Politics, Philosophy & Economics: A Deliberative Model of Contractualism

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A deliberative model of contractualism

Nicholas Southwood Politics Philosophy Economics 2008 7: 183 DOI: 10.1177/1470594X08088728 The online version of this article can be found at: http://ppe.sagepub.com/content/7/2/183
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politics, philosophy & economics

SAGE Publications Ltd London Thousand Oaks, CA and New Delhi 1470-594X 200805 7(2) 183208
article
A deliberative model of contractualism

Nicholas Southwood
Australian National University, Australia
abstract
Despite an impressive philosophical pedigree, contractualism (or contractarianism) has only been properly developed in two ways: by appeal to the idea of an instrumentally rational bargain or contract between selfinterested individuals (Hobbesian contractualism) and by appeal to the idea of a substantively reasonable agreement among individuals who regard one another as free and equal persons warranting equal moral respect (Kantian contractualism). Both of these existing models of contractualism are susceptible to apparently devastating objections. In this article, I outline a third, deliberative model of contractualism, which is based on the idea of a deliberatively rational agreement and which, I argue, represents a significant improvement on the Hobbesian and Kantian models in certain important respects. contractualism, contractarianism, deliberation, deliberative rationality, Scanlon, Gauthier
keywords
The past 30 years have borne witness to a remarkable proliferation of different models of consequentialism within moral and political theory: utilitarian and non-utilitarian models; actual-utility and expected-utility models; act-based and non-act-based (for example, rule- or disposition-based) models; maximizing and satisficing models; direct and indirect models; subjective and objective models; actualist and possibilist models, and so on and so forth.1 Doubtless, some of the work in this period has been distinction-mongering for the sheer sake of it.2 However, it has also achieved some real progress. As a result, we now have an embarrassment of consequentialist riches at our disposal. Sadly, the same is not true of contractualism. Contractualism (or contractDOI: 10.1177/1470594X08088728 Nicholas Southwood is a Postdoctoral Research Fellow, Philosophy Programme, Research School of Social Sciences, Australian National University, Australia [email: nfs@coombs.anu.edu.au]
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politics, philosophy & economics 7(2)
arianism)3 is the thesis that the foundations or ultimate grounds of morality lie in actual or hypothetical agreements.4 Like consequentialism, there are, in principle, many ways in which this thesis might be developed. In practice, however, it has only been properly developed in two ways. There is the model of contractualism associated particularly with Thomas Hobbes, based on the idea of an instrumentally rational bargain or contract between self-interested individuals.5 In addition, there is the model of contractualism associated particularly with Immanuel Kant, based on the idea of a substantively reasonable agreement among individuals who regard one another as free and equal persons warranting equal moral respect.6 I believe that contractualists would do well to follow the example set by their consequentialist rivals and look further afield. In this article, my aim is to give an example of what I have in mind by outlining a model of contractualism that I shall call deliberative contractualism. The central thesis of deliberative contractualism is that the foundations of morality are to be located in hypothetical, deliberatively rational agreements regarding the terms upon which we are to be permitted, forbidden, and required to conduct ourselves towards others. Deliberative contractualism has important affinities with the theory of discourse ethics proposed by Jrgen Habermas7 and further refined by theorists of so-called deliberative democracy as an account of political legitimacy.8 However, it has remained largely absent from foundational moral and political theory. This is a pity. For it is, or so I shall suggest, a model that deserves to be given serious consideration. The article is in three main sections. I shall begin, in Section I, with a brief discussion of the Hobbesian and Kantian models of contractualism, drawing attention to where and why, or so I believe, they fail as accounts of the foundations of morality. In Section II, I shall present in rough outline the alternative deliberative model of contractualism that I favour. In Section III, I shall suggest that deliberative contractualism represents an improvement on the Hobbesian and Kantian models in certain important respects.
I. Beyond Hobbes and Kant

As I have said, I believe that we ought to go beyond the existing (Hobbesian and Kantian) models of contractualism and explore the possibility of alternative models. Before doing so, it will be useful to say something about the existing models where they ultimately fall short and why. Consider, first, Hobbesian contractualism. Hobbesian contractualists hold that the foundations of morality are to be located in instrumentally rational agreements. To say that a course of action is instrumentally rational is to say that it best realizes the agents desires or goals given her beliefs.9 According to Hobbesian contractualists, the relevant morality-grounding agreements are, in effect, mutually advantageous bargains or contracts that are, or would be, entered into by
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Southwood: A deliberative model of contractualism
narrowly self-interested individuals concerned solely with the aim of furthering their own ends. The impetus for entering such bargains or contracts comes from the fact that, in the absence of constraints, individual instrumentally rational conduct would lead to suboptimal (indeed, in some cases positively disastrous) outcomes. On the other hand, by agreeing to constrain their conduct in certain ways (that is, by cooperating) individuals are able to attain outcomes where each is better off than in the absence of cooperation. Hobbes himself often speaks as if these agreements are supposed to be actual agreements to establish a sovereign with unrestricted powers, whose laws and dictates are then taken to constitute what is permissible, impermissible, and obligatory.10 However, most Hobbesian contractualists depart from Hobbes in both of these respects, holding more plausibly that the agreements in question are hypothetical agreements to live by a set of principles.11 The problem with Hobbesian contractualism, as many others have noted, is that there are central features of morality that it is simply unable to account for. This is because it is based on a conception of practical reason (the instrumental conception) that is exceedingly normatively thin. In imaginatively transposing oneself into the Hobbesian contractual situation, there is no ascent to a point of view in which ones subjective, personal, and partial perspective is appropriately transformed. Consider, for example, moralitys impartiality. To say that morality is impartial means, at the very least, that all sane adult humans have moral standing irrespective of their power, strength, dominance, wealth, and so on. Hobbesian contractualism is unable to vindicate even this extremely weak impartialist constraint.12 Whether any given individual A possesses moral standing, according to Hobbesian contractualism, is determined by whether it is in the interests of other individuals to agree to principles that would, in effect, grant her such standing by making her an object of the principles. So, unless it is in the interests of other individuals to agree to such principles, individuals are de facto entitled to do anything whatsoever to A: to torture her, kill her, maim her, or whatever. But whether it is in the interests of another individual B to agree to principles granting A moral standing is determined by what B can gain from doing so. This in turn depends at least in part on how powerful, strong, dominant, wealthy, and so on B is relative to A. If A and B are relatively equal in terms of power, strength, dominance, wealth, and all the rest, then (other things being equal) it is likely that it will be in the interests of B to attempt to reach an agreement with A. By contrast, if there is a sufficient discrepancy in power, strength, dominance, and wealth in favour of B, then it may be that B would do better not to agree to constrain her behaviour towards A. Another example concerns moralitys distinctively second-personal normativity.13 In saying that an agent S is subject to a moral requirement to perform some act x we imply not merely that S has a reason to perform x, but that this reason must make essential reference to others such that others are entitled to
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expect S to perform x and that S is accountable to others in respect of the performance or non-performance of x, and that in so far as S (knowingly) fails to perform x, others have reasons to punish or at least to heap blame upon S and that S has reasons to feel remorse and guilt, and perhaps to take steps to compensate any individual whom S has wronged.14 The problem is that normativity for Hobbesian contractualists is exhausted by individuals prudential reason; as such, it is essentially first-personal. If Oscar has a reason to save Lucinda from drowning, then, according to Hobbesian contractualism, this can only be because doing so satisfies some desire or preference of Oscars. Lucinda is strictly incidental to Oscars reason to save her. Alternatively, consider guilt and remorse. If Hobbesian contractualists are right about the rationality of acting in accordance with requirements established via Hobbesian contractual agreements, there is a perfectly legitimate sense in which wrongdoers have let themselves down by violating these requirements, for they have failed to act as they rationally ought. In that sense, it is perfectly appropriate for wrongdoers to engage in a certain kind of self-scrutiny and even self-criticism, to feel angry or disappointed with themselves, to feel that they have let themselves down, and so on. The point is that whatever feelings are appropriate for individuals who have violated Hobbesian contractual agreements to experience, they have nothing to do with feelings of guilt and remorse. Self-directed anger and disappointment are just that, namely self-directed. But guilt and remorse are not just self-directed in this way. They are also essentially other directed. To experience guilt and remorse is to feel as if one has let others down, that others are entitled to feel that one has let them down, and so on. Guilt and remorse are thus completely different from selfdirected feelings. This is not merely a matter of degree. Rather, it is a matter of kind. Guilt and remorse are distinctive kinds of emotions. Hobbesian contractualists have no resources for accounting for why wrongdoers have reasons to experience them. What about Kantian contractualism? Kantian contractualism holds that the foundations of morality are to be located in facts about what it would be reasonable for all individuals to agree to (or unreasonable for any individual not to agree to) from a common standpoint governed, not by self-interest and mutual advantage, but by a moral ideal of mutual respect among free and equal persons.15 Kantian contractualism thus differs from Hobbesian contractualism in two key respects. First, whereas Hobbesian contractualism is based on a procedural conception of practical reason (such that whether a given course of action counts as rational is simply a matter of whether it is related to the relevant inputs [the agents desires and beliefs], whatever these are, in the right way), Kantian contractualism is based on a substantive conception of practical reason. The reasonableness of a course of action is a matter of doing whatever is best supported by the relevant substantive reasons one has.16 As Scanlon puts it, a claim about what is reasonable presupposes a certain body of information and a certain range of reasons which are taken to be relevant, and goes on to make a
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claim about what these reasons, properly understood, in fact support.17 Second, whereas Hobbesian contractualists hold that contractors are motivated solely by narrow self-interest, Kantian contractualists hold that the relevant agreements are undertaken from a common perspective as one free and equal person among others.18 This requires that individuals are moved by others reasons, so long as the others in question are moved likewise, which by stipulation they are. It is a condition of entry into the Kantian contractual situation that the reasons in virtue of which it is reasonable or unreasonable for all Kantian contractors to agree or not to agree to a principle are themselves shared. To adopt the standpoint of a Kantian contractor is, in effect, to commit oneself to being guided by a common stock of reasons: the reasons that any individual can recognize as salient, given the aim of finding principles for the general regulation of behaviour that others, similarly motivated, could not reasonably reject. On the face of it, Kantian contractualism might appear to be better placed than Hobbesian contractualism to offer a plausible account of the foundations of morality. The problem, however, is that even in so far as it is faithful to morality,19 serious doubts can be raised about its explanatory adequacy and hence whether it is capable of grounding morality.20 One worry is that it is arguably guilty of presupposing part of what it purports to explain; that is, it appears to be partially circular. Consider the account of persons that is implicit in the motivational characterization of the Kantian contractual situation. Even before they have agreed or failed to agree to any principles, individual persons are, by their very nature, entities that warrant equal respect in their own right. In Kants canonical formulation, they are individuals whose nature already marks them out as an end in itself, that is, as something that may not be used merely as a means, and hence so far limits all choice (and is an object of respect).21 The fact that persons are conceived as such plays an important role in determining the character of the principles that are valid by the lights of Kantian contractualism. According to Hobbesian contractualism, contractors are virtually unconstrained; at least in principle, nothing is ruled out (or in) in advance. By contrast, Kantian contractors are relatively circumscribed; any principle that would permit any individual to act in ways that failed to accord equal respect to any other person is clearly off-limits. This guarantees, for example, that all persons are owed moral recognition by all other persons; that principles that permitted intuitively objectionable forms of interpersonal aggregation are ruled out; and that the demandingness of moral requirements does not surpass a certain threshold. The problem is that these are aspects of morality that Kantian contractualism is supposed to be explaining in terms of what happens within the Kantian contractual situation. In holding that persons are entities whose moral status is prior to and independent of the Kantian contractual situation, Kantian contractualists have already accounted for these aspects of morality, irrespective of what does or does not happen within the Kantian contractual situation.
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Not only is Kantian contractualism arguably guilty of presupposing part of what it purports to explain, it is also apparently guilty of presupposing considerations that are explanatorily more fundamental. We have seen that the Kantian contractualist is committed to the existence of substantive, undefeated reasons in virtue of which it would be reasonable for any Kantian contractor to agree (or unreasonable not to agree) to any given reasonably acceptable (or non-reasonably rejectable) principle. This follows from the substantive nature of the conception of reasonableness, according to which courses of action count as reasonable or unreasonable in virtue of the substantive reasons for and against them, and the common standpoint implied by the motivational characterization, according to which the stock of reasons that Kantian contractors have to accept and reject principles are necessarily shared. Moreover, presumably there must be considerations that ground these substantive, undefeated reasons. But if there exist considerations that ground the reasons in virtue of which it would be reasonable for any Kantian contractor to agree (or unreasonable not to agree) to any given reasonably acceptable (or non-reasonably rejectable) principle, then these considerations are surely explanatorily more fundamental than reasonable and unreasonable rejectability within the Kantian contractual situation. It would seem, then, that the ability of reasonable and unreasonable rejectability within the Kantian contractual situation to confer invalidity and validity on principles is, as it were, inherited from, and parasitic on, the more fundamental considerations. It would seem, in other words, that Kantian contractualism does not take us to [explanatory] rock bottom.22 But this is precisely where an account of moralitys foundations is supposed to take us. Neither of the two existing models of contractualism, then, appears to be successful as an account of moralitys foundations. Hobbesian contractualism is not sufficiently faithful to morality. Kantian contractualism is explanatorily deficient in certain ways. The question is whether there exists some alternative model of contractualism that fares any better.
II. Deliberative contractualism

What is needed, it seems, is a model of contractualism that is based upon a conception of practical reason that is procedural rather than substantive (like Hobbesian contractualism and unlike Kantian contractualism), but normatively rich rather than normatively thin (like Kantian contractualism and unlike Hobbesian contractualism). What might such a model look like? Here is my proposal, which I shall call deliberative contractualism. Deliberative contractualism holds that moralitys foundations are to be located in facts about what common code we would agree to live by if we were perfectly deliberatively rational. According to deliberative contractualism, the contractual situation is a hypothetical choice situation in which we are assumed to be perfectly deliberatively rational. Valid moral principles are the principles that
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comprise the common code that we would agree to live by under such circumstances.23 The key to deliberative contractualism lies with the deliberative conception of practical reason upon which it is based.24 We had therefore better look at this conception more closely. I shall say that a decision to perform an act is deliberatively rational just in case the decision is based on the outcome of deliberation with others who are affected by the decision that fully complies with relevant deliberative norms. Three conditions must therefore be satisfied in order for a decision to count as deliberatively rational. First, agents must engage in deliberation with relevant others prior to making the decision. Second, in doing so they must fully comply with relevant deliberative norms. Third, the decision must be based on the outcome of such deliberation.25 Let us begin with the idea that in order to be deliberatively rational a decision to act must be preceded by deliberation with others who are affected by the decision. On the face of it, this may appear surprising and counter-intuitive. We are used to thinking of practical rationality as a purely personal achievement. As Jay Wallace puts it, practical rationality is the general human capacity for resolving, through reflection, the question of what one is to do.26 The crucial word here is reflection. Reflection is an individual-based activity; it is something that individual agents can and must do for themselves. Yet, it is simply not possible to be deliberatively rational by making decisions on the basis of reflection alone. In order to be deliberatively rational, one must actively engage with others; there must be deliberative back-and-forth. In short, according to the deliberative conception, rationality is necessarily an interpersonal achievement.27 What, then, does the kind of interpersonal engagement constitutive of deliberation with others amount to?28 First, it has a communicative aspect. The communicative aspect of deliberation is oriented towards the free and open exchange of relevant information. If a husband and wife are deliberating about whether to spend Saturday afternoon at the Slovenian film festival or the bowling alley, this can hardly happen without at least minimally free and frank communication about their respective preferences, their expectations about the respective choices, and so on. This is necessary in part to establish the kind of mutual understanding from which deliberation must proceed. It is also necessary in order for participants to deliberation to keep abreast of evolutions that deliberation occasions in the perspectives of others.29 Second, deliberation has a discursive aspect. If the communicative aspect of deliberation is oriented towards the free and open exchange of relevant information, the discursive aspect is oriented towards persuasion, argumentation, and ultimately consensus. In discourse, deliberators do not endeavour to reach mutual understanding, but rather to argue with and persuade one another to act in this way or that, while remaining amenable to being persuaded in turn. They present what they take to be considerations for and against options that others are capa189
ble of recognizing as normatively salient. Starting from purely perspectiverelative considerations, they endeavour either to forge consensus across perspectives they recognize as antecedently sharing important elements in common or precisely to create shared perspectives with respect to which given considerations have normative salience.30 Third, deliberation has a reflective aspect. The reflective aspect of deliberation is oriented towards, on the one hand, self-exploration and self-interrogation (working out and rendering consistent the content of ones beliefs and desires, hopes and fears, and goals and commitments) and towards, on the other, selftransformation (reorienting this content in light of communication and discourse).31 This is necessary to supplement and buttress the communicative aspect of deliberation. To be free and frank with others, one must have a high degree of self-acquaintance; one must know ones own mind. To be open to the communicative import of others, one must be prepared to rethink ones beliefs, desires, commitments, goals, and so on. It is also necessary to supplement and buttress the discursive aspect of deliberation, given, as Goodin notes, how much of the work of deliberation, even in external-collective settings, must inevitably be done within each individuals head.32 Deliberation, then, is communicative, discursive, and reflective engagement with others. But deliberative rationality also requires that the deliberation that precedes an agents decision to act must fully comply with relevant deliberative norms. What are these deliberative norms that are constitutive of deliberative rationality? They are not merely norms that are applicable to deliberation. Rather, they are norms in which deliberative considerations are somehow central to the kind of normative appraisal that the norm licenses. (By analogy, epistemic norms are not merely norms that apply to beliefs, but a kind of norm in which epistemic considerations such as truth and evidence are central.) But what does this mean? My answer is that it means that deliberative norms express what it is to be a good deliberator, what it is to deliberate properly. In other words, deliberative norms are what Richard Feldman calls role norms: norms that are presupposed by, and applicable to one in virtue of, ones playing a certain role or having a certain position and that are based on what is good performance of that role.33 Familiar examples of role norms include pedagogical norms, such as that teachers ought to explain things clearly, and norms of parenting, such as that parents ought to take care of their kids.34 This is how I propose we think of deliberative norms. In other words, when we engage in deliberation, we are at least to some degree occupying a certain kind of role (the role of deliberator), the proper fulfilment of which is given by the deliberative norms to which any individual who engages in actual deliberation is subject simply in virtue of occupying that role. Just as pedagogical norms describe the right way for teachers to play the role of teachers and parenting norms the right way for parents to play the parenting role, deliberative norms describe the right way for deliberators to play the deliberating role.
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What are the deliberative norms that describe the right way to play the deliberating role? As we saw above, deliberation has three aspects: a communicative aspect, a discursive aspect, and a reflective aspect. In each case, intuitively, there is a right way to perform the relevant aspect of the role. Consider, first, the communicative aspect. As we saw, communication is oriented to the open exchange of relevant information. This already suggests a list of basic communicative norms: some that apply to deliberators qua communicators, others that apply to deliberators qua communicatees. Obvious examples of the former include a norm of sincerity, forbidding communicators from communicating believed untruths and requiring them to communicate relevant believed truths; what we might call a norm of effective transmission, requiring communicators to make a good-faith attempt to make themselves understood to communicatees;35 and a norm of communicative relevance, requiring communicators to communicate all and only those things that are relevant given the circumstances.36 Examples of the latter include a norm of openness, requiring communicatees to be open to potential instances of communication;37 a norm of effective reception, requiring communicatees to make a genuine and good-faith attempt to understand what is being communicated to them;38 and a norm of communicative rectification, requiring communicatees to take certain steps to solicit communication in cases where communicators are unable and/or unwilling, but not terminally unable and unwilling, to communicate.39 A similar story can be told about good performance of the discursive aspect of deliberation. As we saw, the discursive aspect is oriented towards persuasion, argumentation, and consensus. This suggests a number of discursive norms. Perhaps most obvious is a norm of persuasion. This requires that deliberators endeavour to persuade others of the wisdom of their respective points of view, rather than, say, to engage in threats, bribery, or flattery. Closely linked to the norm of persuasion is a norm of reciprocity, which requires deliberators to endeavour to present considerations for and against in a manner which their fellow deliberators are capable of regarding as normatively salient. The flip side of the norm of persuasion is a norm of adaptiveness. If deliberators must aim to persuade, so too must they be capable of being persuaded in so far as the considerations advanced warrant it. Deliberators who stick to their guns no matter what are a far cry from exemplifying proper discourse. Finally, there are reflective norms that specify good performance of the reflective aspect of deliberation. Reflection, I suggested, is oriented towards selfexploration and self-interrogation, on the one hand, and self-transformation, on the other. Both are suggestive of important reflective norms. The former suggests what we can call a norm of internal exploration and a norm of internal consistency. The norm of internal exploration requires individuals to work out what they actually think: what they believe, desire, hope, fear, and so on. The norm of internal consistency requires deliberators to endeavour to identify and eliminate inconsistencies in the relevant class of psychological states intentions, desires,
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and preferences as well as purely cognitive states. I take the standard axioms of decision theory to fall under the category of what would be required by the norm of internal consistency. The self-transformative dimension of reflection suggests internal analogues of persuasion and adaptability, what we might call internal persuasion and internal adaptability, respectively. I have suggested that deliberative rationality is a matter of basing ones decisions on the outcome of deliberation (understood as communicative, discursive, and reflective engagement) with others who are affected by the decision, which fully complies with relevant deliberative (that is, communicative, discursive, and reflective) norms, where these norms are taken to express what it is properly to play the role of deliberative agent. I said above that what is needed is a model of contractualism that is based upon a conception of practical reason that is procedural, yet normatively rich. Does deliberative rationality fit the bill? The procedural character of deliberative rationality should be relatively transparent. In the first instance, the norms that constitute deliberative rationality make demands, not on the substance of the content or output of deliberation, but on the form deliberation must take; they make demands on how deliberative contractors are permitted to deliberate with one another and reach agreement, not on what they must come up with. In a sense anything goes content-wise and output-wise, so long as no deliberative norm is violated in the process. Moreover, like the instrumental conception upon which Hobbesian contractualism is based, and unlike the substantive conception upon which Kantian contractualism is based, there is no fixed, agent-invariant set of considerations that constitute legitimate inputs to deliberation. Rather, the inputs depend at least in part upon the contingent characteristics of those who are included. What you start with matters to where you end up. Finally, the reasons for which individuals end up reaching decisions are not prior to, or independent of, deliberation, but rather a product of it, either in virtue of surviving deliberative scrutiny or in virtue of emerging out of deliberation. So not only are inputs to the deliberative contractual situation deliberator-dependent. Reasons to agree and not to agree are also themselves crucially procedure-dependent. What is more, unlike instrumental rationality, deliberative rationality is also exceedingly normatively rich. To be deliberatively rational requires conformity to standards that are not merely demanding, but that make distinctively interpersonal demands. We are not merely answerable to ourselves, but answerable to others. To see this, recall Thomas Nagels influential distinction between the personal and impersonal points of view.40 The personal point of view is, roughly, the subjective and partial standpoint from which each individual views the world: the standpoint comprised of her distinctive beliefs, goals, commitments, relationships, and so on. The impersonal point of view, by contrast, is the standpoint that we arrive at when we remove ourselves in thought from our particular position in the world and think simply of all those people, without singling out as I the one we happen to be41 the view from nowhere.42 To be delibera192
tively rational is to adopt a third point of view, which I shall call the interpersonal point of view. Like the impersonal point of view, this involves an ascent upwards from the personal point of view. The interpersonal point of view necessitates an expansion of ones private universe through openness and receptivity to the points of view of others and a willingness to engage with them. However, unlike the impersonal point of view, in ascending to the interpersonal point of view, one does not ascend to the position of a detached spectator or observer in which the personal and partial have been transcended and all subjectivity cast off. Rather, one ascends to the position of a participant: a participant, that is, within a genuinely intersubjective and interpersonal process.43 To be such a participant is to view the world through a lens that is being created and recreated by ones encounters and interactions with others.44 But most importantly, the interpersonal point of view is a version of what Stephen Darwall has called the second-person standpoint.45 The second-person standpoint is, according to Darwall:
the perspective you and I take up when we make and acknowledge claims on one anothers conduct and will . . . To enter intelligibly into the second-person stance and make claims on and demands of one another at all . . . you and I must presuppose that we share a common second-personal authority, competence, and responsibility simply as free and rational agents.46
In other words, to be capable of deliberative rationality is to stand in a certain kind of relationship with one another (what we might call deliberative citizenship) such that any individual (deliberative citizen) has the authority to make demands of any other individual (deliberative citizen), to hold her to account and of course to be held to account in turn. This concludes the brief exposition of deliberative contractualism. We have seen that it is a model that is based on a conception of rationality that is broadly of the right sort inasmuch as it is both procedural and normatively rich. I am now going to argue that it represents an improvement on the existing Hobbesian and Kantian models.
III. In defence of deliberative contractualism

A defence of deliberative contractualism must meet two challenges. First, it must show that deliberative contractualism is morally accurate, that it is accurate or faithful to central aspects of morality. Second, it must show that deliberative contractualism is explanatorily adequate. In the remainder of this article, I shall consider whether deliberative contractualism has the resources to meet these challenges. Moral accuracy Is deliberative contractualism morally accurate? I mentioned two features of morality to which a plausible moral theory must be faithful in the context of dis193
cussing Hobbesian contractualism. One was moralitys impartiality. Clearly, there is no problem here. Unlike Hobbesian contractualism, which makes it a condition of inclusion within the contractual situation that others stand to benefit from reaching agreements with one and which therefore excludes some sane adult humans on the grounds that they fail to meet this condition, the criterion for inclusion within the deliberative contractual situation is simply that one be affected and deliberatively competent. Moreover, deliberative contractors are moved, not by coercion and fear, but by persuasion and the force of the better argument. Facts about discrepancies of power and influence are simply not the sorts of facts that we can expect to hold any sway within the deliberative contractual situation. Deliberative contractualism is also well placed to account for the other feature we mentioned in connection with Hobbesian contractualism, namely moralitys distinctively second-personal normativity. Unlike views according to which the reasons provided by moral requirements are based on ones particular personal goals (such as Hobbesian contractualism) or on objective values (such as Scanlons Kantian contractualism) or on requirements of pure reason (such as Kants own view), according to deliberative contractualism, the reasons provided by moral requirements are normative expressions of a certain kind of relationship deliberative citizenship. This means, first, that ones reasons for complying with moral requirements express the legitimate expectations that others have of one in virtue of ones fellow deliberative citizenship. Ones reason not to torture another person is in part a matter of the fact that the person, as a fellow deliberative citizen, is entitled to expect that one will not treat her thus. Ones reason to honour a promise is in part a matter of the fact that the promisee, as a fellow deliberative citizen, is entitled to expect that one will do as one has promised.47 Far from being simply about oneself, ones reasons to comply with moral requirements are also essentially about the other individuals who are affected by ones actions. Second and relatedly, it means that agents who have violated moral requirements have to experience guilt and remorse and to compensate the victims of their wrongdoing. For Hobbesian contractualists, guilt and remorse (or, rather, the outward expression of them, for genuine guilt and remorse are impossible by Hobbesian contractualist lights) will appear to be an elaborate charade concocted for the sake of placating others. Similarly, compensating victims will appear to be, at best, necessary realpolitiking; at worst, needless self-flagellation. According to deliberative contractualism, by contrast, compensation and guilt and remorse constitute uniquely appropriate responses to having thwarted legitimate expectations of deliberative citizenship. To experience guilt and remorse is to acknowledge to oneself that others, who (as fellow deliberative citizens) were entitled to expect one to act in certain ways and refrain from acting in certain others, have been let down by one. To compensate others is both to acknowledge this to the victim and to take steps to try to restore and rebuild the normative
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fabric of the relationship that has been torn asunder by ones wrongdoing.48 Third, the authority to dole out punishment (or at least blame) resides in the very relationship of deliberative citizenship itself, since to be a deliberative citizen is to be accountable to others and to have the authority to demand accountability in turn. Moreover, by punishing or at least blaming the wrongdoer, others are both expressing their recognition of the severity of what has happened and the importance of the relationship of deliberative citizenship itself; and also, importantly, are contributing to the repair and restoration of the damaged relationship. By contrast, for others to allow a wrongdoer to get away with wrongdoing without punishment or at least blame would be to display inadequate regard for the severity of what has happened and thus for the relationship of deliberative citizenship itself. Moralitys impartiality and second-personal normativity are not the only features of morality to which deliberative contractualism is accurate or faithful. Let me briefly mention several others.49 One is moralitys partiality. To say that morality is partial is to say that it includes a relatively generous set of agentrelative prerogatives50 or entitlements to act partially: to pursue our own individual projects and plans, and to dedicate ourselves to our individual relationships, even where we could bring about more impersonal good by doing otherwise. There are limits to the impersonal demands that morality may make of us limits that are themselves part of morality.51 We are morally entitled to spend some of our weekends watching cricket, rather than helping out at the homeless shelter; to seek out the company of our friends at the pub, rather than doorstepping for the Red Cross; and to send our children to good schools, rather than using the money to build schools in Sierra Leone. Why think that deliberative contractualism would be capable of accounting for the existence of agent-relative prerogatives? The key is that, unlike Rawlsian contractualism, there is no veil of ignorance that requires ascending to a point of view in which contingent facts about our actual characteristics, such as facts about our actual, agent-relative loyalties and commitments, are simply cast off like superfluous clothing. Rather, such facts are still very much present. Moreover, the individual projects in which we are actively engaged and the relationships that we actively pursue constitute sources of happiness and joy and provide us with a sense of meaning and fulfilment that are unparalleled by anything else in our lives.52 Nor is the centrality of our projects and relationships due to some kind of false consciousness or self-deception, which will be eclipsed (or, at any rate, transcended) in the course of the self-interrogation and discursive engagement with others that deliberative rationality requires. On the contrary, it is often precisely by engaging in self-interrogative reflection and discourse that the extent of the importance that one attaches to ones projects and relationships becomes fully apparent to one. Finally, a considerable degree of partiality seems to be constitutive of individual projects and relationships. In other words, it is conceptually impossible genuinely to dedicate oneself to a project, or to enjoy a rela195
tionship, unless one is permitted to assign them differential weight. Another important feature of morality is its bindingness or inescapability. One might be less optimistic about deliberative contractualisms prospects here on account of hypothetical agreements lacking the requisite bindingness. Suppose that I borrow your car without asking and, in response to your subsequent indignation, tell you that you would have agreed to my borrowing your car if I had asked; and, consequently, have no grounds for complaint, since you are bound by what you would have agreed to do if I had asked. This would be preposterous. As Jean Hampton puts it: If someone tells me a story in which hypothetical people make hypothetical contracts, how does that story have any effect on what I am bound to do?53 This objection is based on a misunderstanding. The reason-giving power of deliberative contractual agreements does not derive from their being pale forms of agreement, but rather from the relationship of deliberative citizenship of which they are normative expressions. Inasmuch as they are normative expressions of a certain kind of relationship, one is bound by them simply in virtue of enjoying the relevant relationship. This is a kind of bindingness that they share in common with other reasons of the same kind, such as reasons of friendship. Matthews reason of friendship to visit his best friend in hospital is binding in just this sense. So long as one partakes of friendships, certain expectations apply to one, whether one likes it or not. However, whereas friendships are the kind of relationships that are voluntarily entered into and that can be voluntarily exited, deliberative citizenship is not like this. Matthew can escape from at least future hospital visits by ending the friendship. (Perhaps he decides that he does not like his erstwhile best friend so much after all.) By contrast, deliberative contractualism is presupposed by deliberative agency. In consequence, deliberative contractualism makes moral reasons inescapable in a number of other significant ways. Thus, for example, one cannot escape from moral requirements by simply deciding that one does not care about individual persons any more (ones reasons of deliberative citizenship are not defeated by assertions of independence or the absence of appropriate affect) or by becoming so powerful one does not need morality any more (even the most powerful deliberative citizen remains bound by the moral law) or by moving communities (deliberative citizenship transcends membership in all such communities).54 Let me mention one final feature of morality, namely moralitys objectivity. There is one clear sense in which deliberative contractualism makes morality objective. This is that it makes morality non-subjective. According to deliberative contractualism, whether a given act is morally permissible, impermissible, or obligatory is determined by whether it is permitted, forbidden, or required by the common code that we would agree to live by if we were perfectly deliberatively rational. Whether a given act is permitted, forbidden, or required by the common code that we would agree to live by if we were perfectly deliberatively rational, far from being resolved by our individual responses, is precisely the kind of thing
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about which we can genuinely agree and disagree, the kind of thing which we can get right and wrong. To say this is not to say that deliberative contractualism makes moral facts wholly independent of our individual responses, of course. That would be an error. Deliberative contractualism remains a kind of response-dependent theory. Nonetheless, deliberative contractualism departs from subjective responsedependent theories in two crucial ways.55 First, deliberative contractualism is a kind of idealized response-dependent theory. In other words, the relevant responses are not the responses that we would have as we are, but the response we would have if we were subject to the ideal constraints of deliberative rationality. Second, deliberative contractualism is a kind of intersubjectivist responsedependent theory.56 It is not merely our individual responses that determine the moral facts, but the responses of all affected individuals. For the ontologically cautious, this kind of idealized intersubjectivism is arguably the most objective that it would be reasonable to hope moral facts to be.57 Explanatory adequacy Clearly, much more remains to be said on the topic. But the preceding reflections suffice to show that deliberative contractualism has the resources needed to ensure accuracy with respect to a number of important features of morality. Even if this is conceded, however, the question remains whether deliberative contractualism is explanatorily adequate, whether it is capable, that is, of grounding morality. The only way that I can think of to evaluate the claim that a moral theory is explanatorily adequate is negatively, that is, to consider the best arguments for thinking that it is explanatorily inadequate. To the extent that these arguments fail, then we have some reason to think that the theory is explanatorily adequate. What, then, are the best arguments for thinking that deliberative contractualism is explanatorily inadequate? Consider, first, circularity. To say that deliberative contractualism is circular would be to say that it illicitly smuggles moral content into the deliberative contractual situation. Perhaps the most obvious place to look for such content is in the deliberative norms that constitute deliberative rationality. Communicative norms may arouse the greatest suspicion. The norm of sincerity may appear to express moral values such as honesty and authenticity. The norms of openness, effective transmission, and effective reception may appear to express values such as sensitivity to others, reciprocity, understanding, and empathy. The norm of communicative reception may appear to express recognition of the moral undesirability of certain debilitating asymmetries of power and influence, and the importance of attempting to overcome them. Discursive and reflective norms, too, may appear to express and instantiate a plethora of substantive moral values. The norm of persuasion rules out many morally objectionable ways of resolving disagreement such as recourse to coercion, threats, bribery, blackmail, and so on. The norm of reciprocity, which requires deliberators to present considerations for and against options in ways
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that their fellow deliberative contractors can regard as salient, manifests an important kind of respect. The norm of adaptability expresses a morally desirable willingness to be accommodating and flexible, rather than stiff and unyielding. So far as reflective norms are concerned, the norm of self-exploration appears to bear testimony to the truth of the Socratic adage that the unexamined life is not worth living.58 The norms of internal persuasion and internal adaptability express adherence to a conception of the self as autonomous and free. In short, all three kinds of deliberative norms may appear to be receptacles for illicit moral content.59 What the preceding remarks show, and what the deliberative contractualist had better not try to deny, is that some of the ingredients that constitute deliberative rationality are considerations that we rightly regard as morally salient. The question is whether this means that deliberative rationality contains illicit moral content. Of course not. It is perfectly familiar that different kinds of norms can make the same recommendations and evaluations. Serial promise-breaking, procreative incest, and flying hijacked aeroplanes into occupied buildings are not only contrary to morality, but contrary to prudence as well. Bumping off ones wealthy relatives and violating contracts are legally as well as morally impermissible. Believing that the lion advancing towards one poses a genuine threat exhibits not just epistemic virtue, but evolutionary common sense. According to deliberative contractualism, then, there exists a kind of normative appraisal that consists of evaluating conduct against norms that are presupposed by, and applicable to one in virtue of, ones occupying a certain role, the role of deliberator. It is doubtless true that some of the things that these norms forbid and require are also morally forbidden and required. But this does not make deliberative norms parasitic on morality any more than the fact that some of the things that prudential norms forbid and require are also morally forbidden and required makes prudential norms parasitic on morality. Let us consider a second possible source of circularity, namely the idea that deliberative contractors are trying to agree to a common code to live by. A common code is a relatively comprehensive set of common principles, permitting, forbidding, and requiring certain conduct in certain circumstances. This sounds a lot like morality itself. In insisting that deliberative contractors try to agree to a common code, it may be argued that we have unfairly stacked the deck in our favour. Deliberative contractualism would indeed be explanatorily circular if we had said that the deliberative contractual situation was subject to a constraint to the effect that deliberative contractors must agree to a common code to live by. This would indeed constitute unfair deck-stacking. But, what we said is that the deliberative contractual situation is subject to a constraint to the effect that what we get out of it only counts as morality if what we would agree to is a common code to live by. So, if deliberative contractors would agree, say, to elect an omnipotent sovereign and allow her word to be law, this does not count as moral198
ity. Nonetheless, whether deliberative contractors would agree to live by a common code or to elect a sovereign, or whatever, is up to them. In other words, they are not being forced to agree to anything or to agree, if they agree to anything, to live by a common code. Therefore, deliberative contractualism is not circular. This brings us to the other kind of explanatory inadequacy, namely explanatory non-fundamentality. So far as I can tell, there are two kinds of strategies that might be adopted in order to show that deliberative contractualism is explanatorily non-fundamental. The first involves an argument that is closely related to the Euthyphro objection. First, either there exist considerations that are explanatorily more fundamental than deliberative contractual agreement or there exist no such considerations. Second, if there exist no such considerations, then deliberative contractualism makes morality objectionably arbitrary. Third, if there do exist such considerations, then deliberative contractualism is explanatorily nonfundamental. Therefore, at best deliberative contractualism is explanatorily non-fundamental. I believe that the deliberative contractualist should take issue with the second premise. When critics say of a theory that it makes morality arbitrary, I believe that they tend to have in mind either one or both of two rather different concerns. The first is that the theory in question somehow makes morality objectionably random and unconstrained. Consider, by analogy, an omnipotent despot who issues commands in a more or less whimsical fashion. Alternatively, consider a bloodthirsty mob, which carries out acts of violence more or less according to its fancy. It seems right to say that the governance of the despot and the behaviour of the mob both betray an underlying arbitrariness in this first sense, precisely because they can each do whatever they like; they are not encumbered by any kind of constraints. Is there any reason to suppose that the non-existence of explanatorily more fundamental considerations makes deliberative contractualism arbitrary in this first sense? Clearly not. It is quite correct, of course, that deliberative contractors are not subject to prior substantive constraints. But to suggest that this makes morality random strikes me as rather like saying that the fact that judges in criminal trials must content themselves with following the relevant procedures (as opposed, say, to receiving missives from God telling them whether the defendant is guilty or innocent) makes criminal law random. The point is that deliberative contractors are subject to robust procedural constraints, specifically the procedural constraints that are constitutive of deliberative rationality. These constraints, as we have seen, are normatively significant. To liken deliberative contractors to tyrannical despots and ravaging mobs is simply to misunderstand the view. What about the second sense of arbitrary that critics have in mind? To say that a theory makes morality arbitrary in this second sense is to say that it makes morality objectionably contingent or what Richard Joyce calls modally vulnerable.60 According to some critics, certain kinds of acts are not merely contin199
gently morally impermissible or obligatory, but necessarily morally impermissible or obligatory, that is, morally impermissible or obligatory in all possible worlds. Torturing children might be thought to be a plausible candidate for a necessarily morally impermissible act. A theory makes morality arbitrary in the sense of being contingent or modally vulnerable, then, just in case it fails to vindicate the necessary impermissibility of such acts.61 If it were indeed to turn out to be a platitude about morality that it is nonarbitrary in the sense that at least some moral facts are not merely contingently, but necessarily, true, then I believe that deliberative contractualism is in deep trouble. But why should we accept the claim that it is a platitude about morality that some acts are not merely contingently morally impermissible, but necessarily morally impermissible? As Richard Joyce writes:
If I tell you that my brother might be a serial killer, youd naturally be shocked and appalled. But suppose it turns out that I dont mean that its particularly likely in fact, Im 100% certain that hes nothing of the sort, and nor is he in the least tempted to become one I just mean that, at some other possible world, hes a serial killer. All Im saying, in other words, is that being an upstanding citizen is not an essential property of my brother. So understood, the claim that he might be a killer turns out to be pretty innocuous and uninteresting . . . The same point should be borne in mind when we consider the possibility of an action which we morally abhor being only contingently morally abhorrent. The wrongness of an act of brutality being only contingent need not undermine our 100% confidence that it is morally wrong. Nor does it mean that the circumstances under which it would cease to be bad are particularly likely to arise. The world at which [it would arise] might, after all, be a very distant and strange place. It is almost as if ones admitting that the wrongness of an action is only contingent places one under suspicion, as if such a person is not so committed to the wrongness of the action as someone who insists that the action is necessarily wrong . . . But this is absurd.62
In short, depending on what we mean by arbitrary, either deliberative contractualism does not make morality arbitrary at all or if it does, then there is nothing objectionable about it doing so. The other strategy for showing that deliberative contractualism is explanatorily non-fundamental is analogous to the strategy that we advanced against Kantian contractualism above, namely to show that deliberative contractualism presupposes the existence of explanatorily more fundamental considerations in virtue of its internal structure. The only way that I can see that it might be done is to point the bone at deliberative rationality itself. The critic might argue as follows. Is not deliberative rationality precisely a reason-governed activity? Is not part of what distinguishes a deliberatively rational decision from a deliberatively non-rational decision precisely that the former and not the latter is based on reasons? Suppose that a husband and wife come to a deliberatively rational agreement say, an agreement to get divorced. Presumably, this means that there are reasons on the basis of which they have reached the agreement to get
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divorced: reasons such as that they are not good for one another; that they fight all the time; that the wife is always having affairs; and so on. But, or so the argument goes, the same must also be true of the decision to agree to this or that common code to live by. Is this not enough to show that deliberative contractualism presupposes explanatorily more fundamental considerations after all? The deliberative contractualist has two responses to this argument. The first is that, even if the argument succeeds in showing that deliberative contractors have normative reasons to agree to principles, it fails to show that they have agentgeneral reasons. It is no part of the account of deliberative rationality that we have sketched that a deliberatively rational agreement requires that those who are parties to it reach agreement for the same reasons. So, for example, it is perfectly conceivable that a husband and wifes reasons for reaching an agreement are importantly different without this compromising the deliberative rationality of the agreement. Similarly, it is perfectly conceivable that different deliberative contractors would agree to principles, such as a principle requiring giving money to aid, for importantly different reasons. But, in order to show that deliberative contractualism presupposes explanatorily more fundamental considerations, the critic must show that deliberative contractualism presupposes agent-general reasons. The second response is that, even if deliberative contractors reasons for agreeing to principles were agent-general, the fact remains that they are not prior to, and independent of, the deliberative contractual situation. For one, it is precisely as a result of deliberation within the deliberative contractual situation that deliberative contractors arrive at the particular reasons they do. For another, it is crucial to the kinds of reasons that they are that they have been subject to the sort of deliberative exchange and back-and-forth, mixing and distilling of diverse perspectives that are involved in deliberation. As we noted above, the reasons for which deliberative contractors agree to principles, far from being prior to, and independent of, the deliberative contractual situation, are crucially a product thereof.
IV. Conclusion
I have proposed a model of contractualism, deliberative contractualism, which differs in important ways from the existing Hobbesian and Kantian models. I make no pretensions to have offered anything like a complete defence of deliberative contractualism, nor to have shown that it is the only alternative model worth investigating; there may be other even more worthy alternatives. If there is a takehome lesson, it is this: just as consequentialists have been at pains to remind us that consequentialism does not live or die with direct hedonistic act utilitarianism, nor should we assume that contractualism lives or dies with Hobbesian contractualism and Kantian contractualism. Contractualism is a rich and promising theory which deserves, at the very least, to be investigated more fully.
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notes
An earlier version of this article was presented at the Australian National University in March 2007. I am very grateful to the members of the audience for their feedback. I should particularly like to thank Bob Goodin and Philip Pettit for extensive and invaluable discussion. Work on this article was carried out under ARC Discovery Grant DP0663060. 1. For an account of the many different kinds of consequentialism available, see David Sosa, Consequences of Consequentialism, Mind 102 (1993): 10122. 2. Robert Goodin, Utilitarianism as a Public Philosophy (Cambridge: Cambridge University Press, 1995), pp. 1213. 3. Some theorists distinguish contractualism from contractarianism. See, for example, Stephen Darwall, Introduction, in Contractarianism-Contractualism, edited by Stephen Darwall (Oxford: Blackwell, 2003), pp. 18. By contrast, I shall use the label contractualism for any theory that gives a central role to the idea of agreement. 4. For good general discussions of contractualism, see Darwall, Introduction; Christopher Morris, A Contractarian Account of Moral Justification, in Contractarianism and Rational Choice: Essays on David Gauthiers Morals By Agreement, edited by Peter Vallentyne (Cambridge: Cambridge University Press, 1996), pp. 21542; Geoffrey Sayre-McCord, Contractarianism, in The Blackwell Guide to Ethical Theory, edited by Hugh LaFollette (Malden, MA: Blackwell Publishers, 2000), pp. 24767. 5. Thomas Hobbes, Leviathan (Indianapolis, IN: Hackett Publishing Company, 1994). Other prominent statements of Hobbesian contractualism include David Gauthier, Morals By Agreement (Oxford: Clarendon Press, 1986); Jean Hampton, Hobbes and the Social Contract Tradition (Cambridge: Cambridge University Press, 1986); Gilbert Harman, Moral Relativism Defended, Philosophical Review 84 (1975): 322; Gregory Kavka, Hobbesian Moral and Political Theory (Princeton, NJ: Princeton University Press, 1986). 6. Immanuel Kant, Groundwork of the Metaphysics of Morals, translated by Mary Gregor (Cambridge: Cambridge University Press, 1998). Other prominent statements of Kantian contractualists include Brian Barry, Justice as Impartiality (Oxford: Clarendon Press, 1995); Thomas Nagel, The View From Nowhere (New York: Oxford University Press, 1986); Thomas Nagel, Equality and Partiality (New York: Oxford University Press, 1991); John Rawls, A Theory of Justice (Cambridge, MA: Belknap Press, 1971); John Rawls, Political Liberalism (New York: Columbia University Press, 1993); T.M. Scanlon, Contractualism and Utilitarianism, in Utilitarianism and Beyond, edited by Amartya Sen and Bernard Williams (New York: Cambridge University Press, 1982), pp. 10328; T.M. Scanlon, What We Owe To Each Other (Cambridge, MA: Belknap Press, 1998). 7. Jrgen Habermas, Moral Consciousness and Communicative Action, translated by Christian Lenhardt and Shierry Nicholsen (Cambridge: Polity Press, 1990); Jrgen Habermas, Justification and Application: Remarks on Discourse Ethics, translated by Ciaran Cronin (Cambridge: Polity Press, 1993); Jrgen Habermas, Between Facts and Norms: Contributions to a Discourse Theory of Law and Democracy, translated by William Rehg (Cambridge: Polity Press, 1996). 202
8. See, for example, Joshua Cohen, Deliberation and Democratic Legitimacy, in The Good Polity: Normative Analysis of the State, edited by Alan Hamlin and Philip Pettit (Oxford: Blackwell, 1989), pp. 1734; John Dryzek, Deliberative Democracy and Beyond: Liberals, Critics, Contestations (Oxford: Oxford University Press, 2000); Robert Goodin, Reflective Democracy (Oxford: Oxford University Press, 2003); Bernard Manin, On Legitimacy and Political Deliberation, Political Theory 15 (1987): 33868. 9. Perhaps more plausibly, we might refer to her desires as they would be if they were put through a rational choice-theoretic filter to ensure that they satisfy constraints such as transitivity, completeness, reflexivity, and so on, given her beliefs as they would be if they were fully consistent. 10. Hobbes, Leviathan. 11. Gauthier, Morals by Agreement; Kavka, Hobbesian Moral and Political Theory; Hampton, Hobbes and the Social Contract Tradition. 12. See Barry, Justice as Impartiality. 13. See Stephen Darwall, The Second-Person Standpoint: Respect, Morality, and Accountability (Cambridge, MA: Harvard University Press, 2006). This is closely related to what Scanlon calls the importance of considerations of right and wrong. See Scanlon, What We Owe To Each Other, p. 149. 14. As John Stuart Mill famously put it, We do not call anything wrong, unless we mean to imply that a person ought to be punished in some way or other for doing it; if not by law, by the opinion of his fellow creatures; if not by opinion, by the reproaches of his own conscience. See John Stuart Mill, Utilitarianism, in On Liberty and Other Essays (Oxford: Oxford University Press, 1998), p. 184. 15. For this characterization of Kantian contractualism, I am indebted to Darwall. See Darwall, Introduction, p. 5. 16. Notice that reason and desire come apart in both directions. Thus, in order to have a reason to perform some action, one need have no desire which the performance of the action would help satisfy. Conversely, the mere fact that performing the action would satisfy a desire does not necessarily provide the agent with any reason to perform it. We may have reasons to take our desires into account, but these reasons are not provided by the desires themselves. 17. Scanlon, What We Owe To Each Other, p. 192. 18. Darwall, Introduction, p. 5. 19. Objections have also be raised concerning its faithfulness to morality, for example its capacity to vindicate key platitudes concerning moralitys normativity (see Gerald Dworkin, Contractualism and the Normativity of Principles, Ethics 112 [2002]: 47182; R. Jay Wallace, Scanlons Contractualism, Ethics 112 [2002]: 42970), key substantive judgements concerning our duties to atypical persons such as the severely mentally disabled, non-adult humans, and non-human animals (see Brad Hooker, Ideal Code, Real World [Oxford: Clarendon Press, 2000], pp. 6670; Martha Nussbaum, Beyond the Social Contract: Toward Global Justice, paper presented at the Tanner Lectures on Human Values, Australian National University, November 2002; David Phillips, Contractualism and Moral Status, Social Theory and Practice 24 [1998]: 183204), and our impartial duty to save the greater number (see Brad Hooker, Contractualism, Spare Wheel, Aggregation, Critical Review of International Social and Political Philosophy 5 [2002]: 5376; Alastair 203
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Norcross, Contractualism and Aggregation, Social Theory and Practice 28 [2002]: 30314; Derek Parfit, Justifiability to Each Person, Ratio 16 [2003]: 36890; Joseph Raz, Numbers, With and Without Contractualism, Ratio 16 [2003]: 34667; Sophia Reibetanz, Contractualism and Aggregation, Ethics 108 [1998]: 296311). In the face of this kind of objection, it is of course open to the contractualist to insist that her particular model of contractualism is supposed to be an account of something other than moralitys foundations. Philip Stratton-Lake pursues this kind of strategy on behalf of Scanlons contractualism. See Philip Stratton-Lake, Scanlons Contractualism and the Redundancy Objection, Analysis 63 (2003): 7076 and Philip Stratton-Lake, Scanlon, Permissions, and Redundancy: Response to McNaughton and Rawling, Analysis 63 (2003): 3327. For the purposes of this article, I shall simply take it as given that Kantian contractualism does purport to be an account of moralitys foundations. Kant, Groundwork of the Metaphysics of Morals (4:428). Philip Pettit, Can Contract Theory Ground Morality? in Contemporary Debates in Moral Theory, edited by James Dreier (Oxford: Blackwell, forthcoming). As this characterization indicates, there are important similarities between deliberative contractualism and Jrgen Habermass model of discourse ethics. See Habermas, Moral Consciousness and Communicative Action; Habermas, Justification and Application: Remarks on Discourse Ethics; and Habermas, Between Facts and Norms: Contributions to a Discourse Theory of Law and Democracy. The most obvious difference, of course, is that discourse ethics is based on actual deliberation, whereas deliberative contractualism is based on hypothetical or counterfactual deliberation. The deliberative conception of rationality obviously bears a resemblance to Habermass communicative conception of rationality. See Jrgen Habermas, The Theory of Communicative Action, Vols 1 and 2, translated by Thomas McCarthy (Boston, MA: Beacon Press, 1984 and 1987). However, I shall not attempt to determine just how deep these similarities go in what follows. For good summaries of Habermass position, see Simone Chambers, Reasonable Democracy: Jrgen Habermas and the Politics of Discourse (Ithaca, NY: Cornell University Press, 1996), Ch. 7 and William Rehg, Insight and Solidarity: A Study in the Discourse Ethics of Jrgen Habermas (Berkeley: University of California Press, 1994). I shall not say anything here about what it means for an agents decision to be based on the outcome of deliberation. The intuitive idea is that the decision is nonaccidentally related in the right kind of way to the outcome of such deliberation. However, what the right kind of way is is controversial. Various theories of the so-called basing relation have been advanced, especially by epistemologists concerned with what it takes for a belief to be based on evidence or reasons. See Keith Korcz, Recent Work on the Basing Relation, American Philosophical Quarterly 34 (1997): 17191 for a good summary of the main alternatives in the epistemic context. I shall remain neutral about the issue in what follows. R. Jay Wallace, Practical Reason, in The Stanford Encyclopedia of Philosophy, p. 1, URL (consulted 8 August 2005): http://plato.stanford.edu/entries/practicalreason. Of course, there is nothing to prevent the proponent of the deliberative conception
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32. 33.
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from conceding that there exist other important types of reason in which reflection alone suffices for rationality. This question has attracted enormous attention in the past 15 years, due in large part to the so-called deliberative turn of democratic theory. See Dryzek, Deliberative Democracy and Beyond: Liberals, Critics, Contestations. For good summaries of the main accounts of deliberation, see James Bohman, The Coming of Age of Deliberative Democracy, Journal of Political Philosophy 6 (1998): 40025; Simone Chambers, Deliberative Democratic Theory, Annual Review of Political Science 6 (2003): 30726; Samuel Freeman, Deliberative Democracy: A Sympathetic Comment, Philosophy and Public Affairs 29 (2000): 370418. Notice that there is no presumption that the kind of communication that is part of deliberation must itself be discursive. Iris Young, for example, speaks of the communicative potential of non-discursive forms of communication such as those involving narrative or rhetoric. See Iris Marion Young, Inclusion and Democracy (Oxford: Oxford University Press, 2000), Ch. 2. This is important since it serves partially to undermine a possible source of anxiety that deliberative rationality is excessively intellectualist. Though discourse involves the search for consensus, it is no part of my account that individuals must reach consensus for the same reasons. In other words, there is room for the notion of overlapping consensus in Rawlss sense. See Rawls, Political Liberalism, Lecture IV. See Robert Goodin, Democratic Deliberation Within, Philosophy and Public Affairs 29 (2000): 81109 and Goodin, Reflective Democracy for excellent accounts of the importance of the reflective aspect of deliberation. Goodin, Democratic Deliberation Within, p. 81. Richard Feldman, Voluntary Belief and Epistemic Evaluation, in Knowledge, Truth and Duty: Essays on Epistemic Justification, Responsibility and Virtue, edited by Matthias Steup (Oxford: Oxford University Press, 2001), pp. 878. Ibid., p. 87. Some ways of failing to comply with the norm of effective transmission are relatively overt. I might, for instance, intentionally speak to you in a language that I know you do not understand. Other ways are more subtle, such as communicating in a way that presupposes certain normative background assumptions. Of course, what is required is exceedingly dependent upon the particular characteristics and circumstances of the communicatee. Thus, for example, what is required of an astrophysicist communicating her most recent theory about black holes will vary depending on whether her communicatee is a fellow astrophysicist or a person off the street. One can hence violate the norm of relevance either by failing to communicate some item that is relevant given the circumstances or by communicating some item that is irrelevant given the circumstances. Suppose that at 8.00 p.m. Donald admits to Daffy that he has an irrepressible craving for a chocolate ice-cream. Not knowing the area, he asks Daffy what is the quickest way for him to get to the corner shop. An example of the first kind of violation of the norm of relevance would be if Daffy were to tell Donald what the quickest way to the corner shop is while knowingly neglecting to mention that the corner shop is closed from 7.30 p.m. An example of the second kind of violation of the norm of relevance would be if Daffy were to 205
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45. 46. 47.
48.
49.
inform Donald not only of the first, but also of the second, third, fourth, fifth, sixth, and seventh quickest routes to the corner shop. There are two ways in which communicatees can fail to comply with the norm of openness. The first is where a potential communicator lies within the communicatees sphere, but where the communicatee nonetheless chooses to remain closed to communication. The second is where a potential communicator lies outside the communicatees sphere and, for that reason, no attempt is made by the communicatee to alter her circumstances in such a way as to facilitate the communication taking place. The difference between the norm of openness and the norm of effective reception is that the latter is a requirement on communicatees who have already (at least to some extent) satisfied the former. This includes cases where the communicator is willing, but unable, to communicate as a result of considerations of a physical and tangible (for example, monetary) kind; cases where the communicator is able, but unwilling, to communicate with the communicatee as a result of some relevant feature of their relationship; cases where there is an inability and unwillingness to communicate in an undistorted fashion (for instance, the communicator may [advertently or inadvertently] be willing and able to communicate only those things to the communicatee that the latter is inclined, or that she takes the latter to be inclined, to look favourably upon); and, most disturbingly, cases where the possibility of communication does not even occur to the communicator as a result of her being subject to some kind of false consciousness whereby she has internalized expectations about her station in life that do not include the possibility of communication. Nagel, The View from Nowhere; Nagel, Equality and Partiality. Nagel, Equality and Partiality, p. 10. Nagel, The View from Nowhere. On the distinction between being an observer and a participant, see Peter Strawson, Freedom and Resentment, in Free Will, edited by Gary Watson (Oxford: Oxford University Press, 1982), p. 74. This is a crucial respect in which deliberative contractualism differs from other ideal response theories, such as the ideal observer theory of the sort endorsed by Richard B. Brandt, A Theory of the Good and the Right (Oxford: Clarendon Press, 1979); Peter Railton, Moral Realism, Philosophical Review 95 (1986): 163207; and Michael Smith, The Moral Problem (Cambridge, MA: Blackwell, 1994). See Darwall, The Second-Person Standpoint: Respect, Morality, and Accountability. Ibid., pp. 3, 5. I am obviously assuming here that the common code to which we would agree within the deliberative contractual situation would include principles forbidding torture and the breaking of promises. The language that I employ here obviously evokes, and is intended to evoke, the language of restorative justice. See John Braithwaite, Crime, Shame, and Reintegration (Cambridge: Cambridge University Press, 1989). One might also mention moralitys universality. Deliberative contractualism rules out the possibility of multiple moral codes, since it is a prior constraint on deliberative contractors that, if what they would agree to within the deliberative contractual situation is to count as morality, they must agree to live by a common
206
50. 51.
52.
53.
54.
55.
56.
57. 58. 59.
code, that is, a set of universally applicable principles with a common content. This suffices to render morality relevantly different from other kinds of normative phenomena, such as law and etiquette, that involve requirements that are relative to particular groups or communities. Samuel Scheffler, The Rejection of Consequentialism (Oxford: Clarendon Press, 1982). For the classic discussion of the limits to moralitys demandingness, see Bernard Williams, A Critique of Utilitarianism, in Utilitarianism: For and Against, edited by J.J.C. Smart and Bernard Williams (Cambridge: Cambridge University Press, 1973) and Bernard Williams, Ethics and the Limits of Philosophy (London: Fontana, 1985). For discussion of the demandingness of morality, see Shelly Kagan, The Limits of Morality (Oxford: Clarendon Press, 1989) and Tim Mulgan, The Demands of Consequentialism (Oxford: Clarendon Press, 2001). Surely a large part of what appals us about Orwells vision of a totalitarian society in Nineteen Eighty-Four and Huxleys vision in Brave New World is that the possibility of individual projects and relationships has been virtually extinguished? These are societies in which there is a single, collective project to which individuals are subordinate and where parentchild, husbandwife, friendfriend bonds have been replaced by something at once all-encompassing and lukewarm. Hampton, Hobbes and the Social Contract Tradition, p. 268. See also Kavka, Hobbesian Moral and Political Theory, p. 399; Ronald Dworkin, The Original Position, in Reading Rawls: Critical Studies of A Theory of Justice, edited by Norman Daniels (Oxford: Basil Blackwell, 1975), pp. 1718. It must be conceded that there is at least one way of escaping from the jurisdiction of moral requirements that deliberative contractualism does not rule out. What guarantees that we have reasons to act in accordance with moral requirements is the fact that we possess the capacities constitutive of deliberative agency, capacities which themselves presuppose deliberative citizenship. Clearly, it is available to us to take certain drastic steps to impair ourselves cognitively in such a way that we no longer possess the relevant capacities, thereby rendering ourselves immune from moral requirements. This does not, however, undermine deliberative contractualisms capacity to account for moralitys inescapability, since any moral theory must surely allow that morality is escapable in at least this kind of way. To this we might add a third, that it is a kind of hypothetical response-dependent theory. It is not the responses we actually have that determine the moral facts, but the responses that we would have under certain counterfactual circumstances. On moral intersubjectivism, see Geoffrey Sayre-McCord, The Many Moral Realisms, Southern Journal of Philosophy (supplementary volume) 24 (1986): 1314. For a more thorough development of this idea, see Ronald Milo, Contractarian Constructivism, Journal of Philosophy 92 (1995): 181204. Plato, Euthyphro, in Five Dialogues, translated by G.M.A. Grube (Indianapolis, IN: Hackett, 1981), pp. 522. Some critics of Habermass discourse ethics have raised similar worries. See James Finlayson, Modernity and Morality in Habermass Discourse Ethics, Inquiry 43 (2000): 41940; Carol Gould, Rethinking Democracy: Freedom and Social Cooperation in Politics, Economy and Society (Cambridge: Cambridge University 207
Press, 1988), p. 127; Stefan Rummens, The Co-Originality of Private and Public Autonomy in Deliberative Democracy, Journal of Political Philosophy (forthcoming). 60. Richard Joyce, Theistic Ethics and the Euthyphro Dilemma, Journal of Religious Ethics 30 (2002): 4975. 61. Notice that saying that some acts are necessarily morally impermissible or obligatory is not the same as saying that morality as a whole is necessarily true, as Cudworth thought, though obviously the latter implies the former. See Ralph Cudworth, A Treatise Concerning Eternal and Immutable Morality (New York: Cambridge University Press, 1996). 62. Joyce, Theistic Ethics and the Euthyphro Dilemma, p. 64.
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A deliberative model of contractualism

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