike law, our reason for doing the right thing, and the considerations that determine what the right thing to do is, are aspects of the same more general reason. A moral person will very often be motivated to avoid an action not by the fact that it is wrong, but by the more concrete considerations that make it wrong (“she’s counting on me”, “he needs my help”, etc.). The thought that an action is wrong plays a greater role when we are tempted to do what we ought not, and are thus forced to consider what weight to give to the ideal of acting in ways that others cannot reasonably reject. Even in the former case, however, that ideal shapes the process of practical deliberation by determining, in an open-ended and dynamic way, which concrete considerations the agent should and should not count as reasons for action in any particular context. Considered at the level of practical ethics, Scanlon’s contractualist formula offers a framework for deliberation in order to determine what we
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owe to each other. The central and pivotal insight captured by this formula resides in the words “reasonably reject”. It is here that the core of morality is revealed. Moral principles, according to Scanlon, must serve as a basis of mutual recognition and accommodation. This requires us to consider the effects of the principles on which we act from the perspective of other individuals. What is more, the mutual recognition is given substance by the fact that all persons have a veto (reasonable rejection) on principles which inflict an unfair burden upon them. For example, consider the principle which requires us to save a single individual from severe pain and injury even though we will inconvenience a large number of people in the process. (Scanlon offers this example on p. 235.) The thought here is that none of the persons who would be inconvenienced could reasonably reject such a principle. They could not invoke a utilitarian aggregative argument, no matter the number of people inconvenienced, since the rightness or wrongness of an action depends on the rejectability of principles from each individual standpoint. Scanlon insists that this view, which takes seriously the distinction between persons, fits better with our intuitive moral judgements than its utilitarian rival. Scanlon’s “reasonable rejection” approach also overcomes problems faced by deontological approaches such as Kantian ethics. Consider the principle that states that lying is wrong in all circumstances. If such a principle has the status of an inviolable categorical imperative, the difficulty arises with justifying this principle in circumstances where telling the truth would cause terrible burdens for others and/or oneself. Kant’s unpersuasive article, “On a Supposed Right to Lie from Altruistic Motives”,5 illustrates the extraordinary lengths to which he must go to show why, for example, lying to a Nazi officer to protect Jews in hiding would be considered an immoral act. In such circumstances, absolutist principles are vastly counter-intuitive and trying to act in accordance with them tends to undermine our confidence in the priority of moral considerations within our practical reason. Scanlon’s approach faces no such dilemma. In the example above, it would be obviously the case that the principle “lying is wrong in all circumstances” could be reasonably rejected. The burdens that would face Jews captured by the Nazi would far outweigh the benefits to any individual of a strict prohibition against lying. Scanlon’s approach allows flexibility for difficult circumstances, and for similar reasons it also is open to a pluralism of views concerning the good. It can allow that different values, or systems of social relations, can give rise to different 5 I. Kant, Critique of Practical Reason and Other Writings in Moral Philosophy, ed.
and trans. Lewis White Beck (Chicago: University of Chicago Press, 1949), 346–50.
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principles and different grounds for reasonable rejection, without falling into an untenable moral relativism. Given the contractualist reliance on a notion of reasonableness it is crucial to ask where this notion comes from and what is included and excluded from this concept. Scanlon distinguishes “the rational” from “the reasonable” in that the latter has moral content. This moral content is located in a notion of fairness which champions values such as mutual recognition, impartiality when considering principles from the standpoints of others, and a basic endorsement that all persons are to be understood as having equal worth when comparing the burdens that actions may have upon them. This account of reasonableness is circular (although not viciously so) since it forms part of a reflective equilibrium where our intuitive judgements about right and wrong inform a notion of fairness and reasonableness which in turn, through the contractualist formula, leads to more explicit moral principles that cohere with and check our basic intuitions. In the space remaining we raise an issue which Scanlon’s contractualism must address if it is not to fail in its own stated aims, namely the problem raised by his heavy reliance on the notion of reasonableness. If the rightness or wrongness of our actions is determined by the possibility of reasonable rejection, then it seems that this notion must be given universal and uncontroversial content. This requirement seems well nigh impossible, especially when understood within the context of societies characterised by deep and enduring moral, philosophical and religious disagreement. “Reasonableness”, like “fairness”, remains essentially contested unless it has an entirely anodyne and vacuous content which would render it unsuitable for the job of justification so essential to Scanlon’s approach. Consider the example that Scanlon himself raises with regard to Singer’s Rescue Principle. This is the principle that “if you are presented with a situation in which you can prevent something very bad from happening, or alleviate someone’s dire plight, by making only a slight (or even moderate) sacrifice, then it would be wrong not to do so” (224). Here it is clear that there is no unanimity on what might be reasonably rejected. Scanlon himself holds that it would be reasonable to reject a principle that required us in every decision to give “no more weight to our own interests than to the similar interests of others” (224). What makes this issue problematic is that it is not clear how much additional weight the agent can reasonably give to his own interests. Could the demand that one sacrifice an arm to save the life of another be reasonably rejected? Scanlon thinks so, but concedes that contractualism provides no firm guidance. But if this is true then there is
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an indeterminacy in the concept of reasonableness which will inhibit the ability of the theory to help resolve deep moral conflicts. Our summary of Scanlon’s project and the concerns raised does justice neither to the intricacy and depth of his arguments nor to the careful, scrupulous manner in which he pursues arguments for and against his claims. It is a book whose insights and views will undoubtedly in years to come provide the impetus for further scholarly work in all areas of ethics. Even if it turns out that Scanlon’s contractualism is deeply flawed, his work is such that, merely by engaging with it, we gain a clearer view of the problems that face anyone who seeks answers to the questions that it addresses. Whatever the final verdict on Scanlon’s project, this is a book that will not fail to intrigue and challenge. Department of Government University of Manchester Manchester M13 9PL UK E-mail:
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