Here’s another entry on the paradox of deontology (the first was here). Let a deontological restriction be what Jeffrey Brand-Ballard has appropriately called a nonminimizing restriction: put intuitively, these are duties that forbid performing some act even when doing so would minimize the overall number of times that forbidden act is performed. E.g., Agent 1 must not kill Victim 1, even if killing Victim 1 would prevent Agents 2-6 from killing Victims 2-6. As I’ll recap in a moment, such restrictions are said to be paradoxical. In two relatively recent articles in Ethics, this kind of claim has been made: if deontologists can provide a rationale for restrictions, that’s enough to solve the paradox. I don’t believe that’s true.
First consider the two claims. Brand-Ballard (“Contractualism and Deontic Restrictions,” Ethics 114 (2004): 269-300) aims to examine whether contractualism can provide a rationale for restrictions (he thinks it can’t, but put that aside here). To provide such a rationale, he says, contractualism needs to show that (in the above case, which is different from the one he considers) Victim 1 can reasonably reject a rule permitting minimizing violations of the duty not to kill and that no one else (in particular, Victims 2-6) has at least equal reason to reject the opposite rule. “Otherwise, the paradox of nonminimizing restrictions recurs.” (p. 282)
Similarly, Paul Hurley writes: “All that is necessary…is to sketch even the outlines of an alternative [i.e., non-consequentialist] rationale that supports agent-centered restrictions, and the pressure to abandon agent-centered restrictions is dissipated.” (“Agent-Centered Restrictions: Clearing the Air of Paradox,” Ethics 108 (1997): 120-146, p. 131).
So both Hurley and Brand-Ballard seem to see the issue this way: the paradox of restrictions arises, according to the paradox’s proponents, only insofar as deontology or contractualism cannot provide a rationale for restrictions. In particular, restrictions violate “maximizing rationality,” which holds that when something is bad, as duty violations are, we should minimize occurrences of that thing. So the influence of maximizing rationality’s claim, that more restriction violations is worse than fewer violations, means that deontology/contractualism cannot provide a rationale for restrictions. Correlatively, solving the paradox comes down to providing a rationale for restrictions.
Again, I think this is a misrepresentation of the problem. First some caveats. (1) The putative inability of deontology to provide a rationale for restrictions is a (putatively) real problem. So Hurley and Brand-Ballard are right to focus on it. (2) I like Hurley’s answer to the rationale problem (long story short: the impartial rationality employed by, e.g., Kantian legislators can provide a rationale where maximizing rationality can’t). (3) I like Brand-Ballard’s discussion of all the straw-manning that has gone on in this debate, and I like his argument that contractualism has a difficult time providing a rationale for restrictions.
All that said, though, I don’t think it’s correct to say that solving the paradox is a matter of providing a rationale for restrictions, and I think that Scheffler made the relevant point in his reply to Foot’s “Utilitarianism and the Virtues” (in Scheffler (ed.), Consequentialism and its Critics, pp. 224-242). For Foot was arguing there that virtue ethics might be able to provide a rationale for restrictions. But even granting that it has this ability, for the sake of argument, it still leaves open a further problem. As Scheffler points out, it only means that “human practical reason may be at war with itself” (Scheffler, “Agent-Centered Restrictions, Rationality, and the Virtues,” p. 259). That is, even granting that virtue ethics or deontology or contractualism can provide a rationale for restrictions, we still have the problem that maximizing rationality gives us a rationale to not have restrictions, namely, that more duty violations is worse that fewer duty violations. And, while you can say all you want about rationales for restrictions, that principle of maximizing rationality also seems pretty plausible. So, in short, I think that the dialectical principle endorsed by Hurley and Brand-Ballard, that solving the paradox of deontology amounts to providing a rationale for restrictions, neglects Scheffler’s important point here: even if restrictions have a rationale, they still seem inconsistent with that truism of maximizing rationality (hence, ‘paradox’ rather than ‘falsehood’).
So, again, the rationale problem is a real problem, and we need an adequate solution (again, I’m partial to Hurley’s, but that’s a bit beside the point here) — that is, Hurley’s and Brand-Ballard’s projects are important. But they understate the issues involved to suggest that the project of providing a rationale for restrictions is identical to the project of solving the paradox of deontology. Rather, defenders of restrictions also need to show that practical reason isn’t at war with itself, i.e., that restrictions (with whatever one’s favored rationale is) can be made consistent with the claim of maximizing rationality that more duty violations is worse than fewer duty violations. (Conveniently enough, I’ve got a paper defending deontology on just that second issue of consistency, but I’ll save that one for another day.)