But what of Kagan’s second challenge? Might not the difficulty of defending options as well as constraints, in the face of Kagan’s charge that contractarian accounts will lead always to extremism, be sufficient to outweigh the relative ease with which I might hope to defend constraints and their principled exceptions? Would not this dissuade me from trying to appeal to contractarianism as a reply to Kagan’s general challenge to moderate morality? Again, I want to argue that special particular features of contractarianism make it the natural choice for anyone hoping to defend moderate morality, just as we have seen it is the natural choice for anyone hoping to ground constraints and their principled exceptions in a common source. To see this, simply consider the (what I take to be misguided) way in which Kagan argues that the contract approach leads essentially to extremism.
Kagan argues for this conclusion by pointing out that rational bargainers motivated to maximize their self-interest or well-being will never be inclined to accept options not to promote the overall good: such options would likely decrease the average overall good, and thus lower each individual bargainer’s chances of maximizing his or her own personal good. This argument, though, neglects the possibility that there may be two kinds of goods the bargainers might be concerned with at the bargaining table: what I will term for present purposes natural goods, and what I will term moral goods. Before proceeding, let us quickly get clear on how I will be using these terms. Natural goods are goods like health, pleasure, well-being, and prosperity. They are the sorts of goods that can be sensibly thought of as being promoted within a moral system. Moral goods, on the other hand, are not the sorts of things that might be promoted by a moral system; rather, they are the sorts of things that can only be reflected in, or recognized by, a moral system. We may legitimately ask of natural goods, “Should we subject this good to the calculus of social utility?” With moral goods, however, the situation is much different; the proper response to this sort of value is not to maximize it. So, while the bargainers may be motivated to promote certain natural goods by adopting a certain moral system, they might also be motivated to adopt a moral system that recognizes certain moral goods, even if adopting this particular moral system requires sacrificing the optimific distribution of natural goods that might otherwise be available in a moral system that does not reflect these moral goods.