The Ethics in Risk Regulation: Towards a Contractualist Re-Orientation

Abstract

This brief essay, written for a symposium inaugurating the Rutgers Institute for Law and Philosophy at the Rutgers School of Law-Camden, sketches a promising alternative to the consequentialist approach to governmental risk regulation that dominates public policy; one that is inspired by T. M. Scanlon's contractualist moral theory. Rather than revolving around interpersonal aggregation, as consequentialism -- and the method of cost-benefit analysis that is predicated upon it -- does, the contractualist approach to risk regulation takes intrapersonal aggregation as its lodestar, comparing the effects of principles of risk regulation on individuals in pair-wise comparison. While in many cases these two approaches will render the same verdict on specific cases, they nevertheless part in practice in many other cases, illustrating the practical importance of founding a regime of risk regulation upon the correct theory.

Keywords: Risk regulation, risk, contractualism, consequentialism, cost-benefit analysis, interpersonal aggregation, intrapersonal aggregation