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This chapter considers the coherence and force of appeals to hypothetical consent—that to which a person would consent if he or she were in a position to do so. We might say it is permissible to perform surgery on an unconscious person because he or she would have consented had he or she been able to consent or arrange a person's posthumous affairs by reference to what he or she would have consented. Although the intuitive force of hypothetical consent is powerful, some philosophers have argued that such hypothetical consent not only is not real consent, but also that it can do no moral work. The chapter argues that this view is too quick.

This essay regarding Kantian moral epistemology focuses specifically on one normative (rather than metaethical) version of Kantian constructivism. The aim is to examine the justificatory role of actual, hypothetical, and possible consent in Kantian ethics. The importance of actual consent is more limited and derivative than commonly thought, and the difference between possible and hypothetical consent standards has been exaggerated. Review of formulas of the Categorical Imperative and the idea of an original contract confirms these claims, and familiar objections to appeals to hypothetical consent are not decisive against the Kantian position. For example, arguably, hypothetical agreement does not serve merely as a dubious proxy for actual consent, reduce value to empirical fact, alienate us from common moral standards, or depend on circular reasoning.

This chapter shows how libertarianism can be seen to be a moral theory that explains exceptions to earlier moral norms and principles and the chapter shows how various exceptions to libertarian principles, including necessity and unconscionability exceptions, can be seen to lead beyond libertarianism to contractarian theories of morality and justice. The chapteer raises a general problem for contractarian theories and shows how the problem applies to the theories of Rawls and Habermas. This sets the stage for the book’s own meta-level consequentialist explanation of the exceptions in the next chapter.

This chapter discusses how to move from a general concern with the justification of coercion to particular substantive principles of justice. It argues that a social system is just only so long as it respects the right to freedom of those subject to it, namely their right to the social conditions necessary to lead autonomous lives. For this to be the case, the distribution of freedom engendered by the system has to be justifiable in the eyes of all those who are subject to it. Focusing on domestic societies in particular, the chapter concludes that a multiplicity of principles of economic justice might instantiate mutually justifiable distributions of freedom, not all of which are egalitarian in form. In other words, contrary to most contemporary liberal theorists’ arguments on the view defended in this chapter, economic equality is not a fundamental, non-negotiable demand of justice.

This chapter develops an alternative model to analyze and justify insolvency law, referred to as the Authentic Consent Model (ACM). Consistent with the discussion earlier in the book, its starting premise is that all (but only) those affected by insolvency law are to be given a choice in selecting the principles which would govern their rights, interests, and obligations. Once these parties have been identified, they are to be given equal weight in the selection process, since their legal status (whether they are employees, secured or unsecured creditors, etc.), wealth, cognitive abilities, and bargaining strength all are morally irrelevant in framing rules of justice. The ACM operationalizes the constructive attributes described earlier by requiring all principles to be selected from its ‘choice position’. Here, all the parties are deprived of any knowledge of personal attributes and must reason rationally. It is shown that parties in the choice position would in fact choose the principles laying down the automatic stay on unsecured claims. The chapter argues that because of the construction of the choice position and the constructive attributes of the parties bargaining in it, the principles chosen are fair and just, and chosen in exercise of the parties' autonomy. As it happens, they are also efficient. The chapter concludes by highlighting how the egalitarian character of the ACM distinguishes it from the Creditors' Bargain.

This chapter examines Kant’s political theory to show how his case that a legitimate constitution must be compatible with citizens’ autonomy, and thus in principle republican, proceeds entirely by drawing out contradictions implicit in competing views and thus wholly without appeal to any positive foundations whatsoever. A familiar image of Kant as a political moralist is criticized; rather, Kant’s political theory placed him even closer to Hobbes than was Rousseau, and in stark and conscious opposition to the moralizing tradition he saw as represented by Pufendorf and Wolff. This resolves a longstanding controversy over what to make of Kant’s famous rejection of revolution, and shows why this did not make him an antidemocratic liberal concerned only with hypothetical consent, but turned instead on a real problem in the theory of popular sovereignty—how to know who speaks with authority for the sovereign people as a whole. It is suggested that Kant appreciated this difficulty better than many of his interpreters and critics, but did not provide a convincing solution.

CARE, this chapter argues, succeeds normatively, or is “completed,” only when it is received by the cared-for as CARING. On this model, an action will count as CARE if it contributes to the well-being, restoration, or flourishing of a being or a subject. It must also be motivated by concern for the welfare of the cared-for. A carer must thus cultivate a “transparent self,” one receptive to the other’s conception of her own needs and wants. This view emphasizes that CARE is active, distinguishes it from paternalism, and indicates the role of moral luck in caring. CARING, then, is an action, and the act of caring requires that the cared-for take up and receive that action as care. The author ends by asking if there is a duty to take up care (when the cared for is capable) that is offered with competence and in good faith.

While care has been marginalized within much of the history of moral philosophy, care ethics insists that caring be understood as a form of moral conduct. Arguing that care is a normative rather than solely descriptive category, this chapter articulates care as a moral practice that, when performed in accordance with its regulative ideals, is morally good. This moral practice is unpacked via the normative concept of CARE, which includes care as labor, disposition, and virtue. This chapter articulates the features of what Kittay names an ETHICS OF CARE through its conceptions of moral agency, moral relations, moral deliberation, the particularity of some moral judgments, the aim of morality, and moral harm. This ETHICS OF CARE addresses the obligations and responsibilities that arise within asymmetrical relationships of situation and power between caregivers and those receiving care.