Hampton, Jean, and . Contracts and Choices: Does Rawls Have a Social Contract Theory?

1980, Journal of Philosophy 77(6): 315-338.

Introduction: In A Theory of Justice John Rawls tells us he is presenting a social contract theory: “My aim,” he writes, “is to present a conception of justice which generalizes and carries to a higher level of abstraction the familiar theory of the social contract as found in say, Locke, Rousseau, and Kant”. And indeed his many and various critics have generally assumed he has a contractarian position and have criticized him on that basis. However, it will be my contention in this paper that a contractual agreement on the two principles not only does not but ought not to occur in the original position, and that, although Rawls uses contract language in his book, there is another procedure outlined in Part One of A Theory of Justice through which the two principles are selected.

Comment: Questions the nature of the Rawlsian contract and asks whether it really belongs in the same tradition as Hobbes, Locke, and Rousseau. Useful if engaging with Rawls's methodology at a deep level. Would make good further reading for a module on either Rawls specifically or the social contract tradition more generally.

Hurd, Heidi, and . The Moral Magic of Consent

1996, Legal Theory 2(2): 121-146.

Abstract: We regularly wield powers that, upon close scrutiny, appear remarkably magical. By sheer exercise of will, we bring into existence things that have never existed before. With but a nod, we effect the disappearance of things that have long served as barriers to the actions of others. And, by mere resolve, we generate things that pose significant obstacles to others’ exercise of liberty. What is the nature of these things that we create and destroy by our mere decision to do so? The answer: the rights and obligations of others. And by what seemingly magical means do we alter these rights and obligations? By making promises and issuing or revoking consent When we make promises, we generate obligations for ourselves, and when we give consent, we create rights for others. Since the rights and obligations that are affected by means of promising and consenting largely define the boundaries of permissible action, our exercise of these seemingly magical powers can significantly affect the lives and liberties of others

Comment: Good introduction to the topic of consent as it makes clear both how strange it is as a power and how pervasive it is in our moral practices. Goes on to provide an interesting argument for consent as a subjective mental state and offers an account of what that might be. Could support a lecture or seminar on consent, or would make good further reading if the topic is only touched on briefly.

Olsaretti, Serena, and . Liberty, Desert and the Market: A Philosophical Study

2004, Cambridge University Press

Abstract: Are inequalities of income created by the free market just? In this book Serena Olsaretti examines two main arguments that justify those inequalities: the first claims that they are just because they are deserved, and the second claims that they are just because they are what free individuals are entitled to. Both these arguments purport to show, in different ways, that giving responsible individuals their due requires that free market inequalities in incomes be allowed. Olsaretti argues, however, that neither argument is successful, and shows that when we examine closely the principle of desert and the notions of liberty and choice invoked by defenders of the free market, it appears that a conception of justice that would accommodate these notions, far from supporting free market inequalities, calls for their elimination. Her book will be of interest to a wide range of readers in political philosophy, political theory and normative economics.

Comment: Attacks libertarian defences of market distributions on the grounds that they are either justified or the result of free choices. Provides a good counterpoint to Nozick's entitlement theory in particular, and draws out important issues on the relationship between choice, voluntariness, and responsibility. Olsaretti's own account of voluntariness, which she develops in the later chapters is hugely influential. Would make good reading for an in-depth treatment of libertarianism and/or Nozick's entitlement theory. Would also provide very substantial further reading.

Olsaretti, Serena, and . Freedom, Force and Choice: Against the Rights-Based Definition of Voluntariness

1998, Journal of Political Philosophy 6(1): 53-78.

Introduction: This paper argues that a moralised definition of voluntariness, alongside the more familiar moralised definition of freedom, underlies libertarian justifications of the unbridled market. Through an analysis of Nozick’s account of voluntary choice, I intend to reveal some fatal mistakes, and to put forward some suggestions regarding what a satisfactory account of voluntary choice requires.

Comment: Offers a number of influential criticisms of Nozickian libertarianism and goes on to lay out the basis for Olsaretti's own influential account of voluntariness. Would make a good required reading or further reading.

Olsaretti, Serena, and . The Concept of Voluntariness – A Reply

2008, Journal of Political Philosophy 16(1): 165-188.

Abstract: In his paper on ‘The Concept of Voluntariness’, Ben Colburn helpfully takes up the task of developing my view about the sense of voluntariness that is relevant for judgments of substantive responsibility, or judgments about individuals’ liability to pick up some costs of their choices. On my view, a necessary condition for holding people responsible for their choices is that those choices be voluntary in the sense that they are not made because there is no acceptable alternative, where the standard for the acceptability of options is an objective standard of well-being. […] Colburn’s first point is entirely well-taken. By way of endorsing it, I ask whether we are justified in taking some but not all kinds of beliefs to affect the voluntariness of choice, as his elaboration of my view suggests. However, I find Colburn’s second point less convincing, and argue that we should allow for the moral character of options to affect the voluntariness of choice.

Comment: Short debate article responding to some criticisms of Olsaretti's account of voluntariness made by Ben Colburn and probably best read in conjunction with Colburn's article. Does a good job of responding to the criticisms and explaining her account. Good further reading for teaching about voluntariness and autonomy.

Seavilleklein, Victoria, and . Challenging the Rhetoric of Choice in Prenatal Screening

2009, Bioethics 23(1): 68-77.

Abstract: Prenatal screening, consisting of maternal serum screening and nuchal translucency screening, is on the verge of expansion, both by being offered to more pregnant women and by screening for more conditions. The Society of Obstetricians and Gynaecologists of Canada and the American College of Obstetricians and Gynecologists have each recently recommended that screening be extended to all pregnant women regardless of age, disease history, or risk status. This screening is commonly justified by appeal to the value of autonomy, or women’s choice. In this paper, I critically examine the value of autonomy in the context of prenatal screening to determine whether it justifies the routine offer of screening and the expansion of screening services. I argue that in the vast majority of cases the option of prenatal screening does not promote or protect women’s autonomy. Both a narrow conception of choice as informed consent and a broad conception of choice as relational reveal difficulties in achieving adequate standards of free informed choice. While there are reasons to worry that women’s autonomy is not being protected or promoted within the limited scope of current practice, we should hesitate before normalizing it as part of standard prenatal care for all.

Comment: The text introduces the notion of relational autonomy and argues that an increase in pre-natal screening can in fact act so as to restrict the autonomy of pregnant women. It is best used in teaching applied ethics modules on procreation and autonomy, and as a further reading offering a critique of approaches which do not take into account contextual features of particular situations in their moral assessment.

Stemplowska, Zofia, and . Rescuing Luck Egalitarianism

2013, Journal of Social Philosophy 44(4): 402-419.

Introduction: There was once a luck egalitarian school of thought, according to which disadvantage arising due to bad luck was unjust—at the bar of egalitarian justice—while disadvantage arising due to choice was just, at least if the choice was exercised against the background of equal options. “Choice” in this context needed to be “genuine choice”—which, for some, meant “voluntary,” and for others, also “freely willed”—but if it was genuine, then it did not matter whether it was a silly mistake or a considered course of action: if it led to disadvantage, its presence was deemed sufficient to justify leaving the agent to bear the disadvantage. Let’s call the view that choice leading to disadvantage is sufficient to justify the disadvantage, at least if choice was exercised against the background of equal options, the inflated view of choice. […] The inflated view was so crude that in the face of criticism pointing out its crudeness, its supporters have adopted more sophisticated views, and no recent luck egalitarian has defended the crude version. These more sophisticated views recognize that the mere fact that an outcome has been chosen does not make the outcome just—not even by the standards of egalitarian justice alone.

In what follows, I will argue that this dominant reading of early luck egalitarianism as committed to the inflated view is, at best, a one-sided interpretation of the iconic writings of the luck egalitarian literature advanced by its most famous proponents, namely Arneson, Cohen, and Dworkin. Their writings did not unambiguously point toward the inflated view; if the early texts were interpreted more charitably, we could have, perhaps, avoided associating luck egalitarianism with the inflated view, arriving immediately at the sophisticated versions of luck egalitarianism dominating the field today.

Comment: Defends luck egalitarianism in general, and the originators of the view in particular, from the common criticism that it is committed to the 'inflated view of choice' which generates unpalatable conclusions because it leaves people who have made choices to bear all the consequences of those choices. Would make good further reading for anyone working on this topic.