One of my favourite objections is the conditional fallacy. It reveals a structural flaw in theories which attempt to give a philosophical account of something in terms of what happens in some specific counterfactual circumstances. It was first formulated by Robert Shope in his 1978 “The Conditional Fallacy in Contemporary Philosophy”. Despite this objection, many still continue to construct counterfactuals-based theories. As an illustration, I want to look at deliberative contractualism – a new form of contractualism recently introduced by Nicholas Southwood in his Contractualism & Foundations of Morality. The book itself is brilliant – it clarifies the distinguishing features, advantages, and problems of different forms of contractualism. I just worry that Southwood’s theory too commits the conditional fallacy.
Shope introduced the objection against all attempts to analyze or define ‘a statement p by presenting its truth as dependent, in at least some specified situations, upon the truth (falsity) of a subjunctive conditional φ of the form: ‘If state of affairs a were to occur, then state of affairs b would occur’.’
One version of the conditional fallacy (version 2) consists of overlooking ‘the fact that, in some specified situations, statement p is actually true, but, if a were to occur, then it would be at least a partial cause of something that would make b fail to occur.’
One of Shope’s examples of this fallacy is Rawls’s definition of a person’s real good in terms of what is the most rational plan of life for her. The rational life-plan sneaks in a subjunctive conditional to this theory. A plan of life is rational for Rawls when it would be chosen by the person if she were to have full deliberative rationality.
Now, consider the question of whether it is good for an actual troubled person to go to psychotherapy. Rawls’s account entails that satisfying the antecedent of the counterfactual conditional (‘if this person were fully deliberatively rational, …) would make it true in the counterfactual scenario that the person already has what would be achieved through psychotherapy in the actual world. In the counterfactual circumstances, it would be irrational for this person to try to achieve what she already has – so, if one were fully rational, one wouldn’t go to psychotherapy. Unfortunately, this means that it could not be good for the troubled agent to go to the psychotherapy in the actual world either. This is because that was made to depend on what is included in the person’s life-plan when she is fully idealised.
Consider then Southwood’s deliberative contractualism. He claims that the truth of moral statements (here the ‘p’s) depend on what common code we would agree to live by (the ‘b’), if we were perfectly deliberatively rational (the ‘a’ in Shope’s scheme).
Here’s how I think Southwood’s theory works (I’m still new to the theory so my apologies for misunderstandings). We start from all of our actual attitudes which we have in our first-personal standpoints. These attitudes include our desires, preferences, beliefs, normative judgments and the like. We then go to a resembling counterfactual scenario in which we are only idealised so that we fully satisfy the norms of deliberative rationality. This means that in those circumstances a) any decision to act must be preceded by deliberation with others who are affected by decision, b) co-deliberation is free and open exchange of relevant information, c) we argue and persuade one another to act in this way or that, while remaining amenable to being persuaded in turn (we present what we take to be considerations for and against options that others are capable of recognising as normatively salient), and d) we work out and render coherent the content of our beliefs, desires, hopes, fears, and so on and reorient this content in light of communication and discourse. We then, in the counterfactual idealised circumstances, go through a process of reaching an agreement on what rules we are to live by. Those rules then fix what is right and wrong also for us in the actual world.
The problem here is that our idealisation to perfectly deliberatively rational transforms the relevant counterfactual world and hence what principles are needed there. In that world, we, by definition, *cannot* for instance resolve our disagreements by coercion, threats, bribery, blackmail, and so on (181) – or otherwise we just would not be in the fully deliberatively rational world. This means that there would be no point for us to agree in that scenario on rules that prohibit solving disagreements by coercion, threats, bribery, blackmail, and so on. After all, in that world, no one could do any such thing. It would be just as useful as making an agreement that we all breathe (or for Rawls’s fully rational person to plan to go to psychotherapy). Likewise, the idealised contractors would have no use for rules for how to punish people for this kind of actions, or for duties of reparation for the offenders. There would never be offenders of these rules to whom these further principles would apply.
On Southwood’s view as I understand it, it seems like what the idealised co-deliberators would agree for themselves fixes what is right and wrong for us actual agents. But, this would mean that it would not be wrong for us to coerce, make threats, bribe, or blackmail to solve our disagreements. There would also not be a requirement to punish people who do these things, or a requirement for the offenders to repair the harm they have done. However, these things are still wrong for us. So, this looks like a typical case of the conditional fallacy as specified by Shope.
Now, there might be a way for Southwood to reformulate the view so as to avoid this problem. One way would be to switch from the example model (the contractors choose for themselves) to the advice model (they choose for us). Sadly, Southwood explicitly rules this option out (fn 34). Maybe going from something like the basic equations to Wright’s provisional equations would help, but I don’t really know how.