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Chapter 16 of Intricate Ethics turns to an examination of Scanlon’s Contractualist moral theory. Focusing on particular themes that Kamm has discussed in the previous chapters, the aim here is to consider whether contractualism, as a metaethical theory of wrongness, offers a way of getting at the kinds of normatively relevant non-consequentialist distinctions that Kamm has identified as important without recourse to the careful scrutiny of cases. In what follows, I won’t try and summarize all the points Kamm makes in this chapter; rather, I’ll stick to what I take to be the points that have the most direct bearing on contractualism’s non-consequentialist credentials, namely what role the appeal to ‘wrongness’ is playing in the contractualist account and the kinds of considerations that are meant to be relevant for the reasonable rejection of a principle.

Kamm’s discussion of the significance of wrongness as a reason not do something begins with the observation that, on Scanlon’s account, there is a generic sense in which to do something wrong is simply to fail to respond appropriately to the reasons there are. What distinguishes moral wrongs from others wrongs, such as, for instance, deriding a Barnet Newman painting as something a child in grade school could have produced, or attacking it with a can of spray paint, is that moral wrongs involve the failure to respond appropriately to a particular important value, the value of human life. Appropriately respecting the value of human life, according to contractualism, requires that one be guided in one’s practical deliberations by principles that no one can reasonably reject.

Thinking about whether or not a particular way of acting would be disallowed by a principle no one can reasonably reject involves considering the reasons that could be pressed from the standpoints of different persons for not authorizing one another to be guided by a principle that permitted acts of that kind. But why accept that it is not just the reasons others have for wanting it to be morally impermissible, under the circumstances, for us to act in a certain way that is constitutive of wrongness, but also the fact that others could reasonably refuse to license us to act in those ways? On the contractualist account, as Kamm puts it, “[t]hat we would fail in their eyes becomes constitutive of wrongness”. But why not hold that all fully respecting the value of others as persons requires is that we attend to the reasons they have for wanting it to be impermissible for us to act towards them in a certain ways, ignoring the further fact that they could reasonably refuse to license us acting towards them in those ways? Kamm calls this the Gap Question.

Her answer to the Gap Question draws attention to an important respect in which Scanlon’s account of wrongness bears an important affinity to the way rights are theorized. Rights theorists standardly gloss ‘having a right’ as not just another having a duty not to behave in a certain way, but as a ‘a right is a right against another, who is under a duty toward the right holder to comply’. Analogously, on Scanlon’s account, it is not just that respect for the value of persons requires that they not be treated in certain ways, but “that we owe it to a particular person that we not treat him in that way”, who stands to be wronged if we do treat him in that way. That we owe it to others not to treat them in certain ways derivative of a general claim that respect for the value of creatures who have judgment sensitive attitudes are owed the possibility of how we treat them being justifiable to them. “The Gap Question asked why we have to be aware of the rejectability of a principle. The answer seems to be that this is related to knowing that a violation of it is a wronging in addition to being wrong” (467). Kamm concludes that Scanlon’s account is best understood as an account of wronging, rather than a general account of wrongness.

I’m in general agreement with Kamm’s discussion of the Gap Question, so I’m going to set aside consideration of minor reservations about some of her arguments, in order to focus on the second part of the paper, in which Kamm takes up the issue of reasons for reasonable rejection. As Kamm sees it, Scanlon’s advertised view is that what is relevant for assessing the reasonable rejectability of a principle are the burdens that could be appealed to by an individual from a certain standpoint as her reason for wanting to reasonably a principle as a principle for the regulation of individual conduct in a particular type of situation. Her general argument is that the advertised view is false; contractualism presupposes, without argument, the justified relevance of many of the kinds of key distinctions that non-consequentialists take to be important—like intending/foreseeing, harming as a means vs. a side affect, and harming vs. not aiding—but whose relevance they accept as in need of justification. If that’s right, there a general question to be answered as to why, or more importantly, if, a non-consequentialist should take contractualism to be important for understanding the foundations of non-consequentialist moral reasoning.

Kamm gives various reasons for this conclusion, and makes other points that are relevant to the general spirit of the objection, but not to the precise formulation of it. An example of the later kind is what, in her view, is Scanlon’s disregard for his claim that contractualism recognizes no ‘threshold complaint’. A threshold complaint is such that if it could be raised by an individual against a particular principle, it follows that that principle is reasonably rejectable. There is no need to compare the force of the complaint to the complaints that could be pressed by others. Kamm suggests that Scanlon doesn’t take this feature of his view very seriously, so he rather loosely claims that a principle of rescue that required strict impartiality would be one that could be reasonably rejected, as it would not properly allow for reasonable partiality. But he doesn’t argue for this conclusion by carefully considering the costs to others of the requirements of a rescue principle not being strictly impartial. This suggests that though Scanlon claims that contractualism makes good sense of the contours of commonsense morality, it is not all obvious that we should believe this. Perhaps, if the relevant burdens were considered more carefully, contractualism would lead us to radically revisionist conclusions concerning the permissibility of various ways of acting.

More to the point is her argument that Scanlon’s analysis of different cases illicitly takes into account considerations of how certain burdens come about as relevant for fixing what is permissible. The first case she focuses on is Scanlon’s life jacket case. What Scanlon says is

“the strength of a person’s objection to a principle is not determined solely by the difference that the acceptance of that principle would make to that person’s welfare. In the shipwreck case, for example, the costs of the two principles to the parties may be the same (one will drown if not permitted to seize the life jacket, and the other will drown if it is taken from him). But it may still make a difference to the force of their objections that one of them now has the jacket (perhaps he has looked hard to find it) and is therefore not now at risk” (WWOTO,196).

Kamm’s claim is that Scanlon here is implicitly relying on the relevance of a distinction between someone’s level of well-being being the result of not harming rather than not aiding (471).

Now, Scanlon himself emphasizes that ‘how’ factors can be relevant for the assessment of the reasonable rejectability of a principle; the real issue here concerns whether the ‘how’ factors that are relevant are best characterized in terms of the non-consequentialist distinctions that Kamm thinks are at work in Scanlon’s examples. Kamm may be right about this–in which case contractualism will prove to be more intuitionistic than it is normally thought to be–but I don’t see the examples she offers as making her point. In the shipwreck case, for instance, couldn’t it be argued that the assurance that comes with being entitled to means of saving ones life, provided no one has a prior claim to it, be something that those at risk in cases like shipwreck have reason to care about? If so, it is arguable that a principle for cases like shipwreck that did not allow for the possibility of someone who comes to have the means to save their own life being entitled to it could be reasonably rejected.
It isn’t obvious, then, that there aren’t ways of explaining Scanlon’s conclusions about the shipwreck case that don’t rely on the distinctions Kamm takes to be relevant.

The second case Kamm appeals to in prosecuting her case is the ‘Transmitter room’ case. It goes as follows

Suppose that Jones has suffered an accident in the transmitter room of a television station. Electrical equipment has fallen on his arm, and we cannot rescue him without turning off the transmitter for fifteteen minutes. A World Cup match is in progress, watched by many people, and it will not be over for an hour. Jones’s injury will not get any worse if we wait, but his hand has been mashed and he is receiving extremely painful shocks

Scanlon concludes that we ought to rescue Jones. Kamm’s argument is that this case appeals to the priority of not harming over benefitting. If, for instance, she suggests, the source of pain was a bear sitting on Jones, rather than pain caused by our machinery, we would let him suffer rather than stop benefitting the many (472). Similarly, she suggests that if it were the case that benefit the many were receiving was not trivial, but was required to save each of them from the same intensity of pain Jones is experiencing, we would still save him at the expense of the many, as it is our machinery that is the source of Jones’s pain.

As I don’t share either of Kamm’s intuitions here, I don’t see these points as bolstering her claim.

The final case that Kamm discusses with respect to this particular point is a ‘survival lottery’ case, involving a principle that licenses us to perform painful experiments on a tiny minority of people in order to benefit a much larger majority. Scanlon wants to allow that this principle could be reasonably rejected (though he doesn’t claim that it is). However, he also wants to allow for the permissibility of risky activities that might well result in some similarly being burdened. Kamm suggests that the way to understand Scanlon’s claims is to interpret him as relying on something like a distinction between means/what is foreseen, or intention/foresight. In particular, her argument points to the fact that Scanlon holds that certain risky activities (which expose others to harm) are permissible because of the intrusiveness of not being able to engage in such activities, while activities that necessarily using others as a means (such as the experimentation case) are impermissible. We can’t, she says, understand the difference in these cases simply by appealing to costs, as each involves both avoidance costs and opportunity costs. Not being able to experiment on a few individuals, for instance, is to forgo significant opportunities for benefitting others. So there must be something else at work here, like the relevance of the distinction between intending and foreseeing harm.

Proper discussion of this point deserves a post of its own. I’ll only note, therefore, one point. Kamm’s point about the importance of considering both opportunity and avoidance costs is well taken, but it only counts as a criticism of Scanlon’s discussion of the cases she is considering if we take what he says to be an adequate defense of the reasons why certain activities are permissible and others not. But that is unfair to what Scanlon says in the discussion of the permissibility of risky activities. His point, rather, is that we should be attentative to the difference between genuine cases of engaging in risky activities (like flying, or driving) and cases which look similar, but in fact simply concern the permissibility of imposing burdens on some in order to benefit others. In real risk cases, what we have to ask ourselves is whether there are standards of due care that can be required as a condition of permissibility engaging in a certain activity that reduce the risk that the activity imposes on others to acceptable levels. The discussion of cases in this part of WWOTO (208-09), however, are far from conclusive, nor do I think Scanlon is suggesting that what has offered is anything more than a way into these cases (WWOTO,237). A proper assessment of the reasonable rejectability of certain activities being permissible requires, as Kamm says, consideration of both the costs of avoidance and opportunity costs. In my view, then, Kamm fails to make the case that contractualism relies, without justification, on certain standard non-consequentialist distinctions (the same point applies, I think, to what she says about whether or not Scanlon is write to think that principles that did not accomodate special relationships could be reasonably rejected).

Let me close with a few thoughts about Kamm’s discussion of contractualism and aggregation. Her discussion of how Scanlon’s understanding of pairwise comparison involves comparing one person’s complaint to that of another dynamically (in, rather in isolation from, context) strikes me as genuinely illuminating. Other points, though, I do not find as compelling:
(1) Kamm argues that Scanlon’s tie-breaker argument has difficulty accounting for the fact that saving the smaller number becomes a greater wrong as the number in the larger group grows. Though she offers a clever solution consistent with Scanlon’s model for responding to this objection, I didn’t see why one couldn’t claim that what drives our intuitions about this is not the fact that the wrongdoing is more serious, but that as the number left to die grows, there is simply more to blame the blameworthy for. That is consistent with, in one sense, the seriousness of the wrong of saving the smaller number not being sensitive to the number left behind.
(2) Kamm believes that Scanlon’s account needs to be revised, in order to give more priority to the worst off, in order to deal with the following kind of case (advanced by Parfit): A, B, C will all die if not helped, but if we save A he will live for twenty years, while B and C will only live for twelve. Parfit argues that because we can give a much bigger benefit to A than to each of B and C, on the contractualist account, there is no tie–we ought to benefit A. I agree that this is an implausible conclusion, both in itself and because of its implications, but why think that it is one contractualism, as it stands, is committed to the view that there is no tie? On the face of it, it seems to be enough to understand the complaints of all those involved that each will die if not saved. How much being saved will benefit any one of them is not an obviously relevant consideration, nor is there any clear reason to believe that contractualism is committed to an understanding of how principles are to be assessed that requires it to treat it as such. These examples do not, it seems to me, put pressure on the contractualist claim that only the complaints of individuals are relevant to the assessment of a proposed principle.

There is a lot more worth discussing in this very rich chapter, but I’m going to stop here. My general sense of it is that Kamm really hasn’t succeeded in making the case that contractualism appeals without justification, in the assessment of principles, to much of the non-consequentialist content that Kamm works hard to defend in the earlier chapters. One reason for this could be methodological: particular cases don’t carry the weight in Scanlon’s presentation of contractualism that they do in Kamm’s work, but some of her arguments seem to presuppose that they do.


Comments

  1. 1. Posted by S. Matthew Liao | November 2, 2007 2:24 am

    Rahul, thanks very much for the fantastic summary and analysis! I have a few questions regarding some of your points.

    1. You said,

    “In the shipwreck case, for instance, couldn’t it be argued that the assurance that comes with being entitled to means of saving ones life, provided no one has a prior claim to it, be something that those at risk in cases like shipwreck have reason to care about? If so, it is arguable that a principle for cases like shipwreck that did not allow for the possibility of someone who comes to have the means to save their own life being entitled to it could be reasonably rejected. It isn’t obvious, then, that there aren’t ways of explaining Scanlon’s conclusions about the shipwreck case that don’t rely on the distinctions Kamm takes to be relevant.”

    Does Kamm need to deny that there may be other ways of explaining the results of the Shipwreck Case? It seems that all she wants to say is that the explanations (including yours) focus on how costs to people come about, and that these explanations are in need of a justification, which contractualism may not provide, at least directly. For example, take your principle of “being entitled to means of saving ones life, provided no one has a prior claim to it.” It seems that Kamm would not deny that this principle could explain the results of the Shipwreck Case. What concerns her, I think, is that it is not obvious that this principle is directly derivable from contractualism. That is, why is it the case that one should be entitled to means of saving one’s life, provided no one has a prior claim to it? Rightly or wrongly, she wants to say that Scanlon helps himself to these kinds of principles, when Scanlon should be providing justifications for them.

    2. You said,

    “Kamm argues that Scanlon’s tie-breaker argument has difficulty accounting for the fact that saving the smaller number becomes a greater wrong as the number in the larger group grows. Though she offers a clever solution consistent with Scanlon’s model for responding to this objection, I didn’t see why one couldn’t claim that what drives our intuitions about this is not the fact that the wrongdoing is more serious, but that as the number left to die grows, there is simply more to blame the blameworthy for.”

    Take your solution, couldn’t Kamm respond that, on the tie-breaking model, one would still need to explain why “there is . . . more to blame the blameworthy for” without aggregating? If so, she might argue that her solution is still necessary.

  2. 2. Posted by Gerald Lang | November 6, 2007 3:42 pm

    That was a very helpful summary and discussion, Rahul.

    I agree with both of Matthew’s points, however. It seems fairly undeniable to me that Scanlon is implicitly relying on a number of non-consequentialist distinctions in his endorsement of principles that survive the reasonable rejectability (RR) test. On one view, that doesn’t sink his contractualism, but indicates rather that it is very much work in progress. And perhaps that doesn’t matter so much: which philosophical system doesn’t have loose ends to clear up?

    But Kamm’s argument is more threatening than this suggests. For the tenor of her criticism is that her brand of intuitive non-consequentialism is the only way to go (see esp. pp. 473-4). At this rate, we will be left with a squashed lump of clay (namely, the non-consequentialist intuitive data), at the cost of having lost the statue itself (namely, contractualism). So what does Scanlon need to do to avoid this outcome?

    One thing he might resist is Kamm’s suggestion that RR is concerned solely with the objective value of human persons – those beings to whom justifications can be given and understood. Scanlon operates with a more heteronomous picture, as Kamm points out (p. 460) – he cites, as an example, the ideal of living in unity with our fellow creatures. Scanlon can’t afford to lose this cast of justification. And I don’t think he needs to – yet. It depends on whether a consultation of those ideals will prove to be more fruitful in the arrival at RR-surviving principles than simply a recitation of our objective value. I wish I had more to say about how those ideals will concretely help. I can’t help suspecting they do help, though.

    Now let me turn to the ‘Gap Question’ (p. 462), which has been much discussed in the literature. To put it another way, why doesn’t Scanlon pass the buck for wrongness as he does for goodness? Rahul seems content to along with Kamm’s revisionary suggestions here, but I’m not fully convinced.

    Philip Stratton-Lake wrote a helpful article about this a few years ago (‘Scanlon’s contractualism and the redundancy objection’, Analysis, 63.1, January 2003, pp. 70-76). In acting on moral reasons, conscientious agents will tend to be moved by an act’s wrong-making features, rather than by the mere fact that the act is wrong, or that it falls under a principle that could be reasonably rejected. But, as Stratton-Lake points out, that still leaves room for a distinction between an analysis of the property of wrongness itself and an analysis of wrong-making features. Of course, it looks like over-counting to continue to insist that an act’s being wrong is directly reason-giving in addition to the reason-givingness supplied by the act’s wrong-making features. Stratton-Lake suggests, accordingly, that Scanlon should just surrender the claim that wrongness is directly reason-giving.

    Perhaps Scanlon can afford to do that. But I suspect he can perhaps hold out for something slightly different. For it’s not just the case that X’s wrong-making features provide a complete explanation of why I have a reason not to do X. For we can raise the further question: what makes it the case that X’s wrong-making features are reason-giving, given the competition for our moral attention and moral resources? We need to appeal to a further ideal, or higher-order constraint on what justifications pass muster. RR is obviously going to be central to Scanlon’s answer to this further question. But then, it seems to me, he needn’t relegate RR to an account of wronging, rather than an account of wrongness.

    Now compare buck-passing about goodness. What matters to X’s being good are the goodness-making features which provide us with reasons for responding to X in certain ways (promoting, upholding, or honouring X). Consider the question: what makes it the case that X’s goodness-making features are reason-giving? Either we’re going to go in a Moorean direction at this point, by citing special non-natural properties, or else we’re simply going to shrug our shoulders. I therefore think there’s a difference between goodness and wrongness here which can justify Scanlon’s refusal to pass the buck for wrongness though not for goodness.

  3. 3. Posted by Rahul Kumar | November 6, 2007 4:41 pm

    Good questions!

    I guess I’m in the minority here in thinking that is far from obvious that Kamm is right about contractualism’s reliance on further, undefended or analyzed, non-consequentialist distinctions, and in fact believe that Kamm is wrong about this. Your first point, Matthew, is about this, pressing the question of “why is it the case that one should be entitled to means of saving one’s life, provided no one has a prior claim to it”.

    My suggestion, put more broadly, is that one thing persons could have reason to care about is, for instance, having some kind of right to control that which they secure through some form of relevant effort. That is, a principle that did not make this kind of control over what a person has secured possible is one that could be reasonably rejected, as the kind of control in question is something individuals reasonably care about being able to have in certain circumstances. Now, I didn’t try and work out what the precise principle would be in the life jacket case, and in particular, what its justification might be, but I don’t see anything suspect in the general kind of justification I’ve gestured at. The kind of reason in question is something that is perfectly acceptable in contractualism, and is part of the force of claiming that reasons for rejection don’t all have to do with welfare. Scanlon cites fairness as a relevant example of a non-welfarist consideration, and there are many more examples in the chapter on responsibility of WWO.
    A better discussion of the point would have to work out the details of the relevant principle, but I don’t see any reason yet for thinking that the principle is going to invoke, as part of its justification, the kinds of distinctions Kamm takes to be relevant.

    On your second point, concerning aggregation: why can’t we allow aggregation in the assessment of how much there is to blame a person for? All contractualism claims is that principles assigning blameworthiness do not take into account, as part of their justifications, aggregative considerations. The theory isn’t committed to the claim that aggregative considerations cannot be relevant for understanding other aspects of moral assessment of an individual’s conduct. Which isn’t to say I think that aggregating in assessing how much there is to blame is the right way to go, but just to say it isn’t precluded.

    Gerald, thanks for your comments. I do think the value of mutual recognition is relevant for assessing RR, and in particular, I think its important for justifying the salience of various kinds of symbolic and non-welfare implications of proposed principles the appeal to which can justify RR a proposed principle. I didn’t discuss what Kamm says about objective value and the value of mutual recogition because I would have had to get entangled in a long discussion of Scanlon’s account of morality’s authority. But you’re right: some attention to the value of mutual recognition, and the role it plays, will no doubt further help dispel the sense that contractualism helps itself to certain non-consequentialist distinctions.

    Maybe I shouldn’t be satisfied with what Kamm says about the gap question, but I felt I never understood what Philip is getting at in his Analysis article. So maybe I can ask you to say more about why you think Kamm’s analysis is inadequate? Her point, as I understand it, is that if we just look to the wrong making properties, we leave out a crucial fact that the person has a claim against you not to be treated by you in that way. Explaining why it is that the relevant wrong making properties do have a claim on us for our attention will have to be, then, an explanation of why it is that these considerations are considerations that one has reason to be attentive to insofar as one is concerned with not wronging others (or standing in a relationship to others of mutual recognition). I like this picture, but you don’t?

    Oh, I also promised to put in a plug for the Kamm Fest at Rutgers Camden Law School at the end of February. Featuring McMahan, Scanlon, Shriffin, Kagan, and Gideon Rosen, it will certainly be an outstanding occasion.

  4. 4. Posted by Jussi Suikkanen | November 7, 2007 10:34 am

    Seems like I need to get hold of Kamm’s book to read this chapter. I much agree on what Rahul says. A quick comment about this criticism:

    “Her general argument is that the advertised view is false; contractualism presupposes, without argument, the justified relevance of many of the kinds of key distinctions that non-consequentialists take to be important—like intending/foreseeing, harming as a means vs. a side affect, and harming vs. not aiding—but whose relevance they accept as in need of justification.”

    I think there is a way in which Scanlon could accept that he uses these deontic distinctions (if he did) but not without argument or justification. He does often emphasise the piecemeal nature of contractualist deliberation. We point our attention to one moral principle whilst holding others fixed as also possible grounds for objections. In this way, it is not a problem that he uses deontic distinctions in assessing other principles.

    What he will have to do in some point is to assess the reasonable rejectability of the deontic distinctions whilst holding other principles fixed. This would be to compare worlds in which different distinctions or none at all are appreciated and looking at what kind of standpoints are created in the long run to different individuals. I actually think that some forms of the distinctions could hold their ground and not be reasonably rejected. It’s true that this isn’t done in WWO but it is a long book already.

    I said my piece on the Gap Question in my ‘Contractualist Replies to the Redundancy Objections’ in Theoria. Anyway, looks like I’ve got more reading to do.

  5. 5. Posted by Rahul Kumar | November 8, 2007 9:00 pm

    Jussi,

    Your point is a good one. I considered something along the lines you suggest for justifying the relevance of certain distinctions, but wasn’t persuaded it would work, for the following reason: it seems to me that if general distinctions like intending/foreseeing were to be justified in contractualist terms, they would have to be justified with respect to a particular principle for the regulation of deliberaiton in a particular type of situation. So I don’t see how the general salience of this type of distinction is to be justified. Rather, it would have to be justified as relevant in certain contexts, and its relevance would be explained by certain other considerations. In this respect, the kinds of distinctions Kamm is concerned with strike me as quite different than, for instance, something like fairness, whose salience as a reason for rejection is readily illumined in contractualist terms. But this isn’t a decisive case for thinking that distinctions like intending/foreseeing can’t be justified on contractualist grounds.

  6. 6. Posted by Jussi Suikkanen | November 9, 2007 11:46 am

    Rahul,

    I think that’s right. I might think that there are many ways one can work here – bottom-up and top-down. So, you might start from the the different versions of the substantial moral principles that accept the deontic distinctions to different degrees and assess which ones of them could be reasonably rejectable piecemeal. Once this process is done, you could ask whether the set of principles recognises deontic distinctions in general, to what degree and in how many contexts. If the set does recognise these distinctions to some significant degree, you might think that this is a contractualist vindication for them.

    But, at the same time, you could start from the different substantial sets of principles that are so far neutral about the distinctions. You could then modify the sets (whilst keeping their other substance constant) with different sensitivities to the deontic distinctions and compare the reasons to reject the sets. Again, it might turn out that some degree of deontic constraints is recognised.

    Of course, these are two different processes but once carried out their results should converge if there is *the* set of principles that is not reasonably rejectable.

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