Contractarianism and ‘Moderate Morality.PD
Contractarianism and ‘Moderate Morality’
by
Vaughn Bryan Baltzly
This thesis is submitted to the faculty of the
Virginia Polytechnic Institute and State University
in partial fulfillment of the requirements for the degree of
MASTER OF ARTS
IN
PHILOSOPHY
APPROVED:
William FitzPatrick, Chair
Harlan Miller
James Klagge
June, 2001
Blacksburg, VirginiaABSTRACT
In his book The Limits of Morality, Shelly Kagan claims that contractarian
approaches to ethics are incompatible with our common, everyday, “moderate” morality.
In this thesis I defend a version of contractarianism that I believe leads to both
deontological constraints and options; i.e., to a genuinely moderate morality. On my
account, the parties to the agreement are conceived of as being motivated not only to
promote self-interest, but also to formulate a code of ethics that gives proper respect to
their moral status as persons. If such a picture of the bargainers’ motivations is
defensible, as I believe it is, then the ‘moderate’ may in fact have recourse to
contractarianism in her defense of everyday morality, for – as my thesis argues –
bargainers that are thus motivated will arrive at a moderate morality.iii
TABLE OF CONTENTS
Table of Contents...........................................................................................................iii
Acknowledgments.......................................................................................................... iv
Introduction................................................................................................................... 1
Chapter One: The Challenge to Moderate Morality........................................................ 3
I. Dramatis Personae : The ‘extremist’, the ‘minimalist’, and the ‘moderate’............... 3
II. Kagan’s two challenges .......................................................................................... 5
III. Why contractarianism? .......................................................................................... 7
Chapter Two: A Contractarian Response to the Challenge ........................................... 11
Chapter Three: Modified Constraints......................................................................... 14
I. The self-interest-maximizing motive and restrictions on the pursuit of individual
good........................................................................................................................ 15
A. The prisoners’ dilemma................................................................................... 15
B. The trade-off................................................................................................... 17
C. Minimizing the trade-off ................................................................................. 18
II. The personhood-respecting-motive and restrictions on the pursuit of individual
good........................................................................................................................ 20
A. Inviolability .................................................................................................... 21
B. Morality’s ‘giving proper expression to’ persons’ inviolability........................ 24
C. The trade-off................................................................................................... 26
D. Minimizing the trade-off................................................................................. 27
E. Thresholds....................................................................................................... 29
III. The shape of the modified constraints............................................................... 29
Chapter Four: Options................................................................................................. 31
I. Self-interest and options: the appeal to cost......................................................... 31
II. The personhood-respecting motive and options................................................... 32
III. Concluding remarks........................................................................................... 34
Bibliography ................................................................................................................. 36
Vita............................................................................................................................... 37iv
ACKNOWLEDGMENTS
I would like to thank my committee members Harlan Miller, James Klagge, and
William Fitzpatrick for all their help with this thesis. I must especially express my
gratitude to Drs. Miller and Klagge for the promptness with which they were willing to
read my material, and to my advisor Dr. Fitzpatrick for all his patient advice and
comments. Thanks also are due to the entire Virginia Tech philosophy faculty and to the
graduate students, from whom I could always expect a helpful conversation when needed,
a pleasant diversion when desired, and most importantly, someone nearly forcing me to
get some work done when such coercion was not desired, but certainly needed.
Especially helpful in this regard was Jesse Ehnert, with whom I had many conversations
that were somehow simultaneously helpful and pleasantly divergent.1
INTRODUCTION
In his 1989 book The Limits of Morality, Shelly Kagan claims that our ordinary,
everyday morality – which he dubs ‘moderate morality’ – is untenable and must be
abandoned in favor of a more stringent ethical code, which he calls ‘extremism.’ This
thesis represents an attempt to defend moderate morality against this claim by appealing
to a contract-based approach to ethics. In taking on Kagan’s general charge that
moderate morality is incoherent, I adopt two of his specific challenges from chapter four
as a starting point. These challenges are as follows: first of all, if the moderate wants to
establish the existence of constraints, she must also show that these constraints and their
principled exceptions (required, for example, if we are to allow most cases of harming
others in self-defense) can be generated from a common principle. And secondly, any
moderate hoping to appeal to contract approaches to ethics as a way of defending
ordinary morality has the further burden of demonstrating that such an approach does not
in fact offer support for extremism.
In order to defend a contract-based moderate morality against both Kagan’s more
specific and more general challenges, I must show that my account leads to three things:
an acceptance of a ‘pro tanto’ reason to promote the greater overall good, deontological
constraints that admit of principled exceptions, and options not always to perform the
action that results in the greater overall good. I am able to ground all these things in my
contract approach because I construe my bargainers’ motivation as being twofold: on the
one hand, they are motivated to maximize self-interest, as are the bargainers in many
other prominent contractarian accounts. But on the other hand, they are also motivated to
formulate a set of rules that gives proper expression and recognition to their moral status
as persons. The moral status that the bargainers want their contract to recognize has at
least three dimensions: on such a conception, persons are simultaneously worthy of
concern, ends-in-themselves, and inviolable.
After setting up Kagan’s challenges in some detail and motivating my decision to
use contractarianism as a response to these challenges in chapter one, and after offering a
brief sketch of my bargainers’ twofold motivation in chapter two, I go on to give a
somewhat detailed account of the way such a contractarian scenario might yield a2
moderate morality sufficient to meet Kagan’s challenges. Chapter three explores a way
in which constraints – constraints which are genuinely deontological, yet which
nevertheless admit of principled exceptions and thresholds – might arise from the
bargainers’ self-interest-maximizing motive and their concern that the moral system they
adopt give adequate recognition to their inviolability. Chapter four then proceeds to
ground options in the bargainers’ desire to formulate a set of rules that properly
recognizes their status as ends-in-themselves. Attention is also given to the fact that
acceptance of the pro tanto reason to promote the greater overall good emerges from the
bargainers’ belief that persons are ‘worthy of concern.’
It should be noted at the outset that I do not take this to be anything like a
complete presentation of a contractarian account. Rather, it is more a gesture toward
what might serve as a fully-articulated contractarian response to Kagan’s challenge in
The Limits of Morality. Nor is the contractarian account towards which I gesture taken to
be anything like a full account of morality. Instead, I wish to follow several recent
prominent contractarians
1
in pointing out that such an account only deals with one
specific – albeit, very important – aspect of morality: that part of ethics which concerns,
in T. M. Scanlon’s phrase, “what we owe to each other.”
2
Nevertheless, I hope that this
study can make a useful contribution to the ongoing discussion regarding both
contractarianism and our ordinary, everyday, ‘moderate’ morality.
1
Cf. Rawls, pp. 12 – 14, and Scanlon, pp. 6 –7.
2
Scanlon, p. 7.3
CHAPTER ONE: The Challenge to Moderate Morality
I. Dramatis Personae : The ‘extremist’, the ‘minimalist’, and the ‘moderate’
The Limits of Morality is Shelly Kagan’s challenge to what he terms ‘moderate
morality.’ The position of the ‘moderate’ is characterized by her acceptance of three
things: a pro tanto reason
3
to promote the greater overall good, constraints on what may
be done, either for the sake of promoting the greater overall good or for the sake of
promoting personal good, and options (sometimes called ‘prerogatives’) not to perform
the action which will result in the greater overall good. The moderate is distinguished
from the ‘minimalist’ on the one hand and the ‘extremist’ on the other. The minimalist is
one who, though he may believe that there are some constraints on one's pursuit of his
own individual good, does not accept any pro tanto reason to promote the overall good,
and may not accept any constraints on the pursuit of individual self-interest at all.
4
The
extremist, meanwhile, is one who, while he may or may not believe in constraints on
what may be done in order to maximize the greatest overall good, does not believe in
options to favor personal interests over promoting the greater overall good.
Kagan’s goal in The Limits of Morality is to apply pressure to the moderate
(whom he understands as giving voice to our ordinary, everyday, common-sense
morality), showing her that she must give up her untenable middle-of-the-road position,
as it does not withstand scrutiny, and embrace either minimalism or extremism. (Kagan
himself favors the extremist's position, but it is not his task in this book to argue
positively in favor of this view.) Kagan’s main strategy in pressuring the moderate is to
subject her justifications of both constraints and options to severe criticism. The defense
of options undergoes particularly heavy attack, for, as we have seen, the commitment to
options is unique to the moderate. For though the minimalist likely does not accept the
pro tanto reason to promote the greater overall good, the moderate does share this
acceptance with the extremist. Similarly, the moderate’s insistence on constraints might
3
According to Kagan, a ‘pro tanto’ reason to promote the good is one that “has genuine weight, but
nonetheless may be outweighed by other considerations . . . [A] pro tanto reason is a genuine reason – with
actual weight – but it may not be a decisive one in various cases.” (Kagan 1989, p. 17)
4
"Note that a variety of sharply diverging positions will fall within the minimalist camp, including egoists
(who believe that one is never required to sacrifice overall self-interest), nihilists (who believe that4
be held in common with the minimalist or even the extremist. Kagan explicitly discusses
the perfectly coherent (even if somewhat surprising) possibility that an extremist morality
might feature constraints:
According to the extremist, morality does not straightforwardly require you to choose that act, whatever it is, which
can be reasonably expected to lead to the best consequences.
[Such a view would constitute a consequentialist morality.]
Rather, it restricts your choice to those acts not otherwise forbidden. However, the extremist's claim itself is neutral on the issue
of whether morality ever does forbid an act which would lead to
the best consequences . . . [Suppose] constraints can be justified.
Such a result is still compatible with the extremist's claim, and
the extremist will continue to demand far more of an agent than
the moderate . . . If there are constraints, then you are required
to perform the optimal act among those acts which do not violate
them.
5
Yet the moderate's position is different even from that of the extremist who believes in
constraints because the moderate also believes in options. This is just to say that "the
extremist accepts, and the moderate rejects, a general requirement to promote the good.”
6
This claim that the moderate rejects the general requirement to promote the good is not to
be confused with Kagan's claim that the moderate also accepts the pro tanto reason to
promote the good; it is only that her acceptance of this pro tanto reason is tempered by
her acceptance of options.
So it is the moderate’s defense of options that bears the brunt of Kagan’s attacks
on moderate morality. Kagan believes it is the moderate’s commitment to these options
that makes her position so hard to defend, and that if the moderate’s justification of
options does not hold up in the face of his examination, she will be forced either to retreat
into minimalism or to accept extremism.
So much, then, for the general contour of Kagan’s overall attack on moderate
morality. Let us examine in detail two of the more specific challenges he offers to the
moderate.
everything is morally permitted), and extreme libertarians (who recognize the validity of constraints, but
deny that there is a moral requirement to provide aid)." (Kagan 1989, p. 5).
5
Kagan 1989, p. 8.
6
Kagan 1989, p. 9.5
II. Kagan’s two challenges
As part of this overall, two-pronged critique of moderate morality, Kagan devotes
chapter four of The Limits of Morality to a sustained examination of the moderate’s
endeavors to justify constraints on intending harm. Along the way, he points to several
difficulties any such endeavor must face. The first one is the troublesome case of
intending harm in self-defense. As Kagan points out, most – if not all – moderates who
believe in a constraint against intending harm believe that legitimate exceptions to this
constraint arise when intending harm becomes necessary for self-defense. But this is
problematic for the moderate: how can these exceptions be justified? The constraint
obviously must be modified. But as Kagan writes, “[M]aking the modification may be
easy; defending it is not . . . for if the exception is not to be ad hoc, it will have to be
compatible with the grounds for the constraint itself.”
7
He goes on to offer the moderate
a very specific challenge:
[T]he question is whether the moderate can defend the
suggestion that the reasons that normally oppose intending
harm fail to be generated when I face Schmidt [an aggressor].
Obviously, the moderate cannot simply assert an exception for
the guilty: he needs to show how the exception flows naturally
from the account offered of how and why those reasons are
normally generated in the first place. Thus the success of such
a defense will depend on the particular account offered.
8
I will call this Kagan’s first challenge: the charge that any fully-articulated ‘moderate’
morality must, when necessary, allow for principled exceptions to constraints that are
founded in the same principles that ground the constraints themselves.
However, Kagan does not want to claim that no such account could be offered.
He immediately recognizes that either of two ‘indirect’ moral theories might provide just
such a justification: the “two-level” (roughly, “rule-utilitarian”) approach, and the
“contract” approach. Yet, as Kagan quickly points out, he has already demonstrated in
chapter one of his book that either of these approaches serves ultimately to support an
extremist morality.
9
So Kagan’s first challenge still looms large before the moderate – in
fact, it is made even tougher – when it is coupled with this charge. I will call this
7
Kagan 1989, p. 134.
8
Kagan 1989, p. 135.
9
See Kagan 1989, pp. 32 – 46.6
Kagan’s second challenge: namely, the charge that, since “the moderate . . . cannot turn
to these theories now in support of self-defense, [as] such an appeal would undermine the
moderate’s larger defense of ordinary morality,”
10
she must either avoid appealing to
two-level or contract approaches, or else show that such an appeal will not – despite
Kagan’s arguments to the contrary – lead to extremism.
Kagan offers these two specific challenges as part of his larger, overall attack on
moderate morality. In this thesis, I shall take up these two specific challenges as part of a
larger, overall defense of moderate morality. Specifically, I want to explore the resources
offered by a particular contract-based approach to morality that I believe not only
grounds constraints and their principled exceptions in a common source – thereby
meeting Kagan’s first challenge – but also leads to options, and thus to a genuinely
‘moderate’ morality – thereby meeting Kagan’s second challenge as well. By offering a
specific response to two of Kagan’s specific challenges in The Limits of Morality, I hope
to point towards a more general defense of moderate morality in response to the more
general criticism of it that is motivating Kagan’s two challenges. That is, I hope to argue
for a consistent, contract-based, moderate morality in the face of Kagan’s charge that any
form of moderate morality is incoherent and collapses into one of its two, more extreme
alternatives.
Some may wonder if these two challenges of Kagan’s are even worth taking up.
Many people, for example, may want to dismiss Kagan’s first challenge as unreasonable:
it simply is not the case, they might say, that one must show that constraints and their
exceptions flow from a common principle. Thinking otherwise places too much of a
burden upon moral philosophy; we should not expect it to be as unified and cohesive as
are our theories in, say, physics. However, I think that it is worthwhile to take up this
challenge. If we can do so successfully, we will have met Kagan’s challenge on his own
terms, rather than having simply avoided it. Furthermore, in the process, we will have
arrived at a more robust, fully-articulated understanding and defense of our ordinary,
moderate morality. While it indeed may not be the case that such a theory crumbles if it
cannot meet Kagan’s first challenge head on, it certainly seems that such a defense – if
10
Kagan 1989, p. 1357
successful – will do much to increase its plausibility. I will try to provide just such a
defense.
Of course, once we decide to take up Kagan’s first challenge, it becomes
imperative that we take his second challenge seriously too: we had better either avoid
appealing to a social-contract scenario to ground our constraints, or else be able to take
Kagan up on this challenge and show that our contractarian story does not lead to
extremism, but leads instead to a genuine moderate morality complete with constraints
and options. And again, though the moderate’s inability to meet Kagan’s second
challenge may not necessarily be fatal to her position, her successful response to this
challenge will do much to increase the plausibility of moderate morality in the eyes of the
extremist.
III. Why Contractarianism?
It might seem that by appealing to contractarian theories as a means of replying to
Kagan’s critique of moderate morality, I am setting before myself a needlessly difficult
task. For, while it may be true that the contract approach does provide a promising way
to ground constraints and their principled exceptions in a common source (as Kagan
himself suggests on page 135), it also has the off-setting burden of presenting us with
Kagan’s second challenge – I must now additionally show that the contract approach
leads to options. So perhaps a word needs to be said about my decision to utilize
contractarianism in meeting Kagan’s challenges.
I have already more than once suggested that contractarianism seems, at first
glance, to provide the best means of meeting Kagan’s first challenge. But why is this? I
believe it is due to an essential feature of all contractarian accounts: the fact that in
contractarian scenarios, bargainers will seek to minimize the ‘trade-offs’ that accompany
the implementation of the social contract. That is, bargainers seeking to adopt a contract
for the sake of lessening the evils accompanying the state of nature do so even as they
foresee that certain trade-offs will occur. For while adopting the contract will bring about
protection from a great number of the evils the bargainers would encounter in the state of
nature, this protection comes at the price of certain new threats that are sure to arise in
life under the contract. The bargainers accept the threat of these new evils because they
prefer the trade-off; still, though, they will seek to make this trade-off as slight as8
possible. And it is precisely this desire to minimize such a trade-off that makes
contractarianism such a promising means of justifying the principled exceptions to
constraints on harming others required by some cases of self-defense. For it seems
obvious that if a set of bargainers agrees to certain constraints on behavior because, for
example, adherence to those constraints is expedient in fulfilling their desire to maximize
overall well-being, and if the bargainers also can reasonably foresee that on a few
particular occasions, their very adherence to those constraints should happen to threaten
or undermine overall well-being, then it seems an exception to those constraints would be
warranted on those particular occasions. Furthermore, as we have just seen, this
exception is grounded in the very principle that grounded the constraints in the first place
– namely, the bargainers’ desire to maximize overall well-being. Any constraints agreed
to by a set of bargainers, it seems, will thus be qualified in such a way as to allow for
certain principled exceptions. This attribute – call it ‘principled defeasibility’ – would
therefore seem to be a necessary feature of any successful contractarian account; no
wonder, then, that contractarianism seems a promising route to take when trying to meet
Kagan’s challenges. And certain cases of self-defense certainly provide a good
illustration of this: we would not expect our bargainers to remain constrained to adhere to
restrictions against harming others, even if such measures might be their only means of
protecting themselves from the attacks of people who are breaking these very restrictions.
Such an exception would be warranted as a result of the bargainers’ desire to minimize,
in this case, the trade-off posed by the threat of free-riders. In this respect, then,
contractarianism seems to be the best choice among the available alternatives; neither
Kantian theories, virtue theories, nor divine-command theories seem to offer as plausible
a justification of principled exceptions to constraints as contractarianism can.
11
I will
have more to say about the precise way in which my contractarian account will ground
constraints and their principled exceptions in a common source in chapter three below.
11
Act-consequentialist theories, of course, offer an easy means of justifying exceptions to secondary rules,
or ‘rules-of-thumb’, but of course these are not constraints in the relevant sense of the term. At any rate,
consequentialist theories are of necessity extremist theories – namely, extremist theories that do not
recognize any constraints on the pro tanto reason to promote the greater overall good. Hence the
specification that contractarianism is the best candidate, among the available alternatives, for the task of
providing a moderate morality that will meet Kagan’s two specific challenges and hold up against his
general charge that options cannot be defended.9
But what of Kagan’s second challenge? Might not the difficulty of defending
options as well as constraints, in the face of Kagan’s charge that contractarian accounts
will lead always to extremism, be sufficient to outweigh the relative ease with which I
might hope to defend constraints and their principled exceptions? Would not this
dissuade me from trying to appeal to contractarianism as a reply to Kagan’s general
challenge to moderate morality? Again, I want to argue that special particular features of
contractarianism make it the natural choice for anyone hoping to defend moderate
morality, just as we have seen it is the natural choice for anyone hoping to ground
constraints and their principled exceptions in a common source. To see this, simply
consider the (what I take to be misguided) way in which Kagan argues that the contract
approach leads essentially to extremism.
Kagan argues for this conclusion by pointing out that rational bargainers
motivated to maximize their self-interest or well-being will never be inclined to accept
options not to promote the overall good: such options would likely decrease the average
overall good, and thus lower each individual bargainer’s chances of maximizing his or
her own personal good. This argument, though, neglects the possibility that there may be
two kinds of goods the bargainers might be concerned with at the bargaining table: what I
will term for present purposes natural goods, and what I will term moral goods. Before
proceeding, let us quickly get clear on how I will be using these terms. Natural goods are
goods like health, pleasure, well-being, and prosperity. They are the sorts of goods that
can be sensibly thought of as being promoted within a moral system. Moral goods, on
the other hand, are not the sorts of things that might be promoted by a moral system;
rather, they are the sorts of things that can only be reflected in, or recognized by, a moral
system. We may legitimately ask of natural goods, “Should we subject this good to the
calculus of social utility?” With moral goods, however, the situation is much different;
the proper response to this sort of value is not to maximize it. So, while the bargainers
may be motivated to promote certain natural goods by adopting a certain moral system,
they might also be motivated to adopt a moral system that recognizes certain moral
goods, even if adopting this particular moral system requires sacrificing the optimific
distribution of natural goods that might otherwise be available in a moral system that
does not reflect these moral goods.10
Let us suppose, as is plausible enough, that a set of rational bargainers will be
motivated to do just this. Specifically, they will be motivated to accept a moral system
that gives proper expression to their moral status as persons . The moral system they will
be motivated to accept, I will argue, will of necessity be a moderate morality. It is
because contractarianism, as opposed to the other available alternatives, provides such an
easy way of justifying a system that expresses these moral goods (namely, by appealing
to the motivations of the bargainers) that it seems the natural route to take when
responding to Kagan’s general challenge to moderate morality – despite Kagan’s claim in
his second challenge. I will explain more precisely what I mean by the claim that my
bargainers desire to adopt a moral system that gives proper expression to their moral
status as persons in my discussion of the bargainers’ motivations below. Also, I will
have more to say about the precise way in which such a contractarian account leads to
options, and thus to genuinely moderate morality, in chapter four.
It is clear, then, what my contractarian account must accomplish if it is to be
successful in meeting Kagan’s specific challenges to the moderate from chapter four, and
thus if it is to succeed as a response to Kagan’s overall challenge to the moderate in The
Limits of Morality. If it is to meet Kagan’s first challenge, it must first of all be capable
of grounding constraints and their principled exceptions in a common source. And
secondly, my contractarian account must lead to a genuinely moderate morality – hence
options – if it is to meet Kagan’s second challenge. This I hope to accomplish with the
contractarian view I am about to lay out.11
CHAPTER TWO: A Contractarian Response to the Challenge
Most contractarian accounts share common notions about the conditions that must
obtain at the bargaining table: the parties to the agreement are thought of as being
supremely rational, motivated to maximize self-interest, and so forth.
12
I accept all these
conditions as well (although I do not find it necessary to stipulate, with Rawls, that my
bargainers are deliberating behind the ‘veil of ignorance’ – though I will not argue this
point here). However, my account diverges from the standard contractarian stories in that
it envisions the motivation of the bargainers’ to be twofold. This twofold motivation is in
line with my earlier suggestion that we might expect a set of rational bargainers to be
concerned with two types of goods. In other words, I fault the standard contractarian
accounts for the same reason I faulted Kagan’s depiction of the contract approach above:
while the standard accounts may adequately represent the bargainers’ attitudes towards
natural goods, they do not sufficiently capture the attitude they can reasonably be
expected to bear towards moral goods. And if we do consider the bargainers’ attitude
towards moral goods, we will get a different story. In this chapter, I offer a rough outline
of just such an account, which does take the bargainers’ attitude towards moral goods
into account.
To begin with, I imagine my bargainers to be motivated to maximize self-interest,
as are David Gauthier’s bargainers. But this motivation alone neglects to capture the
bargainers’ attitude with respect to moral goods. And I imagine that the bargainers have
a keen interest in at least this one moral good: they want the system of morality they
adopt to be properly expressive and respectful of the moral status they bear as persons.
Thus, the twofold motivation of my bargainers might be formulated as follows:
1. My bargainers are motivated to adopt a set of rules that, if generally followed,
will be to everyone’s mutual welfare insofar as it seeks to maximize
everyone’s self-interest, or at least seeks to maximize everyone’s ability to
promote their own self-interest. Throughout this thesis, I will refer to this first
motive as the ‘self-interest-maximizing motive.’
12
For a look at some prominent recent contractarian accounts, see Gauthier, Scanlon, and Rawls.12
2. My bargainers will be motivated to formulate a set of rules that – while of
course seeking to promote self-interest – is nevertheless tempered by the need
for the moral system properly to respect and to give expression to their moral
status as persons. I will refer to this as the ‘personhood-respecting motive.’
The bargainers’ first motivation seems relatively unproblematic and in need of
little explanation here. Again, it is intended to be the same sort of motivation that is
appealed to in many of the traditional contractarian accounts. Two questions seem
immediately to arise, though, regarding the bargainers’ second motivation: First of all,
what is the ‘moral status’ that my bargainers believe themselves to bear insofar as they
are persons? What is this status, in other words, such that my bargainers are motivated to
recognize it by giving expression to it within the rules of the contract they adopt? And
secondly, what exactly is it for a system of morality adequately to give expression to this
status? Let us briefly examine the former question before going on, in the next two
chapters, to a more detailed look at how exactly my bargainers will formulate a system of
morality that gives proper expression to this status.
The moral status of persons that a set of rational bargainers will be motivated to
recognize and respect in the moral system they agree to adopt has, I believe, at least three
distinct, yet closely related, dimensions: persons are worthy of concern, they are ends-inthemselves, and they are inviolable. To say that persons are worthy of concern is roughly
to say, more simply, that they matter. Persons matter because things matter to them. As
such, there is always reason to promote the welfare of a person. The idea of a person as
an end-in-itself is a somewhat richer concept, one that likely overlaps somewhat with
both the ideas of persons as worthy of concern and as inviolable. For our purposes here,
though, the distinctive feature of persons that we will want to capture by thinking of them
as ends-in-themselves is the insight that, in Frances Kamm’s words, they “have a point
even if they do not bring about greater good.”
13
Following Thomas Nabel here we might
say that, where persons are concerned, the agent-relative, first-person point of view
matters at least as much as does the agent-neutral, third-person point of view.
14
And
13
Kamm, 355.
14
Here I use Thomas Nagel’s terminology from The View From Nowhere: ‘agent-neutral values’ are ones
that all persons equally have reason to promote. ‘Agent-relative values’, on the other hand, are those that
have special reason-giving force only from the perspective of a few individuals, or one individual.13
finally, while we might say that certain things should not be expected of persons, even for
the sake of promoting the greater overall good, inasmuch as they are ends-in-themselves,
so also certain things should not ever be done to them, even for the sake of promoting the
greater overall good. This is just to say that persons are inviolable.
Thus far, I have suggested that a contract approach will adequately ground a
moderate morality if we understand the bargainers’ motivations, not as they are portrayed
according to traditional contractarian accounts, but rather as twofold: as being concerned
both with natural and moral goods. The remainder of this thesis will be devoted to
explaining exactly how this twofold motivation leads to the constraints and options
required for a successful reply to Kagan’s challenge to moderate morality. Before we go
on to do this, though, we should note that the two aspects of my bargainers’ motivation
do not amount to the same thing. To say that the bargainers are motivated to promote
self-interest is not merely another way of saying they desire to formulate a set of rules
that gives proper expression to their moral status as persons. Instead, these two
motivations are quite distinct, and may at times even be in tension with each other. For
instance, as we shall soon see, there may be some actions that are perfectly compatible
with restrictions on behavior that would arise from the first motive alone, but that are
incompatible with the bargainers’ second motive. What this means is that in our effort to
ground constraints, their principled exceptions, and options all in the common source of
our bargainers’ desires, we must take extra care that the constraints, exceptions and
options we formulate be such that they adequately fit both dimensions of their twofold
motivation. 14
CHAPTER THREE: Modified Constraints
In this chapter, I will discuss exactly what sort of constraints will arise from the
contractarian account as I have laid it out thus far. Certain aspects of my bargainers’
motivations lead more naturally to a grounding of constraints than do others; therefore, I
will be focusing in this chapter on the bargainers’ self-interest-maximizing motive and
their desire that their moral system properly recognize persons’ inviolability.
I will argue that from the bargainers’ motivation to maximize self-interest we get
the typical restrictions on harming, killing, stealing, lying and so forth, on the grounds
that it is in everyone’s mutual self-interest to refrain from engaging in these sorts of
activities. Similar restrictions, I shall argue later, will also arise out of the bargainers’
second motive – though this motive will result in the bargainers’ adopting genuine
deontological constraints, rather than mere restrictions.
15
Next, I will go on to note that adopting these restrictions or constraints involves a
certain trade-off in each case. The bargainers will be motivated to make these trade-offs
as slight as possible; consequently, then, they will adopt modified constraints. As we
shall see, this results in the constraints’ being ‘defeasible,’ as the adoption of absolute
restrictions or constraints would oftentimes run afoul of the bargainers’ initial motivation
to adopt the social contract in the first place. To illustrate this, I will point to the
bargainers’ need to minimize the trade-offs threatened by free-riders and note that the
very possibility of such a threat illustrates the fact that any contractarian account, if it is
to have any hope of succeeding, must allow for exceptions. We will examine the way in
which the defeasibility of the constraints emerges both from the bargainers’ self-interestmaximizing motive and from the concern with persons’ inviolability that constitutes part
of their personhood-respecting motive. With regard to the former motivation, we will
note that the restrictions were only erected in the first place because they worked to
everyone’s mutual advantage, while free-riders seek to exploit these very restrictions and
use them to everybody’s mutual disadvantage . In this case, the restrictions are no longer
15
As I am using the terms here, ‘restrictions’ are prohibitions on certain types of behavior adopted because
of their utility, which can thus be overridden if utility so dictates. ‘Constraints,’ meanwhile, are
prohibitions on certain types of behavior grounded in some source other than utility; though it may be15
serving their original purpose; in fact, they are acting directly contrary to their original
purpose. Thus, the bargainers’ first motive will lead them to adopt a sort of ‘defeasibility
clause’ to complement the restrictions they’ve already adopted, and to address just this
concern. Such a clause will allow them to override the restrictions anytime doing so is a
necessary means to avoiding the dangers uniquely posed by free-riders.
As it emerges from the bargainers’ first motive, though, this ‘defeasibility clause’
would appear to permit intuitively impermissible exceptions. However, the clause takes
on additional features when it is modified so as also to fit the bargainers’ second
motivation. The personhood-respecting motive legislates against seemingly
impermissible exceptions (for example, the exception to the restriction on killing others
required in the case of ‘Transplant.’
16
) while still allowing for exceptions in cases of, for
example, self-defense. The result of all this, then, is that we see that the bargainers’
twofold motivation will lead them to adopt genuinely deontological constraints and a
‘defeasibility clause’ that generates the principled exceptions that would seem to be an
integral part of any worthwhile system of morality. I will then conclude the chapter with
a brief discussion of thresholds, which constitute a further modification to the constraints.
I. The self-interest-maximizing motive and restrictions on the pursuit of individual good
Let us start by examining the bargainers’ first motivation – their desire to
maximize self-interest. It has long been the hallmark of social contract theories that they
demonstrate that a set of rational bargainers will accept a set of advantage-overriding
restrictions on their behavior because, ultimately, accepting these restrictions is in their
best self-interest. As David Gauthier puts the point, “Duty overrides advantage, but the
acceptance of duty is truly advantageous.”
17
This feature of contractarian thought is
fairly obvious and standard, and can easily be illustrated by the example of the
“Prisoners’ Dilemma.”
possible that these prohibitions too may be overridden (in threshold circumstances, for example), they
cannot be overridden just anytime doing so will result in the greater good.
16
‘Transplant’: the example comes from Phillipa Foot, and asks us to imagine a scenario wherein a
relatively healthy, innocent hospital patient is sacrificed so that his organs may be re-distributed to save the
lives of five otherwise terminally ill patients.
17
Gauthier, David. Morals By Agreement. New York: Clarendon Press, Oxford, 1986. p. 2.16
A. The Prisoners’ Dilemma
This common illustration, borrowed from game theory, works as follows: imagine
that you and a friend are apprehended by the authorities and charged with a crime. You
are each taken to two separate interrogation rooms, from which you cannot communicate
with each other, and are presented with two options: you can either keep mum in response
to the authorities’ accusation, or you can betray your friend by implicating him as the
sole perpetrator of the crime. You and your friend are also advised that one of the
following three scenarios will obtain, depending on how each of you responds: (1) If both
you and your friend keep mum, you each spend three nights in jail. (2) If one friend
keeps mum while the other betrays, the friend who betrays goes scot-free, while the
silent-but-betrayed friend spends a month in jail. (3) If both friends betray each other,
each of them spends a week in jail. Obviously, each friend’s best bet is to betray the
other party, because regardless of the other party’s decision, betraying your friend offers
you the best odds of receiving the least amount of punishment. But, of course, if both
parties betray each other, they each needlessly wind up worse off than they could
otherwise have been. For had they been able to communicate with each other ahead of
time, and had they been able to trust each other, they each could have agreed to keep
mum, thus ensuring that both parties would have wound up better off than they would
have had they each betrayed the other – they each would have spent a mere three nights
in jail, rather than a week.
The situation in standard contractarian or social-contract accounts works much the
same way: in a lawless society, or in the state of nature, everything is permitted. Thus, if
I know that there is nothing stopping my neighbors from lying to me, stealing from me,
harming me, or even killing me for the sake of their own personal gain, then I would be
foolish if I did not also try to maximize my own self-interest by lying and stealing from
all my neighbors. Under such an arrangement, though, everybody winds up worse off
than they need be. For while my advantage is promoted by the fact that I can violate my
neighbors all I want in order to advance my lot in life, this benefit is more than
outweighed by the fact that all my neighbors are themselves each trying to steal from me,
lie to me, or harm me . . . anything that might advance their lot in life. The result is that I
am much worse off, because anything I might happen to gain by violating my neighbors17
is balanced out by, or likely outweighed by, everything I most certainly will lose to all
my advantage-seeking neighbors. And this same plight of course goes for everybody.
Being rational, then, we would all agree not to engage in stealing, lying, harming, killing,
and so forth, provided everyone else refrains from these activities as well. It is the
contractarian’s contention, then, that moral rules derive their normative force from the
fact that they are the ones we would agree to in such a situation. Such, then, is the
contractarian account of the origin of the standard restrictions against harming, lying, and
stealing. These restrictions, we have just seen, can be founded in my bargainers’ selfinterest-maximizing motive alone.
B. The trade-off
In addition to the restrictions considered above, though, the bargainers’ first
motive will lead them to adopt certain sorts of principled exceptions to these restrictions.
For consider this interesting feature of contractarian scenarios, which we have already
considered briefly: the bargainers in the social-contract setting are negotiating with each
other to see which restrictions they will adopt and adhere to as a preferable alternative to
living in the state of nature, a condition which we have already seen to be detrimental to
all parties. The restrictions that will be agreed upon, then, are adapted and suited to
conditions encountered in the state of nature. It is inevitable, however, that these
conditions will change somewhat once the community enters a state of society.
Obviously, one of the new conditions that the bargainers can expect to encounter in this
new, more civilized setting is that they can expect a change in the motives of their
fellows. No longer will their neighbors be the purely-self-interest-maximizing agents that
they were in the pre-social-contract condition; rather, they will be agents who, though
still self-interested, will pursue their own well-being under the restraints imposed upon
them by the restrictions to which they’ve agreed. However, it seems almost as obvious to
expect that in the new civilized state, they can expect something else as well: a host of
free-riders who will recognize the new opportunities that such a state of civilization
affords, and will seek to profit at others’ expense by ignoring the restrictions on
advantage to which they had agreed, all the while expecting others to remain committed
to them. Such a situation, it is important to note, can only arise once a community has
agreed mutually to adhere to a set of advantage-overriding constraints; these free-riders18
cannot pose a threat to our well-being, or to the overall good, in the state of nature. It is a
community’s very acceptance of a set of agreed-upon restrictions itself, and nothing else,
which opens up the possibility of such cases. Obviously, then, the adoption of certain
agreed-upon restrictions brings with it – due to the very nature of the community that will
arise should these new rules be implemented – the requirement that certain exceptions be
built into the structure of the restrictions. Thus, we see that any such account permits –
indeed, requires – the possibility of principled exceptions to at least certain restrictions in
order for the entire apparatus to be effective. And these exceptions are grounded in the
same principle that grounded the restrictions in the first place – in this case, the
bargainers’ self-interest-maximizing motive. Without these exceptions, as we noted
above, the set of restrictions will serve merely as one elaborate mechanism to be
exploited by, and serve the interests of, violators and free-riders.
The defeasibility of these restrictions will take two forms. First of all, we will
permit sanctions for the violators, as a means of punishment for the sake of deterrence
and social protection. This feature of contractarian accounts – that they allow for
exceptions to the rules for the sake of punishing violators – is widely recognized. But
furthermore, we must also build in reasonable exception clauses, allowing (for example)
for proportional harm to attackers in self-defense.
C. Minimizing the trade-off: the ‘principle of defeasibility’
So far, then, we have established that a certain feature of contractarianism –
namely, the threat of free-riders that arises once a community adopts the contract – yields
the necessity of allowing for certain principled exceptions to the restrictions that make up
the contract – the kinds of exceptions required both in the case of sanctions for wrongdoers and in some cases of self-defense. But which exceptions can be allowed, and
which cannot? How do we determine which exceptions, in other words, are ‘principled’?
Do the bargainers need to enumerate, for each restriction on behavior they agree to adopt,
a list of scenarios in which the restriction may be defeated or overridden, as part of the
terms of the contract? This seems as burdensome as it is ad hoc. Instead, I want to argue
that in addition to agreeing to whichever restrictions they happen to adopt, the bargainers
need simply agree to one further principle that will generate all the exceptions they need,
rather than specifying each individual acceptable exception. This principle might be19
called the contractarian ‘principle of defeasibility’, and would seem to be an essential
component of any successful contractarian account. The motivation for it has already
been discussed: the implementation of the social contract will itself open up the
possibility of a new kind of danger that the bargainers never confronted in the state of
nature: the threat of free-riders. Hence, in their formulation of the contract, the
bargainers will have reason not only to adopt principles that will minimize the evils they
encounter in the state of nature, but they will also have reason to adopt a further clause
that would seek to minimize the dangers uniquely presented by the implementation of the
contract. Roughly stated, the ‘defeasibility principle’ would sanction exceptions to
restrictions precisely insofar as those same restrictions are being exploited by free-riders
seeking to further their own advantage at the expense of the rest of the constraint-abiding
population. To the extent that a free-rider is breaking a restriction and violating an
innocent person, a restriction may be overridden if doing so is necessary for the
protection of the innocent, or to prevent the free-rider from succeeding in his efforts to
profit at the expense of the moral system. One might put the same point by saying that
“protection under the contract is conditional on conformity with the contract,”
18
and that
the extent to which someone breaks the contract in pursuit of personal gain is the extent
to which he forfeits his rights against others that they continue to adhere to the rules of
the contract when dealing with him.
Self-defense, of course, provides a concrete illustration of this: restrictions against
harming others are agreed to because, in the long run, they serve everybody’s greater
good. However, a free-rider should not expect his fellows to remain committed to these
restrictions while he breaks them in an effort to achieve undue gain; the contractarian
principle of defeasibility will permit the intended victims of the free-rider’s offense to
override the restriction if doing so is a necessary means to protecting themselves from the
free-rider’s violations.
This, then, is the way restrictions and their principled exceptions arise out of the
bargainers’ self-interest-maximizing motive. But our task is not done. For as we noted
above, we must be sure that whatever rules our bargainers agree to fit both dimensions of
18
Kagan 1989, p. 13520
their twofold motivation. Let us go on to consider the shape of the modified restrictions
that arise out of our bargainers’ second, personhood-respecting motive.
II. The personhood-respecting motive and restrictions on the pursuit of individual good
My bargainers’ second motivation will of course also lead them to adopt some sorts
of restrictions. At first glance, these restrictions will have pretty much the same shape as
the restrictions that emerge from the self-interest-maximizing motive. And the reason for
this should be fairly clear: lying to, stealing from, and harming other persons pretty
obviously constitutes disrespecting them and disregarding the moral status they bear
insofar as they are persons. Any moral system that will give proper expression to this
status, then, must surely prohibit such behavior. Upon a closer examination, though, we
will see that the restrictions arising out of the bargainers’ second motive have additional
features that are not shared with the simple restrictions that emerge from the bargainers’
first motive. For the restrictions that result from the bargainers’ second motive will not
merely be rules adopted because they are expedient in promoting everyone’s greater selfinterest. Instead, these restrictions will be adopted in order to give expression to the
moral status of persons. As such, they will confer rights upon all parties to the contract.
Assigning rights to the members of the moral community is not simply a matter of
expediency. It is a matter of determining what may or may not be done to or required of
a person, regardless of the promotion of overall self-interest that could thereby be
enacted. While the assigning and honoring of rights more often than not is expedient in
bringing about everybody’s greater self-interest, a system of morality that features
genuine constraints and rights demands that these constraints and rights be honored, even
on those relatively few occasions when not honoring them would be more expedient. So
the bargainers’ personhood-respecting motive leads not simply to restrictions on harming,
lying, stealing, and so forth, but to genuine deontological constraints against these things.
On their face, these constraints bear much the same shape as the mere restrictions that the
bargainers’ arrived at out of their first motive; the distinctive features of genuinely
deontological constraints will become clear, though, when we consider the extent to
which these constraints are defeasible – that is, the extent to which they will admit of
principled exceptions. In what follows, I will examine the way in which the bargainers’
particular motive to formulate a set of rules that recognizes and preserves persons’21
inviolable status alters the shape of the restrictions and their exceptions as they arise
solely out of the bargainers’ self-interest-maximizing motive.
To say that my bargainers “wish to formulate a set of rules that gives proper
expression to the inviolable status they bear as persons” requires a little bit more
explanation. To see what exactly is meant by this claim, let us examine in closer detail
the notion of inviolability and see what would be involved in adopting a set of rules that
gives proper expression to it. There are two main ideas that need attention in my
stipulation that my bargainers desire the system of morality they adopt to respect their
inviolable status as persons: first, the conception of 'inviolability,’ and second, the notion
of an ethical system's 'respecting' or 'giving proper expression to' this inviolable status.
A. Inviolability
Much has been made, in the philosophical discussion of recent years, of the ideas that
persons are in some sense 'inviolable' and that it is a desired feature of moral systems that
they 'respect' or 'give expression to' this inviolability.
19
It is generally thought that the
intuitions driving this discussion (and, presumably, my bargainers) are nonconsequentialist in nature. Nevertheless, some consequentialists have argued that these
intuitions regarding the sanctity of the individual and the inherent evil of violating
persons can be incorporated into a pluralistic theory of the good.
20
As such,
consequentialist moralities might be able to incorporate these intuitions into their systems
by assigning great negative weight to such violations and sanctioning actions or policies
that seek to minimize such transgressions. It is important to see that such a point of view
does not adequately capture the insight driving the discussion conducted by Kamm,
Nagel, and Quinn, nor does it fully reflect the intuitions my bargainers seek to see
recognized. This is especially important for our purposes, as we are committed to
demonstrating that our contractarian account leads not to consequentialism, but to
genuine, deontological constraints. If such a concern on the part of the bargainers might
be shown just as easily to lead to a consequentialist as to a non-consequentialist morality,
then our hope of grounding a moderate morality in the social-contract setting will fail.
19
See, for example, Quinn (1989), Kamm (1992) and Nagel (1995).
20
See, for example, Amartya Sen, “Rights and Agency,” Philosophy and Public Affairs 11 (1982), pp. 3-
39.22
The reason consequentialist endeavors to 'mimic' deontological constraints -- even
personhood-respecting, violations-minimizing constraints -- are bound to fail is that they
fail to recognize the very conception of the moral status of a person that Kamm, Nagel,
and my bargainers wish to respect in the first place. Frances Kamm clearly recognizes
the distinction between these two conceptions of the moral status of a person in her
discussion of the subject, when she says that "giving greater weight to the negative of
harming than to the positive of benefiting, I believe, represents the priority morality gives
to the inviolability of the person over his status as recipient of such benefits as length of
life."
21
Warren S. Quinn makes a similar recognition when he writes that morality, in
granting to each person primary say over what may be done with his body, mind, and life
(rather than giving primary control of these things to the community, as items to be
exploited in the service of its greater overall good), "recognizes [each person's] existence
as an individual with ends of his own – an independent being . . . Were morality to
withhold [this recognition] . . . it would picture him not as a being in his own right but as
a cell in the collective whole."
22
Both these authors seem to have clearly in view two competing notions of a person
and his or her status in a moral system: on the one hand, there is the idea of a person
primarily as both a recipient and a source of both benefits and harms, and as such, a
means to the maximization of the former and the minimization of the latter. On the other
hand, there is Quinn's characterization of a person as a being ("the ordinary sense of
"being," in which human persons, gods, angels, and probably the higher animals -- but
not plants, cells, rocks, computers, etc. -- count as beings."
23
), or Kamm's recognition of
persons, not as “mere means to the end of the best state of affairs, but ends-in-themselves,
having a point even if they do not serve the best consequences.”
24
No doubt we wish to
affirm that human beings bear both these statuses in some degree or another; the question
becomes whether or not one status is the primary one and takes precedence over the
other, and if so, which one.
21
Kamm 1992, 382.
22
Quinn, 156.
23
Quinn, 161.
24
Kamm 1992, 358-9.23
It seems pretty clear that from the consequentialist point of view, persons bear the
former status with much more force than they bear the latter. In fact, the extent to which
persons bear the latter kind of status merely serves to establish their recognition as endsin-themselves, or their inviolability, or anything else that is attendant with that status --
indeed, that very status itself -- as a good or a benefit, in the sense in which persons are
primarily the recipients of benefits, which can be reckoned in along with the other
ordinary benefits (goods of life, health, pleasure, etc.) of which they might be thought to
be recipients. In other words, this 'inviolable' status is merely a natural good, subject to
the utilitarian calculus which seeks the optimific distribution of goods among its subjects.
Only in such a way could a consequentialist argue that violations of personhood are a
very bad thing, which should be minimized even if that requires violating a few to
prevent a greater number from being violated.
From a non-consequentialist point of view, though, the inviolable status of persons is
a moral good. If persons are conceived of primarily as inviolable ends-in-themselves in
the way that Quinn and Kamm have characterized them, things look very differently than
they did on the consequentialist account. If persons do, as Quinn thinks, properly own
their bodies, minds, and lives, then they are not subject to the calculus of social utility in
the way many consequentialists think they are. For, "whether we are speaking of
ownership or more fundamental forms of possession, something is, morally speaking, his
only if his say over what may be done to it (and thereby to him) can override the greater
needs of others."
25
To say that a person is inviolable is just to say that his or her life,
body, mind, and so forth are his or hers to do with what he or she will, within the
constraints of morality – constraints, it should be noted, which exist in the first place for
the primary purpose of recognizing the fact of persons’ inviolability. If persons are
inviolable, then, they may not be harmed, lied to, or otherwise wronged, and furthermore,
their lives may not be subjected to the utilitarian calculus – not for the purposes of
increasing overall welfare, and not even for the purposes of ensuring that as few persons
as possible are violated. It is this latter concept of the status of persons that my
bargainers are seeking to see respected and recognized within the set of rules they agree
to formulate. And as we are already starting to see, not just any selection of moral
25
Quinn, 156.24
principles will do the trick here. For on such a view, the inviolability of persons is not a
natural good to be promoted within a moral system, but a moral good to be recognized by
the system.
B. Morality's 'giving proper expression to' the inviolable status of persons: genuinely
deontological constraints.
By arguing that persons are primarily bearers of the first type of status, Kamm,
Quinn, Nagel, and my bargainers are insisting that a certain inviolability accompanies
personhood. Such inviolability rules out the possibility that persons' lives might be
sacrificed for the greater good for any reason -- even if that reason is the reduction of
similar violations to other persons -- and therefore calls for the erection of genuinely
deontological constraints for the sake of recognizing this inviolability. Thus, while the
'person as recipient of goods' conceptions fits in best with consequentialism (indeed, we
might even say that each one implies the other), the 'person as inviolable' conception fits
in best with non-consequentialism. In fact, the inviolable status of persons – though it is
still compatible with thresholds
26
– is uncompromising in its demand for genuine
deontological constraints against, say, harming others.
The bargainers, then, will be motivated to adopt a moral system that reflects their
inviolable status -- they will adopt a system of deontological constraints. Notice that this
status is the sort of thing that must be reflected by the rules of morality -- it is not
something that should or even can be 'brought about' (or 'promoted', or 'maximized') by
the ethical system. In fact, it is the very essence of a properly ‘deontological’ constraint
that it be non-teleological. It is a matter of what can or may (justifiably) happen to a
person, not what actually does happen to him. Furthermore, the erection of these
constraints results in the parties to the contract being endowed with certain rights. These
points have been stressed heavily in the recent discussion of this topic. Warren Quinn
states that,
The value that lies at the heart of my argument -- the
appropriateness of morality's recognizing us as independent
beings -- is in the first instance a virtue of the moral design itself.
The fittingness of this recognition is not a goal of action, and
therefore not something that we could be tempted to serve by
26
‘Thresholds’ are points above which the evil that would result from adhering to a constraint might be so
great as to override the constraint. They will be discussed in more detail in section III-E below.25
violating or infringing anybody's rights.
27
Thomas Nagel carries out an extensive discussion of the relationship between
these constraints, rights, and inviolability in Part III of his article "Personal Rights and
Public Space." He argues that, in order fully to understand the role of rights as a part of a
non-consequentialist morality, we need to understand "the status conferred on all human
beings by the design of a morality which includes agent-relative constraints of this kind.
The status is that of a certain kind of inviolability, which we identify with the possession
of rights."
28
Rights belong properly to a non-consequentialist, moderate morality
precisely because they
prohibit us from doing certain things to anyone but do
not require that we count it equally a reason for action that it
will prevent those same sorts of things being done to someone
else, but not by oneself . . . Rights tell us in the first instance
what not to do to other people, rather than what to prevent from
happening to them.
29
This, to Nagel, leads to a certain "paradoxical" feature of constraints and rights, insofar as
a right or a constraint "may sometimes forbid us to do something that would minimize its
violation -- as when we are forbidden to kill one innocent person even to prevent two
other innocents from being killed."
30
But this paradoxical feature just arises from the fact
that, not only are the goods promoted by a set of moral rules important, but it is also
important that a certain status be conferred or recognized by such a system:
If . . . it is permissible to kill the one to save the two
[from being killed unjustly], that implies a profound difference
in the status of everyone . . . In the world with no rights and
fewer killings, no one would be inviolable in a way in which,
in the world with more rights and more killings, everyone would
be -- including the victims.
31
For
what actually happens to us is not the only thing we
care about: What may be done to us is also important, quite
apart from whether or not it is done to us . . . we are trying to
explain the moral significance of agent-relative rights by say-
27
Quinn, 157-158.
28
Nagel, 89.
29
Nagel, 88.
30
Nagel, 90.
31
Ibid.26
ing that not only is it an evil for a person to be harmed in certain
ways, but for it to be permissible to harm the person in those
ways is an additional and independent evil.
32
As this applies to our contractarian view, we might say, “Natural goods are not the only
concern of a set of rational bargainers; they will be concerned with moral goods as well.”
Frances Kamm perhaps puts the point against the consequentialist best of all,
when she asks,
Would it not express greater concern for this conception of the person [as an inviolable end-in-itself] if we minimized the number of occasions on which people were not permitted to choose, even if this meant occasionally depriving
someone of choice by obliging him to make a big sacrifice that
ensured that others might choose? My view is that permitting
this means to minimization . . . would defeat the very ideal of
the person as an end-in-itself that was supposedly the object of
concern. For if such an obligation were appropriate, the individual would no longer be someone who was not 'for' the greater
good, as he would be available for minimizing interference with
the value of choice.
33
C. The trade-off
But Kamm also takes note of another almost 'paradoxical' element of the
right/constraint structure of such morality, similar to the paradoxical element that Nagel
wrote about. This involves the trade-off required, which both Kamm and Nagel discuss:
we may foresee that there actually may be more rights- or personhood-violations (more
killings, stealings, etc.) in this system that supposedly gives such a high premium to
constraints against violating persons, than we would in certain consequentialist systems
that sanctioned any means necessary to the minimization of such violations. However, as
Kamm points out, by adopting such a morality, we are not actually sanctioning these
violations, even as we foresee that they may occur. She writes:
If morality permitted minimizing violations of persons
by violating other persons, then each of those saved as well as
those persons used to save others would be less inviolable. It
is the permission, not any actual violation of persons, that
makes this so. If more violations of constraints actually occur
because violations are not permitted, this does not mean that
morality endorses the correctness of these harmings. More
32
Nagel, 91.
33
Kamm 1992, 359.27
people are harmed, and so the chances of each of us being
harmed may well be greater; but the conception of each person
that is morally endorsed involves a high degree of inviolability.
We may all lead harder lives, but our dignity is greater. We
may actually prefer this trade-off.
34
While Kamm may be right that we would prefer this trade-off, I think it is once
again obvious that we would desire as slight a trade-off as possible. And this just goes to
show the importance of having sanctions in our moral system: not only must we be
permitted to perform acts, normally prohibited, against offenders after the fact of their
having violated the rights of others (for instance, we should be allowed to imprison them
as a means of disciplining them), but we must also permit exceptions to constraints as a
means of protecting ourselves from attacks on our inviolability right as they occur. Thus,
this 'paradoxical' feature of our contract-based, personhood-respecting moderate morality
makes all the more pressing the need for our successful effort to ground principled
exceptions to constraints in cases of self-defense. For, if constraints could never be
defeated, and inviolability absolute, in the sort of way that it could never be forfeited,
imagine what life would be like. We would be totally at the mercy of people who sought
to exploit these constraints for their own purposes, seeking to profit from their own
violations of constraints, secure in the knowledge that we ourselves remained committed
to honoring the same constraints, even at the expense of allowing a greater number of
rights violations. While this may be acceptable in some instances -- we do not think
morality should require, or even permit, our acting in accord with the terrorist who
demands we kill one innocent person, lest he murder two -- nevertheless, we do not think
that morality should legislate against our using force and inflicting harm, if necessary, on
someone who is himself attempting to violate our rights by harming us. So we must
allow that, in some cases at least, violators of inviolable persons thereby relinquish or
forfeit their inviolable status; otherwise, the set of constraints will merely serve as one
elaborate mechanism to be exploited by, and serve the interests of, violators and freeriders.
34
Kamm 1992, 383.28
D. Minimizing the trade-off
So the bargainers’ second motive will lead to their acceptance of some sort of
defeasibility clause as well. However, it will have a different shape than the clause that
arises solely from the bargainers’ first motive. This is so because many of the exceptions
that would be permitted by the defeasibility clause as it emerges for the bargainers’ first
motivation alone would require disrespecting the inviolable status of persons that the
bargainers are motivated to respect. For example, the exception to the restriction on
killing others required in the case of ‘Transplant’ might be permitted by the self-interestmaximizing motive. This is so because permitting such exceptions would increase the
average overall welfare; any bargainers seeking only to maximize their welfare would
surely be rational to agree to exceptions that will increase their chances of being better
off. However, my bargainers are not interested only in maximizing their chances of
being well off, and the bargainers’ personhood-respecting motive will require the
modification of this defeasibility clause. As we saw in the discussion of inviolability
above, to say that a person is inviolable is in part to say that he or she cannot be required
to sacrifice his or her well-being simply because doing so would serve the greater overall
good. Shaping the defeasibility clause so that it matches the bargainers’ second
motivation, then, eliminates the possibility that it will sanction ‘Transplant’-style
exceptions.
Even though the bargainers’ second motive does allow these types of exceptions,
however, it will still press upon them the necessity of sanctioning some exceptions, and
thus of adopting some sort of defeasibility clause. It is just that the exceptions allowed
cannot compromise persons’ inviolable status. In order to make the trade-off Kamm
discusses as slight as possible, the bargainers will be motivated to stipulate that, although
rights-violations are not permitted even to minimize the occurrence of rights-violations,
those who do violate others’ rights forfeit their own rights to the same degree. Thus,
while harming persons disrespects the moral status they bear as persons, and as such is
prohibited by the constraints the bargainers’ adopted due to their personhood-respectingmotive, someone who himself is harming or has harmed innocent people has forfeited at
least some of his right against us that we not harm him. Therefore, by harming him in
self-defense, or by harming him by meting out sanctions against him, we are not violating29
him or disrespecting his moral status as a person, because we are not actually infringing
any of his rights.
E. A further modification of the constraint: thresholds
We must note briefly that one other feature of the constraints emerges from the
bargainers’ twofold motivation: thresholds. The belief in thresholds – that is, the belief
that the evil that will result from not breaking a constraint or violating a right might
sometimes be so great that the constraints can in those cases be overridden – emerges
also from the bargainers’ second motive. We have already seen how this personhoodrespecting motive leads to genuinely deontological constraints. This was because in their
concern to formulate a set of rules that gave proper expression to the moral status of
persons, the bargainers sought properly to recognize persons’ inviolability with their
rules. Hence they adopted constraints, rather than the mere restrictions that emerged
from the bargainers’ self-interest-maximizing motive. However, we must recall that
inviolability is not the only feature of this moral status of persons that the bargainers
wished to respect. According to this view of persons’ moral status, people are also
‘worthy of concern.’ Although this feature of persons is generally not as strong as their
inviolability, it does count. And indeed, there may be cases in which the ‘worthiness of
concern’ of the many might be strong enough to override the inviolability of the one. It is
important to note, though, that in agreeing to such thresholds, the bargainers are still in
keeping with their personhood-respecting motive, in exactly the same way in which
agreeing to the inviolability-honoring constraints in the first place represented their
personhood-respecting motive. It is simply that the bargainers recognize that, though
important, the inviolability of persons is not the only dimension of their moral status that
they wish their moral system to respect – hence the incorporation of thresholds into this
moral system.
III. Conclusion: The shape of the modified constraints.
In closing, then, we see that the bargainers’ self-interest-maximizing motivation
will result in their adopting particular restrictions against lying, stealing, harming and
killing, as the overall adherence to these restrictions will increase everyone’s average30
welfare. The bargainers’ personhood-respecting motive then adds further content to these
restrictions by insisting that they be genuine deontological constraints. This distinction
between ‘restrictions’ and ‘constraints’ is most fully illustrated by considering the
different ways in which they are defeasible: restrictions can be overridden for the sake of
the greater good (for they were erected in the first place solely for the purpose of serving
the greater overall good), while constraints cannot. The defeasibility of restrictions is
compatible with the action required in ‘Transplant’; the defeasibility of constraints is not.
These constraints express more than just the bargainers’ desire to maximize
overall well-being – they give voice to the bargainers’ desire that their moral system give
adequate expression to their moral status as persons. The erection of constraints respects
the sanctity of each person, as they protect persons from infringement not only insofar as
this protection leads to the greater overall good, but even in those cases where infringing
persons actually would be optimific.
Still, though, these constraints admit of principled exceptions. In fact, special
features of the social-contract scenario seem to require the adoption of some sort of
‘defeasibility clause.’ Such a clause generates the exceptions necessary to prevent the
social contract, once implemented, from collapsing back onto itself, as it were, by
enabling free-riders to exploit the system to their own advantage. The bargainers’ first
motive leads to the formulation of just such a principle, which justifies exceptions
anytime adherence to the restrictions would be directly contrary to the initial self-interestmaximizing motive that led to the adoption of the restrictions in the first place. Once
again, though, the bargainers’ second motive steps in to modify this defeasibility
principle, requiring that only exceptions that are compatible with the moral status of
persons may be permitted. (This is just to say that only the exceptions that are
compatible with genuine constraints may be permitted.) The result so far, then, is a
system of morality which yields deontological constraints that are tempered by thresholds
and admit of exceptions in cases of, for example, self-defense and sanctions for wrongdoers, but do not admit of just any exception that will increase the overall good.
Furthermore, these constraints and their exceptions are grounded in a common source:
the bargainers’ twofold motivation.31
CHAPTER FOUR: Options
So far, we have seen how our contractarian story grounds constraints and their
principled exceptions mainly in the bargainers’ self-interest-maximizing motive and in
the inviolability-respecting aspect of their personhood-respecting motive. After briefly
considering how they are compatible with these same two elements of the bargainers’
motivation, this chapter will proceed to give a more detailed explanation of how exactly
options might plausibly be generated from the two aspects of the bargainers’ second
motive that have heretofore been little-discussed: the concerns to express persons’
worthiness of concern and their status as ends-in-themselves.
I. Self-interest and options: the appeal to cost
People often try to defend options by appealing to the ‘cost’ imposed on persons
if they had always and only to fulfill their duty to promote the overall good at the expense
of pursuing individual goals.
35
This is a cost, it is argued, that morality cannot reasonably
expect persons to bear. Such an argument clearly rests on an appeal to self-interest, and
thus seems to be the sort of justification of options that might arise solely from the
bargainers’ first motive.
While perhaps initially plausible, this argument suffers the drawback that it seems
to be incompatible with our previous justification of constraints. For if certain actions
promoting the greater overall good may legitimately be avoided on grounds that their cost
to the agent would be too high, might not adherence to certain constraints also be avoided
in some circumstances, if such adherence would also be of great cost to the agent? That
is, if we can appeal to the excessive cost demanded of us as a reason not to give
significant portions of our earnings away to charity, why might we not also make this
appeal to cost as a reason not to refrain from secretly murdering our rich uncle Albert,
from whom we stand to inherit a small mint?
36
Adherence to the constraint against
killing others, in this case, is costing us just as much as, or even more than, many actions
that would promote the overall good, but which we may think we legitimately have the
option not to perform. Such an appeal to cost, then – at least without further
35
Kagan discusses this idea on pp. 21-4 and in Chapter 7 (pp. 231-270) of The Limits of Morality.
36
This example is discussed by Kagan, p. 4.32
consideration – cannot serve as our exclusive justification for options. But again, the
self-interest-maximizing motive is not the only motive of which our bargainers will want
to avail themselves. While the appeal to cost may be a partial but nonetheless legitimate
component of our defense of options, let us see if a more successful and thorough
grounding of this last component of moderate morality is available to us in the
bargainers’ second motivation.
II. The personhood-respecting motive and options
We may be tempted to ask ourselves first of all if options are even the sort of
thing we need to justify in arguing for our moderate morality on the basis of the
bargainers’ twofold motivation. For it may be objected that ‘options’ presuppose that
there is something that needs to be opted out of in the first place. For Kagan, at least,
there is a pro tanto reason to promote the overall good – a reason, he thinks, the moderate
is committed to accepting.
37
And so on his account, it is precisely the moderate’s
acceptance of the pro tanto reason that necessitates her defense of options as part of her
successful overall defense of moderate morality. But, we may think, we have been
arguing so far on the basis of a particular conception of the bargainers’ motivation, and as
we have conceived it, this motivation – particularly, the bargainers’ motivation to capture
within the rules of the contract a certain ideal of the moral status of a person – is itself
incompatible with the existence of the pro tanto reason to promote the greater overall
good. This is so because our conception of the moral status of a person precludes
persons’ being in any way merely instruments of serving the greater overall good. But
the pro tanto reason to promote the overall good presupposes a picture of persons as
primarily or exclusively recipients of benefits and services and sufferers of evils, and also
as means thereby of maximizing the former and minimizing the latter. Thus, the
argument might continue, our very defense of moderate morality has already, from the
start, eliminated even the need to defend options; we will already have succeeded in
defending moderate morality against the extremist, then, simply by grounding legitimate
constraints in this conception of the moral status of a person.
But while it is true that our bargainers’ desire to preserve persons’ status as endsin-themselves does preclude persons’ being conceived merely as instruments of the
37
See his arguments on pp. 48-52.33
greater good (and, of course, partially constitutive of this greater good), it does not deny
entirely that people do have duties towards this end. For in addition to arguing that
persons are inviolable and ends-in-themselves, we have also stipulated (in the third aspect
of our bargainers’ conception of the moral status of a person) that persons are worthy of
concern. And to say that persons are worthy of concern is precisely to say that they are
the sorts of beings capable of generating a valid pro tanto reason to promote their good
(whether individually, in acts of charity or supererogation, or insofar as their good is
bound up with the good of the greater whole). As moderates, then, we are committed to
this pro tanto reason after all; still, though, our conception of persons’ moral status as a
whole supports both the acceptance of this reason and options.
As Kagan is thinking of it, the pro tanto reason to promote the overall good is an
insistent reason for action – one “demanding action in the absence of countervailing
considerations.”
38
Such a reason may encounter countervailing reasons in the form of
certain constraints on what may be done to promote the overall good (though Kagan is
skeptical of this possibility), but as he argues at great length throughout his book, none of
the reasons that might ever serve to override the insistent reason to promote the good will
ever take the form of anything like options. Hence, he thinks, acceptance of the pro tanto
reason commits one to extremism – and, short of one’s ability to defend constraints, to
consequentialism. But – though our affirmation that persons are indeed worthy of
concern does commit us to accepting the pro tanto reason – does it require that this
reason be an insistent reason? Might not the ‘persons as worthy of concern’ dimension of
our personhood-respecting motive simply generate a non-insistent reason to promote the
greater overall good? Such a non-insistent reason is one that, at any time an agent
wanted to, could be invoked to justify her action (provided that that action does not
violate a constraint), but is not in need of countervailing considerations in order for the
agent to be justified in not acting on it.
I believe that in fact, the ‘persons as worthy of concern’ dimension of the
bargainers’ second motivation can and must generate a non-insistent reason to promote
the overall good. For otherwise, this aspect of the personhood-respecting motive would
be at odds with the belief that persons are ends-in-themselves – that they “have a point
38
Kamm 1992, p. 356.34
even if they do not bring about greater good.”
39
While the bargainers’ belief that persons
are worthy of aid and concern generates an agent-neutral pro tanto reason, in general, to
promote their well-being, their belief that persons are also ends-in-themselves generates a
sort of agent-relative pro tanto reason for persons to promote their own individual good.
If both of these are to be legitimate, neither one can be insistent. Simply stated, a
person’s status as an end-in-itself is incompatible with the priority given to the impartial
perspective presupposed by the claim that there is an insistent pro tanto reason to
promote the good. Similarly, the rejection of any sort of pro tanto reason to promote the
overall good is incompatible with the agent-neutral value that arises from our bargainers’
concern to preserve persons’ status as beings who are worthy of concern. (It is worth
noting, too, that this very dimension of our bargainers’ motivations that leads to the
acceptance of the non-insistent pro tanto reason is an indispensable component of a
successful defense of contract-based moderate morality. For it is this belief that persons
are worthy of concern that generated the threshold modifications to constraints, and thus
enabled us in the first place to defend a non-absolutist – and thereby plausible – version
of moderate morality.)
In conclusion, then, we see that the bargainers’ personhood-respecting motive
leads to the acceptance of the validity of both agent-relative and agent-neutral values as
sources of reasons for an agent’s actions. Thus, our moderate can agree with Kagan in
accepting the pro tanto reason to promote the greater overall good (as a consequence of
her commitment to persons’ worthiness of concern), while still defending options (as a
necessary consequence of her belief that persons are ends-in-themselves). These options,
too, are compatible with the bargainers’ insistence on the inviolability of persons and
with their commitment to promoting self-interest (expressed in their appeal to cost as an
argument in favor of options).
III. Concluding Remarks
If the contract-based account I have sketched in this thesis is plausible, then it
seems that Shelly Kagan’s claim that the moderate cannot appeal to contractarianism as a
means of defending moderate morality is mistaken. For I have shown that if (as may
reasonably be assumed) a set of rational bargainers is motivated not only to arrive at a
39
Kamm 1992, p. 355.35
system of morality that maximized overall well-being, but also to formulate a set of rules
that properly recognized and respected their moral status qua persons, then they would
agree to a system of both genuinely deontological constraints that yielded principled
exceptions when necessary and options. In short, my bargainers would adopt a genuinely
moderate morality, casting serious doubt on Kagan’s claim that any appeal to the contract
approach will yield only extremist morality.
The reason this contractarian account succeeds in grounding a moderate morality
while (in Kagan’s mind, at least) all others fail is no doubt due to the addition of a second
dimension to the bargainers’ motivation – the personhood-respecting motive. The extent
to which this motive is a plausible one for rational bargainers to adopt, then, is the extent
to which we might hope for a contractarian defense of moderate morality after all. To see
why the bargainers’ personhood-respecting motivation provides such a promising means
of founding a full-ledged moderate morality, simply consider, for example, the
correspondence between each of three aspects of the moral status of persons and the three
commitments which Kagan identifies as distinctive of the moderate’s position: the belief
that persons are worthy of aid leads to an acceptance of the pro tanto reason; the belief
that persons are ends-in-themselves leads naturally to the commitment to options; and the
belief that persons are inviolable lends itself to the erection of constraints.
Frances Kamm has recently written that “we cannot permissibly ‘bargain away’
our moral status not to be treated in certain ways to increase our life prospects or
minimize rights violations. Our moral status is inalienable.”
40
I hope to have
demonstrated that if such an insight is developed into a full-blown contractarian theory,
we will have available to us the means of defending moderate morality against Kagan’s
challenge to it in The Limits of Morality.
40
Kamm 2000, p. 218.36
BIBLIOGRAPHY
Gauthier, David. Morals By Agreement. New York: Clarendon Press, Oxford. 1986.
Kagan, Shelly. The Limits of Morality. New York: Clarendon Press, Oxford. 1989.
__________ Normative Ethics. Boulder: Westview Press, 1998.
Kamm, Frances. “Non-Consequentialism” in The Blackwell Companion to Ethical
Theory, Hugh Lafollete, ed. Oxford: Blackwell Publishers, 2000.
Kamm, Frances. “Non-Consequentialism, the Person as an End-in-Itself, and the
Significance of Status.” Philosophy and Public Affairs 21, no. 4 (1992).
Princeton University Press.
Nagel, Thomas. “Personal Rights and Public Space.” Philosophy and Public
Affairs, 1995, pp. 83-107. Princeton University Press.
Nozick, Robert. Anarchy, State and Utopia. Basic Books, 1974.
Rawls, John. A Theory of Justice, revised edition. Cambridge: Belknap Press, 1999.
Scanlon, T.M. What We Owe to Each Other. Cambridge: Belknap Press, 1998.
Quinn, Warren S. “Actions, Intentions, and Consequences: The Doctrine of Double
Effect.” Philosophy and Public Affairs, 1989. Reprinted in Ethics: Problems
And Principles, John Martin Fisher and Mark Ravizza, eds. Harcourt Brace
Jovanovich, 1992.
Vallentyne, Peter, ed. Contractarianism and Rational Choice: Essays on David
Gauthier’s Morals by Agreement. New York: Cambridge University
Press, 1991.37
Vaughn Bryan Baltzly
Bryan Baltzly hails from a small and very pleasant town in northwest Ohio called
Wauseon. He attended Hillsdale College, in a small and pleasant town in south-central
Michigan, for four years after high school. After earning a bachelor of arts degree there
in 1999, with majors in English and philosophy, he came to small, pleasant Blacksburg to
pursue an M.A. in philosophy from Virginia Tech. Finding academia quite to his liking,
he then sought and secured admission to the Ph.D. program at the University of
Maryland-College Park, very near to Washington DC – which is neither small nor
particularly pleasant. There Bryan will adjust to urban life and continue his graduate
studies through the “Committee on Politics, Philosophy, and Public Policy.” He hopes to
earn both a master’s in public policy and a doctorate in philosophy, and then wield his
over-educated brain in both the academic and the political arenas.
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