Transcendental contractualism: A critique of Scanlon's notion of right and wrong.

Transcendental contractualism is an attempt to explain the objectivity of reasons against wronging. Chapter one discusses Scanlon's Contractualism and Utilitarianism. I argue that Scanlon fails to establish the motivational and normative basis for right and wrong. In chapter two I explain Scanlon's revised account of motivation and defend it from Humean and anti-Humean alternatives. In chapter three I discuss the normativity of what we owe to each other. I use the structure of Williams's distinction between internal and external reasons. I describe the varieties of internalism and externalism about normative reasons, and describe Scanlon as a weak externalist who is also committed to the objectivity of normative reasons. I argue that the combination of weak externalism and objectivity regarding the nature of normative reasons is problematic. In chapter four I endorse the general approach of the buck-passing argument, but criticise Scanlon's version. I develop an augmented buck-passing argument that is brought to bear in chapter five. I employ the augmented buck-passing argument to refute the charges of circularity and redundancy. In the second part of this chapter I describe the problems of normative scepticism, and explain that Scanlon cannot establish the objectivity and a priori nature of the reasons against wronging. In chapter six, I turn to the transcendental arguments of Strawson's Individuals, and argue that when combined with Scanlon's account of the nature of intentional action and the structure of right and wrong, they can refute the scepticism of the amoralist, and those who challenge the priority of what we owe to each other. I argue that the transcendental argument for practical personhood is able to show that original moral properties of contractualism are necessary, universal, and a priori. I conclude that the argument for transcendental contractualism is able to provide for the objectivity of normative reasons, and their necessary connection to motivation

Marks, Morals, and Markets

The prevailing justification for trademark law depends on economic arguments that cannot account for much of the law\u27s recent development, nor for mounting empirical evidence that consumer decisionmaking is inconsistent with assumptions of rational choice. But the only extant theoretical alternative to economic analysis is a Lockean natural rights theory that scholars have found even more unsatisfying. This Article proposes a third option. I analyze the law of trademarks and unfair competition as a system of moral obligations between producers and consumers. Drawing on the contractualist tradition in moral philosophy, I develop and apply a new theoretical framework to evaluate trademark doctrine. I argue that this contractualist theory holds great promise not only as a descriptive and prescriptive theory of trademark law, but as a framework for normative analysis in consumer protection law generally

Reasonable agreement: A contractualist political theory.

The thesis is a defence of contractualism in liberal political theory. My aim is to show that contractualism can play a crucial role in the political theory of liberalism if it applies to the meta-ethical level rather than the ethical level. In particular, I will argue that the contractualist concept of 'reasonable agreement' provides the foundation for a new comprehensive liberal political theory. The basic intuition behind the idea of reasonable agreement is that all principles and rules must be capable of being justified to everyone: these are principles and rules on which everyone could reach agreement, where the agreement is defined in terms of what no one could reasonably reject. The first introductory chapter will attempt to establish that contractualism reflects the ethical core of liberalism, and that the contractualist theory of reasonable agreement gives the best account of egalitarianism. This will be followed by six chapters, divided in two parts, and a brief conclusion. Part I presents the case for contractualism from a theoretical angle, providing a conceptual analysis of reasonable agreement. Part II examines reasonable agreement from a political angle, providing an analysis of three key questions in political liberalism. The three chapters making up Part I deal with the theories of Rawls and Scanlon, the two major figures responsible for reviving the interest in contractualism in general, and 'reasonable agreement' in particular. Chapter 2 critically evaluates Rawls's contractualism, while Chapter 3 focuses on the moral theory of Scanlon. Chapter 4 attempts to build on the efforts of Rawls and Scanlon by further exploring and hopefully improving on their theory of reasonable agreement. I believe that the strength of reasonable agreement lies in its effort to raise contractualism from the ethical to the meta-ethical level, thus the three chapters in Part I evaluate two notions central to reasonable agreement: the idea of agreement and the concept of reasonableness. This brings us to the second part of the thesis, where the relationship between 'reasonable agreement' and political liberalism is investigated. Political liberalism is concerned with the political concepts that form the basis of a liberal society, namely, political obligation, social justice, and neutrality. Chapters 5, 6 and 7 examine how the egalitarian proposal of reasonable agreement applies respectively to these three liberal questions. The concluding chapter will provide a summary of the main arguments presented in the thesis

Tort Negligence, Cost-Benefit Analysis, and Tradeoffs: A Closer Look at the Controversy

What is the proper role of cost-benefit analysis in understanding the tort concept of negligence or reasonable care? A straightforward question, you might think. But it is a question that manages to elicit groans of exasperation from those on both sides of the controversy. For most utilitarians and adherents to law and economics, the answer is obvious: to say that people should not be negligent is to say that they should minimize the sum of the costs of accidents and the costs of preventing accidents. Under the economic formulation of the famous Learned Hand test, they should take a precaution if but only if the marginal costs (or burden, B) of that precaution are less than its marginal benefits (in the form of reduced risks of injury, measured by multiplying the probability (P) of the injury times the magnitude (L) of the injury if it occurs). If B\u3ePxL, it would be absurd to require the greater expenditure, B. For many advocates of a fairness, corrective justice, rights-based, or contractualist perspective, the opposite answer is equally obvious. Permitting a person to impose risks of harm on others merely because he would thereby obtain a benefit (or would otherwise incur a burden) greater than the discounted value of the harm he might inflict, amounts to authorizing him to dump the costs of his risky activities on innocent victims. To permit this type of sacrifice of individuals on the altar of aggregate social welfare is morally abhorrent. Both sets of criticism have important elements of truth. Neither an unqualified cost-benefit analysis nor an unqualified rights-based rejection of tradeoffs is defensible - either as a description of tort doctrine and practice or as a normative prescription. However, a qualified (sensitive) consequentialist approach can accommodate legitimate criticisms of cost-benefit analysis: the consequentialist can launder preferences, and can consider the distribution of risk both in the social welfare calculus and in determining whether to compensate. At the same time, a qualified (tough-minded) deontological approach can accommodate the legitimate need to recognize tradeoffs: the deontologist can permit intrapersonal but not interpersonal aggregation of risks and benefits, can apply the concept of threshold deontology to risky activity, and can consider individual rather than population risk. I conclude that the formulation of the Learned Hand test found in the Restatement Third of Torts is broad enough to encompass each of these qualified approaches

Autonomy, freedom of speech and mental contamination

The aim of the thesis is to rebut the dominant autonomy-based defence of hate speech within a liberal framework. The thesis argues that liberal egalitarianism is compatible with certain restrictions on free speech. I defend the view that liberal ideals such as equality and autonomy are, contrary to the arguments of many liberals, better achieved by imposing certain restrictions on what citizens are allowed to express. I examine the problem of freedom of expression in the context. of the public/private distinction. In particular, I explore the Rawlsian conception of this distinction, which is based on the idea that principles of justice apply only to the 'basic structure of society'. Citizens are required by justice to treat all others as free and equal citizens, but this seems to hold only when citizens deliberate about 'constitutional essentials and matters of basic justice'. In their private lives and other social contexts citizens are free to treat other people without equal respect and concern, provided that basic rights are not violated. This position is criticised by calling attention to recent developments in Social and Cognitive Psychology. Evidence suggests that much of our behaviour is triggered by features of�· the environment that bypass individuals' rational control: this includes social stereotypes, non-instrumental behaviour, and goal-oriented activity among others. I develop these ideas into a discussion of free speech and autonomy. I argue that autonomy defences of free speech need to assess how the environment directly affects rational processes. Moreover, I argue, given the structure of human cognition, there is no guarantee that attitudes and actions cultivated in the private sphere will not 'spillover' into the public sphere. For this reason, I suggest, political morality must also extend to the justice of our private practices. To the extent that autonomy and justice matter, I argue that we have reasons to limit the expression of certain views, in particular those which trigger processes that bypass rational control. Finally, despite the importance I attribute to the concept of autonomy, I reject the claim that my position endorses a form of liberal perfectionism. I do so by defending a conception of full publicity and demonstrating that the view I articulate is compatible with rejecting perfectionism

Scanlon\u27s Contractualism and Its Critics

This dissertation examines whether Thomas Scanlon’s contractualism satisfactorily explains its intended domain of morality which he terms “what we owe to each other.” Scanlon proposes that such interpersonal morality is based on justifying one’s actions to others by behaving according to principles that could not be reasonably rejected. This idea accounts for two key functions of a moral theory: explaining how moral judgments are made and why agents generally act according to these judgments. After reviewing the nature of constructivist moral theories to show why I chose to focus on Scanlon’s theory, I assess how effectively it fulfills these two roles. I argue that the concept of justifiability is necessary for making moral judgments because it enables agents to determine which of an action’s attributes are morally relevant and to choose between conflicting principles. However, I also argue that the contractualist procedure is unable to specify principles in certain cases where the aggregation of harms across multiple persons legitimately outweighs an individual’s concerns and in other cases where differences in agents’ experiences and sensibilities lead to conflicting moral judgments and objectionable relativism. Regarding normativity, I argue that justifiability provides sufficient reason for agents to act in accordance with these principles in most, but not all, cases, even if the agents are not motivated by the contractualist goal of finding common principles. In summary, I conclude that contractualism provides an insightful account of morality, but it is one with several significant defects that cannot be remedied

Why should I be moral? : toward a defence of the categoricity and normative authority of moral considerations

Can we ever be fully practically justified in acting contrary to moral demands? My contention is that the answer is 'no'. I argue that by adopting a 'buck-passing' account of wrongness we can provide a philosophically satisfying answer to the familiar 'why should I be moral?'. In working my way toward the buck-passing account of wrongness, I outline (and, to some degree, defend) the metaethical and 'metanormative' assumptions on which my theory stands. I also consider and reject the 'internalist' (or as it can also be described, the neo-Humean) answer to 'why should I be moral?'. The account I end up with is decidedly non-consequentialist and it is consistent with common-sense morality. It also provides a way of showing why moral considerations (in competition with non-moral considerations) are overridingly normative in a way that is consistent with our best current understanding of what practical reason requires of us

Antimicrobial resistance and distributive justice

The rapid emergence of Antimicrobial Resistance (AMR) over the past decades together with a lack of research into new drugs presents health care systems with serious challenges and threatens their ability to effectively treat serious bacterial infections. As a result, it is realistic to expect that effective treatment options for some infections will run out in the future. The thesis begins by outlining the mechanisms and consequences of AMR and argues that AMR differs from other distributive problems, due to the specific characteristics of antibiotics. It is suggested that for considerations of distributive justice, antibiotic effectiveness should be treated as a resource, which can be depleted and which must be fairly distributed between people and generations. The thesis then goes on to examine the distinctive moral challenge posed by AMR. It begins by considering a consequentialist account, which suggests that AMR is a moral problem due to the bad health outcomes it entails. However, this approach is subsequently dismissed because it struggles to account for some of the particular features of AMR. An alternative is to consider AMR as a morally wrongful harm to individuals, which requires not only that AMR has adverse effects, but also violates the victim’s rights. It is shown that the harm caused by AMR is morally wrongful and that people have a right to be protected from adverse health outcomes, which AMR violates. However, it is difficult to specify correlative duties that result from such a rights claim. As an alternative, the thesis suggests and defends a form of Scanlonian contractualism, which offers the best model to represent and address issues of distributive justice in the case of AMR. It is shown that a principle of antibiotic use, which rules out the use of antibiotics for infections that do not pose a serious risk of irreversible harm, offers a convincing contractualist argument. The thesis examines the concerns for intergenerational justice that arise as a consequence of AMR and shows that contractualism is capable of addressing them. The thesis concludes by suggesting a new way of framing AMR as a specific type of policy challenge, which better captures its complexity and advocates a reduction of future dependency on antibiotics