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CHAPTER THREE: Modified Constraints

In this chapter, I will discuss exactly what sort of constraints will arise from the contractarian account as I have laid it out thus far. Certain aspects of my bargainers’ motivations lead more naturally to a grounding of constraints than do others; therefore, I will be focusing in this chapter on the bargainers’ self-interest-maximizing motive and their desire that their moral system properly recognize persons’ inviolability.

I will argue that from the bargainers’ motivation to maximize self-interest we get the typical restrictions on harming, killing, stealing, lying and so forth, on the grounds that it is in everyone’s mutual self-interest to refrain from engaging in these sorts of activities. Similar restrictions, I shall argue later, will also arise out of the bargainers’ second motive – though this motive will result in the bargainers’ adopting genuine deontological constraints, rather than mere restrictions.15

Next, I will go on to note that adopting these restrictions or constraints involves a certain trade-off in each case. The bargainers will be motivated to make these trade-offs as slight as possible; consequently, then, they will adopt modified constraints. As we shall see, this results in the constraints’ being ‘defeasible,’ as the adoption of absolute restrictions or constraints would oftentimes run afoul of the bargainers’ initial motivation to adopt the social contract in the first place. To illustrate this, I will point to the bargainers’ need to minimize the trade-offs threatened by free-riders and note that the very possibility of such a threat illustrates the fact that any contractarian account, if it is to have any hope of succeeding, must allow for exceptions. We will examine the way in which the defeasibility of the constraints emerges both from the bargainers’ self-interest- maximizing motive and from the concern with persons’ inviolability that constitutes part of their personhood-respecting motive. With regard to the former motivation, we will note that the restrictions were only erected in the first place because they worked to everyone’s mutual advantage, while free-riders seek to exploit these very restrictions and use them to everybody’s mutual disadvantage. In this case, the restrictions are no longer

15 As I am using the terms here, ‘restrictions’ are prohibitions on certain types of behavior adopted because of their utility, which can thus be overridden if utility so dictates. ‘Constraints,’ meanwhile, are prohibitions on certain types of behavior grounded in some source other than utility; though it may be


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