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WP015
Title
CONTRACTUALISM, AGGREGATION AND RISK
Author
Matthew Rendall
Email:
[email protected]
CONTRACTUALISM, AGGREGATION AND RISK1
Matthew Rendall
Lecturer
School of Politics and International Relations
University of Nottingham
University Park NG7 2RD
United Kingdom
44-(0)115-846-6231 (tel.)
44-(0)115-951-4859 (fax)
[email protected]
Abstract: Some have suggested that Thomas Scanlon’s requirement of justification to
each person renders his contractualism extremely risk-averse. Here I argue that in
reality his individualist restriction leaves it too risk-acceptant. Scanlon’s
contractualism will permit serious avoidable suffering and inequality that arise
through brute bad luck.
1
I thank participants in the Manchester Workshops in Political Theory for comments on an earlier
draft.
1
At the heart of contractualism lies a distinction between interpersonal and
intrapersonal aggregation. '[A] single person’, Michael Otsuka and Alex Voorhoeve
(2009: 175, 179) observe, ‘has a unity that renders it permissible to balance (expected)
benefits and burdens against each other that might accrue to her.’ We treat an
individual fairly when we maximize her expected utility. To do the same can be
unfair, on the other hand, when the gains and losses go to different people.1 T. M.
Scanlon (1998: 230) believes that if we must justify the distribution of gains and
losses to each individual, this will block such aggregation. This ‘individualist
restriction’2 should prevent, in particular, the vital needs of the few from being
sacrificed to the minor interests of the many.
The individualist restriction will often require us, in choices among persons, to
give priority to the worse-off. If we choose to improve the situation of the better-off
instead, we are likely to find it hard to justify our decision to the disadvantaged person
whom we might have helped (cf. Otsuka and Voorhoeve 2009, 183-84). If this is
true—and it seems to be Scanlon’s view that it is (1998: 226-27)—then the
individualist restriction leads, ceteris paribus, to prioritarianism in multi-person cases,
and utilitarianism in single-person ones.
This distinction breaks down, however, when it comes to risk. Some have
suggested that Scanlon’s requirement of justification to each person renders his
contractualism extremely risk-averse (Ashford 2003). Here I argue that the
individualist restriction leaves it too risk-acceptant. Scanlon’s contractualism will
permit serious avoidable suffering and inequality that arise through brute bad luck.
1. Speed limits and falling planes
Scanlon’s own account of when we may impose risks on others is vague and
unsatisfying. Risk-imposition is acceptable, he maintains, provided that serious harm
2
is unintentional, and ‘reasonable precautions have been taken.’ To require more would
be ‘too confining’. If we take good care of aeroplanes, it is permissible that they will
now and then fall on someone. Should anyone complain that she has been harmed,
those who imposed the harm could respond that
they have done enough to protect others….Refusing to allow activities that
meet this level of care would, they could claim, impose unacceptable
constraint on their lives. (1998: 209, 236-38).
If we may not add up all the people who would be inconvenienced, and weigh
their collective frustration against the harm to the victims, it might seem that that few
risks will be allowed. Alistair Norcross (2002: 313) asks us to consider an American
state governor deciding whether to support a low highway speed limit. Lower driving
speeds would reduce the number of road deaths, at the cost of much inconvenience to
the general public. But what justification could possibly be given for higher speeds to
those who suffered the accidents? ‘It seems clear’, Norcross argues,
that any such principle would be reasonably rejectable, so long as we are
restricted to intrapersonal aggregation of inconveniences. How could even
severe constraints on a life be anything like as bad as violent death? (2002:
312.)
Contractualism has an answer to Norcross’s question. For risk-taking to be
fully justifiable, it must be justifiable throughout, that is to say, both ex ante and ex
post. We can defend our action to a single individual if we maximize her expected
utility. Ex ante, most Americans have an interest in being allowed to drive at sixty,
since each one’s chance of a bad accident is relatively small. Even ex post they cannot
blame the governor for the speed limit that allowed the crash, since she acted in their
interests given what she knew at the time (Lenman 2008: 115-17). This seems to
3
justify a variety of widely shared risks. It is true that cars kill some people who gain
little from their existence (Norcross 1997: 162-63). Still, one need not benefit from
each individual risk in order to gain from a general ‘social system of risk-taking’, any
more than everyone need be an opera-lover to benefit from subsidies to the arts. I
might tolerate your driving and putting me at a small risk of death; in turn you might
put up with my smoking near your restaurant table (Hansson 2003: 305, emphasis
added; also Altham 1984: 25-26).
What if you neither drive nor smoke? Some people find themselves mainly at
the business end of risk-imposition. Scanlon argues that we can accept planes falling
on innocent bystanders because ‘the cost of avoiding all behavior that involves risk of
harm would be unacceptable’ (209). Unacceptable to whom? Every so often, as
Elizabeth Ashford (2003: 298-99) points out, a plane will fall on an African villager
who never imposed any risks at all upon its passengers. He has not benefited from a
system of risk-taking, even ex ante. How could contractualists defend his death to
him—or even the tiny risk of death that planes flying above his village impose? It
seems clear that they could not—unless they could offer him something in return.
Here again contractualism’s requirement of justification to each individual
comes to its rescue. Ex ante, the chance of a plane falling on an African villager is
slight. We will not have to offer him very much at all to compensate him for that risk.3
Indeed, even if we offer everyone in Africa what we need to gain his consent, the cost
of compensation ex ante—say, through cash payments or development aid—should
not be prohibitive (Lenman 2008, 121 n. 40). So long as we then give high priority to
assisting the small number of victims—or their dependents—we have done all that we
are obliged to do. The victims, as James Lenman observes,
4
have no complaint against your action if, at the time you acted, knowing
what you could reasonably be expected then to know, [they] should
reasonably have conceded that your action was acceptable. (2008: 115,
emphasis in original.)
Ex ante, the victims would have conceded this. On a contractualist analysis, we have
treated them fairly both before and after the accident.
Attitudes toward risk vary. Some people and societies place a premium on
desires—such as fast driving—that they cannot satisfy without endangering
themselves and others. Others are risk-averse. Won’t this give the latter a veto? Some
villages may refuse to accept any risk of planes falling on their heads, even if offered
a million dollars (Altham 1984: 26). One might consider extreme risk-aversion by the
standards of the person’s own society unreasonable, even pathological. But what if a
whole society is content with a simple, risk-free life, and rejects compensation? On a
contractualist analysis, we may just have to stay out of their airspace.
This, in fact, seems acceptable. We will find enough other countries to buy off
that the planes will get through. Contractualism’s big problem when it comes to risk is
not that it asks too much, but rather that it does not demand enough.
2. Twins and singletons
Thomas Nagel (1979/2002: 75-76) asks us to imagine he has two children, one
healthy and happy, and one with a serious handicap. He can choose either to move to
the suburbs—where the first child will be happier—or to the city, where the
handicapped child will receive better care. The benefit that the first child will have
from moving to the suburbs will be greater. Nagel believes that it might still be better
to move to the city. Consistent with contractualism’s commitment against
aggregation, he also thinks that it would make no difference if he had a third child
5
who would also benefit from a move to the suburbs. Otsuka and Voorhoeve contrast
Nagel’s example with a case in which we have a single child. The child has a fifty
percent chance of ending up handicapped, and we must decide on our move before
learning the outcome. Otsuka and Voorhoeve think the case for moving to the city is
stronger in the case of the two children than in the case of the one. They claim that
this illustrates the difference between interpersonal and intrapersonal aggregation
(2009: 188).
On contractualist logic, this makes good sense. We can justify our decision to
the single child ex ante as the choice that maximizes her expected utility. Ex post, if
she turns out to be handicapped, we can still defend it on the grounds that we were
doing the best for her that we could at the time. It is just bad luck that the gamble did
not pay off. But in the case of the two children, if we move to the suburbs, we must
justify this decision to the handicapped child, and as Otsuka and Voorhoeve say, this
will be harder, because she is worse off.
But what happens if we generalize this principle? Imagine two scenarios:
A. Five Hundred Twins: Five hundred families each have a boy and a
girl. The boys are all able-bodied, and the girls are all handicapped.
A move to the suburbs would benefit the boys a little bit more than a
move to the city would benefit the girls.4
B. One Thousand Singletons: One thousand families each have a child
with a fifty percent chance of being handicapped. Moving to the
suburbs would benefit an able-bodied child a little bit more than a
move to the city would benefit one who is handicapped.
On contractualist logic, the families with twins should move to the city. The
families with singletons should move to the suburbs. This is not just a matter of
6
individual parental duty. If the state makes the decision, justification to each
individual requires it to act the same way. Yet in both populations, half of the children
will end up handicapped. Surely that cannot be right. Perhaps the handicapped
children in A would resent a decision to move to the city and feel neglected and
unloved, whereas those in B would not. But we can easily specify that the parents
keep their deliberations secret and the children never learn that they might have
moved elsewhere. Deontologists may insist that the handicapped children in A would
be wronged, and that that makes a move to the suburbs worse than the same move in
B. That does not seem to support much weight. Consider:
A. Five Hundred Twins: Five hundred families each have a boy and a girl.
The boys are all able-bodied, and the girls are all handicapped. A move to
the suburbs would benefit the boys a little bit more than a move to the city
would benefit the girls.
C. One Thousand Slightly Sicklier Singletons: One thousand families each
have a child with a fifty-one percent chance of becoming handicapped.
Moving to the suburbs would benefit an able-bodied child a little bit more
than moving to the city would benefit a handicapped one.
This time five hundred of the children in A will be handicapped, whereas an
expected 510 will be in C. If the additional wrongness of A amounts to much, we
should still consider the prospect of all the parents moving to the city worse than the
identical prospect in C. I do not believe this. In fact, I would not consign a single
extra handicapped child to the suburbs in order to avoid it.
What has gone wrong here? In B and C, justification to each individual
licences the parents to make utilitarian calculations. Since each decision must be
justified only to the particular child, and ex ante the child stands to gain from a move
7
to the suburbs, Scanlon’s contractualism finds that the parents do nothing wrong. But
collectively this yields an outcome that leaves the handicapped children worse off.
Indeed, all the parents may act only in their child’s best interests, and still have things
turn out badly. This is because a group of individuals seeking to maximize their own
utility—or their children’s—may well all prefer a policy ex ante that a third party
concerned with equity would reject (Adler and Sanchirico 2006: 347).
It is plausible that we should maximize expected utility when choosing on
behalf of a single individual.5 The problem is that in handling risk, justification to
each individual in effect permits interpersonal aggregation. Because in many cases the
chance of falling victim is small, we can justify the risks to each individual ex ante.
Fate then steps in and does the dirty work of aggregation, paying off most gamblers at
the expense of those few who suffer brute bad luck.6
Scanlon has proposed what seems at first blush a plausible ethics of risk. But
if—as seems most reasonable—we must justify our actions to each person in terms of
what was known at the time, then this only requires calculating her expected utility.
This requirement still places more restrictions on utility-maximisation than does pure
utilitarianism. Nevertheless, it will permit risk-taking that increases everyone’s
expected utility ex ante but worsens the position of the worse-off.
Some contractualists may bite this bullet and say that their theory does not
seek to produce the best outcome. Alternatively, they might argue that the worsening
of the worse-off’s position is bad only if it results from human wrongdoing (cf. Parfit
1995/2002; Parfit 2003: 371-72). Scanlon himself clearly objects to suffering and
inequality arising through brute bad luck (1997/2002). Yet his theory leaves
considerable room for it. If Fate were a person, contractualism would demand that she
8
justify each accident to her victims. But since she is not, it just throws up its hands
and tells us to clean up the wreckage.
1
This is not to imply that Otsuka and Voorhoeve oppose all interpersonal aggregation. Otsuka has
noted problems with contractualism’s individualist restriction in some of his earlier work.
2
The term is Derek Parfit’s (2003: 371).
3
Of course the risk that flying poses through heating up the climate is much greater.
4
In Nagel’s original example, the move to the suburbs benefits the first child very substantially more.
Even if we accord weighted priority to the worse off, we could end up choosing in his favour. I have
adjusted the stakes to make the choice for prioritarians clear.
5
I believe that Otsuka and Voorhoeve have refuted the claim that a given increment of utility matters
more when it goes to the worst-off in single-person cases. The priority view makes sense only as a
relational claim about who should receive preference in distribution (2009: 175, 183-84).
6
Otsuka and Voorhoeve make an analogous point in arguing against ‘ex ante prioritarianism’ (2009:
197).
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9
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