Can Contractualism Be Saved?

33 Pages Posted: 1 Oct 2016 Last revised: 8 Oct 2016

Date Written: October 2016

Abstract

In his 1998 book, What We Owe To Each Other, T.M. Scanlon laid out a “contractualist” theory of our moral duties to others. The distinctive contribution of Scanlon’s contractualism to substantive morality is the Greater Burden Principle, which dictates that we choose among competing complaints by a maximin rule: those who stand to suffer the most under a candidate choice may reasonably reject that choice, provided there is an alternative with a less-bad worst outcome.

In Scanlon’s original version (‘ex post’ contractualism), the relative complaints of representative individuals were weighted by the actual harm each would suffer ex post. Over the past few years, most contractualists have concluded that ex post contractualism is unworkable, and have proposed an ex ante version in its place: the maximin rule is still used to decide between complaints of potentially affected individuals, but complaints are measured by the expected harm each individual faces as of the moment a choice must be made.

I argue that ex ante contractualism cannot save the contractualist project. While it eliminates two of the most serious problems facing ex post contractualism, it introduces others that are, in my view, equally fatal to contractualism’s aspiration to be a moral theory of general application. As a result, its domain is limited to a small set of stylized cases that populate the philosophical laboratory but are rarely encountered outside of it.

Keywords: contractualism

JEL Classification: K10, K12 ,K13

Suggested Citation

Fried, Barbara H., Can Contractualism Be Saved? (October 2016). Stanford Public Law Working Paper No. 2845451. Available at SSRN: https://ssrn.com/abstract=2845451 or http://dx.doi.org/10.2139/ssrn.2845451

Barbara H. Fried (Contact Author)

Stanford Law School ( email )

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