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Lecture 05

3.6 Contractualism

Justice is the significant element in the ethical theory we know as “Contractualism” (sometimes also “contractarianism”, 社會契約), analogue to what outcome is for consequentialism or duty for deontology. The basic idea is that a “society” (whatever that is) agrees upon rules and codes of conduct, making a contract of association. In a situation in which you are forced to make an ethical decision, you apply this principle like this: In a thought experiment you imagine an assembly of the people who are affected by your decision, and you try to find out what they would agree upon as useful rule. A simple example: You live in a house with many apartments. At midnight you feel like listening to loud music. Is it OK to do so? You imagine a meeting of all tenants in which everyone expresses what they wish to have for a “good quality of life” in this house. Surely someone will mention “no loud noise in the middle of the night”, same as you might wish that other neighbours don’t block the entrance with their bicycles. It can be that such a meeting actually happened, but it is not necessary: an imaginary meeting in your fantasy is enough to let you know: It would be immoral to recklessly listen to loud music at midnight. Note the two levels of moral here: The act is immoral, but there is the additional moral obligation to follow the moral since the point where the insight comes to your awareness and enters the domain of intention and will. Here, contractualism touches the deontologic reasoning principle. Let’s see how it adds a little more to the reasoning procedure: Same as the “Golden rule” can be expressed in different ways, also principles of justice can have different expressions. A famous one is: “The person who is in charge of cutting the cake will be the last to get the remaining piece.“. Only under this condition we can expect a “fair” result. Most likely that person will cut all pieces in the same size. If the cutter is the first one to choose a piece, he might cut one big piece and several small ones. However, we can imagine situations in which “all pieces have the same size” is actually not the “fairest” result. In case there is a skinny starving poor child and a fat wealthy businessman, might it be fairer to give the skinny one a bigger piece, as in the justice principle “everyone gets his or her share by need or demand”?

The philosopher John Rawls suggested a theory of justice which is now widely taken as the theoretical foundation of contractualism: He added an element in the decision-making process that helps ensuring maximum fairness: When a group of people makes a decision over a rule (and this can happen either in an actual meeting or as a thought experiment, see above), each member of that group votes behind a veil of ignorance. Behind this veil they don’t know who they will be later in this group, that means they can’t predict how the new rule will affect them. Therefore, so the idea, they will make a decision that is still fair for the weakest element or most disfavoured in the group. Let me make an example: A four-membered family argues about who will choose the TV channel that they watch. Maybe there is a fight because the father believes that he is “the head of the family” and therefore he may choose the channel, but the mother doesn’t agree. The Kids insists that the “adult” movies they have to watch are boring and they want to choose the cartoon channel which is more interesting. How can this conflict be solved? We imagine that all four have to vote for a rule (How will the TV channel be chosen?) while they don’t know if later on the couch they will be father, mother, son or daughter. Since the father doesn’t know that he is “the father”, he would not vote for a rule like “The father as head of the family always decides!”, because from his “neutral” point of view that would be unfair. Maybe now they would agree upon this: In the afternoon until 8pm the Kids can choose the channel with the son and daughter taking turns, and after 8pm the father (on weekends) and the mother (monday to friday) get the remote control. This meets everybody’s interest and is acceptable for everyone. They not only agree upon this rule, but also upon accepting the rule under all means. After taking off the veil of ignorance, nobody is justified to complain or reject the rule that they agreed upon as “just”. In this example, the “group” or “society” was the four member of this family. They didn’t care about neighbours or visitors or their dog, so we can call it a “familycentrism”, maybe. The bigger the group participating in such a decision-making process is the more complex the consequences of the veil of ignorance are!

We can apply the scheme of centrisms (section 3.4) also to contractualistic arguments, of course. Who can make “contracts”? Only human beings? Could, in this imaginary procedure (making a contract behind the veil of ignorance), animals, plants, mountains, planets or galaxies be equipped with a voting right? It might sound absurd, but I believe it is not only possible but even obligatory to take animals’ or even landscapes’ or the universe’s “opinion” into account – at least as far as we can reasonably predict that “opinion” behind our “veil of ignorance”. Also note, please, that the final decision is not necessarily different with different constitutions of the “society” that we include in our thought experiment. Also without adding the biosphere or the cosmos into the circle of ethically relevant entities we can come to the conclusion that it would be “right” to protect the environment, for example.

3.7 Summary

Now, we have an overview of the four most important ethical theories. They are “most important” because they are well elaborated and established not only in philosophical ethics but also mirror socially and culturally embedded reasoning strategies and moral convictions. Some would claim that discourse ethics as conceptualised by Habermas and Apel constitutes a 5th “well-elaborated ethical theory”, but for our purposes we can skip it in this context. This whole class is based on it, and we have looked at it in chapter 2 already.

The following table sets the theories into perspective:

  Virtue Ethics

德性倫理學

Consequentialism

歸結主義

Deontology

義務倫理學

Contractualism

社會契約

Parameter Virtuous action Outcome Duty, Rights Justice
Proponent Ancient Greek

Asian scholars

John Stuart Mill

Jeremy Bentham

Immanuel Kant John Rawls
Time ~5-600BC 18th century 18th century 1970s
Important concepts Virtues as mean between extremes Maximising benefits Categorical imperative,

Golden Rule

Veil of Ignorance
Good is… …what a virtuous person (君子) would do. …what maximises the benefit of the largest number of entities. …what withstands critical rational scrutiny. …what a group of people agrees upon under just/fair conditions.

We can use this knowledge to analyse arguments. Most of the time, we will do it this way: There is a statement and we try to understand whether it has consequentialistic or deontological or any other character, so that we can reply aptly. It is of much lesser importance to ask the other way around: What would a deontologist say about this and that problem? The facets, variations and possibilities are too complex and would be too vast to come to reasonable answers. Usually, for a given problem, there are particular arguments (made by someone, or obviously the case) that we can investigate.

Arguments that refer to role ethics, codes of conduct, or professional guidelines are most likely based on virtue ethics. Some statements very obviously refer to virtues (or virtue-like ideals) and claim that it is ethical to act according to these maxims. Examples are:

  • Scientists should comply with the virtues of „good scientific practice“.
  • Doctors have to follow the Hippocratic Oath (希波克拉底誓詞).
  • “Love and compassion are necessities, not luxuries. Without them humanity cannot survive.” (Dalai Lama)

Consequentialistic or utilitarian arguments can easily be identified because they point at the outcome or result of an action as the relevant parameter. They leave the impression (but sometimes it is not the case, actually) that all that counts is the almost mathematical comparison of different options, and the better is chosen. Another hint is that they use terms like “benefits” or “well-being”. Here are some examples:

  • In order to keep this company competitive and to save 2000 jobs we need to cut 200 jobs.
  • It is OK to lie when it prevents a lot of trouble or harm.
  • Animals have a value for their own sake. That‘s why animal experiments are only justified when they benefit the animals themselves.

Deontological arguments are probably the most difficult ones. They often have a “principle” character and, thus, sound almost like descriptive statements. In fact, they are just very convinced (often transcencental) normative claims. We can identify them by key words like “rule” or (legal) “right”, by having the structure of a golden rule or categorical imperative. Examples:

  • If you don‘t want anybody to steal your things, you should also not steal anything from someone else!
  • The death penalty is abandoned because no state power has the right to decide on life and death of its citizen.
  • Telling lies is wrong because a society of liars would end up in chaos.
  • Animals should not be instrumentalised for the satisfaction of human desires. They have a value for their own sake.

Contractualistic arguments are often made in the context of actual “agreements” that groups of people make. There is always the danger to identify contractualistic arguments as deontological ones, because the Rawlsian form of contractualism is, indeed, based on Kant’s philosophy (Rawls called himself a “Kantian”). The important difference is the obligatory reference to any form of justice. Also, arguments that set people with different hierarchical or societal status into a relation, as such inherently containing an element of justice, are most likely contractualistic, like in the last of these examples:

  • As we have agreed upon in the community assembly, tenants are requested to park their bicycles in the bike shed and not in the entrance area.
  • You chose the TV program yesterday, so today it is my turn! You promised!
  • “It is said that no one truly knows a nation until one has been inside its jails. A nation should not be judged by how it treats its highest citizens, but its lowest ones.” (Nelson Mandela)

3.8 Writing ethical statements

An ethical statement differs from a mere expression of an opinion or preference. It is made with the intention to convince someone of an argument or of the plausibility of a certain viewpoint. For this purpose, it is required to present relevant background information and normative premises (statements about values, virtues, “goods” and “evils”) with clarity and logical connection. As an orientation, here is a 5-point list for communicating ethical statements (presented orally, but mostly in written form):

  1. What is the situation? – The statement should start with a clear reference to what you are talking about. If the topic is too big, it might be required to narrow down the particular aspect that you intend to comment on. Give as much information as necessary. Be sure that the points you bring up are really relevant for your later argument, because too much background might confuse the reader/listener.
  2. What is the problem? What is the (actual or potential) conflict? – Not all conflicts are of ethical nature, but rather legal, political or personal. Explain in which way the conflict you address has an ethical dimension (one of values and worldviews between different parties) that needs clarification.
  3. Pro and contra arguments: What are possible positions? – This point is the core part of your statement. Here, you need to show that you have an overview of the possible positions. This proves to the opponent that you don’t base your viewpoint on one-sided arguments but take all arguments into account, especially also those of the opponent’s side. Rhetorically, it is even advisable to point out the opponent’s arguments first, those that you don’t support. Then, you contrast them with the alternative approaches and views that you yourself are supporting. Try not to judge any of these arguments, yet. The goal in this part of the statement is simply to give a descriptive overview of what different people might argue. The evaluation comes next:
  4. Comparison: What are the underlying premises and assumptions of the arguments? Which make more sense? – Here, you may write sentences like “If you see it from the position of an anthropocentric deontologist, you would probably agree that… However, this position is flawed, because… Instead, the utilitarian biocentrist argues that… Based on the assumption that… this seems to be much more convincing.” In this section you introduce the normative justifications that you arrive at by actually “doing ethics” (applying ethical theories or principles, or other philosophical insights). The more convincing your starting point of reasoning the more acceptable and plausible are your judgments and conclusions.
  5. What is your own position, your conclusion? – Finally, you write how you would solve the issue, or what you would recommend to those in charge of solving it. Sometimes, this point is not even necessary or important – many ethicists don’t write about their own viewpoint when it is believed to be irrelevant. A mere comparison and evaluation of arguments might be sufficient. However, if you are asked for it or if you share a clear viewpoint, you may state it shortly in the end.

All in all, parts 3 and 4 are the most important ones and should be more than 50% of the text. This is independent from how long your statement is altogether. A longer ethical essay would have this structure, same as a one page statement in an ethics course exam. If the time and space doesn’t allow for a complete argumentation (for example, because the topic is “too big”), try to focus on the core arguments that are competing, or narrow down the topic to a specific question, or refer to a particular conflict case.

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