rahul kumar risking and wrongdoing

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Risking and WrongingRAHUL KUMAR

I

It is sometimes permissible to impose a risk of harm on others. Consider,

for instance, driving.1 Intuitively, it is permissible to drive, and permit-

ting this is socially beneficial. The activity does, however, impose a non-

trivial risk of serious harm on both drivers and nondrivers. Requiring

drivers to comply with safety standards significantly lowers that risk, but

it cannot be entirely eliminated. And over time, it is certain to eventuate

in both injuries and deaths.

Work on this article was supported by the Social Sciences and Humanities Research

Council of Canada. Earlier versions were presented at the University of Toronto, the

Arizona Normative Ethics Workshop, McGill University, the University of Oxford, Univer-

sity College London, the University of St. Andrews, Pompeu Fabra University, the Univer-

sity of Graz, Boston University, Queen’s University, the University of British Columbia, and

Claremont McKenna College. I am grateful to the audiences at each of these occasions for

their questions and the discussion. For particularly helpful conversations or comments on

earlier drafts, my thanks to Guy Fletcher, Johann Frick, Barbara Fried, Joe Heath, Louis-

Philippe Hodgson, Michael Gibb, Grant Lamond, Dave Langlois, Andrew Lister, AlistairMacleod, Lukas Meyer, Andrew Ross, Pranay Sanklecha, David Silver, Angie Smith, Nic

Southwood, Daniel Starr, Alan Strudler, Gerard Vong, Andrew Williams, Jo Wolff, and two

anonymous referees for Philosophy & Public Affairs . I am especially indebted to John

Oberdiek for conversations about this topic that both sparked my interest in and helped

shape my thinking about it, and to Kerah Gordon-Solmon, whose extensive and insightful

comments on several earlier drafts vastly improved every page.

. I will treat the risk of some event occurring as the probability of that event occurring

multiplied by the potential harm. For present purposes, nothing hangs on the choice

between characterizing risk this way rather than simply as the probability of an event

occurring. I will also assume an epistemic understanding of probability as what is relevant

in the context of determining what to do or expect. A useful general discussion of different ways in which “risk” is characterized in the literature is Madeleine Hayenhjelm and Jona-

than Wolff, “The Moral Problem of Risk Impositions: A Survey of the Literature,” European

Journal of Philosophy (): –.

© Wiley Periodicals, Inc. Philosophy & Public Affairs , no.



Justifying the permissibility of this kind of socially productiveactivity is straightforward in broadly consequentialist cost-benefit

terms: the expected aggregate benefits over time of permitting driving,

subject to certain constraints, outweigh the expected aggregate

burdens. The question I will pursue here is whether, and if so, how, the

permissibility of this kind of risk-imposing activity can be justified

in nonconsequentialist terms.

Nonconsequentialists, of a broadly Kantian stripe, take consider-

ations of aggregate benefit and burden to have no bearing on the justi-

fication of the permissibility of conduct. But the permissibility of most

intuitively acceptable risk-imposing activities cannot, it appears, be

made sense of without recourse to such considerations. This claim is

persuasively argued for by Elizabeth Ashford with respect to Scanlon’s

nonconsequentialist moral theory, contractualism.2

Assessing the permissibility of driving in contractualist terms is,

roughly, a matter of comparing the force of the reasons someone might

have for wanting driving to be permitted (such as the convenience and

freedom it affords) with the reasons a person could offer, on her ownbehalf, for wanting it to be prohibited (such as not wanting to be killed as

a result of a car accident). Looking at it in this way, it is hard to see how

the permissibility of driving can be defended. Though there are many

respects in which a person stands to benefit from driving, in some form,

being permitted, they all inevitably pale in comparison to the burden

of being killed.

In this article, I will argue that contractualist reasoning does not

support radical, and implausible, conclusions concerning permissiblerisk imposition. On the contrary, properly understood, the approach

offers an attractive nonconsequentialist framework for assessing the per-

missibility of a risk-imposing activity.

. Elizabeth Ashford, “The Demandingness of Scanlon’s Contractualism,” Ethics

(): –. A complementary critique of contractualism that reaches a similar con-

clusion is advanced by Barbara H. Fried, “Can Contractualism Save Us from Aggregation?” Journal of Ethics (): –. See also Barbara H. Fried, “What Does Matter? The Case

for Killing the Trolley Problem (Or Letting It Die),” Philosophical Quarterly (): –

. In this discussion, I shall focus solely on Ashford’s articulation of the case for why

intuitively plausible conclusions concerning permissible risk imposition cannot be made

sense of in contractualist terms.

Philosophy & Public Affairs



I will build the positive case for this claim out of a dismantling of Ashford’s argument. As I see it, she advances two distinct, but closely

related, objections that can be fruitfully disentangled. The first observes

that part of contractualism’s appeal is that it yields plausible rationales

for the impermissibility of intuitively prohibited activities. For example,

it is plausible to hold subjecting individuals, against their will, to painful

medical experiments, the fruits of which will benefit a great many, to be

impermissible. Directing our attention to the plight of the person who

stands to be most burdened were doing so to be permitted, and then

inviting us to consider whether anyone stands to be as burdened by its

prohibition, brings the central objection to permitting the experimenta-

tion into focus. But reasoning about an activity’s permissibility in this

way also identifies as impermissible risk-imposing activities that are,

plausibly, acceptable. Contractualism thus finds itself in the embarrass-

ing position of not being able to offer a principled basis for distinguish-

ing between activities that are, intuitively, morally disparate.

Ashford’s second objection observes that the pursuit of almost any

intuitively acceptable risk-imposing activity benefits individuals, butalso creates a risk of someone being burdened to a greater extent than

anyone stands to benefit. It is plausible to hold that the risk associated

with such an activity will, over time, eventuate in a person’s life. Requir-

ing that the permissibility of any activity be justifiable to each person

appears, therefore, to rule out, as impermissible, most, if not all, intui-

tively acceptable risk-imposing activities.

Against Ashford’s first objection, I argue that the embarrassment she

identifies disappears when the (overlooked) relevance of what I will callintrinsic considerations to the assessment of a principle’s reasonable

rejectability is taken into account. I then argue that Ashford’s second

objection misconstrues what is required for an activity’s permissibility to

be justifiable to each person. In particular, I argue that, contrary to what

Ashford contends, most intuitively acceptable risk-imposing activities

are justifiable as permissible even to those who stand to be burdened by

them to an extent greater than anyone stands to benefit.

The discussion falls into four main sections. Section II lays out a syn-

opsis of the relevant aspects of the contractualist account before recon-

structing Ashford’s objections, which are the subjects of Sections III and

IV. Section V responds to an important challenge to the line of argument

I develop in Section IV.

Risking and Wronging



II

In this section, I will briefly lay out the contractualist account of what

makes conduct impermissible. This will provide the background needed

to motivate the claim that permissible risk imposition cannot plausibly

be made sense of in contractualist terms.3 I will say more about the

account and, in particular, about how the permissibility of a risk-

imposing activity is to be assessed in its terms in the next sections of the

article responding to Ashford’s objections.

Contractualism says that an act is impermissible if any principle per-mitting it could be reasonably rejected by an appropriately motivated

individual; an individual is appropriately motivated if she is moved to

find principles for the general regulation of conduct that no one, simi-

larly motivated, could reasonably reject. Regulating one’s conduct in a

way that conforms with such principles is what respect for the value of

persons, as beings capable of assessing reasons and governing their lives

accordingly, requires.4 A person is wronged when another’s conduct

toward her either intentionally or negligently flouts these requirements, which flow from her standing as a person to whom justification is owed.5

A principle for the regulation of a certain type of conduct that no one

(appropriately motivated) can reasonably reject is one that all individu-

als have reason, as assessed from each person’s own point of view, to

license one another to be regulated by. Whether a proposed principle is

one no one can reasonably reject turns on comparing its implications to

the implications of candidate alternative principles, as assessed from

. The relevant sense of “morally wrong” or “morally impermissible” presupposed

throughout this discussion is what Parfit calls the evidence-sensitive sense of wrong.

It ties what it is morally permissible to do to the available evidence at the time of acting,

or what one ought to believe it is permissible to do given the available evidence, and our

beliefs being true. See Derek Parfit, On What Matters , vol. (Oxford: Oxford University

Press, ), sec. . It is the sense of wrong presupposed by the contractualist account,

and in a deterministic world, the relevant sense of wrong for understanding the morality

of risk imposition.

. T. M. Scanlon, What We Owe to Each Other (Cambridge, Mass.: Harvard University

Press, ), p. . The distinction between acting for the reasons identified by a relevantprinciple as conclusive reasons for so acting (complying with reasons) and conducting

oneself in the way owed to others though not for those reasons (conforming with reasons)

is relevant here. Wronging another only requires a failure to conform. A failure to comply

with the relevant principle bears on the blameworthiness of one’s conduct.

. Scanlon, What We Owe to Each Other , p. .




various relevant individual points of view.6

If a principle is one no onecan reasonably reject, the strongest objection to it will not be as strong as

those that can be pressed from other points of view against every plau-

sible alternative. It is the principle whose implications are most accept-

able to the person to whom it is least acceptable.

Importantly, only the implications of a principle that bear on an indi-

vidual being able to lead her life are relevant to the assessment of its

reasonable rejectability.7 Impersonal or nonpersonal considerations,

such as those concerning aggregate benefit and burden, have no role to

play. Set aside, then, are the considerations that a cost-benefit approach

takes into account in assessing a risk-imposing activity’s permissibility.8

Whether, and on what terms, it is permissible to do what imposes a

risk of harm on others depends on whether a principle that permits

. This involves understanding “alternative principle” as some other principle for the

general regulation of the type of situation in question that performs roughly the same

function as the original principle.

. This is what has, following Parfit, come to be known as the “individualist restriction.”See Scanlon, What We Owe to Each Other , pp. –; and Parfit, On What Matters , vol. ,

sec. ; Rahul Kumar, “Contractualism on the Shoal of Aggregation,” in Reasons and Rec-

ognition: Essays on the Philosophy of T. M. Scanlon, ed. R. Jay Wallace, Rahul Kumar, and

Samuel Freeman (Oxford: Oxford University Press, ), pp. –; and Rahul Kumar,

“Reasonable Reasons in Contractualist Moral Argument,” Ethics (): –.

. Setting aside aggregate considerations as relevant to the justification of what

it is permissible to do commits contractualism to a “probability” (or “individual”)

rather than a “frequency” (or “population”) perspective on risk. Barbara Fried nicely

illustrates the distinction:

Suppose we estimate that if we distribute a new Flu vaccine, roughly one out of every one million people inoculated will have an adverse reaction, resulting in death. We plan

to inoculate million people. There are two ways to describe the likelihood that death

will result from the inoculations, sometimes differentiated as “probability” versus “fre-

quency.” The first (“probability”) is the odds that any given person who receives the

vaccine will die (one in a million). The second (“frequency”) is the total number of

expected deaths if we inoculate million people (ten). Both are describing the same set

of acts, predicted to cause the same consequences with the same likelihood; they are

simply describing the likelihood from different perspectives. (Fried, “Can

Contractualism Save Us from Aggregation?” p. )

Contractualism takes what is relevant to the assessment of the permissibility of a risk-

imposing activity to be whether the permission is justifiable to the person who stands to be

most at risk if it is permitted (invoking a probability perspective on risk). On a cost-benefit

approach, what matters is the likely number of individuals who will end up harmed if the

activity is permitted on the proposed terms (invoking a frequency perspective on risk).




doing so is justifiable to each person as one no one can reasonably reject.Focusing on what is justifiable to each turns out, however, to make

justifying the permissibility of risk-imposing activities more difficult

than it is on a cost-benefit approach. Consider, for example, the permis-

sibility of introducing a product similar to peanut butter to the market-

place. Doing so, assessed in cost-benefit terms, looks to be permissible.

Though the benefit to any given individual of it being available on super-

market shelves is small, the aggregate benefit is enormous. There is a risk

that some will either become seriously ill or die as a result of an allergic

reaction to it, but that risk (understood as the expected number who will

end up ill or dead over time as a consequence of the permission) can be

kept low through the use of warning labels and other precautions.

A contractualist assessment of the permissibility of introducing it, on

the other hand, asks: what is the risk of ending up harmed that will be

imposed on any individual (especially the most at risk) by the product

being available, and why might it be important to an individual that it be

permissible to make it available? It supports the opposite conclusion to

that supported by cost-benefit considerations: it is hard to see how anindividual’s loss of the benefit from access to the peanut-butter-like

product could be of sufficient importance to justify to one allergic to it

the imposition of even a low risk of death.9

Contractualist reasoning may support some surprising conclusions

concerning the permissibility of risk-imposing conduct. The worry is

that it supports the prohibition of all risk-imposing activities. Ashford’s

case for concluding that it does is as follows: consider the justifiability of

. In some cases, taking what is relevant to the assessment of a risk-imposing activity to

be the risk imposed on an individual (a probability perspective) might be thought to lead to

implausible conclusions. Say you are faced with a choice between imposing a large risk of

injury on those characterized by a certain standpoint that in fact happens to characterize

very few existing individuals and imposing a smaller risk on another standpoint that

happens to characterize a very large number of existing individuals. Many will be inclined

to think that the correct choice is to impose a greater risk on the smaller number. That way,

over time, you are just going to end up with fewer injured people.

Here, I will just note that the issue raises no special questions that arise in the context

of thinking about the grounds for permissible risk imposition. Rather, it concerns thegeneral question of how the contractualist approach makes sense of the seeming relevance

of aggregative considerations for intuitive convictions concerning what, in certain cases, it

is permissible to do. For discussion of the issues, see Aaron James, “Contractualism’s (Not

So) Slippery Slope,” Legal Theory (): –; and Kumar, “Contractualism on the

Shoal of Aggregation.”




a principle permitting a small number of individuals to be chosen atrandom and involuntarily subjected to dangerous and painful medical

experimentation, the fruits of which will benefit a great many people.10

Contractualist reasoning plausibly finds the experimentation impermis-

sible. What is important to Ashford’s argument is the rationale for this

conclusion; why that is so is helpfully illustrated using Harsanyi’s

broadly contractualist account of moral reasoning as a foil.11

Harsanyi’s approach holds that the assessment of the permissibility of

a socially beneficial activity, whose pursuit may leave some seriously

burdened, roughly requires asking whether the activity would be permit-

ted by a principle chosen behind a “veil of ignorance,” by persons each

concerned to best advance her interests. Each person knows both how

the risk of ending up burdened is distributed across the different social

positions represented in the population and what the distribution of the

actual population is across those social positions. But no one knows

what her social position actually is.

On this view, the justifiability to each person of the experimentation

turns on a comparison of the prospective benefits for a person of allow-ing it, discounted by the probability of a person being a beneficiary, with

the prospective burden a person might have to bear, discounted by the

probability of being among those who end up burdened. A large enough

probability of being among those benefited and a sufficiently low prob-

ability of ending up burdened render a principle permitting the experi-

mentation one that is justifiable to each person.

Scanlon’s contractualism does not employ a veil of ignorance. It

requires that permissible conduct be justifiable as such to the point of view of one who stands to end up bearing the greatest burden as a result

of the permission and knows it. This suggests that what is relevant to the

assessment of a principle’s reasonable rejectability is not the discounted

value of the burden a person might have to bear as a result of the per-

mission, but the full value of that burden. If it is looked at in this way, it

is hard to see how the experimentation could be defended as justifiable

. Scanlon, What We Owe to Each Other , pp. –.. See John Harsanyi, “Morality and the Theory of Rational Behavior,” in Utilitarian-

ism and Beyond , ed. Amartya Sen and Bernard Williams (New York: Cambridge University

Press, ), pp. –. The contrast between Harsanyi’s and Scanlon’s contractualist

account of moral reasoning is drawn by Ashford in Ashford, “The Demandingness of

Scanlon’s Contractualism,” pp. –.




to one who knows she is to be experimented on against her will. Thebenefits secured for individuals by permitting it would have to be espe-

cially important to even start to make it plausible that it might be.

Requiring that the permissibility of conduct be justifiable to the one

who stands to have to bear the greatest burden if it is permitted, and

knows that, appears to yield a plausible rationale for the prohibition of

the experimentation. But now consider a second case, that of an Amish

farmer, Jebidiah, who lives under a heavily used flight path (fixed by a

process that did not involve consulting those who live in its vicinity).12

While out tilling his fields, he is hit by a bit of falling airplane fuselage and

is fatally wounded.13 Stipulating the risk of his being injured to be small

and the benefit secured for others by routing flight paths over Amish

country as quite significant (I will assume it would be financially unfea-

sible otherwise), it is plausible to hold Jeb’s injury to be the result of an

activity’s permissible pursuit. But it is hard to see how the permissibility

of the aviation practice in question could be defended as justifiable to a

fatally wounded Jeb as something no one, including him, can reasonably

reject. What could one say to him? “You understand: though it has cost you your life, the alternative to not permitting commercial flights is to

ask others each to individually bear a much greater burden”? It is

implausible to suggest that, in a comparison of the burden of not being

. This case is first introduced in Ashford, “The Demandingness of Scanlon’s

Contractualism.” I introduce it here because it is one that has gained traction in the

discussion of this topic. See, for instance, V. Munoz-Dardé, “Global Justice: Imposed and

Shared Risks,” in Spheres of Global Justice , Vol. , Fair Distribution—Global Economic,

Social and Intergenerational Justice , ed. Jean-Christophe Merle (Dordrecht: Springer,),

pp. –, a discussion of contractualist and risk imposition complementary to this one. It

is worth noting, however, an important respect in which the case is misleading. The Amish

are thought to eschew the use of modern technology, so it looks like the Amish farmer does

not stand to benefit in any way from the permitting of commercial aviation on the pro-

posed terms. The intuition the case is meant to elicit is that this makes its permissibility

particularly difficult to justify to him. But permitting an activity need not be mutually

beneficial for it to be true that its permissibility is justifiable to each person. What mattersis that it be one that individuals have good reason to want to be able to permissibly pursue,

and that the burdens some individuals might each have to bear if it is permitted be not so

great as to make accommodating its pursuit unreasonably burdensome.

. These things do happen: http://abcnews.go.com/blogs/headlines///plane

-debris-falls-on-georgia-womans-house-walmart/.


http://abcnews.go.com/blogs/headlines/2013/05/plane-debris-falls-on-georgia-womans-house-walmart/










allowed to travel by air with the burden of actually being killed, onemight reasonably conclude that not being allowed to travel by air con-

stitutes the greater burden.14

On reflection, it is plausible to hold the medical experimentation to be

impermissible and the commercial aviation practice to be permissible.

But these considered judgments look like they cannot be made sense of

on contractualist grounds. Doing so requires taking the main objection

to the experimentation to be the undiscounted burden of being involun-

tary experimented on, while taking the central objection to commercial

aviation to be the burden that an individual could end up having to bear,

discounted by the probability of a person having to bear it (the risk of

ending up burdened). But, first, as the cases look to be structurally iden-

tical, there are no grounds internal to the contractualist approach for

discounting the potential burden in one case, but not the other. Second,

discounting a potential burden by the likelihood of an individual having

to bear it appears to constitute a betrayal of Scanlonian contractualism’s

distinctive understanding of the requirement that the permissibility of

conduct must be justifiable to each person.Part of the appeal of the contractualist approach is that plausible

rationales for the impermissibility of activities such as the medical

experimentation can be articulated in its terms. Ashford’s point is that

the source of this strength, the requirement that the permissibility of an

activity be justifiable even to one who ends up burdened to a signifi-

cantly greater extent than it benefits anyone, stands in the way of articu-

lating plausible rationales in its terms for most intuitively permissible,

socially productive, risk-imposing activities.

III

Ashford’s argument takes the medical experimentation and commercial

aviation cases to both concern activities whose permissible pursuit

stands to benefit many but will impose on some a risk of being seriously

burdened. Her claim is that contractualist reasoning yields an intuitively

compelling rationale for the experimentation’s impermissibility. Butbecause the two cases are structurally identical, reaching the same con-

clusion in the commercial aviation case appears to be inescapable.

. Ashford, “The Demandingness of Scanlon’s Contractualism,” p. .




Inthissection,Iwillarguethatthetwocasesarenot,infact,structurally identical. Contractualist reasoning does yield a plausible rationale for

the medical experimentation’s impermissibility. But it has no implica-

tions for the commercial aviation case. (I will return to the question of

what contractualism has to say about that case in the next section.)

The seemingly compelling case for prohibiting the medical experi-

mentation identifies the decisive objection to it in the burden imposed

on one actually experimented on. Comparing it to the force of any indi-

vidual objection to it not being permitted, it is clear that no one stands to

be as burdened by its prohibition as by it being permitted. A slight modi-

fication to the case, however, casts doubt on whether this really is a

compelling rationale for its impermissibility. Say the experimentation is

still involuntary, but it involves painlessly enhancing individuals in ways

that significantly benefit each of them. Further, it takes place without the

experimental subjects’ knowledge, by slipping drugs into the water

supply of their homes. Without the element of pain or distress at the

knowledge that one is being involuntarily experimented on, and no

prospect of ending up burdened as a result, the proposed rationale for itsimpermissibility ceases to look so compelling.15

This rationale for not permitting the experimentation locates the deci-

sive objection to it in what I will call an instrumental consideration, one

that concerns a respect in which an individual stands to be benefited or

burdened as a result of an activity being permitted.16 But, intuitively,

whether the involuntary experimentation is painful and harms those

subjected to it, or is painless and results in their having better lives, has

little bearing on whether or not it is permissible. An alternative rationale,one that does justice to this thought, stresses the relevance to the case of

. I assume here that the enhancement is not burdensome because it is involuntary.

. Ashford’s argument assumes that, in assessing a principle’s reasonable rejectability,

what is relevant is the undiscounted burden an individual might have to bear as a result of

the envisioned permission. As she sees it, allowing a burden to be discounted by the

probability of a person having to bear it would undermine the compelling contractualist

rationale for the medical experimentation’s impermissibility. In Section IV, I will argue that

Scanlonian contractualism is best understood as taking the discounted, not the full, poten-tial burden that an individual might have to bear to be what is relevant in assessing the

strength of the person’s objection to a proposed principle. In this section, I will simply

grant Ashford’s assumption. I will argue, instead, that the issue of whether or not potential

burdens are to be discounted has no bearing on what contractualist reasoning leads us to

conclude about the permissibility of the medical experimentation.




what I will call intrinsic considerations. This type of consideration, whose salience for the assessment of a principle’s reasonable

rejectability Ashford’s argument overlooks, concerns the significance of

a certain type of conduct being permitted, quite apart from either

the possible consequences of the permission being exercised or other

indirect consequences of it. A person might, for example, want to reject

a proposed principle that permits facts about a person’s sexual orienta-

tion to be taken into account in employment decisions, on the grounds

that permitting this is stigmatizing. It is stigmatizing whether or not

anyone ever does so, and regardless of whether the permission has any

effects on how a person is related to by others (either in their actions

or in their attitudes). The mere fact of it being permissible to take such

facts into account is sufficient to ground an intrinsic objection to

the proposed permission.17

The intrinsic consideration that is important to the rationale for not

permitting the experimentation concerns the extent to which an indi-

vidual’s sense of herself as an independent agent is intimately tied up

with her having sole decision-making authority over how her body is tobe used. Things may happen to a person’s body that she does not

choose, either through chance events or as the foreseeable result of

what others do. But that is just part of what it is to be an embodied

agent in the world; maintaining complete control over what happens to

one’s body is not possible. Having things just happen to you is not,

however, the same as another having the right (whether or not it will

ever be made use of) to make a decision about how your body is to be

used, or what will be done to your body, without your having a say inthe matter. Such a right would undermine the decision-making author-

ity over the use of her body that is partly constitutive of a person’s

self-conception as an autonomous agent.

The grounds for reasonably rejecting any principle permitting the

kind of medical experimentation in question have nothing to do with the

imposition of either harm or the risk of harm. The objection, rather, is

that the experimentation requires that it be permissible to involuntarily

. The two categories, intrinsic and instrumental, are exhaustive of possible grounds

for reasonably rejecting a proposed principle. What category a consideration most clearly

fits into will often be a matter of judgment. Further, there is no reason to think that the

same consideration cannot be relevant both intrinsically and instrumentally.




involve individuals in it as experimental subjects. Any such permission would make it the case that the authority to make decisions concerning

how an individual’s body may be used has, at least in part, been ceded

to others. Each individual has good reason to want this kind of

decision-making discretion to be solely her own (regardless of whether

or not her body would in fact be used by others were it [to even in

part be] ceded).

I have argued that the more compelling rationale for the experimen-

tation’s prohibition emphasizes the intrinsic significance of this type of

act being permitted. It remains plausible, however, that instrumental

considerations will be of primary importance in assessing whether or

not commercial aviation is permissible. There is, therefore, no reason

to think that any conclusion concerning the permissibility of the activity

in the first case has implications for the activity’s permissibility in

the second case.

The symmetry between the cases could, however, be maintained on

the grounds that the intrinsic objection to the experimentation is also an

objection to commercial aviation. Roughly, one could argue that, overtime, some will certainly be injured or killed as a result of commercial

aviation accidents, effectively undermining their discretion to make

decisions concerning how their bodies are used. Permitting commercial

aviation would thus usurp an individual’s authority over the use of her

body, just as in the medical experimentation case.

The problem with defending the symmetry between the cases in this

way is that commercial aviation, unlike medical experimentation, does

not appear to make use of anyone’s body in any way.18

More plausibly,these deaths simply occur as a side effect of commercial aviation. The

point is nicely illustrated by a somewhat fanciful modification of the

commercial aviation case, in which the success of any given flight also

requires the cooperation of benevolent, but playful, aviation gods. They

are happy to do their part in ensuring that planes do not fall to the

ground every time one tries to take off, but they need to be entertained.

What they enjoy most is seeing, now and again, an individual being

. As stated, this may sound like an objection to the intention in involving a person in

ensuring the success of flights. But the objection to the permissibility of involving a person

in this way is the same as in the medical experimentation case: permitting the activity

would be to grant discretion to others to make decisions concerning the use of a person’s

body that she has reason to want to be solely her own.




sucked from the ground into an airplane by a giant vacuum and thenejected out of the cargo bay, from which she falls to the ground and is

either badly injured or killed. In this version of the case, to permit com-

mercial flights is to permit an activity that grants discretion to make

decisions concerning how an individual’s body is used to people other

than the individual herself. The activity is one, after all, whose success

requires that it be permissible to suck an individual off the ground and

into the plane, without her consent, as if she were a form of fuel for the

flight. This contrast brings into relief that the permission in question in

the original version of the case is not one that involves any such usurpa-

tion of an individual’s authority to make decisions concerning how her

body is used.

IV

The medical experimentation and commercial aviation cases are not, as

Ashford contends, symmetrical in structure. But that does not show her

main claim, that contractualist thinking supports implausible conclu-sions concerning the permissibility of risk-imposing activities, to be

mistaken. The most plausible grounds for taking commercial aviation to

be impermissible are instrumental in character.19 Any instance of a

flight over inhabited territory imposes a risk of harm on those inhabit-

ants. Over time, some of them will be unlucky enough to be harmed as

a result of that risk eventuating. The question to be asked in assessing

the activity’s permissibility is whether the risk of harm imposed by

commercial flights on those who just happen to live under a flight

path is justifiable to any such person on grounds that person cannot

reasonably reject.20

. I am assuming that the Amish would not find the very presence of an aircraft flying

over their territory an affront to their religion or way of life, so I am setting aside that

consideration as grounds of a possible intrinsic objection.

. It could be argued that the familiar distinction between intended and foreseen

consequences accounts for the asymmetry between the cases. Though individuals ending

up being harmed is a foreseeable consequence of commercial aviation being permitted, it

is not intended. In the medical experimentation case, on the other hand, there is anintention that people (though no one in particular) be harmed. This difference makes the

permissibility of aviation prima facie more defensible than the medical experimentation.

For present purposes, whether or not this is a morally relevant difference between the

cases is not an issue on which I need take a stand. What I am arguing is that it is the

distinction between intrinsic and instrumental considerations that is load-bearing in how




The plight of Jeb, the fatally wounded Amish farmer, vividly illustratesthe case for concluding that the answer is “no.” How could the permis-

sibility of commercial aviation possibly be defended as justifiable to him

on grounds he cannot reasonably reject? As Ashford correctly observes,

individuals have good reasons for wanting commercial flight to be

permissible, but it is implausible that they compare in gravity to Jeb’s

reason for wanting not to have been burdened in this way.

In this section, I will argue that this strand of Ashford’s argument

relies on a mischaracterization of what the aviation practice being justi-

fiable to Jeb requires. In particular, I will argue that whether or not Jeb

can reasonably reject any principle permitting the activity turns on

whether the risk that what has happened to him could happen to any

person in similar circumstances is sufficient to defeat the reasons that

favor the activity’s being permitted. In Section IV.A, I will discuss, in

greater detail than in the previous section, how the contractualist

approach frames the question of the permissibility of a risk-imposing

activity. This will lay the grounds for the argument for the justifiability of

the aviation practice to Jeb that I will advance in Section IV.B.

A

So far, the discussion has not flagged as significant contractualism’s

treating what it is permissible for one to do as depending on what a

principle , for the general regulation of conduct in the type of situation

one finds oneself in, permits. The point plays no role in either strand of

Ashford’s argument. But as I will now argue, it is of central importancefor understanding the contractualist approach to assessing the permis-

sibility of a risk-imposing activity.

A principle for the regulation of conduct in a certain type of situation

specifies what individuals who find themselves in that type of situation,

whoever they are, may legitimately expect of one another’s conduct.

Taking a particular course of action to be permitted by a principle no one

can reasonably reject is to hold that there are good reasons that support

the permissibility of any person similarly situated conducting herself in

that way, and that the reasons supporting this standing permission are

the impermissibility of the medical experimentation and the permissibility of the aviation

practice is made sense of in contractualist terms.




sufficient to defeat objections to it.21

Because the permission is a generalpermission to act for anyone thusly situated, assessing whether it is

permissible to act, here and now, in a way that has implications for

a particular other (or others), requires considering the general question

of what the reasons are that favor and oppose this type of conduct

being generally permitted.

The reasons that bear on this question concern the relevant intrinsic

and instrumental considerations that could be appealed to from the

different points of view of those who stand to be affected. Because what

is licensed by a principle is the general permissibility, in a certain type of

situation, of relating to another in a certain way, and there is no way of

knowing how often it will obtain or who will find themselves in it, the

points of view in question are not those of actual, particular individuals,

but rather representative individual standpoints.

A “standpoint,” as the term is being used here, is an abstraction, a way

of referring to the reasons that persons in certain circumstances

(assumed to have certain “normal” capacities for discernment, self-

control, planning, and so on) typically have for caring about or wanting certain things (“generic reasons”), such as a degree of personal privacy,

security against bodily injury, the freedom to nurture personal relation-

ships with friends and intimates, and sole discretion concerning how

one’s body is used.22 The relevant standpoints for assessing principles

governing promissory obligations, for example, are those of the promisor

and the promisee, each of which is associated with certain characteristic

interests—such as the promisee’s interest in being assured that certain

things will or will not be done (unless she says otherwise), and the promi-sor’s interest in being able to assure the promisee, if she seeks assurance.23

. Scanlon, What We Owe to Each Other , pp. –.

. A generic reason is “one that we can see people have in virtue of certain general

characteristics; it is not attributed to specific individuals.” Scanlon, What We Owe to Each

Other , pp. –; see also T. M. Scanlon, “The Significance of Choice,” Tanner Lectures on

Human Values , pp. –. It is worth noting that the notion of a “generic reason” is a

wholly normative claim, one having to do with the reasons that individuals in certain

circumstances normally have for wanting or caring about certain things. That some peoplein the actual world may not in fact have reason to care about these things does not call

reliance on generic reasons into question, as they are not statistical generalizations based

on a particular population.

. In assessing the implications of a proposed principle for a particular standpoint,

whose particular interests are aptly characterized by that standpoint is of no importance.




Relying on standpoints is motivated by the thought that conclusionsabout the permissibility of conduct must be reasonably epistemically

accessible to an individual thinking about what courses of action are

open to her. Requiring that an individual take into account specific facts

about the rational preferences, capacities, psychological dispositions,

and so on of others in determining what it is permissible to do would

place serious epistemic and cognitive demands on a person. This would

constrain an individual’s ability to pursue her rational aims, making it

unduly burdensome for her to live her life within the bounds of the

permissible, and make it unreasonably difficult for both her and others

assessing it to be confident of her conduct’s permissibility. These prob-

lems are avoided by relying, in thinking about what it is permissible to

do, on relevant individual standpoints, characterized in terms of generic

information about what individuals in the type of situation in question

typically have reason to want.

With these last points concerning the role of principles and stand-

points in contractualist thinking in mind, let me restate how the question

of the permissibility of a risk-imposing activity is framed in its terms: thereasonable rejectability of a principle for the regulation of a risk-

imposing activity turns on a comparison of the implications of conduct

being regulated by that principle with those of candidate alternative

principles, as assessed from the relevant standpoints. The implications

in question are either intrinsic or instrumental considerations. For any

proposed principle, there will be numerous such considerations that

favor permitting the activity on its terms. The main objection to doing so

will most often have to do with the generic reason a person has for not wanting to end up burdened as the result of the imposed risk eventuating

in her life.

How forceful an objection this is will depend on how likely it is that

permitting the activity will result in a person ending up burdened.24 The

Any standpoint could (especially over time) be predicated of an indefinite number of

particular persons. What matters for purposes of fixing what the relevant standpoints are

for assessing a proposed principle are, first, that a standpoint aptly characterize the rel-evant interests of an individual or individuals who, in the world as we know it, exist, did

exist, or we have reason to believe will exist, and second, that it be one for which the

proposed principle has implications.

. I am in agreement with Lenman in seeing principles as introducing an ex ante point

of view from which the reasonable rejectability of a principle is to be assessed. Unlike




magnitude of the risk imposed on different standpoints, and, especially,the standpoint of those most at risk, will therefore be an important deter-

minant of its permissibility. But, for reasons I will briefly discuss below,

any legitimate answer to this question is best understood as correct

relative to certain assumed parameters that can be specified in numer-

ous different ways.25

Consider a common understanding of probability, the relative fre-

quency view. It holds that the probability of a certain event-token occur-

ring is fixed by first defining some reference class that contains the object

of risk assessment, and then determining what proportion of the people

or events in that class have the relevant property. For example, to deter-

mine what the risk is of my being injured playing squash over the next

decade, a reference class needs to be defined, and the proportion of

individuals in that reference class who have been injured playing squash

needs to be determined. Casting the proportion of individuals in the

reference class who exhibit the property of interest (injured while

playing squash over a certain time span) in terms of frequency tells me

what the probability is of my being injured in that time period. What exactly that turns out to be depends on how the reference

class is characterized, for which there are a myriad of possibilities. A

candidate reference class need only pick out some property that can be

correctly attributed to me and is also instantiated by others. It could,

for instance, be the class of men, men of a certain age, or squash

players with a certain number of years of experience playing squash.

There are, in principle, as many legitimate answers to the question of

Lenman, I do not believe the magnitude of a burden that may befall a person if conduct of

a certain type is permitted, as opposed to the magnitude of that burden discounted for the

probability of it befalling a person, to be relevant to the assessment of whether it is in fact

permissible. See James Lenman, “Contractualism and Risk Imposition,” Politics, Philoso-

phy, and Economics (): –. Fried, “Can Contractualism Save Us from Aggrega-

tion?” draws attention to certain passages in Scanlon, What We Owe to Each Other , that

suggest that undiscounted burdens are relevant to assessing a principle’s reasonable

rejectability. My view is that these passages are misleading. Contractualism is best under-

stood as holding that only instrumental and intrinsic considerations are relevant to assess-

ing a principle’s reasonable rejectability and that undiscounted burdens are not relevant.. The next few paragraphs largely follow points elegantly made in Alan Hàjek, “Con-

ditional Probability Is the Very Guide of Life,” in Probability Is the Very Guide of Life: The

Philosophical Uses of Chance , ed. E. Henry Kyburg Jr. and Mariam Thalos (LaSalle, Ill.:

Open Court, ), pp. –; and Alan Hàjek, “The Reference Class Problem Is Your

Problem Too,” Synthese (): –.




what the probability is of my being injured while playing squash in thenext ten years as there are reference classes.26 Each legitimate answer

to the question is going to be fixed relative to the parameters of the

assumed reference class.27

. I have relied, in making this point, on a relative frequency interpretation of prob-

ability. But the point can also be made on the terms of the other major interpretation of

probability, the Bayesian view. The Bayesian view holds that the risk of a certain event

occurring is to be fixed relative to a suitable agent’s degrees of belief, or confidence, in aproposition stating the probability of an event occurring. On the simplest Bayesian view,

any proposition stating the probability of an event occurring is always relative to a particu-

lar agent’s degrees of belief. There are potentially as many legitimate answers to the ques-

tion of how great the risk imposed by a certain activity is as there are agents.

It is more plausible to hold that the probability of an event occurring ought to be fixed,

not with respect to just any agent’s degrees of belief, but with respect to the degrees of

belief of those with suitable expertise and knowledge. Doing so, however, in no way under-

mines the conclusion that there are many valid answers to the question “how risky is it?” As

Alan Hàjek points out, an expert meteorologist may say that there is a percent chance of

tomorrow being a rainy day because days like tomorrow have been rainy days. But there are

innumerable ways that tomorrow might be characterized as being “like” other days. Whatthe probability of tomorrow being a rainy day turns out to be will be conditional on how the

“like” relation is filled in; there are lots of reasonable possibilities here. Any expert will have

to choose among them, and there is no reason to think that experts will not differ in the

choices they make.

. There is no fixed rule for picking out one reference class as the appropriate one.

Something like “choose the narrowest possible relevant reference class for which reliable

evidence is available” leaves open the choice between roughly equally narrow reference

classes, and requires that some kind of standard of what counts as “reliable” be employed.

Similarly, a rule that directs us to fix what the risk is by appeal to the degrees of belief of an

expert leaves open to judgment what is going to count as expertise for the purposes of fixing

the kind of risk in question, and how to decide which expert’s view to go with in the familiar

circumstance that experts on the matter in question disagree among themselves.

It could be argued that this reference class problem does not show that, as a metaphysi-

cal matter, there is no such thing as the unique probability of a proposition in virtue of the

complete set of conditions that hold in the universe at a particular time. For purposes of

this discussion, it is enough to take it to show that there is a problem with fixing the

probability of a proposition (or event-token) in a form that is informative for purposes of

deciding what to do or expect, while retaining a claim to it being the unique, correct

answer. As Hàjek puts it: “Consider again poor old John Smith’s predicament at this

moment [he is a fifty-year-old consumptive Englishman, wondering what his chances are

of living to sixty-one]. Imagine him having knowledge of the complete situation of theuniverse at this moment; or knowledge of a complete set of relevant conditions. We tell him

that propensities are dependent on these things, but we do not tell him how. Granting him

all the computational power that he might need, does he have any idea what is his pro-

pensity for living to , or even what this means?” Hàjek, “The Reference Class Problem Is

Your Problem Too,” p. .




Whether it is permissible to pursue a risk-imposing activity will hinge,in part, on what the magnitude of the imposed risk is taken to be. But, as

stated, what the magnitude of the risk is found to be will often vary

depending on the reference class assumed to characterize the popula-

tion put at risk. The point presents a challenge to contractualism

because some reference class needs to be chosen in order to assess a

risk-imposing activity’s permissibility, but the approach appears to offer

no principled basis for adjudicating between alternatives. Contractualist

reasoning could therefore potentially yield contradictory conclusions

concerning the activity’s permissibility. Each conclusion would be

correct relative to the parameters assumed by a particular specification

of the magnitude of the imposed risk. Working out a conclusive answer

concerning what it is permissible for a person to do would then require

settling, on grounds exogenous to the contractualist framework, which

set of parameters (and the specification of the risk’s magnitude they

support) ought to be assumed in assessing the activity’s permissibility.

Contractualist thinking about permissible risk imposition, it appears,

offers a crucially incomplete account of the grounds for permitting orprohibiting a risk-imposing activity.

This appearance, however, is deceptive. The basis for privileging one

reference class over the alternatives is in fact available on grounds inter-

nal to the contractualist approach. Alternative reference classes are just

distinct, equally correct ways of describing the population at risk that

is of interest. But the population at risk is always characterized in

contractualist reasoning by the standpoints that population instantiates.

What the contractualist approach thus requires is that the specificationof the magnitude of the risk permitting an activity will impose on a

certain standpoint use a reference class whose parameters are made up

of the characteristics that together describe that standpoint. That is, the

parameters of the reference class to be used in determining the risk

imposed on a segment of the population are just the parameters of the

standpoint that correctly characterizes that segment of the population.

For example, say what is being assessed is a principle that permits fire

trucks to be driven through metropolitan areas at very high speeds. If one

of the standpoints of those at risk of ending up harmed as a result is

characterized in a way that assumes average mobility and hearing, the

parameters of the reference class assumed by the specification of

the magnitude of that risk also ought to include average hearing and




mobility. This will support a certain conclusion about the magnitude of the risk. By contrast, if the standpoint assumes poor hearing and mobil-

ity, the parameters of the appropriate reference class ought to include

poor hearing and mobility, plausibly resulting in a different conclusion

about the magnitude of the imposed risk.

The rationale for taking the parameters of the reference classes to be

assumed from the way in which the standpoints of those at risk are

characterized follows the rationale for contractualism’s employment of

standpoints in the first place. What it is permissible for a person to do

ought to be reasonably epistemically accessible to one deliberating

about what, under the circumstances, it is permissible for her to do.

Since the magnitude of the risk an activity imposes on others is perti-

nent to the permissibility of its pursuit, the magnitude of that risk ought

to be reasonably epistemically accessible to a person deliberating about

the permissibility of its pursuit. Candidate reference classes whose

parameters are, for example, difficult to discern without special training

or require knowledge of the particular individuals for whom the course

of action may have implications that is burdensome to obtain, orcannot permissibly be obtained, will fall afoul of this requirement.

The problem does not arise when the reference class assumed in

determining the risk imposed on a standpoint mirrors the description

of that standpoint. Standpoints are always specified in a way that is

reasonably epistemically accessible.

To illustrate the significance of these last points concerning the speci-

fication of the magnitude of a risk, consider the example of a vaccination

program, aimed at the prevention of the spread of a serious airbornevirus that can trigger debilitating migraines. For the vaccine to be maxi-

mally effective, the entire population must be vaccinated. The chance

that an individual, characterized in general physiological terms, will

have an allergic reaction to it is very low, so it is plausible that it is

permissible to vaccinate everyone without taking any special precau-

tions. Some, however, carry a genetic mutation that renders them more

likely than others to have a very serious reaction to the vaccine. Whether

a person carries this mutation, and the extent to which the risk is ampli-

fied for one who does, is information that is obtainable, but only through

a series of complex genetic tests. Because the test results can be incon-

clusive, they require several repetitions over a span of time in order to

produce reliable evidence.




The information required for characterizing as distinct, and relevantto the assessment of the vaccine program’s permissibility, the stand-

points of those who stand to benefit from it, but who differ in the degree

to which they are put at risk by being vaccinated, is certainly available.

But the burdens associated with obtaining the relevant information,

together with the fact that doing so is in tension with mounting an

effective vaccination program in a timely manner, provide grounds for

resisting assessing its permissibility from multiple standpoints that differ

with respect to a susceptibility to an allergic reaction. Arguably, were

they to be taken into account, there would be a good case to be made that

testing for the genetic mutation is one of the conditions of permissibly

carrying out the program; as it is, it is permissible to proceed with the

vaccination program without testing for the mutation. If an individual

does suffer an allergic reaction, she will be owed assistance, but cannot

claim to have been wronged by having been exposed to the risk of this

happening to her.28

B

The argument for why contractualism supports implausible conclusions

about permissible risk imposition relies on the thought that most intui-

tively acceptable risk-imposing activities will not be justifiable as per-

missible to someone like Jeb, who knows that the risk in question has

actually eventuated in his life as a serious harm. But whether Jeb has

been wronged by having that risk imposed on him turns on whether

doing so is permitted by a principle that is justifiable to anyone (suitably motivated) on grounds that no one, including Jeb, can reasonably reject.

. In this example, the epistemic demands associated with different ways of charac-

terizing relevant standpoints count in favor of some ways of characterizing a standpoint

over others, and thus function as grounds for privileging one way of characterizing the

riskiness of an activity for purposes of assessing its permissibility. But it is not the only type

of consideration that might play this role. In the vaccination program case, for instance,

there is a distinct kind of objection to taking into account, in assessing its permissibility, the

risk to those with a specific gene mutation, namely, that gathering such genetic informa-

tion is likely to involve nontrivial intrusions into individuals’ lives. Arguably, individualshave an interest in having their private information—especially their medical

information—protected from official authorities (like government agencies). Gathering the

information required to come up with a reasonably reliable estimate of the risk to which

individuals with the mutation stand be exposed by the vaccination program will almost

certainly run afoul of that interest.




Answering this question requires taking up a kind of ex ante point of view. It is not ex ante in the sense that the question to be asked is what

principle would be justifiable to Jeb if he did not know his particular

identity and that he has been fatally wounded. Rather, it is an ex ante

point of view in the sense that it only takes into account a principle’s

instrumental and intrinsic implications, as assessed from the relevant

standpoints. Jeb knows that he has ended up seriously harmed as a result

of another’s conduct. But whether or not he has been wronged turns on

whether the risk that the kind of thing that has happened to him could

happen to someone in his circumstances is sufficient grounds to take

any principle permitting such conduct to be reasonably rejectable. That

Jeb has in fact been harmed is not in itself grounds for concluding

that any principle that permits the aviation practice in question is one he

can reasonably reject.

It seems plausible to take the risk of ending up harmed as a conse-

quence of an aviation accident imposed on someone in Jeb’s circum-

stances to be quite low (aviation accidents happen, but not that often).

But as previously discussed, taking the imposed risk to be low assumes acertain characterization of the standpoint of “someone in Jeb’s circum-

stances.” The assumption, roughly, is that the standpoint is one of

someone who lives in a sparsely populated territory that lies under

a flight path.29

Say, however, that Jeb is the sort of person who is temperamentally

drawn to planes. When he hears one passing, he finds himself moved to

try to situate himself so as to be able to get a good look at it. Were this

fact about his temperament incorporated into the characterization of the standpoint of “someone in Jeb’s circumstances,” the risk to which

such a person stands to be exposed would, let us say, be greater than if

it is not taken into account. What justifies not including it are the

epistemic demands associated with discovering whether or not anyone

located in the vicinity of a particular flight path does in fact have Jeb’s

. Say the Amish experience a population explosion, such that their number grows

exponentially, making the territory in question very densely populated. The risk of an Amish person being harmed would then no longer be quite low, as the probability of the

area in the territory in which, for example, a bit of falling aircraft debris lands being

occupied will have gone up substantially. This can be taken to be a respect in which the

numbers are relevant to determining what is permissible, but not in the way ruled out by

the contractualist strictures.




particular disposition. Jeb’s temperament may in fact make himmore at risk of being harmed as a result of an aviation accident than

others. But whether or not he can reasonably reject any principle per-

mitting commercial flights depends on how great the risk is that is

imposed on anyone aptly picked out by a standpoint that captures his

circumstances.30

Jeb is unlucky to have been fatally harmed as a result of an aviation

mishap. But that he has been harmed is not an adequate basis for

concluding that he is justified in being resentful of others pursuing an

activity that has resulted in this outcome. He may regret how things have

turned out for him, but his being harmed is in no way at odds with a

principle that permits such flights being justifiable to him on grounds he

cannot reasonably reject (provided he himself is motivated to be guided

in his conduct by principles no one can reasonably reject).

If anything, the opposite is the case. Assuming that the economic

and personal opportunities made available to individuals by commer-

cial aviation are ones individuals have good reasons to want, there are

grounds for in some way permitting the activity’s pursuit. The risk of harm that will be imposed on individuals by the activity is an impor-

tant reason for objecting to it being permitted. But that concern is

plausibly addressed by any principle permitting commercial aviation

that, first, mandates certain standards of due care regulating the opera-

tion of commercial flights and, second, invests any person who ends up

being harmed as a result of the eventuation of the imposed risk with a

claim to compensation (for the person or, as in Jeb’s case, his family).

The first requirement lowers the risk of ending up harmed thatcommercial flights impose on individuals, while the second can at least

partially mitigate the burden of having the risk eventuate in a person’s

life.

V

I have argued that in order to answer the question of whether the per-

missibility of commercial aviation is justifiable to Jeb, who knows he has

. I discuss this point at greater length in “Contractualism and the Roots of Respon-

sibility,” in The Nature of Moral Responsibility , ed. R. Clarke, M. McKenna, and A. Smith

(Oxford: Oxford University Press, ), pp. –.




been fatally wounded as a result of an aviation incident, on grounds he cannot reasonably reject, we should ask whether a principle permitting it

is justifiable to the standpoint that aptly characterizes a person in Jeb’s

circumstances. The shift from “what is justifiable to this particular

person, here and now,” to “what principle is justifiable to a standpoint”

may, however, appear to abandon an idea central to the contractualist

approach: that it matters to morally motivated persons that their

conduct be justifiable to one another . Justifying to Jeb the permissibility

of the activity that has resulted in his being mortally wounded by

appealing to the justifiability to the relevant standpoint of the principle

permitting the activity appears to leave Jeb’s specific complaint

unaddressed.

This objection sounds forceful. But it is surprisingly difficult to

pin down. One concern about it is that it appears to presuppose an

understanding of the contractualist ideal of interpersonal justifiability

as involving individuals trying to persuade one another to accept what

has been done, or what will be done, as “all right with me.” What

contractualism takes the morally motivated person to be concerned with, however, is hypothetical justifiability. Such a person conducts

herself in a way whose permissibility is supported by reasons that all

those who care about relating to others on terms justifiable to one

another cannot reasonably reject as justification for the permission.

Another may be insensitive to those reasons, and thus unwilling to

accept the permissibility of one’s conduct as justifiable to her. That

may well create a substantive problem in one’s relationship with that

person, but it does not justify any claim on her part to have been wronged.

More importantly, if Jeb’s complaint is that another has wronged

him, what he is objecting to is the permissibility of the conduct that has

resulted in his ending up harmed. But to object to the permissibility of

an activity is to object to a principle that permits individuals to engage

in that activity. The objection is general: it is an objection not just to you

doing what had negative consequences for me , but to anyone under this

type of circumstance engaging in that type of conduct, on the grounds

that it could have certain implications for another individual (like me).

The response to Jeb’s particular objection argued for here does treat it

as a general objection, rather than a complaint about his particular pre-

dicament. But doing so does not abandon the contractualist ideal of




always conducting oneself in a way whose permissibility is justifiableto each person.31

VI

In this discussion, I have argued that understanding permissible risk

imposition in contractualist terms allows us to make good sense of the

thought that one person can wrong another by doing what imposes an

inordinate risk of harm on her. This interpersonal aspect of impermis-

sible risk imposition is not one readily captured by a consequentialistcost-benefit approach. I have further argued that it is a strength of the

approach that the important question of how the risk associated with an

activity is to be characterized for purposes of moral deliberation and

assessment explicitly arises in a way that is internal to the process of

working out whether a principle permitting a risky activity can be rea-

sonably rejected. Finally, I have claimed that contractualist reasoning,

though more restrictive than a cost-benefit approach, does not support

an implausibly restrictive understanding of what risks may permissibly be imposed. The case for thinking it does rests on taking the fact that a

particular person has ended up burdened, rather than the risk that a

person might end up so burdened as a result of an activity being permit-

ted, as the grounds for wanting to reasonably reject any principle that

allows it. That, as I have argued, is a mistake.

. The contractualist claim, to be fair, is that realizing the value of mutual recognition

in the moral relationship, one that holds between oneself and any other, requires that one

be guided in one’s conduct by the reasons made salient by principles no one can reason-

ably reject. It is by responding to these reasons, and not others, in one’s practical thinking that one displays a recognition of the standing of others as rational beings to whom

justification is owed in virtue of their value as rational beings. This aspect of the

contractualist ideal of how persons ought to relate to one another has nothing to do,

however, with the issue at hand, that of whether Jeb is wronged by the risk imposed on him

by commercial flights.


rahul kumar risking and wrongdoing

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