Why Contractualism Cannot Accept Equal Treatment for Equal Statistical Loss

Abstract

Some ex post contractualists endorse the principle of equal treatment for equal statistical loss, which holds that cases with equal expectations of statistical loss should be treated equally. I argue that this is mistaken. Contractualism is a relational moral theory, concerned with justifiability to actual individuals. This requires distinguishing between definite standpoints—which we know correspond to actual persons—and indefinite standpoints, where it is uncertain whether a standpoint corresponds to anyone. Given that only actual persons can provide reasons of the kind that contractualism demands, I argue that definite standpoints must take priority. As a result, cases with equal expected statistical loss may differ in their justificatory structure, and the principle of equal treatment cannot always be right. I explore the implications of this argument for debates about risk and justification, showing that it provides a contractualist basis for the identified victim bias and suggests a way to develop an ex post form of discounting. By rejecting the equal treatment principle, ex post contractualism better preserves its commitment to the moral relationship that underwrites the contractualist approach to individual justification.