Lea Bourguignon

A well-known debate in normative ethics is that between proponents of Act Consequentialism and Rule Consequentialism. Given the structural similarities between Rule Consequentialism and existing forms of Contractualism, one might expect a similar debate to arise among contractualists. However, this is not the case. Some, following T. M. Scanlon, even argue that this question is ‘misconceived’—that there is something deeply mistaken about considering the possibility of an act-based form of contractualism. In this paper, I challenge this claim. I start by showing that the structural similarities between existing contractualist views and Rule Consequentialism suggest that one could formulate an act-based version of Contractualism. This view—Act Contractualism—has received almost no attention so far. Part of the explanation why rests on the thought that justification must involve rules or principles. The idea is that, since justification involves the use of reasons, and since reasons are best expressed through general principles, there is something conceptually mistaken in thinking that a contractualist theory can do without principles. However, I contend that, even if we accept that one cannot talk about reasons without talking about principles, we can meaningfully formulate an act-based contractualist view that takes the role of principles into account. I show that this view is not extensionally equivalent to Rule Contractualism, and that it is better supported by the contractualist rationale. I conclude by calling for more work to be done on Act Contractualism.

Kamm’s sore throat case gives us a choice: save one life or save a distinct life and cure a sore throat. We defend the fairness explanation of the judgement that one should flip a coin to decide whom to save: it is disrespectful to let a sore throat act as a tie-breaker, because an individual would be forced to forgo a 50% fair chance of living (given to them by a coin flip), which cannot be outweighed by any number of sore throats. We show that this explanation of when and why claims can permissibly break ties generates new problem cases for theories of aggregation, including theories that have been thought to accommodate the judgement that one should flip a coin in Kamm’s sore throat case. We then generalize the fairness explanation to cases involving multiple groups.

A well-known debate in normative ethics is that between proponents of Act Consequentialism and Rule Consequentialism. Given the structural similarities between Rule Consequentialism and existing forms of Contractualism, one might expect a similar debate to arise among contractualists. However, this is not the case. Some, following T. M. Scanlon, even argue that this question is “misconceived” – that there is something deeply mistaken about considering the possibility of an act-based form of contractualism. In this paper, I challenge this claim.