Contractualism, Root and Branch: A Review Essay

A theme running through T. M. Scanlon’s essays in The Difficulty of Tolerance is an abiding concern to understand and adequately justify rights, including those involved in freedom of expression, toleration, punishment, promise, and contract. It is interesting and instructive to see the evolution in Scanlon’s thinking as he returns to this theme repeatedly in various guises over a span of thirty years. In “A Theory of Freedom of Expression” (originally published in 1973), for example, Scanlon argues that governmental bans on expression that might result in false or dangerous belief conflict directly with autonomy of the individual, who must be presumed “sovereign in deciding what to believe” (p. 15). By the time of “Rights, Goals, and Fairness” (1978), however, Scanlon’s thinking has moved more in the direction of a consequentialist or “instrumental” account, where rights are justified by their effects in protecting “urgent” or “important” interests (pp. 2, 31). “Preference and Urgency” (1975) defends what Scanlon then thought such an account needs: an “objective criterion” of well-being as against “subjective” criteria such as pleasure or preference-satisfaction. By the time “Contractualism and Utilitarianism” appeared in 1982, however, Scanlon had become doubtful that the concept of well-being can bear the weight that consequentialist moral theories require, and he had seen his way toward another approach that, like objective forms of welfarist consequentialism, assesses candidate rights and principles by their consequences for “important” or “urgent” interests, but in a fundamentally different way. For contractualism, the basic issue is not the value of outcomes conceived in terms of welfare or impersonal value, but how affected interests give individuals grounds for reasonably Contractualism, Root and Branch: A Review Essay STEPHEN DARWALL