Protecting the Vulnerable : The Fate of the Least Naturally Endowed on David Gauthier's Contractarian Framework.

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Instructies

LOGO

BEELDMERK WOORDMERK

Master of Arts in Philosophy

Master’s Thesis

PROTECTING

THE

VULNERABLE

The Fate of the Least Naturally Endowed on

David Gauthier’s Contractarian Framework

D.G. de Vries

(0544698)

Supervisor dr. G. van Donselaar Second Reader dr. J. Maat July 8, 2013

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We all acknowledge special responsibilities toward our families, friends, clients, compatriots, and so forth. That we should do so is one of our firmest moral intuitions ... We (individually or collectively) have the same sort of strong responsibilities toward all those who are vul-nerable to our actions and choices ... [We] should always strive to protect the vulnerable

(Robert E. Goodin, Protecting the Vulnerable)

The role of the wants of others in practical reasoning is highly com-plex, but the fundamental distinction is simple: I want, so I act; you want, so you act, so I assist you. Thus we avoid both a doctrine of far-sighted selfishness, in which concern for the wants of others is only a means to satisfaction, and a doctrine of complete self-indifference, in which the wants of others are treated identically with those of the agent. There is genuine concern for others, genuine consideration of their wants as reasons for acting, but this concern is for others as others.

(David Gauthier, Practical Reasoning )

Everything of worth is defenceless

(Lucebert, The Very Old One Sings. Translated from Dutch by Diane Butterman. Original title: De zeer oude zingt )

And all that is vulnerable will be violated!

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Chapter 1

Introduction

1.1 Why Contractarianism?

What makes contractarianism appealing as a moral theory? David Gauthier has propagated this inherent appeal in his seminal paper Why Contractarianism? (Gauthier 1991a). In it, he claims to have provided a “contractarian bulwark against the perishing of morality”.1 _{The appeal of contractarianism has since}

been eloquently promulgated by Jan Narveson—who has been deeply influenced by Gauthier’s thought.2 _{He writes:}

Why accept the contractarian view of morals? Because there is no other view that can serve the requirements: namely, of providing reasons to ev-eryone for accepting it, no matter what their personal values or philosophy of life may be, and thus motivating this informal, yet society-wide “in-stitution”. Without resort to any obfuscating intuitions, of “self-evident rights” and the like, the contractarian view offers an intelligible account both of why it is rational to want a morality and of what, broadly speak-ing, the essentials of that morality must consist in: namely, those general rules that are universally advantageous to rational agents. We each need morality, first because we are vulnerable to the depredations of others, and second because we can all benefit from cooperation with others. So we need protection, in the form of the ability to rely on our fellows not to engage in activities harmful to us; and we need to be able to rely on those with whom we deal. We each need this regardless of what else we need or want or value. (Narveson 2001 [1988]: 148.)

Perhaps, then, it is no wonder that Gauthier has named the reconciliation of morality with rationality as the central problem of modern moral philosophy.3

1_{Gauthier 1991a: 30.} 2_{Gordon 1989: 169.} 3_{Gauthier 1974: 3.}

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1.2 The Significance of Natural Endowments

John Rawls’s A Theory of Justice (Rawls 1971) claims to achieve this recon-ciliation for that part of morality which constitutes the realm of justice.4 _But

his solution has met with contractarian opposition. In his Justice and Natural Endowment (Gauthier 1974), Gauthier suggests a basis for the critique of the Rawlsian liberal individualist framework.5

One of the main points of his argument concerns the significance of natu-ral endowments in Rawls’s process of dividing the primary social goods that are classified as economic and social benefits.6 _{Rawls regards these natural}

en-dowments as undeserved, since he deems them contingencies that are morally arbitrary.7 _{As such, he claims that the inequalities which ensue from them call}

for redress.8

However, Gauthier argues that these natural endowments are neither de-served, nor undeserved. They simply do not accord with desert, nor are they contrary to it.9 _{Therefore, nullification of their accidents through}

redistribu-tion goes against any principle to which raredistribu-tional persons concerned to further their own interests would agree, to regulate the distribution of the fruits of their cooperation.10 _{Each will expect an equal share of these cooperative benefits.}

Furthermore, after the “veil of ignorance” has been lifted, and everyone becomes aware of his/her endowments, each will want to receive as many additional goods as possible. No one will consider his agreement rational if his share of these ad-ditional goods is less than that of someone else, unless greater equality could be achieved only by reducing the latter’s share, and not by increasing one’s own.11

Since differences in natural endowments will manifest themselves as differ-ences in the maximum levels of well-being which different persons can attain, the naturally gifted will do better than the deprived, even when the benefits of the latter are maximized. For it is quite possible that in order to maximize the absolute quantity of social goods accruing to the deprived, the gifted must be rewarded with an even greater quantity of these goods. This is because it is the gifted who are primarily responsible for producing the social surplus in the first place.12

Gauthier argues that on Rawls’s framework natural endowments are to be taken as a common asset. This means that the ratio of benefit received to talent

4_{Gauthier 1974: 3.} 5_{Gauthier 1974: 6.} 6_{Gauthier 1974: 13-14.}

7_{Gauthier 1974: 15, 17. See also Rawls 1971: 100-101, 510-511.} 8_{Gauthier 1974: 15. See also Rawls 1971: 100-101.}

9_{Gauthier 1974: 15-16.} 10_{Gauthier 1974: 16.} 11_{Gauthier 1974: 16.} 12_{Gauthier 1974: 18.}

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employed—and effort expended—will decrease, as talent and effort increase. But then the naturally gifted will find their talents and efforts directed primarily to the advantage of the naturally deprived. Clearly, the naturally gifted will see no reason why they should not benefit equally from their own capacities, and will consider any other arrangement “unfavorably discriminatory”13_{with regards to}

their natural endowment. For this reason, they will not consider it rational to agree to principles requiring them to accept a lesser proportionate benefit, simply to increase the overall equality of absolute benefit.14

Through his argument, Gauthier has made clear that natural endowments should not be separated from the structure of society.15 _{But his argument}

also shows that the significance of these endowments is greatest for those who possess most of it. For they stand to lose the most if their advantage is nullified, and therefore are rationally most likely to reject an agreement reached on these terms. However, it is not the naturally endowed that are the focus of this paper. For it would seem that Gauthier’s own attempt at the reconciliation of morality with rationality, which he has since formulated in Morals by Agreement (Gauthier 1986), has rather far-reaching consequences for the least naturally endowed, in particular for the severely disabled. As it has been argued that the adequacy of a theory of justice is measured partly by its success in dealing with justice for the disabled,16 _{we will attempt to bring these consequences}

to the fore, and to evaluate their significance for the viability of Gauthier’s reconciliatory project.

My argument has the following structure.17 _{In chapter 2, we will examine}

Gauthier’s own attempt at reconciling morality with rationality in Morals by Agreement. Here, we will introduce the central features of his contractarian theory, along with its core conceptions. Next, in chapter 3, we examine a critique of one of these conceptions, since we believe that it sheds light on a significant problem with Gauthier’s framework. In chapter 4, we will argue how his framework potentially has far-reaching and unsettling consequences for the least naturally endowed, the severely handicapped in particular. We claim that these consequences go against our most fundamental intuitions about morality, indicating that something is crucially wrong with Gauthier’s theory. These problems have not gone unnoticed, and have since motivated a number of scholars to attempt its rescue. Their proposals are given in chapter 5, and their success in providing such a rescue is subsequently evaluated. Finally, in

13_{Gauthier 1974: 20.} 14_{Gauthier 1974: 19-20.} 15_{Gauthier 1974: 25.} 16_{See Becker 2005: 9.}

17_{This thesis builds upon previous unpublished work by the author, including a paper}

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chapter 6, we conclude that these attempts have failed to provide a solution for the plight of the severely disabled. This leaves us with a profound dilemma that will be briefly discussed at the end of the chapter.

First, however, we need to turn to Gauthier’s own attempt at reconciling morality with rationality. How does he propose to solve the central problem of modern moral philosophy?

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Chapter 2

Morals by Agreement

Morality faces a foundational crisis. Contractarianism offers the only plausible resolution of this crisis.

(David Gauthier, Why Contractarianism? )

As we have seen, Rawls’s solution to the central problem of modern moral phi-losophy proved to be faulty in a number of ways. Gauthier has since taken it upon himself to provide a more satisfactory account. His attempt at reconcil-iation proposes to ground morality in rationality by providing a contractarian moral theory within the framework of rational choice.1

We will, mostly, only provide a summary introduction to Gauthier’s posi-tion, since—to use his own words euphemistically—tracing his own argument “would require an essay in itself”.2 _{We will, therefore, focus on the main}

charac-teristics of his theory and its core conceptions. This means that we will, for the most part, refrain from arguing against Gauthier’s game-theoretical conclusions. Only in the next chapter will we examine such a critique, since we believe that it sheds light on a significant problem with one of Gauthier’s core conceptions. Fortunately, we believe our short but honest account will suffice to point out, in the fourth chapter, how his attempt at reconciliation entails important moral implications for those least naturally endowed in society.

2.1 Morality and Rationality

Gauthier defends the traditional conception of morality as a rational constraint on the pursuit of individual interest. Moral duties are rationally grounded, not in absolute standards, but as agreed constraints. He aims to provide a justificatory

1_{Gauthier 1986: 2, 4.} 2_{Gauthier 1974: 9.}

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framework for moral behaviour and principles, and thus develops a normative theory, making his theory of morals a part of rational choice theory. He argues that rational principles for making choices include some that constrain the actor pursuing his own interest in an impartial way. These rational principles are then identified as moral principles:3

in certain situations involving interaction with others, an individual chooses rationally only in so far as he constrains his pursuit of his own interest or advantage to conform to principles expressing the impartiality char-acteristic of morality. To choose rationally, one must choose morally. ... [Morality] can be generated as a rational constraint from the non-moral premisses of rational choice. (Gauthier 1986: 4.)

Gauthier effectively treats moral principles as a subset of rational principles for choice. He notes that this is a step not taken by Rawls, whose principles of justice are both objects of rational choice and reasonable constraints. What is reasonable in Rawls’s framework is itself a morally substantive matter, beyond the bounds of rational choice. Rawls does not, as Gauthier does, claim to generate morality as a set of rational principles for choice. Thus Gauthier, not Rawls, is “committed to showing why an individual, reasoning from non-moral premisses, would accept the constraints of non-morality on his choices”.4 _This

view therefore differs fundamentally from Harsanyi’s, who holds that there is a rational way of choosing morally but no rational requirement to choose morally.5

The upshot is that Gauthier’s theory must generate constraints on the pur-suit of individual interest that are strictly rational principles for choice, without introducing prior moral assumptions. Since these principles are impartial (as he claims to demonstrate), they satisfy the traditional understanding of moral-ity. The next step is to identify morality with these demonstrated constraints. Gauthier does not doubt that there will be, perhaps significant, differences be-tween the impartial and rational constraints supported by his argument, and conventional moral principles. He does not, however, aim to defend a particular moral code. Rather, his intention is to validate the conception of morality as a set of rational and impartial constraints on the pursuit of individual interest.6

But into which account of rationality should morality be integrated? As we have already seen in his Justice and Natural Endowment, Gauthier endorses the maximizing conception of practical rationality, which assumes a connection be-tween reason and interest. This conception holds that a person acts rationally if and only if she seeks the greatest satisfaction of her own interests or benefit,

3_{Gauthier 1986: 2-3.} 4_{Gauthier 1986: 5.} 5_{Gauthier 1986: 5-6.} 6_{Gauthier 1986: 6.}

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i.e., the maximization of individual utility. This distinguishes it from the uni-versalistic conception of practical rationality, which holds that what makes it rational to satisfy an interest does not depend on whose interest it is. Instead, it is the interests of anyone, held by some person as subject, that provide the basis for rational choice and action. Gauthier endorses the maximizing concep-tion for two reasons. The first is “the virtue of weakness”: any consideraconcep-tion that affords a reason for acting on the maximizing conception also affords it on the the universalistic conception. However, the converse does not hold. This is due to the assumption of impersonality or impartiality of reason that exists within the universalistic conception, by which all persons have in effect the same basis for rational choice, namely the interests of all. According to Gauthier, this assumption needs to be defended. But what he finds of greater importance is that the maximizing conception is almost universally accepted and employed in the social sciences. It lies at the core of economic theory, and is generalized in decision and game theory.7

2.2 Endowment: Person, Contract, and Society

Gauthier states that morals by agreement begin from an initial presumption against morality—taken as a constraint on each person’s pursuit of his own interest. In his theory a person is conceived as

an independent centre of activity, endeavouring to direct his capacities and resources to the fulfilment of his interests. He considers what he can do, but initially draws no distinction between what he may and may not do. (Gauthier 1986: 9.)

The fact that a person initially draws no distinction between what he may and may not do entails that morality is not initially present. It is for this distinction that morals by agreement offer a contractarian rationale, in which moral principles are introduced as the objects of fully voluntary ex ante agree-ment among rational persons. This agreeagree-ment is hypothetical, as it supposes a pre-moral context for the adoption of moral rules and practices. The parties, however, are real, and acknowledge the distinction between what they may and may not do. Moreover, they are rational, and understand the nature of their interaction. Because of this, they recognize a place for mutual constraint, and so for a moral dimension in their affairs.8

According to Gauthier, it is the task of his theory to provide a contractarian rationale for morality related to the introduction of fundamental moral distinc-tions. It turns out that morality emerges quite simply from the application of

7_{Gauthier 1986: 6-8. See also Gauthier 1974: 5.} 8_{Gauthier 1986: 8-9, 86.}

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the maximizing conception of rationality to certain structures of interaction, since agreed mutual constraint is found to be the rational response to these structures. This way, reason overrides the presumption against morality. It is not, however, the introduction of the idea of morality that Gauthier finds diffi-cult. It is the step from hypothetical agreement to actual moral constraint that is problematic for a contractarian theory. Since the principles forming the object of agreement are those that one would have accepted ex ante in bargaining, in a context initially devoid of moral constraint, why should one accept these princi-ples as constraining choices ex post in his actual state? For Gauthier the answer to this question lies, again, in an appeal to rational choice. This makes clear why rational persons would agree ex ante to constraining principles, what gen-eral characteristics these principles must have as objects of rational agreement, and why rational persons would comply ex post with the agreed constraints.9

For Gauthier’s purposes each person may be defined by his utility function and initial factor endowment. Although he does not specify what is meant by the latter term, we believe it is generally interpreted in economics as referring to a person’s physical attributes, mental abilities, knowledge and experience, and personality.10 _{This endowment is defined by the initial distribution of factors. A}

person’s utility function is the measure of his considered preferences. Together, they “fix his preferences and capacities, which alone are relevant to his activity in the market”.11

A person’s natural endowment is in one sense arbitrary, due to the fact that she would have no grounds for complaint if it had been different. However, in another sense it is not at all arbitrary. In the solitary condition in which a person finds herself, her endowment is whatever she can put to use. Hence, it affords “a natural and determinate starting point” for her behaviour.12

When extended into a context of interaction, this conception needs to be modified. For this reason, Gauthier defines a person’s basic endowment as “what she can make use of, and what no one else could make use of in her absence”.13 _{This definition may be extended to account for the move from}

solitude to the market. Here, each person’s basic endowment is “what he can make use of simply in virtue of his presence in a situation, and what no one else can make use of in his absence”.14 The conception of basic endowment thus comprises his physical and mental capacities.15

9_{Gauthier 1986: 9-10.}

10_{http://www.hse.gov.uk/humanfactors/individual.htm. See also Engerman and Sokoloff}

1994, and Tavares 2008. 11_{Gauthier 1986: 86.} 12_{Gauthier 1986: 99.} 13_{Gauthier 1986: 100.} 14_{Gauthier 1986: 100.} 15_{Gauthier 1986: 86, 99-100}

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In section 2.6 it will become clear how these endowments may arise and how they may be rationally grounded.16 However, for present purposes

we need suppose only that each person includes in his conception of himself both his physical and mental capacities, and that this conception ... is not arbitrary. For each then has a sufficient reason to consider interaction with his fellows to be impartial only in so far as it affords him a return equal to the services he contributes through the use of his capacities. (Gauthier 1986: 100.)

Gauthier’s contractarian conception of society combines two Rawlsian ideas, viewing society as “a cooperative venture for mutual advantage” among persons “conceived as not taking an interest in one another’s interests”.17

Contractar-ians suppose that it is in general possible for a society to afford each person greater benefit than she could expect in a non-social “state of nature”. Only such a society could command the willing allegiance of every rational individual. This expectation of net benefit is necessary, without appealing to a person’s feel-ings for others. Gauthier admits that some degree of sociability is characteristic of human beings, but stresses that this may not become a source of exploitation which is costly to them.18

Although affording mutual advantage is a necessary condition for the ac-ceptability of a set of social arrangements as a co-operative venture, it is not a sufficient condition. However, Gauthier supposes that some set affording mutual advantage will also be mutually acceptable. It is up to a contractarian theory to set out conditions for sufficiency, which will become clear during the following sections.19

2.3 Morally Free Zone

The first central conception of Gauthier’s theory concerns a place without con-straints of morality, a “morally free zone” that is the perfectly competitive market. In it, mutual advantage is ensured by the unconstrained activity of each person in pursuit of her own greatest satisfaction. Because of this, reason dictates that there is no place for constraint. Moreover, the market operates im-partially, since each person enjoys the same freedom in her choices and actions that she would have in isolation from her fellows, and since its outcome reflects the exercise of this freedom. Therefore, there is also no place—morally—for constraint. For Gauthier, the market exemplifies an ideal of interaction among

16_{Gauthier 1986: 100.} 17_{Rawls 1971: 4, 13.} 18_{Gauthier 1986: 10-11.} 19_{Gauthier 1986: 11.}

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mutually disinterested persons “who need only follow the dictates of their own individual interests to participate effectively in a venture for mutual advan-tage”.20 _{According to him, both market and morals share the non-coercive}

reconciliation of individual interest with mutual benefit.21

2.4 Minimax Relative Concession

Outside of this morally free zone, mutual benefit may require individual con-straint. The reconciliation of individual interest with mutual benefit is then achieved through rational agreement. As we have seen, a necessary condition of the outcome of this agreement is that it is mutually advantageous. Next, Gauthier addresses the problem of providing sufficient conditions through game theory, specifically the theory of rational bargaining. The problem is split up into two issues. The first is the actual bargaining problem of selecting a specific outcome, given a range of mutually advantageous possibilities, and an initial bargaining position. The second issue is determining this initial bargaining position. Gauthier develops his own theory of bargaining, since treatment of these issues had yet to reach consensus at the time Morals by Agreement was written.22

He notes that solving the bargaining problem yields a principle that governs both the process and the content of rational agreement. Gauthier introduces a measure of each person’s stake in a bargain, i.e., the difference between the least he might accept in place of no agreement, and the most he might receive in place of being excluded by others from agreement. He then argues that the equal ra-tionality of the bargainers means that since each person, as a utility-maximizer, seeks to minimize his concession, no one can expect any other rational person to be willing to make a concession if he would not be willing to make a similar concession himself. This leads to the requirement that the greatest concession, measured as a proportion of the conceder’s stake, should be as small as possi-ble. Formulated as the principle of minimax relative concession (MRC), it is the second central conception of Gauthier’s theory.23

2.5 Constrained Maximization

For society to be a cooperative venture for mutual advantage, its institutions and practices must (nearly) satisfy this principle, as MRC governs the ex ante

20_{Gauthier 1986: 13.} 21_{Gauthier 1986: 13-14.} 22_{Gauthier 1986: 14.} 23_{Gauthier 1986: 14, 144.}

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agreement that underlies a fair and rational cooperative venture. But what about our ex post agreement, when these social arrangements constrain our actual choices? Is it not also rational to ignore these practices should it serve one’s interest to do so? According to Gauthier, it is precisely this inability to show the rationality of compliance that has been the weakness of traditional contractarian theory. To overcome this weakness, he introduces his third central conception, i.e., constrained maximization.24

This conception provides a solution to one of the most famous problems of game theory: the Prisoner’s Dilemma.25 Gauthier describes it as follows:

Fred and Ed have committed (the District Attorney is certain) a serious crime, but some of the evidence necessary to secure a conviction is, un-fortunately, inadmissible in court (the District Attorney curses the law reformers who make her task more difficult). She is, however, holding Fred and Ed, and has been able to prevent them from being in a position to communicate one with the other. She has them booked on a lesser, al-though still serious, charge, and she is confident that she can secure their conviction for it. She then calls, separately, on Fred and Ed, telling each the same tale and making each the same offer. ‘Confess the error of your ways—and the crime you have committed’, she says, ‘and if your former partner does not confess, then I shall convince the jury that you are a reformed man and your ex-partner evil incarnate; the judge will sentence you to a year and him to ten. Do not confess, and if your former partner does, then you may infer your fate. And should neither of you choose to confess, then I shall bring you to trial on this other matter, and you may count on two years.’ ‘But what’, says Fred (or Ed), ‘if we both con-fess?’ ‘Then’, says the District Attorney, ‘I shall let justice take its natural course with you—it’s a serious crime so I should estimate five years’, and without further ado she leaves Ed (or Fred) to solitary reflection.

Both are quite single-mindedly interested in minimizing their time behind bars, and so ... each reasons: ‘If he confesses, then I had better confess—otherwise I’m in for ten years. If he doesn’t confess, then if I confess I’m out in a year. So whatever he does, I should confess. Indeed’ (each being a student of strategic rationality and the theory of games) ‘in this situation there is but one outcome in equilibrium—the product of mutual confession. My course is clear.’

And the District Attorney (also a student of strategic rationality and the theory of games) returns to Fred and Ed on the following day, a smile

24_{Gauthier 1986: 14-15.}

25_{Although Gauthier rightly attributes this game to A. W. Tucker (Gauthier 1986: 79),}

according to Steven Kuhn it was originally devised by Merrill Flood and Melvin Dresher in 1950. The latter were part of the Rand Corporation, and pursued the problem because of possible applications to global nuclear strategy. See: Kuhn, Steven, “Prisoner’s Dilemma”, The Stanford Encyclopedia of Philosophy (Spring 2009 Edition), Edward N. Zalta (ed.), plato.stanford.edu/archives/spr2009/entries/prisoner-dilemma/.

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on her face, to collect the confessions which she knows are forthcoming, and which will put Fred and Ed out of evil paths for five years—whereas, if they had kept their mouths shut (or their pens dry), they would have been back at their favourite occupations in but two years. (Gauthier 1986: 79-80.)

Fred and Ed’s situation can be represented as the following matrix (the actions to the left represent the choices of the agent that is reasoning with himself, and the actions on top represent those of the other agent):

confess do not confess confess 5 years each 1 year for me, 10 for him do not confess 10 years for me, 1 for him 2 years each

A game theoretical analysis of the Prisoner’s Dilemma shows that it has but one Nash equilibrium (at (“I Confess, You Confess”)). Such an equilibrium oc-curs when no player has anything to gain by changing only their own strategy unilaterally. Moreover, the Nash equilibrium action of each player (“Confess”) is the best action for each player not only if the other player chooses her equi-librium action (“Confess”), but also if she chooses her other action (“Do not confess”). This means that the strategy to confess “strictly dominates” the strategy to not confess. The action pair (“I Confess, You Confess”) is a Nash equilibrium since if a player believes that her opponent will choose to confess, then it is the optimal action for her to choose to confess as well. As we have seen, it is optimal for both players to choose to confess regardless of the action they expect their opponent to choose. But that means that they are now ratio-nally stuck in the suboptimal outcome, because it is the only Nash equilibrium of the game and the strictly dominating strategy for both players.26

The Prisoner’s Dilemma, then, constitutes a problem for rational cooper-ation of two players. But it also applies to so-called n-person interactions, i.e., with more than two players. As it turns out, the dynamic of the Prisoner’s Dilemma is identical to that of “Collective Action Problems”, which occur—and subsequently prevent—the realization of public goods (i.e., collectively provided goods).27 _{We will base our account of these problems on the second chapter of}

Russell Hardin’s seminal work, Collective Action (Hardin 1982).

According to Hardin, public goods and the problem of collective action are strongly related, since “the costliness or de facto infeasibility of exclusion from consumption of a collectively provided good usually eliminates any direct

incen-26_{Osborne 2004: 26-27, 45.} 27_{Hardin 1982: 5}

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tive for individual consumers to pay for the good”.28 _{It turns out that individual}

effort to achieve individual interest will make the achievement of these goods impossible. This is due to the fact that if the collective good is not provided, the individual member of society will not receive a benefit that would have exceeded his cost in helping purchase that good for the collective.29

According to Hardin, the logic underlying collective action is the same as that of the Prisoner’s Dilemma:30

Since it is individuals who decide on actions, and since each member of the group sees the game matrix from the vantage of Individual, we can assume that Collective’s strategy will finally be whatever Individual’s strategy is, irrespective of what Collective’s payoffs suggest. The dynamic under which Individual performs is clearly the same as that for the Prisoner’s Dilemma: the strategy of not paying dominates the strategy of paying. For no matter what Collective does, Individual is better off not paying ... It is clear that for Individual, not paying is invariably more lucrative than paying. Likewise, as was pointed out in the discussion of Prisoner’s Dilemma ... [I am] better off defecting no matter what [you do]. (Hardin 1982: 26-27.)

But this means that no public good will ever be realized, since defection is always the only rational thing to do. It is this problem, and its two-person variant, that Gauthier’s principle of constrained maximization aims to solve.31

We will base our account of his argument on Govert den Hartogh’s concise formulation of this principle in his The Rationality of Conditional Cooperation (Den Hartogh 1993).

Den Hartogh contends that Gauthier wants to argue that in the context of the Prisoner’s Dilemma, rational agents—trying to maximize their personal utility—will have reason to subject their decisions to some constraints that resemble moral requirements provided some conditions are met. According to Gauthier, these constrained maximizers will be able to arrive at Pareto-optimal32 outcomes even if these are no equilibria. Due to their constraints, they will all adjust their choice to the choices of the others in such a way that the optimal outcome results. According to Gauthier, this kind of choice consti-tutes a cooperative one.33

Den Hartogh notes that the conditions of constraint are the following:

28_{Hardin 1982: 20.} 29_{Hardin 1982: 25.} 30_{Hardin 1982: 25.}

31_{See Gauthier 1986: Chapter VI.}

32_{A Pareto-optimal outcome is one such that there is no other outcome that makes every}

player at least as well off and at least one player strictly better off, or conversely, when no one could be made better off without making someone else worse off.

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(a) The cooperative surplus (the collective gains made in exchanging the equilibrium for the optimum outcome) are distributed according to one supremely rational bargaining principle.

(b) The distribution of initial endowments (for market and nonmarket interaction) also satisfies a unique criterion of rationality. (Den Hartogh 1993: 406.)

He argues that the constraint to be accepted is the principle of “Conditional Cooperation”. This principle holds that one should be prepared to make the cooperative choice, if and only if he has reason to expect the other player(s) to do the same.34

Next, Gauthier assumes that the players are transparent to each other, i.e., they are all able to recognize with 100% accuracy the intentions of all other players. The reasoning, then, goes as follows.

If I intend to [not confess], you will predict that I will do so, and so, rationally, will choose [not to confess] yourself. If I intend to [confess] unconditionally, you will equally find that you have no reason to refrain from choosing [not to confess]. But if we both intend to [confess], provided we know the other to do so as well, you will perceive my intention, and this perception will cause you to choose [to confess]. And so we will both improve our position. (Den Hartogh 1993: 406.)

Consequently, it is the decision of the other player that determines whether a player ends up with either one of his two most or two least preferred outcomes. Moreover, the transparency assumption35_{entails that once the other player has}

made his decision final, his opponent’s choice not to confess will always provide the latter with the best outcome of the pair provided by the other player.36

However, as Den Hartogh emphasizes,

which of these two pairs you are prepared to offer me may depend on what you perceive me to be prepared to offer you. So by sacrificing possible gains, I may cause you to create for me opportunities for gain which more than compensate the loss. If I want to maximize my utility, I should therefore constrain (and be known to constrain) my maximizing efforts. I should, on utility-maximizing grounds, choose not to make my choice simply on those grounds. I should refrain from choosing the action that maximizes my utility, for such egoism is self-defeating. I should rather choose in the way that maximizes my utility. By following the egoistic

34_{Den Hartogh 1993: 405-406.}

35_{At a later stage of his argument, Gauthier moves from this assumption to one of}

“translu-cency”. Evidence for this assumption has since been provided by recent, and less recent, studies. Notably, Robert H. Frank’s Passions Within Reason (Frank 1988), and Peter Tim-merman’s Thinking About Agreement (Timmerman 2013).

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program I would do worse than by following the program of Conditional Cooperation. (Den Hartogh 1993: 406-407.)

As we have seen, then, Gauthier distinguishes a straightforward maximizer of self-interest satisfaction in the particular choices she makes, from a constrained maximizer. The latter is disposed to comply with mutually advantageous moral constraints, provided she expects similar compliance from others. When inter-acting with one another, these constrained maximizers enjoy opportunities for cooperation that others lack. Although constrained maximizers sometimes lose by being disposed to compliance, as they may act cooperatively in the mistaken expectation of reciprocity from others who instead benefit at their expense, under plausible conditions they nevertheless reap a net advantage from cooper-ation that exceeds the exploitative benefits that others may expect. From this Gauthier concludes that it is rational to be disposed to constrain maximizing behaviour by internalizing moral principles to govern one’s choices. He notes that this way the contractarian is able to show that it is irrational to admit appeals to interest against compliance with those duties founded on mutual advantage.37

2.6 Lockean Proviso

It is important to note, as Gauthier does, that compliance is rationally grounded only within the framework of a fully cooperative venture, in which each partici-pant willingly interacts with her fellows. This links to the second issue addressed in bargaining theory, i.e., the initial bargaining position:

[The] natural distribution affords each person an explicit bargaining en-dowment; it determines what each may bring to the table and thus con-stitutes an initial bargaining position. (Gauthier 1986: 194.)

Gauthier states that if persons are willing to comply with the agreement that determines what each takes from the bargaining table, they must find what each brings to the table initially acceptable. If the latter includes the fruits of prior interaction due to coercion of their fellows, then this initial acceptability will be lacking. This leads Gauthier to constrain the initial bargaining position through a proviso that prohibits bettering one’s position by way of interaction that worsens the position of another. This proviso is the fourth core conception of Gauthier’s theory. It constrains the base from which each person’s stake in agreement, and so her relative concession and benefit, are measured, by assuring that no person is worse off in the initial bargaining position than she would be in

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a non-social context of no interaction. Gauthier stresses that this proviso is not itself a product of rational agreement, but a condition that must be accepted by each person for such agreement to be possible.38

It is inspired by John Locke’s famous proviso, that there be “enough, and as good left ... for others”.39 _{Gauthier interprets the Lockean proviso so that it}

prohibits worsening the situation of another person, except to avoid worsening one’s own through interaction with that person. It prohibits bettering one’s situation through interaction that worsens the situation of another, which, for Gauthier, expresses the underlying idea of not taking advantage.40

According to Gauthier, the proviso forbidding the taking of advantage rep-resents both the weakest constraint rationally acceptable to persons who would avoid costly interaction with others and the strongest constraint rationally ac-ceptable to persons who would be free to benefit themselves. This way the proviso reflects the equal rationality of persons who must constrain their natu-ral interaction in order to enter into mutually beneficial social relationships.41

Adherence to the Lockean proviso introduces a structure of rights into a previously non-moral state of nature by converting the unlimited liberties of Hobbesian nature into exclusive rights and duties. Gauthier stresses that these rights are not the product or outcome of agreement, for then they would have been determined by MRC. This will not do, as Gauthier shows that the emer-gence of either cooperative or market interaction demands an initial definition of the actors in terms of their factor endowments. The proviso determines the initial endowments of interacting persons, taking into account the real differ-ences among those persons as actors. Consequently, rights provide the starting point for—and not the outcome of—agreement. As Gauthier puts it:

They are what each person brings to the bargaining table, not what she takes from it. (Gauthier 1986: 222.)

These individual rights are both morally and rationally provided in the proviso, and turn out to be what Gauthier calls “the familiar ones of our tradition”, i.e., rights to person and to property.42

38_{Gauthier 1986: 15-16.}

39_{Locke 1988 [1689]: Second treatise, chapter V, paragraphs 27 and 33. Gauthier cites}

Robert Nozick as the inventor of the term ‘Lockean proviso’. See: Nozick 1974: 175-182.

40_{Gauthier 1986: 192, 205.} 41_{Gauthier 1986: 227.}

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2.7 Archimedean Point

The fifth core conception of Gauthier’s theory is termed the Archimedean point, “from which an individual can move the moral world”.43 _{Gauthier emphasizes}

that it must be a point of assured impartiality to grant this moral power. He therefore compares it to the position sought by Rawls behind the “veil of ig-norance”. He then relates the choice of a person occupying the Archimedean point to the other core ideas of his theory, and shows that Archimedean choice is properly conceived, not as a limiting case of individual decision under un-certainty, but rather as a limiting case of bargaining. According to Gauthier, the Archimedean point reveals the coherence of morals by agreement, as each of the core conceptions of his theory may be related, directly or indirectly, to Archimedean choice.44

2.8 Strengths

Gauthier attributes two “evident” strengths to his contractarian theory of morals. First, it enables him to demonstrate the rationality of impartial constraints on the pursuit of individual interest to persons who may take no interest in the interests of others. Consequently, morality is given a “sure grounding in a weak and widely accepted conception of practical rationality”.45 Gauthier claims that no alternative account of morality accomplishes this. For those who claim that moral principles are objects of rational choice in special circumstances fail to establish the rationality of actual compliance with these principles. And those who claim to establish the rationality of such compliance appeal to a strong and controversial conception of reason that seems to incorporate prior moral suppo-sitions. According to Gauthier, only his contractarian theory is able to generate morals—as a rational constraint on choice and action—from a non-moral, or morally neutral, base.46

43_{Gauthier 1986: 16.} 44_{Gauthier 1986: 16-17.} 45_{Gauthier 1986: 17.} 46_{Gauthier 1986: 17.}

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Chapter 3

An Important Critique of a

Core Conception

It is not our aim to provide a critique of Gauthier’s core conceptions. Rather, we wish to show that their acceptance leads to a number of problems concerning the severely disabled. However, since Gauthier’s Lockean proviso will turn out to play a determining role, we will outline an important critique of this conception below. This critique is put forward by Gijs van Donselaar in his The Right to Exploit (Van Donselaar 2009).1 _{He offers arguments against two aspects of}

the proviso. The first concerns its requirement of cost internalization through compensation. Ultimately, it is argued, this puts into question the rationality of compliance to the proviso. The second aspect, then, covers Gauthier’s two arguments for this compliance. Van Donselaar argues that the first does in fact not constitute an argument for compliance. The second turns out to beg the question.

3.1 Lockean Proviso: Compensating for Costs

According to Van Donselaar, Gauthier’s theory is underdeveloped on the part of scarcity. He argues that in those cases where the bargainers find themselves in a situation of natural scarcity, both the division of resources and the establishment of individual rights is complicated by the Lockean proviso. This complication is clearest in Gauthier’s discussion of the problem of (negative) externalities.2

This problem occurs when an agent’s activities produce a cost to others. In such cases, according to Gauthier, the agent should first compensate the

1_{Gauthier acknowledges that, in light of this critique, he will have to reconsider the Lockean}

Proviso. See Ethics No. 4, July 2013 (Forthcoming).

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other for the cost that he has imposed on him. After that, both can proceed to cooperate and share the benefits according to the principle of minimax relative concession (MRC). Gauthier gives the example of fisher folk living alongside a river.3 Van Donselaar recaptures it as follows:4

You live upstream, I live downstream. For some reason, it is profitable for me to buy some of your fish in addition to my own catch, and, as it happens, it is profitable for you to sell some. So there is a possibility of mutually beneficial trade between us. However, you dispose of the waste you produce by throwing it into the river; thus you pollute the part of the stream that I depend on so that I can catch fewer fish myself than I would have caught if you had not existed (or had lived somewhere else).And thus you also increase my demand for your fish, since that demand is dependent on what I can catch myself, so that you have changed the terms of trade between us to your own advantage. ... [The] natural distribution, in the absence of the prospect of cooperation, is the one permitting you to continue to pollute the downstream area. But if we cooperatively trade from that position and share the benefit according to MRC, then we will be trading from an initial bargaining position that is worse for me than it would have been in your absence. My gain in trading with you, though it may be some improvement compared to your absence, will not be an MRC-improvement compared to my position in your absence. Hence, the proviso is violated although the condition for the rationality of complying with it is satisfied. And hence you, the proviso violator, are required to compensate me for the pollution you produce. And you will comply with that requirement if you are rational. (Van Donselaar 2009: 32.)

According to Gauthier, interaction can only be fully cooperative when it pro-ceeds from an initial position in which costs are internalized, and so in which no person has the right to impose uncompensated costs on another.5

However, Van Donselaar does not agree with this conclusion. For it is clear that the proposed internalization of costs does in fact make those who pay the compensation worse off, since it forces them to bargain from a considerably worse position than that in which they would have been if the other would not have been present. Consequently, following Gauthier’s proviso would in this case switch the full weight of the burden of natural scarcity from “down-streamers” to “up“down-streamers”. For it will have become relatively cheap to live downstream, whereas the life upstream has now become relatively expensive. But then, as Van Donselaar rightly questions, who has the right to live where, on the proviso?6

3_{Gauthier 1986: 223ff.} 4_{Van Donselaar 2009: 32.} 5_{Gauthier 1986: 225.} 6_{Van Donselaar 2009: 33.}

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Evidently, the cost-internalization requirement cannot be consistent with the requirement to proceed from an initial position allowing each a utility as high as one could have expected in the absence of the other. For it to be consistent, the fisher folk would have to proceed from the proviso point. But, as Van Donselaar shows, this is impossible. Due to scarcity, cooperation cannot improve the natural distribution to such an extent that either would be as well off as, or better off than she would have been without the other, in solitary existence. Because of this, the proviso point is situated outside the outcome space of the interaction:7

There is no way that we can both use the river in such a way that both of us are equally well off as we would have been in the absence of the other. The river, as a provider of fish and as a waste dump, is scarce between us, and that fact cannot be altered because there exists a possibility of mutually advantageous trade between us. (Van Donselaar 2009: 34.)

According to Van Donselaar, this leaves us with a a persistent problem of externalities. On the one hand, Gauthier’s requirement to fully internalize costs is not consistent with the Lockean proviso. But on the other hand, there is no other way of distributing endowments such that the proviso is satisfied prior to negotiations between the bargainers. This, he claims, leads to another important issue. In cases like these, where the opportunities for use provided by natural resources are seriously restricted, it is not possible to distribute individual property or use rights to these resources without referring to the bargaining power that such rights would allow those who bear them. Because of the scarcity of resources, it is impossible to either define, distribute, or justify these individual rights, without allowing for the effect that such rights will have on the actual final outcome of cooperative or market processes. By following Gauthier’s theory, this outcome would be the result of the application of the principle of MRC to a proviso point that does not actually exist. In that case, Van Donselaar emphasizes, the resulting distribution of rights will have allowed some too much bargaining power, and others too little.8

This leads him to an important implication of Gauthier’s theory, which he believes the latter has (perhaps) not fully appreciated himself. It is that initial rights over external assets can only be defined while taking into account an evaluation of the justice of economic outcomes that makes use of the proviso. Crucially, this entails that the justice of economic outcomes determines the justice of individual rights, and not the other way around.9

7_{Van Donselaar 2009: 29, 34} 8_{Van Donselaar 2009: 34-35.} 9_{Van Donselaar 2009: 36.}

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3.2 Two Failed Arguments for Compliance

Why, then, should it be rational to comply with the Lockean proviso? Gauthier provides two arguments for this compliance. Neither of them, however, is able to convince Van Donselaar.

3.2.1 The No-Invitation Argument

In his The Limits of Liberty (Buchanan 1975), James Buchanan argues that rationally acceptable cooperative outcomes must reflect an underlying natural distribution.10 _{Gauthier, however, has criticized this view, claiming that it is}

irrational for an individual to be disposed to comply with agreements in a way that invites others to manipulate the initial bargaining point in anticipation of such agreement:

[Clearly] an individual would be irrational if she were to dispose herself to comply, voluntarily, with an agreement reached in this way. Someone disposed to comply with agreements that left untouched the fruits of pre-dation would simply invite others to engage in predatory and coercive activities as a prelude to bargaining. She would permit the successful predators to reap where they had ceased to sow, to continue to profit from the effects of natural predation after entering into agreements free-ing them from the need to invest in further predatory effort. (Gauthier 1986: 195.)

This, then, is what Van Donselaar calls the “no-invitation argument”, the first of Gauthier’s arguments for rationally insisting on compliance with the proviso.11

As it stands, this argument only shows the rationality of insisting that others—the successful predators—should comply. It is not, however, an ar-gument for the successful predators to comply. To make this step possible, Gauthier has argued for the compatibility of rationality. This states that if it cannot be rational for one agent to accept a certain bargaining outcome, then neither can it be rational for the other. Such shared rationality will always determine an outcome to agree on. Because of this, agreements reached from the natural distribution cannot be rationally acceptable for those who are the victimizers in the natural distribution, since these agreements would clearly not be rationally acceptable for those who are victimized.12

As such, the no-invitation argument may seem plausible, but, as Van Don-selaar continues, its plausibility is irrelevant. For it fails to exclude what it

10_{Buchanan 1975: 32, 34, 106.} 11_{Van Donselaar 2009: 42.} 12_{Van Donselaar 2009: 42-43.}

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explicitly intends to exclude, i.e., the natural distribution as an initial bargain-ing position. This is due to the fact that it depends on the assumption that the natural distribution comes about as the result of a struggle for bargaining power. But this, Van Donselaar emphasizes, is not true. He argues that it is sim-ply impossible for the natural distribution to reflect the agent’s anticipation of bargaining results, since this non-cooperative equilibrium as such cannot reflect people’s strategic considerations in bargaining. The natural distribution only re-flects what one rationally chooses in the absence of cooperation. Consequently, Gauthier’s no-invitation argument cannot exclude the natural distribution as a suitable initial bargaining position. But what is more, it certainly does not pin down the proviso point as the rationally acceptable initial bargaining point. The no-invitation argument, then, may provide an argument against coercion, but it does not constitute an argument for the rationality of compliance with the Lockean proviso:13

[Gauthier] has given an argument not to submit to people who, by coer-cive or other methods, seek to establish their own greater bargaining (or market) power, in the expectation of a greater advantage from a subse-quent deal. But people who play their non-cooperative equilibrium strat-egy prior to negotiation and agreement are just not doing that. (Van Donselaar 2009: 46.)

3.2.2 Narrow Compliance: Equal Concessions

So, the first argument fails. Gauthier’s second argument for compliance turns on the conception that rational cooperation should be mutually beneficial propor-tionate to contribution. As we have seen in the previous chapter, the principle of MRC requires that contributions to the cooperative effort should relate to the benefits obtained in the same way for each person. This is based on the assumption that no rational bargainer can be expected to make a larger con-cession than another makes. According to Van Donselaar, this means that the principle defines how contributions and benefits ought to relate to each other with respect to a point from which we can measure each bargainer’s benefit and contribution. Thus, this rationally acceptable initial bargaining point defines the benefits, contribution, and concessions that are made in bargaining. The position of the point itself, however, may be anywhere, since it needs to be de-termined separately. The principle of MRC does not provide any information on its location, it only conveys how rational bargainers should proceed relative to it. Thus, Van Donselaar states, Gauthier’s argument for minimax relative concession has put the position of the initial bargaining point “between

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ets”. On Gauthier’s theory, the determination of the initial bargaining point is a matter of the “external rationality of bargaining”. But when this point has been established it is a matter of the “internal rationality” of bargaining to determine a Pareto optimal outcome.14

According to Gauthier, rational cooperators are disposed to “narrow com-pliance”, rather than “broad compliance”. This means that they will comply only with the principle of MRC, given the rational acceptability of the initial bargaining position. Cooperators that are broadly compliant are eager to coop-erate on any terms as long as their position is somewhat improved compared to the initial bargaining point. However, Gauthier claims that this kind of com-pliance cannot be rational, for if it would be rational to be disposed to make larger concessions in bargaining than others, then it would also be rational for those others to dispose themselves to being less than broadly compliant. And the latter is excluded by Gauthier’s assumption that all bargainers are equally rational:15

“[S]ince no person chooses to constrain his behavior for its own sake, no person finds it rational to be more compliant than his fellows. Equal rationality demands equal compliance. Since broad compliance is not rational for everyone, it is not rational for anyone” (Gauthier 1986: 178ff., 226). (Van Donselaar 2009: 47.)

In his second attempt to provide an argument for compliance, Gauthier again uses the example of the fisher folk. As we have seen, one of them is polluting the waters of the other, prior to a mutually advantageous trade between them. Gauthier lets us suppose that the polluter refuses to comply with the proviso. Instead, he continues to contaminate the river, even though his compliance to the proviso would be compatible with mutual advantage compared to the natural distribution. In that case, Gauthier stresses, it is impossible to defend this particular interaction by relating it to a practice that satisfies MRC. For this reason, it is in violation of the requirement of mutual benefit proportionate to contribution, and this requirement is fundamental to rational cooperation.16

Van Donselaar warns us that this move contains an obvious fallacy:

if we bargain from the natural distribution, then, Gauthier says, MRC will be violated. Benefits will not relate to contributions for each in the same way. Those who are victimized by the natural distribution get disproportionate benefits from cooperation. But how can he say that? “Benefits” and “contributions” were to be measured relative to a yet-to-be-determined (rationally acceptable) initial bargaining point, and now

14_{Van Donselaar 2009: 47.} 15_{Van Donselaar 2009: 47.}

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these very concepts of benefit and contribution are used to determine the initial bargaining point itself. If we measure benefits and contributions relative to point x (say the natural distribution) and proceed to share them MRC-wise, then MRC will be violated. Surely this is no good. The principle of minimax relative concession leaves us helpless if we do not already have a fixed point relative to which we can define benefits and contributions. We cannot first put the initial bargaining point between brackets in order to define a rational method of proceeding, and then, miraculously, use the rational method of proceeding as a device in deter-mining from where to proceed. (Van Donselaar 2009: 48.)

Gauthier, then, conflates the external rationality and the internal rationality of bargaining. As we have seen, he claims that compliance with the Lockean proviso entails being narrowly compliant, since it is rational not to make larger concessions than others. But, as Van Donselaar argues,

the notion of narrow compliance itself, and of broad compliance too, makes no sense at all, if we do not already have an established point from which to measure how compliant the bargainers are in making concessions to each other. One is narrowly compliant if one accepts no less than MRC-proportionate divisions of benefits and contributions, and if one does not allow others the lion’s share of the fruits of cooperation. Only MRC-proportionate divisions of the cooperative surplus are compatible with the assumption of mutual rationality. But the notion of narrow compli-ance cannot all by itself imply that benefits should be defined as benefits relative to the proviso point. Narrowly compliant persons would still not know what to do unless they were provided with an independently estab-lished, that is: independently argued for, initial bargaining point. (Van Donselaar 2009: 49.)

According to Van Donselaar, this means that even if it were true that it is rational to be narrowly compliant, Gauthier has failed to establish that narrow compliance involves compliance with the proviso.17

Taking stock, this failure means that none of Gauthier’s arguments have been able to show that compliance to the proviso is indeed rational. This con-stitutes a serious problem for his framework, as the Lockean proviso plays such a crucial role in his attempt to ground morality in rationality. If Gauthier, or other scholars for that matter, will prove to be unable to provide a sufficient response to Van Donselaar’s critique, then the consequences of his theory for the least naturally endowed will have to be re-evaluated in light of it. But since such a sufficient response may yet be given, we will proceed to examine these consequences in the next chapter.

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Chapter 4

The Fate of the Least

Naturally Endowed

Gauthier’s contractarian framework has far-reaching consequences, in partic-ular for children, animals, and the severely handicapped.1 _{We will focus our}

attention on the latter, since they are arguably the least naturally endowed. Moreover, it is this group that is—as we will argue—left in a particularly tragic position due to his theory.

4.1 Mutual Advantage

The first aspect influencing the fate of the least naturally endowed lies in a self-confessed weakness of Gauthier’s framework. For it does not assume a fun-damental concern for impartiality, but only one derivative from the benefits of agreement. In turn, these benefits are determined by the effects that each person can have on the interests of her fellows. On his theory, only persons whose physical and mental capacities are either roughly equal or mutually com-plementary can expect to find cooperation beneficial to all. He stresses that among unequals one party may benefit most by coercing the other, and on his theory they would have no reason to desist. For on Gauthier’s framework the condemnation of coercive relationships can only appeal to a rationally grounded morality within the context of mutual benefit.2

This brings us to a second aspect of his theory (and yet another self-confessed weakness). Gauthier’s framework explicitly denies any place to rational constraint— and so to morality—outside the context of mutual advantage. As we have just

1_{Vallentyne 1991a: 4. See also Vallentyne 1991: 14.} 2_{Gauthier 1986: 17.}

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seen, he claims that outside of this context coercion and exploitation await. Because of this, Gauthier also explicitly denies the rationality of strictly redis-tributive duties, as they only transfer but do not increase benefits. The same holds for duties that do not assume reciprocity from other persons. According to him, both kinds of duties would be neither rationally based, nor supported by considerations of impartiality.3

His contractarian focus on mutual benefit is further reflected in his concep-tion of society, which, as we have seen, he views as a cooperative venture for mutual advantage.4 He holds that

Affording mutual advantage is a necessary condition for the acceptability of a set of social arrangements as a cooperative venture. (Gauthier 1986: 11.)

Another important consequence of Gauthier’s denial of both rational con-straint and morality outside the context of mutual benefit is based around the Lockean proviso. This proviso only has force in a cooperative venture for mu-tual advantage, requiring a sphere of interaction of potential partners in social relationships. As we have seen, compliance as ex post agreement is also only rationally grounded under the same conditions.5 _{But this means that no one}

is rationally—or morally—obligated to uphold the Lockean proviso when inter-acting with the severely disabled. The latter have simply never left the state of nature. This has extreme ramifications. Now that the minimal contractarian protection of the proviso is lifted, nothing can restrain the naturally endowed from engaging in disturbing and unsettling activities. Should they be so in-clined, they may use the severely disabled as veritable supermarkets for organs, or play dodgeball with their heads, or even literally throw them to the wolves as a source of entertainment.6

4.2 Individual Rights

But surely this would result in an infringement of their rights? Unfortunately, Gauthier’s theory identifies individual rights with factor endowments, and it is exactly these endowments that the severely handicapped lack. Since rights provide the starting point for—rather than the outcome of—agreement, the least naturally endowed end up devoid of rights. After all, rights “are what each person brings to the bargaining table, not what she takes from it”,7 _and

they bring nothing to the table.

3_{Gauthier 1986: 10, 16-17.}

4_{Gauthier 1986: 10. See also section 2.2.} 5_{See sections 2.5 and 2.6.}

6_{Gauthier 1986: 15-16, 213-214.} 7_{Gauthier 1986: 222.}

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As Peter Vallentyne explains, since parties are fully informed about their capacities and situations on Gauthier’s framework, this allows the parties with more advantageous capacities and positions to bargain for a greater share of the benefits. Owing to the fact that rationality requires all available information to be used, this leads to weaker bargaining positions for the weak. Moreover, it would therefore actually be unreasonable for the weak to expect the same benefits as the strong.8 The fact that, following Gauthier, these individual rights are both morally and rationally provided in the proviso will not help the situation. For we have just seen that his proviso cannot protect the severely disabled.9

Neither can an appeal to natural rights alter their predicament, as Gauthier explicitly denies the basis for rights in nature. He claims that rights do not afford each individual an inherent moral status in relation to her fellows. They have no place in a pure state of nature, in which persons interact non-cooperatively and with no prospect of cooperation. In Gauthier’s framework, it is only the prospect of mutual advantage which brings rights into play, as constraints on each person’s behaviour.10 _{As Gauthier puts it:}

It is that prospect which enables rights to coexist with the assumption of mutual unconcern. The moral claims that each of us makes on others, and that are expressed in our rights, depend, neither on our affections for each other, nor on our rational or purposive capacities, as if these commanded inherent respect, but on our actual or potential partnership in activities that bring mutual benefit. (Gauthier 1986: 222.)

4.3 Mutual Unconcern

Vallentyne has argued that in Gauthier’s theory, the protection of those too weak to offer benefits to others is included in the scope of morality only to the extent that those party to the agreement care about them.11 _{But, as we}

have seen, Gauthier (like Rawls) counterfactually assumes that the parties to the agreement are mutually unconcerned, which means that they do not care how others fare.12 Consequently, the protection through care cannot play a part on Gauthier’s framework. He, too, sees this as problem,13_{and has tried to}

formulate a contractarian treatment of health care issues in his Unequal Need: A Problem of Equity in Access to Health Care (Gauthier 1983). There his

8_{Vallentyne 1991a: 4-5.} 9_{Gauthier 1986: 222.} 10_{Gauthier 1986: 222.} 11_{Vallentyne 1991a: 4.} 12_{Vallentyne 1991a: 5.} 13_{Gauthier 1986: 18 (note 30).}

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conclusion is as follows:

[Fair] access to medical care is neither equal access nor market access. Fair access is comprehensive access within the limits set by considerations of cost-effectiveness ... Fair access ... is directed primarily at enabling persons to live normal life spans under conditions that enable them to form and pursue reasonable life plans reflecting their talents, aptitudes, and interests. Remedying certain severe defects, however, even if not be-yond our technical capacity, may require an excessive and unfair drain on limited resources. Efforts to extend life, however desirable in themselves, may also involve such an excessive drain ... The claim of health care needs is the claim that a reasonable and impartial individual, fairly situated in his or her access to resources, would choose to recognize.” (Gauthier 1983: 205, my emphasis.)

However, in Morals by Agreement his position is clear: the severely handi-capped are “not party to the moral relationships grounded by a contractarian theory”.14 _{They simply do not offer any benefit to their non-disabled others}

be-yond what the latter can obtain unilaterally.15 _{They only decrease the average}

level of well-being.16

4.4 Moral Intuitions

In his attempt to reconcile morality and rationality, Gauthier has evidently cre-ated a framework which leads to counterintuitive conclusions about the position of the least naturally endowed in his contractarian society.17 _{They are not party}

to contractarian moral relationships, nor are they part of society. They do not enjoy the minimal protection of the Lockean proviso, and are left without any rights. As we have seen, this can have gruesome consequences. Surely, pro-tecting the vulnerable is one of our most fundamental moral intuitions? Is not our treatment of the weakest members the measure by which we judge a soci-ety?18 _{Evidently, Gauthier’s set of morality does not encompass all of our most}

important moral intuitions.

In his critique of Rawls’s ideological framework (Gauthier 1974), Gauthier explicitly acknowledged the value of beginning an attempt at reconciliation with our intuitive conceptions of rationality and morality.19 _{These intuitions should}

14_{Gauthier 1986: 18.} 15_{Vallentyne 1991a: 4.} 16_{Gauthier 1986: 18.}

17_{See, for instance, Goodin 1985: xi, elaborated in the first chapter of this book.}

18_{See our quote of Cardinal Mahony at the beginning of this paper. A similar remark has}

been attributed to Pope John Paul II.

Protecting the Vulnerable : The Fate of the Least Naturally Endowed on David Gauthier's Contractarian Framework.

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Master of Arts in Philosophy

Master’s Thesis

PROTECTING

THE

VULNERABLE

The Fate of the Least Naturally Endowed on

David Gauthier’s Contractarian Framework

D.G. de Vries

(0544698)

Contents

Chapter 1

Introduction

1.1

Why Contractarianism?

1.2

The Significance of Natural Endowments

Chapter 2

Morals by Agreement

2.1

Morality and Rationality

2.2

Endowment: Person, Contract, and Society

2.3

Morally Free Zone

2.4

Minimax Relative Concession

2.5

Constrained Maximization

2.6

Lockean Proviso

2.7

Archimedean Point

2.8

Strengths

Chapter 3

An Important Critique of a

Core Conception

3.1

Lockean Proviso: Compensating for Costs

3.2

Two Failed Arguments for Compliance

3.2.1

The No-Invitation Argument

3.2.2

Narrow Compliance: Equal Concessions

Chapter 4

The Fate of the Least

Naturally Endowed

4.1

Mutual Advantage

4.2

Individual Rights

4.3

Mutual Unconcern

4.4

Moral Intuitions