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JOHANN FRICK
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Contractualism and
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Social Risk
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I. INTRODUCTION
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Contemporary nonconsequentialism is a family of views united less by a
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positive doctrine than by skepticism toward central tenets of
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consequentialist ethical thought. One such tenet, which is embraced by
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most consequentialists but opposed by many nonconsequentialists, is
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the notion of interpersonal aggregation.1 Ethical theories, like classical
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utilitarianism, that defend interpersonal aggregation hold that in evaluating an action, we should sum the benefits and losses it imposes on
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different people to obtain an aggregate quantity; this represents the
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overall goodness of the action’s consequences. The rightness or wrongness of the action depends not on how it affects each individual, but on
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the net balance of benefits over losses.
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Aggregative reasoning of this kind often yields counterintuitive implications, especially in cases where it enjoins us to let a few people suffer
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In writing this article I have accumulated many debts. For their very helpful comments
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on earlier drafts, I thank Arthur Applbaum, Ralf Bader, Eric Beerbohm, Selim Berker, Dan
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Brock, Norman Daniels, Tom Dougherty, Nir Eyal, Marc Fleurbaey, Mira Frick, Daniel
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Halliday, Louis-Philippe Hodgson, Aaron James, Stephen John, Frances Kamm, Gregory
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Keating, Paul Kelleher, Seth Lazar, Marc Lipsitch, Jeff McMahan, Andreas Mogensen, Ekédi
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Mpondo-Dika, David O’Brien, Laura Ong, Derek Parfit, David Plunkett, Tim Scanlon, Lucas
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Stanczyk, Victor Tadros, Gerard Vong, Dov Waisman, Alec Walen, and Daniel Wikler, as
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well as two anonymous referees for Philosophy & Public Affairs. I would also like to thank
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audiences and participants at the Moral and Political Philosophy Workshop at Harvard
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University, the New York Early Career Ethics Workshop, the Lawrence S. Rockefeller
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Seminar at Princeton, the Moral Philosophy Seminar at the University of Oxford, and the
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Workshop on the Ethics of Social Risk at the Centre de recherche en éthique, Montreal.
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1. For a dissenting voice in the nonconsequentialist camp, see S. Matthew Liao, “Who Is
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Afraid of Numbers?” Utilitas 20 (2008): 447–61.
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© 2015 Wiley Periodicals, Inc. Philosophy & Public Affairs 43, no. 3
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176
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large losses so that many people can enjoy smaller benefits. A wellknown illustration is T. M. Scanlon’s
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Transmitter Room Case: Jones has suffered an accident in a TV broadcasting station and is receiving extremely painful electrical shocks. If
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we turn off the power to save him, billions of viewers will miss the last
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half hour of the World Cup final.2
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Many of us share Scanlon’s intuition that it would be wrong not to save
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Jones from his agony, regardless of how many people are watching the
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game. The benefit of watching a soccer match is trivial compared to the
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agony of suffering strong electrical shocks. No matter how large the sum
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of these benefits, it would be wrong to keep the power on. Defenders of
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interpersonal aggregation, by contrast, seem committed to the view that
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at some point the combined benefits to the viewers must become large
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enough to morally outweigh Jones’s agony.
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A common nonconsequentialist diagnosis for the inadequacy of
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aggregative views is that they do not respect what John Rawls has called
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“the separateness of persons.” Collections of people are not superindividuals. Unlike a single individual, who may rationally choose to
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make some sacrifice in order to receive a stream of benefits, a group of
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people lacks the requisite unity such that imposing a significant harm on
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one person could straightforwardly be offset by conferring sufficient
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benefits on others.
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Seeking to formulate an account that better respects the separateness
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of persons, leading nonconsequentialists have put forward so-called
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competing claims models of moral rightness, according to which morality requires us to identify, by a series of pairwise comparisons, the action
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or policy that satisfies the strongest individual claim or—its flipside—
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generates the weakest individual complaint.3
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The fullest development of this antiaggregative approach is the
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contractualist moral theory defended by T. M. Scanlon. According to
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Scanlon’s contractualist formula, an action is morally right if and only if
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2. Adapted from T. M. Scanlon, What We Owe to Each Other (Cambridge, Mass.:
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Harvard University Press, 1998), p. 235.
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3. See, for instance, T. Nagel, “Equality,” in Mortal Questions (Cambridge: Cambridge
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University Press, 1979), pp. 106–27; and T. Nagel, Equality and Partiality (Oxford: Oxford
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University Press, 1991); see also T. M. Scanlon, What We Owe to Each Other, chap. 5.
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177
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it is justifiable to each person, that is, if a principle licensing the action
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could not be reasonably rejected by any single individual for personal
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reasons. Personal reasons, for Scanlon, are “reasons that are . . . tied to
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the well-being, claims, or status of individuals in [a] particular position.”4
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They exclude appeals to how an action will affect other individuals, as
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well as to impersonal concerns, such as the goodness of the overall
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outcome that the action will produce. Scanlon’s contractualist formula
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thus rules out interpersonal aggregation in two distinct senses: On the
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one hand, it excludes the “axiological” aggregation characteristic of classical utilitarianism. That is, it rejects the thought that the rightness of an
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action is a function of the overall goodness of its consequences, which in
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turn is determined by summing its good and bad effects for different
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individuals. On the other hand, the contractualist formula also rules out
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aggregation of a “normative” kind, in that it looks only at the personal
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reasons of individuals and does not allow for the pooling of moral claims
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or complaints across different individuals.
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In addition, Scanlon affirms the following:
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Greater Burden Principle: “It would be unreasonable . . . to reject a
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principle because it imposed a burden on you when every alternative
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principle would impose much greater burdens on others.”5
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Scanlonian contractualism yields the intuitively correct answer in Transmitter Room. Turning off the power is the only course of action that is
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justifiable to everyone, since Jones’s personal reasons for rejecting a
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principle that allowed us to continue the transmission are much
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weightier than any individual’s reasons against interrupting the broadcast. The fact that there are a large number of people with personal
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reasons for not wanting the broadcast to be interrupted is deemed
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4. Scanlon, What We Owe to Each Other, p. 219. For Scanlon, the personal reasons
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invoked in reasonably rejecting a principle must be what he calls generic reasons. Generic
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reasons are based not on the idiosyncratic interests and features of actual individuals,
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but on what persons occupying this particular position would have reason to want “in
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virtue of their situation, characterized in general terms.” Scanlon, What We Owe to Each
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Other, p. 204.
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5. T. M. Scanlon, “Contractualism and Utilitarianism,” in Utilitarianism and Beyond,
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ed. Amartya Sen and Bernard Williams (Cambridge: Cambridge University Press, 1982), p.
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111.
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178
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morally irrelevant, since contractualism rejects the aggregation of individual claims.6
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Cases like Transmitter Room, however, are quite rare. As Barbara
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Fried remarks, outside the context of crime and war, most instances of
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serious harm do not occur in situations where someone trades off certain
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harms to known individuals against certain benefits to other known
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individuals.7 (Let us call such situations interpersonal trade-offs under
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certainty.) Rather, most harm to others results from risks that some agent
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imposed on them, or failed to eliminate, in pursuit of some benefit for
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them, for the agent, or for others. The question I wish to raise in this
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article is whether contractualists can provide a plausible account of
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such risky actions and omissions, while honoring their antiaggregative
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commitments.
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Most of my article will focus on one class of risky actions and omissions that, prima facie, are particularly troubling to the contractualist.
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These actions are characterized by the following four features:
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(1) The risky action or omission will affect a large number of individuals. Because of this, it is virtually certain that some people
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will end up being burdened by it.
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(2) The individual losses to those who are burdened (relative to the
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baseline of some available alternative) are considerably greater
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than the individual gains for those who are benefited.
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(3) The action-type in question is rare, or rarely affects the same
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people twice; as a result, we cannot assume that over time almost
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6. Scanlon does allow that the numbers may count when we must choose between
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preventing a smaller or a larger number of people from suffering an equivalent burden (for
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example, saving one from death vs. saving two from death). But even here his reasoning
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remains nonaggregative. In a choice between saving A or saving both B and C, it would be
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wrong to flip a coin—but not because two deaths represent a greater total loss, or because
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B and C can pool their claims to form a stronger collective claim. Rather, following Frances
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Kamm, Scanlon argues that a principle which did not allow numbers to “break the tie” in
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this case could be reasonably rejected by both B and C for failing to take account of the
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value of saving their life, “since it permits the agent to decide what to do in the very same
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way that it would have permitted had he not been present at all, and there was only one
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person in each group.” Scanlon, What We Owe to Each Other, p. 232, following F. Kamm,
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Morality, Mortality, vol. 2 (Oxford: Oxford University Press, 1993), pp. 116–17.
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7. B. Fried, “Can Contractualism Save Us from Aggregation?” Journal of Ethics 16 (2012):
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39–66.
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179
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Contractualism and Social Risk
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everyone will benefit from a principle that permits actions of this
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type to be performed.8
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(4) The risky action or omission is intuitively permissible.
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Many actions in public policy, particularly in the domains of public
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health and of risk management, share these four features. (I will provide
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a range of stylized examples over the course of this article.) The challenge
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for the contractualist is to explain, without resorting to interpersonal
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aggregation, how such risky actions could be permissible, given features
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(1), (2), and (3). For want of an established label, I shall dub this the
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problem of social risk.
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As we shall see, cases of social risk force the contractualist to confront
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a question about his theory that, I argue, has not received a fully satisfactory answer to date: Are an individual’s personal reasons for rejecting
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a principle permitting the imposition of a given social risk a function of
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the prospect that the risky action gives to each person ex ante, allowing us
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to discount both benefits and harms by their improbability of occurring?
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Or is justifiability to each person a function of the action’s outcomes ex
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post? In that case, what would matter morally is not the ex ante likelihood of any given individual’s being benefited or harmed by the action,
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but rather the near certainty that, ex post, some persons will turn out to
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have been harmed by the action while others will have been benefited.
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The contractualist faces an apparent dilemma: if he rejects the ex ante
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view of justification, as Scanlon explicitly does in What We Owe to Each
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Other, and appeals instead to an ex post view, as other authors have
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urged,9 he seems committed to the intuitively unappealing conclusion
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that most instances of social risk, as defined above, are unjustifiable. On
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8. This feature blocks an appeal to what Scanlon calls “intra-personal aggregation,”
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that is, “aggregation within each person’s life, summing up all the ways in which a principle
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[prohibiting that kind of risky action] would constrain that life, rather than aggregation
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across lives, adding up the costs or benefits to different individuals.” Scanlon, What We Owe
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to Each Other, p. 237. Intrapersonal aggregation may allow the contractualist to justify the
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performance of routine risky actions. While, on any given occasion, such a risky action may
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impose significant individual losses on some while providing only relatively minor benefits
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to others, over time almost everyone will come out ahead under a principle that permits
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risky actions of this type to be performed. The kinds of risky actions that I am concerned
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with in this article are not routine in this sense.
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9. See, in particular, Sophia Reibetanz Moreau, “Contractualism and Aggregation,”
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Ethics 108 (1998): 296–311. Elizabeth Ashford, “The Demandingness of Scanlon’s
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Contractualism,” Ethics 113 (2003): 273–302, also assumes an ex post view of justification.
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180
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the other hand, if he embraces an ex ante view, Scanlon fears that this
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will move his contractualist theory too close to those aggregative views
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that he wished to escape from in the first place.10
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In this article, I argue that this dilemma can be overcome. I defend a
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version of ex ante contractualism that gives a satisfactory response to the
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problem of social risk, while also avoiding the excesses of aggregative
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moral theories. My article proceeds as follows: To get a better grip on the
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problem of social risk, Section 2 begins by introducing a stylized case of
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social risk, and points out similarities with the more familiar problem of
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interpersonal trade-offs under certainty. Section 3 presents a simple yet
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seductive argument—the “Argument from Irrelevant Information”—
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that supports an ex post view of contractualist justification. According to
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this argument, the problem of social risk can be morally assimilated to
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that of interpersonal trade-offs under certainty. Section 4 challenges this
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view, arguing instead for an ex ante contractualism according to which
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the problem of social risk is more akin to one of intrapersonal risk taking.
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Section 5 returns to the Argument from Irrelevant Information, distinguishing three ways of fleshing it out. I argue that ultimately we must
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reject the Argument from Irrelevant Information on any of these interpretations, and with it the ex post contractualism that it supports. In
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Section 6, I critically examine T. M. Scanlon’s reasons for eschewing ex
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ante contractualism, by considering what I call the problem of ex ante
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rules. An ex ante rule is any rule the adoption of which, at some time t1, is
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in everyone’s individual interest, but which licenses or requires some
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agent to act at a later time t2 in a way that benefits some but significantly
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burdens others. As we shall see, the worry that ex ante contractualism
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may support morally indefensible ex ante rules is at the heart of
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Scanlon’s objections to this view. Moreover, I show that existing
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attempts by ex ante contractualists, such as Rahul Kumar, to overcome
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10. This, at least, was Scanlon’s view in What We Owe to Each Other. In a more recent
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article, “Reply to Zofia Stemplowska,” Journal of Moral Philosophy 10 (2013): 508–14,
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Scanlon writes that his earlier opposition to ex ante contractualism was “a mistake,” and
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credits an earlier draft of my article for changing his mind.
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That ex ante contractualism cannot “save us” from aggregation is also the conclusion of
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Barbara Fried, “Can Contractualism Save Us from Aggregation?” Two more optimistic
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assessments of the prospects for ex ante contractualism, which can be read as complementing the case I make in this article, are given by Aaron James in “Contractualism’s (Not
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So) Slippery Slope,” Legal Theory 18 (2012): 263–92; and Rahul Kumar, “Risking and Wronging,” Philosophy & Public Affairs 43 (2015): 27–49.
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181
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this difficulty are not fully satisfactory.11 However, by adopting what I call
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the Decomposition Test, according to which an action is justifiable
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if and only if the actions it licenses us to perform are justifiable to each
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person at each temporal stage, I believe that Scanlon’s misgivings can be
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overcome.
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Unfortunately, ex ante contractualism’s success at dealing with the
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problem of social risk comes at a theoretical price, which hitherto has
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received scant attention from defenders of this view. In Section 7, I draw
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out some of the implications that ex ante contractualism has for a related
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problem: the question of “identified” vs. “statistical” lives. I argue that,
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contrary to received wisdom, ex ante contractualism can lend a measure
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of normative support to our common psychological propensity to give
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greater weight to the saving of “identified” over “statistical” lives. The
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problem, as I show in Section 8, is that, under certain circumstances, ex
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ante contractualism would lead us to privilege the saving of one identified life over any number of statistical lives.12 The most promising way of
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avoiding this extreme conclusion, I argue in Section 9, is by scaling back
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the ambitions of contractualism as a moral theory. Instead of providing
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a complete account of what it is for actions to be right or wrong, the
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contractualist competing claims model is better understood as capturing
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an important class of pro tanto moral reasons that contribute to making
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actions right or wrong, but that do not by themselves determine an
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action’s rightness all things considered.
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II. SOCIAL RISK AND INTERPERSONAL TRADE-OFFS UNDER CERTAINTY
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Consider the following stylized case of social risk:
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Mass Vaccination (Unknown Victims): One million young children are
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threatened by a terrible virus, which is certain to kill all of them if we
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do nothing. We must choose between mass producing one of two
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vaccines (capacity constraints prevent us from producing both):
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• Vaccine 1 is certain to save every child’s life. However, the vaccine
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will not provide complete protection against the virus. If a child
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11. Kumar, “Risking and Wronging.”
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12. James, “Contractualism’s (Not So) Slippery Slope,” and Kumar, “Risking and
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Wronging,” the two main proponents of ex ante contractualism in the literature, both fail
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to discuss this problem.
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receives Vaccine 1, the virus is certain to paralyze one of the child’s
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legs, so that he or she will walk on crutches for the rest of his or her
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life.
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• Vaccine 2 is risky. It gives every child a 999/1000 chance of surviving the virus completely unharmed. However, for every child there
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is a 1/1000 chance that Vaccine 2 will be completely ineffective and
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that the child will be killed by the virus. (Assume that the outcomes
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for different children are probabilistically independent.) Call the
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children who end up dying the luckless children.
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Whichever of the two vaccines we choose to produce will be administered to all one million children.13
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Before I go on, a brief note about the notions of “chance” and “probability,” as I employ them in this and subsequent cases. Notwithstanding the posits of contemporary quantum physics, I shall assume that
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natural processes at the macro-physical level that we deal with in medicine and most other domains of risky human activity are, for all intents
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and purposes, deterministic. When using the terms “probability” or
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“chance” in this and all following examples, I shall therefore assume
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that we are speaking not about objective indeterminacy at the level of
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physical reality itself, but about epistemic probability, which reflects
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our incomplete knowledge of the state of the world and the laws of
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nature. The notion of epistemic probability that I will be employing is
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evidence-relative: To say that, from the perspective of an agent, some
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event e has an epistemic probability p of occurring is to say that, given
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the evidence available to the agent, her rational degree of credence in
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the proposition “e will occur” would be p. (To keep things simple, I
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shall assume that the decision makers’ actual degrees of credence track
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what the available evidence makes it rational for them to believe.) In
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Section 5.C, I revisit this assumption and argue that, for the purposes of
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morally evaluating risky actions, it typically makes no difference
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whether the risk in question corresponded to objective or to “merely”
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epistemic chances.
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13. I specify that the patients are young children in order to bracket the complicating
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factor of patient autonomy; an adult patient would presumably have the right to refuse
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either treatment.
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How ought a contractualist to go about deciding how to act in Mass
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Vaccination (Unknown Victims)? One way of thinking about this case is
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by analogy with the following interpersonal trade-off under certainty:
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Mass Vaccination (Known Victims): The threat situation is as in Mass
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Vaccination (Unknown Victims) above. This time, we must choose
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between mass producing one of the following two vaccines:
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• Vaccine 1, as above, is sure to save every child’s life, at the cost of
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paralyzing one of their legs.
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• Vaccine 3 is sure to allow 999,000 children to survive the virus
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completely unharmed. However, because of a known particularity
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in their genotype, Vaccine 3 is certain to be completely ineffective
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for 1,000 identified children. These doomed children are sure to be
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killed by the virus if we choose Vaccine 3.
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From what was said in the previous section, it is clear how a
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Scanlonian contractualist ought to think about Mass Vaccination
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(Known Victims). The individual burden of becoming paralyzed in one
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leg, though significant, is not even close to that of losing one’s life at a
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young age. Since contractualism does not allow the aggregation of
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claims, the Greater Burden Principle implies that no one could reasonably reject a principle requiring us to produce Vaccine 1, whereas a principle licensing us to choose Vaccine 3 could be reasonably rejected by
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each of the 1,000 doomed children.
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Now return to Mass Vaccination (Unknown Victims). Note that, due
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to the Law of Large Numbers, we can predict with a high degree of
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confidence that the overall pattern of outcomes from administering
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Vaccine 2 would look a lot like that of administering Vaccine 3 in my
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second case. Although no particular child is certain to die, it is a statistical certainty that some children will be killed by the virus if we administer Vaccine 2, and the likelihood that roughly 1,000 (±100) will die is
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greater than 99 percent.14
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999 ⎞ 1 ,000,000
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14. The probability that at least one child will be killed by Vaccine 2 is 1 − ⎛
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,
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⎝ 1,000 ⎠
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which is very close to 1. By Chebyshev’s Inequality, the likelihood that roughly 1,000 children (±100) will be killed is > 0.99. Given that contractualism prohibits aggregation, only the
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former number really matters to the argument.
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Moreover, the harm of death is just as great for a luckless child as for
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a doomed child. Holding constant the fact of actually suffering a harm, it
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is typically no better for a person that she had some chance of escaping
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the harm rather than being certain to suffer it. (I return to this point in
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Section 5.)
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III. THE ARGUMENT FROM IRRELEVANT INFORMATION AND
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EX POST CONTRACTUALISM
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Given these two parallels—a near-identical overall pattern of outcomes
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and equivalent individual harms—a number of nonconsequentialist
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philosophers have maintained that cases of social risk can, under certain
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conditions, be morally assimilated to interpersonal trade-offs under certainty. In the following, I will concentrate on an argument by Sophia
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Reibetanz Moreau.15 Elsewhere,16 I have contended with similar arguments by Marc Fleurbaey and Alex Voorhoeve.17
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All of these philosophers deploy versions of the following basic argument, which, applied to my two examples, runs as follows:
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The Argument from Irrelevant Information: In Mass Vaccination
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(Known Victims), selecting Vaccine 3 is unjustifiable to the doomed
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children, since this would impose on them a greater individual
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burden than Vaccine 1 imposes on anyone. But in Mass Vaccination
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(Unknown Victims), we know that, if we choose Vaccine 2, some children will end up in the same position that the doomed children occupied in Mass Vaccination (Known Victims). They, too, will lose their
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lives, whereas under Vaccine 1 the greatest harm that any child would
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have had to suffer is a paralyzed leg. To be sure, we do not yet know
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who these luckless children are. But surely, the identity of the eventual
|
||
victims is irrelevant information. Whoever will lose their life through
|
||
Vaccine 2 will have as strong a complaint against the decision maker
|
||
15. Reibetanz Moreau, “Contractualism and Aggregation.”
|
||
16. Johann Frick, “Uncertainty and Justifiability to Each Person: Response to Fleurbaey
|
||
and Voorhoeve,” in Inequalities in Health: Concepts, Measures, and Ethics, ed. Nir Eyal,
|
||
Samia Hurst, Ole Norheim, and Daniel Wikler (New York: Oxford University Press, 2013).
|
||
17. Alex Voorhoeve and Marc Fleurbaey, “Decide as You Would with Full Information!
|
||
An Argument against Ex Ante Pareto,” in Eyal, Hurst, Norheim, and Wikler, Inequalities in
|
||
Health.
|
||
|
||
185
|
||
|
||
Contractualism and Social Risk
|
||
|
||
as a doomed child has against Vaccine 3. Therefore, Vaccine 1 is the
|
||
only option that is justifiable to each person in either case.
|
||
For proponents of the Argument from Irrelevant Information, the
|
||
strength of an individual’s personal reasons for rejecting a risky action
|
||
depends not on how likely they themselves were to suffer a burden, but
|
||
on how likely it was that someone would. Thus, Sophia Moreau writes:
|
||
As long as we know that acceptance of a principle will affect someone
|
||
in a certain way, we should assign that person a complaint that is
|
||
based upon the full magnitude of the harm or benefit, even if we
|
||
cannot identify the person in advance. It is only if we do not know
|
||
whether acceptance of a principle will affect anyone in a certain way
|
||
that we should allocate each individual a complaint based upon his
|
||
expected harms and benefits under that principle.18
|
||
Moreau subscribes to what is called an ex post view of justification,
|
||
according to which the relative strength of an individual’s harm-based
|
||
complaint turns not on the ex ante prospect it offered her individually,
|
||
but on the foreseeable distribution of outcomes across individuals that
|
||
the action will produce ex post. Paired with a ban on the aggregation of
|
||
claims, this ex post view strongly privileges the perspective of the individual who turns out to be most burdened under a given principle. It is to
|
||
her that justification must be addressed, typically by showing that any
|
||
alternative principle would have ended up imposing an even greater
|
||
burden on her or on someone else.
|
||
Although the Argument from Irrelevant Information is seductive, I
|
||
believe that ex post contractualism is hard to accept. Note, in particular,
|
||
that it would dramatically contradict many of our ordinary moral convictions: in real life, we often impose social risks that closely resemble
|
||
that of choosing Vaccine 2 in Mass Vaccination (Unknown Victims).
|
||
Thus, it is commonly deemed morally unproblematic to systematically
|
||
inoculate young children against certain serious but nonfatal childhood
|
||
diseases where there is a remote chance of fatal side effects from the
|
||
inoculation itself. But this is not because it is unlikely that inoculation
|
||
will ever lead to disaster for some unlucky children. Given the large
|
||
18. Reibetanz Moreau, “Contractualism and Aggregation,” p. 304.
|
||
|
||
186
|
||
|
||
Philosophy & Public Affairs
|
||
|
||
number of children inoculated each year, it is a statistical certainty that
|
||
some small number of them will develop fatal complications. If ex post
|
||
contractualism were correct, a policy of systematic inoculation would be
|
||
very hard to defend. Indeed, it would be as hard to defend as a policy that
|
||
sacrificed the lives of some small known group of children each year in
|
||
order to save the others from contracting nonfatal childhood diseases.
|
||
|
||
IV. THE ARGUMENT FROM THE SINGLE-PERSON CASE AND
|
||
EX ANTE CONTRACTUALISM
|
||
|
||
Given these problems with ex post contractualism, it is worth exploring
|
||
a different approach. A natural thought is that, instead of assimilating
|
||
Mass Vaccination (Unknown Victims) to an interpersonal trade-off
|
||
under certainty, we could compare it to a single-person decision under
|
||
risk. Consider:
|
||
Individual Vaccination: A single young child (call her Clara) is threatened by a terrible virus, which is certain to kill her if we do nothing. As
|
||
Clara’s guardians, we must decide which of two available vaccines to
|
||
give her. As before,
|
||
• Vaccine 1 is certain to save Clara’s life, but at the cost of one of her
|
||
legs becoming paralyzed by the virus.
|
||
• Vaccine 2 will give Clara a 999/1000 chance of surviving the virus
|
||
completely unharmed; however, there is a 1/1000 chance that
|
||
Vaccine 2 will be completely ineffective for Clara and that she will
|
||
be killed by the virus.
|
||
How ought we to act? In von Neumann-Morgenstern’s expected utility
|
||
theory, the effect of a utility loss on a person’s overall expected utility is
|
||
weighted by the probability of its occurrence; this means that large but
|
||
unlikely losses can be equivalent in expected utility to smaller but more
|
||
likely losses (likewise for gains). Hence, according to expected utility
|
||
theory, the prospect offered to Clara by Vaccine 1 is worse than that offered
|
||
by Vaccine 2 if and only if her utility from becoming paralyzed and walking
|
||
on crutches for the rest of her life is less than the weighted sum of her
|
||
utility loss from death (weighted by a factor of 1/1000) plus the benefit of
|
||
a life in full health (weighted by a factor of 999/1000). Many of us would
|
||
|
||
187
|
||
|
||
Contractualism and Social Risk
|
||
|
||
agree that this is the case, and hence that it would be morally right for
|
||
Clara’s guardians to choose Vaccine 2 on her behalf.
|
||
This result is not an artifact of embracing expected utility theory.
|
||
Some versions of prioritarianism, for instance, maintain that as Clara’s
|
||
guardians we ought not necessarily select the treatment that gives her
|
||
the greatest expected utility ex ante. Rather, we should assign disproportionate normative weight to avoiding an outcome that is very bad for
|
||
Clara (in this case, her death).19 Thus, even if Clara’s expected utility from
|
||
receiving Vaccine 2 were somewhat greater than her expected utility
|
||
from Vaccine 1, a prioritarian might still opt to give her Vaccine 1, because
|
||
this is sure to avert the outcome that is worst for Clara. In the present
|
||
case, however, Clara’s expected utility from receiving Vaccine 2 is arguably considerably greater than her expected utility from Vaccine 1. Given
|
||
this, I claim, a reasonable prioritarian would concur that it would be
|
||
justifiable for Clara’s guardians to choose Vaccine 2 on her behalf. For a
|
||
young child, escaping certain paralysis in one leg for the rest of her life is
|
||
worth a 1/1000 risk of death.
|
||
Our response in Individual Vaccination points the way to a different
|
||
way of thinking about the imposition of social risks. I call this the Argument from the Single-Person Case:
|
||
Argument from the Single-Person Case: For contractualists, the rightness of an action is a function of each individual’s personal reasons for
|
||
rejecting a principle that licenses the action. An act is wrong if and only
|
||
if there is someone who can complain that we failed to treat her in a way
|
||
that was justifiable to her, not because its consequences were impersonally bad. In assessing the rightness of a risky action, we must focus
|
||
on how it affects each individual, compared to the possible alternatives. To better see how Mass Vaccination (Unknown Victims) affects
|
||
each person individually, this case might be analytically decomposed
|
||
into one million single-person gambles that occur in parallel. But
|
||
what do we see if we do this? The prospect offered to each child by
|
||
19. I set aside the question whether this version of prioritarianism, which applies the
|
||
view not just to interpersonal trade-offs but to intrapersonal gambles as well, is the most
|
||
plausible way of fleshing out the view. For discussion of this point, see Michael Otsuka and
|
||
Alex Voorhoeve, “Why It Matters That Some Are Worse Off Than Others: An Argument
|
||
against the Priority View,” Philosophy & Public Affairs 37 (2009): 171–99; and Derek Parfit,
|
||
“Another Defense of the Priority View,” Utilitas 24 (2012): 399–440.
|
||
|
||
188
|
||
|
||
Philosophy & Public Affairs
|
||
|
||
administering Vaccine 2 is exactly the same as the one given to Clara in
|
||
Individual Vaccination, and the alternative option is the same as well.
|
||
Hence, by mass producing and administering Vaccine 2, we do for each
|
||
child what a guardian, concerned solely with that child’s interests,
|
||
ought to have done for her in a single-person case. Given this, how
|
||
could any child in Mass Vaccination (Unknown Victims) reasonably
|
||
reject a principle that licenses us to choose Vaccine 2?20
|
||
Underpinning this argument is a different way of thinking about the
|
||
justification of social risk. According to ex ante contractualism, the
|
||
strength of someone’s personal reasons for rejecting a principle licensing a risky action depends on the quality of the prospect that the action
|
||
gave her ex ante. A person’s harm-based complaint against a loss she
|
||
suffers must, therefore, be discounted by her ex ante unlikelihood of
|
||
suffering a loss and by her ex ante likelihood of benefiting from the risky
|
||
action. If the person’s ex ante prospect from the risky action was good
|
||
enough, she may have no reasonable complaint under the Greater
|
||
Burden Principle, even if she is unlucky and ends up suffering a greater
|
||
loss than anyone would have suffered under an available alternative.21
|
||
20. Alternatively, consider the following sequential decomposition of Mass Vaccination
|
||
(Unknown Victims): A doctor must, over a period of time, see one million young children,
|
||
each in the same situation as Clara in Individual Vaccination. Due to the Law of Large
|
||
Numbers, the doctor can foresee that, if he gives each child Vaccine 2, at some point
|
||
misfortune will strike and some child will be killed by the virus. Does this mean that, while
|
||
it would be justifiable to give Clara Vaccine 2 in Individual Vaccination, it would be unjustifiable for the doctor to adopt a policy of giving every child Vaccine 2 in the sequential
|
||
case? This is what ex post contractualism implies, but it seems scarcely credible. The
|
||
potential benefits for each child of receiving Vaccine 2 in the sequential case are just as
|
||
great as they were for Clara in Individual Vaccination, and the risk faced in exchange is no
|
||
greater than what was deemed acceptable to Clara in that case. It seems implausible that a
|
||
policy of giving every child Vaccine 2 should be unjustifiable to a child, not because of how
|
||
it is likely to affect that child, but just because, under that policy, other children will, at
|
||
different points in time, be exposed to the same probabilistically independent risk. For an
|
||
argument along similar lines, see Tom Dougherty, “Aggregation, Beneficence, and
|
||
Chance,” Journal of Ethics and Social Philosophy 72 (2013): 1–19.
|
||
21. This is not to claim that prospects have nonderivative value or disvalue in themselves. As I will argue in Section 5, people are not made worse off by the mere risk of
|
||
suffering a loss, nor do they benefit from the mere chance of receiving a benefit, holding
|
||
everything else constant. But while what ultimately matters to individuals’ well-being is
|
||
whether they end up being benefited or harmed, what might matter morally is to ensure a
|
||
justifiable distribution of prospects. I owe this point to Derek Parfit, “Justifiability to Each
|
||
Person,” Ratio 16 (2003): 368–90.
|
||
|
||
189
|
||
|
||
Contractualism and Social Risk
|
||
|
||
Ex ante contractualism, as I am proposing it, must be sharply distinguished from the contractualist rule-utilitarian view espoused by John
|
||
Harsanyi.22 According to Harsanyi, in order to decide an interpersonal
|
||
trade-off under certainty, such as Mass Vaccination (Known Victims), in
|
||
a manner that is justifiable to each person, we should imagine all
|
||
affected parties placed behind a hypothetical veil of ignorance that
|
||
deprives them of all knowledge of their personal identity. The right
|
||
course of action is that which all parties would, in this situation, endorse
|
||
on grounds of self-interest.
|
||
To Harsanyi, the hypothetical veil of ignorance device offers two principal attractions: First, it promotes impartial and unbiased decision
|
||
making by modeling our moral principles on the choices of hypothetical
|
||
deliberators who lack the ability to tailor principles to their personal
|
||
traits and needs. Behind the veil of ignorance, even selfish deliberators
|
||
are forced to give fair consideration to the interests of every person
|
||
concerned—for all they know, they might turn out to be that person.
|
||
Second, the veil of ignorance device promises to reduce a difficult interpersonal trade-off to a more tractable problem of intrapersonal choice
|
||
under risk. Since none of the affected parties possesses information that
|
||
would give them reason to prefer a different course of action than
|
||
anyone else, we can expect deliberation behind the hypothetical veil of
|
||
ignorance to render a unanimous verdict.
|
||
In Mass Vaccination (Known Victims), this verdict would be to
|
||
produce Vaccine 3. Given no information about her identity, Harsanyi
|
||
maintains, each child must assume that there is a 999/1000 chance that
|
||
Vaccine 3 will work for her and only a 1/1000 chance that it will not (if she
|
||
turns out to be one of the doomed children).23 This intrapersonal gamble
|
||
is equivalent to that of Individual Vaccination, and there we concluded
|
||
that it would be in a child’s interest to take the risk. Therefore, according
|
||
to Harsanyi, choosing Vaccine 3 can be justified to each person and is
|
||
morally right.
|
||
22. See, for instance, John Harsanyi, “Morality and the Theory of Rational Behavior,” in
|
||
Sen and Williams, Utilitarianism and Beyond, pp. 39–62.
|
||
23. John Rawls’s more famous use of the veil of ignorance device differs from Harsanyi’s
|
||
in this regard. Whereas Harsanyi assumes that every deliberator behind the veil has an
|
||
equal epistemic probability of occupying any position beyond the veil, Rawls himself
|
||
eschews this equiprobability assumption in favor of a “thick” veil of ignorance, which
|
||
deprives the deliberators of all probabilistic knowledge.
|
||
|
||
190
|
||
|
||
Philosophy & Public Affairs
|
||
|
||
Scanlon, however, rejects Harsanyi’s hypothetical veil of ignorance
|
||
approach, arguing that it mischaracterizes the nature of justification to
|
||
individuals. By modeling interpersonal trade-offs on analogy with a
|
||
single individual’s choices under risk, the hypothetical veil of ignorance
|
||
mechanism fails to give each person the separate and individual concern
|
||
that she is due. That it is often rational to take risks in pursuit of greater
|
||
benefits in our own lives does not, ipso facto, justify making someone
|
||
suffer burdens for the good of other people. Thus, “the question of what
|
||
everyone could reasonably agree to or what no one could reasonably
|
||
reject” is “a quite different question [from] what would maximize the
|
||
expectations of a single self-interested person choosing in ignorance of
|
||
his true position.”24 For a moral principle to be valid is for it to be justifiable to each person from her own point of view, without artificial informational restrictions.
|
||
Unlike Harsanyi’s hypothetical veil of ignorance method, which
|
||
works by depriving people of information that they in fact have, ex ante
|
||
contractualism of the kind I am proposing comes into its own in
|
||
situations where our inability to foresee the individual outcomes of our
|
||
actions places us behind what might be called a natural veil of
|
||
ignorance. It is natural uncertainty itself, not the strictures of a hypothetical veil of ignorance, that forces people to deliberate in the
|
||
absence of complete knowledge about how they will be affected by the
|
||
action in question. To claim that such situations can be illuminatingly
|
||
analyzed by analogy with intrapersonal gambles under risk is not to
|
||
commit ourselves to a view that reduces interpersonal justification in
|
||
general to a question of self-interested choice under informational
|
||
restrictions.
|
||
Indeed, if ex ante contractualism is sound, it suggests a sharp distinction between the two Mass Vaccination cases. Choosing Vaccine 3 in
|
||
Mass Vaccination (Known Victims) means the doomed children face the
|
||
prospect of certain death. By contrast, administering Vaccine 2 in Mass
|
||
Vaccination (Unknown Victims) gives no child a comparably bad prospect. While it is certain that some children will die, there is no child who
|
||
is certain to die if we administer Vaccine 2. Indeed, given the significant
|
||
burden of partial paralysis under Vaccine 1, a course of action that
|
||
|
||
24. Reibetanz Moreau, “Contractualism and Utilitarianism,” p. 122.
|
||
|
||
191
|
||
|
||
Contractualism and Social Risk
|
||
|
||
promises to avoid this certain burden at the cost of a tiny risk of death
|
||
seems in every child’s interest. Given this, selecting Vaccine 2 is justifiable to every child, according to ex ante contractualism.
|
||
|
||
A. The Case of Knowable Victims
|
||
In discussing the contrast between Mass Vaccination (Known Victims)
|
||
and Mass Vaccination (Unknown Victims), I have so far focused on two
|
||
classes of cases: cases where we know the identities of individuals who
|
||
will suffer if we perform a certain action and cases where, given the
|
||
available evidence and current scientific know-how, we cannot know, at
|
||
the time of acting, who will suffer if we act in a certain way. But this
|
||
distinction is not exhaustive.
|
||
Consider, briefly, an intermediate case, which is like Mass Vaccination
|
||
(Known Victims), except that the children who will be killed by the virus
|
||
if we choose Vaccine 3 are not currently known but merely knowable, in
|
||
the sense that we have the necessary evidence and wherewithal to determine their identities prior to administering Vaccine 3. For instance,
|
||
suppose we know that Vaccine 3 will be completely ineffective for a child
|
||
if and only if she carries a rare gene G. Moreover, we know that there are
|
||
1,000 such children among the one million threatened by the virus. What
|
||
we do not currently know is which children carry G. However, a simple
|
||
and costless genetic test would allow us to find out.25 Call this case Mass
|
||
Vaccination (Knowable Victims).
|
||
Intuitively, the fact that the victims in this case are not known but
|
||
merely knowable does not make a moral difference. “Surely,” the
|
||
thought goes, “if vaccinating would be unjustifiable in Mass Vaccination
|
||
(Known Victims) because we already know the identities of the doomed
|
||
children, our ignorance of the doomed children’s identities in Mass Vaccination (Knowable Victims) would be a very poor excuse for choosing
|
||
Vaccine 3. For this lack of information about the doomed children’s
|
||
identities is one that we are entirely free to remove by carrying out the
|
||
simple genetic test.”
|
||
25. Alternatively, imagine that the test has already been carried out, and that its
|
||
results—though not yet known to us—are stored in a filing cabinet where we could easily
|
||
consult them.
|
||
|
||
192
|
||
|
||
Philosophy & Public Affairs
|
||
|
||
Ex ante contractualism supports this intuitive verdict.26 To see why,
|
||
return first to the contrast between Mass Vaccination (Unknown Victims)
|
||
and Mass Vaccination (Known Victims). According to the Argument from
|
||
the Single-Person Case, the crucial difference between these cases is that
|
||
in the former we can say to each child: “To the best of our knowledge,
|
||
choosing Vaccine 2 is highly likely to benefit you, and has only a tiny
|
||
chance of turning out to your disadvantage. Indeed, we could justify
|
||
giving you this vaccine even in a single-person case, where furthering your
|
||
interests was our sole concern.” By contrast, we could not say this to each
|
||
child in Mass Vaccination (Known Victims), in attempting to justify
|
||
Vaccine 3. For in that case, there are some individuals—the doomed
|
||
children—of whom we know that they will die if we choose Vaccine 3. For
|
||
a doomed child, choosing Vaccine 3 does not correspond to what we
|
||
ought to do in a case where her interests were our sole concern.
|
||
I maintain that in the respects highlighted by the Argument from the
|
||
Single-Person Case, Mass Vaccination (Knowable Victims) is equivalent
|
||
to Mass Vaccination (Known Victims). As in Mass Vaccination (Known
|
||
Victims), we could not justify Vaccine 3 by saying to each child: “To the
|
||
best of our knowledge, choosing Vaccine 3 is highly likely to benefit you,
|
||
and has only a tiny chance of turning out to your disadvantage. We could
|
||
justify giving you this vaccine even in a single-person case.” Both halves
|
||
of this statement are false.
|
||
Consider the first half first. Granted, it is true that
|
||
(A) In Mass Vaccination (Knowable Victims), given our present
|
||
ignorance about which children have gene G, there is no child of
|
||
whom we know that will die if we choose Vaccine 3.
|
||
Indeed,
|
||
(B) In Mass Vaccination (Knowable Victims), given our present
|
||
ignorance about which children have gene G, it is rational to
|
||
believe, of any given child, that it is highly likely to benefit if we
|
||
produce Vaccine 3, and very unlikely to be burdened.
|
||
Yet both (A) and (B) are things we can affirm only as long as we do not
|
||
avail ourselves of all the freely available evidence, namely, by carrying
|
||
26. I thank an anonymous referee for pressing me to clarify my reasoning about this
|
||
point.
|
||
|
||
193
|
||
|
||
Contractualism and Social Risk
|
||
|
||
out the simple and costless genetic test. However, something that we
|
||
can only affirm without taking into account freely available evidence is
|
||
not something we can affirm “to the best of our knowledge.” Hence,
|
||
neither (A) nor (B) can support
|
||
(C) In Mass Vaccination (Knowable Victims), it is true of every
|
||
child that, to the best of our knowledge, choosing Vaccine 3 is
|
||
highly likely to benefit the child, and has only a tiny chance of
|
||
turning out to her disadvantage.
|
||
Nor is it true that, by choosing Vaccine 3 in Mass Vaccination (Knowable Victims), we are treating each child in a way that would have been
|
||
justifiable in a single-person case. Consider a single-person analogue
|
||
involving only Clara and her doctor: The doctor can administer a genetic
|
||
test, which will determine whether Clara carries G or not. Given that this
|
||
test is simple and costless, and will help the doctor to select the appropriate treatment, there is no justification for failing to administer the test.
|
||
But if the test indicates that Clara carries gene G, it will not be justifiable
|
||
for the doctor to administer Vaccine 3. He must administer Vaccine 1.
|
||
Consequently, we cannot say to each child in Mass Vaccination (Knowable Victims) that by giving him Vaccine 3, we are treating him in a way
|
||
that would have been justifiable in a single-person case. This will be false
|
||
for those children who carry G.
|
||
I conclude that if ex ante contractualists are right to use the Argument
|
||
from the Single-Person Case to draw a moral line between cases like
|
||
Mass Vaccination (Unknown Victims) and Mass Vaccination (Known
|
||
Victims), then cases involving victims whose identities are not presently
|
||
known but are knowable should often be treated on analogy with cases
|
||
involving known victims—at least if it is simple and costless to ascertain
|
||
their identities.
|
||
Suppose, by contrast, that although we could find out who
|
||
carries gene G in Mass Vaccination (Knowable Victims), doing so
|
||
would be extremely costly for us. Intuitively, this seems to bring this case
|
||
closer to Mass Vaccination (Unknown Victims), where information
|
||
about the identities of the victims is simply unobtainable prior to
|
||
acting.
|
||
I believe that ex ante contractualism has the resources to underwrite
|
||
this intuition as well, though I can only sketch a tentative proposal. Once
|
||
again, it is helpful to first consider a single-person analogue of the case in
|
||
|
||
194
|
||
|
||
Philosophy & Public Affairs
|
||
|
||
question. Suppose that, in principle, the doctor has the ability to determine whether Clara carries the rare gene G, but that doing so would be
|
||
extremely costly to the public purse (Clara herself cannot bear these
|
||
costs). In this case, the doctor may have a valid justification for not
|
||
carrying out the genetic test, and for instead giving Clara the treatment
|
||
that gives her the best prospect, given ignorance about her exact genotype, namely, Vaccine 3. He might say to Clara: “To the best of my knowledge, given justifiable limits on the resources we can be expected to
|
||
expend in gathering further information about your particular case,
|
||
Vaccine 3 is highly likely to benefit you, and has only a tiny chance of
|
||
turning out to your disadvantage.”
|
||
This reasoning carries over to Mass Vaccination (Knowable Victims).
|
||
Unlike in the costless case we discussed above, choosing Vaccine 3 in the
|
||
costly case may be justifiable to every child. For in this case, by giving all
|
||
children Vaccine 3, we would be doing for them the same thing that
|
||
would have been justifiable to each in a single-person case.
|
||
|
||
V. REJECTING THE ARGUMENT FROM IRRELEVANT INFORMATION AND
|
||
EX POST CONTRACTUALISM
|
||
|
||
Since ex ante contractualism avoids some of the implausible implications of the ex post view and seems independently attractive, it pays to
|
||
take a closer look at the ex post contractualist’s Argument from Irrelevant Information, to see whether we can find fault with it.
|
||
Consider the following reconstruction of the Argument from Irrelevant Information:
|
||
(1) An action is permissible if and only if it is justifiable to each
|
||
person.
|
||
(2) In Mass Vaccination (Known Victims), selecting Vaccine 3 cannot
|
||
be justified to the doomed children.
|
||
(3) In Mass Vaccination (Unknown Victims), we know that, if we
|
||
select Vaccine 2, the luckless children will suffer the same losses
|
||
that the doomed children suffer under Vaccine 3, although we
|
||
cannot know the identities of the luckless children.
|
||
(4) The fact that we cannot know the identities of the luckless children is irrelevant to the question of whether selecting Vaccine 2 is
|
||
justifiable to each person.
|
||
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||
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Contractualism and Social Risk
|
||
|
||
(5) In Mass Vaccination (Unknown Victims), there are some children to whom selecting Vaccine 2 cannot be justified, although
|
||
we cannot know the identities of these children. [from (2), (3),
|
||
and (4)]
|
||
∴ Selecting Vaccine 2 is impermissible in Mass Vaccination
|
||
(Unknown Victims). [from (1) and (5)]
|
||
The crucial step in this argument is premise (4). Proponents of the
|
||
Argument from Irrelevant Information assume that the lack of information about individual outcomes that characterizes cases of social
|
||
risk is a merely epistemic phenomenon, devoid of moral significance. It
|
||
is morally irrelevant, they claim, that we cannot know who will be
|
||
harmed by the risky action, as long as we know that some persons will
|
||
be harmed. Instead of affecting whether Vaccine 2 is justifiable to each
|
||
person, our lack of information about individual outcomes merely
|
||
masks the identity of those children to whom the choice of Vaccine 2
|
||
cannot be justified.
|
||
Premise (4), however, directly contradicts what defenders of ex ante
|
||
contractualism affirm. And they, as we saw, have an argument for rejecting premise (4): given lack of information about individual outcomes, it
|
||
is in each patient’s ex ante interest to take the gamble that Vaccine 2
|
||
offers. By administering Vaccine 2, we thus do for each child what we
|
||
would do on her behalf in a single-person case, where that child’s wellbeing was our only concern. The same cannot be said in an interpersonal
|
||
trade-off under certainty.
|
||
Lest they beg the question against their opponent, defenders of ex
|
||
post contractualism thus need an independent argument for affirming
|
||
premise (4). Let me review what seem to me the three strongest
|
||
contenders.
|
||
A. The Argument from Certain Loss
|
||
The first and, I believe, the most natural way of reading the passage from
|
||
Moreau that I cited above is as proposing what I shall term the Argument
|
||
from Certain Loss. According to this argument, information about individual outcomes is not needed in cases of social risk, because whoever
|
||
ends up being burdened by the risky action will have a complaint that is
|
||
augmented by the fact that it was certain that someone would be burdened. Recall Moreau: “As long as we know that acceptance of a
|
||
|
||
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||
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||
Philosophy & Public Affairs
|
||
|
||
principle will affect someone in a certain way, we should assign that
|
||
person a complaint that is based upon the full magnitude of the harm or
|
||
benefit, even if we cannot identify the person in advance.”
|
||
The Argument from Certain Loss, however, implies an odd asymmetry
|
||
between single-person gambles and cases of social risk-imposition. A
|
||
proponent of the Argument from Certain Loss would agree that a principle licensing us to choose Vaccine 2 in Individual Vaccination is justifiable to Clara. Even if Clara is unlucky and the gamble turns out badly for
|
||
her, she has no weighty complaint. After all, in this single-person case, the
|
||
likelihood that someone will be killed is the same as the likelihood that
|
||
Clara will be killed. By contrast, the choice of Vaccine 2 is said to be
|
||
unjustifiable in Mass Vaccination (Unknown Victims), since here it is a
|
||
statistical certainty that some child will be killed. What, therefore, makes
|
||
the moral difference between the single-person and the social case is our
|
||
enhanced knowledge of the overall pattern of outcomes—not any difference in the attractiveness of the gamble offered to each individual.
|
||
But why, we may wonder, should a luckless child have a greater complaint than Clara, just because, even if he had not been unlucky, it is
|
||
statistically certain that some other child would have died instead? This
|
||
looks suspiciously like a new form of interpersonal aggregation: the combination of complaints by different individuals at different possible
|
||
worlds, depending on who happens to be unlucky at that possible world.
|
||
But if contractualists reject the combination of claims by different people
|
||
at the same possible world, then a fortiori they ought not to allow different
|
||
people to aggregate their complaints across different possible worlds.
|
||
B. The Argument from Lack of Concern
|
||
According to the next argument, the lack of information about individual
|
||
outcomes in Mass Vaccination (Unknown Victims) does not matter,
|
||
because we know that whoever ends up being burdened could make the
|
||
following complaint: given that we knew for certain that some children
|
||
would die if we chose Vaccine 2—an outcome that we could have
|
||
avoided by opting for Vaccine 1 instead (which would not have imposed
|
||
a similarly severe loss on anyone)—our willingness to nonetheless opt
|
||
for Vaccine 2 betrays a lack of concern for the eventual losers.
|
||
This argument also misses its mark: it might be claimed that our
|
||
action shows too little concern for avoiding that there will be losers. This,
|
||
|
||
197
|
||
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||
Contractualism and Social Risk
|
||
|
||
however, expresses a preoccupation with the overall shape of the
|
||
outcome, as might arise from an impersonal moral principle such as telic
|
||
egalitarianism or the priority view. As I argued above, contractualism’s
|
||
exclusive focus on personal reasons does not allow us to appeal to such
|
||
impersonal principles.
|
||
By contrast, what no luckless child can claim is that the risky action
|
||
showed too little concern that he will be a loser. Again, our action takes
|
||
no greater risks with the well-being of any child than its analogue in
|
||
Individual Vaccination, where defenders of ex post contractualism
|
||
agreed that taking the gamble on Clara’s behalf did not show insufficient
|
||
concern for her. Unequal outcomes are not always evidence of unequal
|
||
concern or treatment, especially when they are produced by a chancy
|
||
causal process.
|
||
C. The Argument from Determinism
|
||
Let us consider one final argument for the ex post perspective. We are
|
||
conducting our discussion under the working assumption that at the
|
||
macro-physical level that we deal with in most cases of social riskimposition, nature is, for all intents and purposes, deterministic. All
|
||
probabilities we encounter in these contexts are merely epistemic, that is,
|
||
owed to our incomplete knowledge of the state of the world and the laws
|
||
of nature that govern it, not objective, that is, due to indeterminacy at the
|
||
level of physical reality itself.27
|
||
But if this assumption is true, might it not spell trouble for the ex ante
|
||
contractualist? After all, if determinism is true, then someone who loses
|
||
27. How exactly to characterize the notion of “objective” probability remains a hotly
|
||
debated topic in contemporary metaphysics. The intuitive contrast with the “epistemic”
|
||
notion of probability that I have been working with is, nonetheless, clear enough. Recapitulating from above: to say that, from the perspective of an agent, some event e has an
|
||
epistemic probability p of occurring is to say that, given the evidence available to the agent,
|
||
her rational degree of credence in the proposition “e will occur” would be p. Note that,
|
||
given incomplete knowledge of the world, p can be > 0 even for events that are, as a matter
|
||
of fact, physically impossible. By contrast, to claim that e has an objective probability p of
|
||
occurring is to locate probability “in the world.” Here, p characterizes the physical propensity or disposition of a given type of physical situation to yield event e or to yield a long-run
|
||
relative frequency p of such an outcome-type. To say that e has an objective probability p
|
||
of occurring is thus to imply, minimally, that it is in fact possible that e will occur. For a
|
||
seminal discussion of the distinction between epistemic and objective probability, see
|
||
David Lewis, “The Subjectivist’s Guide to Objective Chance,” in Philosophical Papers, vol.
|
||
2 (Oxford: Oxford University Press, 1986).
|
||
|
||
198
|
||
|
||
Philosophy & Public Affairs
|
||
|
||
a gamble was, in a sense, always going to lose it. In terms of objective, if
|
||
not of epistemic, probability, there was no chance that the gamble would
|
||
turn out in her favor.
|
||
From this angle, it may now seem that the problem with imposing
|
||
social risks is not just, as the Argument from Certain Loss assumed, that
|
||
the agent knows with statistical certainty that someone will end up losing
|
||
if she imposes the risk. Rather, the agent knows that whoever ends up
|
||
losing was in fact certain to lose, in objective terms. But surely, the
|
||
argument goes, a principle allowing us to condemn someone to an objectively certain loss, so that others may enjoy smaller individual benefits, is
|
||
one that the loser could reasonably reject. On this view, there is an
|
||
important difference between cases of social risk such as Mass Vaccination (Unknown Victims) and single-person gambles like Individual Vaccination: In cases of social risk, we know with statistical certainty that
|
||
there will be some losers (by the Law of Large Numbers and the assumption that individual outcomes are probabilistically independent). Moreover, if determinism is true, we know that those who end up losing were,
|
||
in fact, objectively certain to lose. In single-person gambles, we also
|
||
know that if the person loses, she was objectively certain to lose.
|
||
However, unlike situations of social risk, we have no statistical reasons to
|
||
believe that we are in a case in which someone will lose. Indeed, in
|
||
Individual Vaccination, the available evidence makes it rational for us to
|
||
believe, with credence 0.999, that Clara will win her gamble (indeed, that
|
||
she is objectively certain to do so). This may make it permissible to give
|
||
her Vaccine 2, even if doing the same in Mass Vaccination (Unknown
|
||
Victims) would not be justifiable to each person. Call this the Argument
|
||
from Determinism.
|
||
If sound, the Argument from Determinism would have strongly revisionary implications. Ex ante reasoning could continue to be employed
|
||
for social risk-imposition under conditions of causal indeterminacy.
|
||
However, in all domains in which the assumption of causal indeterminacy is not plausible (and this, I have said, may include most risky
|
||
human activity), contractualist decision makers who cared about
|
||
making their actions justifiable to each person would have to resort to an
|
||
ex post model of justification. We have already seen that this would have
|
||
a profoundly confining effect on the conduct of social policy, which often
|
||
involves an ineliminable element of risk. Given these stakes, we should
|
||
take a hard look at the Argument from Determinism to examine whether
|
||
|
||
199
|
||
|
||
Contractualism and Social Risk
|
||
|
||
the fact of causal determinism really has the profound normative significance that this argument attributes to it.
|
||
In so doing, it is helpful to first go back to a single-person case like
|
||
Individual Vaccination, and to ask whether, in that situation, the presence or absence of objective chance makes any difference to Clara’s
|
||
reasons for wanting to take Vaccine 2. Let us distinguish two scenarios: in
|
||
the indeterministic scenario, the success of Vaccine 2 is objectively
|
||
chancy, contrary to what I have been assuming so far. That is, given
|
||
Vaccine 2, Clara has a 999/1000 objective chance of surviving the virus
|
||
unharmed and a 1/1000 objective chance of dying. In the deterministic
|
||
scenario, the outcome of Vaccine 2 is merely epistemically chancy. Given
|
||
the available evidence, there is a 999/1000 epistemic chance that Vaccine
|
||
2 is objectively certain to allow Clara to survive the virus unharmed, and
|
||
a 1/1000 epistemic chance that she is objectively certain to die if we give
|
||
her that medicine.
|
||
Now, I cannot see any good reason why Clara should hope to be in the
|
||
indeterministic rather than the deterministic scenario. In both situations, Clara’s rational degree of credence that she will actually avoid
|
||
death is the same. And from the perspective of prospective self-interest,
|
||
this is all that appears to matter. (If you are not yet persuaded, the
|
||
following analogy might help: All else equal, is there any greater selfinterested reason to buy a ticket for a lottery where the prize will be
|
||
allocated by a genuinely indeterministic mechanism [a “quantum randomizer”] than to buy a ticket for a lottery with the same epistemic odds
|
||
where a ticket is either sure to win or sure to lose, in the objective sense
|
||
[a scratch-card lottery with a preagreed winning number]? Again, it is
|
||
hard to think of any such reason. If you had a ticket to the indeterministic
|
||
lottery, and someone offered to trade it for an equivalent ticket to the
|
||
deterministic lottery plus a small amount of cash, there would be no
|
||
good reason to refuse this offer.)
|
||
Nor could it be said that if the gamble goes badly, it is worse for Clara
|
||
to become disadvantaged as the result of a causal process that was deterministic as opposed to indeterministic. The prudential value of receiving
|
||
a chance of some good, whether epistemic or objective, is strictly parasitic upon the value of the good itself. It is no benefit, in and of itself, to
|
||
have had an objective rather than a merely epistemic chance of receiving
|
||
the good. If, therefore, the gamble does not end up giving Clara the
|
||
benefit she sought, it would be in no way better for her to have “at least”
|
||
|
||
200
|
||
|
||
Philosophy & Public Affairs
|
||
|
||
had an objective rather than a merely epistemic chance of obtaining the
|
||
benefit. Once we hold fixed the fact of Clara’s death, there is no retrospective reason for her to care whether this happened due to a process
|
||
that was objectively or merely epistemically chancy.
|
||
I conclude that there is no reason, neither a prospective nor a retrospective one, why a single patient like Clara should care whether she is in
|
||
the deterministic or the indeterministic scenario.
|
||
These arguments carry over to the case of social risk. Here, too, the
|
||
only thing each child has reason to care about is whether he is being
|
||
treated in a way that will allow him to actually survive the disease
|
||
unharmed. But, for each child, our rational degree of credence that
|
||
Vaccine 2 will actually allow that child to survive unharmed is just as high
|
||
in the deterministic as in the indeterministic scenario.
|
||
Of course, we know that not all children will, in fact, survive if we
|
||
choose Vaccine 2. Some will die because the vaccine fails to protect
|
||
them from the virus. But this is due to the Law of Large Numbers, paired
|
||
with the assumption that individual outcomes are probabilistically
|
||
independent, not the issue of determinism vs. indeterminism. Moreover, as I argued in discussing the Argument from Certain Loss, this
|
||
fact does not increase any child’s personal reasons for rejecting a principle licensing us to select Vaccine 2. To claim it does would be to
|
||
engage in the interpersonal aggregation of claims across different possible worlds.
|
||
All told, it is hard to see how the fact that we can predict the overall
|
||
pattern of outcomes in Mass Vaccination (Unknown Victims) would give
|
||
anyone a greater harm-based complaint against Vaccine 2 than in a
|
||
single-person gamble. I conclude that the Argument from Irrelevant
|
||
Information fails. By assimilating cases of social risk-imposition to interpersonal trade-offs under certainty, the ex post contractualist conflates
|
||
the moral significance of “we know that someone will be harmed” with
|
||
that of “there is someone who we know will be harmed.”
|
||
Let us take stock: if my arguments for ex ante and against ex post
|
||
contractualism have been successful so far, I have shown how the
|
||
epistemically chancy nature of many public-policy decisions may allow
|
||
a contractualist to justify the imposition of social risks that will
|
||
foreseeably result in a pattern of benefits and burdens that his theory
|
||
would have forbidden him from bringing about through an interpersonal trade-off under certainty.
|
||
|
||
201
|
||
|
||
Contractualism and Social Risk
|
||
|
||
A catchy way of summarizing the appeal of ex ante contractualism is
|
||
that it permits us to “count the numbers without aggregating”: For a
|
||
population of a given size, the greater the number of people who would
|
||
foreseeably experience some harm H as the result of some socially risky
|
||
action, the worse the prospect that this action gives to each individual
|
||
(and mutatis mutandis for benefits). In this sense, an ex ante view
|
||
“counts the numbers,” because the number of those who will end up
|
||
being harmed by the action is an indicator of the prospect that it gives to
|
||
each individual. At the same time, ex ante contractualism does not
|
||
aggregate, because the structure of justification remains individualistic.
|
||
Overall outcomes matter because of what they say about individual prospects, not because of their total goodness or the combination of claims.
|
||
|
||
VI. EX ANTE RULES AND THE DECOMPOSITION TEST
|
||
|
||
The intermediate result I have reached stands in sharp contrast with the
|
||
position defended by T. M. Scanlon in What We Owe to Each Other.
|
||
There are a number of passages in which Scanlon explicitly rejects ex
|
||
ante contractualism. He writes:
|
||
In considering whether a principle could reasonably be rejected we
|
||
should consider the weightiness of the burdens it involves, for those
|
||
on whom they fall, and the importance of the benefits it offers, for
|
||
those who enjoy them, leaving aside the likelihood of one’s actually
|
||
falling in either of these two classes.28
|
||
Scanlon concedes that it is “intuitively obvious that the likelihood that a
|
||
form of behavior will lead to harm is an important factor in determining
|
||
its permissibility.” However, he argues that this does not require that we
|
||
“take this probability into account . . . as a factor that, in one way or
|
||
another, diminishes the complaint of a person who suffers this harm.”
|
||
Rather,
|
||
the probability that a form of conduct will cause harm can be relevant
|
||
not as a factor diminishing the “complaint” of the affected parties
|
||
(discounting the harm by the likelihood of their suffering it) but rather
|
||
28. Scanlon, What We Owe to Each Other, p. 208.
|
||
|
||
|