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Can Contractualism Save Us from Aggregation?

Journal of Ethics, Vol. 16, No. 1, pp. 39-66, March 2012

Stanford Public Law Working Paper No. 1781092

52 Pages Posted: 9 Mar 2011 Last revised: 17 Oct 2012

Barbara H. Fried

Stanford Law School

Date Written: March 8, 2011

Abstract

This paper examines the efforts of contractualists to develop an alternative to aggregation to govern our duty not to harm (duty to rescue) others. I conclude that many of the moral principles articulated in the literature seem to reduce to aggregation by a different name. Those that do not are viable only as long as they are limited to trolley-type cases at the margins of social life. If extended to run-of-the-mill conduct that accounts for virtually all unintended harms to others, they would rule out all action. Moreover, because such conduct poses an irreducible conflict between freedom of action and freedom from expected harm, it can be regulated only by principles that incorporate the sorts of interpersonal trade-offs that contractualism is foundationally committed to reject: trade-offs in which the numbers count, such that a risk of serious harm to one person can be justified by small benefits to the many.

Suggested Citation

Fried, Barbara H., Can Contractualism Save Us from Aggregation? (March 8, 2011). Journal of Ethics, Vol. 16, No. 1, pp. 39-66, March 2012; Stanford Public Law Working Paper No. 1781092. Available at SSRN: https://ssrn.com/abstract=1781092

Barbara H. Fried (Contact Author)

Stanford Law School ( email )

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Stanford, CA 94305-8610
United States
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650-725-0253 (Fax)

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