John Linarelli
University of La Verne – College of Law; Northeastern University School of Law
April 6, 2007

Abstract:

Contractualism as T. M. Scanlon has conceptualized it has become one of the more influential moral theories of the past decade. Though contractualism connects to the social contract tradition, it has not yet been developed into a full-fledged political philosophy. At least since Rawls, the idea of a clear distinction between the private and the public has entrenched itself in moral, legal and political philosophy. Philosophical justification is in order when we take moral principles, intended to advise persons on their obligations to others, and extend them into the political realm, where their application is backed by state authority. This paper is an attempt to bridge the divide, to make Scanlonian contractualism an account to evaluate legal and political institutions. In addition to providing the philosophical justification for the move, I offer an illustration of how contractualism can be used to evaluate legal rules and policies. I illustrate how contractualism can be used to understand the emerging odious debt doctrine in international law. This is an early draft of a paper to be presented at the conference, “The Social Contract in the Modern Welfare State: Historical and Theoretical Perspectives,” to be held April 18-20, 2007 at the University of Oxford Centre for Social-Legal Studies and funded by the Foundation for Law, Justice and Society.