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CONTRACTUALIST JUSTIFICATION AND THE DIRECTION OF A DUTY

Published online by Cambridge University Press:  13 June 2019

Julian Jonker Open the ORCID record for Julian Jonker [Opens in a new window]
Julian Jonker*
Affiliation:
The Wharton School of the University of Pennsylvania
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Abstract

To whom is a duty owed? Contractualism answers with an interest theory of direction. As such, it faces three challenges. The Conceptual Challenge requires acknowledgment that a duty is conceptually distinct from an interest. The Extensional Challenge requires an account of cases in which one who is owed a duty does not take an interest in the duty, or does not take as much of an interest as someone who is not owed the duty. The Positivist Challenge requires explanation of the great flexibility of law and other social practices in positing duties that do not reflect the landscape of moral interests. Contractualism can be shown to meet these challenges once we acknowledge the centrality of the idea of a generic interest. Focusing on generic interests also illuminates the distinctive form of respect involved in directedness.

Type
Research Article
Information
Legal Theory , Volume 25 , Issue 3 , September 2019 , pp. 200 - 224
Copyright
Copyright © Cambridge University Press 2019

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Footnotes

*

I would like to thank for their insights and encouragement two anonymous reviewers for this journal, as well as participants in the Penn Normative Philosophy Group, the Wharton School LGST Half Full Workshop Fall 2017, and the Berkeley-Stanford-Davis Graduate Conference of 2016. I started thinking about some of these ideas during fruitful discussions with Facundo Alonso in the summer of 2015. An early version of the paper formed part of my PhD dissertation, and so bears the influence of many, but none more than Niko Kolodny and Jay Wallace. Anything true I say here is likely due to their wisdom, and anything false is in spite of it.

References

1. T. M. Scanlon, What We Owe to Each Other (1998), at 189–247.

2. This is a narrower category than that of concepts having more than one argument place that may refer to a person. The agentive ought of “Amir ought to practice scales” involves at least two argument places, one for the agent Amir and one for the action of practicing scales, but it may also include further implicit argument places, such as for context and contrast class. And the names of persons may appear in several of these argument places, as in “Amir ought to learn Bird's solos, given that he wants to play like Bird.” But only the agent argument place of ought must refer to a person, whereas the first two argument places of J owes it to S to phi must refer to persons. Which entities count as persons? Can I owe it to my dog to take it to the vet? And can I owe it to T-Mobile to pay my phone bill? These are questions to be considered elsewhere.

3. Taking a similar approach toward speech acts in general is suggested by J. L. Austin, How to Do Things with Words (2d ed. 1962)Google Scholar, and toward assertion, as well as its content, by Robert B. Brandom, Making It Explicit (1994), at 141–198.

4. Thompson, Compare Michael, What Is It to Wrong Someone? A Puzzle About Justice, in Reason and Value: Themes from the Moral Philosophy of Joseph Raz 339 (Wallace, R Jay, Pettit, Phillip, Scheffler, Samuel & Smith, Michael eds., 2004)Google Scholar.

5. In formulating these theories I partly follow the parallel theories of rights presented in Kramer, Matthew, Rights Without Trimmings, in A Debate over Rights 7, 62 (Kramer, Matthew, Simmonds, N. E. & Steiner, Hillel eds., 2002)Google Scholar. Yet I do not follow Kramer completely for fear that his formulation begs important questions against will theories. For example, in the original Kramer spells out the Will Theory of Rights as requiring that one is “competent and authorized” to demand or waive enforcement of the right, but whether competence is required for having a power is just the sort of contentious issue that might settle the debate about the adequacy of the Will Theory one way or the other.

6. May, Simon Cǎbulea, Directed Duties, 10 Phil. Compass 523 (2015)CrossRefGoogle Scholar.

7. Cornell, Nicolas, Wrongs, Rights, and Third Parties, 43 Phil. & Pub. Aff. 109 (2015)CrossRefGoogle Scholar also suggests a conciliatory strategy, proposing that there are two different phenomena, rights and wrongs, each of which calls for a different theory. My conciliatory strategy is different in that I think that there is one phenomenon to be explained, but that there are different inquiries (or moments of inquiry) about that phenomenon for which the Interest and Will Theories are differently suited.

8. Sreenivasan, Gopal, Duties and Their Direction, 120 Ethics 465 (2010)CrossRefGoogle Scholar; Sreenivasan, Gopal, A Hybrid Theory of Claim-Rights, 25 Oxford J. Legal Stud. 257 (2005)CrossRefGoogle Scholar.

9. Sreenivasan, Duties and Their Direction, supra note 8, at 486.

10. The complex version of Sreenivasan's theory recognizes that S's control over the duty may vary in more ways than simply having or lacking the power to waive the duty. For example, S may be unable to waive the duty in certain circumstances, and S may lack the power to waive a duty though S has a surrogate who is empowered to waive it. Thus: J's duty to phi is owed to S just in case S's measure (and, if S has a surrogate T, T's measure) of control over a duty of J's to S matches (by design) the measure of control that advances S's interests on balance. But this formulation also leaves direction unexplained, for it relies on an implicit assumption that we know whose measure of control is important.

The problem arises for two different interpretations of the account. (i) Consider the most rigorous interpretation of the formulation, on which S ranges over the entire domain of agents in each of its appearances in the formulation. On this interpretation, the theory overgenerates. Suppose I make a promise to Stephanie. Thandi, an unrelated third party, does not have any measure of control over my promissory duty to Stephanie, and that is because her interests are not affected by whether I fulfill that duty or not. Indeed, giving her some measure of control might give her a burdensome sense of responsibility, so it is by design that she has none. But the promissory duty is not owed to her, though she could be substituted in for S in the sophisticated formulation. (ii) Consider an interpretation on which S ranges over the domain of agents whose interests are protected by the duty. This response also fails to meet the Antecedence Objection, since its restriction on the variable S implicitly appeals to the Interest-Theoretic idea that only certain agents have a reason to have control over the relevant duty.

Note that (ii) is a much more plausible response to the Extensional Challenge, but that it does not seem to meet it, especially if the theory must account for the duties posited by law. Consider your right not to be subjected to unwarranted searches. Suppose that you may release a police officer from their duty not to search you by consenting to the search, and so may a judge, by granting a warrant. You have a measure of control over the police officer's duty that advances your interests, though not optimally so. Though we would not describe the judge's power as one of waiver, it is nonetheless a measure of control over the duty, and one that is designed to optimally advance the interests of various members of society, including you. What is more, control is given to the judge because the judge is best placed to act as a surrogate for the various members of society who have an interest in the matter but are ill placed to determine how the duty should be controlled. On the hybrid theory, then, it seems as if the duty is owed to members of society, since control is vested in a surrogate in a way that—by design—best advances their interests on balance. But intuitively the duty is owed to you. I take this counterexample to be of the kind explored in greater detail in Kramer, Matthew H., Some Doubts About Alternatives to the Interest Theory of Rights, 123 Ethics 245, 259–262 (2013)CrossRefGoogle Scholar. But my diagnosis differs: the problem is that the interests that explain why someone has a measure of control over a duty are not necessarily the same interests that ground the duty in the first place, but it is these latter interests, as I will argue, that also ground Direction.

11. See, for example, Scanlon, supra note 1, at 153. Note that “reasonably” is to be understood in a morally substantive sense, and could not be replaced with “rationally.” On the meaning of “reasonableness,” and for a defense of the Contractualist's use of the term against the charge of circularity, see id. at 191ff.

12. In particular, I leave aside the details regarding what sort of communication of assurance is required to trigger an obligation.

13. Scanlon, supra note 1, at 304.

14. For a start, one may knowingly assure another that one will phi—and so incur a nonpromissory obligation under F—without really promising to phi. What is needed in addition is that one engage F in the right way, not by some magic combination of words such as “I promise … ,” but by assuring another that one will phi by one's acknowledgment that it would be wrong not to phi. There are some complexities here. For example, does such an account noncircularly capture the apparent reflexivity of promissory obligation, that is, the sense that it is one's acknowledgment that it would be wrong not to phi that grounds the obligation to phi? For skepticism that such an account must be reflexive, and skepticism that Scanlon's account avoids circularity, see Kolodny, Niko & Wallace, R. Jay, Promises and Practices Revisited, 31 Phil. & Pub. Aff. 119 (2003)CrossRefGoogle Scholar. Such complexities may safely be ignored for current purposes.

15. Both put their concerns in terms of whether Contractualism can capture the notion of a right, say of a promisor against the promisee. Gilbert, Margaret, Scanlon on Promissory Obligation: The Problem of Promisees’ Rights, 101 J. Phil. 83, 91 (2004)CrossRefGoogle Scholar; Wenar, Leif, Rights and What We Owe to Each Other, 10 J. Moral Phil. 375 (2013)CrossRefGoogle Scholar.

16. This argument is suggested by Gilbert, supra note 15, at 95–96.

17. As Joseph Raz does in his presentation of a principle of promissory obligation, in Promises and Obligations, in Law, Morality, and Society 210 (Hacker, P. M. S. & Raz, J. eds., 1977)Google Scholar.

18. Principle F mentions the promisee in other ways too, and so one might think that there are other ways of simply identifying the addressee by reading the principle. But these strategies fail for the same reasons that the proposal to identify the addressee in terms of the consent clause fails.

19. The terminology is Derek Parfit's. Scanlon, supra note 1, at 229.

20. As Scanlon frequently glosses the Contractualist formula, it is concerned with which of our actions are justifiable to others. Id. at 189ff.

21. Note also that it is implicit in the idea that Contractualism is a theory of “narrow morality”—i.e., of interpersonal moral relations, rather than, say, of whether we are bound to protect the redwoods or the Bamiyan Buddhas—that we are interested in complaints that protect the personal interests of individuals. Though the idea of a directed duty is correctly associated with the idea of a personal interest, this is not the place to explore the merits of limiting Contractualism to such duties and interests.

22. Perhaps Contractualism must be understood in terms of interests. In the text I suggested that a complaint implicitly indicates that some expectation has not been met. An objection to this, which I do not find initially compelling, is that Contractualism is uninformative if complaints are understood in this way. (I am unpersuaded for reasons given by Scanlon in his response to a similar objection to the Contractualist's use of “reasonableness.” See Scanlon, supra note 1, at 194.) But suppose this objection turned out to be correct. Then we would have to understand complaints as implicit comparisons of sets of principles (or, to abbreviate, of actions), i.e., S has a complaint against J's phi-ing because J's phi-ing is worse in some sense than J's psi-ing. But why think that there is a winner when we compare complaints like this? Why not a cycle? The answer is that complaints are grounded in something that admits of ordinal comparison—interest is the most capacious concept that fits the bill. This understanding of Contractualism does not collapse into consequentialism, since deliberation is based on pairwise interest-grounded comparison of sets of principles, rather than the optimization of the balance of interests. Thus P1 may be the optimal consequentialist principle because it maximizes the balance of interests, yet it may be reasonably rejectable because it sets back some interest more than P2, which does not set back any serious interest more than any other set of principles. (I set aside for elsewhere the question whether merely ordinal comparison in this context raises issues related to the voting paradoxes.)

23. The example is adopted from id. at 311, 312–313.

24. This is precisely the point that counts against the theory that a promise must benefit the promisee in order to bind. As Raz pointed out, we can imagine an envious suitor who “solicits a promise, hoping and believing that it will be broken, in order to prove to a certain lady how unreliable the promisor is.” Raz, supra note 17, at 213.

25. In Gilbert, supra note 15, at 97.

26. Scanlon responds to this case by pointing out that Mother's promise does not meet the knowledge and communication conditions of F, though Mother mistakenly thinks it does, and therefore thinks she is bound. Scanlon, supra note 1, at 313–314. This response does not rest on the fact that there is no uptake by Daughter—in my elaboration of the case there is—but rather on the fact that there is not the sort of assurance on Daughter's part that is sufficient for triggering Principle F. On Scanlon's reading, Mother believes, but does not know, that Daughter wants her to give the sewing machine. But this reading ignores the distinction between wanting a thing that has been promised and wanting a promise to be performed. Daughter does have a complaint, after all, though that is best understood not as a complaint that she does not get something that she wants, but rather as a complaint that she is not being treated by Mother in the way she wants. To understand the complaint in the former way is to treat Principle F, as Raz would say, as a summary rule—as simply reflecting the balance of interests rather than adding an obligation to them. Raz, supra note 17.

27. For David Owens, the problem is simply that we have looked to interests at all. Thus he believes in the possibility of “bare wronging” i.e., an action that wrongs someone but does not set back their interests. His examples, ultimately unconvincing, are of someone photographing an unaware victim who does not wish to be photographed for fear of losing their soul, and of someone raping a victim who is oblivious of the rape and physically unharmed by it. David Owens, Shaping the Normative Landscape (2012), at 125, 177.

28. Samuel Scheffler, Equality and Tradition (2010).

29. It is part of the appeal of consequentialist theories that they take seriously the things we actually take an interest in, which are the things that most vividly affect us. But part of the error of consequentialism is that it ignores the ways in which our interests range more widely than what we actually take an interest in, and more widely even than what we are likely to take an interest in.

30. Scanlon, supra note 1, at 204–205.

31. Scanlon's argument in favor of generic reasons is epistemic: a deliberating agent can only find out so much about how the interests lie, given that the interests often depend on private facts about mental attitudes, such as facts about whether a promisee is assured by a promisor's statement and whether they care to be assured by it. Id. at 204. But this argument at best supports excusing someone who responds to the generic reasons rather than to the interests as they actually lie. Moral judgments purport to present conclusions about the way the interests lie, rather than conclusions about how the interests seem to lie from our contingent perspectives.

32. John Rawls, A Theory of Justice (rev. ed., 1999), at 513Google Scholar.

33. See also Richard Craswell's suggestion that the morality of promising underdetermines contract doctrine. Craswell, , Contract Law, Default Rules, and the Philosophy of Promising, 88 Mich. L. Rev. 489 (1989)CrossRefGoogle Scholar. This underdetermination of legal policy by morality is even more likely in commercial contexts, such as intellectual property law, where it is a matter of a community's industrial and cultural policy whether to pick one vision of development over another.

34. Restatement (Second) of Torts §402A cmt. j (1965).

35. The buyer may be well aware of a danger that is not generally known to the public. Such a buyer may even prefer that there be no duty to warn, since she will then be at an advantage in a market for goods that are of indiscernible quality to other buyers, or because would prefer to pay a low price for a good of uncertain quality in a market for lemons over paying a high price for a good that is known to be of high quality.

36. Wenar, Leif, The Nature of Claim-Rights, 123 Ethics 202, 218–219 (2013)CrossRefGoogle Scholar. Wenar is primarily concerned to provide a theory of claim-rights; I adapt his claims throughout to keep the focus on directed duties. Wenar seems to want to explain which claim-rights there are; I take up the account only insofar as it offers an explanation of Direction.

37. Wenar adopts this idea from Raz's statement that rights may be held by “persons qua guardians, trustees, and the like.” J. Raz, The Morality of Freedom (1986), at 180.

38. Wenar, supra note 36, at 220ff.

39. Id. at 214.