If my criticism of Estlund is sound, then we should regard Scanlon's contractors as asking the primary question. This is the only way, I have argued, to make sense of Scanlon's contention that they are ‘moved by the aim of finding principles that others, similarly motivated, could not reasonably reject’ (1998, p. 5). Intriguingly, Estlund himself admits that this quotation ‘seems to give them the primary question’ – though he only admits this in a footnote in his 2003 article; it does not appear in Democratic Authority. ‘The exegetical problem raised by these quotes in Scanlon cannot be pursued here’, Estlund continues in that footnote – a puzzling statement, given that the right way to understand Scanlon's account is precisely the focus of his discussion (Estlund, 2003, p. 401n).
Recall that what motivates Estlund is a worry that assigning the primary question to contracting parties will end up imperilling ‘contractualism's distinctiveness’ (Estlund, 2008, p. 251). If parties are simply asking the primary question, why do we need to think about them? We can just ask ourselves. The choice framework's role as a device through which conclusions about right and wrong are constructed or determined depends, he thinks, on this not being the case. As a result, Estlund goes to great lengths to interpret Scanlon in a way that retains the distinct character of the reasoning within his contractualist situation. But his efforts, as I have shown, are strained. Moreover, they are unnecessary. For there is nothing incompatible between the claims (a) that parties to Scanlon's contractualist situation ask themselves the primary question and (b) that Scanlon's contractualist situation represents an account of how correct moral principles are best identified. That is because Scanlon's contractualist situation just is a framework for understanding how moral reasoning – the process of arriving at determinate conclusions about right and wrong – properly proceeds. It is an account of first-order moral reasoning, through which determinate moral principles are identified or, if you prefer, constructed.
To understand this way of interpreting Scanlon, consider some structural similarities between his view and the view of moral justification offered by John Rawls. Glossing over details for the sake of simplicity,4 I think we can regard Rawls' project as beginning by identifying (a) an account of citizens' moral status as free and equal and (b) a companion account of their interests as free and equal (such as their interests in developing and exercising their moral powers, and in primary goods). He then seeks to determine (c) the principles by which social institutions should be arranged if they are to respect this understanding of persons as free and equal. The original position is a process of reasoning that takes us from where we start – with (a) and (b) – over to (c). ‘The leading idea’, Rawls writes in 1980, ‘is to establish a suitable connection between a particular conception of the person and first principles of justice, by means of a procedure of construction’ (Rawls, 1980, p. 516). And while the later Rawls hedges on his meta-ethical conviction that principles are constructed by this process (as opposed to discovered by it or, as the later Rawls comes to say, ‘represented as the outcome’ of it), the structure is clear: we begin with some account of normative ‘raw materials’, including an idea of the basic moral status of persons, and we reason our way from that account to specific principles (Rawls, 2005, p. 93).
Scanlon's account can be understood similarly. As Scanlon himself says:
The very structure of the [contractualist] test is already a moral principle that constrains the kind of norms that can pass it. It is already a moral principle that everybody counts – that we should be able to justify our norms to everyone (quoted in Voorhoeve, 2009, p. 182).
Scanlon thus begins with an account of the moral status of persons according to which they are equally entitled to justification. In virtue of this moral status, Scanlon believes – and here I am quoting Michael Ridge – that ‘everyone has reason to make room for the … agent-relative concerns of others’ (Ridge, 2001, p. 481). Scanlon thus proceeds to offer us an account of objective but nevertheless agent-relative reasons that each person has: reasons to seek food and shelter, pursue certain projects, devote time to one's family, develop relationships, etc. (Scanlon, 1998, p. 204). What Scanlon's contractualist deliberation does is serve as the framework of reasoning between these normative raw materials from which we begin – an account of the moral status of others and a companion account of persons' agent-relative reasons – to reach specific conclusions about right and wrong. It describes how we should reason our way from these raw materials to arrive at conclusions about what we owe to each other. And we do this by aiming to devise a set of principles that, given the objective agent-relative reasons for action people have, does not burden anyone in a way that could be avoided by a rival set of principles. We do this, in other words, by asking the primary question. Just as Rawls' original position takes us from abstract normative raw materials to determinate conclusions, so too does Scanlon's contractualist situation. Each is an account of how someone who endorses the fundamental ideas of the theory – who is morally committed, in Scanlon's case, to the equal claim of all to justification – should reason his or her way to conclusions about what he or she ought to do. Indeed, DCA pioneer Barry's influential proposal that we import Scanlon's contractualist account into Rawls' theory would only make sense if their accounts of contractualist reasoning played similar roles (Barry, 1996, pp. 67–72).5
There are many virtues in interpreting Scanlon in this way. First, it is in many respects a more natural reading. We need not strain to find a description of what goes on ‘inside’ the contractualist situation that marks it out as distinct from what goes on ‘outside’ in the first-order activities of moral deliberation; instead, we can embrace the idea that Scanlon's descriptions of the ideal agents in each are identical. Just a page before Scanlon describes the parties as ‘moved by the aim of finding principles that others, similarly motivated, could not reasonably reject’ (Scanlon, 1998, p. 5), he says, remarking on the phenomenology of moral experience:
When I ask myself what reason the fact that an action is wrong gives me not to do, my answer is that such an action would be one that I could not justify to others on grounds I could expect them to accept (Scanlon, 1998, p. 4).
My reading does not force us to invent some way in which these two descriptions differ. The idealised processes of reasoning that carry on inside the contractualist deliberation are the same processes of reasoning that we ourselves undertake when we do moral deliberation properly.
Second, my interpretation helps to make sense of Scanlon's mysterious contention that reasons of ‘fairness’ can be invoked against principles in the contractualist situation. This is because principles that ‘arbitrarily favor one person over others’ offend against the root idea of the equal standing of all persons that serves as the foundation of Scanlon's contractualism (Scanlon, 1998, p. 212).6
Third, this interpretation helps immunise Scanlon from the common objection that his theory is objectionably circular because it relies on substantive judgements. This common objection begins by recognising that the reasonableness of any given rejection in Scanlon's deliberation needs to be assessed somehow – namely, by assigning weights to agent-relative reasons people have for and against a proposed principle, and seeing which person's reasons are strong enough to win out. But if this is true – and it is – a considerable amount of important work thereby transpires at the level of assigning moral weights to the different reasons, assignments which cannot be explained by the final principles of morality that are settled upon since they are necessary in reaching those final principles. What this objection concludes is that this makes the idea of a contractualist situation entirely dispensable: all we need to do is look at the realm of reasons for action, judge the relative strengths and then see what principles are demanded or disallowed by the strongest reasons (Southwood, 2010, pp. 61–9).
However, once we see that Scanlon's account does not cast the contractualist situation as a specialised device, but rather as a framework for understanding moral deliberation at its best – a framework that directs and orients these judgements in reasoning – this objection misses the mark. Scanlon is explicit about the role of judgement in his theory: ‘According to my version of contractualism, deciding whether an action is right or wrong requires a substantive judgment on our part about whether certain objections to possible moral principles would be reasonable’ (Scanlon, 1998, p. 194).
But this is not circular; it simply comes with the territory of all accounts of first-order moral reasoning (utilitarian, virtue-ethical and Kantian alike). Rawls' account, too, depends on judgement in determining how to rank different principles lexically. That there are such burdens of judgement in any theory is precisely why there is reasonable disagreement about what conclusions are properly reached – but this is an issue for any view (Rawls, 2005, pp. 56–7). Once Scanlon's account is understood as a description of idealised moral reasoning, the objection that such reasoning depends on substantive judgements becomes utterly unsurprising, and thus loses its force.7 Moreover, Scanlon himself says that while ‘the possibility of tightening contractualism’ as a general moral theory to reduce the role of judgement is implausible at such a high level of abstraction as assessing ‘what we owe to each other’, such tightening is ‘a feasible aim with respect to some specific areas of morality’ (Scanlon, 1998, p. 218). It is possible that the justice of social institutions is one of these areas.
Fourth, the most important reason to think that Scanlon would endorse this interpretation is that he does endorse it. Consider a restated form of the aforementioned circularity objection posed by Alex Voorhoeve:
It seems that to get some determinate answers to questions of right and wrong, we must first decide which things count as valid ground for rejecting a principle. But this would appear to leave the procedure devoid of any content: any moral principle you pull out of the contractualist hat is put there at the outset when you decide which things count as grounds for rejecting a principle (Voorhoeve, 2009, p. 182).
In response to this, Scanlon replies – and this is the kicker:
[W]e can't avoid questions of judgement, and this could lead to the charge that the contractualist reaches conclusions only because he has helped himself to lots of substantive ideas along the way, and that the theory itself therefore doesn't really yield new answers. It may be that this criticism is justified. There are different desiderata of a moral theory. I am inclined to think that providing a way of cranking out novel principles is overrated … What I mean to do is offer a way of understanding what moral thinking is (Scanlon, 2009, p. 183, emphasis added).
Scanlon goes even further, disputing the idea that parties to his contractualist situation are best conceived (as Estlund recurrently does) as a ‘hypothetical agreement’ that therefore must be modelled in some special way distinctly from our normal moral deliberation. Instead, Scanlon argues:
To describe [my theory] as a ‘hypothetical agreement’ is already mistaken. It isn't about what people would agree to under certain conditions. Rather, what matters is what it would be reasonable for them to reject under certain conditions, that is, if they, too, were trying to find principles that others could not reasonably reject (quoted in Voorhoeve, 2009, p. 184, emphasis in original).
That such conditions are hypothetical therefore only serves to indicate that they are idealised – they characterise the conditions of faultless reasoning – not that they refer to the operations of mysterious, idiosyncratically motivated agents who undertake some special contract with one another. Rather, they refer to our moral reasoning about what we owe to each other, at its best.
Pessimistically, Michael Otsuka writes that Scanlon's contractualist situation ‘is bought at the price of a reduction in the usefulness of the contractualist device as a means (distinct from ordinary forms of moral reasoning) of arriving at the right principles of justice’ (Otsuka, 2003, pp. 5–6). But Otsuka here makes the same mistake as Estlund: assuming that Scanlon's contractualist situation was a specialised device to serve as a ‘means’ to philosophers external to our first-order moral reasoning. On the contrary, it is an account of how we ought to undertake first-order moral reasoning, one rooted in Scanlon's thesis that ‘the idea of justifiability to others is taken to be basic’ to what morality is, and thus how we should undertake the search to identify its demands (Scanlon, 1998, p. 5).
From the Idea to the Practice of Reasonable Rejection
Having presented an interpretation of Scanlon's contractualism that regards it as a description of how we ought to understand and engage in first-order moral deliberation, I want to note some implications of this interpretation that are relevant for the defence of a Scanlon-inspired DCA. Scanlon's discussion of deliberation is clearly focused on the idea of deliberation within a single person's mind: each asks him or herself whether it could be reasonable for someone to reject the principle upon which he or she is about to act, and draws a personal judgement about its justifiability. But while Scanlon is right that such judgements are ones that ‘each of us must make for him- or herself’, he also emphasises that ‘interaction with others plays a crucial role in arriving at well-founded moral opinions’ (Scanlon, 1998, pp. 393–4). What I want to do here is show how Scanlon's account of moral deliberation presents a useful organising framework for those interactions in actual political life.
Scanlon enjoins us to search for principles that no one could reasonably reject. But the could is crucial. After all, if participants in the moral deliberation really are the kinds of participants who seek mutually acceptable principles, why would there need to be any reasonable rejections that transpire at all? Who in the deliberation would have proposed a principle that was reasonably rejectable, and why would he or she have proposed it if he or she had the aim of finding mutually justifiable principles? If everyone reasons faultlessly in moral deliberation, and if we assume that all the addressed questions have determinate answers, then this will not happen. But of course, real deliberations will include moral mistakes. And when such mistakes are made, the right response in deliberation is to condemn them on the basis of reasons – to ‘reasonably reject’ them. The powerful image of people who stand and actively reject proposals on the basis of their unreasonableness is indispensable to the democratic recreation of Scanlon's process of reasoning. Such active rejections serve two vital roles in deliberation. The first is to expose malevolence: that people are wilfully acting by norms they cannot justify to others. But the second – what I want to pursue here – is epistemic. When we ask ourselves why someone in a real-life deliberation who is morally motivated might have proposed a principle that was reasonably rejectable, the answer is clear: because he or she did not know it was unreasonable.
I want to develop the proposal that Scanlon's contractualism provides not just a framework for individual moral deliberation, but constitutes a powerful proposal for collective moral deliberation. Recall how this framework operates. When a proposal is advanced, he claims, the first task is to identify whether any participant has a justifiable objection to the proposed principle. If a participant does – if the proposal burdens him or her in a way that alternative arrangements could avoid without burdening another participant more – the proposal must be rejected. In making such a determination, it must also be considered whether the failure to permit this principle would have far worse effects on others; in such a case, those others might respond with objections to the proposed prohibition of the proposed principle (Scanlon, 1998, pp. 202–3).
This idea of a dialectical exchange of considerations that results in a judgement about whether a proposed rejection of a proposed principle is reasonable is also reflected in Scanlon's discussion of generic reasons, or reasons that are grounded in ‘commonly available information about what people have reason to want … in virtue of their situation, characterised in general terms’ (Scanlon, 1998, p. 171).8 It is on the basis of these generic reasons that the proposed rejections of principles are justified – are deemed reasonable rejections. Consider how the process of generalisation transpires. Participant A advances a proposal whose adoption would advance her interest, but believing that it does not unreasonably burden others. Participant B then contends that A's proposal does, in fact, burden B's interests in a manner that an alternative arrangement would not; B then proposes this alternative arrangement. Participant C then objects that the new arrangement is overly burdensome to her, and that a further alternative is available.
Now fill in the example with a very easy and pretty implausible (but conveniently clear) case. Perhaps A proposes that her Catholicism be the religion of the state, thinking that it would allow her to practise her Catholic beliefs easily, and being unaware that there are others who would object strongly; B, a Protestant, responds by suggesting that they generalise the proposal to make Christianity the official religion of the state, so as not to burden B's interests in practising her own sect's faith; and then suppose C, a Buddhist, suggests they generalise the principle further to be a principle of religious freedom, whereby all can exercise their religion of choice. They have now arrived at a principle that no one could reasonably reject, and specifically through the identification of the generic reasons.
The upshot of the idea of generic reasons is that an agent who rejects a proposed principle must explain the burden that the acceptance of such a principle would inflict upon him or her in terms to which all could coherently relate. For example, if a person felt compelled to consume a particular kind of food in accordance with her religious beliefs, and a principle was proposed that would have the consequence of banning the consumption of that food, she would have to explain her plight in mutually comprehensible terms by claiming that a principle forcing someone to sacrifice a core practice endorsed by that person's conscience, in the absence of further evidence that the practice's exercise burdens others in any comparable way, is a reasonably rejectable principle. But in order to endorse her situation as such, I maintain, one would have to comprehend the basic role of the particular food in her religion, and the fact that she actually endorsed it as central to her core beliefs, in order to understand her argument, or to confirm that her particular situation would indeed be protected by the generic value to which she is appealing. Cases of this kind abound from political experience; the justifiability of serving pork in state school cafeterias would never have been considered an issue of justice before some began to question it. In such cases, each side must perform important mental work: the objector must do the work of re-describing her situation under a generic reason, like dietary autonomy or liberty of conscience; and everyone else must realise that the practice in question is correctly protected by the generic reason – even if the practice is one predicated on specific values they do not share, or even that they potentially repudiate in their own lives.
Indeed, it is precisely because the particular claims subsumed under generic reasons are often subject to intense epistemically reasonable disagreement that the process of working out what kinds of claims are or are not covered by generic reasons is particularly onerous. Consider Scanlon's example of a generic reason: privacy. People have many different reasons for favouring privacy, but their underlying normative accounts of its importance vary considerably. Therefore, someone who objects to a situation because it would subject her to shame and humiliation – a conservative Muslim woman in a Western airport forced to undergo a strip search and thereby expose bare skin to passing men, for example – needs to re-describe her needs in mutually comprehensible terms, in generic values. This re-description will be especially important since many Westerners do not object to such strip searches on privacy grounds. They are thus less inclined to see the objection as covered by the generic reason of privacy, and precisely since so many of them disagree reasonably (in the epistemic sense) with the underlying principle that women ought not expose bare skin to passing men. But the re-description is motivated by her aim to find mutually justifiable principles: to find principles that protect her interests within reasonable bounds and are defended in a way that demonstrates their reasonableness by being cast in a general language that all in the moral community can share.
The notion of a generic reason is intuitive to members of liberal cultures, accustomed as we are to conceptual taxonomy – subsuming particular complaints, grievances and claims under general pre-established classificatory categories. But the word ‘pre-established’ does a lot of work here, and it is not obvious in advance of political experience what these pre-established categories are. They need to be worked out through social and political practice. As Nancy Fraser notes, ‘Until quite recently, feminists were in the minority in thinking that domestic violence against women was a matter of common concern and thus a legitimate topic of public discussion’ (Fraser, 1992, p. 129). Examples like these make it difficult to suggest that the identification of generic reasons is a single task to be accomplished once and for all in a single moment of theoretical reflection; after all, when so many philosophers of the past were mistaken in their views on women and race, who is to say what we today are mistaken about? It is more plausible, then, to describe the identification of generic reasons as a process whose conclusions must continually be regarded provisionally. Fittingly, Scanlon explicitly endorses the thesis that the identification of generic reasons is an ongoing process through which moral agents constantly reflect on the particular things that particular people have reason to care about, and the generalised patterns that emerge from reflecting on these things as we consider what limits the contractualist ideal of mutual justifiability places on our pursuit of them.
This constructive discussion of the ‘dynamics’ of Scanlonian reasonable rejection helps us construe the practical instantiation of Scanlon's moral deliberation as a search for moral learning among participants. I say that this is ‘constructive’ because Scanlon does not devote much space to the practical development of moral commitments on the basis of reasoning. But he clearly recognises its importance:
[T]he shaping role of the aim of justifiability to others is a dynamic one. There is no fixed list of ‘morally relevant considerations’ or of reasons that are ‘morally excluded’. The aim of justifiability to others moves us to work out a system of justification that meets its demands, and this leads to a continuing process of revising and refining our conception of the reasons that are relevant and those that are morally excluded in certain contexts … [It] is a continuing process, not a fixed list of results (Scanlon, 1998, pp. 157–8).
Thus Scanlon's contractualist situation constitutes a promising framework for how morally motivated actors can expose one another's moral mistakes and learn from one another in actual political life.
It may seem strange to spend so much energy in an essay on democracy in interpreting the work of T. M. Scanlon, whose work is not addressed to democratic theorists. But aside from the distinctive value of Scanlon's work, Estlund has made this focus necessary. Estlund has, in many eyes, hammered a nail in the coffin of the democracy/contractualism analogy. But this is mistaken: the nail did not reach its target, and the contents of the coffin remain alive. Debunking Estlund's flawed rejection of the DCA is the key to resuscitating it as a serious contender in the ring of candidates for why democracy might have epistemic value.