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Canadian Journal of Philosophy

Can We Agree on Morals? Morals by Agreement by David Gauthier Review by: Jean Hampton Canadian Journal of Philosophy, Vol. 18, No. 2 (Jun., 1988), pp. 331-355 Published by: Canadian Journal of Philosophy Stable URL: http://www.jstor.org/stable/40231612 . Accessed: 16/04/2012 17:39
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CANADIAN JOURNAL OF PHILOSOPHY Volume 18, Number 2, June 1988, pp. 331-356

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CanWeAgree Morals? on
Review of DAVIDGAUTHIER, Morals Agreement. Oxford:Oxby ford University Press 1986. Pp. 352. Cdn$75.75

An old idea that has received serious considerationin our time is that moralityonly has authorityover us if it directs us to behave in ways that will furtherour interests.1Another idea that has become popular since the reinvigorationof political theory by John Rawls's A Theory of Justiceis that morality can be (at least to some extent) defined by reflectingupon 'what people could agree to' if they were in some appropriatelyequal and impartialsetting. These two theses on authority and definition are embracedand developed by David Gauthierin his The MoralsbyAgreement.2 book builds on the rich and complex social contracttraditionand is itself a majorand brilliantcontributionto that tradition insofar as it develops an intriguing and innovative kind of contractarianism. After presenting a sketch of Gauthier'stheory that sets it in historicalperspective, I will query the success of Gauthier's approachto morality.This query has two parts; I will ask whether or not morality, so conceived, is in our interest to adopt, and I will ask whether or not what we get from Gauthier'stheory is really morality. I The roots of Gauthier'smoraltheory are in Hobbes's Leviathan. Insisting that value is subjective and that rationalitymust be defined instrumentally, Hobbes concludes that moral imperatives are hypothetical, or, in his words, 'conclusions or theorems concerning what conduceth to the conservationand defence' of mankind.3Morality is thereforepresented as a system of mutually-advantageouscon-

1 See, for example, Philippa Foot, 'Morality as a System of Hypothetical Imperatives/ in her Virtuesand Vices(Berkeley, CA: University of California Press 1979). 2 Hereafter all references will appear in the body of the text. 3 Leviathan, chapter 15, paragraph 41 of the 1650 edition

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straints which individuals 'could agree to adopt' in order to pursue instrumentallyvaluable relationships with one another. But Hobbes also insists that one would be irrational adopt these constraintswithto out assurancethat a sufficientnumberof otherswould do so too; otherwise one would be making oneself prey to the violent or exploitative activities of others. Hence he maintains that moral directives would have to be conventionally realized before it would be rationalfor any individual to act upon them. Alas, the collective action required for this realization is impossible for people in his state of nature. Only when a sovereign'ssanctions are availableto punish behaviorcontrary to the laws will people find it rational to support and follow them. Hobbes's ethical directives contain many prescriptionsfor cooperative activitiessuch as keeping contractsand actingmercifully,and there is even some gesturing towards a definition of a substantive theory of distributive Nonetheless, Hobbescontendsthatbecausepeojustice.4 would find it difficultnot only to agree on but also to institute 'fair' ple solutions to conflicts by themselves, determining the content of justice must eventually become the task of the sovereign. So the contractarian methodology in Leviathan employed primarily to define a is solution to conflict in the state of namutually-advantageouspolitical ture, in which there is no justice. But Gauthier wonders why we should resort to a political remedy for the problemof human conflictwhen a moralremedy might be possible. He attempts to argue that the nature of morality - including justice - can be defined using the contract methodology, and that human psychologymakesmoralbehaviorpossiblewithoutgovernment (althoughGauthiernever denies thatjusticemight requirepoliticalreinforcement in order to prevail fully). He also embracesthe Hobbesian for thought that moralityis authoritative us only insofaras it advances our interests. But this thesis on authorityhas implicationsfor the coif tent of morality: moralityis to furtherour interests,then, says Gauthier, it must be possible to generate it 'as a rationalconstraintfrom the non-moral premisses of rational choice' (4). How can this be done? Gauthier'sproblem is to explain, first, how unattached, mutually unconcerned, utility-maximizing individuals whose interestsfrequentlyconflictcan come to agreeon the terms upon which it would be rationalfor each of them to cooperatewith one another; second, how they could be trusted to comply with these terms; and third, the initialposition from which cooperationshould proceed

4 I discuss this gesturing in Two Faces of Contractarian Thought/ forthcoming in Peter Vallentyne, ed., ContractarianMoral Theory: Essays on Gauthier. See Leviathan, chapter 15, paragraphs 23 and 24 on equity.

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in orderfor the resulting distributionof cooperativebenefits to be fair. but His solutions to all three problemsare controversial, in this section I want to evaluatehis argumentfor only one of them, the principleof calledthe MRCprinciple),which minimaxrelativeconcession(hereafter he argues should set the terms of cooperation. Gauthier elaborateson and defends this principle in ChapterV of MoralsbyAgreement. Consider,he says, that in the first stage of a bareach partyadvancesa claim.If (as is likely)these claims gainingprocess, thereis a second stage in which each partyoffersconareincompatible, cessions to the othersby withdrawingsome portionof his originalclaim and proposing an alternativeoutcome. Concession-makingcontinues until a set of mutually compatibleclaims is reached, or until the parties are deadlocked. How much is it rationalfor an individual to concede? We suppose that cooperationis betterfor each person than non-cooperation,so that each person must not concede so little as to deadlock the group, or so much as to be excluded from the benefits of cooperation.Where is the happy medium for each? Gauthierargues that it is reached when each party makes concessions that are (as nearly as possible) equalto the concessions of the others. But how does one measure and compareconcessions? Startingfrom the assumption that a cardinalmeasure of intra-personal utility is possible using the von Neumann-Morgenstern method, Gauthierdefines if concession: the initial bargainingposition afthe concept of relative u* and he claims an outcome affordinghim fords some person utility u#, then if he concedes an outcome affordinghim utility u, the absolute magnitude of his concessions is u#-u, and of complete concession u#-u* so that the relative magnitude of his concession is u#-u/u#-u*. Notice that because relativeconcession, so defined, is inof variantwith respectto positivelineartransformation utilityfunctions, it is possible to make interpersonalcomparisons with the measure. Gauthier'sclaim is that 'an outcome should be selected only if the greatestor maximumrelativeconcession it requires,is as small as possible, or a minimum,that is, no greaterthan the maximumrelativeconcession required by every other outcome' (137). The principle of minimax relative concession only seems plausible as a definition of distributive justice, and not what might be called justice in treatment (e.g. the sort of justice that is supposed to exist in procedures for criminal trials, or in hiring procedures), or justice in But conflictresolution.5 Gauthierdoes not intend this principleto gov-

5 See Gregory Kavka's review of Gauthier's book forthcoming in Mind which essentially makes this point.

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ern distributions from all jointventures. Normally,he argues, the market is the appropriatedistributivetool in a society. But there are interactivesituationsin which the market'fails'and the partieswill perceive the distributionof costs and benefits as 'inappropriate.'When does the market fail and why does it do so? Gauthier'sanswers to these questions are unclear. Certainlyhe believes the marketfails when the presence of externalitiesmeans either that people can benefit from a non-excludablegood without paying for it or that they are forced to pay costs associated with a good's production without receiving any benefits from it. Presumablywhat it means to say that the marketfails in these situations is that it does not motivate people to engage in activity that will be both collectivelyand individuallyrational.Hence one might formulateon Gauthier'sbehalf the following definition of market failure:the marketfails whenever the rationalexchange activities of rationalpersons are unableto move the partiesto the pareto-efficient outcome. As we shall discuss (and question) below, Gauthierbelieves marketsfail in this way in the production of private goods involving rent (understood in the economist's sense) and in the production of private goods in circumstanceswhere each party is essential to the cooperative surplus, i.e. no other person is availablewho can substitute for him and his contributionis necessary for the good's production (at least at a certain level). Whenever the marketfails, Gauthierargues that people need to engage in a 'new mode of interacting'(117)which he calls 'cooperation.' on Puremarketinteraction notreallycooperativeinteraction his view; is it is only exchange in pursuit of individual goals. Genuine cooperation exists when people, in order to exclude free-ridingand parasitism, ignore the market and agree to use a mutually-advantageous principle to determine the distributionof benefits from their interactions. The MRCprincipleis supposed to be this mutually-advantageous principle. Would we approve of the MRC principle's operation in practice? Gauthiershows (152-3)that a division of utility accordingto this principle results in each person getting what he would have made on his own, plus an equal share of the cooperative surplus if it comes in a fixed, fully divisible form (such as money). So, consider Abel and Mabel, each of whom can make 5% a year on their money in a passbook savings account, but reap 10%a year if they pool their money and invest it in a money marketaccount. I will presume that no other person could invest instead of eitherone of them (so that each is necessary to realizethe cooperativesurplus) and that utilitiesare linearwith monetaryvalues. Suppose that at least $700is needed to establish the fund, and that Abel has $400and Mabel$600. If each invests separately in the bank, Abel will earn $20, and Mabel $30. But if their money

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in endeavoreach Proportionality distribution, which is that in a cooperative person receivesthat portion of the total benefitwhich is proportionateto her

is jointly invested in the money market account, they would receive - as such accounts nowoperate - $40 and $60 respectively. I will call the present principle of distributionin these acounts the Principle of to contribution it. Notice that this principle can only be used in situations where the contributionsof each party to the cooperativesurplus can be determined, and in the money market case this is clearly so. However, accordingto the MRC principle, Abel has conceded too much if he accepts only $40:
For Abel:

u# = 470 [i.e. 400 + 20 (the amount he could make on his own) + 50 (the entire cooperative surplus)] u = 440 [i.e. 400 + 40 (the amount we are supposing Abel to concede)] = 420 [i.e. 400 + 20 (the amount he could make on his own)] u* therefore: 470-440/470-420= 3/5
For Mabel:

u# = 680 [i.e. 600 + 30 (the amount she could make on her own) + 50 (the entire cooperative surplus)] u = 660 [i.e. 600 + 60 (the amount Mabel would get if Abel accepted $40)] = 630 [i.e. 600 + 30 (the amount Mabel could make on her u* own)] therefore: 680-660/680-630= 2/5 Theirconcessionsare equal (1/2 and 1/2)when Abel gets $5 more ($445) and Mabel $5 less ($655). So Mabel, the bigger investor, prefers the principleto the MRCprinciple,whereas Abel's preferproportionality ences are the reverse. The MRCdivision would certainlyunsettle contemporarybankers, but should it worry us? Let us startby evaluatingit from a moralpoint of view. In chapter3 on the market, Gauthierargues for a conception constrainton the directpursuitof individual of moralityas 'an impartial in utility'(95). Impartiality the contextof marketinteractionsis defined more precisely as follows: each person 'has a sufficient reason to consider interactionwith his fellows to be impartialonly in so far as it affords him a returnequal to the services he contributesthrough the use of his capacities' (100). Hence, a division of goods produced by a

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other $0,025 goes to Abel despite the fact that he has done nothing for it.

cooperative interaction is partial to some, and thus in conflict with morality, when they are able to reap rewards from others'services.6 Gauthiergives a sustained argumentthat marketdistributionsare impartialin this sense (see 95ff.). So when the market fails and unfair distributionsresult, he supports the use of a principle which will effect the impartialdistribution. But doesn't the MRCprincipleviolate ratherthan realizethis concept of impartiality? Abel receives $445ratherthan $440, isn't the extra$5 If taken fromwhat rightfullyought to be Mabel'sshare?Gauthierwould deny this; in the examplethe cooperativesurplusis only possible if both of them contribute.Therefore,'since neither can gain any part of the cooperativesurplus without the other, then each is equally responsible for making it available, and so is entitled to an equal share of it ' (152-3).Butthis argumentis dubious. Suppose Mabelhad only invested the same amount ($400)as Abel; in this case, the total yield from their investment is $80, and the MRCprinciplegives them $40 each (exactly what the proportionalityprinciplewould give them). So in this case, each dollar invested by Abel and Mabel earns him or her $0.10. Now suppose that Abel's contributionremains the same but that Mabelinvests $200more, for a total of $600. Thatextra$200invested (over and above the original$400investment) yields $20 in interestby itself, but on the MRCprinciple, Mabel receives only $15 of it. This means that each of her additional200 dollars invested only earns her $0,075; the

So Abel is being allowed to benefit from hercontributionin exactlythe way Gauthier said was a sign of a partialsystem of distribution.7

6 I would argue that this notion of partiality is not an exclusively capitalist idea; it is at the heart of Marx's argument using the labor theory of value that the laborer is exploited by the capitalist. 7 David Copp has suggested an interesting response to this argument: Consider that Mabel couldn't earn the $20 without Abel's help, but could only earn $10. This means the cooperative surplus is $10. Isn't it fair to split it, so that her final share is $15 and his is $5- exactly the MRC division? This way of looking at the example is revealing. Abel is trying to argue that his $400 should be 'counted' in determining his share of the profits more than once if his partner contributes more than he does. Abel is saying to Mabel that his $400 not only allowed her to reap high profits from her $400, but that it also allowed her to reap profit from her $200. Whenever Mabel increases her investment share, Abel smugly points to his initial contribution to argue that it played a role in the return which that share was able to make. But while it is true that Mabel could not have earned the $20 without Abel's help, it is equally true that she could not have earned it without the help of her own $400 contribution. So why does Abel's $400 investment entitle him to claim a portion of the profit from the additional $200, whereas her own $200 investment yields no such entitlement?

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The table below shows how, on the MRCdivision, Mabel's investment dollarsearn less as she contributesmore, whereas Abel's investment dollarsearnmore despite makingno increasein his contributions.

Abel's contribution

Mabel's contributton

payoff from MRC to Abel

payoff from MRC to Mabel

rate of return per dollar invested for Abel for Mabel

Mabel's share of investment profits

400 400 400 400

400 600 800 1000

40 45 50 55

40 55 70 85

.10 .112 .125 .138

.10 .091 .087 .082

.5 .55 .583 .607

Moreover, in the last column we see that although Mabel's share of the profits goes up, the rate at which it goes up decreases despite a constantrateof increasein her contributions,revealingonce again that Abel is able to enjoy some of the increased profits made possible by Mabel without doing any work for them. Mabel therefore seems right to conclude that whenever a contributor invests more in a cooperativeventure than her partner(s),the MRC principle will allow some of the proceeds of the extra investment to be filched by the lower investor, thus allowing him to have a partial 'free ride' on the back of the higher investor. Indeed, one might even argue that the MRCprincipleallows Abel to charge rent for his contribution to the cooperativeventure. The notion of economic rent, to use Gauthier'sdefinition,is 'the premiumcertainfactorservicescommand, over and above full cost of supply, because there is no alternativeto meet the demand' (272). If there were someone competing with Abel to cooperate with Mabel, then he should offer to split profits using the proportionality principle,therebymakingit rationalfor her to drop Abel and cooperatewith him. When there is no such competitor,Abel can use the MRCprincipleto derive profits from his cooperativeventure with Mabel that are greaterthan the cost of supplying his contriremainsconstant,his profitsgo up. bution, becauseas that contribution The argumentjust made attempts to show that the divisions effected by the MRC principle are not in accordancewith what we (and Gauthier)intuitively think of as 'impartial'or 'fair.'But intuitive appeals are notorious for not decisively singling out one principleof jus-

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tice. As we have just seen, both the MRC principle and the Proportionality Rule can be made to appear intuitively plausible; but there are other principles which can be made to seem just as intuitively appealing.8 The 'mushiness'of our intuitionson these mattersgives us good reason to turn to a contractarianmethodology in the hopes that it will persuasively single out a unique distributiveprinciple. Gauthier insists that this methodology singles out the MRCprinciple, but my argument against the MRCprinciplesuggests that his contractlanguage only disguises an implicitappealto our intuitionsaboutfairness.Why, after all, should contractorsagree that concessions must be equal in the bargain?Why wouldn't they insist on equality of reward for contribution(which is what the proportionalityprinciplerespects) or (as anothercritichas wondered)9equalityof utility in outcomes?Depending on what intuitions one has, one will prefer a certain method of in reward,and it is easy to imagine(and define)contractors a hypothetical contractsituation who share these intuitions and preferences.But such imagining hardly counts as proof. is Whether or not contractarianism a moral theory that is genuinely differentfrom ethical intuitionism depends upon whether we can develop a way of using contracttalk that is not simply a cover for an appeal to our ethical intuitions. In what follows, I want to outline a new contractarian procedurethat has the promise of being more than such a cover, and which, as it happens, does not yield the MRCprinciple as the agreed-upon solution. Moreover, if one accepts, with Gauthithen one er, that marketdistributionsnormallyexemplifyimpartiality,

8 Consider the following argument by Mabel for yet another principle dividing up cooperative profits: 'While it is true/ she could say, 'that from an investment of $400 from Abel and $600 from me, $50 is the cooperative surplus, and while it is true that both of us are equally necessary to securing this surplus, we do not play equal roles in securing the amount of this cooperative surplus. My contribution yields 2/3 of that surplus, and Abel's yields 1/3. Hence, of that cooperative surplus, I should get $33.33 (2/3 of $50) + $30 (what I could have made on my own), and he should get $16.66 (1/3 of $5) + $20 (what he could have made on his own), or $63.33 for me and $36.66 for him/ Note that on this way of determining profits, Abel receives less and Mabel more than they would receive from either the MRC principle or the proportionality rule. So now we have a third rule of distributive justice, which is defended by an argument which has the same 'ring of fairness' as the arguments for the other two principles. 9 See David Braybrooke, 'The Maximum Claims of Gauthier's Bargaining: Are The Fixed Social Inequalities Acceptable?' and 'Inequalities Not Conceded Yet: A ReReview21 [1982] 411-30, Philosophical joinder To Gauthier's Reply7(Dialogue:Canadian 445-8).

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needs a contract argument which can identify a principle that reproducesthe marketoutcome in situationsof marketfailure.The argument I will present was also developed in order to allow us to make such an identification. But before presenting the argument, a brief digression on the concept of economic rent is necessary. As an example of someone whose salary includes rent, Gauthiergives us Wayne Gretzky, who prefers playing hockey with the Edmonton Oilers to some other occupation as long as he gets a certainminimalsalary,but who is paid a farhigher salary given his unique and remarkabletalents as a hockey player. Gretzky is a monopolist, whose earnings are supposed to be greater than the true cost to him of supplying his talents to the team. Thus Gauthiersupposes that taxationof the rent in Gretzky'ssalarywould not affect efficiency or natural freedom in the market (273). But does Gretzky'shigh salaryreallyinclude rent?Considerthe best explanationof why he is paid so much- he gets outside offers. Suppose Gretzkybegan his hockey careerwith a salary that was a shade more than the amount that would leave him indifferentbetween playing hockey with Edmonton and (let's say) being a bartenderat a local club. Then suppose the New YorkRangerscome along and offer him much more, knowing that it will take a higher salary to lure him to New York.They offer him a shade more than the amount that leaves him indifferent between playinghockey in New Yorkand playinghockin Edmonton. Let's suppose that the Los Angeles Kings also want ey Gretzky and know they must outbid New York if they will succeed in getting him to their city; so they offer him a shade more than the amount that leaves him indifferentbetween playng in New Yorkand playing in Los Angeles. Now Edmontonhear of these offers, and what do they do? In order to ensure that Gretzky is not rational to go to L.A., their offer must be a shade higher than the amount which leaves him indifferentbetween playing in L.A. and playing with them. Suppose they make such an offer and he accepts it. Is there rent in his costs, i.e. costs salary?No, becausethe salaryis coveringhis opportunity If defined by economists in terms of opportunities forgone.10 Edmonton paid him anything less, Wayne would be losing money by supplying his services to them ratherthan to Los Angeles or New York. Gauthierseems confused abouthow to compute costs in the Gretzky case. The only opportunitycosts he takes seriously are the costs of the for non-hockeyalternatives Wayne;but clearlythe exampleshows that

10 For example, see Jack Hirshleifer, Price Theoryand Applications, third edition (Englewood Cliffs, NJ: Prentice-Hall 1984), 176-7.

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Wayne has hockey-relatedopportunitycosts. Note also that if he were taxed on a salary which barely covered these costs, there would be profound implicationsfor economicefficiencyand marketfreedom (as Nozick originallyrealized in his 'WiltChamberlain' example). For example, if Wayne knew that he could not receiveall of the salaryoffered to him by Los Angeles insofar as that was judged to include rent, he would not find it rationalto leave Edmonton. The tax would interfere with his market choices and benefit the small number of Edmonton fans at the expense of the largenumberof Gretzkyfans in Los Angeles. With this understandingof the way in which marketsset salary, we return to the construction of a new style of contractargument idensituations. Let us start tifying a principle applicableto market-failure with Gauthier'sassumption that in the contractsituation, people are determinateindividualsfor whom it is common knowledge what each person's factorendowments are. However, departingfrom Gauthier's model, imagine that in this situation each individual has the option of cooperating or not cooperating with one or more of the others in something which I will call a 'cooperative company.' These are not groups of people establishedto produceany particular good, but rather coalitions of people who agree to cooperate with one another in the situations.Accordingly,each inproductionof goods in market-failure dividualthinks of herselfas 'up for sale' in just the way Wayne Gretzky does; she offers herself (and thus her factor endowments) to any prospective company 'buyer'and what it will pay her for her work in producinga good along with others will be her 'cut'of the cooperative surplus which she helped to create. But if she does not like the salary offered her by any prospective company buyer, she is free either to offer her services to other buyers who are preparedto pay her more, or else to form a new societalcoalitionwith others in which the cooperative surplus will be split in a way that is more advantageous for her. Those companies who wish to hire her must strive to cover her opportunity costs in just the way that Wayne's hockey teams must do. The competitionamong 'societalemploymentagencies'is very much like the competitionbetween Nozick's competing protectionagencies. A marketemerges among cooperativecompanies as they compete for EmWhatwill be the resultsof the competition? employee-cooperators. ployees will tend to converge on onecooperativecompany, insofar as the more employees a company has, the more substantialthe goods they can produce and thus the greaterthe cooperativebenefits which the company can make possible for them. But which company will everyone decide to join? Answer: the group that is prepared to give each individual her marginalproduct. No group whch pays anybody more than her marginalproductwill survivebecause they won't be able to cover their costs by doing so. But no group which pays anyone less

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than her marginalproduct seems likely to survive either, because by doing so they make it rationalfor that individualto realignherselfwith others who are prepared to offer her more. It has been shown that in situationsof perfectcompetition,individuSo als will receivetheirmarginalproduct.11 a perfectlycompetitivemarket will naturallyreward people in the way that any contractorin the above situation would prefer. But there is a problem determining exactly what any individual'smarginalproduct is in one of the 'market failure'situations about which Gauthieris most concerned. Whenever there is a 'collectivestep good,' that is, a cooperativeventure which requires a certain level of contributionbefore any of the good can be produced, each individual who participatesin the good's production claimthatthe entiresurplusis his marginal canjustifiably productsince, but for him, therewould be no surplus.Butclearlyyou can'tgive everyone the entire profit! Gauthier'sMRC principle essentially proposes that the profit be divided up equally. But ratherthan be content with this answer, which has (as I have argued before) only the appearance of fairness, we should return to the contractsituation and ask, 'What would people who were consideringwhether or not to enter a cooperative venture with others be able to demand as "pay"for their cooperation in these special circumstances?' Suppose a cooperativecompany offered an individual the MRCdivision. She might be happy with this if she were a small investor, but if she were a large investor, she would prefer any higher offer, and for her, the proportionalityprinciple would be a better offer. Moreover, if the large investors were to form their own society, it seems they would be rationalto offer one another distributionaccordingto this principleratherthan the MRCprinciple,because the latterwould make it rationalfor those large investors contributingmore than the others to pull out of this cooperativecompany and pursue alternative investmentpossibilities.Smallinvestorscould ill-afford alienatinglarge investors, and large investors could ill-affordalienating one another. So the proportionalityprincipleappears to be a better candidate than the MRCprinciplefor offering the equivalent of the marginalproduct in these situations. I am reluctantto say that this principleis the solution, because I suspect that a more complicatedeconomicanalysis,probablyusing a richer specification of the contract situation and relying on theories of the

11 See Joseph M. Ostrow, 'The No-Surplus Condition as a Characterization of Perfectly Competitive Equilibrium/ Journalof EconomicThought22 (1980) 183-207; and Louis Makowski and Joseph M. Ostrow, 'Vickrey-Clarke-Groves Mechanisms and Perfect Competition/ Journalof EconomicTheory 24 (1987) 244-61.

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core12might be necessary to prove it. But the advantage of this way of defining the contract problem is that prooffor the outcome may be possible. Moreover the approach is interestingly similar to market-style contract arguments developed by Nozick and me13 to argue for certain governmental structures. Its market orientation would seem to make it an attractive approach for market-enthusiasts such as Gauthier.14It may well be the implementation of Edgeworth's idea that with

12 The core is a notion in game theory defined as a set of agreements among players which (1) is Pareto-optimal; (2) cannot be bettered, from the point of view of any one player, by going it alone; and (3) cannot be bettered, from the point of view of some proper subset of players, by leaving the agreement set and forming an independent coalition. Note, therefore, that in the core each individual player and each coalition must receive its non-cooperative maximin payoff. For a more complete discussion, see Michael Bachrach, Economicsand The Theoryof Games(London: Macmillan 1976), 124ff. One might diagnose Gauthier's mistake in his contractarian methodology as one of ignoring (3) above; the rational solution to a bargain depends not only upon how much each could get by herself, but also upon how much each could get if she joined alternative coalitions. 13 See Nozick's Anarchy, State and Utopia (New York: Basic Books 1974), chapter 2, and my Hobbesand the Social ContractTradition(Cambridge: Cambridge University Press 1986), chapter 6. 14 However, despite its market orientation, Gauthier may dislike my reinterpretation of the contract problem, since in his book he restricts his analysis to the situation in which an individual only has the option of joining one society (although he admits the possibility of having more than one option in 'The Social Contract: Individual Decision or Collective Bargain?'in Hooker, Leach and McClennan, eds., Foundations Applications DecisionTheory,vol. II [Dordrecht, Holland: D. Reidel and of 1978] 47-67). In terms of my discussion above, this would mean that individuals would be prevented from forming alternative coalitions of cooperators, with the result that there could be only one societal investment opportunity for each individual. But why should we restrict the contract problem in this way? To do so is to disallow the possibility of an obvious marketsolution to the problemof division in cooperativesituations. Nonetheless, suppose we accept Gauthier's unargued-for restriction. It is still the case that the MRC division is in trouble, because even within one society people have multiple cooperative opportunities, and are thus in a market. To see this, suppose Mabel is irritated by the Gauthier division and hears about another person, called Gable, who has $400 and who wishes to invest it with the help of a partner in another money market fund which also requires at least $700 to be established. (Again, suppose for the sake of argument that Able and Gable are prevented from pooling their resources, and no person other than Mabel can or will invest with either of them.) She reasons: I can invest $300 with Abel and $300 with Gable, and receive more interest in total than I would receive had I invested all $600 with Abel. (She receives $10 more.) She receives more because she is now the lower-investor relative to each of them, and is thus able to enjoy some of the benefits produced by their higher investments. Given the advantages which the MRC principle gives to lower contribu-

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a sufficientlylarge number of agents the only core solutions are those that mimic the workings of the market.15 But the market-orientation this method would troublethose who of are hostile towards markets(e.g. Marxists).Wouldn'tone have to use moralnotions or morallyloaded concepts to argue for it? And will not moral reasons need to be given for assuming that the people in the contractprocedure are fully determinateindividuals ratherthan people whose identities are pared down in some fashion by a veil of ignorance? Finally, if a richer specification of the contract situation is necessary in order to get a proof of the results of the bargaining,will not these additional specifications be potentially morally loaded? In my view, it is probablycorrectto answer 'yes' to all of these questions. However, the need to provide moral grounding for this style of contractargumentraises no special difficultiesfor it as opposed to its conwho understandthe social tractarian competitors.Those contractarians contract as specifying how much any individual ought to get of the availablesocial resourcessubjectto certainrestrictionsand constraints such as the veil of ignorancemust arguewhy that approach,with those resrictionsand constraints,is preferableto an approachwhich regards the contractas specifying how much an individual is worth(assuming that she is fully defined as an individual). Contemporarycontractarians have been too ready to follow Rawls in assuming that only the formerstatement of the contractproblemis possible. But once the latter possibility is raised, an advocate of either approachis under pressure to give reasons for preferringhis favorite.I cannot see how moral considerations can fail to be relevant in providing these reasons, so

tors, people will find it rational, whenever possible, to distribute their investments such that contributions to cooperative endeavors are equal. And to the extent that people succeed in this strategy, they will be mimickingthe distributionaccordingto the proportionality principlebecause whenever people invest with others on equal terms, distribution according to the MRC principle and distribution according to the principle of proportionality are the same! So if people in Gauthier's contract situation believe that they will have competing opportunities to engage in cooperative endeavors (as he defines them) in the only society which they are allowed to join, then a market for cooperators in non-market situations exists for them, and the large investors, in virtue of their resources, will be highly valued in this market. The large investors can use this fact to gain bargaining clout. Specifically, they can say to the lower contributors: look, you might as well accept our proportionality principle because, given the existence of this market, we have a strategy for ensuring that we get (at least) what it would distribute to us (and maybe more) even if the MRC principle is selected/ 15 This idea grew out of correspondence with Robert Sugden.

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that it seems impossible for contractarians such as Gauthierto claim that this methodology can generate moralityentirely of non-moral out but the hope (raisedby Rawls)that it could provide such components, a justificationis probably a pipe-dream. So getting rid of the appeal to ethical intuitions withinthe argument doesn't rule out the fact that support for the argument itself may require such an appeal. But at least the 'market'approach to the contractproblem avoids having such appeals play such a large role in the of functioning the contractmethod as to make it doubtfulwhether contracting is doing any work at all in the argument. I am nonetheless doubtful that this approachwill be fully satisfactory.As I will propose in the next section, it still starts from an incorrectunderstanding of the problembargainersmust solve if their solution is to illuminatethe nature of justice. II Gauthierfollows his presentationof his theory with ChapterVIII,'The ArchimedeanPoint,' that attempts to rally other contractarians his to side by arguing that his theory is a better moraltheory than those of other contractarians. arguingagainstHarsanyi'srationalchoice theBy ory and Rawls'soriginalposition procedure, he hopes to convince his readers that his brand of contractarianism better able, both in its is and in its results, to capture the nature of impartiality, methodology supposedly the essence of morality. However, I want to contend that in the process of responding to Rawls'sideas, Gauthiersubtly but importantlymodifies his theory in a Rawlsiandirection.We shall see that Moralsby Agreement really suggests two social contractmethods, and it is not clearthat the more Rawlsianmethod to which Gauthiergravitates by the end of the book is able to justify the specific moralconclusions he draws in the book's first half. Rawls's theory (as put forward in A Theory Justice)16 initially apof pears to differ from Gauthier'stheory in a number of respects. First, the subject matter of their social contracts differ; whereas Gauthier wants an agreement on moral principles which are intended to govern individual relationships, Rawls wants an agreementon principles of social justice to govern the basic structureof society. Second, they

16 In this paper, all references to Rawls's views are to those put forward in A Theory of of Justice.His Dewey lectures {Journal Philosophy [1980]) and certain recent work contain modifications of his views which make it doubtful that he continues to endorse the meta-ethical proposals of the book.

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disagree about why moralityis authoritativeover us: while Gauthier points to self-interestas a reason to be moral, Rawls (to the extent that he considersthis issue at all) suggests that principlesof justiceare categoricalimperatives, authoritativeinsofar as they are directives of reason.17 each philosopheremploys in his theory Third,the kindof contract is different:whereas Gauthier'sbargainingtakes place among determinateindividuals,Rawls'sagreementon the two principlestakesplace among people who are subjectto a veil of ignorancewhich strips them of all individuating characteristics.I have argued,18and Gauthier agrees, that a genuine bargainamong such people is impossible; and Rawls himself admits that unanimous agreement on his two principles of justice is possible precisely because they are the first choice of Gauthier every one of these identicalpeople.19In a previous article,20 that the parties' ignorance of their identity actually results in argued their selection of a principle that turns out to be a bad deal for some (namely, the most advantaged) once knowledge is regained. Gauthier is more However, in chapter VIIIof Moralsby Agreement to what he takes to be Rawls'sreasons for introducingthe sympathetic veil. He embraces the Rawlsian idea that, insofar as the hallmarkof moralbehavior is impartiality,one can identify moral behavior if one takes a properly impartialstandpoint, and this is the 'Archimedean Point'in moraltheory. Gauthieralso agreesthat the way to define such whose task is an impartialstandpoint is to define an impartialchooser to select among alternativemoral conceptions. He is even prepared to accept the Rawlsianidea that a chooser is impartialwhen she is ignorantof her identity in society. Freedfrom the content of any particular individuality, she can choose in a way that is partial to no one, allowing her to determine the genuinely fair option. But recall that Gauthierhimself wanted to build fairness out of the operationof selfinterest in a contractsituation. The underlying point of chapter VIII is that the Archimedeanchoice, properlyunderstood, yields the moral

17 See TJ 253; and see, in general, section 40. 18 See my 'Contractsand Choices: Does Rawls Have A Social ContractTheory?/ Journal of Philosophy 77 (1980) 315. 19 In Rawls's words, '.. .it is clear that since the differences among the parties are unknown to them, and everyone is equally rational and similarly situated, each is convinced by the same arguments. Therefore, we can view the choice in the original (T/, position from the standpointof one person selectedat random1 139, my emphasis). 20 See Gauthier's "The Social Contract, Individual Decision or Collective Bargain?' in Hooker, Leach and McClennan, eds., Foundationsand Applications of Decision Theory, vol. II (Dordrecht, Holland: D. Reidel 1978), 47-67.

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results Gauthier wants because it first yields the deliberationprocedure embodied in his contractmethod. The Archimedeanpoint yields the social contract, he insists. Gauthierbelieves that Rawls fails to retain a properly contractarian perspectivebecausethe parties'ignoranceof theiridentitiesforcesthem in to choose principles of justice that ignore individual characteristics the distributionof primarygoods. This means that the Rawlsiandivision of benefits is not based on entitlements arising from personal characteristics.The difference principle chosen by each party distributes primarygoods equally, unless an unequal distribution(more to the more able) might result in a greatershare of goods to each. However, as Gauthier notes, the extra amount received by the more adto vantaged is not received in virtue of any entitlement it: 'theirrewards are purely instrumental, means to the goal of maximizing minimum (248). utility,and not a recognitionof entitlementbased on contribution' because Rawlsrefuses to recognizeentitlementsbased on contributions contributionsare a function of abilities and one's possession of abilities - which includeraw talent, its development,and any virtues(such as industriousness) which promote its operation - are the joint product of one's genetic endowment and the society which gives form and worth to this genetic potential. And why should a highly advantaged individual, who is highly advantaged only because the accidents of natureand culturemade him so, be grantedmore in virtue of his good luck? Gauthier,like others before him, is disturbedby this line of reasonare ing. He complains that even if our characteristics not ours for any moralreason, they nonetheless define who we are, and our differences - which constitute our individuality - are not an embarrassment but we value, and want others to respect. Hence Gauthierinsomething sists that an Archimedeanchooser, although ignorantof her ownidentity, would choose a moral conception aware that she wouldhavean identity (251). WhereasRawls'sArchimedeanchooser reacts to his ignorance by concerning himself with the lot of the least-advantaged membersof society, Gauthier'sArchimedeanchooser reacts to her ignoranceby concerningherselfwith the lot of everyone- tryingto maximize the satisfactionof the preferencesof eachperson (no matterhow highly advantaged) whom she might become:
The ideal actormust thereforechoose, not as if she had an equal chanceof being each of the persons affectedby her choice, but as if she were each of these persons. We may think of the Archimedeanpoint as a point of convergence;beginning from individuals choosing, each from his own perspective, principlesfor social interaction- principleswhich will of course reflectthe chooser'sconcern to maximizehis own utility- we alterthe perspectiveuntil we find that the same principleswould be chosen by all. (255)

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Gauthierbelieves that his method preserves, as Rawls's method did not, the moralimportanceof human individuality.When the Archimedean chooser deliberatesabout how any moral conception would affect each individual in society, she must 'maintain their separate identities and utility, and so must choose as if she were bargaining as each person' (256).Just as a school administratorshould distribute resourcestaking seriously every student's wish to furtherher intellectual development (not just the wish of the least intellectuallyable stuview, should a society distributeresources dents), so too, on Gauthier's so as to take seriously every individual'sinterestin having his projects flourish. But now we see that the Archimedean chooser's reasoning simulatesthe bargainingprocess discussed earlier.Says Gauthier,'the Archimedeanpoint is the position you and I occupy when we find ourselves in fully voluntary and equal agreementwith our fellows' (266). It is not clear that Gauthier is right to charge Rawls with denying the value and importanceof our individuality.Rawlsmight be attempting to persuade us that a concern for each individual in the original position must translateinto a concern, first and foremost, for the least Admittedly TJdoes not present a well-developed arguadvantaged.21 ment to this effect and it is not at all obvious that this translationof concern is right; nonetheless Rawls and Gauthier may well be quarrelling only about how to understand the nature of 'equal concern.' Whether or not this is so, by the end of chapterVIII,Gauthierhimself suggests a way in which his individual-respectingcontractarian method needs modificationin a Rawlsiandirectionin order to be fully satisfactory.As Gauthier notes, although Rawls says he is prepared to see people as social creations, he nonetheless tries to isolate an asocial core of human beings, which he calls our 'moral personality.' This core within all of us is the autonomous rationalchooser described by Kant; it is not created by social forces, and is actuallyrevealed by the veil of ignorance. Why is Rawls, who is so impressed with our sociality, concerned to locate this a-social core in us? The reason arises from the fact that he thinks we are deeply concerned about how society will form us; in particular,we want to become the best sort of (socially defined) individual we can become. But this way of talking presupposes that there is an aspect of us which society does not create and which can evaluate how far social effects upon us have been favorableor damaging. It is that aspect of us which is represented in the original position and which aims to select moral principles that would give us the best chance of developing well in a social system.

21 I am indebted to Thomas Nagel, who pointed out this possibility to me.

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As Gauthier notes (310ff.), Maclntyre and other communitarians would charge that by constructingsuch a position Rawlshas committed the errorof supposingthereis an extra-moral standpointfromwhich can be grasped, or defined, or defended. While a recentpaper morality by Rawlssuggests that he might be tempted to agree with these sentiments now,22 philosopher who wrote TJwould not have agreed. the Of course,he would say,we arethe productsof society,but that doesn't make it impossible for us to ask, given the variousways in which society can createus, if we could not have been better or worse products. A Theoryof Justicewas born, in part, out of the movement for civil rights in the 1960s. Those who searched for racial equality were impressed with the way their society had structuredthe talents and opportunities of people of differentraces. In recent years feminists have also come to endorse the idea that society deeply influences who we are by rearingus in the culture associated with our gender. But both groups have insisted that these forms of social determinationare not beyond moral criticism. Maclntyremight argue that such moral criticism only reflectsideas and beliefs that are, and can be nothing more than, the productof the society being criticized.(Butthen, what would it take to falsify his theory?) His opponents will respond that there is the fact of damage to contend with; on their view certain kinds of people, because they have experienced discrimination,poverty, particularforms of psychologicalabuse, poor education, and even physical abuse, have been unable to develop well in a way that warrants our moral protest, where this is a fact, and not merely (if at all) a socially created thought. However, in order to morally evaluate the forms of socializationin one's culture, one needs to know something about the potential that human beings have and what 'humanflourishing'looks like, such that one can recognize when society's effects on people have been harmful. Thus, when Rawls defines the originalposition he representspeople before socialization, not because he believes one can find fully determinedindividualspriorto socialization(as Hobbes thought), but because he wants to show what potential human beings have which society will be decisive in forming; and he believes this potential is defined by their capacities to create a plan of life, to be rational, and to be autonomous. These capacitiesare not social creations, but their realization in any of us is affected by social forces. It is because the partiesknow that they have the potentialfor rational,autonomous ac-

22 See Rawls's 'Justice as Fairness: Political not Metaphysical/ Philosophyand Public Affairs 14 (1985) 223-51.

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tion in pursuit of what they want that they are able to evaluate how far a social system allows any of its members to realize that potential. Moreover, Rawls's individuals do have one fully defined a-social their concern for themselves. Rawls does not assume characteristic: that this is the only or even the most importantconcern of human beings outside the originalposition, but he does represent it as a natural concern to which a social system must answer. At one point in Chapter VIII, in a fit of enthusiasm for the claims of our sociality, Gauthierdenies that there is such a 'realself': 'A person's identity is in all respects a contingent matter' (257). But by his own lights he goes too far in saying this; at the end of that chapter he shows as much concern to locate an a-social core in our nature as LikeRawls, Gauthiercomes to want does Rawls,andforthesamereason. a reasoning procedurethat will allow us to evaluate society's affecton us. How, he asks, can it be fair to tie the distributionof goods to talents if the development of talents is allowed to proceed in a partial way? Note that Gauthier'squestion reveals the kind of damage he believes people would be concernedabout:namely, damageto their ability to maximizetheirutility,which they cannot do if they are structured by a society such that they do not have to any significant degree the propertiesto which the distributionof benefits are tied in that society. Hence he is assuming that the desire to maximizeutilityis naturaland a-socially defined, and in chapter X Gauthier finally admits this: 'in fact the Sophists grasped, for the first time in human thought, the standpoint of a person who does stand outside social life, not in her capacities,not in being able to live without society, but in her motivations, in being able to view society as purely instrumentalto goals that do not requiresociallife for theirformulation' (312).He goes on to argue that society can influence the content of our preferences, but not our nature as utility-maximizers. Gauthier'sadmission of an a-social core leads him to make a profoundly Rawlsianmodificationto his initialdescriptionof the Archimedean standpoint.By the end of ChapterVIIIthe Archimedeanchooser, as she takesthe point of view of each individual,is concernednot merely with what she can get if she were any individual in society, but also if with howwellshe woulddevelop she were any individual in a possible social setting:
The principles chosen from the Archimedean point must therefore provide that each person's expected share of the fruits of social interaction be related, not just to what he actually contributes, since his actual contribution may reflect the contingent permissions and prohibitions found in any social structure, but to the contributionshe would makein that social structure most favourable to the actualization of his capacities and character traits, and to the fulfillment of his preferences,

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provided that this structure is a feasible alternative meeting the other requirements of Archimedean choice. (264; my emphasis)

tionships structuredaccordingto such principles would also depend which createdthese the on whether the principlesgoverning institutions individuals were already fair. Gauthier'sshift in methodology is importantbecause it shows that he embraceswhat is perhaps the deepest idea in T], the idea that socialjusticeis the firstand most basicmoralvirtue.WhereasKantsought the Kingdom of Ends by advocating that individuals follow a moral reasoning procedure in their relationshipswith one another, Gauthier comes to agree with Rawls that this perspective is already'too late,' and that we must consider first the sort of social structuresrequired to define people who are ableto establish the right kind of relationships with one another. Gauthier thus embraces Rawls's thesis that

but the justice of individual relafor alreadysocially-definedindividuals-,

Note how Gauthier/sconceptionof the ideal choice situationhas shifted. Earlierin ChapterVIIIand in ChapterV the contractsituationwas inhabitedby 'determinateindividuals/ fully socialized, who had utility functions and factorendowments and who knew what their utility functions would be under various schemes of cooperation. But now the Archimedeanchooser simulates a bargainamong people who select a scheme of cooperationnot on the basis of who they are, but on the basis of who theycouldbein any of these schemes. So the contractors are not determinateindividuals,but 'proto-people'with the potential to be determinate individuals. Depending on how their potentialitiesare developed, their contributionto the cooperativesurplus will vary, so that their entitlements over portions of this surplus will vary. So the people in Gauthier'scontractactuallyhave an a-social core which is larger than that of the people in Rawls's original position insofar as they are defined not merely by general human capacities for such things as rationality,but also by their genetic capacities for specific talents. Each seeks a social structurethat will shape both kinds of capacities well. It is importantto note that this modificationof Gauthier'scontract method also indicatesa decisive shift in his conceptionof what his contractmethod is /or. In previous chapters that method was used to select principles for individuals use in order to promote and ensure to a desirable cooperative relationship. But by the end of Chapter VIII the contractarian methodologyis used to choose principlesthat are 'for' the structuring the socialsystem which plays a profoundrole in creatof ing individuals. Now perhaps the earliercontractmethod, which uses determinateindividuals ratherthan proto-people, might be regarded as a method of defining appropriateprinciples of cooperation (only)

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politicaljustice must be the first (but of course not the only) concern of moral theorists. (Indeed, one can pick up the political leanings of Gauthier'smoralprojectsimply by reflectingon how very politicalthe components of his 'morality'are.) Although I am unsure how one could possibly answer it, I admit to liking Gauthier'squestion. It recognizes, as Rawls would wish, the profound sociality of us all, while incorporating,as Gauthierwishes, the deep-seated interest each of has in the flourishing of our own individuality. Perhaps, it is best viewed not as a question with a determinable answer, but as a question which defines a goal or standard for us to use in judging the extent to which any society's experiments with a wide variety of possible rules and distributionsof goods have created a just social order. But there should be no mistake that by embracing this question, Gauthierhas essentially modified his contractarian method sufficientto throw into doubt his earlierjustificationsof the MRCprinciple, ly the Lockeanproviso and constrained maximizationusing the 'determinate people' version of that method. Indeed, even his initial enthusiasm for the market needs to be reexamined. For it is no longer clear that a market society which operates according to these princithe ples is not going to shape some individuals(in particular, least well nor that there aren't other principles disruptive of market off) badly, interactions example,Rawls'sfirstprincipleof justice,which would (for guarantee any individual's access to a variety of social institutions) which an Archimedean chooser with this sort of concern would believe it was also necessary to choose. Indeed, it may even be true that Rawls'ssecond principleof justice would be chosen to ensure that each has a decent chance of developing his individual talents and assets. But more worrying is the fact that his shift in methodology undercuts his Hobbesian approachto generating moral constraintsfrom individual rationality.The social contractwhich assumed determinate people who bargainedwith knowledge of their identity and factorendowments was supposed to demonstrateto us determinateindividuals why the adoption of 'moral'principles such as the MRC rule are also individually advantageous for us. But a determinate individual is probablynot going to find individuallyrationalthe adoption of constraints agreed to by 'proto-people.'If I am a white male in a society which accordswhite males privilegedopportunitiesto develop talents that will allow them to earn well, then why is it rationalfor me to pursue a restructuring social institutionsin which this is no longer true? of Indeed, why is it even rationalfor (adult) minority members and females to support this restructuringsince the costs of pursuing it are likelyto outweigh the benefitsto themgiven that they arelargely'made' already and can benefit little from new forms of socialization?What

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it would have been rationalfor 'proto-me'to agree to in some extrasocietal bargain seems to have little bearing on what it is rationalfor 'determinate-me'to accept in the here and now. If Gauthieris going to insist that we adults should pursue this restructuringanyway, defor spite the fact that doing so is individuallyirrational us now, he can no longer contend that moral action is individuallyrationalfor us determinatepeople, which amounts to an abandonmentof his Hobbesian explanation and justificationof morality. Ill To my mind the last two chaptersof Gauthier'sbook (ChapterX, The Ring of Gyges' and ChapterXI, 'TheLiberalIndividual')are his finest. They are, in essence, a defence of his method of contractarianism against those who complain that by regardingmoralityas instrumentally valuable he has made it a 'necessary evil/ thereby undermining the hold it is supposed to have on us. Such complaints, however, are relatedto my reasonsfor questioningwhether Gauthionly tangentially er's theory really gives us morality. The following remarksare therefore inspired by, but not taken from, these intriguing chapters. Kantianswill approve of Gauthier'sblanketrefusal to base any part of moralityon the affections;many others will take exception to such a project. But even the Kantians will balk at Gauthier's Hobbesian reductionism, and it is this objection to his project that I find myself holding most seriously. Gauthierinsists that being disposed to cooperate with and respect others is requiredfor the pursuit of instrumentally valuable relationships. But if such a relationship is not possible or if one can get what one wants through dominationratherthan cooperation, his theory neitherrequiresnor encouragessuch respectfultreatment. I would argue that this shows his theory doesn't capture the of nature of morality: regardless whether or not one can engage in beneficial cooperative interactions with another, one owes that person respectful treatment simply in virtue of the fact that he is a person. Not all value is subjective;in particular,the value which human beings have is objective, and demands one's respect, whether that human being is an infant with whom one will never have reason to cooperate, an elderly man past his prime, or an adult whose talents one finds of no particularuse. It is because Gauthierdoes not assume that human beings have an objectiveworth that he sometimes gets unintuitive and unacceptable results in his moral theorizing. Indeed, to the extent that Gauthier's results are acceptable, it is because one's concern to cooperate with someone whom one cannot dominateleads one to behave in ways that

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mimicthe respect one ought to show her simply in virtue of her moral worth as a human being. Of course, Gauthierwill point out that anyone who insists that a human being has objectivevalue must develop a theory that will not only justify that claim but also explain what reason one would ever have forrespectingthis value. I believethis is a challenge one has no choice but to accept, given what the moral facts are. Gauthierhimself shows signs of being susceptible to such Kantian thoughts. It is because the self-interestof determinateindividualsdoes not seem sufficientto explain a commitmentto the results of a bargain among proto-people that one wonders whether Gauthier's eventual commitmentto fairstructuresgoverningthe developmentof individual talents betrays a commitment to the intrinsicvalue of the individuals themselves. However I want to propose that even if we rejecthis moral make to our reductionism,the appeal that he and other contractarians self-interest deserves a place in a moral theory positing our objective value. Even a Kantianmoral theory ought to have its Hobbesian side. What do I mean by this? Hobbes's central insight about ethics was that it should not be understood to require that we make ourselves a prey for others. Yet love or a sense of duty can make us the prey of others. Consider a relationshipbetween two human beings forged out of love or duty which is also instrumentallyvaluable to both parties. In order for that relationship to receive our full moral endorsement we must ask whether either party uses the duty or the love connecting them in a way that affects the other party's ability to realvalue fromthat relationship.To be sure, good marize the instrumental and good friendships ought not to be centrallyconcerned with riages the question of justice, but they must also be, at the very least, relationships in which love or duty are not manipulated by either party in order to use another party to her detriment. In Gauthier'swords, our sociality
becomes a source of exploitationif it induces persons to acquiescein institutions and practicesthat but for their fellow-feelingwould be costly to them. Feminist thought has surely made this, perhapsthe core form of exploitation,clearto us. insists that a society could not commandthe willing alleThus the contractarian giance of a rationalperson if, without appealingto her feelings for others, it afforded her no expectationof benefit. (11)

Of course, love can lead one to willingly give up one's benefits. It can also lead one to serve others who cannot, for various reasons, reciprocate; for example, infants, or the impoverished, or the aged. Gauthier's remarkssuggest not that one should never give gifts out of love or duty without insisting on being paid for them, but ratherthat one's the propensity to give gifts out of love or duty shouldnot become lever
that another party uses to get one to maintain a relationship to one's cost.

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Perhapsthis is most deeply truewithin the family.Considera woman whose devotion to her family causes her to serve them despite the fact that they fail to reciprocate;in this case, they are exploiting her love and sense of duty which cause her to maintaina relationshipwith them and to serve them. Of course infants cannot assume any of her burdens; fairness cannot exist between such radicallyunequal persons. (Note that this relationshipis not unfaireither;the infant does not use the mother's love in order to exploit her.) But as children grow into the equalitythey will eventuallyattainas adults, it is increasingly alarming to see them treatingMom as the maid; unless they are encouraged to benefit her as they become able to do so, they are being allowed to exploit another human being by taking advantage of her love for them. What this example illustrates is that the traditionalseparation between love and justice (made, for example, by Marx)is misguided. A matureand fully loving response is also a non-exploitative response, so that justice is, in a sense, built into love, and not alien to it. Our feelings towards those who are able to reciprocatewhat we give to them (as opposed to victims of serious diseases, impoverished people, infants)are morallyacceptable,worthy of praise, and truly loving feelings only insofar as they do not involve, on either side, the infliction of costs or the confiscation of benefits over a significant period of time. The costs and benefits we are talkingabout here are not those that come from the affection itself- these cannot be distributed, but rather those which the relationship itself creates or makes possible. One who would inflict such costs on another without compensating him for them or who would take such benefits without benefitting him in turn is failing to respect that person's value as a human being, and thus failing to love him fully. And one who would allowthis exploitation in the name of love or duty is failing to respect his own value and importance. Contractarianism (and particularlyGauthier'sversion of it) allows one to assess the justiceof relationshipsby allowing one to leave aside the connections of affection and duty and ask, from the standpoint of each party, 'Is the present distributionof the possible non-affective costs and benefits of the relationshipone to which I could agree?'But such relianceon self-concernin the method is not an embarrassment. The insistence that each party to a relationship make such a selfinterested appraisalof it can be understood not as the claim that we are only self-interested, nor that we value the relationship merely as instrumentallyvaluable, but rather that we value ourselves, our interests and our projects, and thus demand, no matterwhat the affections or obligationsthat bind us, that we not become the 'prey'of other parties in the pursuit of their projects.

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It is unclear that contractarians such as Gauthier or Rawls have argued for a satisfactory way of pursuing this highly suggestive and morally useful question; this is one worry that I have tried to raise in this paper. But I would argue that the appeal which the question makes to our self-interest is valuable even for one who denies Gauthier's reductionism. It can be a way of insisting that any relationship among individuals capable of reciprocity should be at least just, and one in which each party has, to quote Gauthier, the 'mastery over self' which prevents exploitative servitude.23 ReceivedNovember,1987 JEAN HAMPTON University of Pittsburgh Pittsburgh, PA 15260 U.S.A.

23 I want to thank David Copp, Carl Cranor, Peter Danielson, David Dolinko, Christopher Morris, Stephen Munzer, Joseph Ostrow, Robert Sugden and especially David Gauthier for their comments and help during the writing of this paper. (I hope to reciprocate.)

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