Orthodox contractualists and rule consequentialists think that, for any action, the consequences of everyone performing that action determine whether that action is permissible. For them, “what if everyone did that?” is the fundamental moral question. By making “what if everyone did that?” the fundamental question of good moral reasoning, these moral theories can easily justify prohibitions on free-riding. But it also makes them face the ideal world problem. I argue that it was a mistake for moral theorists to generalize from an objection appropriate to cases of free-riding to all of morality. In short, we should understand the question “what if everyone did that?” to give expression to one, and only one, kind of objection to one’s action—namely, that, by performing that action, one would be making an exception of oneself. If we limit the scope of “what if everyone did that?” in this way, we can justify prohibitions on free-riding while avoiding the ideal world problem.

In the recent history of private law theory, the task of restoring interpersonal justice to a position of chief importance has been undertaken by those who draw from the wellsprings of Kantian philosophy. But in defining the domain of interpersonal justice, Kantians have also narrowly confined it. In this article I offer a post-Kantian approach, taking reference from a method well established in political and moral philosophy, but yet to make a comprehensive impact on private law: contractualism. Contractualism anchors what we owe each other in the notion of interpersonal justification, offering a fresh understanding of persons, nexuses and relational reasoning. I show how this approach tackles key questions in private law – its institutions of empowerment, primary entitlements, remedial norms and practices, and the division of labour between public and private spheres – in a manner preferable to Kantian theory.

This paper focuses on the epistemic significance of disagreement for a specific kind of contractualist (not contractarian) moral theory. I argue that a purely hypothetical version of contractualism excludes a prima facie attractive conciliationist view of disagreement simply because of the way it constructs the moral point of view. There is no room, in such an approach, for rational, hypothetical peer disagreement within the monological deliberative procedure itself. Attempts to supplement this monological procedure with a kind of post hoc appeal to actual disagreement undermine the basic rationale for adopting a hypothetical approach in the first place. An actual agreement approach to contractualism, by contrast, is well-positioned to take disagreement seriously. For such an approach, moral disagreement signals a failure to fully validate or constitute a binding norm, one that may produce – rather than merely result from – genuine moral indeterminacy. Furthermore, as each of our positions within contractualist discourse reflects a defeasible conviction about what could be the subject of genuine, intersubjective agreement among all affected, when we encounter disagreement that is not subject to clear defeaters, we do indeed have grounds to think our convictions may be mistaken, or that we must modify our credences in ways that reflect the risks we consciously run in defending and acting on convictions that do not enjoy justificatory completion.

This article examines the relationship between relationality and policy in tort law from an evolutionary perspective. While, as part of the regulatory system, tort law must evolve in response to structural and allocative policy concerns, its ability to do so is limited by the relational normative structure through which it operates and claims moral authority. This tension is often obscured in mainstream tort theory. Drawing on contractualist philosophy—which traces the implications of mutual recognition and respect across structural, allocative, and relational normative contexts—the article develops a principled reasoning framework that avoids rigid hierarchies and ad hoc balancing: negative policy reasons not to adopt tort norms take precedence in choices of regulatory regimes, while positive policy reasons must be diluted and integrated with relational reasons to shape the content of tort norms. This normative framework illuminates tort law’s ability to respond to complex normative challenges while retaining its integrity and unique value as a regulatory tool.

Public health emergencies sometimes require the restriction of civil liberties through social distancing: lockdowns, quarantines, the closure of public spaces and institutions, and so on. Social distancing measures can decrease mortality and morbidity, but they also cause social and economic harm. Policymakers have to make trade-offs between “lives and livelihoods,” while introducing only minimally necessary restrictions on civil liberties. Traditionally, cost-benefit analysis has played a central role in formulating these trade-offs. Recently, however, some philosophers have argued that the trade-offs should instead be made on the basis of contractualist moral theory. In this essay, I argue against the use of contractualism for this purpose.

We present a novel theory of moral cognition organized around resource-rational contractualism. From a contractualist perspective, ideal moral judgments are those that would be agreed to by rational bargaining agents—an idea with widespread support in philosophy, psychology, economics, biology, and cultural evolution. As a practical matter, however, investing time and effort in negotiating every interpersonal interaction is unfeasible. Instead, we propose, people use abstractions and heuristics to efficiently identify mutually beneficial arrangements. We argue that many well-studied elements of our moral minds, such as reasoning about others’ utilities (“consequentialist” reasoning) or evaluating intrinsic ethical properties of certain actions (“deontological” reasoning), can be naturally understood as resource-rational approximations of a contractualist ideal.

The Excessive Deficit Procedure (EDP) is a political mechanism that aims at ‘multilevel governance’ of state indebtedness in the European Union. As such, it has become the concern of research that asks how sovereignty becomes articulated in this process. This article approaches this question through the conceptualization of a modular notion of sovereignty elaborated through a discussion of work on the finance-security nexus. The article argues that existing accounts of the formation of sovereign power in relation to state debt can be combined into a notion of modular sovereignty when seen through the prism of critiques of contractualism that take issue with liberal notions of state sovereignty and credit security. This way, the indebted state becomes visible as the referent object of multiple, and potentially contradictory, invocations of sovereignty as exercised in the EDP. First, it figures as the seat of budget sovereignty, holding its social substrate liable for its debts while ignoring inequalities in that substrate. Second, it is appealed to, within a biopolitical rationality, as the sovereign guarantor of the financial wellbeing of its population. Third, it is seen as the executor of financial wisdom that is mobilized in struggles between different levels of financial governance in the EDP.

Part of T. M. Scanlon’s project in What We Owe to Each Other (1998) is to explain the importance and priority of moral reasons. But Scanlon also argues that this priority of moral reasons is compatible with the pursuit of other things we value, such as friendship. To this end, Scanlon claims that contractualist moral reasons internally accommodate our interests in such values. In this paper, I argue that Scanlon is unsuccessful in showing the compatibility of morality and the pursuit of our other values. The contractualist may not be able to be a good friend.

Both international humanitarian law (IHL) and international human rights law (IHRL) make extensive references to humanity. Yet the role attributed to humanity differs between the two. Humanity is seen in IHRL as the source of the rights, whereas in IHL it is interpreted as a moral obligation to avoid harm. This article challenges this perspective. Relying upon contemporary interpretations of IHL, it will be argued that, in a moral sense, IHL matches up closely with IHRL. Crucial here is that humanity, rather than reflect a utilitarian perspective to avoid harm, is worded in stronger terms. To reflect this accurately, it is argued that IHL is best seen as a reflection of TM Scanlon's contractualism as opposed to utilitarian reasoning. Relying upon the similarities in moral reasoning visible in both bodies of law, the article argues that this should also be reflected when it comes to redress for violations. In a concrete sense, the argument here is that this also presents a moral requirement to recognise individual claims within IHL. To give legal effect to this moral demand, it is suggested that IHRL might play a role in bridging the gap between the moral and legal considerations in IHL.

Defence procurement is a notoriously difficult and often controversial field of public management. In Australia, problems with schedule and budget overruns have been addressed through business process reforms aimed at tightening control and improving professionalism. However, studies of complex contracting in other contexts show the importance of relational factors of trust, collaboration and risk-sharing. These factors are not encouraged by the predominantly transactionally based contractual environment of Defence. Based on a detailed examination of three case studies, we suggest that there is a disjunct between the types of controls that are applied by Defence and the requirements of delivering complex, long-term projects involving multiple stakeholders. The need for both improved flexibility as well as heightened accountability is evident. We argue that balancing these values involves processes that encourage, rather than discourage, communication, risk-sharing and trust.

This article reviews and criticizes Joseph Heath’s market failures approach (MFA) to business ethics. Our criticism is organized into three sections. First, we argue that, even under the ideal assumptions of perfect competition, when markets generate Pareto-efficient distributions, Heath’s approach does not rule out significant harms. Second, we show that, under nonideal conditions, the MFA is either too demanding, if efficiency is to be attained, or not sufficiently demanding, if the goal of Pareto efficiency is abandoned. Finally, we argue that Heath’s appeal to regulations and specific moral requirements as a remedy for market failures is unlikely to safeguard efficiency and exposes a number of general worries regarding the moral force of the MFA. We end this article with a constructive suggestion on how to adjust the MFA to avoid these problems while preserving its contractualist and Paretian spirit.

Social networking services provide services in return for rights to commercialize users’ personal data. We argue that what makes this transaction permissible is not users’ autonomous consent but the provision of sufficiently valuable opportunities to exchange data for services. We argue that the value of these opportunities should be assessed for both (a) a range of users with different decision-making abilities and (b) third parties. We conclude that regulation should shift from aiming to ensure autonomous consent towards ensuring that users face options that they will use to advance individual and common interests.