Elsa Kugelberg

Social norms regulating carework and social reproduction tend to be inegalitarian. At the same time, such norms often play a crucial role when we plan our lives. How can we criticise objectionable practices while ensuring that people can organise their lives around meaningful and predictable rules? Gerald Gaus argues that only ‘publicly justified’ rules, rules that everyone would prefer over ‘blameless liberty,’ should be followed. In this paper, we uncover the inegalitarian implications of this feature of Gaus's framework. We show that because a society without clear social norms for how social reproduction and care work ought to be organised would be so unattractive, inegalitarian rules would pass Gaus's test. They would pass this test since they would nevertheless be better than ‘blameless liberty.’ Those who are disproportionately burdened by a rule are faced with the daunting task of showing that they would be better off under no rule, instead of merely having to show that they would be better off with a different rule.

John and Curran have convincingly shown that Scanlonian contractualism is a valuable resource for evaluating pandemic response policies, and that we should reject cost–benefit analysis in favour of a contractualist framework. However, they fail to consider the part of contractualism that Scanlon constructed precisely to deal with the question of when the state can restrict individuals from making choices that are harmful to themselves and others: the value of choice view. In doing so, they leave it open for opponents of lockdowns to misuse contractualism to justify mistaken policies. This is because the most powerful contractualist objections to locking down are likely to be based on the VoC. When we apply the value of choice view, we see that a lockdown policy’s justifiability depends on the extent to which particular values of choice are found to be threatened by the policy in question, and what safeguards policy-makers have put in place to increase the value of choice and protect people from the harmful consequences of lockdown. Without the VoC, it is harder to explain why lockdowns, to be non-rejectable, must have certain features. With the VoC, the case for contractualism over cost benefit analysis can be made even stronger.