Journal of Applied Ethics and Philosophy
Editor-in-Chief:
Takahiko Nitta
Center for Applied Ethics and Philosophy, Hokkaido University, Japan
Editors:
Tomoyuki Yamada, Hokkaido University, Japan
Nobuo Kurata, Hokkaido University, Japan
Shunzo Majima, Hokkaido University, Japan
International Editorial Board:
Ruth Chadwick, Cardiff University, UK; Peter Danielson, University of British Colombia, Canada; Michael
Davis, Illinois Institute of Technology, USA; Asa Kasher, Tel Aviv University and IDF Military Colleges,
Israel; Lee Shui Chuen, National Central University, ROC (Taiwan); Andrew Light, George Mason
University, USA; Seumas Miller, Australian National University and Charles Sturt University, Australia; Toni
Rønnow-Rasmussen, Lund University, Sweden; Peter Schaber, University of Zürich, Switzerland© 2009 Center for Applied Ethics and Philosophy, Hokkaido University.

Printed in Japan
ISSN 1883 0129 (Print)
ISSN 1884 0590 (Online)
All queries should be directed to:
The Editor
Center for Applied Ethics and Philosophy
Graduate School of Letters
Hokkaido University
N10 W7, Kita-ku
Sapporo 060-0810
Japan
caep@let.hokudai.ac.jp

CONTENTS
What is ‘Applied’ in Applied Ethics?― ―――――――――――――――――――――――――――――――― 1
Ruth Chadwick

Fourteen Kinds of Social Contract――――――――――――――――――――――――――――――――――― 8Michael Davis

Political Patriotism― ―――――――――――――――――――――――――――――――――――――――――――― 20
Stan van Hooft

Principles of Paternalism――――――――――――――――――――――――――――――――――――――――――30
Simon Clarke

What Do You Mean I Should Take Responsibility for My Own Ill Health?― ―――39
Nicole A Vincent

ii

Editorial Note

Editorial Note
The Journal of Applied Ethics and Philosophy is aninterdisciplinary periodical covering diverse areas ofapplied ethics. It is the official journal of the Center
for Applied Ethics and Philosophy (CAEP), Hokkaido
University. The aim of The Journal of Applied Ethics
and Philosophy is to contribute to a better understandingof ethical issues by promoting research into various
areas of applied ethics and philosophy, and by providing
researchers, scholars and students with a forum for
dialogue and discussion on ethical issues raised incontemporary society.

The journal welcomes papers from scholars anddisciplines traditionally and newly associated with thestudy of applied ethics and philosophy, as well as papers
from those in related disciplines or fields of inquiry.
Earlier versions of the papers by Ruth Chadwick, Stanvan Hooft, Simon Clarke and Nicole Vincent publishedin this present volume of The Journal of Applied Ethics
and Philosophy were delivered at the Second and Third
International Conferences on Applied Ethics held in
November 2007 and 2008, organised by CAEP.

Takahiko Nitta
Editor-in-Chief

Journal of Applied Ethics and Philosophy     Vol. 1What is ‘Applied’ in Applied Ethics?
Ruth Chadwick
Cardiff University, UK

Abstract
The use of the term ‘applied’ in ‘applied ethics’ suggests that there is something to apply. A
model of applied ethics which depends on the application of theory, however, has attracted
considerable criticism, including the issues around the notion of ethical expertise. The
question arises as to whether other models of applied ethics can avoid such criticisms, such as
contextualist and particularist approaches, or the development of ethical ‘tools’. It is argued that
one of the primary tasks of applied ethics is to identify the ethical dimensions of a situation,
but however an issue is ‘framed’, it is important to be sensitive not only to the frame but towhat might be left outside of it. To achieve this collaboration between different disciplines isdesirable.
Key words: applied ethics, theory and anti-theory ethical expertise, multidisciplinarity

What is now known as applied ethics, however, came toprominence as a field of study in the last quarter of thetwentieth century, after a period in which the prevailingview, among philosophers in the Anglo-American
tradition at least, was that philosophy could not usefully
be applied to practical problems. Instead, during thefirst half of the twentieth century ethics was often
rejected as emotive and non-cognitive in character or,in an effort to contribute to progressive clarity in moral
discussions, philosophy devoted itself to metaethics
or the analysis of ethical language. The importance of
applied ethics first came to the forefront in a medical
context, where expanding commitments to human rights
and developments in technology gave rise to challenging
ethical issues related, for example, to the allocation of
scarce resources such as kidney dialysis machines, theuse of heart-lung devices, and organ transplantation
protocols. Questions such as the extent to which healthcare professionals should intervene to extend life, alongwith the definitions of life and death themselves, became
extensively debated in a new field called bioethics,
defined as the study of the ethical, legal, social andphilosophical issues arising from advances in medicine
and the life sciences.

It is not clear, however, that this phenomenon should
be described as a ‘turn’ to applied ethics, rather thana ‘return’. While applied ethics may appear to be a
relatively recent development, serious philosophy has
always had its applications. Since the time of Plato,philosophers have been concerned with problems ofliving in the real world. Plato’s Republic, for instance,
concerned as it was with the nature of justice, discussed
inescapable questions relevant to how one should live.
David Armstrong has written that “It is only by inventing(my emphasis) a history going back to Hippocrates thatbioethics can demonstrate its universal and timelesstruths” (Armstrong 2006). This claim, I would suggest,
conflates two different things – the longevity of certain
issues is one thing: that of kinds of approach is another.
Approaches do change, not only with time but also withplace, and this should not be a matter of surprise orregret.

The Scope of Applied Ethics
Applied ethics, is, of course, by no means confined tobioethics. Indeed, in its many iterations since the mid-

1970s applied ethics has included the discussion of suchdiverse non-biomedical issues as capital punishment,
economic development, free speech, human rights,
pornography, poverty, social discrimination, and war.
Applied ethical issues arise in any area of life where theinterests of individuals or groups conflict, including notjust national groups but even the interests of different
species. Thus, to highlight areas especially relevant toscience and technology, along with analyses of nuclear
weapons and deterrence strategies, environmental ethics
has acquired increasing importance as a reflection on the
moral limits of industrial development and pollution.
Agricultural ethics, computer ethics, and media ethics
might be cited as still other examples. Food ethics is an
expanding field concerned with obesity, personalised
diet, and the production and distribution of food aswell as its genetic modification (thus overlapping with
agricultural and environmental ethics while at the sametime opening up new areas and issues). Ethics in relation
to computing and IT has raised the issue of whether
there are new ethical questions to be answered, or justnew versions of old questions. Arguably the creationof new entities such as websites, along with new formsof human interaction such as social network sites, giverise to a unique set of issues, including issues of scale
relating for example to the power of IT to transform
social institutions (see Johnson 2001). In addition, newtechniques of surveillance are leading to the recognitionof a need for rethinking in relation to concepts of privacy.
Developments in the life sciences and related
technologies, in the wake of the Human Genome Project,for example, have also challenged the boundaries ofour ethical thinking (Knoppers and Chadwick 2005).
The relevant ethical questions include, however, notonly external governance of science, but also ethics ofscientists (and engineers) ‘internal’ to the professions.
Issues include the responsibilities of scientists withregard to setting the research agenda, the conduct of
research, the use of the results, and communication
with different sections of the public and with potential
users. The move from programmes of promoting public
understanding towards public engagement in science andtechnology has led to debates about how upstream in
the research and development process such engagement
should be. Is there a role for public involvement indeciding what research is carried out, or should therole of the public be limited to discussing the impact of
research on society? The increasing commercialisationof science and the changing social context in whichscientists operate, overlap with business ethics, including
questions about conflicts of interest; the pressures ofcommercialisation on the setting of research priorities;
sharing of the benefits of the outcomes of research; andthe question as to whether there are some things (e.g.
living organisms) that should not be commercialised, andWhat is ‘Applied’ in Applied Ethics?    Ruth Chadwick

which should therefore be outside the patenting system.
Seen in this light, questions about the social value ofscience become particularly urgent (Chadwick 2005).
Professional engineers have developed explicit codesof ethics to guide their technical conduct. These now
generally emphasise responsibilities to protect public
safety, health, and welfare, as well as to promote theprofession, protect confidentiality, and avoid conflictsof interest. Engineers may be confronted with situationsof conflict, for example where one safety concern has tobe traded against another, or where concern for public
safety is in tension with protection of confidentiality or
the interests of the organisation (see Davis 1991). There
may also be difficult situations of different standards
applicable in different countries, where international
projects are concerned.

Models of Applied Ethics
It is clear, then, that there are issues to be addressed –but what, exactly, is to be applied? There are different
models concerning what is involved in applied ethics.
It is tempting to think that in order for ethics to be
applied, there must be something such as a theory toapply, which is indeed one possible model of applied
ethics. The fruits of theory approach depends on theview that in applied ethics some theory is applied, but
admits a variety of possible theories (Brown 1987).
Brown characterises the fruits of theory approach in
the thesis that “Applied ethics is application of ethicaltheory”. This is to be distinguished from the ‘engineering’approach (cf. Caplan 1983), which holds that there is
one particular theory which can be drawn upon to apply
to practical problems as and when they occur (Brown
1987) and which will produce answers as a result of thisapplication. As agreement is lacking on any one theory,
the engineering approach has relatively few adherents,
but the fruits of theory approach – that applied ethics
must involve application of some ethical theory - remains
one popular conception of applied ethics.
Contemporary applied ethics, in so far as it is anapplication of theory, relies to a large extent on ethicaltheories which take their starting point in the eighteenth
and nineteenth centuries: deontology and utilitarianism.
Deontological ethics draws on the thought of ImmanuelKant in a tradition that stresses respect for persons andnotions of human rights and dignity, without necessarily
being a strict application of Kant’s own philosophy.
Similarly, utilitarian ethics as it is employed today rarely
attempts to reproduce the thought of Jeremy Bentham orJohn Stuart Mill as such.
An alternative to applying high-level theory is
the deployment of mid-level principles as found in
Beauchamp and Childress’ influential text, Principles ofJournal of Applied Ethics and Philosophy     Vol. 1

Biomedical Ethics (2008). Mid-level principles are said
both to be in accordance with the ‘common morality’and to be reconcilable with different underlying theories.
This in part explains their appeal. The notion of thecommon morality on which the approach depends has
nevertheless been questioned: common to whom? The‘four principles’ in Beauchamp and Childress include
autonomy, beneficence, non-maleficence, and justice.
Thus autonomy, for example, can be supported bothfrom a Kantian and a utilitarian point of view, although
the interpretation of autonomy will be different in eachcase. Utilitarian ethics portrays the agent as choosing
to maximise his or her utility, while the Kantian moral
agent’s exercise of autonomy is in accordance with what
is right, rather than a pursuit of the good.
The four principles have been regarded by someof their advocates as forming the basis of a ‘global
bioethics’ in that they represent values that can besupported by anyone, although they may be so fordifferent reasons. In an era of globalisation, the extent towhich ethics can be harmonised has moved centre stage,at least as far as pragmatic guidelines are concerned,e.g., for research. People from very different cultures
might support autonomy and justice, although they mightmean very different things in different contexts. The
transferability of the four principles to different culturalcontexts has however been subject to challenge, as
has the priority commonly accorded to the principle ofautonomy (see Holm 1998). It is important to note thatthe application of the four principles does not represent
the application of a theory as such: they represent a
useful framework for highlighting the moral dimensionsof a situation, but a great deal of work is required inthinking about prioritising, balancing, and specifying
them.
Even within the fruits of theory model, including
Kantianism, utilitarianism and principlism, there is
criticism of the degree of abstraction which they exhibit.
Other models thus attempt to take a more contextual
and relational approach (e.g. Alderson 1991), leading to
criticism also of the universalism as found in documents
such as the Universal Declaration of Bioethics andHuman Rights (Rawlinson and Donchin 2005). Feminist
ethics, for example, critically examines issues of power,
and assesses issues from the perspective of the more
vulnerable party. In discussions of the abortion issue, forexample, or of reproductive technology, feminist ethics
will not in an abstract way discuss the status of the fetus
or the right to life, nor does it operate with the ideal(which might be regarded as prominent in several otherapproaches) of the abstract autonomous individual; rather
it will look at the position of the woman who has to carry
the fetus or who has to undergo assisted reproductive
techniques, and the ways in which power relations insociety have an impact on options and decision-making.

It is thus not only the individual case that is at stake the distribution of power in the wider social context is
important.
Feminist ethics has some characteristics in common
with virtue ethics, which, rather than trying to apply
principles, asks what traits of character should be
developed, and what a person who has the virtues would
do in particular situations. The virtuous person is one
who, because he or she has the virtues, can see what is
appropriate in particular cases (cf. Statman 1997; Banksand Gallagher 2008).
A problem with the fruits of theory approach,over and above the fact that there is considerable andapparently irresolvable disagreement about the theories
themselves, is that the model presupposes that there is aclear understanding, or agreed description, of what thetheory in question should be applied to. Arguably a priortask of applied ethics is to elucidate what the ethicalissues are and there is a concern, especially in ethics asapplied to the professions, that those working in the field
will uncritically accept problems defined in a particularway (see e.g. O’Neill 1986). Contemporary debates
about ethical aspects of developments in science andtechnology frequently focus on issues such as informed
consent, safety and risk, privacy and security, conflict ofinterest, and professional responsibility. It is important
to ask if significant matters of ethical concern are
overlooked, such as the factors that influence the choiceof areas of research.
In the light of considerations such as this, and also
disagreements between different theories, antitheorists
argue the desirability of doing applied ethics without
theory. One way in which this finds expression is in
judgment about particular cases. Particularism objects
to the search for universally applicable principles on the
grounds that what counts as a reason in one case may not
be so in another (Dancy 2004) The approach of casuistry
starts from cases and principles (analogous to case law),and emerges from these, rather than being developed in
the abstract and applied from above (Jonsen and Toulmin1988). Specific developments and particular cases may
affect the development of appropriate theory, and someargue that there is room for a bottom-up rather than a
top-down approach.
One may thus distinguish a number of general models
for doing applied ethics: theory application, mid-level
principle application, feminist contextualism, virtue
contextualism, and case-based casuistry. The first two
apply some form of theory and may be described as topdown models; the middle two are more concerned toapply traditions of reflection that emphasise context;
the last is a very bottom-up model that applies one
case to another. In regard to issues related to scienceand technology, top-down models are perhaps morecommon, with much of the literature in biomedical orcomputer ethics tending to illustrate this model. Context
models exercise a stronger role in discussions of the
responsibilities of professionals. Casuistry is no doubt
the least common approach to doing ethics in scienceand technology, in part because many of the ethicalproblems associated with science and technology are so
unprecedented that argument by case analogy is a stretch.

Challenges
Against all models of applied ethics certain challenges
remain. One focus of concern is the notion of the ethical“expert”. What might be meant by ethical expertise isproblematic and this issue has become a high profile
one as applied ethics has become increasingly involved
or even institutionalised in public policy. There is
scepticism regarding whether any one group of people
have privileged access to the truth about what ought tobe done – although insofar as applied ethics admits aplurality of legitimate approaches, this criticism can bemoderated.
This issue is not, therefore, unconnected with thatof the models of applied ethics being practiced. On the
fruits of theory model, one concern is that principles
developed in one field of expertise, such as Philosophy,
are (mistakenly) applied to another area of activity, suchas the health care professions (see e.g. MacIntyre 1984).
There are questions here about whether it is possible ordesirable for principles to be developed externally rather
than internally to the profession in question.
Are there alternative notions of expertise that might
be available (Parker 1994)? One possibility is thatexpertise in ethics involves familiarity with a rangeof views, skills in reasoning, and argumentation, andan ability to facilitate debate. Philosophical reasoning
skill is prioritised. Insofar as this is the case, applied
ethics expertise could be committed to a kind of ethicalpluralism. In applying ethics to particular issues,
discussions from more than one perspective are to bepreferred to discussions from only one perspective.
For some, however, this liberal approach constitutes akind of relativism. There are still questions about theidentification of the ethical problems about which suchreasoning is required: about whether this is a matterfor particular professional groups or whether they canbe identified from outside by ethical experts. It may be
the case that this is not a situation in which an either/or
approach is desirable, but that it should be a collaborative
venture. Thus policy making on science needs to include
the perspectives of both science and ethics so that
greater insight can be achieved through dialogue. It isessential that ethics in this area is scientifically informed
but it is also the task of ethics to question assumptions
about aspects of science that may raise issues of ethicalWhat is ‘Applied’ in Applied Ethics?    Ruth Chadwick

importance but which may have been overlooked.
A more radical objection to the notion of expertisecomes from those who see applied ethics, and inparticular bioethics, as an assertion of power on thepart of a certain group. Bioethicists themselves, fromthis perspective, arguably form a powerful professionalgroup who have been very successful in attracting large
amounts of funding for their research and who haveacquired seats at the policy table. Bioethics can thenbe seen, not as a field of study, but as a site of struggle
between different groups, where philosophers, forexample, claim to have a special role. In addition tothese challenges to applied ethics in general, however,there are particular issues about the relationship between
ethics, on the one hand, and developments in science andtechnology, on the other.

Science and Technology
The assessment of science and technologies is mademore problematic by the ways they extend the reach ofhuman power across ever wider spatial and temporalscales (Jonas 1982). The revolutionary power of IT, forexample, has already been mentioned. Precisely because
science and technology were traditionally limited in theextent to which they could know the world and transformit, issues of scientific and technological ethics seemed
marginal in relation to ethical reflection on politics andeconomics, in which contexts human behaviour could
have much larger impacts on other human beings. But
in the contemporary world politics and economics havethemselves been transformed by science and technology- and science and technology challenge ethics itself.
These considerations lend weight to the view that over
and above the assessment of individual technologies,
there is a need for attention to technology’s overall
impact on the human condition. This is more apparent incontinental philosophy than in Anglo-American applied
ethics (Mitcham and Nissenbaum 1998).
Even within the Anglo-American tradition,
however, there are special challenges: first there is
rapid development not only in science and technology
themselves but also in the opportunities and potential
for use (and, increasingly, the potential for dualuse). The speed of change requires a similarly swift
response on the part of society in terms of ethics, policy
and legislation. It is frequently argued that ethicaldeliberation comes too late, although in the case of the
Human Genome Project ethical research was fundedalongside the science. The difficulties posed by the
speed of change are further complicated by the factthat the development of technologies arguably posechallenges for ethical frameworks themselves. In otherwords, we can no longer continue to think in ways that

Journal of Applied Ethics and Philosophy     Vol. 1

were once comfortable. This is not just a point about
how attitudes do change: certain ways of thinking turnout to be no longer thinkable. This is because newtechnologies push ethical frameworks to the limits sothat their application is at best uncertain. So even for
those who subscribe to a ‘fruits of theory’ approach, it istherefore not simply a matter of ‘applying’ ready-madetheories to the possible implementation of technologicaladvance – developments in the life sciences and othertechnologies can lead us to rethink theories and evenconcepts. Ethical theories emerge in particular social andhistorical contexts, so why should we assume that they
can automatically apply in other contexts? Thus there has
been much discussion about genetic exceptionalism andthe extent to which genetics requires rethinking of ethicaldoctrines such as the importance of confidentiality, since
blood relatives have an interest in genetic information
about those to whom they are related. The thesis ofgenetic exceptionalism is, however, hotly contested
by arguments that genetic information is not different
in kind, only in degree, from other kinds of medical
information.
Whatever model of applied ethics is preferred, there
are questions that inevitably arise. Developments inscience and technology give rise to different sorts ofquestions for applied ethics. The first concerns whatshould be done about the new possibilities with which weare presented, such as whether or not it is desirable to try
to extend the normal human lifespan by, say, fifty years.
There is a question here about where the burden of proof
should lie: some argue, in relation to such possibilitiesof human ‘enhancement’, that the onus is on those whowant to prevent such developments from occurring.
Either way, these possibilities need to be considered in
the light of the social and political context. For example,
in so far as new technologies have the potential to offer
benefits, what are the issues of equity of access andconcerning the sharing of the benefits between different
population groups? Analogous questions apply toconsideration of the distribution of any attendant burdens
or disadvantages.
When new developments occur, they not uncommonly
give rise to anxieties about possible consequences,and these anxieties find expression in some commonlyused arguments that are not always easily identifiablewith any particular theory. In part, this may arise fromprevious experiences of things going badly wrong.
However, anxiety may arise precisely because there is
no experience on which to draw. In other words, what isfeared is the unknown. Even then, however, there may
be an appeal to experience of things going seriously
wrong in other fields when human beings ‘go too far’.
The response to certain developments, conceptualised
as the crossing of limits or boundaries that should not becrossed, may be at least in part an expression of such aview. The playing God objection to new developments
is frequently voiced in arguments about science andtechnology. It is not always clear what the objection
amounts to or how seriously it should be taken: it may
rely on a sense of the ‘natural’ or ‘fitting’. In so far as
it points to undesirable consequences of the exercise of
new powers, however, it may suggest caution. Advocatesof caution sometimes deploy the precautionary principle,
which has been used by a number of policy-making
bodies. Slippery slope arguments are also frequently
used in arguments about taking new steps – and typicallyenvisage something unpleasant at the bottom of the slope(for example, scenarios of mass reproductive cloning).
At a deeper level, new developments lead tochallenges concerning our interpretation of the very
concepts at stake. New technologies can lead to a newunderstanding of concepts such as life, death, health anddisease. In the postgenomic era, one of the purported
outcomes of pharmacogenomics, for example, is that
it will lead to different disease classifications as we areable to rely less on symptoms and more on explanationsof underlying mechanisms. The way we think about ouridentities as individuals and as members of groups may
also be affected, as information is forthcoming about
ways in which we are related, genetically speaking, toeach other and to other species.
What is particularly challenging for applied ethics,
however, is the way new technologies may lead toreconsideration of our ethical concepts. Autonomy, forexample, is a concept that is the focus of considerable
discussion. There are different aspects to the debate,
including the issue of cultural specificity, the criticism
of individualism, and the attempt to produce a relational
interpretation, as in some feminist work in bioethics.
Privacy is coming under threat from a variety of
directions: surveillance technologies, interoperabilityof databases and data mining, and whole genome
sequencing (Lunshof et al 2008).

Ethical Tools
In the light of the multiplicity of approaches in applied
ethics (see Chadwick and Schroeder, 2001), some ofthose working in the field have tried to identify ethical‘tools’ to assist in the identification of the ethicaldimensions of a situation and which reflect the variety of
the field. An example of this would be the ethical matrix
developed by Ben Mepham in the context of food ethics(1996). The matrix does not apply a theory as such but
borrows from the Beauchamp and Childress principles
of biomedical ethics. It seeks to provide a structured wayof identifying the interest groups affected by a given
new development and assesses the ways in which they
will be affected in a number of dimensions: autonomyand rights; well-being; and justice or fairness. It does
not purport to be a decision procedure that will produce
answers (as in the engineering model) but a useful tool toassist deliberation.

So What is to Be Done?
Although the debates about the relative merits of theory
and anti-theory continue, along with arguments about
the nature of expertise, if such exists, what cannot be
doubted is that there are questions to be addressed.
To find a solution it is necessary to discuss the proper
relationship between empirical social science and ethicaltheory: just as there are questions about the relationshipbetween science and technology and ethical theory, there
are analogous questions here, such as the ways in which
the so-called ‘common morality’, on which principlism,
for example, draws, is to be described. Applied ethics
requires collaboration, not only between philosophersand professionals, but also between different academic
disciplines. The question is, how are they to collaborate?
(cf. Arnason 2005).
The repertoire of philosophical theoretical approaches
is very diverse, and yet applied ethics may sometimes
be regarded as privileging certain ways of framing theissues.
What has to be borne in mind is that these issues
constitute lively debates within the field. As the following
quotation, from the Bioethics literature, shows, there arevoices in Bioethics who are pointing to two challenges
that need to be addressed:
how to shift the locus of bioethical dialogue tobring to the foreground implicit assumptions thatframe central issues and determine whose voices
are to be heard and how to sharpen the vision of a
global bioethics to include the perspectives of themarginalized as well as the privileged (Donchin
and Diniz 2001, iv).
The point about ‘framing’ in the above quotation isimportant. Any theoretical approach ‘frames’ the issues
in a particular way, drawing attention to what the ‘framer’considers to be the salient points of a situation. Suchapproaches, however, can be blind to other concerns –for example those anxieties that members of the public
may have, whether or not they are key stakeholders insome specific issue e.g. by virtue of being a member of apatient organisation.
Any purported resolution of an ethical issue depends
on some theoretical presuppositions. The above analysis
suggests that it is important to have regard to whatframe is being imposed. Thus three things at least arenecessary:

What is ‘Applied’ in Applied Ethics?    Ruth Chadwick(1) the identification of the ethical dimensions ofsituations(2) decisions about what to do(3) awareness of limitations of the frame andopenness to revisiting it
Philosophers and social scientists have complementaryroles to play. For example, in (1) there is a need for both
empirical research and conceptual analysis. It is not
simply a matter of empirical research providing datafor philosophers to think about. Empirical research can
map changes in concepts, and expose the limitations ofcertain forms of argument in particular contexts, as wellas providing information about ‘public attitudes’. Thereneeds to be negotiation about the nature of the problem
being addressed and identification of areas of possible
conflict of interest.
Decisions about what to do depend upon reasons,whether these are regarded as particular or universal –they emerge in the light of the framing of the problem,
even if it is not a straightforward application of aprinciple. Ethical tools also have their role – they offer
systematic ways of looking at different possible frames,
and may also help the process of ongoing interrogationof the adequacy of the framings.

Acknowledgements
The support of the Economic and Social Research Council isgratefully acknowledged. This work forms part of the work
programme of the ESRC Genomics Network at Cesagen.

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mistake?’, Monist, 67: 532-48.
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and ethics’, in E.Craig (ed.), Routledge Encyclopedia of
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Fourteen Kinds of Social Contract    Michael Davis

Fourteen Kinds of Social Contract
Michael Davis
Illinois Institute of Technology, USA

Abstract
Anyone familiar with much of the social-contract literature will have noticed that the sense of“social contract” can differ a good deal from field to field, for example, from political theory
to business or medical ethics, and even from writer to writer in a single field, say, from Locke
to Rawls. For some of these senses, we have well-established distinctions, for example, thatbetween hypothetical and actual contract. For other uses, we have no established distinction.
But more significant than any lack of particular distinctions is, I think, the lack of a generalclassification of social contracts that brings out fundamental differences between them. That iswhat this article offers. My classification has two dimensions. One concerns “contract”. “Contract”
can be used literally or in some (more or less) extended sense ranging from close analogy to
distant metaphor. The literal sense supports one sort of obligation (“formal moral obligation”);
the analogical or metaphorical sense (generally) supports another (if it supports any moral
obligation at all). The other dimension concerns “social”. The “society” in “social contract” (whether
the contract is literal, analogical, or metaphorical) may be either the result of the contract or aparty to it and, whatever its relationship to the contract, the society may be one of several kindsof human association (moral, governmental, legislative, civil, or political). Arguments valid (orsound) for one sort of society may not be for another.
Key words : Hobbes, Hume, Locke, Rawls, political obligation“The development of observational anthropology
and empirical sociology in more recent times
makes it entirely unlikely that contract in anything
but a strictly hypothetical form will ever be adopted
again by political theorists.” (Laslett 1967)“I find its origin in two affiliated concepts: theactual contracts and grants that science policy
scholar Don K. Price placed at the center of his
understanding of the ‘new kind of federalism’ inthe relationship between government and science;
and a social contract for scientists, a relationshipamong professionals that the sociologist Harriet
Zuckerman described as critical to the maintenanceof norms of conduct among scientists. Either orboth of these concepts could have evolved into thesocial contract for science.” (Guston 2000)

While political theory (in the narrow sense) remains
the home of “social contract”, the term has spread wellbeyond. Zuckerman’s “social contract for scientists” isjust one of many far-flung uses. “Social contract” hasappeared in the title (and argument) of recent scholarly
work ranging from moral theory to business ethics,
sociobiology, and sustainable agriculture. (See, forexample: Donaldson and Dunfee 1999; Binmore 1994;
Skyrms 1996; and Francis, Bird and Poincelot 2006.)
The term also appears surprisingly often in practicalcontexts. A recent web search (June 30, 2009) turned up(among others): a “Debian Social Contract” governinguse of the free software developed for GNU/Linux; aBritish headline, “Banks face a new social contract”; anda “Social Contract Project” (a new community-based
way to develop comprehensive plans for neighborhood
improvement).
Anyone familiar with much of this literature will have

Journal of Applied Ethics and Philosophy     Vol. 1

noticed that the sense of the term “social contract” candiffer a good deal from field to field and even from writer
to writer in a single field. For some of these senses, wehave well-established distinctions, for example, thatbetween hypothetical and actual contract (with many of
the social contracts now currently under discussion not,as Laslett (1967) predicted, hypothetical but actual).
So, for example, while the theory of integrative social
contract that Donald and Dunfee (1999) offer begins with
one universal hypothetical contract authorizing various
local contracts, the local contracts themselves, the heartof their analysis, seem (generally) to be actual contracts.
For other uses, we have no established distinction.
But more significant than any lack of particulardistinctions is, I think, the lack of a general classificationof social contracts that brings out fundamental
differences between them. The only recent attempts
to do anything like what I propose to do here seem to
be Freeman (1990) and Buchanan (1990) but both ofthese focus almost entirely on (what I shall call) the
moral contract; they offer distinctions different fromthose made here and designed to serve other purposes.
The distinctions offered here make clear why anyone
invoking the potent term “social contract” should be
explicit both about the sense used and about how thatsense is relevant to the question at hand. I hope what I
say will be useful to political theorists in general, but thetheorists I most hope to enlighten are those who work inapplied ethics – which seems to belong to political theory(in the wide sense that includes social policy) even morethan it belongs to ethical theory. It is on the wild frontiersof political theory that the term “social contract” seems
most active today.
My classification has two dimensions. One concerns“contract”. “Contract” can be used literally or in some(more or less) extended sense ranging from close
analogy to distant metaphor. The literal sense supports
one sort of obligation (“formal moral obligation”); theanalogical or metaphorical sense (generally) supports
another (if it supports any moral obligation at all).
The other dimension concerns “social”. The “society”
in “social contract” (whether the contract is literal,analogical, or metaphorical) may be either the result of
the contract or a party to it and, whatever its relationshipto the contract, the society may be one of several kindsof human association (moral, governmental, legislative,
civil, or political). Arguments valid (or sound) for
one sort of society may not be for another. Even somefamous arguments of first-rate theorists turn out to befallacious (or, at least, misdirected) because they are,though appropriate for one sort of obligation or society,inappropriate for the sort of obligation or society actuallyin question. (I give some examples of this in Section III.)

I. Contract
By (literal) “contract” (“pact”, “compact”, “covenant”,
or the like) I mean a plan of action (“the agreement”)
performance of which is undertaken by promise,exchange of promises, or any other morally permissible
act, however complex, having the same effect morally
as a promise, whether binding under positive law ornot. Among acts having the same effect morally areoaths, vows, and accepting payment for some futureservice (where custom treats acceptance of payment as
a commitment to perform). What the appropriate “moral
effect” is, I shall say soon, but first I must dispose ofsome potentially troubling questions related to contract
so defined.
Most contracts, especially “social contracts”,
arise from an exchange of promises or its equivalentrather than from a simple promise. But since the law
recognizes “unilateral” contracts as well as “bilateral”
and “multilateral”, I see no reason to exclude unilateralcontracts by definition. (In a typical unilateral contract,
I pay you now in return for your promise to do a certain
act at some set time later.) Our use of “contract” should
track legal usage as closely as possible. The first socialcontract theorist (the pre-Hobbesians, such as Althusius,
Brutus, Buchanan, Grotius, and Hooker) were lawyers(or at least legally trained); the lawyer’s understandingof contract is always implicit when they talk ofsocial contract. It is this tracking that underwrites thedistinction between “literal” contract and other sorts.
Tracking legal usage even this far may seem a serious
mistake. The “social contract”, whatever it is, is a moral
concept; ordinary contract, a legal concept. Morality
and law, though related in complex ways, are separate
ways to guide conduct. Some morally binding promises(such as the promise to pay a gambling debt) may not
be legally binding; some legally binding contracts (say,a contract to evict an aged widow into a winter storm)
may not be morally binding. Without the assumptionof natural law (where “law” is understood literally),
the very term “social contract” is (according to thisobjection) an oxymoron, a serious confusion that, if
pursued, must lead the pursuer into worse.
I have two (related) responses to this objection. The
first is that it seems to overstate the separation of law
and morality. While law and morality do sometimes
go their separate ways, they are generally in close
communication. Legal categories are refinements ofordinary moral categories. The moral arguments reappear
in the legal arguments, having force even when notdecisive. (For example, even the judge who refuses
to enforce a gambling debt will recognize that, absent
a public policy against enforcement, the promise inquestion would provide a basis for enforcement.) Rather

10than thinking of morality and law as (largely) separate
domains, we are probably closer to the truth if we thinkof them as two closely related ways of seeking similarends within the same domain (for example, as two ways
to order the same human relations so that we can all
benefit from living together).
My second response is that the objection proposes toforeclose a research program by predicting the outcome(too much confusion). Predicting the outcome of a
research program, especially in philosophy, is generally
risky. When the prediction rests on a controversial
assumption (the separation of law and morality), it iseven riskier. When it seeks to foreclose research where
many already seem to have worked profitably, theforeclosure is almost certainly mistaken. We cannot tellwhether tracking legal usage as a way to understand“social contract” will lead to too much confusion until
we have tried it.
Though essential for a classification of social
contracts, tracking legal usage is not without costin complexity: I have already had to insert “morally
permissible” before “act” to exclude obligations createdby unilateral wrongdoing. The obligation of a tortfeasor
to set things right is not a contractual obligation, eventhough it does arise from an act and does morally (andlegally) obligate. I have also had to allow for contractmaking acts “other than promising” (to allow for vows,
oaths, and the like). I must now introduce another(related) complexity.
Lawyers commonly distinguish between contracts“implied in fact” and those “implied in law”. The
first are literal contracts; the second (according to thecommon wisdom) are mere analogues (that is, states ofaffairs that, though not literal contracts, are sufficiently
like them to support the use of some contract theory or
remedy). A tacit promise – for example, a promise madeby the nod of the head or failure to object to an offer
where acceptance is ordinarily presumed – creates acontract implied in fact. The facts make it reasonable toinfer that the silent act or deliberate inaction served thesame purpose as the words “I promise” would have. That
is why the act is a “tacit promise”, appealing (by the useof “promise”) to the principle of fidelity (“Keep yourpromises”) rather than some other moral principle.
By “cooperative practice”, I shall mean an activity inwhich (in large part at least) the participation of others
generates the benefits making it reasonable for each to
do an assigned part (as long as the others do the same).
Voluntary participation in a (morally permissible)
cooperative practice (whether the participation is silent
enough to count as tacit or not) can also be understoodas creating a contract implied in fact. The facts together
with the principle of fairness (“Obey the rules of any
morally-permissible cooperative practice in which
you voluntarily participate”) imply a literal contract toFourteen Kinds of Social Contract    Michael Davisobey the rules of the practice, for example, the rules offootball if one voluntarily plays in a “pick up” game. The
chief difference between tacitly promising and enteringa voluntary cooperative practice is the moral principle
generating the obligation. This difference does not seem
important here. Indeed, some moral theorists (e.g. Rawls
1971, 113) have understood the obligation of promise
to rest on the principle of fairness (since voluntarily
promising is voluntarily participating in a cooperative
practice, the practice of promising).
I hope my reliance here on the principle of fairness
will raise no red flags, even though the principle has been
under a cloud since the seemingly devastating criticism
it received in Nozick (1974). I have, it will be noted,
limited my use of the principle to obligations generated
by voluntarily participating in a (morally permissible)
cooperative practice. Most attacks on the principle offairness have been on the “involuntary benefits” version.
See, for example, Simmons (1979, 118-36). And eventhose attacks are hardly devastating. One can either
refine the involuntary-benefits version of the principle,
as Arneson (1982), did, or show that Nozick’s originalcriticism and that of most of his successors depend on
examples that, upon careful examination, fail to support
the criticism, as in Davis (1987) or Klosko (1987).
Some lawyers would classify any contract restingon the principle of fairness as implied in law rather
than in fact. Appeal to “equity” (substantive justice)or any other non-promissory principle is (they wouldsay) what distinguishes contract implied in law fromcontract implied in fact. Though a fair point, this legal
nicety is not relevant here. We can easily distinguish
those contracts implied in law that otherwise seem literalcontracts from those that seem to be something different,
what we may call “contracts merely implied in law”.
Here is a typical contract merely implied in law: You
pay the taxes owed on my house without my knowledge,
believing the house to be yours. You later discover yourmistake and ask me to reimburse you. I refuse. You may
now sue me for the amount in question under a theory
that the law “implies” a contract between us to return
benefits mistakenly bestowed (a right of restitution)(Corbin 1952, §19).
This “contract” merely implied in law lacks muchthat is characteristic both of promising and of voluntarily
participating in a cooperative practice. First, and mostimportant, I was entirely passive. I could have been out
of town when I entered the “contract” or in the middle
of a year-long coma. I am obliged not by what I didbut by what you did (as if you accepted my offer torepay, an offer I never made). Second, any rationale forholding me to this “contract” will not sound much likethe rationale supporting a (typical) contract. You cannot,
for example, argue that if I did not want the obligation to
repay you, I need only have prevented you from paying

Journal of Applied Ethics and Philosophy     Vol. 1

my taxes. Had I known that you were about to pay mytaxes, I would have prevented you. But it is preciselythat opportunity to prevent, an opportunity that would
bring this case much closer to ordinary contract, that is
missing. Last, you and I do not seem to be part of any
cooperative practice the rules of which require me toreimburse you for your mistake – except, of course, forthe law itself and ordinary morality, if either does require
it. The intermediate convention characteristic of promise
implied in fact (that is, a particular promise or the rulesof a particular cooperative practice) is missing. For
these reasons (and perhaps others), lawyers often call acontract merely implied in law a “quasi-contract”, that is,something less than a literal contract (Corbin 1952, §19).
And, for these same reasons, I shall classify all contracts
merely implied in law as analogues or metaphors whileclassifying contracts resting on the (voluntary) principleof fairness (as well as those resting on the principle ofpromise) as literal.
By “consent” I shall mean any act by which one
comes under a contractual obligation, whether “Ipromise....”, an oath, a nod in answer to a question
about promising (“Do you agree...?”), or some other act
creating literal contract (such as entering a voluntarycooperative practice). As used here, “consent” includes
both what lawyers call “acceptance” (the act thatconverts an offer into a contract) and “offer” (onceaccepted). While many discussions of “social contract”
combine this sense of “consent” with one or moreof its non-contractual senses, we should avoid suchcombinations. Combining several senses of “consent”
is the flimsy bridge by which even a careful writer can
move, without quite noticing, from literal contract to“contract” in a merely analogical or even metaphoricalsense. Since my subject is social contract, not consent
generally, I shall treat “consent” as a mere technicalterm here. So, for example, it is no objection to mydefinition that if I “consent” to my son’s marriage, theconsent is a mere permission, concurrence, or express
approval, perhaps a sharing of responsibility, but not thecontracting of a new obligation.
Ordinarily, the moral effect of a contract is formal
moral obligation, that is, a moral obligation to do what
the contract requires (more or less) independent of what
it specifically requires. Any obligation that is not formal
is material. Material obligations are wholly determinedby their content, that is, by the particular helps and harms
involved, including both the distribution and justificationof the helps and harms. We cannot show that someone
has a material obligation – for example, a certain
obligation of gratitude, compensation, or restitution –without going into the details (“content”, “substance”, or“material elements”) of what she is supposed to do andwhy she is supposed to do it. When we have exhausted
the content, we have exhausted the moral reasons11

establishing the obligation. In contrast, we can establish
a formal obligation (at least prima facie) without going
into content in any way; we can point to the consent(the promise or what is enough like a promise). “Youpromised” is itself a good reason, all else equal, to do as
you promised (whatever you promised).
Contracts obtained by force, trick, or some otherimproper means are, of course, void whatever theircontent. They are mere counterfeits of contract – because
the consent is counterfeit. Generally, such contracts do
not create even a prima facie moral obligation. On therare occasions when they do, they create the obligationfor extraneous reasons, for example, because someinnocent third-party will suffer in this or that way if
the contract is not carried out. Such contracts, whether
creating a moral obligation or not, are, we might say,formally void. Any obligation they create must bematerial, because evaluating the extraneous reasons
means going into all the details of the obligation. (There
are other complexities about what makes a contract
formally void that we may ignore here.)
Some contracts, though not formally void, still create
no formal (moral) obligation. Void on their face, they arestandard exceptions to the moral rule making contracts
binding, for example, a commitment to do the impossible
or to do what another moral rule explicitly forbids (as ina contract to murder). We need only understand such acontract to know that it can (as contract) have no moral
claim on us. There is (we might say) a “surface flaw”.
All other contracts, whatever their content, generate a
prima facie moral obligation to do as the contract says (aformal moral obligation, all else equal).
Contracts ordinarily turn acts otherwise morally
indifferent – or, at least, not morally required – into
moral obligations. Where a (morally permissible)
contract conflicts with other moral obligations, there isa conflict of obligations. A conflict of obligations does
not void any of the obligations. The conflict, being
unfortunate but now inescapable, must be resolved bysome combination of excuse, apology, compensation, andcompromise. Some obligations may “override” others,
but the others are not thereby extinguished, merely
forced to claim other avenues of satisfaction. Conflict ofprima facie obligations is a hazard of moral life. Since
our subject is only prima facie moral obligation, we may
ignore such hazards now.
We may now distinguish at least two ways in whicha “contract” (in some sense) can be less than a literalcontract. First, some states of affairs resemble contracts
in being outcomes we can interpret as a result of
calculation, negotiation, or other activity common to
the making of contracts. We can fruitfully generalize
or transfer certain parts of the theory of contract, ideas
about process, to these conceptual neighbors. Rawls’
hypothetical contract belongs to this category. Rawls

12

uses certain theories relevant to contracting (such as
the theory of games) to help us understand justice,something not actually the result of contract. We are
made to see how the principles of justice might result ifentering society were entering a voluntary cooperative
practice under conditions acceptable to all. Though theprinciples of justice are not conventions, thinking about
them as if they were helps us to see how reasonable theprinciples are. David Gauthier (1986) has attempted
something similar for morality in general; Veatch (1981)
for medical ethics in particular.
Second, other uses of “social contract” rest not
so much on claims about process as on claims aboutoutcome, a certain obligation or set of obligations. If theobligations in question are formal moral obligations, theuse of “social contract” may well be justified by close
analogy (supposing the contract not to be literal). For
example, Kant (1999, 146) understands the “originalcontract” to be the “means by which the people
constitute themselves a state”. While he considers sucha contract to be a mere “Idea” which may, or may not,have been realized in practice as an “actual contract”, henonetheless derives (something like) a formal obligationfrom it: “It is the people’s duty to endure even the mostintolerable abuse of supreme authority [whatever originthat authority may have had]” (Kant, 1999, 116 and 125 ).
For Kant, the (prima facie) moral obligation to obey thelaw seems to be formal, that is, entirely independent of
its content (“even the most intolerable abuse”). Though
not relying on fairness or (historical) promise, Kant’s“Idea” is a (relatively close) analogue of literal contract.
If, however, the obligations in question are neither
moral nor formal, the analogy with literal social contract
may be strained enough to become metaphor. So, forexample, when politicians speak of “rewriting thesocial contract with science” but mean only unilaterally
changing the regulations governing science, the term“social contract” is a mere metaphor (perhaps a reminderof mutual dependence). There is little, if any, contract
theory at work.
In principle, the line between literal contract andanalogue is sharp: the contract (that is, the formal
moral obligations in question) must rest on the factthat the ordinary circumstances of contract, including
consent, are realized. Where any of these circumstances
is absent, the “contract” in question can (at most) be aclose analogue of literal contract. In practice, though,we may have trouble deciding whether a certain contract
is literal. For example, many scholars think Hobbes’
Leviathan presents a theory of hypothetical contract toobey government (an analogue of contract); others, thatit presents a theory of literal (but tacit) contract.
The distinction between analogues of contract andmere metaphorical contracts is, in contrast, not sharpeven in theory. Analogy as such is a matter of degree. If

Fourteen Kinds of Social Contract    Michael Davis

metaphor is a striking likeness in the midst of difference,then metaphor is itself a distant analogy. Insofar as
metaphor differs from analogy, metaphor allows little
or none of the interesting transfer of theory from thedomain of contract that analogy does. Mere metaphor,though not always theoretically sterile, is a device of
exposition or imagination rather than theory.

II. Societies
We may distinguish at least five senses of “social” in“social contract”: moral, governmental, legislative,
civil, and political. Since the social contract (whatever
it is) always ends the “state of nature” (the condition
before the contract), “state of nature” also has at least
five senses, one corresponding to each of the senses of“social”. Let us consider these five senses in order.
The moral contract ends the pre-moral condition,
creating (what we may call) a civil society, that is, anumber of persons (rational agents) living together
according to rules (more or less) acceptable to all.
Civil society is where clubs, churches, charities,
markets, professions, and other voluntary associations
are possible. Civil society is the conceptual space
between what is morally wrong and what (positive)law (justifiably) requires or forbids. How large a space
civil society occupies depends not only on how muchlaw, if any, there is in a particular locale, but also on
how “demanding” our conception of morality is. So, forexample, if we were act-utilitarians, we might think even
the Debian Social Contract to be a mere restatement ofwhat the principle of utility requires us to do with thesoftware even without a contract (insofar as the contract
is morally obligatory at all). If, instead, we believe
morality to be much less demanding (consisting, say,
only of a few side-constraints), we should have little
trouble seeing how the Debian Social Contract could add
to our moral obligations. We have whatever new (morally
permissible) obligations the contract says we have.
Act-utilitarianism would rule out of civil society much(perhaps all) that a less demanding moral theory would
permit.
The moral contract is the (logical) pre-condition of
all moral obligations. Without the moral contract, there
can be no moral obligations, only prudence or impulse(and perhaps moral considerations less demanding thanrequirements, such as moral ideals). The foundation of
all moral obligations, the moral contract itself cannot
impose a formal moral obligation – and so, cannot be
a literal contract. The “moral contract” is nonethelessanalogous to literal contract in at least three ways
(each enough to support an analogy): First, the “moral
contract” turns acts morally indifferent (or perhaps
morally good) into acts morally required or forbidden.

Journal of Applied Ethics and Philosophy     Vol. 1(How it does that is always an interesting question.)
Second, the moral rules that constitute the terms of the“moral contract” can be understood as arising fromcontract-like negotiation (or, at least, calculation) in a
pre-moral state. Third, insofar as the moral rules areunderstood as “conventions” (arrangements to somedegree arbitrary), the terms of “moral contract” will
resemble the terms of ordinary contracts (since ordinary
contracts are, in part at least, conventions). The moral
contract seems to be the focus of most sociobiologicalwriting on “the social contract”.
Though Hume is generally considered the great
enemy of social contract, he in fact recognizes social
contract – if “contract” carries this first sense. Hume heldthat part of morality, including justice, is the result of(actual) conventions not deriving their moral force fromother conventions. These conventions transform a civilsociety having certain disadvantages (no possibility ofmaking promises, possessing much, suing for damages,
and the like) into a civil society, civil state, or legal
system in which such things are possible. Insofar as
actual conventions are contracts in a sense (that is, are ananalogue of literal contract), Hume explains the part ofmorality that is not “natural” as arising from one or more“social contracts” (though, of course, he wisely avoids
the term) (Hume 1961, bk. III, pt. II, sec. 2).
The governmental contract , the second sort ofsocial contract, ends a pre-governmental condition,
providing those party to it with a civil state (a standing
administrative, executive, or judicial framework, orsome combination of these). There are at least three
versions of the governmental contract. In one, wouldbe subjects contract with the government (or would-be
government) directly. They individually end their own
pre-governmental condition. In the second version of
the governmental contract, the would-be subjects form a
corporate body first, a people, and this people contracts
with some person or persons to be the government.
The third version mixes the other two. Some would-be
subjects form a people and contract with a government;
other subjects enter by individual contract with thegovernment (rather than with the people). (Goodexamples of the governmental contract all seem to be
pre-Hobbesian, for example, Brutus 1924, and Buchanan
1964.)The governmental contract can be “social” in oneof two ways. When the government contracts withthe people (one sense of “society”), the contract issocial insofar as it is a contract with society. Whenthe governmental contract is among individuals, thecontract is social insofar as choosing the government
creates a society; it is a contract for society (the society
organized under the civil state). Hobbes’ original
covenant (“commonwealth by institution”) is a contract
for a society (in this sense), though a contract for both

13

government and legislature (Hobbes 1958, Ch. 20).
A legislative contract is a contract among individuals
creating a standing legislature (formal procedure formaking laws or similar rules). The legislative contract
ends the pre-legal condition, creating a jurisdiction, that
is, a set of persons subject to the same law-making body.
The legislative contract is distinct from the governmental
contract only insofar as legislation (including subsidiaryrule-making) is distinct from adjudicating, executing, andotherwise administering the laws. Even when distinct
from the governmental contract, the legislative contract
can take any one of the three forms the governmental can(individual, corporate, or mixed).
If the legislative or governmental contract occurs after
the moral contract, it can be a literal contract. But it need
not occur after; and if it does not, it cannot be a literalcontract. Consider Rousseau’s “social compact”. It isa good example of a legislative contract which, thoughmorally binding, is not literally a contract – because
it comes too soon. For Rousseau, the pre-legislative
condition is also a pre-moral condition. The legislative
contract makes us moral agents even as it subjects us tolaw:
The passing from the state of nature to thecivil state [rule of law] produces in man a very
remarkable change, by substituting justice for
instinct in his conduct, and giving to his actions amoral character which they before lacked. It is then
only that the voice of duty succeeds to physicalimpulse, and a sense of what is right, to theincitement of appetite (Rousseau 1947, 18-9).
For Rousseau, the legislative contract binds because,and only because, the alternative, life in the pre-moral
condition, would mean giving up justice for impulse
and appetite. Moral agents cannot make that choice,that is, cannot morally choose to become indifferent
to morality. For Rousseau, the transition from the stateof nature to the “civil state” (legal jurisdiction) is noteven necessarily chosen (in any important sense). Most
children undergo the transition as they grow up. They areborn slaves of impulse, learning to act morally much as
they learn to speak grammatically. They become moral
agents before they know it (and therefore “consent”
before they realize it).
Since Rousseau explicitly rejects the governmental
contract (and says nothing about political or civil
contract), The Social Contract in fact has no literalcontract whatever, only that relatively distant analogue oflegislative contract just noted. What The Social Contract
seems to have instead (whatever Rousseau’s intention)
is a theory of how the Greeks understood politicallegitimacy – put in terms of the republican discourse
common in the eighteenth century. For theorists of literal

14

social contract, in contrast, the social contract (whether
governmental, legislative, civil, or political) is possible
because, and only because, morality (“the law of nature”)
already governs the corresponding “state of nature”.
A civil contract ends a domain of morally permissible
action within civil society, turning acts previously
optional into moral obligations. The civil contract isa relation either between the individual members of acivil association that the contract itself creates (such asa club or law firm) or between some members of civilsociety (scientists, say) and civil society as a whole (thecivil society acting through government, legislature, or
people). So, for example, some writers on professional
ethics explain the special obligations of a profession(those in its code of ethics) as arising from a contractthat the members of the profession make with eachother or with society. When the terms of this “contract”
do not play an important part in the proof of obligation(that is, when the obligations supposedly resulting fromthe contract are formal) and the consent is (more orless) voluntary (for example, given by claiming to bea member of the profession or otherwise participating
in it), there may be a literal (morally binding) contract.
When, however, the terms of the contract are notconventions (when, say, the terms are simply deduced byapplying ordinary morality to the circumstances of theprofession), or the “consent” is not voluntary but ideal,
hypothetical, mere submission to what “society says”,
or the like, there is only an analogue of contract or just a
metaphor.
Any contract between a civil association and a nonmember, for example, a contract of sale or employment,
is a private (rather than social) contact; that is, unlikesocial contracts, this sort of contract is generally
regulated by ordinary civil law – and creates no newsociety. For an example of a (literal) social contract
between members of a profession, see Davis 1998,
43-60. For an example of a (hypothetical) “social
contract” between the profession and society, see Veatch,
1981. The Debian Social Contract is an actual social
contract in this civil sense; Guston’s contract between
science and society probably is not. (For detailed
explanation of why science probably has no contract
with society, see Davis 1995.)
The political contract, the last of my five, ends a
pre-political condition, creating political society, that
is, a number of individuals (citizens) capable of acting
as a single self-governing body (as in the American
Constitution’s “We the People”). A political society isa corporate entity, not just a civil society (a number ofpeople living together), a civil state (the subjects of one
government), or a jurisdiction (the subjects of one legal
system). Like the legislative or governmental contract,
the political contract can be a literal contract only if
morality is already in place. The political contract can

Fourteen Kinds of Social Contract    Michael Davis

impose formal moral obligations if, but only if, it is a
literal contract and includes consent to law (“law” here
being the positive rules of conduct that a self-governing
people enacts for itself – and those subject to it – directlyor through representatives). Locke’s Second Treatisepresents a good example of a theory of (literal) politicalcontract. Locke (1947, §211-43) explicitly argues thatpolitical society survives the dissolution of government
and the disbanding of the ordinary legislature. (For adefense of this literal-contract interpretation of Locke,
see Davis 2002, 239-78.)
If political contract operated only within theconceptual space between morality and (positive) law, it
would be a special case of civil contract (as the charter ofa political party is). But that is not where it operates. The
political contract necessarily operates within government
and legislative. The political contract is a contract bywhich individuals gain the (joint) power to make laws
for themselves (directly or through representatives).
So, for example, Locke (1947, §87) says: “there is only
political society where every one of the members hathquitted his natural power, resigned it into the hands ofthe community in all cases that excludes him not fromappealing for protection to the law established by it.”Though a civil contract may make some laws formallymorally obliging (for example, when a profession’scode of ethics requires obedience to law), or even seek
to influence how laws are made (as the charter of apolitical party does), a civil contract cannot be a contract
for self-government (the joint making of laws). Such acontract is always (by definition) political rather thancivil. So, Nozick’s protective associations are mere civil
associations, the products of civil rather than politicalcontract (though the associations perform some services
a civil state typically performs). Even Nozick’s “minimal
state” is not a state at all (that is, a civil jurisdiction orcivil state in our sense), since (by definition) it lacks
the power to make or enforce laws; its only power is toprotect natural rights. (See, for example, Nozick 1974,
52.)
The choice of the terms “civil” and “political” for this
distinction is somewhat arbitrary. Etymologically, theterms are almost twins. “Civil” comes from the Latin forinhabitant of a city (civis) just as “political” comes fromthe Greek for city (polis). Yet, the choice is not altogether
arbitrary. It tracks some common uses. For example,
Americans typically distinguish the “civil rights” offreedom of religion, equal access to employment, andso on from the “political rights” of voting, running for
office, and so on. Civil rights (in this sense) seem to beprecisely those rights one can have even in a mere civilsociety (in our sense); political rights, the rights of selfgovernment that go with membership in political society(in our sense).
The distinction between political society, on the one

Journal of Applied Ethics and Philosophy     Vol. 1

hand, and government and legislature, on the other, is, I
believe, important (as I shall suggest below). Since somereaders may find the distinction counter-intuitive enoughto seem unclear, let me clarify it by giving two examples,one of governmental and legislative contract without
political society and the other, of a political society
without government or legislature.
First, how can there be a governmental or legislative
contract but no political society? I can make a (literal)
contract for government or legislature without
contracting for self-government. I may, for instance, trade
an oath of allegiance to a government (or legislature)for its protection without joining the corresponding
political society. This is precisely what one does when
one becomes a resident alien. The alien voluntarily
comes under the government and laws (as a subject)
without becoming a citizen in the full sense (a memberof political society). A whole people (or, perhaps, eachindividually) might do much the same, for example, byagreeing to be the colony of another country. They would(assuming no flaw in the contract) thereafter be morallybound to law and government over which they had nocontrol. They would constitute a civil state and legal
jurisdiction (perhaps even a relatively just one) but not apolitical society.
Second, how might a political society exist without
government or legislature (and so, without governmental
or legislative contract)? Consider a number of people
agreeing with each other to be bound by the laws they
make. They might, being a small number, agree aswell to meet whenever there is a reason to interpret,
enforce, or change the law (without agreeing on a set
procedure for doing so). They would constitute whatanthropologists now call “a stateless society”, that is, anumber of people living in the same region in (relative)
peace with common customs (laws) and substantial
interchange, but without (standing) legislature or(standing) government. They would lack a (distinct)
contract creating a legislature or government. They
would nonetheless be a political society, that is, a society
for self-government. They would have governancewithout government, legislation without legislature.
Some critics of social contract admit the possibility ofpolitical contract, indeed, admit its realization on a small
scale now and then (for example, the Plymouth Colony’s
founding “compact”), but deny that any political entity
as large even as Locke’s England in fact ever had sucha contract. For example, Simmons (1993, 199) observes
that there is “simply not much evidence in actual statesof ordinary citizens doing things that look very much likegiving morally interesting consent to political authorities…hordes of active consenters were no more in evidence
in Locke’s England than in twentieth century England.”The reason Simmons – and other critics of Lockean
social contract – have trouble finding “hordes of active

15

consenters” is, I think, that their theories do not tellthem the right place to look. If they looked in the rightplace, the institutions of political society (in the sense
used here), they would find what they are looking for.
For example, let them visit the offices of the Chicago
Board of Elections. There, on every week day, “citizens”
line up to register to vote. By claiming the right tovote, these (nominal) citizens voluntarily enter politicalsociety (whatever object they have in view); that is, they
become citizens strictly so called, full members of a selfgoverning people (with the right to vote on election day,to sign nominating petitions, and so on). Registrants
do not promise anything; they only voluntarily (andexpressly!) claim certain benefits, the political rights ofa citizen. Their claim, being accepted, is their consent(that is, their undertaking to obey the constitution giving
the benefits in question, whatever in particular – within
the bounds of morality – the constitution says andwhatever laws it generates). That consent lasts as longas they continue to claim membership (and their claim is
accepted). If that quiet line of would-be registrants does
not seem active enough or large enough to constitutethe “horde of active consenters” Simmons asks for,the Board of Elections need only announce that it ispermanently disenfranchising those already registered tobring large crowds into the streets in protest. Though noteveryone values membership in political society, “hordes”
of us certainly do.
Some social-contract theories are explicitly
theories of “legitimacy”, that is, explanations of how
a certain otherwise troubling state of affairs (usually,
governmental or legislative authority over us) is (at least
sometimes) morally justified (morally required or atleast morally permitted). Some theories of legitimacy(those of Hobbes or Locke, for example) are (in part at
least) explicitly about formal moral obligation to obey
government, legislature, political society, or a certain
civil association. Such theories have a role for literalcontract. Other theories of legitimacy are about the rightsof government, legislature, political society, or certain
civil associations in virtue of their utility, contribution
to justice, or other reason capable of supporting only
material obligation (or no obligation at all). Suchtheories have no role for literal contract. “Contract”,
if it appears at all, will have to work by analogy ormetaphor (by appeal, for example, to “hypothetical” or“ideal” consent). Theories of legitimacy relying on literalcontract should answer certain questions (Locke’s, forexample); theories in which “contract” is an analogue ofliteral contract or a metaphor should answer others (suchas those of Rawls or Gauthier).
Much the same is true of theories of “allegiance”.
Allegiance either is or is not a formal moral obligation.
If a formal moral obligation, it should arise frompromise, oath, or other act capable of creating literal

Fourteen Kinds of Social Contract    Michael Davis

16

contract. If, however, allegiance is understood as arisingfrom utility, contribution to justice, or the like material
considerations, either there will be no moral obligationor the obligation will be material. Any talk of “social
contract” will then rely on analogy with literal contract
or on metaphor.

III. Some Consequences of These Distinctions
We may combine these distinctions into the following
matrix (though, on a three-dimensional page, a cube
would be better, allowing for columns concerned withparties to the contract): [see below]
Note that I have omitted “material” from the analogue
column, allowing for the possibility that some analogies
to contract might generate formal moral obligations (asRousseau and Kant both apparently believed).
One interesting feature of this matrix is that all but
one of the fifteen possible cells is open. Only literal
moral contract is ruled out a priori. Since no cellnecessarily depends on any other, a “contract” filling one
cell need not compete with a “contract” filling another.
For example, a theory of why we have a formal moral
obligation to obey government (we have that obligation
because, and only because, say, we swore allegiance tothe government) may, or may not, be consistent with
Contract

literala theory of why we owe formal moral obligation to its
laws (depending, say, on whether the government isunderstood to have the power to make laws or law isunderstood as arising only from custom).
The independence of the cells suggests at least fourquestions we might put to any putative reference to“social contract”:
1. Is this contract a moral obligation? (If not a
moral obligation, why use “contract” at all? Whatanalogy or metaphor underwrites the use?)
2. Is the moral obligation formal or material? (Ifmaterial, why use “contract”? What analogy ormetaphor underwrites the use?)
3. Does the contract create a society or instead bind
individuals or a civil association to a (corporate)society already existing ? (What work is “social”
supposed to do?)4. If the contract creates a society, is the society
in question a civil society, civil state, civil
jurisdiction, political society, or civil association?
Would we learn anything worthwhile by putting thesequestions to anyone using “social contract”? I believethat we often would. I shall now provide some evidenceof that a) by examining some classic arguments againstsocial contract (Hume’s), b) by doing the same for amodern critic of literal social contract (Rawls), and c)by examining a claim of contract between public and aprofession (Robert Baker’s 1993 analysis of the 1847
analogue

metaphor

explains moral obligations
generally(e.g. Gauthier)suggests an insight into
morality generally (e.g.
Glaucon?)governmental
founds formal moral(parties: the people,
obligation to civil state (e.g.
individuals, the government,
pre-Hobbes social contract)
or some combination)

explains moral obligation to
government(e.g. Kant)

suggests an insight intosome moral obligation to
government(e.g. British banks and theirregulators)

legislative(parties: the people,
individuals, the legislature,or some combination)founds formal moral
obligation to laws(e.g. Hobbes)

explains moral obligation tolaw(e.g. Rousseau)suggests an insight into somemoral obligation to law(e.g. “social contract with
science”)

civil(parties: individuals, orcivil society with someindividuals)

founds formal moral
obligation to do what a
civil association enacts (e.g.
Debian Contract”)

explains moral obligation
to what a civil association
enacts (e.g. Veatch)suggests an insight into somemoral obligation to a civil
association(e.g. “the social contract
between business andpublic”)

political(parties: individuals)

founds formal moral obligation to do what politicalsociety enacts(e.g., Locke)

explains material moral
suggests an insight into someobligation to do what politimoral obligation to political
cal society enacts (obligationsociety (no example)
to “democratic process”)

moral(parties: individuals)[conceptually closed]

Journal of Applied Ethics and Philosophy     Vol. 1

Code of Ethics of the American Medical Association).
I believe this evidence sufficiently varied to suggest theusefulness of the classification (even if the parsing of
examples so far offered does not).
Consider, first, Hume’s claim that:human affairs will never admit of this consent,
seldom of the appearance of it; but …conquest
and usurpation, that is, in plain terms, force, by
dissolving the ancient governments, is the originof almost all the new ones which were everestablished in the world.…Reason, history, andexperience show us that all political societies have
had an origin much less accurate and regular [thanthe people’s consent]…(Hume 1948, 362)
Question 4 asks us to consider what Hume meansby “political societies”. The answer seems clear. Humeuses that term (more or less) interchangeably with“governments”; he draws on evidence concerning theorigin of governments to establish his claim concerning“political societies”. We should therefore understandhis “political society” to mean (what we have called) a“civil state”. So understood, everything Hume says here
may well be true. But if, as I have suggested, Locke
understands “political society” in our sense, not Hume’s,then this criticism (apparently directed at Locke) is
entirely irrelevant. Hume denies that civil states havetheir origin in consent, but Locke’s claim concerns
another class of entity, political societies (in our sense),
about which Hume says nothing here.
Second, consider what is perhaps Hume’s most
famous criticism of social contract:
Should it be said that, by living under the domainof a prince which one might leave, every individual
has given a tacit consent to his authority andpromised him obedience, it may be answered thatsuch an implied consent can only have place wherea man imagines that the matter depends on his
choice (Hume 1948, 363).
Question 2 above instructs us to ask whether the
obligation to obey the government (“prince”) is formal
or material – and if formal, whether it rests on literalcontract or on some analogue or metaphor. There is muchin Locke’s Second Treatise that is not clear. But Lockeis clear that “Nothing can make any man [a subject ormember of a commonwealth] but his actually entering
into it by positive engagement and express promise orcompact” (Locke 1947, §122). “Tacit” (or “implied”)
consent, whatever it does, cannot make anyone a memberof political society (a citizen of a “commonwealth”) –and so cannot explain the formal moral obligations ofcitizens. For Locke, tacit consent must explain something

17

else, the obligations of noncitizens (those who have notgiven express consent to enter political society or not
had their express consent accepted) – whether visitor,
resident alien, or denizen. Further, Locke does not seemto think that every civil state can (rightfully) claim eventacit consent (however free its subjects are to leave). Any
civil state not founded on the consent of the people, forexample, the Turkish dominion over the Greeks, seems(he says) so unjust that it is not even owed tacit consent.
Any subject may (without injustice) rise against it. (“Whodoubts but the Grecian Christians, descendants of theancient possessors of that country, may justly cast off theTurkish yoke which they have so long groaned under,
whenever they have an opportunity to do it?” (Locke
1947, §192))
We might then read Locke’s appeal to tacit consent
as no more than the claim that noncitizens (including
native-born residents) owe just government (agovernment deriving its powers from political society)obedience while (but only while) they remain within
its domain. Insofar as a government is just, we have an
obligation to defer to its laws. Locke’s “tacit consent”
would then not constitute a literal contract but a quasicontract. The “contract” should be translatable into
non-contractual obligations (an obligation of justice tocooperate with institutions insofar as they are just). On
this interpretation of “tacit consent”, Hume has simply
misunderstood Locke. We can have, according to Locke,(material) obligations from tacit consent (in this sense)
without “choice” but only while we are in a reasonably
just jurisdiction. And that is Hume’s view too (insofar
as society’s interest includes justice). So, for example,
Hume says:
Government is a mere human invention for
the interest of society. Where the tyranny ofgovernment removes this interest, it also removes
the natural obligation to obedience. The moral
obligation is founded on the natural (Hume 1948,
112-3).
Locke and Hume in fact thus seem to agree (more orless) about moral obligations arising from mere presencein the “domains of a prince”. Locke need only admit that
his use of “consent” is analogical for “tacit consent” eventhough literal for “express consent”.
Now let us consider the most important of contemporarysocial-contract theorists. Rawls uses “social contract” inthe moral-analogue sense. His social contract ends “theoriginal position” (a moral state of nature), a condition
from which the principles of justice (and, indeed, of
all morality) are absent. His “contract” involves no(morally binding) consent, only an “agreement” (thatis, a congruence of individual judgments) concerning
the principles to govern the writing of the constitution

18

of one’s civil state (and jurisdiction). Rawls has nothing(positive) to say about a political, civil, legislative, orgovernmental contract. His constitutional convention
merely assumes his two principles of justice (and the restof ordinary morality); his legislature and government,a constitution. His principles of justice leave citizens
generally free to form civil associations. His citizens owe
what he calls “political duty” because they are subjectsof a relatively just government, not because they have
literally consented.
To many, perhaps even to Rawls himself, A Theoryof Justice seems to stand against the possibility of aliteral political contract – but does it? The two cells inquestion – moral analogue and literal political contract– are not necessarily related. In effect, Rawls himself
admits that: He defines “duty” as a moral requirement
resting on considerations of justice rather than fairness.
Moral requirements resting on fairness, including
requirements arising from promise, he calls “obligations”.
Rawls does not, as far as I can tell, ever say whether a“political duty” is a formal requirement, but it seems
that it is not. To show that a political duty, say, the duty
to obey some law, derives from considerations of justicerather than fairness, one would have to know what thelaw says. One would have to consider how the law’s
content comports in every detail with the two principles
of justice. One cannot simply rely on (imperfect)
procedures to guarantee that the law is, absent surface
flaw, free of fundamental flaw (by appeal, for example,
to the authority of “the democratic system”). (Hence,
Rawls’ defense of civil disobedience in a democracy,
1971, 363-77.) Rawls also does not say that “politicalobligation” (as he calls it) is formal. But it seems thatit must be: all (prima facie) moral obligations arisingfrom the principle of fairness are. Rawls’ distinction
between duty and obligation thus seems to track our
distinction between material and formal obligation. For
Rawls, political duty (a material obligation) and politicalobligation (a formal obligation) may both be present insociety, both absent, or one present and the other absent.
They must be (more or less) independent moral entities.
Now and then Rawls even notes this independence.
For example, during his “argument for the principle offairness”, he says:
It is also true that the better-placed members ofsociety are more likely than others to have politicalobligations as distinct from political duties. For by
and large it is these persons who are best able togain political office and to take advantage of theopportunities offered by the constitutional system.
They are, therefore, bound even more tightly to thescheme of just institutions. To mark this fact, andto emphasize the manner in which many ties arefreely assumed, it is useful to have the principle ofFourteen Kinds of Social Contract    Michael Davisfairness (Rawls 1971, 344).
Rawls thus acknowledges a form of actual social
contract (“ties freely assumed”), one by which
individuals enter an existing contract one by one (bytaking office or taking advantage of other opportunities
that political society offers). So, Rawls’ theory of justicecannot be, as is often supposed, a competitor of thosesocial contract theories that appeal to literal contract(governmental, legislative, or political) to establish
a formal moral obligation to obey government, law,or political society. Like other theories relying on an
analogue of contract, Rawls’ theory of justice cannot
answer questions that a theory of literal contract can(questions about political obligation as distinct frompolitical duty). We need not choose between Rawls(whose concern seems to be material obligations ofjustice) and Locke, Rousseau, and Kant (each of whom –according to our matrix – seems to be concerned with asomewhat different question).
One last example: Writing on the history of medical
ethics, Robert Baker argued that the American Medical
Association understood the obligations that its 1847
code of ethics assigned physicians, patients, and the
public as deriving from (what we would call) a civil
contract: “As the three chapter titles to the American
code make evident, the profession’s manifest intent
in drafting the code is to establish a contract, a quid
pro quo, with the public: the profession, on its part,
pledges internal regulation and service in exchange fora societal ratification of the profession’s autonomy andprerogatives” (Baker 1993, 191-92). The 1847 codein fact uses neither the language of contract nor evenanything like “quid pro quo”, but simply speaks of(something like) reciprocal duties (in something like
Rawls’ sense). Consider, for example, Article II.1: “Themembers of the medical profession, upon whom theperformance of so many important and arduous duties
towards the community [fall]…., certainly have a rightto expect and require, that their patients should entertaina just sense of the duties they owe to their medical
attendants.”
Our Question 2 asks whether the contract in question
is supposed to create a formal or material obligation.
Since in each case of reciprocal duties that the 1847
code describes, the duties are connected by material
considerations (“just sense of the duties”), the “contract”
in question can at most be an analogue of contract
strictly speaking – and we are then entitled to ask whatuse “contract” has here. Baker cannot simply answer thatthe use of “contract” brings out the reciprocal nature of
the duties. Their reciprocal nature is obvious from thelanguage of the code itself. What is also obvious fromthe code itself, but lost by being described in contract
terms, is that these reciprocal relations (are supposed

Journal of Applied Ethics and Philosophy     Vol. 1to) arise from the nature of things. They are not mere
conventions. The analogy with contract is not helpful.
The lesson to be taken from what has been said here
is not that there is (at most) one true theory of social
contract. There may be many true theories, if only
because there are many questions (at least fourteen) towhich social contract (of one sort or another) might be ananswer (or part of an answer). The lesson to draw, if only
one is to be drawn, is that we should be more carefulin our use of the term “social contract” than theorists
generally have been – and even more careful in our useof theories associated with the term.

Acknowledgements
I read an early version of this paper to the Humanities Colloquium, Illinois Institute of Technology, October 4, 2002. I
should like to thanks to present, as well Paul Gomberg, John
Kleinig, Michael Lessnoff, and one editor and one reviewer
for this journal for many of the improvements made since.

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Political Patriotism

20

Stan van Hooft

Political Patriotism
Stan van Hooft
Deakin University, Australia

Abstract
As evidenced by the reactions to Martha Nussbaum’s famous essay of 1996, patriotism isa contested notion in moral debate. This paper explores the suggestion made by Stephen
Nathanson that patriotism might be understood as “love of one’s country”, and suggeststhat this phrase is misleading. It suggests that patriotism, like love, is not rational, and it
fails to distinguish two kinds of object for that love: one’s cultural community and one’s
political community. Accordingly, this phrase can lead to a kind of nationalism which involves
chauvinism and militarism and that is, therefore, morally objectionable. The problem arises fromambiguities in the notion of “country” which is said to be the object of such love. Moreover, “love”
is not the appropriate term for a relationship whose central psychological function is that ofestablishing an individual’s identity as a citizen. I suggest that the proper mode of attachment
involved in patriotism is identification with one’s political community, and that the proper
object of a patriot’s allegiance is the political community thought of without the emotional,
nationalistic and moralistic connotations that often accompany the concept of community. The“political patriotism” that arises from such an attitude is sceptical of “the national interest” anddoes not accept that our moral responsibilities to others stop at national borders. In this way
political patriotism is consistent with a cosmopolitan stance towards human rights and global
justice.
Key words: patriotism, nationalism, chauvinism, citizenship, cosmopolitanism.

Introduction
As evidenced by the reactions to Martha Nussbaum’s
famous cosmopolitan essay of 1996, patriotism
is a contested notion in moral debate (Nussbaum1996). Many people think of patriotism as “love of
one’s country”. Stephen Nathanson elaborates on suchdescriptions by defining it as an attitude that involves:
1. Special affection for one’s own country
2. A sense of personal identification with thecountry
3. Special concern for the well-being of the country
4. Willingness to sacrifice to promote the country’s
good. (Nathanson 1993, 34-5)
In what follows I will question the appropriateness ofthe concepts of “love” and “affection” in definitions ofpatriotism and also highlight the ambiguity of the notionof “country” that features in them. I will then propose anormative concept of patriotism, which I call “political
patriotism.” My argument will be that, in contrast tonationalism and other chauvinistic forms of patriotism,
political patriotism is an ethically acceptable stance forcosmopolitan thinkers.

Love of Country
To speak of patriotism as a love or a special affection for
one’s country suggests that it is an emotion. Accordingly,
some writers suggest that it is neither rational nor based
upon a considered judgement (Keller 2007; MacIntyre
2002; Oldenquist 1982). We do not survey the countries

Journal of Applied Ethics and Philosophy     Vol. 1of the world and make a judgement as to which of themis worthy of our affection. If we have such a feeling, we
simply find ourselves with it. Love is not a feeling that isrationally based. In a romantic context, we do not choose
whom we might love, but find ourselves falling into lovewith them. If love were based on a rational appraisal of
the beloved, we would be apt to change our affections if
we met someone who fulfilled our criteria for romantic
excellence more fully than the one we actually loved.
But if we were inclined to do this we would not really bein love. If patriotism were a form of love it would also
be irrational in this way. We would just find ourselves
having such a feeling without any rational basis andwithout any judgement having been made by us about
the worthiness of our country.
Moreover, in all but the most unusual cases, thecountry that we have the feeling for is our country. For
most people this will be the country of their birth, but for
many it will be their adopted country or the country towhich they have migrated. To explain the logical pointthat patriotism is love of our country, we can use theanalogy of parental love. Parental love is love for theparent’s own child. It is not a love of children generally
which happens to be applied to one’s own child. It is
not love of childlike qualities which, because the parent
happens to find them in their child, they then focus theirlove onto that child. It is the love of that particular childsimply because that child is their child. In a similar way
it is said that patriots love their country simply because
it is their country. Using the parental love analogy showsthat it is true by definition that the country a patriot loves
is their own country. They might love or admire othercountries for one reason or another but those loves are
not cases of patriotism, just as loving another’s child is
not a case of parental love. The explanation for parental
love being necessarily directed upon the parent’s own
child is clear. Most often it is based on blood ties and inother cases it is based on a bond that is created throughadoption or a second marriage.
If we endorse the theory that patriotism is a special
case of love: namely, love of one’s country, and if weagree that there is no rational basis for such a love, wemight nevertheless give an account of how patriots
come to love their country. If it is not on the basis ofreasons, then it will be a causal and psychological matter.
It seems to be a psychological fact about most people
that, in the course of their upbringing, they come to love
their countries. Most basically, this will be because theirown country is the country that they are most familiarwith. If their country is the country of their birth, theircountry will also typically be the place where their mostformative and valuable experiences have taken place.
It will be the country whose history they have studiedin school and celebrated in public events and holidays.
At school they will have taken part in rituals such as

21

saluting the flag. It will be the country whose citizens’achievements have been most celebrated in their news
media. The traditional values that they have acquired
will be linked to the traditions of that country. Much of
their experiences of art and entertainment will have cometo them with a significance that speaks to them of theircountry. In some countries they will have heard stories
about ancient links between the people and the land;
between the race and its ties to the very soil upon which
the country is based. In other countries they will haveheard stories about settlers carving a new and civilised
life out of the wilderness, or about the battles that werenecessary to establish the nation in the face of opposition
from invaders or internal threats.
For migrants, on the other hand, there will be stories
of families saved from economic hardship, politicaloppression or religious persecution, and of how the
new country has been a source of refuge or opportunity.
Migrants tend to enjoy split feelings about theircountries. Many continue to feel links to, and take aninterest in, the country of their birth, while also finding
themselves with positive feelings towards the country
in which they have settled. When they return to thecountry of their birth, whether to visit friends or enjoy aholiday, they often feel a special connection to their oldcountry despite many years of separation. They mightfeel themselves torn when the football team of the oldcountry meets the football team of the new. Whom will
they barrack for? One British politician is reported tohave said that it should be part of an English citizenshiptest that migrants barrack for England in such cases (Sen2006, 153). The crucial point here is that we are talking
about feelings and affections which cannot be artificially
produced by rational decisions or certified by loyalty
tests. They are a product of an upbringing which isinevitably imbedded in a specific country.
As plausible as the social psychology accountsketched here might be, I do wonder whether the pictureof patriotism as love of one’s country that it gives us isaccurate. Is patriotism to be understood as an irrationaland socially caused affection for one’s country? Are
the analogies with romantic love and parental love
appropriate? One of the ethical implications of suchanalogies is that such a love should withstand negative
judgements about the beloved. The love of a spouseshould survive most if not all misdemeanours that the
spouse might commit or blemishes in beauty or character
that the spouse might suffer from. Parents should not
reject their children when they fail to fulfil expectations
or even turn to crime, but must continue to support
them out of their love for them. If love of country is like
this, does it follow that patriots must continue to loveand support their countries even if their governments
abuse human rights or engage in unjustified wars? Is
there no point at which a rational appraisal of one’s

22

country’s moral and political status should counter the
positive feelings that upbringing will have produced? Ifrationality plays no part in one’s love of country, thenit would seem not. If patriotism is a special affection
for one’s country, I doubt that we should call it “love”
understood on analogy with such irrational forms as
romantic or parental love.

Identification
Let us consider what is meant by the second clause
above: “a sense of personal identification with thecountry”. “Identification” is an important concept in thiscontext. It refers to how persons understand themselves
and what self-images they have. It refers to what persons
will find important and to what they will give priority.
It refers to the norms they internalise and how strongly
they feel themselves bound by them. If persons identify
themselves as Catholic, to use an example not directly
linked to patriotism, they will see themselves as livinga life dedicated to achieving salvation and union with
God in heaven through participation in the sacramental
life and theological beliefs of the Catholic Church. They
will give priority to the rituals, doctrines and practicesof the Church and think of themselves as Catholics tothe extent that they fulfil those requirements. If they
are in situations of ethical conflict, they will follow
the guidelines of Catholic moral theology and will feelthemselves to be sinners if they should fail to follow
those norms. Their identification with their faith will leadthem to hold very strongly to their moral convictions.
Presented with an idea or a temptation that is contrary
to the norms of their faith, they will reject it, not only
as a violation of those convictions but also as an affront
to who they are. They will also take part in publicdemonstrations of their religious commitment, whether itbe through processions in the city streets or participationin pilgrimages to places sacred to the faith. Moreover,they will relate themselves to the central stories of theirreligion, seeking to live a life that imitates that of Jesus
in relevant respects.
How would what we have learnt about what it is
to identify oneself with a group in the case of religion
apply to patriotism? What would “a sense of personal
identification with a country” amount to? What does itmean to understand oneself, or announce oneself to theworld, as an Australian? It would seem to imply that
one relates oneself to the story of Australia and that one
would want to participate in the rituals that mark one
as an Australian. The history of a country is an ongoingsaga with a vast cast of participants. But there are somepeople who are participants and others who are not.
In calling oneself an Australian one is saying that one
is a participant in that story and not the story of some

Political Patriotism

Stan van Hooft

other country. In this way one can take pride in theachievements recounted in that story, feel shame at thewrongs that have been done in it, and be committed tothe progressive continuation of that story into the future
and to playing a positive role in it. One associates oneself
with other Australians, whether it be sports heroes, starsof entertainment, successful business entrepreneurs, or
soldiers serving in other parts of the world.
Whereas the theory that patriotism is love of one’s
country would say that the processes of psychologicalformation, including engagement with national rituals
and memorials, create affection for one’s country, I
would say that what they produce is identification
with one’s country. If the story of one’s country is
predominantly a positive one, this identification will tend
to produce in the patriot a feeling of pride. The processes
through which a person comes to identify with his or her
country produce, not love for, but pride in, one’s country.
One can feel pride in one’s country to the extent that one
identifies with it and with its achievements. Of course,
there is a negative side to this. The story of Australia also
includes shameful episodes – especially in relation to
the dispossession of the aboriginal inhabitants and theirsubsequent treatment. While the ideological apparatus
which seeks to create positive feelings for one’s country
will stress the positive achievements, the negative
episodes must also be dealt with.
Our identity is a framework from within which we
see the rest of the world. I think about the world andmy obligations within it as an Australian, as a male,as someone well-to-do, as an atheist, as a memberof a family, as white, as ‘Western’ and so on. The
consequence of this is that when I have to decide whether
to extend hospitality to others, the fact that one of thepossible objects of my moral attention is an Australian,
for example, is not so much a factor to be weighed up
along with other factors such as the urgency of theirneed. Rather, it has the effect of drawing my attention tothat person in a way that it is not drawn to another. This
is why in news reports, when seventy people are killed
in some disaster, we have our attention drawn to the fact(or drawn by the fact) that one of them was Australian.
This is clearly not a matter of justice, which ought to be
impartial. But it is a matter of human psychology which
structures and expresses our identity in these and otherways.
If pride is a predominant expression of national
identification in a self-confident country such as
Australia, identification can take other forms in countries
or communities that have been oppressed or humiliatedin the course of their histories. Recent commentaryon the causes of Islamisist terrorism, and on religious
fundamentalism more generally, has described the victim
mentality that often grows out of stories of national
defeat or religious persecution. To identify with aJournal of Applied Ethics and Philosophy     Vol. 1

defeated people is often to court resentment and anger
and to feel that only violence can restore the pride ofone’s people (Armstrong 2000; Ali 2007, ch. 7).
Interpreting love of one’s country in terms of prideand identification helps to explain the very close link
between patriotism and militarism. As a sociologicalfact there seems no doubt that there are very strong
and frequent links between the two. Soldiers marchat almost all of the rituals and celebrations that forge
the identification of Australians with their country.
Australian soldiers posted abroad are said to be serving
their country even in cases where the foreign policies
being pursued are ultimately those of the USA or when
they are serving as part of a UN mandate. The bodies of
war casualties and even of those who died by accident
or friendly fire in foreign campaigns are brought homein coffins draped in the national flag. To be a soldier andto face danger in uniform is seen as the quintessential
example of patriotism. The stories that constitute thehistorical lore of a nation will most often be stories ofbattles fought and won in order to establish and defend
the national borders. These stories invite contemporarycompatriots to identify themselves with the bravesoldiers whose past exploits have forged the nation andits national character. Soldiers put their lives at risk,
and those of us who sit comfortably at home readily
identify with them in order to swell our pride. The
sacrifices made by soldiers also highlight the fourth ofNathanson’s explications of what love of country mightmean: namely, “Willingness to sacrifice to promote thecountry’s good”. Soldiers are seen as being willing to
make the ultimate sacrifice, and many do. Whether they
do so explicitly or self-consciously for the sake of theircountries or whether their soldiering was just a way toescape unemployment or meaninglessness is immaterial.
The rhetoric of patriotism will ensure that their deaths orwounds are interpreted as gifts to the nation with which
their compatriots can identify.

Concern
The third explication of what love of country mightmean was, “special concern for the well-being of thecountry”. This might be thought to extend to a special
concern for one’s compatriots. But, very often, “the wellbeing of the country” is understood in economic terms.
When Australians are urged to buy Australian products,
for example, the prosperity is envisaged as benefiting thewhole national community. It might begin by being theprosperity and profitability of the Australian companies
whose goods are being favoured, but through secure
employment and contributions to an equitable system ofsocial welfare through taxation, this prosperity should
flow through to the whole country.

23

Such examples raise the question of what might
be meant by “the national interest”. It would seem toinclude national prosperity based on successful private
enterprise, along with protection of the borders and thestate’s territorial integrity. National security is often said
to be central to the national interest, but this frequently
extends from protecting the nation’s territory andcommercial resources at home to enhancing economic
opportunities and securing natural resources abroad,whether by diplomatic or by military means. But themore important question is whether the objects of theseinterests correspond to what is loved when we speakof “love of country”. By and large the national interest
corresponds to the interest of the nation-state. Given
that the nation-state is a legally defined jurisdiction overwhich a government holds responsibility and within
which commercial enterprises and individuals engage intheir activities and pay taxes, there can be no doubt that
there is a close link between every individual’s pursuitof sustenance and prosperity and the success of thenational economy and of the government in protecting
it. However, is this what we love when we love ourcountries? Is this what we take pride in when we identify
with our countries? Is this what we are concerned forwhen we display a “special concern for the well-beingof our country”? There may be some instances where
we take pride in the achievements of our country’s
entrepreneurs just as we do of our country’s sporting
champions, but this will be because they are conspicuous
high achievers with whom we can identify rather
than because they have contributed to the country’s
prosperity. Indeed, we admire them even if the profits
they have generated go off shore. It is enough that they
are our compatriots and that they are successful. Our
pride and identification is based on their being successfulcompatriots rather than upon the benefits they may
have given our nation-state. It seems, then, that love ofcountry is not always coextensive with a special concern
for the national interest.

Country
Let us return to the phrase “love of one’s country”. I
have suggested that “love” should not be understoodon analogy with romantic or parental love, but that
it is better understood as a psychological form ofidentification, which ideally leads to pride in one’s
country and concern for its well-being. But what do
we understand by “country”? Do we mean the nationstate of which one is a citizen, in whose political andcommercial life we participate, and whose laws structure
our lives? The social psychology account given above
seems to suggest a different answer. This suggeststhat our bonds of loyalty are forged with our historicalPolitical Patriotism

24

people, its language, culture, and traditions. We may
love the ethnicity which has shaped us and our outlook
on the world. We may feel an attachment to the land on
which we are born and whose very physical features
have engrained themselves upon our hearts. We may
relate to the religion of our forefathers or to the music
and iconography we experienced as children. None ofthis may bear any direct relationship to the national
citizenship with which we find ourselves. National
borders are notoriously arbitrary. Borders often split
peoples who share traditions and languages into different
states, not only in countries that were once colonies
of European powers, but even in countries with long
histories of autonomy and political independence.
Consider the Belgians, the Kurds, the Basques or the
Tibetans. The most egregious examples are in Africa
where hardly any borders correspond to the homelandof a people united by cultural traditions and ethnic
identities. So what is the object of patriotism? Is it one’s
country defined as the nation-state of which one is a
citizen, or is it the ethnic, religious, or cultural groupwith which one identifies (Parekh 2003)?
According to Anthony Giddens,
The nation-state, which exists in a complex ofother nation-states, is a set of institutional formsof governance maintaining an administrative
monopoly over a territory with demarcatedboundaries (borders), its rule being sanctioned bylaw and direct control of the means of internal andexternal violence (Giddens 1985, 121).
The notion of one’s country could refer to either
this purely administrative notion of the nation-state,or to one’s community bound together by history,
ethnicity, language, or a common social project. Manystates contain a number of such communities (andsometimes not as wholes). It seems, then, that thenotion of “country” as the object of one’s affection or
identification is ambiguous. It follows that the notionof patriotism is ambiguous. It can mean identification
with one’s traditional, ethnic, religious or national
community, or it can mean one’s loyalty to the borderedpolitical community or “polity” of which one is a citizen.
Nathanson’s use of the term “country” obscures thisambiguity and the true nature of the object of one’s
loyalty or allegiance which he describes as “love ofcountry”. But insofar as he places stress on emotions
such as affection, it seems to me that the proper objectof the patriotism he describes is the cultural community
with which one identifies rather than the nation-state ofwhich one is a citizen.
One should not adopt an inflated conception of one’s
national-state or of one’s nationality. One’s nationality is
nothing more than one’s membership of the nation-state

Stan van Hooftof which one is a citizen. It is simply what is indicated on
one’s passport. If it is morally valuable it is for the same
reasons that one’s citizenship is morally valuable. One’s
nationality understood as citizenship shapes one’s moral
commitments as a matter of pragmatic convenience andreciprocal justice. All that is needed in even the most
multicultural of societies is that all the individuals andcommunities that comprise it respect the rule of law,
contribute to the common good by paying taxes, andparticipate in its political processes in appropriate ways.
This is what is meant by a “polity”. One’s nationality
is one’s membership of a political community to which
one has moral obligations as a citizen. Any deeper formof loyalty such as “love of country” is an optional extra.
It seems either artificial or ideological to speak of acommon project of seeking a good life (Taylor 1996,
119-21) or of an “imagined community” (Appiah 1996,27). The polity of which one is a member is a politicalreality that has legal and pragmatic effects, while one’s
community is the object of one’s affections and thesource of one’s identity.

Nationalism
The idea of a nation as an “imagined community”
united by a common national project, culture or ancestry
contributes to the ideology of nationalism. Nationalism
became prominent in Europe during the nineteenth
century and was used by rulers of European statesin order to foment hatred of other nation-states andto encourage people to enlist in armies which would
then engage in military adventures against each other(Cobban 1969). As an ideology it served the interestsof ruling classes in their colonial expansion and in theircompetition with other nations for wealth and glory. It
also served their interests by redirecting social unrest andquests for social justice into hatred of foreign powers.
This led to the emergence of the modern European ideaof a nation as a territory and a population coextensivewith administrative borders and legal jurisdictions
reinforced with a mythology which spoke of thedestiny of a people as defined by those borders. “Nationbuilding” – at least in its nineteenth century European
forms and also its post-colonial forms in the emerging
world – involved the attempt to bind people to thenation-state by bonds that are more than just pragmatic orbased on shared interests or reciprocal duties. Even in theabsence of a unifying tradition, religion or ethnicity, whatsuch processes seek to create is allegiance and loyalty to
the nation which go beyond merely instrumental formsof membership.
Accordingly, the psychological phenomenon ofnationalism occurs when one’s identity-shaping
community and one’s nation-state are felt to correspond.

Journal of Applied Ethics and Philosophy     Vol. 1

For a nationalist, the connection that one has to one’s
nation-state will not feel arbitrary or merely pragmatic.
It will be felt as an inseparable part of one’s identity. It
is an object of commitment. The nationalist transfers
the bonds he feels with his ethnic, linguistic or religious
community to the nation-state of which he is a citizen.
Cosmopolitans would be highly suspicious of these kindsof allegiance or loyalty and would see them as forms ofnationalism that ought to be avoided. Loyalty to one’s
identity-forming community is a valid form of belonging,but nationalism is a dangerous ideology (Appiah 2005,
ch. 6).
But why is it important to avoid nationalism? Is
there anything morally questionable about feeling ahigh degree of identification with one’s nation-state?
Would such a degree of identification lead to morally
reprehensible forms of tribalism? To begin to explore thisquestion let us return to Stephen Nathanson. Nathanson
speaks of extreme forms of patriotism which involve:
1. A belief in the superiority of one’s country
2. A desire for dominance over other countries
3. An exclusive concern for one’s own country
4. No constraints on the pursuit of one’s country’s
goals
5. Automatic support of one’s country’s military
policies. (Nathanson 1993, 29)
I would suggest that this sketch accurately describes
nationalism. If I am right in this, then nationalism
would be distinguished from patriotism not only byhaving a different object: namely, the nation-state, butalso by being a different kind of stance towards that
object: namely, an irrational commitment bordering
on fanaticism. I would suggest that, if love of country
or identification with one’s country takes the form ofnationalism as explicated above, it is not a morally
valuable stance or one which should take priority over
the outlook of cosmopolitanism.
The five attitudes above that constitute extreme
patriotism or nationalism are irrational. If everyone
around the world believed that their own country was
superior, most of them would have to be wrong since
only one country can be superior. The desire that one’s
country have dominance over others is the same desire
for glory and status which have led rulers and kings
into battle with each other for centuries. Whether suchbattles are fought in contemporary business board rooms
or the cabinet rooms of governments, the logic of suchcompetitiveness leads inexorably to war. In a world offinite and diminishing resources, competitiveness canonly lead to struggles over access to such resources.
Third, to be concerned for one’s own country at theexpense of others or even to the exclusion of others is
simply a case of selfishness writ large. Just as selfishness25

is morally vicious if it is pursued at the expense ofothers or through exploiting others, so national interestis ethically reprehensible if pursued at the expense of,or through the exploitation of, other peoples. It is also
irrational in that it will lead to resentment and thence tointernational instability. Fourth, anyone who thinks that
there are no constraints on the pursuit of one’s country’s
goals is someone who would be prepared to break both
civil and international law, and also any moral norms,
in order to secure their country’s interest and power.
Fifth, the link so often made between patriotism andmilitarism can often lead to automatic endorsement of acountry’s military policies. No matter how unjustified awar might be, anyone who questions it will be deemed
disloyal or a traitor. Any dissent will be deemed an insult
to the sacrifices made by the soldiers brought back inbody bags. Any consideration of the humanity or of
the interests of “the enemy”, or the deaths and injuries
suffered by their civilians and soldiers, will be deemed
cowardly and treasonous.
It should not be necessary to take much time to showthat these attitudes are irrational and unethical. However,
if one has conceived of nationalism as an extreme formof patriotism and of patriotism as love of one’s country,
and hence as an emotion not subject to the scrutiny ofreasonable reflection, then it is very difficult to say how
this irrational form can be avoided. If nationalism is
an extreme form of patriotism and if patriotism is an
irrational emotion then how can reason and common
sense be deployed in order to prevent this extreme being
reached?

The Ethics of Patriotism
We now have a number of intersecting distinctions. We
have Nathanson’s distinction between patriotism andextreme patriotism, along with my suggestion that thisextreme patriotism should be thought of as nationalism.
Nathanson clearly disapproves of extreme patriotism
but not of what he calls “moderate patriotism”. Then we
have my suggestion that patriotism is itself an ambiguous
notion referring to both a form of pragmatic and legal
citizenship of the nation-state of which one is a member,and to allegiance to the people with whom one identifies
and whose traditions one feels oneself belonging to. I
have already explicated this form of patriotism throughthe process of identity formation rather than through theanalogy with irrational love. I must now ask what moral
judgements should be made about such processes and to
the attitudes they produce.
In order to do this, let us use a different analogy.
Imagine that you are a fan of a football club. Your
parents supported the club before you were born andtook you to its matches from an early age. You now

26

take a keen interest in the club’s activities. You attend
all the matches you can, even travelling long distancesin order to do so. You dress in the team’s colours andgive friendly greetings to strangers dressed in the same
colours. You enjoy talking with other supporters aboutpast premierships and heroic deeds performed by starplayers. At the matches you barrack loudly, abuse theumpires, argue with the supporters of the opposing team,sing the club anthem vigorously, regard any free kicks
awarded against your team as unjust and any awarded
against the opposing team as thoroughly deserved, andso on. When the team wins you are elated and when
they lose you feel crushed. You have done nothing
more than add your voice and enthusiasm to the large
crowd of supporters but when your team wins, you bask
in its glory. When it loses you feel despondent. Whenits players cheat you feel real shame and when they
display the virtues of sportsmanship you feel pride. You
are a law-abiding citizen so you don’t become drunkand disorderly during or after the game and you do not
engage in any hooliganism or violence against opposing
supporters or their property. Nevertheless, you are heartyand boisterous in support of your team. In discussions
with others you will claim that yours is the best team,prevented from taking the premiership only because of
bad luck or bad umpiring decisions. You give money
to the team through club memberships and raffles. Yougive priority to going to the matches over most othersocial events, and you read the sporting pages of thepress avidly every day for news of your team’s players.
In short, you love your team, are irrationally committed
to it, take great pride in it, and identify yourself with it.
It is easy to see how this sketch offers a suitable analogy
for patriotism and even for nationalism. All the featuresof those phenomena listed above are present. This
allegiance came to you as part of your upbringing andis now part of your social and existential identity. Youlove your team and are prepared to make sacrifices for its
well-being.
The way in which many people passionately follow
their sports teams or sporting heroes tells us something
about the human condition. Friedrich Nietzsche(1844-1900) has argued that all of life – and thus humanlife also – involves struggles for domination. He calls
this “will-to-power”. Animals compete against one
another not only for access to food and resources andthus for survival, but also for dominance in their groups
and for access to mates. In the context of human life,
this competitiveness is sublimated and transformed intoa struggle for status, self-affirmation, self-differentiationand dominance over others. We all want to shine. We
want to be unique. We avoid merely fitting in with themass of people. We pursue activities that require highlevels of ability and we often create formal competitions
to decide who has acquired the greatest skill. Alongside

Political Patriotism

Stan van Hooft

sporting competitions, we have musical talent quests,
beauty pageants, and business competition. We arerestless to succeed and to be better at our chosen callingthan anyone else. Of course, these inclinations aretempered somewhat by ethical rules and constraints of
etiquette so that the achievements that flow from them
are turned to the benefit of others, but, without these
constraints, human life would be a cut-throat struggleof the kind that Hobbes had postulated. It is not always
a matter of acquiring power over others. It is often apursuit of recognition and of status. We want to beacknowledged and we want our achievements praised.
But we do not only want this for our individual selves.
We also want it for the groups we identify with. We
want our people or our club to be acknowledged andrecognised. Moreover, we bask in the glory that our clubor our people might achieve. Being a fan of a sporting
club illustrated this well. We identify with the club.
The basis of this identification might be historical – ourparents and their parents also followed that club – or
geographical – we live in the town of which that clubis the representative – or arbitrary – we like the colourof their livery. But once we have made the commitment
and identified ourselves as a fan of that club, then the
successes of the club become our successes and its
failures become our failures. Our enthusiasm for theclub is an expression of will-to-power mediated bypsychological identification with that club.
My first suggestion is that patriotism, both in its
moderate and extreme, nationalist forms, should beunderstood as a form of will-to-power in the same way
as being a fan of a football club can be.
But there is a crucial difference. However intense
your enthusiasm for a football team or a sports hero andhowever total your commitment to them, you are always
able to say to yourself that it is only a game. If you area rational person, you will be aware that none of theexcitement, ritual, legends, heroes, victories and losses ofa football club is of ultimate importance. You might notever say this to yourself and the rhetoric into which you
have immersed yourself may seem to speak of ultimacy,
but you would not be prepared to kill anyone to defend
the honour or interests of your team. You would notrefuse to attend you spouse’s funeral if it were held on
the afternoon of a match – even if it were a Grand Final.
Joking with friends over a few drinks you might swear
that nothing is more important to you than your team’s
fortunes, but you would secretly know that you wereacting out a part. You would be able to laugh at yourself.
You would enjoy your commitment as a kind of play
acting or a charade. Taking it seriously and avowing its
ultimacy is part of that game. You identify yourself as ateam supporter and you would play out the role that thisgives you, but you would be subliminally aware that it isa role. Your commitment would be ironic.

Journal of Applied Ethics and Philosophy     Vol. 1

Such irony is not appropriate in the context of love.
You don’t love your spouse with the secret thought that
it is only a game. You don’t love your child with animplicit laugh at the role you are playing as a parent.
My second suggestion is that patriotism should beunderstood through the analogy, not of romantic orparental love, but of being a football fan. If the irony andhidden detachment that marks a reasonable commitment
to a football team could be applied to one’s commitment
to one’s country or one’s people, then patriotism could
be seen as an ethically harmless commitment and theexcesses of nationalism could be avoided. Nationalism
or extreme patriotism arises when the commitment to
one’s country becomes absolute and inflexible so as
to override any moral constraints and any norms of
reasonableness. This suggests that a morally acceptableform of allegiance to country – whether in the formof the nation state or in the form of one’s people andits traditions – is a form that is attended by flexibility
and an absence of absolutism: that is, by irony. Just as
a rational person must judge that a football team has
no ultimate importance, so one needs to consider how
important the object of one’s patriotic allegiance shouldbe. My love for my spouse has an object that is highly
significant and demanding and any degree of irony
would be inappropriate. I would say the same in relation
to my child. But of my country we can certainly ask
how important it is and what the degree and scale of ourcommitment should be. Insofar as nationalism or extreme
patriotism is a form of commitment which smacks of
fanaticism, any degree of irony will destroy it. And so it
should.
But does this mean that the milder form of patriotism
that Nathanson has described and which he espouses
can be endorsed by a cosmopolitan? While I think such
patriotism is as harmless as barracking for a footballteam, I don’t think it should be given much ethicalsignificance or normativity. In and of itself one’s country
is of little importance. Both patriotism and nationalism
become pernicious if the special focus upon one’s
country that they espouse elevates that country into
having an importance of its own and militates against thescope and urgency of one’s concern for human rights andsocial justice at a global scale. The ethical commitmentof a cosmopolitan is to human rights and global justice.
The cosmopolitan’s own country has a role to play inthe pursuit of human rights and global justice both in its
internal policies and in its foreign policies. Accordingly,
the cosmopolitan pursues her global ethical concerns
through the political processes of her own country andtherefore has some commitment to those processes.

27

Political Patriotism
Accordingly, what we need is a political conception of
patriotism. I define “political patriotism” as loyalty tothe polis of which one is a member. I intend, with thisphrase, to echo the notion of “political liberalism” used
by John Rawls, through which he articulated the ideaof a pragmatic approach to political engagement free ofcommitments to values and conceptions of the good life
not shared by all (Rawls 1993). My concept is also akinto that of “constitutional patriotism” espoused by Jürgen
Habermas, which expresses feelings of solidarity thatgrow out of democratic participation rather than out ofcommitments to romanticised notions of the nation or toethnic, linguistic or religious communities (Habermas
1996; Lacroix 2002). It was Socrates in the Crito who
first articulated this form of social and political loyalty
and respect for the rule of law. Offered the chance toescape from prison and his judicial execution, Socrates
refuses on the ground that “the Laws” have been ofservice to him by establishing the society in which he
was able to flourish, and have thereby earned his loyalty
and commitment. To subvert the rule of law by escaping
would be to undermine the political consensus uponwhich Athens has established its social order. Whereas
other cities were ruled by power, force and fear, Athens
was a polity that depended upon the cooperation of its
members. This cooperation is an instance of political
patriotism: a practical stance towards the politicalstructures of which one is a part based upon the extent
to which those structures protect human rights andproduce social justice. In the modern European tradition
this idea is best expressed by the notion of a social
contract through which both the legitimacy of thestate and the citizen’s obligation to respect the rule oflaw are established by an implicit acknowledgementof the contract-like practical commitment of both tosocial justice. Allegiance to the state is secured by
the state’s adhering to its part of the implicit bargain
when it protects citizens from foreign incursions
or from domestic criminality and when it secures ajust distribution of social goods. This allegiance tothe state is expressed by a willingness to contributeto the common weal by paying taxes, serving in the
military, contributing to the economy, and participatingin political decision making. This form of patriotism
may be most readily elicited in a modern, pluralist
and liberal state, but it can also arise in other forms ofpolitical organisation in which rights are protected andthe laws applied impartially. Such patriotism defines thepolitical community as an object of one’s allegiance.
The willingness to participate in the political process inaccordance with civic duty is a form of that allegiance.
However, the political community is seen, not as an

Political Patriotism

28

object of ultimate importance or blind loyalty, but as ameans for securing the political goals of justice and theprotection of human rights. This form of patriotism is
not seduced by the romance of the nation or constrainedby the sanctity of tradition. Nor does it imagine that thedemands of human rights or of justice stop at the bordersof the state of which one is a citizen. Political patriotism
could even be seen as a practical and localised form ofcosmopolitanism.
Nathanson’s argument against militaristic forms of
patriotism provides an unintended hint of this idea.
He argues that it is a mistake to admire as patriotic
only soldiers who are prepared to, or actually have
had to, give their lives for their country. We should be
prepared to praise as patriotic anyone who sacrifices
something to promote the country’s good: people like firefighters, nurses and teachers. According to Nathanson,businessmen who pay their taxes, judges who administer
the law with impartiality and politicians who seek thepeople’s good without fear or favour are all patriots
in this sense. I would respond by arguing that theterm “patriot” has now become too broad. What these
ethically admirable people are doing is pursuing a rangeof values which are good in themselves. The national
identity of these values or of the people who benefit
from them is irrelevant. Safety from fire, social justice,impartiality in the rule of law, education and health care
are all values that it is good to pursue. But they are notvalues that depend on any identification with a nation ora country. It is admirable to pursue them and we should
praise those that do so, but it adds nothing to expressionsof that admiration to call those that one admires in suchcontexts patriotic. It is commitment to people, to justiceand to human rights which motivates such virtue. One’s
country has nothing to do with it.
And yet it does at a political level. If we interpret“one’s country” as the nation-state of which one isa citizen or legal resident, then we can acknowledge
the political system of this nation-state as the forum
in which we can pursue the moral values of humanrights and social justice. The nation-state has a role toplay. The administrative concept of a state is a socialand historical necessity (Glazer 1996). The territorialboundaries of legal jurisdictions need to be defined. The
range and scope of government responsibilities need tohave borders. And the capacity of political institutions
and participants to effect change is limited and definedby such jurisdictions and boundaries. If the governmentof a state or its citizens wanted to effect a change inanother state for humanitarian reasons, they would nothave the jurisdiction to do so and would have to act on agovernment-to-government basis or through international
political institutions such as the UN. The issue ofhumanitarian intervention is a vexed one, but my point
for the moment is that any actions taken in the pursuit ofStan van Hooftsocial justice or for the protection of human rights aroundthe world need to be taken through governmental andpolitical institutions in one’s own state and in the otherrelevant state. Even cosmopolitans have to acknowledge
the practical importance of the state in the pursuit of both
cosmopolitan and national goals. It is this necessity thatgrounds that form of patriotism I have called “political
patriotism”.
Igor Primoratz has argued that patriotism may
consist in pride in one’s nation-state based on the moral
accomplishments of that state rather than upon its
successes in international competition, whether in thefields of commerce or war. Primoratz calls this “ethicalpatriotism” and describes it as a concern for the ethicalstatus of one’s country and of its moral standing in theworld community (Primoratz 2008). This position does
not pursue the political, economic and cultural advantage
of one’s country – either exclusively as in extreme
patriotism or critically as in moderate patriotism, but its
moral interests. It asks a country to take a cosmopolitan
stance in its foreign policies. What one’s commitment
is to when one is an ethical patriot in this sense, is thevalue of global justice and the importance of humanrights both within one’s own nation-state and beyond
it. One’s nation-state is merely a vehicle for pursuingthose values. At best the pride one might feel in one’s
citizenship of an ethical state will serve to motivate thepolitical engagement which ensures that one’s state acts
as a good global citizen. But the state is not, of itself, anappropriate object of nationalist or patriotic fervour.

Self-Determination
There is one qualification that I need to make to myrejection of nationalism as extreme patriotism of theform expressed in such slogans as “my country, right orwrong!” and of even moderate patriotism understoodas “love of country”. Nationalism can have politicallyprogressive effects as well as bellicose and competitiveeffects. As Immanuel Wallerstein has argued, solidarity
can be a weapon of the weak against the strong. Only
the strong can afford to be cosmopolitans (Wallerstein1996). When a people united by language, culture or
tradition is subjugated or colonised by a more powerfulpeople or state, its sense of itself as a people and theway in which individuals identify themselves with theirlanguage, culture or tradition can become a powerfulpolitical force. Struggles for national liberation or for
self-determination on the part of peoples are seen by
many commentators as legitimate and are frequently
acknowledged by international law. The UN affirms
the right of peoples to self-determination although it
acknowledges that it is neither practicable nor desirable
for all peoples united by language, culture or tradition toJournal of Applied Ethics and Philosophy     Vol. 1

become sovereign states. Self-determination needs to begiven form as political autonomy within federated states
or other political structures acceptable to all concerned.
Whatever the difficulties that arise from struggles for
self-determination, my point is that they are motivatedby a form of nationalism which is politically legitimate.
Such forms of nationalism are political expressions of
linguistic, religious or cultural forms of identity and,as such, are deeply motivational. They are yet anotherform of Nathanson’s “love of country”. While I would
consider that a dose of irony is morally required foreven these kinds of nationalists, I would consider themlegitimate bases for political engagement and struggles
for human rights and social justice in those cases wherea people is unfairly subjugated or oppressed. It is atsuch points as these that identification with one’s people
combines with political patriotism to produce a valid
form of nationalism.

Conclusion
Patriotism can be an ethically appropriate identification
with one’s political community. It is appropriate to theextent that one’s political community honours humanrights and pursues justice in all parts of the world. In
this way it does not put the national interest or dreamsof national glory ahead of cosmopolitan values, and it
does not imagine that one’s own nation, ethnic identity or
cultural traditions are of paramount importance.Political
patriotism is leavened with a touch of irony.

Acknowledgment
This essay develops ideas discussed in Stan van Hooft(2009), Cosmopolitanism: A Philosophy for Global Ethics,
Chesham, UK: Acumen.

29

References
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Islam and the West, Sydney: Picador.
Appiah, K.A. (1996), ‘Cosmopolitan Patriots’, in M.C.
Nussbaum, op.cit., 21-9.
----- (2005), The Ethics of Identity, Princeton: Princeton
University Press.
Armstrong, K. (2000), The Battle for God: Fundamentalism in
Judaism, Christianity and Islam, London: Harper Collins.
Cobban, A. (1969), The Nation State and National SelfDetermination, rev. edn. London: Collins.
Giddens, A. (1985), A Contemporary Critique of Historical
Materialism, vol ii. The National-State and Violence,
Cambridge: Polity Press.
Glazer, N. (1996), ‘Limits of Loyalty’, in M.C. Nussbaum,
op.cit., 61-5.
Habermas, J. (1996) ‘Appendix II: Citizenship and National
Identity’, in Between Facts and Norms: Contributions to a
Discourse Theory of Law and Democracy, transl. W. Rehg,
Cambridge, Mass.: MIT Press, 491-515.
Keller, S. (2007), The Limits of Loyalty, Cambridge: Cambridge
University Press.
Lacroix, J. (2002),.‘For a European constitutional patriotism’,
Political Studies, 50 (5): 944-58
MacIntyre, A. (2002), ‘Is Patriotism a Virtue?’, in I. Primoratz(ed.), Patriotism, Amherst, NY: Humanity Books.
Nathanson, S. (1993), Patriotism, Morality, and Peace,
Lanham: Rowman & Littlefield.
Nussbaum, M.C. (1996) (ed.), For Love of Country? (edited by
J. Cohen for Boston Review), Boston: Beacon Press.
Oldenquist, A. (1982), ‘Loyalties’, Journal of Philosophy,
LXXIX: 173-93.
Parekh, B. (2003), ‘Cosmopolitanism and global citizenship’,Review of International Studies, 29: 3-17.
Primoratz, I. (2008), ‘Patriotism and Morality’, forthcoming in
the Journal of Moral Philosophy, 5.
Rawls, J. (1993), Political Liberalism, New York: Columbia
University Press.
Sen, A. (2006), Identity and Violence: The Illusion of Destiny,
New York: Allen Lane.
Taylor, C. (1996), ‘Why Democracy Needs Patriotism’, in M.C.
Nussbaum, op.cit., 119-21.
Wallerstein, I. (1996), ‘Neither Patriotism Nor Cosmopolitanism’, in M.C. Nussbaum, op.cit., 122-4.

Principles of Paternalism    Simon Clarke30Principles of Paternalism
Simon Clarke
University of Canterbury, New Zealand

Abstract:
When, if ever, is paternalism justified? I defend the principle that paternalism is justified only
if it is neutral, that is, the motivation for it is compatible with all conceptions of the good life.
Three other principles of paternalism are examined. The balancing view says that we must
balance the values of liberty and well-being against each other and that paternalism is justified
only if well-being outweighs liberty. The consent principle says that paternalism is justified
only if consented to. The voluntariness principle says that intervention is justified only when
the conduct in question is substantially nonvoluntary. These three views are either implausible,
plausible only if they are supplemented with the neutrality principle, or plausible only because
they already presuppose that principle.

Keywords: paternalism, liberal neutrality, consent, voluntariness.

Paternalism is the restriction of an individual’s freedom
for his or her own good. Laws against drugs, prostitution,
pornography, gambling, and euthanasia, insofar as they
are intended for the good of those whose freedom isrestricted, are examples of paternalism. They mightalso involve other issues, such as harm to others or theviolation of moral principles, but they are often to someextent paternalistic since the rationale underlying thelaws is partly that the restriction of freedom is for thegood of the one restricted. When, if ever, is paternalism
justified? One extreme view is that paternalism is neverjustified. This is the view expressed by Mill’s liberty
principle:
The only purpose for which power can berightfully exercised over any member of a civilisedcommunity, against his will, is to prevent harm toothers. His own good, either physical or moral, is
not a sufficient warrant (Mill 1859, ch. 1 para. 9).
At the opposite extreme is the view that paternalism isjustified whenever it would be to the benefit of someone.
Restrictions of freedom that are misguided might end up
making the person worse off and would for that reason
be unjustified. But if they do benefit the person, on thisview that is sufficient to make the intervention justified.
Perhaps the truth lies somewhere in between these
two extremes. Paternalism is surely sometimes justified
but not just whenever it succeeds. Even if it does,
there are other considerations – such as the value ofrespecting individual choice – to be taken into account,which rule out some but not all paternalism. Principles
of paternalism attempt to set out these considerations.
In this article, I will defend a particular principle ofpaternalism, one that requires paternalism to be guided
by considerations that are neutral between different
conceptions of the good life. I start by setting out thatview and then examining three other principles ofpaternalism. The article argues that these other principles
are either implausible, plausible only if they aresupplemented with the neutrality principle, or plausible
only because they already presuppose that principle.
Although paternalism can occur between individuals,
this paper will be concerned only with the issue of statepaternalism, that is, the question of whether and when
government may justifiably have paternalistic policies.

Journal of Applied Ethics and Philosophy     Vol. 1

1. The Principle of Neutral Paternalism
The principle of paternalism I will defend sets anecessary condition for justified paternalism: paternalism
is justified only if it is neutral. According to the ideal ofneutrality, justifications for government action should
not appeal to any conception of the good. Instead,state action ought to be based on rationales that arecompatible with a wide range of conceptions of thegood. (Defenders of neutrality include Rawls 1993;
Barry 1995; Larmore 1987; and Nagel 1987.) Without
this neutrality constraint, it would be permissible forgovernment to be guided by a conception of the good. If
it is good to appreciate high culture, for example, thenthe state has reason to encourage such appreciation. In aneutral state, on the other hand, opera should receive no
special treatment over soap operas or wrestling (thoughsome neutralists have tried to show that such support canbe justified without violating neutrality (Dworkin 1985)).
I am not sure whether we should accept neutrality for
all state action. Powerful critiques of neutrality include
those by Raz 1986; Sher 1997; and Wall 1998. But weshould accept it for paternalistic action. Paternalism thatis non-neutral is illegitimate, while paternalism that isneutral, on the other hand, may be justified. Giving aprecise account of this distinction is difficult. The basic
idea is that non-neutral paternalism is motivated by aparticular conception of the good life or some elementof one, while neutral paternalism is motivated byconsiderations that are compatible with all conceptions of
the good. Some examples help illustrate the distinction.
Forcing someone out of his couch potato lifestyle would
be contrary to the paternalised’s own conception of thegood. Censoring bad music for the good of those who
would otherwise listen to it involves intervention thatis motivated by a particular conception of good music.
Forcing a blood transfusion upon a Jehovah’s Witness
would violate her own understanding of her good as
conforming to her interpretation of the teachings ofJehovah. Intervention with a mountain climber who fully
appreciates the risks involved would rest on an appeal toa prudent and safe conception of the good as better than alifestyle of risk and danger. The requirement of neutrality
blocks these cases of paternalism that are driven by nonneutral considerations.
An example of neutral paternalism is hygiene
regulations for food manufacturers. They are paternalistic
since consumers lose the option of buying food not
subject to such regulations (which would be at a lower
price), but they are neutral since no conceptions of thegood would require not avoiding contaminated food. Ifsome lifestyles do involve eating contaminated food,then even this paternalism would be non-neutral unlesssome way could be found to exempt people with those31

lifestyles from the regulations. So, what is neutral turns
upon whether some values are generally sharable by
all conceptions of the good. If a paternalistic policy isbased on a good that is in conflict with a conceptionof the good, then it is non-neutral. Other examples of
non-neutral paternalism include (inasmuch as they are
paternalistic) laws against pornography, prostitution,
drugs, and incest. Other examples of neutral paternalism
include traffic regulations, food labelling requirements,
vehicle and machinery safety regulations, and laws
against misleading advertising. These all close some
options for people’s own good, but without appealing toa particular conception of the good. Rather, the ideas of
the good that underlie them (for some ideas of the goodmust underlie any paternalism) are general ones that do
not conflict with any particular lifestyle or doctrine.
Requiring neutrality for paternalistic action leaves
open the possibility that government could base its noncoercive and non-restrictive policies on non-neutral
considerations. Supporting the arts, for example, so longas people are not forced to appreciate them, would be
non-neutral non-paternalism. A state-supported religion
could also be legitimate so long as people are not forced
into it. (See Clarke 2006 for more detail.)This account of neutrality is still rather loose.
Defenders and critics of neutrality have themselves
struggled to clearly define the concept of neutrality,
but I will assume that something like the above is acoherent distinction. The principle of neutral paternalism
permits some paternalism but only when it is guided byneutral considerations. Even if paternalism guided by
non-neutral considerations would benefit someone, it
is ruled out. Why should we accept this principle? One
way of defending it would be to argue for neutrality
generally. If there is a strong argument for neutrality,
then all state action must be neutral, and hence so must
paternalistic state action. However, it is not clear that weshould require neutrality for all state action. It is possible
and perhaps plausible to permit non-neutral action solong as it is not paternalistic. Funding the arts is nonneutral but not paternalistic so long as people aren’t being forced into art galleries (Clarke 2006). Instead,the method I shall follow is to examine a number ofprinciples which provide alternative explanations forwhen and why state paternalism should be limited, andcriticise these principles. The principle of neutrality, I
shall argue, emerges as underlying these principles. I
argue that the alternative principles are either in various
ways problematic or insofar as they are plausible, theyneed to be seen as complements of neutrality rather thanalternatives to it.

32

2. The Balancing View
One possible explanation concerning the justifiabilityof paternalism is the balancing view, which its
main defender, Daniel Brock, claims is ‘the natural
view in commonsense morality’ (Brock 1988, 551).
According to this view, there are two values at stake inpaternalism. The first is the value of liberty, the valueof people choosing and pursuing those choices without
interference. The other value is individual well-being,
which paternalism aims to protect or promote. The twovalues coincide when a person freely chooses that which
is for her own good, but they conflict when a personchooses contrary to her own good. In these conflict cases,
the person’s good could be furthered by paternalistic
intervention that overrides her choice for his own good,or her liberty could be respected at the cost of her wellbeing. According to the balancing view, if the threat
to well-being is sufficiently weighty then paternalism
would be justified. If, on the other hand, the restrictionof liberty would be significant and the gain in well-being
relatively trivial, then paternalism would be unjustified.
The balancing view requires weighing up the liberty
and well-being at stake in any given case in order todetermine whether paternalism would be justified.
The balancing view seems to supply a plausible
explanation in many cases of possible paternalism.
Preventing a person from unknowingly crossing adangerous bridge restricts his liberty in only a trivial
way while benefiting him greatly. Similar balancing
is appropriate when a person is about to jump off abuilding in a temporary but intense fit of depression.
The importance of protecting well-being in these cases
outweighs the value of liberty. On the other hand,people often seem to make mistaken choices that lessen
their well-being but where intervention would beinappropriate. People would be better off, for instance,by choosing leisure activities more worthwhile thanwatching television. Smokers would usually be betteroff not smoking. Intelligent people who read nothing
but cheap and poorly written novels could spend at
least some of their time more rewardingly reading great
literature. But these cases strike many as being instanceswhere liberty outweighs well-being, making intervention
objectionably intrusive. These judgements are allaccounted for by the balancing view.
The balancing view, however, is problematic. People
sometimes choose to sacrifice their well-being for others
 Brock describes this as the value of autonomy or selfdetermination. I use ‘liberty’ to avoid the theoretical baggageof the other terms and because the way it is explained by
Brock is more consistent with liberty than the more complex
notions of autonomy and self-determination.

Principles of Paternalism    Simon Clarkeor for a cause. They also sometimes mistakenly makedecisions concerning far-reaching matters such as whereto live, who to live with, and what occupation to pursue,
thereby setting back their well-being. Engaging in risky
activities such as mountain climbing, hang gliding,and racing car driving threatens well-being. Whether
intervention in these cases is warranted, according to
the balancing view, depends on how to weigh liberty
against well-being. We need some way to guide us in
deciding how to balance the two views. Giving liberty
great weight will avoid intervention in these cases, but
how do we know how much weight to give it? We could
simply assign weights to give us the results that we
intuitively want, so that liberty has great weight in theabove cases but not much in cases where we intuitively
feel paternalism is justified. But this seems to be begging
the question about when paternalism is justified. Thebalancing view is supposed to give us an answer to thequestion but would instead give us whatever answer wealready hold. So the balancing view requires some nonquestion begging method for determining the appropriatebalance between liberty and well-being when they
conflict.
Brock does not provide a method for how thebalancing is to proceed, but he argues that in manycases where it would seem that the value of well-being
outweighs that of liberty, there is no real conflict between
liberty and well-being. This is because engaging in freely
chosen goals contributes to one’s well-being (Brock
1988, 555). A concern for well-being therefore requires
refraining from paternalistic intervention rather thanproviding a motivation for it. Suppose Brother Francis
believes it is immoral for non-human animals to be usedin lethal experiments and so volunteers as a subject inan experiment in order to save non-human animals thatwere to be used (Brock 1988, 554-5. Brock attributes
the example to VanDeVeer, 1986. In order to make thecase one of paternalism, we must set aside a concern
for the welfare of non-human animals). In doing so,
Brother Francis risks significant harm to himself. It may
be thought that on the balancing view, the harm is great
enough to outweigh the restriction of liberty involved if
Brother Francis was prevented from volunteering. But
Brock argues that Brother Francis is not worse off since
freely and knowingly choosing self-sacrifice in order toforward a goal that he considers is of great importance,
advances rather than sets back his well-being (Brock
1988, 555).
The problem with this reply of Brock’s is that if what
he claims is true, then it is impossible for a person to
engage in a freely chosen goal that sets back her wellbeing. No matter how harmful the activity, how painful
it is, or how much it seems contrary to the person’sinterests, she is actually better off through having freely
chosen and engaged in the activity. Brock’s argument

Journal of Applied Ethics and Philosophy     Vol. 1

reduces all moral goals to prudential or self-interested
ones. This is completely at odds with the way thatpeople themselves see their goals. Brother Francis, let us
assume, does not view volunteering to save non-humananimals as in his overall self-interest. He says that it is
not in his interests, but that he feels morally compelled to
do it anyway. Certain goals are worth pursuing for moral
reasons that are not accompanied by or reducible to selfinterested reasons. Sometimes people freely choose
activities and thereby become no better or even worse
off.
Such decisions may be made for moral reasons, butthey need not be. A person may freely choose selfmutilation. He may be better off as a result. Perhaps themutilation results in a large material reward. Or perhaps
he makes the decision in the light of a carefully worked
out philosophy which he is devoted to in all other aspectsof his life, and such devotion may lead to a rewarding
life. But say neither such factors apply. He engages insevere self-mutilation for some cheap thrills and fleetingfame. He also may agree that the decision is against his
interests. In this case, it seems perverse to say that thefreely chosen activity advances the person’s well-being.
It is another case of a person freely choosing an activity
that makes him worse off.
Brock’s attempt to show that liberty and well-being
do not conflict in many cases is therefore unpersuasive.
People can and do freely choose activities that makethem worse off, and weighing their liberty to do soagainst their well-being requires some method forweighing the two values. We have yet to be given sucha method, but I suggest that the neutrality view provides
one, not in the sense of a mathematical formula forweighing the two values but by providing some rules
for guidance: when interference with people’s choices
is motivated by non-neutral considerations, then liberty
outweighs well-being. The value of people’s freedom
to make their own decisions, even though they will beworse off than they would be with interference to guidethem into more worthwhile conceptions of the good,
outweighs the loss in well-being. But when, and only
when, well-being is threatened in some neutral sense,that is, when intervention can be guided by goods thatare compatible with all conceptions of the good, then aconcern for well-being may (but does not necessarily,
since there may be other conditions that must be
satisfied) outweigh the value of liberty. In other words,
restricting liberty for a person’s own good is permissible
only when the intervention is guided by neutral
considerations. On this interpretation of the balancing
view, neutrality is a necessary condition for justified
paternalism. (Here I repeat an argument I made in Clarke
2006, 120).

33

3. The Consent Principle
I turn now to another view: that paternalism is justified
only if the paternalised person has consented to theinterference. This principle is defended by Haksar 1979.

3.1 Future and Hypothetical Consent

Consider first, consent that is future or hypotheticalrather than present or prior and actual. Future consent
is consent after the intervention; hypothetical consent
is what people would counterfactually consent to undercertain circumstances (Haksar 1979, 249). Consider somecases that illustrate these principles. If we force a woman
to marry against her will, she may come to genuinely
love her husband and consent to the earlier intervention.
With regard to hypothetical consent, people who worshipfalse gods ‘would, if they saw things clearly, see theabsurdity of their ways of life’ (Haksar 1979, 250) andagree to intervention. These illustrations may strikesome readers as demonstrating the implausibility of
future and/or hypothetical consent as justifications forpaternalism because they seem too intrusive. They showthat future and hypothetical consent cannot be sufficientconditions for justified paternalism. But those conditions
could still be necessary conditions. If future consent
is necessary for justified intervention, then if a woman
forced to marry fails to give her subsequent approval, theintervention is not justified. And if she does subsequently
approve thereby satisfying the condition, there could
nevertheless be other reasons why such force is morally
prohibited. If hypothetical consent is necessary forjustified intervention, then even if forcibly liberating
people who worship false gods could be supported bytheir hypothetical consent, there could nevertheless beother reasons why such force is wrong.
These considerations can be turned to the advantageof the neutrality view I am defending. If future andhypothetical consent are only necessary though not
sufficient conditions for justified paternalism, then there
must be further conditions that explain why cases ofunjustified paternalism that would pass the tests set by
future and hypothetical consent are unjustified. That is,if there are cases of paternalism that are unjustified eventhough they pass the tests of future and hypotheticalconsent, then there must be further principles ofpaternalism that explain why those cases are unjustified.
One of these principles, I suggest, is set by the neutrality
constraint. Forcing a woman to marry against her will
is likely (though not necessarily) to be interference thatis guided by a conception of the good (‘not necessarily’
because it may be compatible with her conception of thegood, which shows that neutrality is also a necessary
but not sufficient condition for justified paternalism).
And forcing people out of their false religions for their

34

own good is also paternalism that is guided by nonneutral considerations. These cases may be consented
to hypothetically or in the future but fail the test ofneutrality. If we accept the constraint of neutrality, boththese types of paternalism would be unjustified. Hence
future and hypothetical consent need to be supplemented
with the neutrality constraint in order to make them moreplausible. They are not alternatives to neutrality but
complements of it.
Someone forced into a more worthwhile way of life
could subsequently or hypothetically consent to theforcing. So could someone forced to appreciate highart rather than low culture. A further assumption, theassumption of neutrality, is needed to rule out these casesof paternalism. The examples may strike the reader as
unlikely. We might be confident that people would not
subsequently consent to intervention that prevented
them from leading a life in conformity to their own
conception of the good, or that if they do, such consent
would be the result of manipulation and therefore notjustified. A person who is content watching game showson television is not going to agree afterwards with being
forced to attend operas instead. But such ‘conversions’
can occur; people could genuinely endorse, either lateror hypothetically, intervention that forces them into a
new lifestyle. Any intuition about the unlikelihood of thecounter-examples, I suggest, is not based on any deep
understanding of what people would or would not agree
to in the future or hypothetically. Rather, it is based on
the thought that such intervention would be wrong even
if the predicted consent were an accurate one. And thewrongness of this intervention, I have been arguing, is
explained by the neutrality constraint.

3.2 Actual Present/Prior Consent

Consider another principle: paternalism must be
accompanied by actual consent, either present or prior tointervention, of the subject to be justified. This principle
sets a necessary condition for justified paternalism. The
consent principle rules out as unjustified many cases ofpaternalism, such as forced religious worship or forced
marriage, which are not consented to.
However, it rules out too much. In emergency cases(and the cases are paternalistic since the people arerescued for their own good without being given any
choice), such as stopping a person from unknowingly
crossing a dangerous bridge, pulling a person out of theway of an oncoming truck, or preventing a person from
leaping from a building in a fit of depression, paternalism
is sometimes justified at least to ensure that the person
knows what she is doing, even though there is noconsent.
A possible move here is to say that the consent needed
to justify intervention ‘need not be explicit, it may only
be tacit’ (Haksar 1979, 240). In some cases there is noPrinciples of Paternalism    Simon Clarke

explicit consent to the intervention, but tacit consent
could be presumed since there is a practice of helping
people in certain situations, and since most people would
like to be helped in those situations and do not object tosuch practices (Haksar 1979, 240).
But it is not clear that people can be said to consent,
even tacitly, to intervention in these cases. The fact that
there is a practice of helping people in certain situations
and that I have not objected to that practice does notmean that I have consented, even tacitly, to intervention
when I find myself in the relevant situation. Consent,
whether explicit or tacit, is an act to intentionally giveothers, by virtue of that act, a right that they did nothave before. There is an intention to change the moral
situation. (This aspect of consent is noted by several
writers. See Simmons 1998; Plamenatz 1968, 18).
Usually these intentions are explicitly expressed but
they can also be tacit, as when we buy goods from asupermarket; nothing explicitly is said but both buyer
and seller intend to relinquish rights to their goods/
money. Merely not objecting to social practices of
helping people in emergencies does not involve an
intention to change the moral situation; not objecting
does not mean that one intends to give up one’s rights.
And so it is a mistake to assume there is consent in suchcases. It may be objected that some cases of tacit consent
in law do not require intention.  Even if so, imagine
a case where a person unknowingly about to cross a
dangerous bridge can definitely not be presumed to haveconsented to intervention because she is unaware of ageneral practice of saving people in such circumstancesand so was unable to choose whether to register her
approval or disapproval of such a practice beforehand.
Intervention nevertheless does not seem objectionable.
Despite the absence of consent, paternalistic intervention
still seems acceptable in emergency cases. Tacit consent
may accompany many such cases, but intervention seems
reasonable independently of such consent. The consent
principle cannot account for these seemingly acceptablecases of paternalism. The neutrality principle, on theother hand, can. Paternalism in emergency cases is not
guided by any particular conception of the good. The
good involved, the avoidance of death, is compatible
with all conceptions of the good. Hence paternalism inthose cases passes the test of neutrality and would, solong as it complies with other conditions for justified
paternalism, be justified.
 This point was raised by an anonymous reviewer for thisjournal.
 Some conceptions of the good may involve not avoiding
death. In these cases, neutrality requires not forcing the
avoidance of death on the person. But in most emergency
cases, it would be safe to assume that rescuing the person
would not violate neutrality.

Journal of Applied Ethics and Philosophy     Vol. 1

So consent is not necessary for justified paternalism,
since it is faced with the counter-examples ofinterventions in emergency cases where consent cannot
be obtained. But while consent is not necessary forjustified paternalism, it is - along with other plausible
conditions such as that the consent is voluntary, thatthe paternalist is reasonably competent, and that nothird parties are harmed - sufficient. If the paternalised
person consents to intervention for his own good then it
is justified. A smoker may consent to his friends helping
him to kick the habit by hiding his cigarettes. Someone
may consent to being forced to save a fraction of her
income to support her in old-age. Such cases, if theycount as paternalism at all, are justified paternalism.
Moreover, they are justified even if guided by nonneutral considerations. Intervention to force a couch
potato to experience high culture is justified when the
couch potato has given his consent. Hence there is aclass of counter-examples to the claim that neutrality is anecessary condition for justified state paternalism. Whenpaternalism is consented to, it is justified even though
the neutrality constraint is not satisfied. My claim must
therefore be adjusted to the proposition that neutrality
is a necessary condition for justified unconsented-topaternalism. I take this to be a minor adjustment. Withmost, if not all, instances of government paternalism,
it is not possible to choose whether to consent to it ornot. Neither the fact of residing in a country, nor that ofvoting in elections establishes that a person consents toany paternalistic policies that the state may enact. There
are some imaginable cases of state paternalism that may
be consented to, such as state-run organisations thatforce those who sign up to their programmes (thereby
consenting) to attend a museum at least once a week,or state insurance plans applicable only to those who
agree to them, where once you have agreed you can notafterwards refuse to pay the premiums. But most statepaternalism is not of this nature. Hence I shall continue
to talk of neutrality as a necessary condition for justifiedstate paternalism without mentioning the qualificationthat the condition is only necessary for unconsentedto paternalism, since the latter covers almost all
paternalism.

 They are perhaps not accurately described as paternalism.
The reason that the paternalist intervenes may be merely thatthe person has consented and not because he (the paternalist)
thinks it is for the paternalised’s good. (This point wassuggested to me by Jerry Cohen.) But the paternalist may bemotivated by both reasons, and insofar as his motivation is
the person’s good then his behaviour is paternalistic.

35

4. The Voluntariness Principle
A highly influential principle of paternalism is set out
and defended by Joel Feinberg. He claims thatthe state has the right to prevent self-regarding
harmful conduct when but only when it issubstantially nonvoluntary, or when temporaryintervention is necessary to establish whether it isvoluntary or not (Feinberg 1986, 126).
Feinberg claims that people’s choices are voluntary
if they make them ‘when fully informed of all relevantfacts and contingencies, with their eyes wide open, so
to speak, and in the absence of all coercive pressure’(Feinberg 1986, 104). If this principle is accepted, it
may provide a means of ruling out wrongful paternalism
without recourse to a principle of neutrality. According
to the voluntariness principle, so long as a person’s
decision is voluntary then interference is prohibited,even though the decision may be mistaken and harmful.
Hence much non-neutral paternalism would be ruledout since many instances of forcing people into more
worthwhile activities would interfere with their voluntary
choices. People can and do make choices on the basisof misguided conceptions of the good – such as joining
a patently false religious cult – and though thesechoices are mistaken in that sense, they are voluntary
and therefore, according to Feinberg, immune fromintervention.
Feinberg sets out a full account of a perfectly
voluntary choice. Such a choice is one where (A) thechooser is competent, i.e. not an infant, insane, orseverely retarded, (B) the choice is not made undercoercion or duress (which includes evils from natural
sources, and coercive offers), or (C) more subtle
manipulation such as subliminal or post-hypnotic
suggestions, (D) the choice is not made because ofignorance or mistaken belief of the factual circumstancesor the likely consequences of the choice, and (E) thechooser does not choose in circumstances that are
temporarily distorting. This final category rules out
choices made impetuously, while fatigued, excessively
nervous, or agitated, under the influence of powerfulpassions or moods such as rage or depression, under
the influence of mind-numbing drugs, in severe pain,
in a neurotically compulsive state, or under severe timepressures (Feinberg 1986, 115).
Most choices, Feinberg admits, fall short of thisstandard of perfect voluntariness to some extent.
To categorise all decisions that fall short of perfectvoluntariness as nonvoluntary and therefore open tointervention would permit paternalism in too manycases where we would normally think it unjustified.

36

But, as Feinberg points out, voluntariness is a matter ofdegree, with perfectly voluntary decisions at one end of
the continuum, and completely involuntary acts, such as
when one is completely controlled by external forces, atthe opposite end. Fully voluntary choices, says Feinberg,
are those that come close to the ‘perfect’ end of thecontinuum, while nonvoluntary choices are those thatfall substantially short of the ideal (Feinberg 1986, 104).
It is only nonvoluntary choices, rather than all those thatfall short of perfect voluntariness, that may legitimately
be interfered with. We would not think that interference
would be warranted when a person makes a decision
when slightly fatigued, or slightly nervous, or with amild headache. These would all, however, make thedecision less than perfectly voluntary. But, given that thefactors listed are all a matter of degree, it is only if theyoccur to a substantial degree, such as if there is severe
fatigue, nervousness, etc., that the choice fails to be fully
voluntary and may therefore be subject to intervention.
The principle of voluntariness permits paternalism
toward children and the mentally ill, and towards people
about to make decisions that will involve great harm,without being aware of the potential harm or being incertain psychological states such as severe depression or
emotional stress. The voluntariness principle also rules
out paternalism in many cases. Forcing couch potatoes
into more active lifestyles, for example, would usually
be unwarranted under the voluntariness principle sincepeople who choose an inactive lifestyle do not do so
as a result of coercion, manipulation, factual mistakeor any other voluntariness-vitiating factors. Mistakes
about the value of activities do not count as factors thatmake decisions nonvoluntary, on Feinberg’s (and any
plausible) account of voluntariness. People’s voluntary
choices that flow from their conceptions of the good
are to be left free from interference, regardless of thetruth or falsity of those conceptions. Hence the notion ofvoluntariness seems to provide an account of paternalismthat can provide a principled limit to intervention,
without recourse to the neutrality constraint. I shallargue, however, that accepting the voluntariness principle
makes one committed to also accepting the neutrality
constraint. Rather than being alternatives, the two
notions are complementary.
It is not clear, to begin with, what the factors that
Feinberg lists as establishing voluntariness have incommon. They are not implied by the common sense
definition of ‘voluntary’, which means acting without
being forced. While voluntariness clearly rules out being
forced, coerced, and manipulated (factors B and C in
the list above), it does not so obviously cover the others.
 Severely manipulated that is, such as hypnotised or brainwashed. Mild manipulation such as persuasive advertisements do not render acts influenced by them nonvoluntary.

Principles of Paternalism    Simon Clarke

Infants and the mentally retarded (A) can act voluntarily.
So can those who are ignorant of factual circumstances(D). Some of the circumstances grouped under category
E, concerning temporarily distorting circumstances,
may make an act nonvoluntary, such as a neuroticallycompulsive choice, but also sometimes will not, suchas decisions made under time pressure or when swayedby emotions. What general explanation, then, can begiven for the various factors that Feinberg lists under his
expanded notion of voluntariness?
The first account I shall suggest is a straightforward
one, though it is not Feinberg’s. Voluntary decisions,
understood as those where categories A to E are satisfied
to a significant degree, are those that are likely to becorrect, that is, for the person’s good. Nonvoluntarydecisions are more likely to be against a person’sinterests. Such decisions occur in circumstances where
the person is likely to choose in a way that will cause
her harm. Children, the mentally ill, people ignorant ofrelevant facts, or those influenced by drugs, or certain
psychological states, or those subject to coercion ormanipulation are more likely to choose against theirinterests than competent, fully informed, sober, calmly
deliberating adults. The circumstances that Feinberg lists
under the notion of voluntariness are all exceptions to therule that people are the best judges of their own interests.
This interpretation can account for why voluntarydecisions must not be interfered with, but nonvoluntary
ones may be. The latter are likely to be mistaken andrequire intervention to protect the person’s interests,
while the former, being less likely to be mistaken,
will not require intervention. But there is one classof circumstances that are likely to result in mistaken
decisions that are not included in Feinberg’s list of
voluntariness-vitiating factors. These are decisions madein the light of a misguided or worthless conceptionof the good. A person can be competent, free fromcoercion and manipulation, fully informed of therelevant factual circumstances, not be subject to any
distorting circumstances, and yet choose a couch potato
lifestyle or choose cheap pop over classical music or
pornography over Proust. But such choices are against
the person’s interests. He is guided by a mistaken
conception of the good and would choose differently
if he had a sound conception. Why aren’t such cases
classified by Feinberg as nonvoluntary along with theother types of cases where people are likely to choose
mistakenly against their own interests? The answer, I
suggest, is that interference in such cases would violate Coerced or manipulated people are likely to choose theright option in their circumstances, such as handing over themoney rather than losing their life, but the decision would
usually, in the absence of the coercion or manipulation, beagainst their interests.

Journal of Applied Ethics and Philosophy     Vol. 1

the neutrality constraint. Decisions made in the lightof a misguided conception of the good may be against
a person’s interests and that person’s interests would
be advanced if they decided on the basis of a better
conception of the good. But they should be protectedfrom state intervention because paternalism ought not
to be guided by non-neutral considerations. Whilesimilar to nonvoluntary decisions in that they arelikely to be mistaken, decisions made on the basis of
misguided conceptions of the good ought to be classedwith voluntary decisions, therefore protected fromintervention. Without the neutrality constraint, choices
made on the basis of misguided conceptions of the good
would be classified, along with the other circumstancesthat tend to result in mistaken choices, as nonvoluntary
and therefore may be subject to paternalism.
So the voluntariness principle can be made sense ofwith the addition of the neutrality principle. But there issecond explanation for what the various considerationsin the voluntariness principle have in common, an
account favoured by Feinberg. This is that they reflect
an ideal of personal autonomy. All of the factors listed
reduce the autonomy of the decision. Rather than being
good decision, it is an autonomous one; one that reflects
the autonomous choice of the person. A fully voluntarydecision reflects the autonomy of the chooser. Feinberg
claims that when the conditions of voluntariness are
satisfied, that is, when factors A to E are met and the
conduct is voluntary, the choice that a person makes
is ‘the faithful expression of the settled values andpreferences of the actor, or an accurate representation of
him in some centrally important way’ (Feinberg 1986,
117). When the choice is nonvoluntary, then ‘it does
not come from his own will, and might be as alien tohim as the choices of someone else’ (Feinberg 1986,
12). These comments reflect a concern for autonomy.
The voluntariness principle rests, according to thisinterpretation, on a conception of personal autonomy.
This autonomy explanation is not, however,independent from the neutrality principle. Respecting
autonomous choice already has the neutrality constraint
built into it. This is why mistakes due to misguided
conceptions of the good are not included; respect forautonomy rules out intervening with decisions that derivefrom false conceptions of the good. That the autonomyinterpretation of the voluntariness principle requires
acceptance of the neutrality constraint is supported by
Feinberg’s comments above; non-neutral intervention
would conflict with the ‘settled values and preferences of
the actor’. Respecting autonomy, so the argument goes,requires not interfering with a person on the basis that
her chosen way of life is misguided. Hence paternalism
ought to be neutral.
So on whichever interpretation of the voluntarinessprinciples – the best-judge interpretation or the autonomy

37

interpretation – is accepted, the neutrality constraint
is implied. It is implied directly by the best-judge
interpretation since the neutrality constraint is needed torule out intervention with decisions based on misguided
conceptions of the good. And it is implied indirectlyby the autonomy interpretation because a concern forautonomy already embodies a concern for not imposing
a conception of the good on a person. The voluntarinessprinciple must hence be interpreted as implying theneutrality principle rather than being an alternative to it.

Conclusion
The examination of the principles of paternalism
in this article provides support for the neutrality
constraint as a necessary condition for justified
paternalism. The balancing view was unable, without
further interpretation, to give any clear answers aboutpaternalism. The neutrality constraint provides a way ofinterpreting the balancing view. The consent principle,
in its future and hypothetical forms, is too permissive
and needs to be supplemented with neutrality. Actual
present or prior consent is too restrictive compared to
the neutrality principle. The voluntariness principle also
needs to be supplemented by the neutrality constraint
in order to make it plausible. Without the assumptionof neutrality, there would be no grounds for classifying
as voluntary, and therefore immune from intervention,
many decisions people make in the light of misguided
conceptions of the good. Together, these considerations
give us strong grounds to accept the principle of neutral
paternalism.
What this means in practical terms must await a fullaccount of the distinction between neutrality and nonneutrality, but my guess is that the principle of neutral
paternalism allows food labelling requirements, vehicle
and machinery safety regulations, and laws against
misleading advertising, but rules out laws against drugs,
prostitution, pornography, gambling, and euthanasia as
illegitimate. The former are interventions that are guided
by general considerations that do not conflict with any
particular conception of the good, while the latter areinterventions guided by particular views about the ways
in which people should lead their lives.

References
Barry, B. (1995), Justice as Impartiality, Oxford: Clarendon
Press.
Brock, D.W. (1988), ‘Paternalism and Autonomy’, Ethics, 98 (3).
Clarke, S. (2006), ‘Debate: State Paternalism, Neutrality and
Perfectionism’, Journal of Political Philosophy, 14 (1).

38Dworkin, R. (1985), ‘Can a Liberal State Support Art?’ in his
A Matter of Principle, Cambridge, Massachusetts: Harvard
University Press.
Feinberg, J. (1986), Harm to Self, New York and Oxford:
Oxford University Press.
Haksar, V. (1979), Equality, Liberty, and Perfectionism, Oxford:
Oxford University Press.
Larmore, C. (1987), Patterns of Moral Complexity, Cambridge:
Cambridge University Press.
Mill, J.S. [1859] (1975), On Liberty, Norton Critical Edition, D.
Spitz (ed.), New York: Norton.
Nagel, T. (1987), ‘Moral Conflict and Political Legitimacy’,
Philosophy and Public Affairs, 16 (3).
Plamenatz, J. (1968), Consent, Freedom, and Political Obligation, Second edition, Oxford: Oxford University Press.

Principles of Paternalism    Simon Clarke

Rawls, J. (1993), ‘The Priority of Right and Ideas of the Good’in his Political Liberalism, New York: Columbia University
Press.
Raz, J. (1986), The Morality of Freedom, Oxford: Clarendon
Press.
Sher, G. (1997), Beyond Neutrality: Perfectionism and Politics,
Cambridge: Cambridge University Press.
Simmons, A.J. (1998), ‘Consent’ in E. Craig (general Ed.),
Routledge Encyclopedia of Philosophy, vol. 3, London and
New York: Routledge.
VanDeVeer, D. (1986), Paternalistic Intervention, Princeton,
New Jersey: Princeton University Press.
Wall, S. (1998), Liberalism, Perfectionism, and Restraint,
Cambridge: Cambridge University Press.

Journal of Applied Ethics and Philosophy     Vol. 1

39What Do You Mean I Should Take Responsibility
for My Own Ill Health?
Nicole A Vincent
TU Delft, Netherlands

Abstract
Luck egalitarians think that considerations of responsibility can excuse departures from strict
equality. However critics argue that allowing responsibility to play this role has objectionably
harsh consequences. Luck egalitarians usually respond either by explaining why that harshness
is not excessive, or by identifying allegedly legitimate exclusions from the default responsibilitytracking rule to tone down that harshness. And in response, critics respectively deny that thisharshness is not excessive, or they argue that those exclusions would be ineffective or lacking injustification. Rather than taking sides, after criticizing both positions I also argue that this wayof carrying on the debate – i.e. as a debate about whether the harsh demands of responsibility
outweigh other considerations, and about whether exclusions to responsibility-tracking
would be effective and/or justified – is deeply problematic. On my account, the demands of
responsibility do not – in fact, they can not – conflict with the demands of other normative
considerations, because responsibility only provides a formal structure within which those otherconsiderations determine how people may be treated, but it does not generate its own practicaldemands.
Keywords: responsibility, distributive justice, luck egalitarianism, public health policy,
alcoholism, smoking.

1. Luck Egalitarianism, Public Health Policy
and The Appeal of Tracking Responsibility
Intuitively, it seems right that a gambler who gambles
away all of their money and is now living in squalor
should have a weaker entitlement to claim benefits toremedy their poverty than someone else who was born
into poverty, and the reason for this seems to be thatthe gambler is presumably more responsible for theirown deprivation than the person who was born into it.
Whether gamblers are indeed responsible for their own
financial difficulties or not is not the issue; my point israther that if we think them responsible for their own
financial difficulties then we will likely also think thatthey have a weaker claim to receive financial assistanceto bail them out of those difficulties than others who
were not responsible for their otherwise similar financial
strife.
Arguably, the same underlying intuition about how
people’s entitlements should track their responsibility

also finds expression in many versions of the luckegalitarian position. For example, to luck egalitarians
like Eric Rakowski and Richard Arneson, responsibility
plays a fairly straight forward regulatory role in shaping
people’s entitlements. Rakowski believes that if someone
is responsible for their own deprivation then they and notanyone else should suffer the burdens associated withthat deprivation. This interpretation of Rakowski’s (1991)
position is suggested by Elizabeth Anderson who argues:“Consider an uninsured driver who negligently makes	 In much luck egalitarian thinking responsibility also plays
a role in shaping people’s duty to contribute something tohelping others, and not just their entitlement to be helped –this feature is clearly visible in the cameos of Rakowski’sand Anderson’s positions that I provide below, as well as
in much of the work that will be cited and quoted below –however for the sake of readability in what follows I will
sometimes drop the reference to this other important role that
responsibility plays in luck egalitarian thinking, and just talkabout its role in shaping people’s entitlements.

40

What Do You Mean I Should Take Responsibility for My Own Ill Health?

an illegal turn that causes an accident with another car.
Witnesses call the police, reporting who is at fault; thepolice transmit this information to emergency medical
technicians. When they arrive at the scene and find thatthe driver at fault is uninsured, they leave him to die by
the side of the road. According to Rakowski’s doctrine,
this action is just, for they have no obligation to givehim [publicly funded] emergency care[; and i]f the faulty
driver survives, but is disabled as a result, society has
no obligation to accommodate his disability” (Anderson
1999, 295-6).
And although Arneson’s responsibility-catering
prioritarian account is more subtle and sophisticated– roughly, he believes that priority should be given
to helping those people who are worse off and who
were not responsible for their own deprivation overthose who were, and that the funds used to help themshould preferably be obtained from those who are
better off and who were not responsible for their own
good fortune rather than from those who were – on his
account people’s entitlements should still track their
responsibility. For instance, Arneson argues that it isbetter to help the unlucky poor rather than the imprudent
poor because the former are not responsible for theirown deprivation, and that it is better when those who
pay for making others better off are less rather thanmore responsible for their greater holdings because theformer are less entitled to their holdings than the latter(Arneson 2000, 344). In a sense, Arneson’s responsibility
catering prioritarianism recommends that those who areresponsible for their own situation (whether good or bad)should be largely left alone wherever possible, and that
redistribution should mainly take place between those
who are not responsible for their own situation (again,
whether good or bad), with resources flowing from theundeserving rich to the undeserving poor.
Thus, on both Rakowski’s and on Arneson’s accounts,
it is largely automatic that if someone was responsible
for their own deprivation then their entitlements toassistance should be affected because they rather thanothers should now take responsibility for it, and themain difference between their positions is in how closely
people’s entitlements will track their responsibility. On
Rakowski’s account responsibility entails ineligibility toclaim benefits, and on Arneson’s account responsibility
affects who gets priority over whom, both in terms ofeligibility for receipt of benefits as well as providing thefunds for payment of benefits to others.
Others also think that something like theresponsibility-tracking intuition sits at the core ofluck egalitarianism. For instance, in discussing luck	 More precisely, what is tracked is the extent of people’s
responsibility, since responsibility is not a light switch (anon/off thing) but something that comes in degrees.

Nicole A Vincent

egalitarianism Susan Hurley argues that ‘[w]hen
responsibility plays a … role in distributive justice, it
tells us … that goods are exempt from redistribution
to the extent to which people are responsible for themand that distributive justice is only concerned withredistributing goods that are a mater of luck for people’(2002, 63). Eli Feiring summarizes this idea as follows:“The concern of distributive justice is ‘to eliminate so far
as possible the impact on people’s lives of bad luck that
falls on them through no fault or choice of their own’.
Inequalities generated by the individual’s voluntary
choices are, however, acceptable and do not give rise toredistributive claims on others. Nobody is required tomitigate the effects of these choices” (2008, 33). This
also seems to be the point of Gerald Cohen’s suggestionthat “genuine choice excuses otherwise unacceptable
inequalities” (1989, 931), and of Ronald Dworkin’s
distinction between “brute luck” and “option luck”(1981). Alexander Kaufman also attributes this intuition
to luck egalitarians when he speaks of “[t]he luckegalitarian intuition that egalitarians should compensate
only for disadvantage for which persons cannot
reasonably be held responsible” (2004, 822). Similarly,
Maureen Ramsay argues that luck egalitarians “share acommon commitment to the intrinsic moral importanceof holding people responsible for what they freely choose
to do”, because to their mind “unequal distributive
consequences that are due to … voluntary choices [arethings] for which people are responsible” (2005, 434).
And some even take a harder stance and argue that not
only is it not necessary to eradicate such departuresfrom strict equality, but that we positively ought not toeradicate them – for instance, Daniel Markovits commits
himself to this position by arguing that the two aimsof egalitarianism (i.e. choice preservation and luck
eradication) compete with one another, and that when
they come into conflict with one another the former aim
should never be sacrificed for the sake of the latter aim(2003).
Consequently, luck egalitarians may endorse a social
welfare policy under which a smoker who refuses toquit and consequently becomes ill, would have a weaker
entitlement to receive publicly funded medical treatment
than someone else who suffers similar health problems
but not due to things for which they are responsible. The
reason why on their accounts this person’s entitlements
would be reduced is precisely to take account of thefact that the smoker is allegedly responsible for theirown deprivation whereas the other person is not. That	 I am not endorsing any particular claims here about who
is responsible for their respective health problems andwho is not, but rather I am only reporting that others thinkthat some smokers, alcoholics and obese people are more
responsible than others for their health problems, and that toJournal of Applied Ethics and Philosophy     Vol. 1

is, given the scarcity of medical resources, if somepeople must miss out on receipt of medical treatment,
then it should surely be those who were responsible
for their own ill health rather than those who were
not. This seems to be the point of Arneson’s reply toAnderson’s critique when he urges that considerations ofresponsibility must play a role in determining people’s
entitlements, for otherwise “some individuals [who]behave culpably irresponsibly, again and again, [will endup] draining resources that should go to other membersof society” (Arneson 2000, 349). Claims along similarlines are also made about alcoholics who due to theirexcessive consumption of alcohol develop liver cirrhosis
and now need a liver transplant; here it is claimed that
their position on the waiting list for a liver transplantshould be demoted in relation to others who are notresponsible for their liver cirrhosis. This, for instance,
seems to be Walter Glannon’s position – he argues thatgiven the scarcity of medical resources “entitlements
to healthcare for a diseased condition are inversely
proportional to control and responsibility” – and he also
claims that “[t]his view is supported by the egalitarian
ethic espoused by certain political philosophers [henames Rawls, Dworkin, Arneson and Roemer] whoargue that society should indemnify people against pooroutcomes that are the consequences of causes beyond
their control, but not against outcomes ... for which
persons are responsible” (1998, 35). Finally, similar
claims about how some people’s entitlements should be
reduced on account of their responsibility for their own
ill health are also made about people who become obese
because of poor eating habits and insufficient exercise
and who now also need expensive medical treatment forsuch conditions as type two diabetes and coronary heartdisease. For instance, the World Health Organization(WHO) claims that there are causal links between
obesity and “increases in blood pressure, unfavourable
cholesterol levels[,] coronary heart disease, stroke,
diabetes mellitus, and many forms of cancer” (2002,9), and although they do not endorse such a hash publichealth policy, Martens (2001, 172-3) points out that thiskind of argument could be mounted.

41

consequences excessively harsh – for instance, mightsome of this harshness perhaps be justified – and mightluck egalitarians perhaps find ways of legitimately
avoiding the harshness that can’t be justified? Critics
think either that all of this harshness is excessive, or elsethat even in their best-case scenario luck egalitarians will
still have to endorse at least some excessive harshness;but luck egalitarians think that all of the harshness thatis excessive can be avoided, and that the remaining
harshness can be morally justified. In this section I
will explain why I find the critics’ complaints to be
ultimately unconvincing or misguided, but why the luckegalitarians’ position also strikes me as flawed.

2.1. The Critics’ Complaints and some Problems
with those Complaints

The responsibility-tracking intuition – i.e. the intuition
that people should take responsibility for those things
for which they were responsible, and that no one isentitled to expect others to take this responsibility forthem – has some harsh consequences. But are these

Most objections to luck egalitarianism fall into one offour groups: (i) harshness objections, (ii) disagreements
about the extent of people’s responsibility or about
our ability to know that extent, (iii) claims that luckegalitarianism would be intrusive or wasteful, or thatchoice and luck are too intertwined to ever be untangledfrom one another, and (iv) claims that medical decisions(e.g. about organ transplants) should be made purely on
the basis of clinical considerations.
Firstly, ever since Elizabeth Anderson’s (1999)
influential paper, critics have argued that luckegalitarianism is excessively harsh and thus morally
unattractive, because it would be awful to abandon
someone in their time of need and to offer them little
or even no aid just because they were responsible for
their own current plight. Anderson asks “If much recent
academic work defending equality had been secretly
penned by conservatives, could the results be any
more embarrassing for egalitarians?” (1999, 287), andin response she charges luck egalitarians with having
lost sight of truly egalitarian aims such as addressing“the concerns of the politically oppressed”; redressing“inequalities of race, gender, class and caste”; anderadicating “nationalist genocide, slavery and ethnic
subordination” (Anderson 1999, 288).
However, this criticism seems weak because theluck egalitarian’s point is not that it is nice to abandon
someone who has fallen on hard times (even if this isdue to their own bad choices), but it is rather that thesepeople have no entitlement or claim on the rest of us asa matter of justice to help them out – that was surely
Rakowski’s and Arneson’s position in the passages thatwere quoted earlier. Whether there are other reasons to
help these people – e.g. reasons of charity – is besides
the point, because the luck egalitarian’s rather minimal
position is that equal treatment qua equal does not entail

take account of this responsibility their entitlements to utilize
public health care resources should be reduced.

	 For recent expressions of this worry see (e.g. Voigt 2007,
394; or Cappelen and Norheim 2005, 477).

2. Some Arguments For and Against Luck
Egalitarianism

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What Do You Mean I Should Take Responsibility for My Own Ill Health?

that we must eradicate all departures from strict equality,
but only those departures for which those people who are
affected by them are not responsible, and that nobody has
a legitimate claim on the rest of society as a matter ofjustice to eradicate their voluntary disadvantages (e.g. see
Kaufman 2004, 830). Thus, although Anderson claims
that such severe responsibility-based disentitlement
clauses are inegalitarian because they fail to take up thecause of the needy, those luck egalitarians who endorse
such disentitlement clauses will probably not be swayedby Anderson’s appeal to our sympathy since they will see
such harshness as merely an expression of the plausible
intuition which lies at the heart of all luck egalitarian
thinking – namely, that equality requires the preservationof people’s choices, but only once those choices havebeen cleansed of the distorting effects of luck (e.g.
see Markovits 2003; or Vincent 2006a), or what I also
referred to above as the responsibility-tracking intuition– and hence they maintain that there is therefore nothinginegalitarian about their recommendations, even if there
is something cold, stark and uncaring about them.
Secondly, many critics have also argued that thepeople whom luck egalitarians identify as legitimate
candidates for harsh treatment were actually not (fully)
responsible for their own deprivations – for instance,
they argue that alcoholics who now need a livertransplant due to alcohol-induced liver cirrhosis are not(fully) responsible for the fact that they now need a livertransplant – or they cast doubt over whether we can everreally know the extent of their responsibility for theirown deprivations. Here, the addictive nature of tobaccoand alcohol, the unavailability of reasonably priced
healthy food alternatives as well as the proliferation of
unhealthy but inexpensive junk food (and advertisements
for such), and the declining number of public parksand other recreational facilities in large and densely
populated cities where people could engage in physicalactivity, are among the most commonly cited reasons forwhy these people are allegedly not fully responsible for
their own ill health or for why we face epistemic barriersin trying to ascertain the degree of their responsibility(e.g. Buyx 2008, 873; Steinbrook 2006; Banja 2004).
However, this way of defending the interests of
those whom luck egalitarians would otherwise abandon
is also unsatisfying. One reason for this is that it issurely implausible to maintain that these people bearabsolutely no responsibility whatsoever for theircurrent state of health – for instance, that the alcoholicwith liver cirrhosis is no different at all as regards
their responsibility for their current ill health thansomeone whose liver packs it in due to a genetic liver
degenerative disorder – and yet that is the sort of thingwhich opponents of this harsh policy would have tomaintain if they really wished to establish that thesepeople should be treated no worse than victims of bad

Nicole A Vincent

luck. But secondly, even if it were not implausible tosuppose that these people are completely innocent, theother reason why I do not think that this is a promisingline of argument for the critics is because if I get their
sentiments right, then their concern is not just to establishthat everyone who is not responsible for their own ill
health should be cared for properly under the publichealth system, because this is not something that luckegalitarians would take issue with. Rather, their core
concern is surely that we should not abandon even those
who are responsible for their own ill health, and that the
public health system should take just as good care ofthem as it does of those people who are not responsible
for their own ill health. And if I am right in thinking that
this is their core concern, then the debate about whether
alcoholics, smokers and the obese are in fact responsible
for their health problems or not is quite peripheral(though not unimportant), since the real issue is not whatshould happen to those people who are not responsible
for their own ill health, but rather what should happen
to those people who are responsible (or who are partly
responsible) for their own ill health. Put another way,
the real question is who should take responsibility forwhat Cohen might call voluntary disadvantages (e.g. see
Cohen 1989, 916) – i.e. those disadvantages for which
the affected parties are responsible – and my concern
is that even if we took on board what the critics say
about various responsibility-undermining factors, wewould still have to abandon some people to a harsh fate
when their disadvantages are voluntary, because thisobjection leaves intact the idea that people should takeresponsibility for their own voluntary disadvantages.
Thirdly, critics have also argued: (a) that a luckegalitarian society would be terribly intrusive, since thestate would need to send out inspectors to periodicallycheck on everyone to see whether they had been thebeneficiaries of some undeserved good fortune or thevictims of undeserved bad luck; (b) that all of thischecking would be very wasteful, because too great an
administrative cost would need to be borne by society tounearth all of the undeserved burdens and benefits; and(c) that what luck egalitarians ask us to do – namely, topull apart those effects which are due to people’s choicesfrom those effects which are due to people’s luck – can
not be done because our choices are far too intertwinedwith luck for them to ever be pulled apart from one
another. Elizabeth Anderson levels the first charge	 Indeed, many of the refinements that have been made to luckegalitarian theories (see the end of the next paragraph for
Maureen Ramsey’s citation of luck egalitarians who attempt
to make such refinements) have had to do with identifying
cases in which the parties concerned are not fully responsible
for their own situation, and excluding them from the harshtreatment.

Journal of Applied Ethics and Philosophy     Vol. 1

when she writes that a luck egalitarian “system requires
the state to make grossly intrusive … judgments ofindividual’s choices. Equality of fortune thus interfereswith citizens’ privacy” (1999, 310). And, for instance,
Ramsay levels the second and third charges: the second,
when she claims that even if we could disentangle luckfrom choice, in political philosophy any “procedure[used to accurately determine the extent of people’s
responsibility] would be … prohibitively costly” (2005,
446, my emphasis); and the third when she claims thatRawls and Dworkin do not satisfactorily disentangle
choice and luck from one another – that they still have“difficulty [in] determining [what is] genuine choice” –and she frames Arneson, Cohen and Roemer’s positions
as unsuccessful  attempts to find a better way ofnegotiating the “inter-relatedness between abilities andambitions” (2005, 434).
However, these objections are also rather counterproductive, because they too sound more likeendorsements of what luck egalitarians are saying
rather than like genuine critiques. After all, no effort
is made here to resist the basic assertion that this is
how those people who are responsible for their own
deprivations should be treated – i.e. that they should takeresponsibility rather than expecting others to do this –but rather there is only the sad resignation or lament that
unfortunately we will not be able to treat them as weought to because doing so would either result in a terribly
intrusive society, in resource wastage, or because it issimply humanly impossible to untangle luck and choicefrom one another. And although these objections have notgone unaddressed by the theorists whose positions theytarget – for instance, Ramsay (2005) and Feiring (2008)
mention various luck egalitarian responses which in myopinion meet the critics’ challenge – in the end I thinkthat much of this back-and-forth argument is wasted
effort because these objections miss the main point in thefirst place. At the end of the day, even if luck egalitarians
could not meet those objections, those who raise themwould still have to concede that luck egalitarians’ hearts
are in the right place because if only we could disentangle
choice from luck in an economically efficient way
and without unduly intruding into people’s lives, thenwe should after all do precisely what luck egalitarians
recommend, and thus the only thing that saves people’sbacon are these annoying practical limitations!
Finally, some critics also argue that when it comesto such things as organ transplant decisions, those	 On her account, neither Arneson, Cohen nor Roemer
offers us an acceptable way to “separate out the relative
contributions of heredity, environment and voluntary
choice to estimate the extent to which anyone is justifiably
advantaged or disadvantaged because of their own actions or
behaviour” (Ramsay 2005, 444).

43

decisions should only ever be made on the basis ofclinical considerations – e.g. whether a prospective livertransplant recipient’s health problems can be treatedusing a less intrusive method (e.g. living a healthierlifestyle or perhaps taking certain medications), or
whether they are likely to resist the temptation todrink alcohol after their surgery, or even by assessing
their chance of surviving a liver transplant operation –rather than on the basis of whether one person is more
responsible for their present need for a liver transplant
than another person (e.g. Neuberger 1999; Beresford
2001). However, this response seems to ignore theproblem rather than dealing with it, since in a climateof scarcity – for instance, more people need a livertransplant than the number of livers that are available,
and more money could always be thrown at the publichealth system – we may sometimes need to makedifficult choices between cases which are otherwise
identical except for the fact that one person is apparently
more responsible for the fact that they are now deprived
than another, and the question that needs answering
is whether in such cases it is legitimate to use suchconsiderations as tie-breakers.
In my opinion the critics’ position is not strong.
Firstly, nobody denies that luck egalitarianism will
sometimes be harsh, but on the luck egalitarian accountthat harshness is not excessive because that is simply
what justice is like – i.e. justice is cold, stark anduncaring. Secondly, luck egalitarians can accommodate
the critics’ complaints about mis-attributions ofresponsibility – indeed, many have refined their positions
precisely as a response to such criticisms – and in any
case this objection offers little solace to those who are(partially) responsible for their own deprivations, since
it does not protect them from being treated in a secondor third-rate manner. Thirdly, the intrusive, wastefuland intertwined objections sound more like sad laments
about the practical difficulties associated with treating
people in the way that justice requires – i.e. they soundlike endorsements of what luck egalitarians are saying– rather than like genuine criticisms. And fourthly,even if we accept the claim that clinical considerations
should play the most important role in informing medical
treatment decisions, we may still have to make difficult
choices when we are faced with clinically identicalcases, and what critics would have to explain is why
considerations of responsibility should not be used as
tie-breakers in such cases. For these reasons I find theobjections that critics level at luck egalitarianism to beeither unconvincing or misguided.

2.2. Problems with the luck-egalitarian position

However, this should not be taken as an endorsement of
the luck egalitarian position; I shall now offer two minor
and one main argument against luck egalitarianism.

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What Do You Mean I Should Take Responsibility for My Own Ill Health?

First of all, there is reason to be weary of the replythat was offered earlier to the harshness objection on
the luck egalitarians’ behalf – i.e. the reply that justiceis simply like that (cold, stark and uncaring), andhence that for this reason there is nothing unjust about
abandoning people who were responsible for their own
disadvantages to suffer the consequences of their own
actions. In essence, the problem with this reply is that it
merely asserts, rather than establishing, that the proper
concern of justice is narrow (i.e. that justice need only
concern itself with responsibility-tracking) rather thanwide (i.e. that a plurality of considerations inform what
is just and what is not). Without dwelling on this issue,
my point is simply that one way to interpret the critics’harshness objection is as an objection to the narrow
understanding of justice – i.e. as a call to re-assess thesorts of considerations which we take to be relevant
to decisions about justice – and if we understand theirobjection in this way then this reply will simply beg thequestion against their position.
Secondly, although luck egalitarians have indeed
refined their positions to take account of the various
objections that critics have levelled against them – forinstance, they recognize that people’s responsibility
can be undermined by such things as constitutional andcircumstantial bad luck, by addictions, etc. – we may
worry that at least some of these refinements seem rather
ad-hoc. For instance, although one reason to not reduce
people’s entitlements to (e.g.) healthcare even whenthose people happen to be responsible for their current
health deprivations might indeed be that doing so may
reduce their ability to be responsible agents in the future,technically any prejudicial treatment of a person (i.e.
irrespective of whether it has to do with the provisionof healthcare or of some other benefit) may reduce
people’s range of future life options, and that in turn
may adversely affect their ability to be fully responsible
agents in the future. But since we do not take this to be areason to refrain from tracking responsibility in all cases,
it is not clear why we should take this to be a reason torefrain from tracking responsibility in the specific casesthat luck egalitarians wish to exclude (e.g. healthcare)from the harsh treatment. As Stemplowska points out,“people often disagree over which disadvantages are
acceptable” (2009, 239), and my worry is that once weallow ourselves to exclude one domain of disadvantages
from the responsibility-tracking rule, then there will
be no principled way of excluding other domains of
disadvantage as well.
However, most importantly, the third reason why I	 The distinction between a narrow and a wide understandingof justice is brought to mind for instance by Zofia
Stemplowska’s comparison of “all-things-considered justice”
to “narrowly defined egalitarian justice” (2009, 238-9).

Nicole A Vincent

find fault with the luck egalitarian position is because
I think that the responsibility-tracking intuition uponwhich it rests – i.e. the intuition that people shouldtake responsibility for those things for which they were
responsible, and that no one is entitled to expect others
to take this responsibility for them – is itself lacking
in justification. In what follows, I will first argue thatclaims about what outcomes or states of affairs people
are/were responsible for having brought about refer to avery different kind of responsibility concept than claims
about taking responsibility. Secondly, I will argue thatsince these two claims refer to two different kinds of
responsibility concepts, that claims about the former kindof responsibility need not necessarily entail anything
about the latter kind of responsibility. On my account, if
we wish to deduce conclusions about how people shouldbe treated from premises about what they have done,
then some kind of normative bridging premises will need
to be cited. But since normative premises themselves
stand in need of justification – for instance, we can’t
just state that all murderers should be executed without
citing any supporting arguments, because as the literatureon this topic has shown while utilitarian considerations
may support treating people in one way, deontologicalconsiderations may justify completely different sort oftreatment – it is therefore far from clear that a findingthat someone was responsible for their own ill healthwill automatically lead to the harsh conclusion that theirentitlements to have that deprivation remedied should
now be reduced.

(i) Six different responsibility concepts

Responsibility is more of a “syndrome” than it is a single
concept, or put another way, there is not just one single
concept which answers to the name “responsibility”,
but rather there are many different though related
concepts each of which under various circumstances– e.g. depending on what we are trying to express –legitimately answers to that name. To see this, consider
this parable about Smith the ship captain (adapted from
Kutz 2004, 549; adapted from Hart 1968, 211):(1) Smith had always been an exceedingly responsible
person, (2) and as captain of the ship he was responsible
for the safety of his passengers and crew. However, on
his last voyage he drank himself into a stupor, (3) and he
was responsible for the loss of his ship and many lives.
(4) Smith’s defense attorney argued that the alcohol	 Despite some superficial similarities between Feiring’s(2008) recent argument and the argument which I will
present here, our arguments are in fact very different
because while Feiring’s claims are based on Hurley’s (2002)
previously-cited analysis of what we ought to do about
involuntary disadvantages, my analysis relates to voluntary
disadvantages.

Journal of Applied Ethics and Philosophy     Vol. 1

and Smith’s transient depression were responsible
for his misconduct, (5) but the prosecution’s medical
experts confirmed that Smith was fully responsible
when he started drinking since he was not sufferingfrom depression at that time. (6) Alas, his employer
will probably have to take responsibility for thistragedy, since the victims families’ claims for damages
far outstrip the limits of Smith’s personal indemnity
insurance policy.
The word “responsibility” is used in this passage
in at least six different ways. First, there is a claim
about his virtue responsibility – Smith was normallya dependable person, someone who took their duties
seriously, and who normally did the right thing. Second,
there is a claim about Smith’s role responsibility – inhis role as the ship’s captain Smith had certain duties
to various parties, both on and off his ship (these aresometimes referred to as our “responsibilities”). Third,
there is a claim about his outcome responsibility – it isalleged that various states of affairs or outcomes, suchas the loss of the ship and many of its passengers andcrew, are rightfully attributable to him, as somethingthat he did. Fourth, there are two claims about causal
responsibility – Smith’s defense lawyer alleged that
Smith’s aberrant behaviour was caused by the alcoholand by his depression. Fifth, there is a claim about
Smith’s capacity responsibility – since Smith was not
suffering from depression at that time, the prosecution
therefore argued that his mental capacities were fully
functional, and hence that his moral agency was fully
intact. And finally, comments are made about liability
responsibility – about who should now do what in orderto “take” due responsibility for what has happened; inthis case financial liability is mentioned because thisis apparently one way in which responsibility might
be “taken”, but we might also suppose that to take due
personal responsibility Smith should also apologise to
the bereaved families and then spend a term in prison.

(ii) Backward-looking and forward-looking
responsibility concepts

However, these various responsibility concepts can beroughly apportioned into the following three groups, thelast two of which are particularly relevant to the point
which I wish to make: while some of them are largely
descriptive (i.e. virtue- and capacity responsibility),
others look backwards in time towards things whichhave allegedly already happened in the past (i.e. causaland outcome responsibility), and others look forward intime towards things that allegedly ought to be done in the
future (i.e. role- and liability responsibility).
	 For an indepth discussion of these different responsibility
concepts as well as of the relationships which obtainbetween them see (Vincent 2006b and 2009).

45

Thomas Scanlon notices the different directional
orientation of the concepts that fall into the latter twogroups when he argues that “[t]o say that a person is
responsible, in th[e backward-looking] sense, for a given
action is only to say that it is appropriate to take [thataction] as a basis of moral appraisal of that person[;on the other hand], judgments of responsibility [in theforward-looking sense] express substantive claims about
what people are required ... to do for each other” (Scanlon
1998, 248).10 Peter Cane and Antony Duff also note thedifferent directional orientation of responsibility claims
that fall into the latter two groups. For instance, Canedraws a distinction between attributions of what he calls“historical responsibility” which allocate responsibility
to people “for past conduct”, and claims about what“prospective responsibilities” are imposed upon someoneby the law (Cane 2004, 162). Cane argues that “[i]n a
temporal sense, responsibility looks in two directions.
Ideas such as accountability … look backwards to
conduct and events in the past. ... By contrast, theideas of roles and tasks look to the future, and establish
obligations and duties” (Cane 2002, 31, my emphasis).
On the other hand, Duff distinguishes “prospective
responsibilities [which] are those I have before the event,
those matters that it is up to me to attend to or take careof” and which look forward in time, from “retrospective
responsibilities [which] are those I have after the event,for events or outcomes which can be ascribed to me as anagent” and look backwards in time (1998, 290-1, originalemphasis).11
I cite these different authors to show that even if
we only carve up the domain of responsibility claimsin the roughest of ways, we should at least notice
their inherent temporal directionality – while some
responsibility claims aim to report something about thepast, other responsibility claims aim to make some sortof prescription for the future. Thus, my first point is thatin the sort of debates with which this article concerns
itself, claims about what people are/were responsible
for refer to a different kind of responsibility concept
than claims about taking responsibility – they are
10 Scanlon uses the terms “responsibility as attributability”
and “substantive responsibility”, but I think that theseare equivalent to my outcome responsibility and liability
responsibility respectively. Christopher Kutz (2004,549), Stephen Darwall (2006, 91-1, notes 5 and 7) andE. Feiring (2008, 36) also seem to interpret Scanlon as I
have, and Feiring even adopts Scanlon’s term “substantive
responsibility” to refer to this forward-looking responsibility
concept.
11 Duff elaborates on this in a later article (2004-5). In actual
fact, Cane and Duff carve up the domain of responsibility
concepts somewhat differently to the way that I do, but atleast the main idea that responsibility concepts can look in
two temporal directions is the same.

46

What Do You Mean I Should Take Responsibility for My Own Ill Health?

different responsibility concepts because they have very
different content – and this leads me to think that the
responsibility-tracking intuition which states that if you
are responsible for something then you (and not others)
should take responsibility for it, cites two different
responsibility concepts – outcome responsibility is citedin the anticedent and liability responsibility is cited in
the consequent. Thus, a more accurate statement of the
responsibility-tracking intuition would read something
like this: if you are outcome responsible for something
then you (rather than others) should take liability
responsibility for it.

(iii) The transition from outcome responsibility toliability responsibility

The reason why it is important to observe that the
responsibility-tracking intuition makes use of two
different responsibility concepts rather than justone generic responsibility concept, is because it is
not obvious how consequent claims about liability
responsibility are derived from anticedent claims aboutoutcome responsibility.
One source of the problem here is that if these areindeed two different concepts – one that looks backwardin time and is used when we wish to report something
about the past, and the other which looks forward intime and which is used to make prescriptive claims
about the future – then it is not clear why claims about
the former (i.e. outcome responsibility) tell us anything
about the latter (i.e. liability responsibility). What sortof transition is it that is allegedly made when we movefrom the backwards-looking claim that some state ofaffairs is rightfully attributable to a particular person, tothe forward-looking claim that this person should now
respond by doing various things?
Is the idea meant to be that claims about liability
responsibility are already contained within claims
about outcome responsibility? Given that each of theseconcepts has a radically different kind of content – one
looks forward in time while the other looks backwards
in time – I can not see how this could be so, and Scanlon
also urges that it is crucially important to distinguishthese senses of responsibility from one another, precisely
because a failure to do so “leads to the view that if people
are responsible ... for their actions [in the backwardslooking sense] then they can properly be left to suffer theconsequences of these actions”, or even that nobody else
has the responsibility to help them. However, he argues
that this conclusion “rests on the mistaken assumptionthat taking individuals to be responsible for theirconduct [in the backwards-looking sense] ... requires
one to also say that they are responsible for its resultsin the [forward-looking] sense” (Scanlon 1998, 293,
my emphasis). On his account these are two separate
issues – conclusions about a person’s forward-looking

Nicole A Vincent(liability) responsibility are not already contained withinprior claims about their backward-looking (outcome)
responsibility. Similarly, Robert Goodin also argues that“[t]ask responsibility [which appears to be the name thathe gives to what I call liability responsibility] is often
thought to flow, automatically (indeed, analytically),
from blame responsibility [my outcome responsibility].
To determine whose responsibility it should be to correctsome unfortunate state of affairs, we should on suchlogic simply determine who was responsible for having
caused that state of affairs in the first place. Those whoare responsible for causing an unfortunate situation are
responsible for fixing it. ... Nothing, it seems, could be
simpler, more analytically straightforward” (Schmidtz
and Goodin 1999, 151). However, on subsequent pages hepoints out that it is far from obvious that this assumption
is justified because these are two separate concepts.
Alternatively, is the idea perhaps meant to be that
conclusions about liability responsibility are logicallydeduced from premises about outcome responsibility?
A number of authors have argued that if this is indeed
meant to be a logical transition, then it is one thatwill only be valid if we also include some normative
bridging premises in the deduction. For instance,
Howard Klepper has argued that since these are twovery different responsibility concepts, the transition
from claims about outcome responsibility to claims
about liability responsibility must be some form of
moral implication – presumably what he means is that aperson’s outcome responsibility does not automaticallyentail any particular conclusion about their liability
responsibility unless we also add some further moral
premises about what duties befall those people who are
outcome responsible for some kind of state of affairs(Klepper 1990, 235-9). However, if Klepper is right,
then somewhere between our premises about outcome
responsibility and the conclusions about liability
responsibility we must also find some further normative
premise which specifies what should be done to outcome
responsible parties. Hence, if we wish to derive claims
about liability responsibility from premises aboutoutcome responsibility, then we will also need to citesome further normative premises over and above claims
about these parties’ outcome responsibility, and since
the responsibility-tracking intuition assumes that thistransition happens automatically – i.e. that it is obviousthat those who are responsible should take responsibility– it must therefore be rejected.
A related kind of problem with the responsibilitytracking intuition can also be observed when we noticethat claims about taking responsibility are not generic,because whenever someone claims that another person
should take responsibility for something, they nearly
always have some specific kind of treatment in mind –some specific things which those parties should allegedly

Journal of Applied Ethics and Philosophy     Vol. 1

47

now do – in order to now take the responsibility which
they think it is their due to take. Suppose for instance that
I am responsible for causing a car accident in which yourchild is seriously injured or maybe even killed; precisely
how should I now take responsibility for what I havedone? Exactly what should I now do in order to takethe allegedly due responsibility? Would it be enough,for instance, if I just rang my insurer and arranged forthem to compensate you for the medical and special carecosts that you will now incur, or for the funeral costs,
and perhaps a little extra to cover your family’s pain andsuffering? No? Well, if that would be a bit too light, thenperhaps I should instead (or also?) be made into yourchild’s permanent carer (if they survived); would thatsuffice as me taking responsibility for what I have done?
Or maybe I should be punished in some way – wouldthat suffice?
The point is that even if we agree that I should
now take responsibility on account of having been
responsible for your child’s misfortune (i.e. a position
which I just rejected), we will still be very far fromfiguring out precisely how I should now take that
responsibility, because this depends on a wide range of
normative considerations which concern themselveswith determining what would be an appropriate wayof responding to this kind of tragedy. 12 Thus, mysecond point is that even if we thought that claims
about liability responsibility do automatically follow
from (or are already contained within) premises aboutoutcome responsibility – i.e. that we need not citenormative bridging premises to deduce that someone
should take responsibility from the fact that they were
responsible – then there would still be another role fornormative bridging premises – namely, to tell us how that
responsibility should now be taken.
Hence, there are at least two reasons to reject the
responsibility-tracking intuition. Firstly, we haveinsufficient reason to suppose that by themselves claims
about a person’s outcome responsibility entail thatthey should now take or accept liability responsibility.
Secondly, even if claims about outcome responsibility
alone had been sufficient for the derivation of
conclusions about liability responsibility, then theywould still not be sufficient to determine precisely how

the party in question should now take their liability
responsibility. On my account, the fact that someone wasoutcome responsible for something entails neither thatthey should now take liability responsibility for it, northat they should take liability responsibility for it in somespecific way. Thus, for both of these reasons I urge thatto derive conclusions about liability responsibility frompremises about outcome responsibility, we must also
make reference to some normative premises.

12 For instance, Feiring also points out that “[i]t is ... notobvious exactly what [it] means” to say that “people shouldbe held responsible for their medical condition in virtueof their prior conduct” (2008, 33, my emphasis). Serena
Olsaretti has also recently argued that it is often far fromclear precisely what the consequences of a person’s actions– i.e. those consequences that they must allegedly bear
when they happen to be responsible for their own current
deprivation – might be; after all, “if no one did anything
after the dices [sic] are tossed, [then] there would be no loss
for the gambler to bear at all” (2009, 7).

(v) Normative considerations and the justificationof reactive norms(iv) Reactive norms, the normative premises thatbridge the gap

These premises which help bridge the inference gap
between the backward-looking outcome responsibility
and the forward-looking liability responsibility claims
will presumably look something like this: those who
are outcome responsible for X should take liability
responsibility in manner Y. And given that the duties
which these premises confer will befall only those who
we have already established are outcome responsible –i.e. one will only ever incur those duties as a reaction
to being outcome responsible – I shall refer to them asreactive norms, since they are norms that govern ourreactions to outcome responsible parties.
Once reactive norms are added to this picture, itceases to be a mystery how the transition from backwardlooking claims about outcome responsibility to forwardlooking conclusions about liability responsibility is made– the fact that the latter are forward-looking whereas
the former are backward-looking is no longer a problem
because reactive norms help bridge this temporal andlogical inference gap. So, for instance, if one of ourreactive norms stated that someone who is outcome
responsible for another’s quadriplegia should becomethat person’s carer, then that is indeed what those who
are outcome responsible for others’ quadriplegia could
now be asked to do. Likewise, if another one of ourreactive norms stated that those who slander others shallbe publicly flogged, then that too is what could be doneto those who slander others. Finally, if another one of
our reactive norms stated that those who are outcome
responsible for another’s losses shall compensate themfor the full extent of those losses, then that too is how
outcome responsible parties could be treated.

However, this now raises the question of where suchreactive norms might come from, because even if we
grant that some sort of normative premise is indeed
required to bridge the gap between the backward-looking
claims about outcome responsibility and forward-looking
conclusions about liability responsibility, given that in
the end such premises may justify treating people invarious often-coercive ways, these premises must surely

48

What Do You Mean I Should Take Responsibility for My Own Ill Health?

also stand in need of justification.
To see how reactive norms might be justified, let us
momentarily look at what goes on in debates within
the criminal law where people address the question ofwhether (e.g.) the death penalty is a fitting sentence
for certain criminal offences. This question is often
approached from two different angles: while someapproach this question from the utilitarian angle andargue that such severe punishments can only be justified
if in the end their benefits (e.g. deterrence of othersfrom committing similar crimes and prevention of
those who have already committed those crimes fromre-offending) will outweigh their costs (e.g. from autilitarian perspective, killing a criminal is also an evil),others approach this question from the deontologicalangle and argue that such severe punishments can only
be justified if considerations of (e.g.) retributive justicewarrant them. However, putting these details aside, what
I wish to highlight about this debate is that what people
involved in it are doing is that they are trying to settle
the question of whether a particular reactive norm of
the criminal law – in this instance, the death penalty – isjustified by either utilitarian (deterrence) or deontological(justice-based) arguments.
Presumably, in other areas reactive norms are justified
in a similar manner too. For instance, in tort law one
reason why we might expect outcome responsible
people to compensate their victims for their losses, isbecause of the deterrent effect that the knowledge that
financial liability will be imposed onto us if we arefound to be outcome responsible for another’s losses
will have on everyone’s actions – e.g. presumably
people will take greater care while driving. Or, thissame reactive norm might also be argued for by citing
the alleged requirements of corrective justice, and here
there is plenty of room for disagreement about whether
corrective justice supports this reactive norm or not.
Never the less, this discussion is only intended to provide
a sketch of what role arguments about justice or utility(and presumably other normative considerations suchas beneficence, caring and so on) play in disputes about
responsibility – namely, they are often intended to informour beliefs about what reactive norms there is most
reason to endorse – and those reactive norms are in turnneeded to support drawing subsequent conclusions about
how people should be treated (i.e. about their liability
responsibility) from earlier claims about what they
have allegedly done (i.e. on account of their outcome
responsibility).

(vi) The relevance of the above discussion for myassessment of luck egalitarianism

I have argued that it is far from clear that if you areresponsible for something then you should now takeresponsibility for it, or that you should take responsibility

Nicole A Vincent

for it in some specific way. On my account, to bejustified in deducing conclusions about how people
should be treated from premises about what those people
are responsible for having done, we must also citesome relevant reactive norms, and those norms mustthemselves be justified through normative arguments.
But since luck egalitarians assume that the transition
from outcome responsibility to liability responsibility
is largely automatic – that is, after all, why they treat
responsibility-tracking as a default position from which
any proposed departures must be justified qua departuresfrom a legitimate norm – their position therefore rests ona deeply flawed assumption.
Put another way, on my account luck egalitarians
should not be as quick as Rakowski and Arneson to
reduce the entitlements of those people who wereoutcome responsible for their own deprivations,because normative considerations also have a role toplay in determining whether this should indeed bedone or not, and these considerations are intrinsic tothe egalitarian project – i.e. they inform us about whattaking responsibility should involve – and not extrinsic
distractions from that project’s main concerns. Whileluck egalitarians assume that people’s entitlements
should automatically track their outcome responsibility,
on my account this is not automatic for two reasons:firstly, it is not automatic that people’s entitlements
should track their outcome responsibility because
whether someone’s outcome responsibility should
affect their entitlements or not depends on a possibly
wide range of normative considerations, and some ofthese may recommend against doing this; and secondly,
because it is also plausible that outcome responsibility
may only be relevant to other aspects of how outcome
responsible parties should be treated, but not to theirentitlements per se.13

3. Misgivings about the Debate
Although I find fault with both sides’ positions, mycritique of the luck egalitarians’ position has broader
consequences for the debate treated as a whole.
To see this, notice that two features are common tomuch of the discussion that I summarized in the firsthalf of this paper. Firstly, considerations which tame thealleged harshness of the luck egalitarian commitment
13 For instance, we may instead decide that those who are
outcome responsible for their own ill health should becompelled to attend compulsory cooking classes, or that theyshould be involuntarily committed to drug detoxification
clinics, but that they should still all get the same sort of
medical treatment as others who are not responsible for theirsimilar ill health.

Journal of Applied Ethics and Philosophy     Vol. 1

to responsibility are often conceived of by both sides
to this debate as exclusions, constraints or restraints
on the default responsibility-tracking rule which statesthat the degree of a person’s responsibility for their own
situation should to some extent determine the degree of
their entitlement to receive public assistance, and thelegitimacy of expecting some to contribute to funding
the provision of such assistance to others. And secondly,
depending on whether one is an advocate or a critic ofluck egalitarianism, these exclusions, constraints andrestraints are seen as either effective or ineffective, and as
either justified or not justified. However, if my critique ofthe responsibility-tracking intuition is correct, then bothof these features are problematic because considerations
which tame the harshness of the responsibility-tracking
rule are not external constraints that are imposed upon
responsibility from the outside, but rather they areinternal to the concept of responsibility – i.e. they are thesource of the reactive norms which mediate the transition
from backward-looking claims about what a person isallegedly responsible for having done or brought about,to forward-looking claims about how (and even that)they ought to now take responsibility – and so assessing
such considerations along these two dimensions (i.e. as
effective/ineffective exclusions to- and as justified/not
justified departures from an otherwise legitimate
responsibility-tracking norm) is also inappropriate. Putanother way, if my rejection of the responsibility-tracking
intuition is correct, then the demands of responsibility
will not – because they can not – conflict with thedemands of these other normative considerations,because responsibility only provides a formal structure
within which those other normative considerations
determine how people may be treated, but contrary towhat most people seem to think, responsibility does
not generate practical demands of its own which might
conflict with other normative considerations and whichmust therefore either be justified or overturned by thoseother considerations.
This critique of the standard way in which debates
about luck egalitarianism are carried out is useful for
two reasons. First, it helps to explain precisely why
the harshness objection is not merely a lament about
the cold, stark and uncaring nature of justice (i.e. an
outsider’s lament about the unkindness of justice),but rather why it is indeed as I suggested above an
objection to luck-egalitarianism on grounds of justice(i.e. an insider’s complaint about the unjustness of luckegalitarianism). The harshness objection is a justicebased objection because normative considerations –i.e. claims like “this is too harsh”, and their supporting
arguments – play a key role in validating the transition
from claims about a person’s outcome responsibility
to conclusions about their liability responsibility,
and so such claims should be taken seriously by luck49

egalitarians. Although it may indeed turn out thatpeople’s treatment should in some way be affected bytheir outcome responsibility, it is far from clear either
that or precisely how their outcome responsibility should
affect their treatment because these things depend to alarge extent on a wide range of normative considerations.
Second, as regards debates about how smokers,
alcoholics the obese and others in similar situations
should be treated, the foregoing discussion entails
that more effort should be devoted (on all sides in thisdebate) to exploring the reasons which allegedly support
treating outcome responsible parties in various ways,
because on my account the mere fact that someone isoutcome responsible for their own ailment (where thisis indeed the case) can never be sufficient to by itself
establish either that they (rather than society) should
now take responsibility for their own ill health, nor totell us precisely how they should take that responsibility.
Unfortunately, both sides in this debate have tended toassume that the only point which needs to be settled isthe one about these people’s outcome responsibility –i.e. whether alcoholics, smokers, the obese and others
are outcome responsible for their respective positions –and so debates about whether such people are outcome
responsible for their own situation or not tend to occupy
centre stage in this area. But on my account, even if
eventually both sides in this debate came to agree on
who is outcome responsible for their own ill health andabout the extent of their outcome responsibility for it,they would still need to reflect more on what this entails
about how those people should be treated, because it isfar from clear that what should now happen (if they are
to take due responsibility for their actions) is that suchpeople’s access to publicly funded health care should
be restricted. In essence, it is far from clear that evenif smokers, alcoholics and the obese all turn out to beoutcome responsible for their own ill health, then theyshould have their access to public health care restricted
to take account of their responsibility, because this is justas much a normative issue as it is a matter of whether
they were responsible for their own ill health or not.

4. Conclusion
Many modern luck egalitarian theories rest on the claimthat to obtain/maintain equality we must preserve theeffects of choice while eliminating the effects of luck;on the luck egalitarian account, to treat people as equals
we need not eradicate all departures from strict equality
but only some, since people who are responsible for
their own departure from strict equality should, wherever
possible, be left alone. However, this claim presupposessome version of the responsibility-tracking intuition, andI have argued that this intuition is remiss because theWhat Do You Mean I Should Take Responsibility for My Own Ill Health?

50

mere fact that someone was responsible for some state ofaffairs is sufficient to establish neither that they should
now take responsibility for it, nor that they should now
take responsibility for it in some specific way. On my
account, to establish either of these things, in addition
to premises about what someone was responsible forbringing about, we also need premises about what ought
to be done to/by people who happen to be responsible forthose sorts of things – i.e. we also need some normative
premises and arguments to support them – and weneed to realize that the role which those premises playin generating practical conclusions about how people
should be treated is not as external constraints imposed
upon the harsh demands of responsibility, but rather thatthey are the very sources of the practical demands of
responsibility.
In a way, on my account people are entitled to say: “Sowhat that I’m responsible for my own ill health? In itself,
this shows neither that I should now take responsibility
for my own ill health, nor does it tell us how I should
now take this responsibility.” To justify substantive
claims about how people should be treated on accountof the fact that they are responsible for something, weneed a lot more than just claims about what they are
responsible for – we also need substantive normative
debate, and we should be a lot clearer about what rolethat normative debate will play in generating practicalconclusions about how we may treat one another.1

EndnoteThis paper is an extended and revised version of the paper“Taking responsibility for voluntary disadvantages” which
was published in the Proceedings of the Third International
Applied Ethics Conference in Sapporo (2008, 297-312). It
contains ideas and some text from the author’s PhD thesis
Responsibility, Compensation and Accident Law Reform(2006) – especially from §6.3. – and those ideas were originally presented in 2006 at the Australian Society of Legal
Philosophy conference at the University of Auckland, New
Zealand in a paper entitled “A Critique of ResponsibilityTracking Egalitarianism”.

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Notes to Contributors
1. All submitted papers are subject to anonymous peer-review, and will be evaluated on
the basis of their originality, quality of scholarship and contribution to advancing theunderstanding of applied ethics.
2. Papers should not exceed 8,000 words including references.
3. Papers must be accompanied by an abstract of 150-300 words.
4. Submission should be made through e-mail to caep@let.hokudai.ac.jp
5. In-text references should be cited in standard author-date form: (Walzer 1977; Kutz
2004), including specific page numbers after a direct quotation, (Walzer 1977, 23-6).
6. A complete alphabetical list of references cited should be included at the end of thearticle in the following style:Walzer, M. (1977), Just and Unjust Wars: A Moral Argument with Historical
Illustrations, New York: Basic Book.
Kutz, C. (2004), ‘Chapter 14: Responsibility’, in J. Coleman and S. Shapiro (eds.),
Jurisprudence and Philosophy of Law, Oxford, UK: Oxford University Press,
548-87.
Cohen, G.A. (1989), ‘On the Currency of Egalitarian Justice’, Ethics, 99 (4): 906-44.
7. Footnotes should be avoided.
8. Accepted papers will appear in both web-based electronic and printed formats.
9. The editorial board reserves the right to make a final decision for publication.