RAHUL KUMAR

Risking and Wronging

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

for instance, driving.1 Intuitively, it is permissible to drive, and permitting this is socially beneficial. The activity does, however, impose a nontrivial risk of serious harm on both drivers and nondrivers. Requiring
drivers to comply with safety standards significantly lowers that risk, but
it cannot be entirely eliminated. And over time, it is certain to eventuate
in both injuries and deaths.

Work on this article was supported by the Social Sciences and Humanities Research
Council of Canada. Earlier versions were presented at the University of Toronto, the
Arizona Normative Ethics Workshop, McGill University, the University of Oxford, University College London, the University of St. Andrews, Pompeu Fabra University, the University of Graz, Boston University, Queens University, the University of British Columbia, and
Claremont McKenna College. I am grateful to the audiences at each of these occasions for
their questions and the discussion. For particularly helpful conversations or comments on
earlier drafts, my thanks to Guy Fletcher, Johann Frick, Barbara Fried, Joe Heath, LouisPhilippe Hodgson, Michael Gibb, Grant Lamond, Dave Langlois, Andrew Lister, Alistair
Macleod, Lukas Meyer, Andrew Ross, Pranay Sanklecha, David Silver, Angie Smith, Nic
Southwood, Daniel Starr, Alan Strudler, Gerard Vong, Andrew Williams, Jo Wolff, and two
anonymous referees for Philosophy & Public Affairs. I am especially indebted to John
Oberdiek for conversations about this topic that both sparked my interest in and helped
shape my thinking about it, and to Kerah Gordon-Solmon, whose extensive and insightful
comments on several earlier drafts vastly improved every page.
1. I will treat the risk of some event occurring as the probability of that event occurring
multiplied by the potential harm. For present purposes, nothing hangs on the choice
between characterizing risk this way rather than simply as the probability of an event
occurring. I will also assume an epistemic understanding of probability as what is relevant
in the context of determining what to do or expect. A useful general discussion of different
ways in which risk is characterized in the literature is Madeleine Hayenhjelm and Jonathan Wolff, The Moral Problem of Risk Impositions: A Survey of the Literature, European
Journal of Philosophy 20 (2012): 2651.
2015 Wiley Periodicals, Inc. Philosophy & Public Affairs 43, no. 1

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Justifying the permissibility of this kind of socially productive

activity is straightforward in broadly consequentialist cost-benefit
terms: the expected aggregate benefits over time of permitting driving,
subject to certain constraints, outweigh the expected aggregate
burdens. The question I will pursue here is whether, and if so, how, the
permissibility of this kind of risk-imposing activity can be justified
in nonconsequentialist terms.
Nonconsequentialists, of a broadly Kantian stripe, take considerations of aggregate benefit and burden to have no bearing on the justification of the permissibility of conduct. But the permissibility of most
intuitively acceptable risk-imposing activities cannot, it appears, be
made sense of without recourse to such considerations. This claim is
persuasively argued for by Elizabeth Ashford with respect to Scanlons
nonconsequentialist moral theory, contractualism.2
Assessing the permissibility of driving in contractualist terms is,
roughly, a matter of comparing the force of the reasons someone might
have for wanting driving to be permitted (such as the convenience and
freedom it affords) with the reasons a person could offer, on her own
behalf, for wanting it to be prohibited (such as not wanting to be killed as
a result of a car accident). Looking at it in this way, it is hard to see how
the permissibility of driving can be defended. Though there are many
respects in which a person stands to benefit from driving, in some form,
being permitted, they all inevitably pale in comparison to the burden
of being killed.
In this article, I will argue that contractualist reasoning does not
support radical, and implausible, conclusions concerning permissible
risk imposition. On the contrary, properly understood, the approach
offers an attractive nonconsequentialist framework for assessing the permissibility of a risk-imposing activity.

2. Elizabeth Ashford, The Demandingness of Scanlons Contractualism, Ethics 113

(2003): 273302. A complementary critique of contractualism that reaches a similar conclusion is advanced by Barbara H. Fried, Can Contractualism Save Us from Aggregation?
Journal of Ethics 16 (2012): 3966. See also Barbara H. Fried, What Does Matter? The Case
for Killing the Trolley Problem (Or Letting It Die), Philosophical Quarterly 62 (2012): 505
29. In this discussion, I shall focus solely on Ashfords articulation of the case for why
intuitively plausible conclusions concerning permissible risk imposition cannot be made
sense of in contractualist terms.

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I will build the positive case for this claim out of a dismantling of
Ashfords argument. As I see it, she advances two distinct, but closely
related, objections that can be fruitfully disentangled. The first observes
that part of contractualisms appeal is that it yields plausible rationales
for the impermissibility of intuitively prohibited activities. For example,
it is plausible to hold subjecting individuals, against their will, to painful
medical experiments, the fruits of which will benefit a great many, to be
impermissible. Directing our attention to the plight of the person who
stands to be most burdened were doing so to be permitted, and then
inviting us to consider whether anyone stands to be as burdened by its
prohibition, brings the central objection to permitting the experimentation into focus. But reasoning about an activitys permissibility in this
way also identifies as impermissible risk-imposing activities that are,
plausibly, acceptable. Contractualism thus finds itself in the embarrassing position of not being able to offer a principled basis for distinguishing between activities that are, intuitively, morally disparate.
Ashfords second objection observes that the pursuit of almost any
intuitively acceptable risk-imposing activity benefits individuals, but
also creates a risk of someone being burdened to a greater extent than
anyone stands to benefit. It is plausible to hold that the risk associated
with such an activity will, over time, eventuate in a persons life. Requiring that the permissibility of any activity be justifiable to each person
appears, therefore, to rule out, as impermissible, most, if not all, intuitively acceptable risk-imposing activities.
Against Ashfords first objection, I argue that the embarrassment she
identifies disappears when the (overlooked) relevance of what I will call
intrinsic considerations to the assessment of a principles reasonable
rejectability is taken into account. I then argue that Ashfords second
objection misconstrues what is required for an activitys permissibility to
be justifiable to each person. In particular, I argue that, contrary to what
Ashford contends, most intuitively acceptable risk-imposing activities
are justifiable as permissible even to those who stand to be burdened by
them to an extent greater than anyone stands to benefit.
The discussion falls into four main sections. Section II lays out a synopsis of the relevant aspects of the contractualist account before reconstructing Ashfords objections, which are the subjects of Sections III and
IV. Section V responds to an important challenge to the line of argument
I develop in Section IV.

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II

In this section, I will briefly lay out the contractualist account of what
makes conduct impermissible. This will provide the background needed
to motivate the claim that permissible risk imposition cannot plausibly
be made sense of in contractualist terms.3 I will say more about the
account and, in particular, about how the permissibility of a riskimposing activity is to be assessed in its terms in the next sections of the
article responding to Ashfords objections.
Contractualism says that an act is impermissible if any principle permitting it could be reasonably rejected by an appropriately motivated
individual; an individual is appropriately motivated if she is moved to
find principles for the general regulation of conduct that no one, similarly motivated, could reasonably reject. Regulating ones conduct in a
way that conforms with such principles is what respect for the value of
persons, as beings capable of assessing reasons and governing their lives
accordingly, requires.4 A person is wronged when anothers conduct
toward her either intentionally or negligently flouts these requirements,
which flow from her standing as a person to whom justification is owed.5
A principle for the regulation of a certain type of conduct that no one
(appropriately motivated) can reasonably reject is one that all individuals have reason, as assessed from each persons own point of view, to
license one another to be regulated by. Whether a proposed principle is
one no one can reasonably reject turns on comparing its implications to
the implications of candidate alternative principles, as assessed from
3. The relevant sense of morally wrong or morally impermissible presupposed
throughout this discussion is what Parfit calls the evidence-sensitive sense of wrong.
It ties what it is morally permissible to do to the available evidence at the time of acting,
or what one ought to believe it is permissible to do given the available evidence, and our
beliefs being true. See Derek Parfit, On What Matters, vol. 1 (Oxford: Oxford University
Press, 2011), sec. 21. It is the sense of wrong presupposed by the contractualist account,
and in a deterministic world, the relevant sense of wrong for understanding the morality
of risk imposition.
4. T. M. Scanlon, What We Owe to Each Other (Cambridge, Mass.: Harvard University
Press, 1998), p. 106. The distinction between acting for the reasons identified by a relevant
principle as conclusive reasons for so acting (complying with reasons) and conducting
oneself in the way owed to others though not for those reasons (conforming with reasons)
is relevant here. Wronging another only requires a failure to conform. A failure to comply
with the relevant principle bears on the blameworthiness of ones conduct.
5. Scanlon, What We Owe to Each Other, p. 271.

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various relevant individual points of view.6 If a principle is one no one

can reasonably reject, the strongest objection to it will not be as strong as
those that can be pressed from other points of view against every plausible alternative. It is the principle whose implications are most acceptable to the person to whom it is least acceptable.
Importantly, only the implications of a principle that bear on an individual being able to lead her life are relevant to the assessment of its
reasonable rejectability.7 Impersonal or nonpersonal considerations,
such as those concerning aggregate benefit and burden, have no role to
play. Set aside, then, are the considerations that a cost-benefit approach
takes into account in assessing a risk-imposing activitys permissibility.8
Whether, and on what terms, it is permissible to do what imposes a
risk of harm on others depends on whether a principle that permits
6. This involves understanding alternative principle as some other principle for the
general regulation of the type of situation in question that performs roughly the same
function as the original principle.
7. This is what has, following Parfit, come to be known as the individualist restriction.
See Scanlon, What We Owe to Each Other, pp. 21323; and Parfit, On What Matters, vol. 1,
sec. 76; Rahul Kumar, Contractualism on the Shoal of Aggregation, in Reasons and Recognition: Essays on the Philosophy of T. M. Scanlon, ed. R. Jay Wallace, Rahul Kumar, and
Samuel Freeman (Oxford: Oxford University Press, 2011), pp. 12954; and Rahul Kumar,
Reasonable Reasons in Contractualist Moral Argument, Ethics 114 (2003): 637.
8. Setting aside aggregate considerations as relevant to the justification of what
it is permissible to do commits contractualism to a probability (or individual)
rather than a frequency (or population) perspective on risk. Barbara Fried nicely
illustrates the distinction:
Suppose we estimate that if we distribute a new Flu vaccine, roughly one out of every
one million people inoculated will have an adverse reaction, resulting in death. We plan
to inoculate 10 million people. There are two ways to describe the likelihood that death
will result from the inoculations, sometimes differentiated as probability versus frequency. The first (probability) is the odds that any given person who receives the
vaccine will die (one in a million). The second (frequency) is the total number of
expected deaths if we inoculate 10 million people (ten). Both are describing the same set
of acts, predicted to cause the same consequences with the same likelihood; they are
simply describing the likelihood from different perspectives. (Fried, Can
Contractualism Save Us from Aggregation? p. 50)
Contractualism takes what is relevant to the assessment of the permissibility of a riskimposing activity to be whether the permission is justifiable to the person who stands to be
most at risk if it is permitted (invoking a probability perspective on risk). On a cost-benefit
approach, what matters is the likely number of individuals who will end up harmed if the
activity is permitted on the proposed terms (invoking a frequency perspective on risk).

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doing so is justifiable to each person as one no one can reasonably reject.

Focusing on what is justifiable to each turns out, however, to make
justifying the permissibility of risk-imposing activities more difficult
than it is on a cost-benefit approach. Consider, for example, the permissibility of introducing a product similar to peanut butter to the marketplace. Doing so, assessed in cost-benefit terms, looks to be permissible.
Though the benefit to any given individual of it being available on supermarket shelves is small, the aggregate benefit is enormous. There is a risk
that some will either become seriously ill or die as a result of an allergic
reaction to it, but that risk (understood as the expected number who will
end up ill or dead over time as a consequence of the permission) can be
kept low through the use of warning labels and other precautions.
A contractualist assessment of the permissibility of introducing it, on
the other hand, asks: what is the risk of ending up harmed that will be
imposed on any individual (especially the most at risk) by the product
being available, and why might it be important to an individual that it be
permissible to make it available? It supports the opposite conclusion to
that supported by cost-benefit considerations: it is hard to see how an
individuals loss of the benefit from access to the peanut-butter-like
product could be of sufficient importance to justify to one allergic to it
the imposition of even a low risk of death.9
Contractualist reasoning may support some surprising conclusions
concerning the permissibility of risk-imposing conduct. The worry is
that it supports the prohibition of all risk-imposing activities. Ashfords
case for concluding that it does is as follows: consider the justifiability of
9. In some cases, taking what is relevant to the assessment of a risk-imposing activity to
be the risk imposed on an individual (a probability perspective) might be thought to lead to
implausible conclusions. Say you are faced with a choice between imposing a large risk of
injury on those characterized by a certain standpoint that in fact happens to characterize
very few existing individuals and imposing a smaller risk on another standpoint that
happens to characterize a very large number of existing individuals. Many will be inclined
to think that the correct choice is to impose a greater risk on the smaller number. That way,
over time, you are just going to end up with fewer injured people.
Here, I will just note that the issue raises no special questions that arise in the context
of thinking about the grounds for permissible risk imposition. Rather, it concerns the
general question of how the contractualist approach makes sense of the seeming relevance
of aggregative considerations for intuitive convictions concerning what, in certain cases, it
is permissible to do. For discussion of the issues, see Aaron James, Contractualisms (Not
So) Slippery Slope, Legal Theory 18 (2012): 26392; and Kumar, Contractualism on the
Shoal of Aggregation.

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a principle permitting a small number of individuals to be chosen at

random and involuntarily subjected to dangerous and painful medical
experimentation, the fruits of which will benefit a great many people.10
Contractualist reasoning plausibly finds the experimentation impermissible. What is important to Ashfords argument is the rationale for this
conclusion; why that is so is helpfully illustrated using Harsanyis
broadly contractualist account of moral reasoning as a foil.11
Harsanyis approach holds that the assessment of the permissibility of
a socially beneficial activity, whose pursuit may leave some seriously
burdened, roughly requires asking whether the activity would be permitted by a principle chosen behind a veil of ignorance, by persons each
concerned to best advance her interests. Each person knows both how
the risk of ending up burdened is distributed across the different social
positions represented in the population and what the distribution of the
actual population is across those social positions. But no one knows
what her social position actually is.
On this view, the justifiability to each person of the experimentation
turns on a comparison of the prospective benefits for a person of allowing it, discounted by the probability of a person being a beneficiary, with
the prospective burden a person might have to bear, discounted by the
probability of being among those who end up burdened. A large enough
probability of being among those benefited and a sufficiently low probability of ending up burdened render a principle permitting the experimentation one that is justifiable to each person.
Scanlons contractualism does not employ a veil of ignorance. It
requires that permissible conduct be justifiable as such to the point of
view of one who stands to end up bearing the greatest burden as a result
of the permission and knows it. This suggests that what is relevant to the
assessment of a principles reasonable rejectability is not the discounted
value of the burden a person might have to bear as a result of the permission, but the full value of that burden. If it is looked at in this way, it
is hard to see how the experimentation could be defended as justifiable
10. Scanlon, What We Owe to Each Other, pp. 2089.
11. See John Harsanyi, Morality and the Theory of Rational Behavior, in Utilitarianism and Beyond, ed. Amartya Sen and Bernard Williams (New York: Cambridge University
Press, 1982), pp. 3962. The contrast between Harsanyis and Scanlons contractualist
account of moral reasoning is drawn by Ashford in Ashford, The Demandingness of
Scanlons Contractualism, pp. 29596.

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to one who knows she is to be experimented on against her will. The

benefits secured for individuals by permitting it would have to be especially important to even start to make it plausible that it might be.
Requiring that the permissibility of conduct be justifiable to the one
who stands to have to bear the greatest burden if it is permitted, and
knows that, appears to yield a plausible rationale for the prohibition of
the experimentation. But now consider a second case, that of an Amish
farmer, Jebidiah, who lives under a heavily used flight path (fixed by a
process that did not involve consulting those who live in its vicinity).12
While out tilling his fields, he is hit by a bit of falling airplane fuselage and
is fatally wounded.13 Stipulating the risk of his being injured to be small
and the benefit secured for others by routing flight paths over Amish
country as quite significant (I will assume it would be financially unfeasible otherwise), it is plausible to hold Jebs injury to be the result of an
activitys permissible pursuit. But it is hard to see how the permissibility
of the aviation practice in question could be defended as justifiable to a
fatally wounded Jeb as something no one, including him, can reasonably
reject. What could one say to him? You understand: though it has cost
you your life, the alternative to not permitting commercial flights is to
ask others each to individually bear a much greater burden? It is
implausible to suggest that, in a comparison of the burden of not being

12. This case is first introduced in Ashford, The Demandingness of Scanlons

Contractualism. I introduce it here because it is one that has gained traction in the
discussion of this topic. See, for instance, V. Munoz-Dard, Global Justice: Imposed and
Shared Risks, in Spheres of Global Justice, Vol. 2, Fair DistributionGlobal Economic,
Social and Intergenerational Justice, ed. Jean-Christophe Merle (Dordrecht: Springer, 2013),
pp. 5354, a discussion of contractualist and risk imposition complementary to this one. It
is worth noting, however, an important respect in which the case is misleading. The Amish
are thought to eschew the use of modern technology, so it looks like the Amish farmer does
not stand to benefit in any way from the permitting of commercial aviation on the proposed terms. The intuition the case is meant to elicit is that this makes its permissibility
particularly difficult to justify to him. But permitting an activity need not be mutually
beneficial for it to be true that its permissibility is justifiable to each person. What matters
is that it be one that individuals have good reason to want to be able to permissibly pursue,
and that the burdens some individuals might each have to bear if it is permitted be not so
great as to make accommodating its pursuit unreasonably burdensome.
13. These things do happen: http://abcnews.go.com/blogs/headlines/2013/05/plane
-debris-falls-on-georgia-womans-house-walmart/.

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allowed to travel by air with the burden of actually being killed, one
might reasonably conclude that not being allowed to travel by air constitutes the greater burden.14
On reflection, it is plausible to hold the medical experimentation to be
impermissible and the commercial aviation practice to be permissible.
But these considered judgments look like they cannot be made sense of
on contractualist grounds. Doing so requires taking the main objection
to the experimentation to be the undiscounted burden of being involuntary experimented on, while taking the central objection to commercial
aviation to be the burden that an individual could end up having to bear,
discounted by the probability of a person having to bear it (the risk of
ending up burdened). But, first, as the cases look to be structurally identical, there are no grounds internal to the contractualist approach for
discounting the potential burden in one case, but not the other. Second,
discounting a potential burden by the likelihood of an individual having
to bear it appears to constitute a betrayal of Scanlonian contractualisms
distinctive understanding of the requirement that the permissibility of
conduct must be justifiable to each person.
Part of the appeal of the contractualist approach is that plausible
rationales for the impermissibility of activities such as the medical
experimentation can be articulated in its terms. Ashfords point is that
the source of this strength, the requirement that the permissibility of an
activity be justifiable even to one who ends up burdened to a significantly greater extent than it benefits anyone, stands in the way of articulating plausible rationales in its terms for most intuitively permissible,
socially productive, risk-imposing activities.

III

Ashfords argument takes the medical experimentation and commercial

aviation cases to both concern activities whose permissible pursuit
stands to benefit many but will impose on some a risk of being seriously
burdened. Her claim is that contractualist reasoning yields an intuitively
compelling rationale for the experimentations impermissibility. But
because the two cases are structurally identical, reaching the same conclusion in the commercial aviation case appears to be inescapable.
14. Ashford, The Demandingness of Scanlons Contractualism, p. 299.

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In this section, I will argue that the two cases are not, in fact, structurally
identical. Contractualist reasoning does yield a plausible rationale for
the medical experimentations impermissibility. But it has no implications for the commercial aviation case. (I will return to the question of
what contractualism has to say about that case in the next section.)
The seemingly compelling case for prohibiting the medical experimentation identifies the decisive objection to it in the burden imposed
on one actually experimented on. Comparing it to the force of any individual objection to it not being permitted, it is clear that no one stands to
be as burdened by its prohibition as by it being permitted. A slight modification to the case, however, casts doubt on whether this really is a
compelling rationale for its impermissibility. Say the experimentation is
still involuntary, but it involves painlessly enhancing individuals in ways
that significantly benefit each of them. Further, it takes place without the
experimental subjects knowledge, by slipping drugs into the water
supply of their homes. Without the element of pain or distress at the
knowledge that one is being involuntarily experimented on, and no
prospect of ending up burdened as a result, the proposed rationale for its
impermissibility ceases to look so compelling.15
This rationale for not permitting the experimentation locates the decisive objection to it in what I will call an instrumental consideration, one
that concerns a respect in which an individual stands to be benefited or
burdened as a result of an activity being permitted.16 But, intuitively,
whether the involuntary experimentation is painful and harms those
subjected to it, or is painless and results in their having better lives, has
little bearing on whether or not it is permissible. An alternative rationale,
one that does justice to this thought, stresses the relevance to the case of
15. I assume here that the enhancement is not burdensome because it is involuntary.
16. Ashfords argument assumes that, in assessing a principles reasonable rejectability,
what is relevant is the undiscounted burden an individual might have to bear as a result of
the envisioned permission. As she sees it, allowing a burden to be discounted by the
probability of a person having to bear it would undermine the compelling contractualist
rationale for the medical experimentations impermissibility. In Section IV, I will argue that
Scanlonian contractualism is best understood as taking the discounted, not the full, potential burden that an individual might have to bear to be what is relevant in assessing the
strength of the persons objection to a proposed principle. In this section, I will simply
grant Ashfords assumption. I will argue, instead, that the issue of whether or not potential
burdens are to be discounted has no bearing on what contractualist reasoning leads us to
conclude about the permissibility of the medical experimentation.

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what I will call intrinsic considerations. This type of consideration,

whose salience for the assessment of a principles reasonable
rejectability Ashfords argument overlooks, concerns the significance of
a certain type of conduct being permitted, quite apart from either
the possible consequences of the permission being exercised or other
indirect consequences of it. A person might, for example, want to reject
a proposed principle that permits facts about a persons sexual orientation to be taken into account in employment decisions, on the grounds
that permitting this is stigmatizing. It is stigmatizing whether or not
anyone ever does so, and regardless of whether the permission has any
effects on how a person is related to by others (either in their actions
or in their attitudes). The mere fact of it being permissible to take such
facts into account is sufficient to ground an intrinsic objection to
the proposed permission.17
The intrinsic consideration that is important to the rationale for not
permitting the experimentation concerns the extent to which an individuals sense of herself as an independent agent is intimately tied up
with her having sole decision-making authority over how her body is to
be used. Things may happen to a persons body that she does not
choose, either through chance events or as the foreseeable result of
what others do. But that is just part of what it is to be an embodied
agent in the world; maintaining complete control over what happens to
ones body is not possible. Having things just happen to you is not,
however, the same as another having the right (whether or not it will
ever be made use of) to make a decision about how your body is to be
used, or what will be done to your body, without your having a say in
the matter. Such a right would undermine the decision-making authority over the use of her body that is partly constitutive of a persons
self-conception as an autonomous agent.
The grounds for reasonably rejecting any principle permitting the
kind of medical experimentation in question have nothing to do with the
imposition of either harm or the risk of harm. The objection, rather, is
that the experimentation requires that it be permissible to involuntarily
17. The two categories, intrinsic and instrumental, are exhaustive of possible grounds
for reasonably rejecting a proposed principle. What category a consideration most clearly
fits into will often be a matter of judgment. Further, there is no reason to think that the
same consideration cannot be relevant both intrinsically and instrumentally.

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involve individuals in it as experimental subjects. Any such permission

would make it the case that the authority to make decisions concerning
how an individuals body may be used has, at least in part, been ceded
to others. Each individual has good reason to want this kind of
decision-making discretion to be solely her own (regardless of whether
or not her body would in fact be used by others were it [to even in
part be] ceded).
I have argued that the more compelling rationale for the experimentations prohibition emphasizes the intrinsic significance of this type of
act being permitted. It remains plausible, however, that instrumental
considerations will be of primary importance in assessing whether or
not commercial aviation is permissible. There is, therefore, no reason
to think that any conclusion concerning the permissibility of the activity
in the first case has implications for the activitys permissibility in
the second case.
The symmetry between the cases could, however, be maintained on
the grounds that the intrinsic objection to the experimentation is also an
objection to commercial aviation. Roughly, one could argue that, over
time, some will certainly be injured or killed as a result of commercial
aviation accidents, effectively undermining their discretion to make
decisions concerning how their bodies are used. Permitting commercial
aviation would thus usurp an individuals authority over the use of her
body, just as in the medical experimentation case.
The problem with defending the symmetry between the cases in this
way is that commercial aviation, unlike medical experimentation, does
not appear to make use of anyones body in any way.18 More plausibly,
these deaths simply occur as a side effect of commercial aviation. The
point is nicely illustrated by a somewhat fanciful modification of the
commercial aviation case, in which the success of any given flight also
requires the cooperation of benevolent, but playful, aviation gods. They
are happy to do their part in ensuring that planes do not fall to the
ground every time one tries to take off, but they need to be entertained.
What they enjoy most is seeing, now and again, an individual being
18. As stated, this may sound like an objection to the intention in involving a person in
ensuring the success of flights. But the objection to the permissibility of involving a person
in this way is the same as in the medical experimentation case: permitting the activity
would be to grant discretion to others to make decisions concerning the use of a persons
body that she has reason to want to be solely her own.

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sucked from the ground into an airplane by a giant vacuum and then
ejected out of the cargo bay, from which she falls to the ground and is
either badly injured or killed. In this version of the case, to permit commercial flights is to permit an activity that grants discretion to make
decisions concerning how an individuals body is used to people other
than the individual herself. The activity is one, after all, whose success
requires that it be permissible to suck an individual off the ground and
into the plane, without her consent, as if she were a form of fuel for the
flight. This contrast brings into relief that the permission in question in
the original version of the case is not one that involves any such usurpation of an individuals authority to make decisions concerning how her
body is used.
IV

The medical experimentation and commercial aviation cases are not, as

Ashford contends, symmetrical in structure. But that does not show her
main claim, that contractualist thinking supports implausible conclusions concerning the permissibility of risk-imposing activities, to be
mistaken. The most plausible grounds for taking commercial aviation to
be impermissible are instrumental in character.19 Any instance of a
flight over inhabited territory imposes a risk of harm on those inhabitants. Over time, some of them will be unlucky enough to be harmed as
a result of that risk eventuating. The question to be asked in assessing
the activitys permissibility is whether the risk of harm imposed by
commercial flights on those who just happen to live under a flight
path is justifiable to any such person on grounds that person cannot
reasonably reject.20
19. I am assuming that the Amish would not find the very presence of an aircraft flying
over their territory an affront to their religion or way of life, so I am setting aside that
consideration as grounds of a possible intrinsic objection.
20. It could be argued that the familiar distinction between intended and foreseen
consequences accounts for the asymmetry between the cases. Though individuals ending
up being harmed is a foreseeable consequence of commercial aviation being permitted, it
is not intended. In the medical experimentation case, on the other hand, there is an
intention that people (though no one in particular) be harmed. This difference makes the
permissibility of aviation prima facie more defensible than the medical experimentation.
For present purposes, whether or not this is a morally relevant difference between the
cases is not an issue on which I need take a stand. What I am arguing is that it is the
distinction between intrinsic and instrumental considerations that is load-bearing in how

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The plight of Jeb, the fatally wounded Amish farmer, vividly illustrates
the case for concluding that the answer is no. How could the permissibility of commercial aviation possibly be defended as justifiable to him
on grounds he cannot reasonably reject? As Ashford correctly observes,
individuals have good reasons for wanting commercial flight to be
permissible, but it is implausible that they compare in gravity to Jebs
reason for wanting not to have been burdened in this way.
In this section, I will argue that this strand of Ashfords argument
relies on a mischaracterization of what the aviation practice being justifiable to Jeb requires. In particular, I will argue that whether or not Jeb
can reasonably reject any principle permitting the activity turns on
whether the risk that what has happened to him could happen to any
person in similar circumstances is sufficient to defeat the reasons that
favor the activitys being permitted. In Section IV.A, I will discuss, in
greater detail than in the previous section, how the contractualist
approach frames the question of the permissibility of a risk-imposing
activity. This will lay the grounds for the argument for the justifiability of
the aviation practice to Jeb that I will advance in Section IV.B.
A
So far, the discussion has not flagged as significant contractualisms
treating what it is permissible for one to do as depending on what a
principle, for the general regulation of conduct in the type of situation
one finds oneself in, permits. The point plays no role in either strand of
Ashfords argument. But as I will now argue, it is of central importance
for understanding the contractualist approach to assessing the permissibility of a risk-imposing activity.
A principle for the regulation of conduct in a certain type of situation
specifies what individuals who find themselves in that type of situation,
whoever they are, may legitimately expect of one anothers conduct.
Taking a particular course of action to be permitted by a principle no one
can reasonably reject is to hold that there are good reasons that support
the permissibility of any person similarly situated conducting herself in
that way, and that the reasons supporting this standing permission are
the impermissibility of the medical experimentation and the permissibility of the aviation
practice is made sense of in contractualist terms.

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sufficient to defeat objections to it.21 Because the permission is a general

permission to act for anyone thusly situated, assessing whether it is
permissible to act, here and now, in a way that has implications for
a particular other (or others), requires considering the general question
of what the reasons are that favor and oppose this type of conduct
being generally permitted.
The reasons that bear on this question concern the relevant intrinsic
and instrumental considerations that could be appealed to from the
different points of view of those who stand to be affected. Because what
is licensed by a principle is the general permissibility, in a certain type of
situation, of relating to another in a certain way, and there is no way of
knowing how often it will obtain or who will find themselves in it, the
points of view in question are not those of actual, particular individuals,
but rather representative individual standpoints.
A standpoint, as the term is being used here, is an abstraction, a way
of referring to the reasons that persons in certain circumstances
(assumed to have certain normal capacities for discernment, selfcontrol, planning, and so on) typically have for caring about or wanting
certain things (generic reasons), such as a degree of personal privacy,
security against bodily injury, the freedom to nurture personal relationships with friends and intimates, and sole discretion concerning how
ones body is used.22 The relevant standpoints for assessing principles
governing promissory obligations, for example, are those of the promisor
and the promisee, each of which is associated with certain characteristic
interestssuch as the promisees interest in being assured that certain
things will or will not be done (unless she says otherwise), and the promisors interest in being able to assure the promisee, if she seeks assurance.23
21. Scanlon, What We Owe to Each Other, pp. 197201.
22. A generic reason is one that we can see people have in virtue of certain general
characteristics; it is not attributed to specific individuals. Scanlon, What We Owe to Each
Other, pp. 2045; see also T. M. Scanlon, The Significance of Choice, Tanner Lectures on
Human Values 1988, pp. 18283. It is worth noting that the notion of a generic reason is a
wholly normative claim, one having to do with the reasons that individuals in certain
circumstances normally have for wanting or caring about certain things. That some people
in the actual world may not in fact have reason to care about these things does not call
reliance on generic reasons into question, as they are not statistical generalizations based
on a particular population.
23. In assessing the implications of a proposed principle for a particular standpoint,
whose particular interests are aptly characterized by that standpoint is of no importance.

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Relying on standpoints is motivated by the thought that conclusions

about the permissibility of conduct must be reasonably epistemically
accessible to an individual thinking about what courses of action are
open to her. Requiring that an individual take into account specific facts
about the rational preferences, capacities, psychological dispositions,
and so on of others in determining what it is permissible to do would
place serious epistemic and cognitive demands on a person. This would
constrain an individuals ability to pursue her rational aims, making it
unduly burdensome for her to live her life within the bounds of the
permissible, and make it unreasonably difficult for both her and others
assessing it to be confident of her conducts permissibility. These problems are avoided by relying, in thinking about what it is permissible to
do, on relevant individual standpoints, characterized in terms of generic
information about what individuals in the type of situation in question
typically have reason to want.
With these last points concerning the role of principles and standpoints in contractualist thinking in mind, let me restate how the question
of the permissibility of a risk-imposing activity is framed in its terms: the
reasonable rejectability of a principle for the regulation of a riskimposing activity turns on a comparison of the implications of conduct
being regulated by that principle with those of candidate alternative
principles, as assessed from the relevant standpoints. The implications
in question are either intrinsic or instrumental considerations. For any
proposed principle, there will be numerous such considerations that
favor permitting the activity on its terms. The main objection to doing so
will most often have to do with the generic reason a person has for not
wanting to end up burdened as the result of the imposed risk eventuating
in her life.
How forceful an objection this is will depend on how likely it is that
permitting the activity will result in a person ending up burdened.24 The

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

particular persons. What matters for purposes of fixing what the relevant standpoints are
for assessing a proposed principle are, first, that a standpoint aptly characterize the relevant interests of an individual or individuals who, in the world as we know it, exist, did
exist, or we have reason to believe will exist, and second, that it be one for which the
proposed principle has implications.
24. I am in agreement with Lenman in seeing principles as introducing an ex ante point
of view from which the reasonable rejectability of a principle is to be assessed. Unlike

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magnitude of the risk imposed on different standpoints, and, especially,

the standpoint of those most at risk, will therefore be an important determinant of its permissibility. But, for reasons I will briefly discuss below,
any legitimate answer to this question is best understood as correct
relative to certain assumed parameters that can be specified in numerous different ways.25
Consider a common understanding of probability, the relative frequency view. It holds that the probability of a certain event-token occurring is fixed by first defining some reference class that contains the object
of risk assessment, and then determining what proportion of the people
or events in that class have the relevant property. For example, to determine what the risk is of my being injured playing squash over the next
decade, a reference class needs to be defined, and the proportion of
individuals in that reference class who have been injured playing squash
needs to be determined. Casting the proportion of individuals in the
reference class who exhibit the property of interest (injured while
playing squash over a certain time span) in terms of frequency tells me
what the probability is of my being injured in that time period.
What exactly that turns out to be depends on how the reference
class is characterized, for which there are a myriad of possibilities. A
candidate reference class need only pick out some property that can be
correctly attributed to me and is also instantiated by others. It could,
for instance, be the class of men, men of a certain age, or squash
players with a certain number of years of experience playing squash.
There are, in principle, as many legitimate answers to the question of
Lenman, I do not believe the magnitude of a burden that may befall a person if conduct of
a certain type is permitted, as opposed to the magnitude of that burden discounted for the
probability of it befalling a person, to be relevant to the assessment of whether it is in fact
permissible. See James Lenman, Contractualism and Risk Imposition, Politics, Philosophy, and Economics 7 (2008): 99122. Fried, Can Contractualism Save Us from Aggregation? draws attention to certain passages in Scanlon, What We Owe to Each Other, that
suggest that undiscounted burdens are relevant to assessing a principles reasonable
rejectability. My view is that these passages are misleading. Contractualism is best understood as holding that only instrumental and intrinsic considerations are relevant to assessing a principles reasonable rejectability and that undiscounted burdens are not relevant.
25. The next few paragraphs largely follow points elegantly made in Alan Hjek, Conditional Probability Is the Very Guide of Life, in Probability Is the Very Guide of Life: The
Philosophical Uses of Chance, ed. E. Henry Kyburg Jr. and Mariam Thalos (LaSalle, Ill.:
Open Court, 2003), pp. 183203; and Alan Hjek, The Reference Class Problem Is Your
Problem Too, Synthese 156 (2007): 56385.

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what the probability is of my being injured while playing squash in the

next ten years as there are reference classes.26 Each legitimate answer
to the question is going to be fixed relative to the parameters of the
assumed reference class.27

26. I have relied, in making this point, on a relative frequency interpretation of probability. But the point can also be made on the terms of the other major interpretation of
probability, the Bayesian view. The Bayesian view holds that the risk of a certain event
occurring is to be fixed relative to a suitable agents degrees of belief, or confidence, in a
proposition stating the probability of an event occurring. On the simplest Bayesian view,
any proposition stating the probability of an event occurring is always relative to a particular agents degrees of belief. There are potentially as many legitimate answers to the question of how great the risk imposed by a certain activity is as there are agents.
It is more plausible to hold that the probability of an event occurring ought to be fixed,
not with respect to just any agents degrees of belief, but with respect to the degrees of
belief of those with suitable expertise and knowledge. Doing so, however, in no way undermines the conclusion that there are many valid answers to the question how risky is it? As
Alan Hjek points out, an expert meteorologist may say that there is a 10 percent chance of
tomorrow being a rainy day because days like tomorrow have been rainy days. But there are
innumerable ways that tomorrow might be characterized as being like other days. What
the probability of tomorrow being a rainy day turns out to be will be conditional on how the
like relation is filled in; there are lots of reasonable possibilities here. Any expert will have
to choose among them, and there is no reason to think that experts will not differ in the
choices they make.
27. There is no fixed rule for picking out one reference class as the appropriate one.
Something like choose the narrowest possible relevant reference class for which reliable
evidence is available leaves open the choice between roughly equally narrow reference
classes, and requires that some kind of standard of what counts as reliable be employed.
Similarly, a rule that directs us to fix what the risk is by appeal to the degrees of belief of an
expert leaves open to judgment what is going to count as expertise for the purposes of fixing
the kind of risk in question, and how to decide which experts view to go with in the familiar
circumstance that experts on the matter in question disagree among themselves.
It could be argued that this reference class problem does not show that, as a metaphysical matter, there is no such thing as the unique probability of a proposition in virtue of the
complete set of conditions that hold in the universe at a particular time. For purposes of
this discussion, it is enough to take it to show that there is a problem with fixing the
probability of a proposition (or event-token) in a form that is informative for purposes of
deciding what to do or expect, while retaining a claim to it being the unique, correct
answer. As Hjek puts it: Consider again poor old John Smiths predicament at this
moment [he is a fifty-year-old consumptive Englishman, wondering what his chances are
of living to sixty-one]. Imagine him having knowledge of the complete situation of the
universe at this moment; or knowledge of a complete set of relevant conditions. We tell him
that propensities are dependent on these things, but we do not tell him how. Granting him
all the computational power that he might need, does he have any idea what is his propensity for living to 61, or even what this means? Hjek, The Reference Class Problem Is
Your Problem Too, p. 576.

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Whether it is permissible to pursue a risk-imposing activity will hinge,

in part, on what the magnitude of the imposed risk is taken to be. But, as
stated, what the magnitude of the risk is found to be will often vary
depending on the reference class assumed to characterize the population put at risk. The point presents a challenge to contractualism
because some reference class needs to be chosen in order to assess a
risk-imposing activitys permissibility, but the approach appears to offer
no principled basis for adjudicating between alternatives. Contractualist
reasoning could therefore potentially yield contradictory conclusions
concerning the activitys permissibility. Each conclusion would be
correct relative to the parameters assumed by a particular specification
of the magnitude of the imposed risk. Working out a conclusive answer
concerning what it is permissible for a person to do would then require
settling, on grounds exogenous to the contractualist framework, which
set of parameters (and the specification of the risks magnitude they
support) ought to be assumed in assessing the activitys permissibility.
Contractualist thinking about permissible risk imposition, it appears,
offers a crucially incomplete account of the grounds for permitting or
prohibiting a risk-imposing activity.
This appearance, however, is deceptive. The basis for privileging one
reference class over the alternatives is in fact available on grounds internal to the contractualist approach. Alternative reference classes are just
distinct, equally correct ways of describing the population at risk that
is of interest. But the population at risk is always characterized in
contractualist reasoning by the standpoints that population instantiates.
What the contractualist approach thus requires is that the specification
of the magnitude of the risk permitting an activity will impose on a
certain standpoint use a reference class whose parameters are made up
of the characteristics that together describe that standpoint. That is, the
parameters of the reference class to be used in determining the risk
imposed on a segment of the population are just the parameters of the
standpoint that correctly characterizes that segment of the population.
For example, say what is being assessed is a principle that permits fire
trucks to be driven through metropolitan areas at very high speeds. If one
of the standpoints of those at risk of ending up harmed as a result is
characterized in a way that assumes average mobility and hearing, the
parameters of the reference class assumed by the specification of
the magnitude of that risk also ought to include average hearing and

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Philosophy & Public Affairs

mobility. This will support a certain conclusion about the magnitude of

the risk. By contrast, if the standpoint assumes poor hearing and mobility, the parameters of the appropriate reference class ought to include
poor hearing and mobility, plausibly resulting in a different conclusion
about the magnitude of the imposed risk.
The rationale for taking the parameters of the reference classes to be
assumed from the way in which the standpoints of those at risk are
characterized follows the rationale for contractualisms employment of
standpoints in the first place. What it is permissible for a person to do
ought to be reasonably epistemically accessible to one deliberating
about what, under the circumstances, it is permissible for her to do.
Since the magnitude of the risk an activity imposes on others is pertinent to the permissibility of its pursuit, the magnitude of that risk ought
to be reasonably epistemically accessible to a person deliberating about
the permissibility of its pursuit. Candidate reference classes whose
parameters are, for example, difficult to discern without special training
or require knowledge of the particular individuals for whom the course
of action may have implications that is burdensome to obtain, or
cannot permissibly be obtained, will fall afoul of this requirement.
The problem does not arise when the reference class assumed in
determining the risk imposed on a standpoint mirrors the description
of that standpoint. Standpoints are always specified in a way that is
reasonably epistemically accessible.
To illustrate the significance of these last points concerning the specification of the magnitude of a risk, consider the example of a vaccination
program, aimed at the prevention of the spread of a serious airborne
virus that can trigger debilitating migraines. For the vaccine to be maximally effective, the entire population must be vaccinated. The chance
that an individual, characterized in general physiological terms, will
have an allergic reaction to it is very low, so it is plausible that it is
permissible to vaccinate everyone without taking any special precautions. Some, however, carry a genetic mutation that renders them more
likely than others to have a very serious reaction to the vaccine. Whether
a person carries this mutation, and the extent to which the risk is amplified for one who does, is information that is obtainable, but only through
a series of complex genetic tests. Because the test results can be inconclusive, they require several repetitions over a span of time in order to
produce reliable evidence.

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The information required for characterizing as distinct, and relevant

to the assessment of the vaccine programs permissibility, the standpoints of those who stand to benefit from it, but who differ in the degree
to which they are put at risk by being vaccinated, is certainly available.
But the burdens associated with obtaining the relevant information,
together with the fact that doing so is in tension with mounting an
effective vaccination program in a timely manner, provide grounds for
resisting assessing its permissibility from multiple standpoints that differ
with respect to a susceptibility to an allergic reaction. Arguably, were
they to be taken into account, there would be a good case to be made that
testing for the genetic mutation is one of the conditions of permissibly
carrying out the program; as it is, it is permissible to proceed with the
vaccination program without testing for the mutation. If an individual
does suffer an allergic reaction, she will be owed assistance, but cannot
claim to have been wronged by having been exposed to the risk of this
happening to her.28
B
The argument for why contractualism supports implausible conclusions
about permissible risk imposition relies on the thought that most intuitively acceptable risk-imposing activities will not be justifiable as permissible to someone like Jeb, who knows that the risk in question has
actually eventuated in his life as a serious harm. But whether Jeb has
been wronged by having that risk imposed on him turns on whether
doing so is permitted by a principle that is justifiable to anyone (suitably
motivated) on grounds that no one, including Jeb, can reasonably reject.
28. In this example, the epistemic demands associated with different ways of characterizing relevant standpoints count in favor of some ways of characterizing a standpoint
over others, and thus function as grounds for privileging one way of characterizing the
riskiness of an activity for purposes of assessing its permissibility. But it is not the only type
of consideration that might play this role. In the vaccination program case, for instance,
there is a distinct kind of objection to taking into account, in assessing its permissibility, the
risk to those with a specific gene mutation, namely, that gathering such genetic information is likely to involve nontrivial intrusions into individuals lives. Arguably, individuals
have an interest in having their private informationespecially their medical
informationprotected from official authorities (like government agencies). Gathering the
information required to come up with a reasonably reliable estimate of the risk to which
individuals with the mutation stand be exposed by the vaccination program will almost
certainly run afoul of that interest.

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Answering this question requires taking up a kind of ex ante point of

view. It is not ex ante in the sense that the question to be asked is what
principle would be justifiable to Jeb if he did not know his particular
identity and that he has been fatally wounded. Rather, it is an ex ante
point of view in the sense that it only takes into account a principles
instrumental and intrinsic implications, as assessed from the relevant
standpoints. Jeb knows that he has ended up seriously harmed as a result
of anothers conduct. But whether or not he has been wronged turns on
whether the risk that the kind of thing that has happened to him could
happen to someone in his circumstances is sufficient grounds to take
any principle permitting such conduct to be reasonably rejectable. That
Jeb has in fact been harmed is not in itself grounds for concluding
that any principle that permits the aviation practice in question is one he
can reasonably reject.
It seems plausible to take the risk of ending up harmed as a consequence of an aviation accident imposed on someone in Jebs circumstances to be quite low (aviation accidents happen, but not that often).
But as previously discussed, taking the imposed risk to be low assumes a
certain characterization of the standpoint of someone in Jebs circumstances. The assumption, roughly, is that the standpoint is one of
someone who lives in a sparsely populated territory that lies under
a flight path.29
Say, however, that Jeb is the sort of person who is temperamentally
drawn to planes. When he hears one passing, he finds himself moved to
try to situate himself so as to be able to get a good look at it. Were this
fact about his temperament incorporated into the characterization of
the standpoint of someone in Jebs circumstances, the risk to which
such a person stands to be exposed would, let us say, be greater than if
it is not taken into account. What justifies not including it are the
epistemic demands associated with discovering whether or not anyone
located in the vicinity of a particular flight path does in fact have Jebs
29. Say the Amish experience a population explosion, such that their number grows
exponentially, making the territory in question very densely populated. The risk of an
Amish person being harmed would then no longer be quite low, as the probability of the
area in the territory in which, for example, a bit of falling aircraft debris lands being
occupied will have gone up substantially. This can be taken to be a respect in which the
numbers are relevant to determining what is permissible, but not in the way ruled out by
the contractualist strictures.

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particular disposition. Jebs temperament may in fact make him

more at risk of being harmed as a result of an aviation accident than
others. But whether or not he can reasonably reject any principle permitting commercial flights depends on how great the risk is that is
imposed on anyone aptly picked out by a standpoint that captures his
circumstances.30
Jeb is unlucky to have been fatally harmed as a result of an aviation
mishap. But that he has been harmed is not an adequate basis for
concluding that he is justified in being resentful of others pursuing an
activity that has resulted in this outcome. He may regret how things have
turned out for him, but his being harmed is in no way at odds with a
principle that permits such flights being justifiable to him on grounds he
cannot reasonably reject (provided he himself is motivated to be guided
in his conduct by principles no one can reasonably reject).
If anything, the opposite is the case. Assuming that the economic
and personal opportunities made available to individuals by commercial aviation are ones individuals have good reasons to want, there are
grounds for in some way permitting the activitys pursuit. The risk of
harm that will be imposed on individuals by the activity is an important reason for objecting to it being permitted. But that concern is
plausibly addressed by any principle permitting commercial aviation
that, first, mandates certain standards of due care regulating the operation of commercial flights and, second, invests any person who ends up
being harmed as a result of the eventuation of the imposed risk with a
claim to compensation (for the person or, as in Jebs case, his family).
The first requirement lowers the risk of ending up harmed that
commercial flights impose on individuals, while the second can at least
partially mitigate the burden of having the risk eventuate in a persons
life.

I have argued that in order to answer the question of whether the permissibility of commercial aviation is justifiable to Jeb, who knows he has
30. I discuss this point at greater length in Contractualism and the Roots of Responsibility, in The Nature of Moral Responsibility, ed. R. Clarke, M. McKenna, and A. Smith
(Oxford: Oxford University Press, 2015), pp. 25179.

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been fatally wounded as a result of an aviation incident, on grounds he

cannot reasonably reject, we should ask whether a principle permitting it
is justifiable to the standpoint that aptly characterizes a person in Jebs
circumstances. The shift from what is justifiable to this particular
person, here and now, to what principle is justifiable to a standpoint
may, however, appear to abandon an idea central to the contractualist
approach: that it matters to morally motivated persons that their
conduct be justifiable to one another. Justifying to Jeb the permissibility
of the activity that has resulted in his being mortally wounded by
appealing to the justifiability to the relevant standpoint of the principle
permitting the activity appears to leave Jebs specific complaint
unaddressed.
This objection sounds forceful. But it is surprisingly difficult to
pin down. One concern about it is that it appears to presuppose an
understanding of the contractualist ideal of interpersonal justifiability
as involving individuals trying to persuade one another to accept what
has been done, or what will be done, as all right with me. What
contractualism takes the morally motivated person to be concerned
with, however, is hypothetical justifiability. Such a person conducts
herself in a way whose permissibility is supported by reasons that all
those who care about relating to others on terms justifiable to one
another cannot reasonably reject as justification for the permission.
Another may be insensitive to those reasons, and thus unwilling to
accept the permissibility of ones conduct as justifiable to her. That
may well create a substantive problem in ones relationship with that
person, but it does not justify any claim on her part to have been
wronged.
More importantly, if Jebs complaint is that another has wronged
him, what he is objecting to is the permissibility of the conduct that has
resulted in his ending up harmed. But to object to the permissibility of
an activity is to object to a principle that permits individuals to engage
in that activity. The objection is general: it is an objection not just to you
doing what had negative consequences for me, but to anyone under this
type of circumstance engaging in that type of conduct, on the grounds
that it could have certain implications for another individual (like me).
The response to Jebs particular objection argued for here does treat it
as a general objection, rather than a complaint about his particular predicament. But doing so does not abandon the contractualist ideal of

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always conducting oneself in a way whose permissibility is justifiable

to each person.31
VI

In this discussion, I have argued that understanding permissible risk

imposition in contractualist terms allows us to make good sense of the
thought that one person can wrong another by doing what imposes an
inordinate risk of harm on her. This interpersonal aspect of impermissible risk imposition is not one readily captured by a consequentialist
cost-benefit approach. I have further argued that it is a strength of the
approach that the important question of how the risk associated with an
activity is to be characterized for purposes of moral deliberation and
assessment explicitly arises in a way that is internal to the process of
working out whether a principle permitting a risky activity can be reasonably rejected. Finally, I have claimed that contractualist reasoning,
though more restrictive than a cost-benefit approach, does not support
an implausibly restrictive understanding of what risks may permissibly
be imposed. The case for thinking it does rests on taking the fact that a
particular person has ended up burdened, rather than the risk that a
person might end up so burdened as a result of an activity being permitted, as the grounds for wanting to reasonably reject any principle that
allows it. That, as I have argued, is a mistake.

31. The contractualist claim, to be fair, is that realizing the value of mutual recognition
in the moral relationship, one that holds between oneself and any other, requires that one
be guided in ones conduct by the reasons made salient by principles no one can reasonably reject. It is by responding to these reasons, and not others, in ones practical thinking
that one displays a recognition of the standing of others as rational beings to whom
justification is owed in virtue of their value as rational beings. This aspect of the
contractualist ideal of how persons ought to relate to one another has nothing to do,
however, with the issue at hand, that of whether Jeb is wronged by the risk imposed on him
by commercial flights.