Criticizing Contractualism

Lest anyone think that Campbell Brown went on a murderous rampage against all other PEA Brains to take over the blog for himself, I feel I should jump in and post something to let people know the rest of us are alive and to pick up some of our summer slack (and perhaps to give the Kiwi a rest).

So I’m going to steal shamelessly from the David Sobel playbook (he did something similar on consequentialism recently) and ask people to offer their favorite objections to contractualism.  You can either then immediately offer a way to reply, or you can leave that to others.

I’ll start.  Contractualism can’t be the fundamental criterion of rightness, insofar as  the reasons trotted out in support of the reasonable agreement that allegedly gives rise to contractualist principles will actually depend on more fundamental moral principles.  That is, it can’t be that what makes it wrong to kill babies is that doing so would not be in accord with principles that no reasonable person could reject; instead, there’d be general agreement on such principles precisely because it’s wrong to kill babies.

31 Replies to “Criticizing Contractualism

  1. Great, I like this game. My favorite objection is Dworkin’s objection to hypothetical contractualism: hypothetical contracts aren’t binding. So hypothetical contractualism can’t explain why morality is binding.

  2. I have not thought this through (unlike all those other posts of mine) but I wonder if contractualism does not face a dilemma when it comes to giving moral consideration to non-rational things such as animals. Either the view implausibly bifurcates its treatment of the moral domain, giving very different reasons why I may not harm rational creatures from the reasons I may not harm non-rational creatures (and this strikes me as at least unpersuasive, especially for the infliction of simple harms) or the view ascribes rational surrogates to represent the non-rational. But then I think it would be difficult to see how to avoid the surrogates relying on some other story about what morally matters to shape their concern for the non-rational (which raises the objection that Shoemaker started with).

  3. David, your objection can also be stated in terms of children, the disabled, future generations, and, in general, those who cannot be parties to the contract and so need representatives. Rawls himself took a ‘two stage’ view of the problem: work out the easy case, the case of relations between those who can contract. Then consider the rest as a ‘special case’. This seems very unpalatable: two sorts of justice.

  4. I like these sorts of exercises as well. Good call (and I mean this praise to point to sort of objective rightness)!
    > That is, it can’t be that what makes it wrong to kill babies is that
    > doing so would not be in accord with principles that no reasonable
    > person could reject; instead, there’d be general agreement on these
    > principles precisely because it’s wrong to kill babies.
    Our answer to this challenge depends upon what sort of contractualism we want to defend. Let me offer a distinction between two basic types: those that understand individuals as having some sort of *inherent* moral status, and those — by contrast — that see our moral status as derivative from the fact that reasonable people would agree to convey it to us. By the former I have in mind views such as Rawls’, by the latter I have in mind the views of Gauthier and Hobbes (who never fail to be mentioned in the same breath these days).
    For the Hobbesian, I assume, there is no truth to this challenge: the fact that reasonable people agree to a proscription against baby-killing does not commit us to the presupposition that baby-killing is wrong. (What might seem to be puzzling, however, is why reasonable people should come to an agreement in the first place, and it is hard to imagine how we can motivate the entire picture on the strength of self-interest alone.) For a Rawlsian, however, there is some truth to the challenge, but only in this limited sense: it would not be wrong to kill babies if it were not for the fact that we already presuppose babies to have some moral status (unless of course we want to sneak baby rights through the back door of legitimate parental interests, which seems ominous). But to say that the proscription against baby-killing already presupposes baby rights is not to say that the contract model is worthless, because at least it makes our preexisting moral convictions more precise and more vivid. After all, to say, “this baby has moral status” is not to tell us much about what we owe her. But by imagining her somehow as a rational party to an agreement among equals, we can get a much better idea.
    Or is this form of contractualism too watered-down to be worthy of the name?

  5. David Sobel,
    Just to be clear, what exactly do you find wrong with grabbing onto the second horn of your dilemma. That is, what do you find to be so problematic about accepting the surrogate picture and concocting a story about what matters to them? I have my own worry, but I have a hunch that it isn’t exactly the one that you have in mind, and I’m curious to hear what you do find worrisome about the second horn of the dilemma (you or anyone else).
    To make my worry clear, I should say that in this case the real problem seems to be only secondarily one of understanding the motivation of the surrogates, and primarily one of distinguishing between equal and less-than-equal parties to the contract. For example, I believe even low-functioning people have legitimate moral claims on us, and I also believe the same thing of animals, but I don’t believe that animals and low-functioning human beings have the same moral status. Human beings all have more or less equal status, so it is not hard to fit them into the contract situation, imagining them as rational and self-interested bargainers, behind the veil, etc. In fact I don’t even see much of a problem with just idealizing the low-functioning human beings so that they can advocate for themselves, just as we idealize all the rest, when we imagine them in the original position. So surrogates are, in this case, almost beside the point.
    But it becomes much more difficult when we try to imagine how the contract could produce a series of principles for proper animal treatment, since in order to do this we would need to imagine (I think) a number of surrogates with unequal bargaining power (but how unequal?) or with weaker determination to win rights for their clients (but how weak?). Therefore, there seems to be a real problem integrating their legitimate but unequal moral claims into the contractualist picture.

  6. Justin,
    You’re right that the Hobbesian (as construed by you) wouldn’t agree that the baby has moral status independently of the contractors’ agreement. But that’s why it’s an objection, right? We intuitively think that status is not derivative from agreement, so something must be wrong with (Hobbesian) contractualism.

  7. Thank you for the post, David. I was becoming concerned that Campbell didn’t have a job or something.
    As a semi-partisan of Scanlon’s contractualism, I think his view has an answer to the original objection:
    “Contractualism can’t be the fundamental criterion of rightness, insofar as the reasons trotted out in support of the reasonable agreement that allegedly gives rise to contractualist principles will actually depend on more fundamental moral principles. That is, it can’t be that what makes it wrong to kill babies is that doing so would not be in accord with principles that no reasonable person could reject; instead, there’d be general agreement on such principles precisely because it’s wrong to kill babies.”
    I think Scanlon’s answer depends on the difference between what makes acts of a given kind wrong and what wrongness itself is. As I understand his view, he could accept David’s objection: There are strong reasons against baby killing, and it is these reasons that explain why baby killing is wrong and in turn, why we would generally agree to the principle ‘don’t kill babies.’ So wrongness (or the reasons underlying wrongness) explains reasonable rejectability, and not vice versa.
    But Scanlon’s contractualism is pluralistic about the kinds of reasons that support moral principles. So suppose that another principle we would reasonably reject, etc. is ‘break your promises whenever it’s even modestly beneficial to do so.’ As with ‘kill babies’, that we would accept this principle is to be explained by its wrongness (i.e., by the reasons that favor or disfavor the principle), and not vice versa. But it seems unlikely that the same kind of reasons that support our rejecting ‘kill babies’ also support rejecting ‘break your promises,’ etc. Hence, there must be a plurality of wrongmakers, or a plurality of reasons that constitute wrongmakers. So if what we aim to explain is not the wrongness of this or that kind of act, but wrongness as a property shared by a variety of acts or act kinds, then all we can appeal to is reasonable rejectability. But this is quite compatible with saying that a given principle is accepted or rejected based on the (broadly understood) moral qualities of acts referred to in the principle.
    Of course, the plausibility of this approach not only on accepting an axiology that prioritizes reasons over values and on Scanlon’s anti-redutionist belief that there is no single category of “moral reasons”. But I think his approach at least has some traction against David’s original objection.

  8. Let me suggest an objection that is similar to those raised above by Sobel and Johnson.
    On some versions of contractualism — in particular, Gauthier’s version and perhaps also Hobbes’s — morality consists of a set of rules that people agree to abide by, on the condition that others do the same, for the sake of mutual advantage. The idea is that rational individuals will realise that, in some circumstances, if they set aside the pursuit of their own interests and cooperate with each other, then they’ll all be better off.
    However, if morality is justified in this way by mutual advantage, then those who have little to contribute to social cooperation will lack any moral standing. If morality is all about mutual advantage, then an individual has no moral obligation to help out those who are too weak or powerless to offer anything in return. But this seems to get things backward: normally, we would think that our most urgent moral obligations are to help the weak and powerless. (Notice, this objection differs from Sobel-Johnson’s, because it may be that, on a mutual advantage approach, some individuals would be denied moral standing even though they’re competent to enter into contractual agreements; a person could be competent yet unable to contribute in social cooperation.)

  9. Josh writes:

    You’re right that the Hobbesian (as construed by you) wouldn’t agree that the baby has moral status independently of the contractors’ agreement. But that’s why it’s an objection, right? We intuitively think that status is not derivative from agreement, so something must be wrong with (Hobbesian) contractualism.

    I wonder how we are to consult our intuitions regarding the claim that the moral status of babies derives from contractual agreement. Presumably, the thing to do is this: imagine a possible world in which the contractors’ agreement does not confer any status on babies, and ask our intuition whether babies have moral status in the world so imagined. If our intuition is that babies do have moral status in such a world, then our intuition is against the view that the moral status of babies derives from contractual agreement.
    However, I think there’s a way of understanding contractualism — we might call it “actualist contractualism” — such that it’s consistent with the intuition just reported. Suppose that a contractualist holds (1) that the moral truths at any possible world are determined, in the usual way, by some contractual agreement at the actual world, and (2) that this actual contractual agreement does confer status on babies. Such a contractualist can say that babies have moral status in every possible world, even those in which there is no contractual agreement conferring status on babies.

  10. Just quickly, to Robert Johnson’s Dworkinesque objection that hypothetical contracts are not morally binding: I wonder if the contractualist can reply by pointing out that the justification produced by the hypothetical procedure is *retrospective* justification. For example, think of the Hobbesian form (which is political, so what I say here may not transfer quite as easily to the moral case). What Hobbes might be construed as doing is providing a retrospective justification for those already under a government for why they have good reason for being where they are (and obeying the sovereign, etc.): if you were to find yourself in the state of nature, it would be rational to form an *actual* contract establishing a government and a sovereign to whom you hand over all your rights. As you’re already under a government, and this state of nature will never occur for you, the lesson is simply that the rationality of maintaining and obeying your government is in place, despite its having been established via hypothetical considerations.

  11. Dworkin’s objection seems hopeless. On one reading, his argument is as follows:
    (1) Actual contracts are binding
    (2) Hypothetical contracts aren’t actual contracts
    So:
    (3) Hypothetical contracts aren’t binding.
    Doubtless, this is an uncharitable reading (Dworkin can’t be that incompetent). But then, I wonder, what is the charitable reading? Perhaps he would insert “Only” at the beginning of (1). But that feels like question-begging.

  12. As a devoted contractualist I feel obliged to defend to the view as well as I can. Under a heavy exam marking period I may not have sufficient energy for doing this properly but here goes the first shot. Let’s begin with the first one:
    “That is, it can’t be that what makes it wrong to kill babies is that doing so would not be in accord with principles that no reasonable person could reject; instead, there’d be general agreement on such principles precisely because it’s wrong to kill babies.”
    This of course is the classic objection by J.J. Thomson. from the footnote of Realm of Rights. At some point I counted that after What We Owe, close to 20 people had made this objection against Scanlon in print. There are various ways of replying to it, but here are few quickest.
    First is that the objection only works if contractualism is an account of what makes acts wrong. In the Introduction of WWOtEO, Scanlon flatly denies that it is. Instead it is an account of wrongness – what it is for an act to be wrong and not what makes act to be wrong (whatever is then meant by that). If you hold that view, then it is not clear that you could refer to wrongness in explaining why a principle would be selected in the hypothetical negotiations. That would amount to saying that it would be selected because it would be selected. But, fortunately, in most cases of acts we take to be wrong, we can find explanations based on more concrete reason-providing properties for why the principles forbidding those acts would not be reasonably rejectable.
    Now, I don’t think this is quite the right view, but it does avoid Thomson’s objection. This reply I think is adopted by Philip Stratton-Lake in his Analysis papers.
    My own line is that the contractualist test of being forbidden by not reasonably rejectable principles functions as an epistemic norm of warranted assertability of wrongness claims, but that is another story. Anyway, this line too avoids the Eutyphro.
    Next, killing babies and torturing animals. First, I still think that trying to be able to justify one’s actions to animals and babies makes sense as long as we can adopt their points of view our selves and think whether they could reasonably reject they ways in which we would treat them. I don’t see why they would actually be able to do this. But, that we try to do this enables us to respect them in the way they deserve. But, I know this won’t convince many.
    Second, I think that even if we do not attempt to weight justifications from these perspectives principles allowing killing and mistreating animals and babies would be reasonably rejectable. Seeing them mistreated does make the life of many human beings worse and creates a burden that is an objection against the allowing principles. Now, this reply is likely to be answered by saying that this locates the reason for which we are required not to mistreat the animals to wrong place – need to justify our actions to other humans and not to the animals and babies themselves.
    Third, I don’t see that even admitting this would be an embarrassment for contractualists. Surely, she can accept that there are features in animals and babies that give moral reasons not to harm them and overlooking these reasons is wrong. Keep in mind that Scanlon’s ambition was only to describe the core of morality – a certain class of moral reasons. He can recognise that there are also other reasons that do not fall under the scope of his theory. Maybe that theory only describes how we should treat other reason-assessors and why we should do this.

  13. David,
    I think that’s a reasonable start at a reply to Dworkin. (There’s a nice paper defending such a move by my friend Cynthia Stark in Journal of Philosophy a few years back.) It’s not clear what work ‘contract’ is doing here, though–over, say, hypothetical convergence. We can call the latter ‘contractualist’ views, naturally, by extension. But if the notion of a contract is there to get the bindingness into the mix (‘Why are we bound to follow these rather than those rules? We are under a contract to do so.’), then only an actual one will do it.

  14. Campbell,
    Dworkin’s actual argument for the claim that hypothetical contracts are not binding is quite different from how you portray it. To get the flavor, he starts by pointing out that no one takes the fact that you would not have contracted to do something, though did, as having any binding force on you. Suppose I’ve a yard sale and I’m selling some old painting for a dollar. You come, but don’t buy it. Next day, I discover it was a Picasso and change the price. You insist, however, that since I would have sold it for a dollar yesterday, I must now hand it over for as much.
    But perhaps you have an example of a hypothetical contract that has binding force.

  15. Hi Josh,
    > You’re right that the Hobbesian (as construed by you)
    > wouldn’t agree that the baby has moral status
    > independently of the contractors’ agreement. But that’s
    > why it’s an objection, right? We intuitively think that
    > status is not derivative from agreement, so something
    > must be wrong with (Hobbesian) contractualism.
    Yes, that’s right. Thanks. But if it’s the Hobbesian form of contractualism that Shoemaker’s “moral reasons precede agreements” objection is intended for, then it’s a funny way of putting the objection. Hobbes already assumes that people in his contract situation, as rational bargainers, are reaching an agreement based upon largely egoistic calculations, and therefore that they wouldn’t be worried about baby rights or other purportedly moral claims except insofar as they are in the bargainers’ self-interest. This is when we critics protest that Hobbes has misunderstood what confers moral status in the first place, since he attributes that power to a covenant made by rational egoists. That may be, but this is just question begging. Contracts, it would seem, turn out not to be the fundamental criterion of rightness because they are not the fundamental criterion of rightness. What do we add to this intuition by putting in a contract setting? I might prefer something more direct, such as Campbell’s other-world hypothesis.

  16. I think the dialectic in Dworkin’s paper is something like this. He notes that hypothetical contracts do not bind in the way that real contracts do. Then he wonders what significance they are supposed to have (in Rawls). He rejects a few possibilities. He decides that the device of hypothetical contract is a kind of intermediate conclusion in Rawls. The ultimate source of principles of justice is deeper, and not generated by the original position.

  17. That’s right. What Jamies says. That’s the structure of the argument concerning Rawls.The basic objection to hypothetical contractualism is only a part of that overall paper. It’s probably not really Dworkin’s, anyway. Hume’s.

  18. I don’t know about the rest of you, but I think Scanlon offers a compelling response to Shoemaker’s “moral reasons precede agreements” objection (thanks for the reminder, Michael). Even if we drop Scanlon’s anti-reductionistic pluralism about moral reasons, I think we can still make his response work.
    Jussi said something very interesting:
    > Third, I don’t see that even admitting this
    > would be an embarrassment for contractualists.
    > Surely, she can accept that there are features in
    > animals and babies that give moral reasons not
    > to harm them and overlooking these reasons is
    > wrong. Keep in mind that Scanlon’s ambition was
    > only to describe the core of morality – a certain
    > class of moral reasons. He can recognise that
    > there are also other reasons that do not fall
    > under the scope of his theory. Maybe that theory
    > only describes how we should treat other reason-
    > assessors and why we should do this.
    I still don’t quite know what to make of this general defense (call it the “animal and infant rights as secondary science” defense). Nussbaum took Scanlon to task for this in her APA address a few years ago, and if I recall her argument correctly, it had two basic parts:
    1. Even in the supposedly “core” issues of moral theory, pertaining to the reciprocal relationships between reason-assessors, views like Scanlon’s misconstrue the basis for the sorts of moral claims that these equal have upon one another. That’s because they envision these claims as holding only insofar as people are rational and independent creatures, which we basically are not. We are born dependent, we remain dependent well into adulthood (graduate students?), and we usually go through our final years as dependents as well. There are also, of course, large numbers of people who spend their entire lives utterly dependent on caretakers or the state. The proper treatment of all of these issues is hardly peripheral. In fact, it looks much more like the core, and the matter of mutual governance between rational self-actors during a relatively short stage of life seems, by comparison, to be much more at the periphery.
    2. Empirically speaking, the familiar Rawlsian line about putting off caretaking of children and the disabled “for another stage,” or for legislation, has become an all-too-dismissive way to evade what really are core moral questions, concerning the care of large numbers of people, the continuation of the species, and so on.
    I don’t know what to make of this because, as I see it, I’m not sure that contractualism is deeply committed to the view that our core moral claims on one another only hold reciprocally, between rational and independent persons.

  19. Justin,
    that’s very interesting. My intuitions lie here with contractualists and the idea that there is something different and special to our moral relation to other reason-assessors. I guess I would like to say something about Strawson’s Freedom and Resentment and the view of two different kinds of relations we have and the different attitudes related to these perspectives.
    Anyway, the ability to assess reasons central for the notion of justifiability is probably not an on-off property. It probably develops in children gradually. And, probably if we treat them as reason-assessors before they actually have the full-blown capacity, this will help their development to become such.

  20. I guess I could add an objection as well. Even though I am a contractualist there are things that worry me in the back of my mind. This has always been one such. I think Thomas Pogge brought it up.
    It may be that contractualism is epistemologically speaking too demanding for beings like humans. Think of which principles are supposed to be the non-rejectable ones in Scanlon. We are supposed to be imagine what life would be like for different individuals when different alternative sets of moral principles would have been generally adopted and what kind of objections based on the generic reasons people would have from those stand points. Can you? Good if you can. I’m not sure I can. And, more over I have no way of telling whether it *really* would be like the way I imagine. How could we know? Imagining whole possible worlds with totally different sets of moral principles and what kind of lives people would have them – that may be too much to be required.
    Of course there are ways of trying to reply. First, it may be that wrong acts are forbidden by the non-rejectable principles, even though we have no epistemological access to which acts actually are such. We just have no way of telling which acts really are wrong.
    Second, it may be that for the purpose of being able to give justification to others, one doesn’t need to follow the actual non-rejectable principles but ones that one is warranted to believe that they are non-rejectable.
    Scanlon’s way around the problem I think is ‘starting from the middle of things’. Thus, we imagine what life would be like if we changed some one of the moral principles at a time whilst holding others fixed. I am not sure about if this works. It may be that in this circumstances the selected norm will be such that it produces such big burdens that another norm guiding the same area of action would not produce, but in the context of the rest of our actual code this just works better. These burdens then seem unnecessary and unjustifiable. Another problem of these procudere might be that it leads to an infinite circle of changing one principle at a time.

  21. Robert,
    Dworkin’s Picasso story is a neat counterexample to the view that every hypothetical contract is binding. But no contractualist has ever held that view.
    You ask for an example of a hypothetical contract that is binding. If I were a Rawlsian, I suppose, I would offer the example of the social contract that would be established in the original position, behind the veil of ignoance, etc.

  22. I would be moved if you could come up with an example of a hypothetical agreement that is binding; but it would have to be one other than the very hypothetical agreement Rawlsians are trying to establish the bindingness of.

  23. ” … but it would have to be one other than the very hypothetical agreement Rawlsians are trying to establish the bindingness of.”
    Why? Is there something obviously mistaken in the view that precisely one hypothetical contract is binding? Can’t the contractualist say that the Rawlsian hypothetical contract has all sorts of special features (veil of ignorance etc.) that all other hypothetical contracts lack, making the former uniquely binding?
    I’m not seeing the objection here.

  24. Sure, they’re welcome to that view, the view that, unlike every other contract, this one is different, viz., it binds you even though it is a hypothetical contract, one you didn’t make, but would make under better circumstances. But you can’t shift the burden to Dworkin with that move. It has left it perfectly obscure why this contract should be so very different from every other contract; ordinarily, we can beg off of any contract for which it is true only that we would have made it.

  25. Hmmm. But didn’t Rawls write a whole book on why his hypothetical contract is special? He’s already done his bit, I’d say; the ball is in Dworkin’s court now. Is the best he can do to insist that Rawls give yet more reasons why his hypothetical contract is special? It seems I’m missing something important here.

  26. I wonder if there is some middle ground here between the two sides. I think we need to clear what the question ‘Is the Rawlsian hypothetical agreement binding’ amounts to. As far as I can see there is two ways of understanding this. First, the condition would be whether we should do the things this agreement would guide us to do. Now, I’m going to leave it open here whether we should, but it is already easy to see that in this sense there can be also other binding hypothetical agreements – agreements never made the content of which is something that describe ways in which we should act.
    Second way or reading binding here is whether the fact that these institutions or acts would be agreed on in the Rawlsian hypothetical agreement is the source of the reasons why we should do these acts, what explains we why should do the required acts. In actual agreements it is easier to trace their normativity to the making of the agreement. In the hypothetical agreements it is not easy to see how and why any hypothetical agreement would have such a normative force to bind us acting in certain ways. After all we never made these agreements.
    I just get the feeling that Campbell’s reading of binding is closer to the first one whereas Robert’s to the second one. Rawls probably thought that the hypothetical agreement is binding in the first way, but I am not sure he thought it was in the second way. I think he would have traced the normativity of the agreement to the intuitions of justice we already had or the his Kantian metaphysical idea of the person and the equal moral respect she deserves (as argued by Sandel).

  27. Well, Campbell, at least you’ve come from thinking the objection worthless to seeing it would take a whole book to refute it!
    In any case, I just don’t think Rawls’ position was that the hypothetical contract was special. In the end, it was just a thought experiment to help lay out the conception of justice he wanted to go on to defend (and I think, as Dworkin pointed out, the argument doesn’t really rely on hypothetical consent in the end.) The Dworkin objection only applies to contractualist views (and I do not think Rawls’ is one of them) that claim to show that we are bound by moral or political principles because would have agreed to them under other circumstances. It might show all sorts of other things, of course.
    Jussi, I don’t think Rawls intended the hypothetical agreement to carry the weight of the argument, myself. He just spells out a conception of justice with them.

  28. Ups! Got you two confused, and thus wrong which one of you would be closer to which of my readings of ‘binding’. I am very sorry to everyone. Shouldn’t blog while trying to concentrate on something else at the same time.

  29. Robert,
    I’m afraid the objection still strikes me as worthless. As I understand your presentation of the objection, it goes something like this:
    (1) Unless there’s some relevant difference between the contracualist’s favoured hypothetical contract and other hypothetical contracts, the former is binding only if the latter are binding.
    (2) Other hypothetical contracts are not binding.
    (3) There is no relevant difference.
    Therefore:
    (4) The contractualist’s favoured hypothetical contract is not binding.
    The contractualist would, I imagine, be happy to go along with (1) and (2). But why should he accept (3)? It’s hard to see why the contractualist would favour a particular hypothetical contract if he didn’t think it was relevantly different to all the rest.
    Of course, the contractualist cannot simply assert that his favoured hypothetical contract is relevantly different; he needs to give an argument. So, perhaps the objection would be effective against a contractualist who has no argument for his position. But we don’t need to bother with that kind of contractualist. Hence, the objection is worthless.
    Like I say, I’m probably missing something important here. But I’m still not seeing what it is.

  30. Jussi, thanks for the clarification. You make a good point — even if you did mix our names up! Still, I don’t see how it helps Dworkin’s objection. If the objection is to be any good, then Dworkin must mean by “binding” whatever the contractualist means by it. Otherwise he’s simply arguing against a straw man.

Comments are closed.