Hampton on Gautheir

8/2/2019 Hampton on Gautheir

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Canadian Journal of Philosophy

Can We Agree on Morals?Morals by Agreement by David GauthierReview by: Jean HamptonCanadian Journal of Philosophy, Vol. 18, No. 2 (Jun., 1988), pp. 331-355Published by: Canadian Journal of PhilosophyStable URL: http://www.jstor.org/stable/40231612 .

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CanWeAgree nMorals?

CANADIAN JOURNAL OF PHILOSOPHY 331Volume 18, Number 2, June 1988, pp. 331-356

Review of DAVIDGAUTHIER,MoralsbyAgreement.Oxford:Ox-ford University Press 1986. Pp. 352. Cdn$75.75

An old idea that has receivedseriousconsideration n our time is thatmoralityonly has authorityover us if it directs us to behave in waysthat will furtherour interests.1Another idea thathas become popularsince the reinvigorationof politicaltheory by John Rawls'sA TheoryofJustices that moralitycan be (at least to some extent) defined byreflectingupon 'whatpeople could agreeto' if they were in some ap-propriatelyequaland impartial etting. These two theses on authorityand definition are embracedand developed by David Gauthier n hisMoralsbyAgreement.2he book builds on the rich and complex socialcontract raditionand is itselfa majorandbrilliantcontribution o thattradition insofar as it develops an intriguingand innovative kind ofcontractarianism.Afterpresenting a sketch of Gauthier'stheory thatsets it in historicalperspective, I will query the success of Gauthier'sapproachto morality.Thisqueryhas two parts;I will ask whether ornot morality,so conceived, is in our interest to adopt, and I will askwhether or not what we get from Gauthier's heory is reallymorality.

IThe roots of Gauthier'smoraltheoryarein Hobbes'sLeviathan.nsist-ing that value is subjective and that rationalitymust be defined in-strumentally, Hobbes concludes that moral imperatives arehypothetical, or, in his words, 'conclusions or theorems concerningwhat conduceth to the conservationand defence' of mankind.3Moral-ity is thereforepresented as a system of mutually-advantageouscon-

1 See, for example, Philippa Foot, 'Morality as a System of Hypothetical Impera-tives/ 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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straintswhich individuals 'could agree to adopt' in order to pursueinstrumentallyvaluablerelationshipswith one another. But Hobbesalso insists thatone would be irrational o adoptthese constraintswith-out assurance hat a sufficientnumberof others would do so too;other-wise one would be makingoneself prey to the violent or exploitativeactivities of others. Hence he maintains that moraldirectiveswouldhave to be conventionallyrealized before it would be rational or anyindividual to act upon them. Alas, the collective action requiredforthis realization is impossible for people in his state of nature. Onlywhen a sovereign'ssanctions are available o punishbehaviorcontraryto the laws will people find it rationalto support and follow them.Hobbes's ethical directives containmany prescriptions or coopera-tive activities uch askeepingcontractsandactingmercifully,and thereis even some gesturing towards a definition of a substantive theoryof distributiveustice.4Nonetheless,Hobbescontendsthatbecausepeo-ple would find it difficultnot only to agreeon but also to institute'fair'solutions to conflictsby themselves, determiningthe content of jus-ticemust eventuallybecome the task of the sovereign. So the contrac-tarian methodology in Leviathans employed primarilyto define amutually-advantageouspolitical olution to conflictin the state of na-ture, in which there is no justice.But Gauthier wonders why we should resortto a politicalremedyfor the problemof humanconflictwhen a moralremedy mightbe pos-sible. He attempts to argue that the nature of morality - includingjustice - can be defined using the contractmethodology, and thathumanpsychologymakes moralbehaviorpossiblewithoutgovernment(althoughGauthiernever deniesthatjusticemight requirepolitical ein-forcementin order to prevailfully). He also embracesthe Hobbesianthoughtthatmorality s authoritative or us only insofaras it advancesour interests. But this thesis on authorityhas implicationsfor the co-tent of morality:f moralitys to furtherourinterests, hen, saysGauthi-er, it must be possible to generate it 'as a rationalconstraintfrom thenon-moralpremisses of rational choice' (4).How can this be done? Gauthier'sproblemis to explain, first, howunattached, mutually unconcerned, utility-maximizingindividualswhose interestsfrequentlyconflictcan cometo agreeon the terms ponwhich it would be rational oreach of them to cooperatewith one an-other; second, how they couldbe trustedto complywith these terms;and third, the initialposition from which cooperationshould proceed

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


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Can WeAgree on Morals? 333

in order for the resultingdistributionof cooperativebenefits to be fair.His solutions to all threeproblemsarecontroversial,but in this sectionI want to evaluate his argumentfor only one of them, the principleofminimaxrelative oncession(hereafter alledthe MRCprinciple),whichhe argues should set the terms of cooperation.Gauthier elaborateson and defends this principlein ChapterV ofMoralsbyAgreement. onsider,he says, that in the firststage of a bar-gainingprocess,eachpartyadvancesa claim.If(asis likely) hese claimsareincompatible,hereis a secondstagein which eachpartyofferscon-cessionsto the othersbywithdrawing ome portionof his originalclaimand proposingan alternativeoutcome. Concession-makingcontinuesuntil a set of mutually compatibleclaims is reached, or until the par-ties are deadlocked.How much is it rationalfor an individual to concede?We supposethatcooperations better or eachpersonthannon-cooperation, o thateach person must not concede so little as to deadlock the group, orso much as to be excludedfrom the benefits of cooperation.Where isthe happy medium for each?Gauthierarguesthat it is reached wheneach partymakes concessions that are (as nearlyas possible) equal othe concessions of the others.

But how does one measure and compareconcessions?Starting romthe assumptionthat a cardinalmeasureof intra-personalutilityis pos-sibleusing the von Neumann-Morgensternmethod, Gauthierdefinesthe concept of relative oncession:f the initialbargainingposition af-fords some person utilityu* and he claimsan outcome affordinghimu#, then if he concedes an outcome affordinghim utilityu, the abso-lute magnitude of his concessions is u#-u, and of complete conces-sion u#-u* so that the relative magnitude of his concession isu#-u/u#-u*. Noticethat becauserelativeconcession, so defined, is in-variantwith respect o positive inear ransformationf utility unctions,it is possible to make interpersonalcomparisons with the measure.Gauthier'sclaim is that 'an outcome should be selected only if thegreatestormaximumrelativeconcession it requires, s as small aspos-sible,ora minimum,thatis, no greater hanthe maximumrelativecon-cession requiredby every other outcome' (137).The principleof minimax relative concession only seems plausibleas a definition of distributiveustice,and not what mightbe calledjus-tice in treatment(e.g. the sort of justice that is supposed to exist inproceduresfor criminaltrials, or in hiring procedures), or justice inconflictresolution.5But Gauthierdoes not intend this principleto gov-

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


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erndistributions rom alljointventures.Normally,he argues,the mar-ket is the appropriatedistributive ool in a society. But thereare inter-activesituations n which the market fails'andthe partieswill perceivethe distribution of costs and benefits as 'inappropriate.'When doesthe marketfail and why does it do so? Gauthier'sanswers to thesequestions areunclear.Certainlyhe believes the market ails when thepresence of externalitiesmeans either that people can benefit from anon-excludablegood without paying for it or that they are forced topay costs associated with a good's productionwithout receivinganybenefitsfrom it. Presumablywhat it means to say that the market ailsin these situations is that it does not motivatepeople to engage in ac-tivitythat willbe bothcollectivelyandindividuallyrational.Henceonemightformulateon Gauthier'sbehalf the following definitionof mar-ket failure: the marketfails whenever the rationalexchange activitiesof rationalpersonsareunable to move the parties o the pareto-efficientoutcome. As we shalldiscuss (andquestion)below, Gauthierbelievesmarkets fail in this way in the productionof privategoods involvingrent (understood in the economist's sense) and in the productionofprivate goods in circumstanceswhere each party is essential to thecooperativesurplus, i.e. no other person is availablewho can substi-tute for him and his contribution s necessaryfor the good's produc-tion (at least at a certainlevel).Wheneverthe market ails, Gauthierarguesthatpeople need to en-gage in a 'new mode of interacting' 117)which he calls 'cooperation.'Pure market nteractions notreallycooperativenteraction n his view;it is only exchange in pursuit of individualgoals. Genuine coopera-tion exists when people, in order to exclude free-ridingand parasit-ism, ignore the market and agree to use a mutually-advantageousprincipleto determine the distributionof benefits from their interac-tions. The MRCprinciple s supposedto be thismutually-advantageousprinciple.Would we approve of the MRCprinciple'soperation in practice?Gauthiershows (152-3) hat a division of utilityaccording o this prin-ciple results in each person getting what he would have made on hisown, plus an equal share of the cooperative surplus if it comes in afixed, fully divisible form (such as money). So, consider Abel andMabel, each of whom can make 5%a year on their money in a pass-book savings account, but reap 10%a year if they pool their moneyand invest it in a money marketaccount.I will presumethat no otherpersoncouldinvest instead of eitherone of them (so that each is neces-saryto realize the cooperativesurplus)and that utilitiesare linearwithmonetaryvalues. Suppose thatat least $700is needed to establishthefund, and that Abel has $400and Mabel$600.Ifeachinvests separate-ly in the bank, Abel will earn$20, and Mabel$30. But if their money


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is jointly invested in the money marketaccount, they would receive- as such accountsnowoperate - $40and $60respectively.I will callthe present principleof distributionin these acounts the Principle fProportionalityn distribution, which is that in a cooperativendeavor achpersonreceivesthat portion of the total benefitwhich is proportionateo hercontributiono it. Notice that this principlecan onlybe used in situa-tions where the contributionsof each partyto the cooperative surpluscan be determined, and in the money marketcase this is clearlyso.However, accordingto the MRCprinciple,Abel has conceded toomuch if he accepts only $40:For Abel:

u# = 470 [i.e. 400 + 20 (the amount he could makeon his own)+ 50 (the entire cooperative surplus)]u = 440 [i.e. 400 + 40 (the amount we are supposing Abel toconcede)]u* = 420[i.e. 400 + 20 (the amount he could make on his own)]

therefore:470-440/470-420= 3/5For Mabel:

u# = 680[i.e. 600 + 30(theamount she could make on herown)+ 50 (the entire cooperative surplus)]u = 660 [i.e. 600 + 60 (the amount Mabel would get if Abelaccepted $40)]u* = 630 [i.e. 600 + 30 (the amount Mabel could make on herown)]

therefore: 680-660/680-630= 2/5Theirconcessionsareequal(1/2and 1/2)when Abelgets $5more($445)and Mabel$5 less ($655).So Mabel, the bigger investor, prefers theproportionalityprincipleto the MRCprinciple,whereasAbel'sprefer-ences are the reverse.The MRCdivision would certainlyunsettle contemporarybankers,but should it worryus? Let us startby evaluating t froma moralpointof view. In chapter3 on the market,Gauthierarguesfor a conceptionof moralityas 'animpartial onstrainton the directpursuitof individualutility' 95).Impartialityn the context of market nteractions s definedmorepreciselyas follows: each person 'has a sufficient reason to con-sider interactionwith his fellows to be impartialonly in so far as it af-fordshim a returnequalto the services he contributes hroughthe useof his capacities' (100). Hence, a division of goods produced by a


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cooperative interaction is partialto some, and thus in conflict withmorality,when they are able to reap rewards from others' ervices.6Gauthiergives a sustainedargumentthat marketdistributionsareim-partialin this sense (see 95ff.). So when the market fails and unfairdistributionsresult, he supports the use of a principlewhich will ef-fect the impartialdistribution.But doesn'tthe MRCprincipleviolaterather hanrealizethisconceptof impartiality?fAbel receives$445rather han$440,isn'tthe extra$5taken from what rightfullyought to be Mabel'sshare?Gauthierwoulddeny this;in the examplethe cooperative urplus s only possibleif bothof them contribute.Therefore, since neither can gain any partof thecooperative surplus without the other, then each is equally responsi-ble for makingit available,and so is entitled to an equal share of it '(152-3).Butthisargument s dubious.SupposeMabelhadonlyinvestedthe same amount($400)as Abel;in this case, the totalyield fromtheirinvestment is $80,andthe MRCprinciplegives them$40each(exactlywhat the proportionalityprinciplewould give them). So in this case,each dollarinvested by Abel and Mabel earnshim or her $0.10. Nowsuppose thatAbel's contributionremains the same but that Mabelin-vests $200more, for a totalof $600.Thatextra$200invested (overandabove the original$400 nvestment)yields $20in interestby itself, buton the MRCprinciple,Mabelreceives only $15of it. This means thateach of her additional200 dollarsinvested only earnsher $0,075;theother $0,025 goes to Abel despitethefact that he has done nothing for it.So Abel is being allowed to benefit from hercontribution n exactlytheway Gauthiersaid 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 la-borer is exploited by the capitalist.

7 David Copp has suggested an interesting response to this argument: Considerthat 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 finalshare is $15 and his is $5- exactly the MRC division? This way of looking at theexample 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 contributesmore than he does. Abel is saying to Mabel that his $400 not only allowed herto reap high profits from her $400, but that it also allowed her to reap profit fromher $200. Whenever Mabel increases her investment share, Abel smugly pointsto his initial contribution to argue that it played a role in the return which thatshare was able to make. But while it is true that Mabel could not have earnedthe $20 without Abel's help, it is equally true that she could not have earned itwithout the help of her own $400 contribution. So why does Abel's $400 invest-ment entitle him to claim a portion of the profit from the additional $200, where-as her own $200 investment yields no such entitlement?


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The table below shows how, on the MRCdivision, Mabel's invest-ment dollarsearn less as she contributesmore, whereasAbel's invest-ment dollarsearnmoredespitemakingno increase n his contributions.

Abel's Mabel's payoff payoff rate of return per Mabel's sharecontri- contri- from MRC from MRC dollar invested of investmentbution button to Abel to Mabel for Abel for Mabel profits

400 400 40 40 .10 .10 .5400 600 45 55 .112 .091 .55400 800 50 70 .125 .087 .583400 1000 55 85 .138 .082 .607

Moreover,in the last column we see that although Mabel's share ofthe profits goes up, the rate at which it goes up decreases despite aconstantrate of increase n hercontributions, evealingonce againthatAbel is able to enjoy some of the increasedprofits made possible byMabelwithout doing any work for them.Mabeltherefore seems rightto conclude that whenever a contribu-tor invests morein a cooperativeventurethanherpartner(s), he MRCprinciplewill allow some of the proceeds of the extrainvestment tobe filched by the lower investor, thus allowing him to have a partial'freeride' on the backof the higher investor. Indeed, one might evenarguethat the MRCprincipleallows Abel to chargerent for his contri-butionto the cooperativeventure. The notion of economicrent, to useGauthier'sdefinition, s 'thepremiumcertain actorservicescommand,over and above full cost of supply, because there is no alternativetomeet the demand' (272).If there were someone competing with Abelto cooperate with Mabel, then he should offer to split profits usingthe proportionality rinciple, hereby making t rational orher to dropAbel andcooperatewith him. When there is no such competitor,Abelcan use the MRCprincipleto deriveprofitsfrom his cooperativeven-turewith Mabel that aregreaterthan the cost of supplying his contri-bution,because as that contribution emainsconstant,his profitsgo up.The argumentjust made attemptsto show that the divisions effect-ed by the MRCprinciple are not in accordance with what we (andGauthier)intuitivelythink of as 'impartial'or 'fair.' But intuitive ap-peals arenotorious for not decisivelysinglingout one principleof jus-


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tice. As we have just seen, both the MRCprincipleand the Propor-tionalityRule can be made to appear intuitively plausible;but thereare other principles which can be made to seem just as intuitivelyappealing.8The 'mushiness'of our intuitionson these mattersgives us good rea-son to turn to a contractarianmethodology in the hopes that it willpersuasively single out a unique distributiveprinciple. Gauthierin-sists thatthis methodology singles out the MRCprinciple,but my ar-gument againstthe MRCprinciplesuggests thathis contract anguageonly disguisesan implicitappealto our intuitionsaboutfairness.Why,afterall, should contractorsagree that concessions must be equal inthe bargain?Why wouldn't they insist on equalityof reward for con-tribution(which is what the proportionalityprinciplerespects)or (asanothercritichas wondered)9equalityof utilityin outcomes?Depend-ing on what intuitions one has, one will prefer a certain method ofreward,andit is easy to imagine(and define)contractorsn a hypothet-icalcontractsituation who share these intuitions and preferences.Butsuch imagining hardly counts as proof.Whetheror not contractarianisms a moraltheorythat is genuinelydifferentfrom ethical intuitionismdepends upon whether we can de-velop a way of using contract alk that is not simply a cover foran ap-peal to our ethical intuitions. In what follows, I want to outline a newcontractarian rocedurethat has the promiseof being more than sucha cover, and which, as it happens, does not yield the MRCprincipleas the agreed-uponsolution. Moreover,if one accepts, with Gauthi-er, thatmarketdistributionsnormallyexemplify mpartiality,hen one

8 Consider the following argument by Mabel for yet another principle dividing upcooperative 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 itis true that both of us are equally necessary to securing this surplus, we do notplay equal roles in securing the amount of this cooperative surplus. My contribu-tion yields 2/3 of that surplus, and Abel's yields 1/3. Hence, of that cooperativesurplus, I should get $33.33 (2/3 of $50) + $30 (what I could have made on myown), and he should get $16.66 (1/3 of $5) + $20 (what he could have made onhis own), or $63.33 for me and $36.66 for him/ Note that on this way of deter-mining profits, Abel receives less and Mabel more than they would receive fromeither the MRC principle orthe proportionality rule. So now we have a third ruleof 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 TheFixed Social Inequalities Acceptable?' and 'Inequalities Not Conceded Yet:A Re-joinder To Gauthier's Reply7 Dialogue:CanadianPhilosophicalReview21 [1982]411-30,445-8).


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needs a contract argument which can identify a principle thatreproduces he marketoutcomein situationsof market ailure. The ar-gumentIwill presentwas also developed in order to allow us to makesuch an identification.But beforepresenting the argument, a briefdigression on the con-cept of economicrent is necessary. As an exampleof someone whosesalaryincludes rent, Gauthiergives us Wayne Gretzky,who prefersplaying hockey with the Edmonton Oilers to some other occupationas long as he gets a certainminimalsalary,butwho is paida farhighersalary given his unique and remarkable alents as a hockey player.Gretzkyis a monopolist, whose earnings are supposed to be greaterthan the true cost to him of supplying his talents to the team. ThusGauthiersupposes that taxationof the rentin Gretzky'ssalarywouldnot affect efficiency or naturalfreedom in the market(273).But does Gretzky'shigh salaryreally nclude rent?Considerthe bestexplanationof why he is paid so much- he gets outside offers. Sup-pose Gretzky began his hockey careerwith a salarythat was a shademore than the amountthat would leave him indifferentbetween play-ing hockey with Edmontonand (let'ssay) being a bartenderat a localclub. Then suppose the New YorkRangerscome along and offerhimmuch more, knowing that it will take a higher salaryto lure him toNew York.They offerhim a shade more than the amount that leaveshim indifferentbetweenplayinghockeyin New Yorkandplayinghock-ey in Edmonton. Let'ssuppose that the Los Angeles Kings also wantGretzkyand know they must outbid New Yorkif they will succeedin getting him to their city; so they offer him a shade more than theamount that leaves him indifferentbetween playng in New Yorkandplayingin LosAngeles. Now Edmontonhear of these offers,and whatdo they do? In order to ensure that Gretzky is not rational to go toL.A., their offermust be a shade higherthan the amountwhich leaveshim indifferentbetween playingin L.A. and playingwith them. Sup-pose they make such an offer and he accepts it. Is there rent in hissalary?No, becausethe salary s coveringhis opportunityosts, i.e. costsdefined by economists in termsof opportunities forgone.10 fEdmon-ton paid him anything less, Wayne would be losing money by sup-plying his services to them ratherthan to Los Angeles or New York.Gauthier eems confused abouthow to computecosts in the Gretzkycase. Theonly opportunitycosts he takesseriouslyare the costs of thenon-hockeyalternatives orWayne;butclearly he exampleshows that

10 For example, see JackHirshleifer, Price Theoryand Applications,third edition (En-glewood Cliffs, NJ: Prentice-Hall 1984), 176-7.


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Waynehas hockey-relatedopportunitycosts. Note alsothat if he weretaxed on a salarywhich barelycovered these costs, there would beprofound implications oreconomicefficiencyand market reedom(asNozick originallyrealized in his 'WiltChamberlain' xample).For ex-ample,if Wayneknew thathe could not receive all of the salaryofferedto him by Los Angeles insofaras that was judged to include rent, hewould not find it rational o leave Edmonton. The tax would interferewith his market choices and benefit the small numberof Edmontonfansatthe expenseof the largenumberof Gretzky ansin LosAngeles.With this understandingof the way in which marketsset salary,wereturn to the construction of a new style of contractargumentiden-tifying a principle applicableto market-failure ituations. Letus startwith Gauthier'sassumptionthat in the contractsituation,people aredeterminate ndividualsforwhom it is commonknowledgewhat eachperson'sfactorendowments are.However, departing rom Gauthier'smodel, imagine that in this situation each individual has the optionof cooperatingor not cooperatingwith one or more of the others insomething which I will call a 'cooperativecompany.' These are notgroupsof peopleestablished o produceany particular ood, but rathercoalitions of people who agree to cooperatewith one anotherin theproductionof goods in market-failure ituations.Accordingly,eachin-dividual hinks of herself as 'upfor sale'in justthe way WayneGretzkydoes; she offers herself (and thus her factor endowments) to anyprospectivecompany'buyer'and what it will pay her for her work inproducinga good alongwith otherswill be her 'cut'of the cooperativesurpluswhich she helped to create. Butif she does not like the salaryoffered her by any prospective companybuyer, she is free either tooffer her services to other buyers who arepreparedto pay her more,or else to form a new societalcoalitionwith othersin which the cooper-ative surpluswill be split in a way that is moreadvantageousfor her.Those companies who wish to hire her must strive to cover her op-portunitycosts in just the way that Wayne's hockey teams must do.Thecompetitionamong'societalemployment agencies' s verymuchlike the competitionbetween Nozick'scompeting protectionagencies.A marketemerges among cooperativecompaniesas they competeforemployee-cooperators.Whatwill be the resultsof the competition?Em-ployees will tend to converge on onecooperativecompany, insofarasthe more employees a company has, the more substantialthe goodsthey can produceand thus the greaterthe cooperativebenefitswhichthe company can make possible for them. But which company willeveryone decide to join?Answer: the group that is preparedto giveeach individualher marginalproduct.No group whch pays anybodymore hanhermarginalproductwill survive becausethey won'tbe ableto cover their costs by doing so. But no groupwhich pays anyone less


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than her marginalproductseems likely to survive either, because bydoingso they makeit rational or that individual o realignherself withothers who are preparedto offer her more.It has been shown thatin situationsof perfectcompetition, ndividu-alswill receivetheirmarginalproduct.11 o a perfectlycompetitivemar-ket will naturallyrewardpeople in the way that any contractor n theabove situation would prefer.But there is a problem determiningex-actlywhat any individual'smarginalproductis in one of the 'marketfailure'situations about which Gauthier s most concerned. Whenev-er there is a 'collectivestep good,' thatis, a cooperativeventure whichrequiresa certain level of contributionbeforeanyof the good can beproduced, each individual who participates n the good's productioncanjustifiably laim hat the entiresurplus s his marginalproductsince,but forhim, there would be no surplus.Butclearlyyou can'tgive every-one the entire profit!Gauthier'sMRCprincipleessentially proposesthatthe profitbe divided up equally. But ratherthan be content withthis answer, which has (as I have arguedbefore)only the appearanceof fairness,we should return to the contractsituation and ask, 'Whatwould people who were consideringwhether or not to entera cooper-ative venturewith others be able to demand as "pay" or theircooper-ation in these special circumstances?'Suppose a cooperativecompanyofferedan individual the MRCdi-vision. She mightbe happy with this if she were a small investor, butif she were a large investor, she would prefer any higher offer, andfor her, the proportionalityprinciplewould be a better offer. More-over, if the large investors were to form their own society, it seemsthey would be rationalto offer one anotherdistributionaccordingtothis principlerather han the MRCprinciple,because the latterwouldmake it rationalfor those large investors contributingmore than theothersto pull out of this cooperativecompanyand pursue alternativeinvestmentpossibilities.Small nvestorscouldill-afford lienating argeinvestors, and largeinvestors could ill-affordalienatingone another.So the proportionalityprincipleappearsto be a better candidate thanthe MRCprincipleforofferingthe equivalentof the marginalproductin these situations.Iam reluctant o say that this principle s the solution, becauseI sus-pectthat a morecomplicated conomicanalysis,probablyusinga richerspecificationof the contract situation and relying on theories of the

11 See Joseph M. Ostrow, 'The No-Surplus Condition as a Characterization of Per-fectly Competitive Equilibrium/ JournalofEconomicThought22 (1980) 183-207;andLouis Makowski and Joseph M. Ostrow, 'Vickrey-Clarke-GrovesMechanisms andPerfect Competition/ Journalof EconomicTheory24 (1987) 244-61.


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core12might be necessary to prove it. But the advantage of this wayof defining the contract problem is that prooffor the outcome may bepossible. Moreover the approach is interestingly similar to market-stylecontract arguments developed by Nozick and me13 to argue for cer-tain governmental structures. Its market orientation would seem tomake it an attractive approach for market-enthusiasts such as Gauthi-er.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 play-ers which (1) is Pareto-optimal; (2) cannot be bettered, from the point of viewof any one player, by going it alone; and (3) cannot be bettered, from the pointof view of some proper subset of players, by leaving the agreement set and form-ing an independent coalition. Note, therefore, that in the core each individualplayer and each coalition must receive its non-cooperative maximin payoff. Fora more complete discussion, see Michael Bachrach, Economicsand The TheoryofGames(London: Macmillan 1976), 124ff One might diagnose Gauthier's mistakein his contractarian methodology as one of ignoring (3) above; the rational solu-tion 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 SocialContractTradition(Cambridge: Cambridge Universi-ty Press 1986), chapter 6.14 However, despite its market orientation, Gauthier may dislike my reinterpreta-tion of the contract problem, since in his book he restricts his analysis to the situ-ation in which an individual only has the option of joining one society (althoughhe admits the possibility of having more than one option in 'The Social Contract:Individual Decision or Collective Bargain?' n Hooker, Leach and McClennan, eds.,Foundations ndApplications f DecisionTheory,vol. II [Dordrecht, Holland: D. Reidel1978] 47-67). In terms of my discussion above, this would mean that individualswould be prevented from forming alternative coalitions of cooperators, with theresult that there could be only one societal investment opportunity for each in-dividual. But why should we restrict the contract problem in this way? To do sois to disallowthe possibilityof an obviousmarketsolution to the problemof division incooperative ituations. Nonetheless, suppose we accept Gauthier's unargued-forrestriction. It is still the case that the MRC division is in trouble, because evenwithin one society people have multiple cooperative opportunities, and are thusin a market. To see this, suppose Mabel is irritated by the Gauthier division andhears about another person, called Gable, who has $400 and who wishes to in-vest it with the help of a partner in another money market fund which also re-quires at least $700 to be established. (Again, suppose for the sake of argumentthat 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 in-vest $300 with Abel and $300 with Gable, and receive more interest in total thanI would receive had I invested all $600 with Abel. (She receives $10 more.) Shereceives 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 invest-ments. Given the advantages which the MRC principle gives to lower contribu-


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a sufficiently argenumber of agents the only core solutions are thosethat mimic the workings of the market.15But the market-orientation f this method would trouble those whoare hostile towards markets(e.g. Marxists).Wouldn'tone have to usemoralnotions ormorally oaded conceptsto arguefor it? And will notmoral reasons need to be given for assuming that the people in thecontractprocedurearefully determinate ndividuals ratherthan peo-ple whose identitiesarepareddown in some fashionby a veil of igno-rance? Finally, if a richer specification of the contract situation isnecessaryin order to get a proof of the results of the bargaining,willnot these additionalspecificationsbe potentiallymorallyloaded? Inmy view, it is probablycorrect o answer'yes'to all of these questions.However, the need to provide moralgroundingfor this style of con-tractargumentraises no specialdifficulties orit as opposed to its con-tractarianompetitors.Thosecontractarians ho understand he socialcontractas specifying how much any individual ought to get of theavailable ocial resourcessubjectto certainrestrictionsand constraintssuchas the veil of ignorancemustarguewhy thatapproach,with thoseresrictionsand constraints, s preferable o an approachwhich regardsthe contractas specifyinghow much an individual is worth assumingthat she is fully defined as an individual).Contemporarycontractari-ans have been too ready to follow Rawls in assuming that only theformerstatementof the contractproblem s possible. But once the lat-terpossibilityis raised, an advocateof eitherapproach s under pres-sureto give reasonsforpreferringhis favorite.I cannotsee how moralconsiderationscan fail to be relevant in providing these reasons, so

tors, people will find it rational, whenever possible, to distribute their investmentssuch that contributions to cooperative endeavors are equal. And to the extent thatpeople succeed in this strategy, they will be mimickingthe distributionaccordingtothe proportionality rinciplebecause whenever people invest with others on equalterms, distribution according to the MRC principle and distribution according tothe principle of proportionality are the same!So if people in Gauthier's contract situation believe that they will have com-peting opportunities to engage in cooperative endeavors (as he defines them) inthe only society which they are allowed to join, then a market for cooperatorsin non-market situations exists for them, and the large investors, in virtue of theirresources, will be highly valued in this market. The large investors can use thisfact to gain bargaining clout. Specifically, they can say to the lower contributors:look, you might as well accept our proportionality principle because, given theexistence 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 isselected/15 This idea grew out of correspondence with Robert Sugden.


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that it seems impossible for contractarians uch as Gauthier to claimthatthis methodology can generate moralityentirely ut of non-moralcomponents,but the hope (raisedby Rawls)that it couldprovidesucha justification s probablya pipe-dream.So gettingridof the appealto ethical intuitions within he argumentdoesn't rule out the fact that support for the argumentitself may re-quire such an appeal. But at least the 'market'approachto the con-tractproblemavoids having such appeals play such a largerole in thefunctioning f the contractmethod as to makeit doubtful whether con-tractingis doing any work at all in the argument. I am nonethelessdoubtful thatthis approachwill be fully satisfactory.As I will proposein the next section, it still starts from an incorrectunderstandingofthe problembargainersmust solve if their solution is to illuminatethenature of justice.IIGauthier ollows his presentationof his theorywith ChapterVIII, TheArchimedeanPoint,' that attemptsto rallyother contractarianso hisside by arguingthat his theory is a better moral heory than those ofothercontractarians.By arguingagainst Harsanyi's ationalchoicethe-ory and Rawls'soriginalposition procedure,he hopes to convincehisreaders that his brand of contractarianism s better able, both in itsmethodology and in its results, to capturethe nature of impartiality,supposedly the essence of morality.However, I want to contend thatin the processof respondingto Rawls's deas, Gauthiersubtlybut im-portantlymodifies his theoryin a Rawlsiandirection.We shall see thatMoralsbyAgreement eally suggests two social contractmethods, andit is not clear that the moreRawlsianmethod to which Gauthiergravi-tatesby the end of the book is ableto justifythe specificmoralconclu-sions he draws in the book's first half.Rawls'stheory (as put forwardin A Theory fJustice)16nitiallyap-pears to differ from Gauthier'stheory in a number of respects. First,the subject matter of their social contractsdiffer;whereas Gauthierwants an agreementon moralprincipleswhich are intended to gov-ern individualrelationships,Rawlswants an agreementon principlesof socialjusticeto govern the basic structureof society. Second, they

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


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disagreeaboutwhy morality s authoritativeover us: while Gauthierpoints to self-interestas a reason to be moral,Rawls(to the extent thathe considersthis issue at all)suggests thatprinciplesof justiceare cate-gorical mperatives,authoritative nsofar as they aredirectives of rea-son.17Third, he kindof contract achphilosopheremploysin his theoryis different:whereas Gauthier'sbargainingtakes place among deter-minate ndividuals,Rawls'sagreementon the two principles akesplaceamong people who aresubjectto a veil of ignorancewhich stripsthemof all individuating characteristics.I have argued,18and Gauthieragrees, that a genuine bargainamong such people is impossible;andRawls himself admits that unanimous agreement on his two princi-ples of justiceis possible preciselybecause they arethe first choice ofevery one of these identicalpeople.19 n a previous article,20Gauthierarguedthat the parties'ignoranceof their identity actuallyresults intheir selection of a principlethat turns out to be a bad deal for some(namely, the most advantaged)once knowledge is regained.However, in chapterVIIIof Moralsby AgreementGauthier is moresympathetic o what he takes to be Rawls'sreasons forintroducing heveil. He embracesthe Rawlsian idea that, insofar as the hallmarkofmoral behavioris impartiality,one can identify moral behaviorif onetakes a properly impartialstandpoint, and this is the 'ArchimedeanPoint' n moral heory.Gauthieralsoagreesthat the way to define suchan impartial tandpointis to define an impartialchooserwhose task isto select among alternativemoralconceptions. He is even preparedto acceptthe Rawlsian dea that a chooser is impartialwhen she is ig-norant of her identityin society. Freedfrom the contentof any partic-ular individuality,she can choose in a way that is partialto no one,allowing her to determine the genuinely fair option. But recallthatGauthierhimselfwanted to build fairness out of the operationof self-interest in a contractsituation. The underlying point of chapterVIIIis thatthe Archimedeanchoice,properlyunderstood,yields the moral

17 See TJ253; and see, in general, section 40.18 See my 'Contractsand Choices: Does Rawls Have A Social ContractTheory?/Journalof Philosophy77 (1980) 315.19 In Rawls's words, '. .it is clear that since the differences among the parties are un-known 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 originalposition from the standpointof one personselectedat random1T/, 139, my emphasis).20 See Gauthier's "The Social Contract, Individual Decision or Collective Bargain?'in Hooker, Leach and McClennan, eds., Foundationsand Applicationsof DecisionTheory,vol. II (Dordrecht, Holland: D. Reidel 1978), 47-67.


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results Gauthier wants because it first yields the deliberationproce-dureembodiedin his contractmethod. The Archimedeanpoint yieldsthe social contract,he insists.Gauthierbelieves that Rawls fails to retaina properlycontractarianperspectivebecausethe parties' gnoranceof their dentities orcesthemto choose principlesof justicethat ignore individual characteristicsnthe distributionof primarygoods. This means that the Rawlsiandivi-sion of benefits is not based on entitlements arising from personalcharacteristics.The differenceprinciplechosen by each partydistrib-utes primarygoods equally, unless an unequal distribution(moretothe more able)might result in a greatershare of goods to each. How-ever, as Gauthiernotes, the extra amount received by the more ad-vantagedis not receivedin virtue of anyentitlemento it: 'theirrewardsare purely instrumental,means to the goal of maximizingminimumutility,and not a recognitionof entitlementbased on contribution'248).Rawls refuses to recognizeentitlementsbasedon contributions ecausecontributionsare a function of abilities and one's possession of abili-ties - which includerawtalent,its development,andanyvirtues(suchas industriousness)which promote its operation - are the joint pro-ductof one'sgeneticendowmentand the societywhichgives formandworth to this genetic potential. And why should a highly advantagedindividual, who is highly advantaged only because the accidents ofnature and culturemadehim so, be grantedmorein virtueof his goodluck?Gauthier, ike others beforehim, is disturbedby this line of reason-ing. He complainsthateven if our characteristics renot ours for anymoralreason,they nonetheless definewho we are,and ourdifferences- which constitute our individuality- are not an embarrassmentbutsomething we value, and want others to respect. Hence Gauthier n-sists that an Archimedeanchooser,althoughignorantof her own den-tity, would choose a moralconception aware that she wouldhaveanidentity(251).WhereasRawls's Archimedeanchooserreactsto his ig-norance by concerning himself with the lot of the least-advantagedmembersof society, Gauthier'sArchimedeanchooserreacts to her ig-noranceby concerningherselfwith the lot of everyone- tryingto max-imize the satisfactionof the preferencesof eachperson (no matterhowhighly advantaged)whom she might become:

The ideal actormust thereforechoose, not as if she had anequalchanceof beingeach of the persons affectedby her choice,but as if she were each of these per-sons. Wemaythinkof the Archimedeanpoint as a point of convergence;begin-ning from individualschoosing, each fromhis own perspective,principlesforsocialinteraction- principleswhich will of coursereflectthe chooser'sconcernto maximizehis own utility- we alter he perspectiveuntilwe find thatthe sameprincipleswould be chosen by all. (255)


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Gauthierbelieves that his method preserves, as Rawls's method didnot, the moral mportanceof humanindividuality.Whenthe Archime-dean chooser deliberates abouthow any moralconceptionwould af-fect each individual in society, she must 'maintain their separateidentities and utility, and so must choose as if she were bargainingas each person' (256).Justas a school administrator hould distributeresourcestaking seriously every student's wish to furtherher intellec-tualdevelopment (notjust the wish of the least intellectuallyable stu-dents), so too, on Gauthier's iew, shoulda societydistribute esourcesso as to takeseriously everyindividual's nterest in havinghis projectsflourish. But now we see that the Archimedean chooser's reasoningsimulates the bargainingprocessdiscussedearlier.Says Gauthier, theArchimedeanpointis the positionyou andIoccupywhen we find our-selves in fully voluntaryand equalagreementwith our fellows' (266).It is not clearthat Gauthier is right to charge Rawls with denyingthe valueandimportanceof ourindividuality.Rawlsmightbe attempt-ing to persuade us that a concernfor each individual in the originalpositionmust translate nto a concern,first and foremost,for the leastadvantaged.21AdmittedlyTJdoes not present a well-developed argu-ment to this effect and it is not at all obvious that this translationofconcern is right;nonetheless Rawls and Gauthiermay well be quar-relling only about how to understand the nature of 'equalconcern.'Whetheror not this is so, by the end of chapterVIII,Gauthierhim-self suggests a way in which his individual-respectingcontractarianmethodneeds modification n a Rawlsiandirection n orderto be fullysatisfactory.As Gauthiernotes, although Rawls says he is preparedto see people as social creations,he nonetheless tries to isolate an a-social core of human beings, which he calls our 'moralpersonality.'Thiscorewithinallof us is the autonomousrationalchooserdescribedby Kant;it is not createdby social forces, and is actuallyrevealedbythe veil of ignorance.Whyis Rawls,who is so impressedwith our so-ciality,concernedto locate this a-social core in us? The reason arisesfromthe fact that he thinks we aredeeply concerned about how socie-ty will formus; in particular,we want to become the best sort of (so-cially defined) individual we can become. But this way of talkingpresupposes that there is an aspect of us which society does not cre-ate and which can evaluate how far social effects upon us have beenfavorableor damaging. It is that aspect of us which is representedinthe original position and which aims to select moral principles thatwould give us the best chance of developing well in a social system.

21 I am indebted to ThomasNagel, who pointed out this possibilityto me.


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As Gauthier notes (310ff.), Maclntyre and other communitarianswould chargethatby constructingsuch a position Rawls has commit-ted the errorof supposingthere s anextra-moraltandpoint romwhichmoralitycanbe grasped,ordefined, or defended. Whilea recentpaperby Rawlssuggests thathe mightbe temptedto agreewith these senti-ments now,22he philosopher who wrote TJwould not have agreed.Ofcourse,he would say,we are the productsof society,butthat doesn'tmakeit impossiblefor us to ask, given the variouswaysin which soci-ety can createus, if we could not have been better or worse products.A Theoryof Justicewas born, in part, out of the movement for civilrights in the 1960s.Those who searched for racialequalitywere im-pressed with the way theirsociety had structured he talentsand op-portunitiesof people of differentraces.In recentyearsfeministshavealso come to endorse the idea that society deeply influences who weareby rearingus in the culture associated with our gender. Butbothgroups have insisted that these forms of social determinationare notbeyond moral criticism.Maclntyremight arguethat such moral criti-cism only reflects deas and beliefs that are,and can be nothing morethan, the productof the society beingcriticized. Butthen, what wouldit take to falsify his theory?)His opponents will respond that thereis the factof damage to contend with; on their view certainkinds ofpeople, because they have experienceddiscrimination,poverty, par-ticularforms of psychologicalabuse, poor education, and even physi-cal abuse, have been unable to develop well in a way that warrantsour moralprotest, where this is a fact, and not merely (if at all) a so-cially created thought.However, in order to morallyevaluatethe forms of socialization none's culture, one needs to know something about the potential thathumanbeings have and what 'humanflourishing' ookslike, suchthatone can recognize when society's effects on people have been harm-ful. Thus, when Rawls defines the originalpositionhe representspeo-ple before socialization, not because he believes one can find fullydetermined ndividualspriorto socialization as Hobbesthought),butbecause he wants to show what potentialhuman beings have whichsociety will be decisive in forming; and he believes this potential isdefined by their capacitiesto createa plan of life, to be rational,andto be autonomous. These capacitiesarenot socialcreations,but theirrealizationin any of us is affected by social forces. It is because thepartiesknow thatthey have the potentialforrational,autonomousac-

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


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tion in pursuit of what they want that they are able to evaluate howfar a socialsystem allows any of its members to realize thatpotential.Moreover, Rawls's individuals do have one fully defined a-socialcharacteristic:heir concern for themselves. Rawls does not assumethat this is the only or even the most importantconcern of humanbe-ings outside the originalposition, but he does representit as a naturalconcern to which a social system must answer.At one point in ChapterVIII,in a fit of enthusiasm for the claimsof our sociality,Gauthierdenies that there is such a 'real self': 'A per-son's identity is in all respects a contingent matter'(257). But by hisown lights he goes too far in saying this; at the end of that chapterhe shows as much concern to locate an a-social core in our nature asdoes Rawls,and orthesame eason.LikeRawls,Gauthiercomes to wanta reasoning procedurethatwill allow us to evaluatesociety'saffect onus. How, he asks, can it be fairto tie the distributionof goods to ta-lents if the development of talents is allowed to proceed in a partialway?Note that Gauthier'squestionreveals the kind of damagehe be-lieves people would be concernedabout:namely, damageto their abil-ityto maximize heirutility,whichthey cannot do if they are structuredby a society such that they do not have to any significant degree thepropertiesto which the distributionof benefits are tiedin thatsociety.Hence he is assumingthatthe desire to maximizeutilityis naturalanda-sociallydefined, and in chapterX Gauthierfinally admits this: 'infact the Sophists grasped, for the first time in human thought, thestandpointof a person who does stand outside social life, not in hercapacities,not in being able to live without society, but in her motiva-tions, in being able to view societyas purelyinstrumental o goals thatdo notrequire ocial ife fortheirformulation'312).He goes on to arguethat society can influence the content of our preferences,but not ournature as utility-maximizers.Gauthier'sadmission of an a-social core leads him to make a pro-foundlyRawlsianmodification o his initialdescriptionof the Archime-deanstandpoint.Bythe end of ChapterVIII he Archimedean hooser,as she takes the pointof view of eachindividual, s concernednot mere-ly with what she canget if she were any individualin society, but alsowith howwellshe woulddevelopf she were any individualin a possiblesocial setting:

The principles chosen from the Archimedean point must therefore provide thateach person's expected share of the fruits of social interaction be related, not justto what he actually contributes, since his actual contribution may reflect the con-tingent permissions and prohibitions found in any social structure, but to the con-tributionshe would make n that social structure most favourable to the actualizationof 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 require-ments of Archimedean choice. (264; my emphasis)Note how Gauthier/sconceptionof the ideal choice situationhas shift-ed. Earliern ChapterVIIIand in ChapterV the contractsituationwasinhabitedby 'determinate ndividuals/ fully socialized,who had utili-ty functions and factorendowments and who knew what theirutilityfunctions would be under various schemes of cooperation.But nowthe Archimedeanchooser simulates a bargainamong people who se-lect a scheme of cooperationnot on the basis of who they are,but onthe basis of whotheycouldbe n any of these schemes. So the contrac-torsarenot determinate ndividuals,but 'proto-people'with the poten-tial to be determinate individuals. Depending on how theirpotentialitiesaredeveloped, theircontribution o the cooperativesur-plus will vary, so that their entitlements over portionsof this surpluswillvary. So the people in Gauthier's ontractactuallyhave an a-socialcore which is largerthan that of the people in Rawls'soriginal posi-tion insofar as they are defined not merely by generalhuman capaci-ties for such things as rationality,but also by theirgenetic capacitiesfor specific talents. Each seeks a social structurethat will shape bothkinds of capacitieswell.It is importantto note that this modificationof Gauthier'scontractmethod also indicatesa decisive shiftin his conceptionof what his con-tract method is /or. In previous chaptersthat method was used to se-lect principlesfor individuals o use in order to promote and ensurea desirablecooperativerelationship. But by the end of ChapterVIIIthe contractarianmethodology s used to chooseprinciples hat are'for'the structuring f the socialsystemwhichplaysa profoundrolein creat-ing individuals.Now perhapsthe earliercontractmethod, which usesdeterminate ndividualsratherthan proto-people, mightbe regardedas a method of defining appropriateprinciplesof cooperation(only)for alreadysocially-definedndividuals-,but the justice of individual rela-tionships structuredaccordingto such principleswould also dependon whether the principlesgoverninghe nstitutionswhich createdtheseindividuals were alreadyfair.Gauthier'sshift in methodology is importantbecause it shows thathe embraces what is perhaps the deepest idea in T], the idea that so-cial ustice s the firstand mostbasic moralvirtue.WhereasKantsoughtthe Kingdomof Ends by advocatingthat individuals follow a moralreasoning procedurein theirrelationshipswith one another, Gauthi-er comes to agreewith Rawls that this perspectiveis already toolate,'and that we must consider first the sort of social structuresrequiredto define people who are ableto establish the right kind of relation-ships with one another. Gauthierthus embraces Rawls's thesis that


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politicaljustice must be the first (but of course not the only) concernof moral theorists. (Indeed, one can pick up the political leanings ofGauthier'smoralprojectsimply by reflectingon how very political hecomponents of his 'morality'are.)Although I am unsure how one could possibly answer it, I admitto likingGauthier'squestion. Itrecognizes, as Rawls would wish, theprofoundsocialityof us all, while incorporating,as Gauthierwishes,the deep-seated interest each of has in the flourishingof our own in-dividuality. Perhaps, it is best viewed not as a question with a deter-minableanswer, but as a question which defines a goal or standardfor us to use in judging the extent to which any society's experimentswith a wide varietyof possible rules and distributionsof goods havecreated a just social order.But there should be no mistake that by embracingthis question,Gauthierhas essentiallymodified his contractarianmethod sufficient-ly to throw into doubt his earlierjustificationsof the MRCprinciple,the Lockeanproviso and constrained maximizationusing the 'deter-minate people' version of that method. Indeed, even his initial en-thusiasm for the market needs to be reexamined.Forit is no longerclearthat a marketsociety which operates accordingto these princi-ples is not going to shape some individuals(inparticular,he leastwelloff) badly, nor that there aren't other principles disruptiveof marketinteractionsforexample,Rawls's irstprincipleof justice,which wouldguarantee any individual's access to a variety of social institutions)which an Archimedean chooser with this sort of concern would be-lieve it was also necessaryto choose. Indeed, it may even be true thatRawls'ssecond rincipleof justicewould be chosen to ensure thateachhas a decent chance of developing his individual talents and assets.But more worryingis the fact that his shift in methodology under-cuts his Hobbesianapproachto generatingmoralconstraintsfromin-dividual rationality.The social contract which assumed determinatepeople who bargainedwith knowledge of theiridentityand factoren-dowments was supposed to demonstrateto us determinate ndividu-als why the adoption of 'moral'principlessuch as the MRCrule arealso individually advantageous for us. But a determinateindividualis probablynot going to find individuallyrational he adoptionof con-straintsagreed to by 'proto-people.'If I am a white male in a societywhich accordswhite malesprivileged opportunities o develop talentsthatwill allowthem to earnwell, then why is it rational or me to pur-sue a restructuring f socialinstitutions n which this is no longertrue?Indeed, why is it even rational for (adult)minoritymembers and fe-males to support this restructuringsince the costs of pursuing it arelikelyto outweighthe benefits to themgiventhatthey arelargely made'alreadyand 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 extra-societalbargainseems to have little bearingon what it is rationalfor'determinate-me' o accept in the here and now. If Gauthier is goingto insist that we adults should pursue this restructuringanyway, de-spite the fact thatdoing so is individually rrational or us now, he canno longercontend that moral action is individuallyrational or us de-terminatepeople, which amounts to an abandonmentof his Hobbesi-an explanationand justificationof morality.

IllTomy mindthe last two chaptersof Gauthier'sbook (ChapterX, TheRingof Gyges'and ChapterXI,'The Liberal ndividual')are his finest.They are, in essence, a defence of his method of contractarianismagainstthose who complainthatby regardingmoralityas instrumen-tallyvaluable he has made it a 'necessaryevil/ therebyunderminingthe hold it is supposed to have on us. Such complaints,however, areonly tangentially elated o my reasonsforquestioningwhether Gauthi-er's theory really gives us morality.The following remarksare there-fore inspired by, but not taken from, these intriguingchapters.Kantianswill approveof Gauthier'sblanket refusalto base any partof moralityon the affections;many otherswill takeexceptionto sucha project. But even the Kantians will balk at Gauthier'sHobbesianreductionism,and it is this objectionto his projectthat I find myselfholdingmost seriously.Gauthier nsists thatbeing disposedto cooper-ate with and respectothers is required or the pursuitof instrumental-ly valuablerelationships.But if such a relationshipis not possible orif one canget what one wants throughdominationrather hancooper-ation,his theoryneitherrequiresnorencouragessuch respectful reat-ment. I would argue that this shows his theory doesn't capturethenature of morality: regardless f whether or not one can engage inbeneficialcooperativeinteractionswith another, one owes that per-son respectfultreatmentsimply in virtue of the fact that he is a per-son. Not all value is subjective; n particular, he value which humanbeings have is objective, and demands one's respect, whether thathuman being is an infant with whom one will never have reason tocooperate, an elderly man past his prime, or an adult whose talentsone finds of no particularuse.

It is because Gauthierdoes not assume that human beings have anobjectiveworth that he sometimes gets unintuitiveand unacceptableresults in his moraltheorizing. Indeed, to the extent that Gauthier'sresults are acceptable,it is because one's concern to cooperatewithsomeonewhom one cannotdominate eadsone to behavein ways that


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mimic the respectone ought to show hersimplyin virtue of her moralworth as a humanbeing. Of course, Gauthierwill point out that any-one who insists that a humanbeing has objectivevalue must developa theorythatwill not only justifythat claim but also explainwhat rea-son one would everhave forrespecting his value.Ibelievethis is achal-lenge one has no choice butto accept, given what the moral facts are.Gauthierhimself shows signs of being susceptibleto such Kantianthoughts. It is because the self-interestof determinate ndividualsdoesnot seem sufficientto explaina commitmentto the resultsof abargainamong proto-people that one wonders whether Gauthier's eventualcommitment o fairstructuresgoverningthe developmentof individualtalentsbetraysa commitmentto the intrinsicvalue of the individualsthemselves.HoweverIwant to proposethat even ifwe rejecthis moralreductionism,the appealthat he and other contractariansmake to ourself-interestdeserves a place in a moraltheory positing our objectivevalue. Evena Kantianmoraltheory ought to have its Hobbesian side.What do I mean by this? Hobbes's centralinsight about ethics wasthat it should not be understood to requirethat we make ourselvesa prey for others. Yet love or a sense of duty can make us the preyof others. Considera relationshipbetween two human beings forgedout of love or duty which is also instrumentallyvaluableto both par-ties. In order for that relationshipto receive our full moral endorse-ment we must ask whether either party uses the duty or the loveconnectingthem in a way that affects the other party's abilityto real-ize the instrumental aluefrom thatrelationship.To be sure,good mar-riagesand good friendships ought not to be centrallyconcerned withthe question of justice, but they must also be, at the very least, rela-tionships in which love or duty are not manipulated by either partyin order to use anotherparty to her detriment. In Gauthier'swords,our sociality

becomesa sourceof exploitation f it inducespersonsto acquiesce n institutionsand practices hat but for theirfellow-feelingwould be costly to them. Feministthoughthas surelymadethis, perhapsthe core form of exploitation,clearto us.Thus the contractariannsists thata societycould not command the willingalle-gianceof a rationalpersonif, without appealingto her feelings for others, it af-fordedher no expectationof benefit. (11)Of course, love can lead one to willingly give up one's benefits. It canalso lead one to serve others who cannot, for variousreasons, recipro-cate;for example, infants, or the impoverished, or the aged. Gauthi-er's remarkssuggest not that one should never give gifts out of loveorduty without insistingon being paidforthem, but rather hatone'spropensity to give gifts out of love or duty shouldnot becomehe leverthat anotherparty uses to get one to maintain a relationshipto one's cost.


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354 JeanHampton

Perhaps his is mostdeeplytrue withinthefamily.Considera womanwhose devotionto herfamilycauses her to serve them despite the factthat they fail to reciprocate; n this case, they are exploitingher loveandsense of dutywhich cause her to maintainarelationshipwith themand to serve them. Of course infants cannot assume any of her bur-dens; fairness cannot exist between such radicallyunequal persons.(Note thatthis relationship s not unfaireither;the infant does not usethe mother'slove in order to exploit her.) But as childrengrow intothe equality heywilleventuallyattainas adults,it is increasingly larm-ing to see them treatingMom as the maid;unless they areencouragedto benefit her as they become able to do so, they are being allowedto exploit another human being by taking advantageof her love forthem.What this example illustratesis that the traditionalseparationbe-tween love and justice (made, for example, by Marx) s misguided.A matureandfully lovingresponseis alsoa non-exploitative esponse,so that justice is, in a sense, built intolove, and not alien to it. Ourfeelings towards those who are able to reciprocatewhat we give tothem (as opposed to victims of serious diseases, impoverishedpeo-ple, infants)aremorallyacceptable,worthyof praise,and truly lovingfeelings only insofar as they do not involve, on eitherside, the inflic-tion of costs or the confiscation of benefits over a significantperiodof time. Thecosts andbenefits we aretalkingabouthere are not thosethat come from the affection itself- these cannot be distributed,butratherthose which the relationshipitself creates or makes possible.One who would inflictsuch costs on another without compensatinghim for them or who would take such benefits without benefittinghim in turn is failingto respectthat person'svalue as a humanbeing,and thus failingto love him fully. And one who would allowthis ex-ploitation in the name of love or duty is failing to respect his ownvalue and importance.Contractarianismand particularlyGauthier's version of it) allowsone to assess the justiceof relationshipsby allowingone to leave asidethe connections of affectionand duty and ask, from the standpointof each party, 'Is the present distributionof the possible non-affectivecosts and benefits of the relationshipone to which I could agree?'Butsuch reliance on self-concern n the method is not an embarrassment.The insistence that each party to a relationship make such a self-interested appraisalof it can be understood not as the claimthat weare onlyself-interested,nor that we value the relationship merely asinstrumentallyvaluable, but rather that we value ourselves, our in-terests and our projects,and thus demand, no matterwhat the affec-tions orobligations hat bind us, that we not become the 'prey'of otherparties in the pursuit of their projects.


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It is unclear that contractarians such as Gauthier or Rawls have ar-gued for a satisfactory way of pursuing this highly suggestive andmorally useful question; this is one worry that I have tried to raise inthis paper. But I would argue that the appeal which the question makesto our self-interest is valuable even for one who denies Gauthier'sreductionism. It can be a way of insisting that any relationship amongindividuals capable of reciprocity should be at least just, and one inwhich each party has, to quote Gauthier, the 'mastery over self' whichprevents exploitative servitude.23ReceivedNovember,1987 JEAN HAMPTONUniversity of PittsburghPittsburgh, PA 15260U.S.A.

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

Hampton on Gautheir

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