By Jan Narveson

Paper delivered at the Conference on Value Inquiry, April, 1999

1. The Basic Thesis of Morals by Agreement

In 1974 David Gauthier organized a Workshop on Contractarian Theory in Toronto, which I had the good fortune to attend. From that stemmed one of the relatively few cases I know of in which a philosopher actually was moved to change his mind on a major question as the result of an argument. Gauthier’s ‘Reason and Maximization’ made me realize that I was, basically, wrong, and he was, basically, right, about the foundations of morals. If morals are to be rational, they’re going to have to be, in effect, the terms of a rational agreement among us all, and that agreement is propelled by our several interests and powers viewed as such, rather than as mere components of some grand social interest. Moreover, there is no way that the terms of that agreement will be utilitarian, as I had up until then been inclined to suppose. In consequence, I before too long – it took about two years to complete, as I recall – ceased my allegiance to the utilitarian view, and my conceptual life became more complicated – though, I think, improved.

But what, then, are the terms of the grand social agreement? In his subsequent book Morals by Agreement Gauthier spells out the basic components of morals in three phases, designated by the now famous abbreviations CM, MRC, and LP [1]:

(1) CM, or Constrained Maximization, is his proposed response to the Compliance Problem, and holds that the rational person, in a Prisoner’s Dilemma situation, is to cooperate with anyone willing to cooperate, defecting only against defectors.[2]

(2) MRC, or Maximin Relative Concession is Gauthier’s proposal concerning the bargaining game, and holds that the proper distribution of gains from cooperation gives each person who is party to that cooperative undertaking what requires the least concession for each, between the minimum and maximum it would be possible for him to claim – normally, an equal relative concession.[3]

(3) Finally, there is LP, the Lockean Proviso, which calls upon us to refrain from pursuing our own utility by imposing disutility on our interactees, relative to the baseline of noninteraction, except when this is necessary in order to avoid an even greater disutility being imposed on ourselves.[4]

2. Gauthier’s Lockean Proviso and Libertarianism

The Lockean Proviso has a strikingly libertarian ring to it. It ‘converts the unlimited liberties of Hobbesian nature into exclusive rights and duties;’ and it ‘affords each person exclusive right to the use of his body and its powers, his physical and mental capacities.'[5] Moreover, it provides, as libertarians insist, the basis for private property. If others take what I have produced, they owe me compensation. How much? According to Gauthier, if they pay me the equivalent of ‘what I expected from my labor in the absence of intervention, then my situation has not been worsened.'[6] Nonworsening is the basic constraint – just what the libertarian asserts.

The Proviso also leads to the robust, market-oriented conception of private property advocated by the libertarian. For when we interact, it is possible for me to impose uncompensated costs on you even when you would otherwise have been fully compensated, or your initial right not violated in the first place. This happens if I do what imposes a disadvantage on you that is relevant to the further gains we seek from our separate but interacting activities. His favored example concerns pollution imposed on what has become your source of income from commercial exchange with third parties, bettering the terms of trade for me by worsening them for you. The general principle, then, is that ‘all of the costs of one person’s activities that fall on others within the sphere of interaction are displaced costs, requiring compensation if the proviso is not to be violated.'[7]
It would be difficult to improve on this as a general statement of libertarian principles. Gauthier, it would appear, is a libertarian. Yet he claims not to be. The question is, why? And are his reasons for demurring valid? That forms the subject of this essay.

3. What does Libertarianism Require?

It is possible, and for that matter familiar, to attribute to libertarians a stronger view than that sketched in Gauthier’s exposition of LP. In particular, many and no doubt most libertarians have asserted not only the substance of the preceding, but also a theory about its basis that goes beyond what Gauthier will grant. In their view, each person has ‘an inherent moral status in relation to her fellows’, as Gauthier puts it. The trouble is, though, that ‘In a pure state of nature, in which persons interact non-co-operatively and with no prospect of co-operation, they [that is, the moral claims delineated above] have no place.'[8] But then, why would or should a libertarian have to make the further claim that the rights he asserts also hold in a non-cooperative situation? After all, libertarianism, like any political and moral theory, is a theory about man in the social condition. True, it proclaims the superiority of that state to the nonsocial state. Yet the basis of that claim is merely the advantages of the social state, for each individual, as compared with what can be expected in a nonsocial one. And those advantages are precisely due to the distinctive practical profile of the agent’s moral outlook in the social state. It is the practical reasoning of individuals in the state of nature that makes that state such an undesirable condition.

It is, to be sure, exceedingly unclear what it is to be in such a situation as the ‘state of nature’ unless it is what results when some party insists on disregarding the LP restrictions. Or perhaps it has never occurred to them that there are or should be any such restrictions. If that should be the case, however, Gauthier’s principle of Constrained Maximization clearly allows us to defend ourselves against such parties, and in this, of course, the libertarian fully concurs – the libertarian is no pacifist. He insists on his rights, and if he does not get them, he proceeds, in accordance with Hobbes’s maxim, ‘by all means to defend himself’.[9] In conditions in advance of the “state of nature,” of course, the sweeping reference to “all” means may be appropriately modified.
But it remains that it would seem to be irrelevant whether, as many libertarians think, the principle of liberty has an a priori basis unrelated to our interests. Its practical substance and effect is the same in either case, and is what defines a view as libertarian.
Beyond this substantial point, on which there is full agreement, it would seem that the rest is pure metaphysics. But why impute metaphysics to libertarianism, which after all is asserted as a political and moral principle? I suggest that the ringing assertion of natural rights, so familiar in the writings of libertarians, and the assumption of those rights without further argument or analysis, is due to the fact that libertarians have intuitively discerned this plausible principle, but, not being game theorists or philosophers, have simply not addressed themselves to the important philosophical question of its foundations.

To be sure, they may also have misread it altogether. For example, some may become vegetarians, attributing the LP status to animals as well as their fellow humans. Many are adherents of conservative views on abortion, attributing LP status to human organisms not yet capable of cognitive functioning, let alone any of the other capabilities normally associated with persons who value their liberty. But Gauthier’s view accounts for the typical substantive morals of libertarians, for relatively few of them are in fact vegetarians, and a considerable number are liberals concerning abortion. Those libertarians, at any rate, cannot suppose that the right to liberty is inherent in all beings that are capable of having liberty ascribed to them. Instead they ascribe it, as their slogans normally do, to all rational beings whose level of practical power is at the typical adult human level, cognitively and otherwise. Turkeys, tigers, and fetuses do not qualify at this theoretical level.

4. Nozick: Foundationless Libertarianism

In that same year, 1974, that I was persuaded about the rightness of Gauthier’s foundational work, I had occasion to read the newly-released Anarchy, State and Utopia by Robert Nozick, a work that came to define the libertarian view for the academic philosophical world thereafter.[10] While impressed by much about Nozick’s work, I was also impressed by the paucity of foundations in his treatment. Apart from brilliant examples, metaphors, and applications here and there, Nozick did not advance the theory significantly beyond Locke. He doesn’t appeal to theology, indeed, and that is an improvement in itself, if Locke’s ostensible reliance on theology were genuine – though it is not. Still, the point is that Nozick doesn’t put anything in its place either. Apart from a vague and, as we I think it fair to say, pious appeal to unexplicated ‘reason,’ there simply is no fundamental account of why we should think that it is the principle of liberty, rather than some other, that rational social persons should accept.[11]

In this situation, I took what I thought, and still think, the obvious tack: marry the very strong foundational work of Gauthier to the appealing substantive output of Nozick, yielding Contractarian Libertarianism. Such was the position proposed and elaborated in my own book-length exposition, The Libertarian Idea.[12]

5. Liberty and the Social Contract

If we seek a social contract type of foundation for moral and political theory, one assumption is crucial: that the relevant capacities for destruction, imposition, and in general creating costs for each other in society are roughly, and basically, similar, ‘equal,’ among us humans. If A can threaten B with something truly incomparable to what B can threaten A with, then B is in trouble. Or to put it another way, B is going to have to accept an inferior position, and a principle of liberty for B is not going to go through. But the Hobbesian retort to this is very strong: whatever else A can do to B, B has the physical strength and cognitive capacity to kill A – and vice versa, of course; and after that, who cares? Death is the great equalizer. The suboptimality of the “natural state” is a fact of life. The Lockean Proviso proposes terms for a rational exit from the evils of the unmoralized natural condition of man. Libertarians say that it is the rational exit.

I argue here that it seems plausible to attribute the same thesis to Gauthier. Constrained Maximization plus general facts about the human condition yield the Lockean Proviso as the best, most general choice of a universal fundamental principle of morals for social living.

6. Distributive Justice

We must, of course, recognize that the other powers of man are by no means equal. That is why the Lockean proviso says nothing about the proportions in which we are to exchange goods and services. All such matters are left that to the parties concerned, to negotiate as best they can. All that the libertarian principle requires is that nobody actually suffer an outright loss from any permitted exchange, for all such exchanges are voluntary, and we suppose, as Hobbes says, that ‘of the voluntary acts of any man, the object is some good to himself’ – a thesis which need not be taken in a sense requiring commitment to any narrowly egoistic construal of our basic interests, as both Hobbes and, especially, Gauthier are well aware. It would hardly be possible to underestimate the damage that has been done to social theory by misunderstandings – most of them willful, I suspect – on this point. A better way to put the point is that the individual will act so as to realize what he sees to be gains; whether the immediate gains in question accrue to someone else or to himself is irrelevant; what matters is that it is he who sees them to be gains, and that he does so in a sense that motivates him to act.

We would always rather come out farther ahead than less far ahead, of course. This, then, is where a principle like Minimax Relative Concession comes into play. Exchange contexts are identified by the desire of each for maximum gain relative to the status quo. But there is a fundamental question about the status of Minimax Relative Concession itself, or any other principle one might want to invoke on that subject: what is its relation to LP? LP provides for enforcement. If someone threatens me with harm, I am permitted to threaten him; but not otherwise (we set aside the case, terribly important in the real world but of no special interest here, that A might be helping B to defend B’s Proviso-based rights. This being so, is there any room to make an exception for MRC, and say that not only do we get to defend our Proviso status, but also to use threats and force of arms to get ‘our share’ – even though that share has not been agreed on? My answer to this is in the negative. I argue in what follows that Gauthier is going to have to see it that way too.

7. Enforceability

The immediate question is this: does LP not only provide for punishment, but provide uniquely for it? That is, is violation of LP not only a sufficient condition for justifiable rectification, coercively exacted if need be, but actually a necessary condition as well? To be sure, we may decide to forgive, or that the cost of pursuing punishment is too high; what is in question is our right to make that decision.

That is where the libertarian differs from all others. Other theorists allow coercion in some contexts where the person coerced makes no evident gain from the result. But the libertarian forbids coercion in all cases except defense, which means all cases in which LP is respected; in other words, for the libertarian, LP specifies a necessary as well as a sufficient condition for justified coercion.

In a very helpful new treatment, Gauthier tells us that the Lockean Proviso says, ‘Don’t better by worsening. Do not make yourself better off than you would have been in someone else’s absence, by making that person worse off than he would have been in your absence.'[13] This uses the words ‘better’ and ‘worse,’ and rightly so. But Gauthier’s theories all fall within the liberal arena in ethics. When x is better for A, it is because x does more by A’s preferences, A’s criteria of what is better. There is no room for an external criterion of assessment here. The relevant values are the ones our agents act on, not somebody else’s, and certainly not nobody’s, conceived to be ‘absolute’ values independent of the valuations of any agents at all.

The title of Gauthier’s justly-famed book, Morals by Agreement. is the right one. The book is about moral theory. It is not, on the other hand, about ethical theory, understanding that term as it applies to Aristotle’s Nichomachean Ethics, as being concerned with the general direction of life. Gauthier is not attempting to set forth a theory of the good life, as such, but only a theory about the right norms for interaction among rational persons. LP is such a norm. It is a basic moral principle – ‘not intended to be the last word on morality, but only the first.'[14] But it is intended to be the last word on justice.

8. The State-of Nature Baseline

That seems to me to be exactly right. We should note here that Gauthier’s position squarely reflects the Hobbesian view. According to Hobbes, the first principle of morals is ‘Seek peace, and follow it.'[15] Seeking peace means refraining from invading and despoiling. Gauthier’s statement of it is more precise and refined, but it is to exactly the same effect. Invading is coming within the area – familiarly conceived in literally geographical terms – that someone else already occupies, usefully according to his lights, and making use of what is there contrary to the preferences of its current occupant. That area can be his own body, in which case the invasion is equivalent to physical injury. But Hobbes’s other theorems provide for an enlarged understanding: we can invade by occupying regions of space already relevantly taken and now occupied by someone else – and that too will amount to making war. It will be worsening his situation. What makes Smith’s situation ‘his’? That he is physically in the area has something to do with it, but obviously everything depends on just how he is in it, what he is doing there, and how his intentional activities, his plans, involve it. Everything depends here on how the agent sees it, and in particular whether he does actually want the things in question to be the way they are. He could always change his mind, in which case his ‘situation’ is changed, and therefore his utility; or, perhaps better, we could say that when he changes his mind, he more clearly reveals and explicates his utility profile.

The Lockean Proviso, then, identifies a baseline defined by both the preferences and the actual activities of the agent in question. If you no longer care about this patch of ground, then I do not worsen your situation if I now occupy it. That is, I don’t worsen it by occupying that area; I might, of course, engender some negative externalities by so doing, but we set such things on one side for our purposes here. Prima facie, the Proviso allows me to do to you anything you’re willing to have me do to you.

Agreement is what counts. Where we agree, all is (morally) well. Uncoerced agreement puts us in the region of the free market, which Gauthier declares to be a “morally free zone.”[16]

In real-world terms,of course, that claim is a mistake, but it is not one that Gauthier’s claim was intended to make. In the real world, the maintenance of a zone in which we may each do as we please requires moral restraint by all parties. Morally free zones are framed by morals. Gauthier’s point is that if we are in a situation in which all benefits are confined to those who incur the costs of producing them, then that situation would have no further moral constraints, and that claim is correct.

9. Three Possible Sources of Gauthieran Non-Libertarianism

Gauthier is occasionally characterized as a libertarian, but that is a tag he does not himself adopt, and in fact explicitly repudiates it.[17] Why is that? I see three possibilities.

(a) The first would obtain if there is a real misunderstanding of his own result in regard to the bargaining game, making him suppose that there can be ‘distributive justice,’ in the narrow and familiar sense of ‘just’ in which coercive reinforcement is relevant, going beyond what is allowed by antecedently uncoerced mutual agreement.

(b) A second might stem from supposing that Constrained Maximization can supply some other moral principle, substantively different from the Lockean proviso and yet enforceable.

(c) And a third might be motivated by considerations having to do with group action, and especially political group action.

Each of these deserves more analysis than we have space for here, but certain general points may be advanced that should be sufficient to dispel the impact of each of these.

a) Why MRC does not modify LP

Consider, now, contexts of bargaining. In these contexts, A makes an offer, B makes a counter-offer, and either the deal is not accepted by both parties, in which case it is ‘off,’ or it goes through. Now, if it does go through, what does this imply? Evidently that A and B each prefer, all things considered, the new situation in which he has parted with what he used to have and is now in possession of what he formerly did not have. It is not only likely but essentially certain that, logically, each, viewed separately, could conceivably have done still better, namely by paying an even lower price than he actually paid, or getting even more than he actually got. In light of this, what are we to say about the curves that theorists draw to depict bargaining situations? Those curves identify varying quantities of something, such that more of it is better, less is worse, for the person whose utility function is in question. Somewhere the curves cross, and at that point, so says the economist, supply has met demand and the deal goes through, optimally for both parties. But suppose that party A, or party B, would still have been happy with less? Well, then, the point of agreement could have moved along one of the curves, a bit. We cannot objectively identify quantities such that it is rational for the parties to want that much at that price, irrespective of their actual preferences, for preferences, as Gauthier insists, are all there is in the way of values: preferences determine the utilities being depicted here, and thus determine the optimal points.

This being so, however, it follows that it is an error to think of MRC as a theory of justice. If x is unjust, then a correction may be made by coercive means. That’s part of the idea: the unjust is what we are morally permitted to coerce people into conforming to, if we are so inclined, and, as Hobbes says, ‘whatsoever is not unjust, is just.'[18] But that means that the parties to a bargaining situation, so long as neither has deceived the other or used force, cannot lodge a complaint to the effect that they have ended up on the “wrong” point on some curve, such that the other party may be required, at sword-point if need be, to increase the amount he actually parted with. Given that morals is by agreement, the fact that we agreed, in the absence of fraud or coercion, is definitive.

As noted, it would be possible for this agreement to be undone if someone deceived someone, or used coercion in getting the other party to ‘sign.’ But those are background conditions for MRC, not further constraints. In fact, as Gauthier says,

‘I treat [the Lockean Proviso] as constraining the lower bound on expectations in bargaining to the social contract… I argue [in MA] that the effect of this constraint is to equip each bargainer with a set of rights, to the exclusive use of his body and its powers, mental and physical, and also to the exclusive use of particular resources, in so far as – and only in so far as – this benefits the user without net cost to those no longer entitled to treat these resources as in common use.'[19]

Admirable – and exactly what the libertarian says. Further bargaining moves the substantive Pareto frontier, yielding new baselines to be respected. But what defines them is, always, the de facto acceptance by the parties concerned, under conditions of liberty – that is, the absence of force and fraud. That is familiar libertarian doctrine. No coercive rectification of a transaction that has been agreed to by knowing parties can be legitimate. ‘But you agreed!’ is always a sufficient criticism of any such proposed coercion.

Let us put this result in another way. If situation S is baseline-respecting as it stands, then a necessary condition for situation S’, defined as involving the same persons with the same baselines but some intentional alterations of situations by some persons, to be just is that S’ not be Pareto suboptimal relative to S. Any alteration of S that is for the better for some, and no worse for others, relative to the previous baseline, is acceptable from the point of view of justice. Justice, in short, is social efficiency. In the just society, everyone respects everyone else’s liberty – no one imposes disadvantages, costs on others, in the pursuit of the good life for himself or those he cares about. There is, it would seem, nothing left for justice to be about. Now, in his discussion of the Lockean Proviso in Morals by Agreement, Gauthier says that ‘each is constrained by the requirements of minimax relative concession, within co-operative institutions and practices. The error of some defenders of individual rights is to suppose that rights alone, the first level of constraint, are sufficient, and indeed, that further moral constraints on individual utility-maximization must be rejected as incompatible with rights. … But the externalities that plague our interactions lead us to recognize that rights, although necessary, are morally insufficient.'[20]

But that is either confused or misleading. What we ought to be talking about here is whether there are any other principles binding us all beyond the ways in which we are bound by LP; and the answer to that is that there are not, because there can’t be; within the framework of morals by agreement, there is nowhere else to go. On the other hand, there are innumerable particular agreements that we all make with particular others, and of course those bind us – they move our baselines in all sorts of ways, far beyond what they were in the ‘state of nature.’ However, this is not due to the operation of a new separate principle, but of the same old one. LP calls upon us to respect what is each other’s, but what defines those things as belonging to this person or that is our particular activities, the exercises of our various powers that we each make, within the confines of others’ rights. Specific agreements, negotiated between or among particular parties, alter the substance of our rights precisely because they expand the boundaries of the self, as we might put it. In working on natural objects not previously taken by others, we acquire rights to those things, as Gauthier explains. In working together with specific others, on terms agreed on among all of those cooperators, we further expand them. Keeping our promises and agreements, living up to our commitments, is simply remaining within the new boundaries defined by those agreements. There is therefore no call for supposing that LP is an inadequate basis for justice in its “other departments” – there are no other departments. (b) Society as “a Cooperative Venture for Mutual Advantage”
Before considering our second hypothesis about Gauthier’s nonadherence to libertarianism, it is worth pausing for a moment over a phrase used in MA and also in USP: ‘the idea of society as a cooperative venture for mutual advantage.’ If it is such a ‘venture’, we might suppose, then perhaps an MRC type agreement would yield a distributive principle capable of undergirding, say, a program of tax-supported unemployment compensation or health programs.

But that is a mistake, for there is no such venture. Remember that MRC originally was intended to apply only to the case of cooperative production, in which several persons participate jointly in productive activity yielding a surplus relative to what would have obtained from their separate activities or their activities in other possible productive combinations, so far as the parties are aware. Society at large simply is not such a case. There is no productive activity in which all Canadians or all Xians participate, meeting reasonable standards of voluntariness, and yielding a surplus in the relevant sense. There are only a great many people, almost all of them productive, and all of them productive in genuinely voluntary groups of varying sizes, but none of them coextensive with the whole.

Alternatively, however, we can give a sensible, and indeed much better, answer that steers us in another direction. For we can insist that society is indeed a cooperative undertaking for mutual advantage, if the advantage in question is, simply, our freedom to engage in such productive activities as we severally are interested in engaging in. That certainly is a huge advantage over the state of nature in which there are no constraints on anyone. No doubt many theorists would not want to view peace as a ‘product.’ But within the Hobbes-Gauthier framework, which I am endorsing here, it is precisely that. To be sure, it is a product that it is singularly easy for any given individual to produce some of, since one can produce a little bit of peace by doing nothing at all. Nevertheless, there is a cost in refraining from benefiting from the violence one person could inflict on others. The return on this investment – peace, otherwise known as liberty – is, strictly speaking, a public good, and one of inestimable value to all, even though it is not a ‘good’ in the same way that food, operas, or Universities are. It is more properly regarded as a necessary condition for having operas and food, as Hobbes observes in the famous paragraph in which he itemizes some of the many things we will not have in the state of nature: “no Culture of the Earth, no Navigation, nor use of the commodities that may be imported by Sea; no commodious Building; no Instruments of moving, and removing such things as require much force; no Knowledge of the face of the Earth; no account of Time; no Arts; no Letters; no Society…”[21] Gauthier is well aware of the peculiar importance of this social product, and of its essentially public-goods nature. It would not be too much to say that the point of morals is to capture a public good that cannot be captured in any other way. If we are to enjoy the benefits of cooperation, we must be disposed to cooperate, and that means to refrain from invading and despoiling, even when we could do so successfully.

The point about regarding society this way is that there is no curve to draw: the distribution of peace is an absolutely flat curve, in which each of us gets exactly the same benefit – nonviolence at the hands of all others. There is no separate distributive principle here; rather, this is just another way of describing the operation of the Lockean Proviso itself.
Bargaining for Market Freedom

In MA, Gauthier says of the Proviso that it is a constraint on bargaining, and that it generates ‘a set of rights for each person which he brings to the bargaining table of society as his initial endowment.'[22] This theme is reiterated several times. The proviso, he says, ‘constrains the initial bargaining position …’ among various other passages to similar effect.[23] These passages suggest, though they do not quite unequivocally assert, that LP is not itself the result of any bargain. If they constrain the bargaining table of society, after all, one supposes that the intention is to rule out any prior bargain as its basis.
But that is certainly anti-Hobbesian. To be sure, the principle is called the ‘Lockean’ proviso by Gauthier, and this might encourage us to entertain the thought that he regards LP as having a strictly intuitionist basis. But – to his credit – that is not an option Gauthier wants to take, nor one that he can take; nor does he. His project is, strictly, to derive morals from premoral rationality, and to do this we cannot help ourselves to anything of the intuitionist ilk. But that means that an account must be given that is consistent with this general outlook, and for that outlook, it seems, we must, like it or not, find a basis for agreement. Either we agree on LP, or it is baseless.

Agreeing on something as general as LP requires that we distinguish between the ‘initial bargaining situation’ for shoes and services and the situation for morals generally. There is only one candidate for such an initial situation: by definition, it is the Hobbesian ‘state of nature,’ that is, the situation in which nothing is agreed on, no one is committed to anything, and there are no rules. In this situation, Gauthier says – and I agree – we cannot claim that the use of violence is in general irrational. LP is not an a priori truth. Nevertheless, the story Gauthier appeals to is broadly consistent with his starting-point. Predation meets with defensive efforts, and the two together constitute a suboptimal situation in just the sense required for regarding our relations as of the type characterized by Prisoner’s Dilemma – the background scenario for Constrained Maximization. If taking advantage is always possible by both parties, then it looks a plausible bet to go for a principle which forbids the taking of advantage. But then, that is exactly what LP does.

In “Uniting Separate Persons,” Gauthier deals with a point of importance that has, perhaps, caused some misunderstanding about the status of principles like the libertarian principle – which, as I have noted, ‘LP’ might equally stand for. There are those who say that it is not rational to be moral, on the ground that someone’s scheme of personal values might be such that morality, for him, simply does not pay. I have pointed out this possibility in my treatment in The Libertarian Idea [LI]. Morality, I said, is a “club,” whose membership is almost, but perhaps not literally quite, everybody. (LI, 135) The exceptions will be those who like fighting so much that the state of nature, however Hobbesian, is for them preferable. With such people, I said, there is nothing to do but fight. Since we outnumber them by thousands to one, or thereabouts, there is no chance that they will actually ‘win.’ For everyone else, I supposed, the argument is overwhelming: mutual nonviolence is the one plausible baseline for future interactions by all of us with all of us. Gauthier, we see, now recognizes and agrees with this. ‘My defense of the rationality of morality must be limited to those persons whose overarching life-plans make them welcome participants in society. Such persons are potential parties to an agreement that would determine mutually advantageous terms of interaction.’ And for all such persons, he goes on to suggest, LP is superior to any plans that would ‘not incorporate, or incorporate only instrumentally, a concern with social participation.'[24]

The real question is not that, then, but whether LP is superior to any plan that would incorporate systematic violations of LP in certain restricted areas. For example, might there not be a social contract requiring – rather than merely allowing – the rich to support the poor? LP allows this but does not require it. A socialist or welfare-statist social contract would require it, limiting the freedom of those who might otherwise have more.

This possibility brings many questions in its wake. It is easy, when getting into the moral theory business, to succumb to a standing temptation to get one’s results by theft rather than honest toil. The possibility for ‘theft’ here resides in an assumption that we must get some favored moral result, some universal principle we like and therefore on which all right-thinking persons would, of course, rationally agree. If we are certain that some result will be forthcoming, which will it be?

At this level, Gauthier, I think, makes, perhaps inadvertently, an extremely strong case for the libertarian principle. If we deal with each other one-on-one, and grandly in the abstract, we hit upon Hobbes’s important truth, that whatever disparities there may be among us in all sorts of other respects, there is a Great Leveler: the undoubted capacity of each of us to kill any other one. Why think this a ‘leveler’, as I put it? Because once you are dead, that’s it – the end, so far as social arrangements are concerned. Your future input after that is zero, and you may thus be ignored. Also, of course, your output; if you are the goose that lays the golden egg, your death assures future nonproduction of that commodity, as wiser socialists have become acutely aware. If we’re talking threats, then the threat of death would seem to be well-suited to filling the Hobbesian bill. Hobbes’s and my, and it seems to me Gauthier’s, is that it will motivate each to renounce violence in general, provided others do so too. It is, as I say, not just to renounce killing, but to renounce violence generally. For any given sleight or incursion, we can retaliate, and any attempt to preserve an unequal coercive power between us by one person’s being able to point to some particular respect in which he exceeds the other, as a basis for preferred treatment thereafter, can be met with, ‘Oh, yes? Well, just wait til you turn your back!’
We must negotiate the fundamental terms of association with our guns on the table.[25] No other staging of a Hobbesian bargain will do. Still, when we attend to that staging, we will find that the first item of business is mutual disarmament. No other business can be accomplished until that point is reached. What ‘mutual disarmament’ means here, of course, is the commitment to refrain from using force, that is, imposing costs on others as one’s way of obtaining other advantages. We bargain to morality, not to specific configurations of products or services. The latter kind of bargaining is then done on a one-on-one, or more generally, some-on-some basis, motivated by the specific interests, situations, and capabilities of particular individuals.
When we turn from negative rights constraining violence to positive rights providing goodies at other people’s expense, the situation is very different. A’s threat to B that unless B provides A with good x or y, A will make life miserable for B, can always be responded to with a counter-threat. This counter-threat is, in the first instance of course, the nonprovision of the desired good, in addition, it can be a threat of provision of a like misery, as it were. As Gauthier points out, threat-for-threat is a dead end – often enough, literally so.[26]

The situation, then, is this. Those whose natural abilities and initial situations might leave them with nothing are dependent on others whose abilities exceed theirs. Those have-nots have three options: to throw themselves on the sympathies of others, to try to exact what they want by force, or to succumb passively to their fates. We assume that they are not likely to elect the third option. The first has its uncertainties, but in fact has proven to be a remarkably reliable source of provision down through the centuries. But the second entails the problem that the capable might prefer resistance to involuntary provision. And, being capable, there is a good chance that they would best the needy in a fight. And if they lose, the needy have deprived themselves of future supply. These points are obvious, and can hardly be ignored in the setting for a social agreement. Since an agreement in which some are forced to provide for others is suboptimal for the providers, there is no reason to think that it will be opted for, especially in view of the remarkable range of capabilities we in fact find among humans, plus the widespread incidence of a good measure of sympathy for our fellows. Unanimity among rational bargainers must go for Pareto optimal principles, and at this most general and fundamental level, there is only one such: LP. LP Creates the Market, which is not a “Morally Free Zone”

After an overview and two methodological chapters, Gauthier’s Morals by Agreement proceeds to discuss the Market as a “Morally Free Zone” (its title is “The Market: Freedom from Morality.”) This is easily the most misleading discussion in the book, for what is discussed is idealized. If costs are born by all and only all of those who produce benefits, then there is no further need, nor indeed any possible room, for morality, given the liberal principles we are working with. This is true enough, to be sure, but it is also uninteresting. For humans, as Gauthier is so well aware, are inherently capable of acting so as to bring about disparities between costs and benefits, imposing costs on producers in order to benefit nonproducers. In real society, the market is anything but a “morally free zone.” On the contrary: the market is brought about by morals, and in particular one moral principle: the right to oneself and the products of one’s own labor, and that, as we have seen, is equivalent to LP. To say that morality permits you to do what you will with what is yours, provided that in so doing you respect the properties and persons of others, is not to say that morality doesn’t apply. On the contrary, it is to apply it to this subject.

The Social Contract, in short, creates the free market. And the free market is therefore cooperatively maintained. That is precisely what makes possible the description of society as a “cooperative venture for mutual advantage.” We assume, of course, that one’s market freedom includes the freedom to be generous if one wishes to, rather than, as some seem to think, denying that freedom and instead imposing a Protestant-Ethic requirement on everyone to work as hard and make as much money as possible, spending it on no one except for specific services rendered to the buyer. Rightly understood, then, market society just is society as constrained by the Lockean Proviso.

(c) Government

This bring us to the third possibility – in effect, government. In numbers there is strength, and if the numbers are well organized, the strength in question is vastly greater than the sum of the separately deployable strengths of the members. This being so, is there reason to abrogate or modify the Social Contract in such a way as to let in the Hobbesian Sovereign? Apparently almost everyone thinks so, and perhaps Gauthier does, too. But is it rationally justified?

Governments have power. That is a defining characteristic of the institution. On the other hand, in all contemporary states, it is agreed that the State should not be able to do just anything whatever. The bad old days of Hobbesian sovereignty are presumably a thing of the past, at least among theorists. We all suppose that governments may and should be constitutionally constrained. Achieving such constraint is very difficult. Even more difficult, perhaps, is the definition of the task of normative political philosophy. That task is complicated by two things. First: methodological individualism and political liberalism are now axiomatic. Second: political anarchism is a conceptually live option. It is no longer possible simply to declare it out of bounds.
The result of these two points is that any argument purporting to justify government is going to have to meet some very stringent criteria. In particular, it cannot be any longer argued – as perhaps it once could – that a legitimate reply to a request for justification is, ‘Shut up and do as you are told!’ What makes this unavailable is the claim, however mythical it may be in day-to-day practice, that governments are, after all, no more than the servants of their people. If what a government does cannot be shown to be for the public benefit, then it stands convicted. We need a normative theory that makes the appeal to naked force unnecessary because hollow.

We must take into account, in such deliberations, the difference made by the democratic theory of government, which is now essentially universal. In principle, democracy is supposed to enable us to collapse the distinction between sovereign and subject. The sovereign is now agreed to be literally the representative of the subject, ultimately by virtue, simply, of being, collectively, the subjects. So theorists like Rousseau and Kant could argue, they thought, that for someone to flout the established law is in fact for that person to violate a restriction of his own making. At the level of will, there is no distinction of subject and sovereign.

Such was the idea. But the distinction of ‘collective’ and individual renders the idea problematic. Democracy yields collective decisions by a majority procedure. As John Stuart Mill pointed out, it is not government of each by himself, but of each by all the rest. In the case of any particular law issuing from the democratic procedure, then, there reappears the distinction that the democratic idea was supposed to collapse. Individual A is faced with a requirement on his behavior claimed to be valid by virtue of the support of other people, not of himself. The democratic idea consequently raises the same problem that any kind of government claimed to be legitimate will raise. The individual will maximize his utility in social contexts by such a procedure only if one or the other of the following two conditions arises:

(1) A particular emanation of democratic process, though it doesn’t have his enthusiastic support as such, is a member of a set of alternatives such that the individual’s assent to it nevertheless amounts to his assent to the solution of a pure coordination problem. Something has to be done, any of the things that might be done is better than doing nothing from the individual’s point of view, yet all cannot have their way individually, and therefore it is in his interest to go along with the rest. Here we might invoke Hobbes’s Law of Compleasance: ‘That every man strive to accommodate himself to the rest.’

(2) Where that is not a promising line of approach, another idea, reasonably associated with Hobbes, might be invoked: that majorities are bigger than minorities and can thus crush the latter should they so choose. On this view, democracy, in the words of a late colleague, ‘proves only who would win in a fair fight.'[27]

The second is an argument for democracy only insofar as it is an argument for succumbing to superior force wherever found – which is to say, for rejecting the Lockean Proviso in Gauthier’s version. Hobbes claims, of course, that it is rational for us all to surrender our separate liberties of action and invest them all in a single agency, the Sovereign, whose will is to become law. Democracy has the same thing going for it that absolute monarchy does: resistance is futile.

Gauthier rejects the argument that bargaining games are to be settled by computing relative threat advantage. This was on the ground that the threatener can only threaten to do what would be irrational if he did it anyway. Coercion is a chicken game, and we can all defect if we choose. Mutual defection wipes out all advantages for all players. So we should all just refrain from playing that game in the first place.

The logic of this situation feeds into the social contract. Any argument for bowing to superior force is nullified if that force, in order to exist in the first place, must be a function of the literally unanimous wills of all rational participants. Only in the case of pure coordination games, where the individual has no motivation not to go along with whatever is done by others, do we get a case for ‘accommodating ourselves to the rest.'[28] The accommodation in that case involves no real disagreement, and there is no problem. In the case of Prisoner’s Dilemmas, the same cannot be said; but it can be said of the cooperative solution, which is what underlies the entire Hobbes-Gauthier theory from the beginning. This takes in a good deal, but it does not take in any democratically made laws that involve the majority ganging up on the minority. Muscle-flexing is out. We didn’t get into the social contract to sell ourselves into slavery, be the master one other man or a majority of our neighbors.

So far as government is concerned, then, this effectively means that the Social Contract, as an argument for the legitimacy of government, can be only what Hobbes claimed it was: an agreement by all subjects of government with each other regarding the arrangements we shall make to bring about public ends. So what constrains the range of options? If it is the agreement of every rational citizen, then there simply is no available appeal to a distinction between those fundamental principles of justice that apply to individuals or privately acting groups, and those that apply to governments as supposed representatives of the whole. In the modern view, government is nothing but an agent of the public, which in turn is the group consisting of everyone. Its collective activities are rational, therefore, only if confined to such arrangements and actions as are, literally, beneficial to all. That cannot be said of any arrangement that would not be beneficial to some party were it not for the superior force of the others, making it rational for him to knuckle under. On Gauthier’s view, it is never in principle rational to do that; and it certainly would not be so at the abstract level of a unanimous agreement by all concerning principles of operation for public life.

In short, then, while we may agree that it is rational to succumb to superior force, that is irrelevant to the question of government. For the question is whether it is rational not only to succumb to such force, but also to create it in the first place, and then succumb to it. It cannot be rational to create a force which will work to one’s disadvantage, understood in terms of the rational agent’s interests assessed independently of the creation of that force. Having made an agreement to mutual advantage, it may then be rational to erect an enforcement arrangement to counteract the understandable temptation of each to defect, where that appears to be likely. But it cannot be rational to erect a force that will elicit compliance with non-advantageous ‘agreements.’ Such, certainly, would be an agreement to do whatever some other person tells us to do, just like that; and that remains true even where the ‘other person’ is 51%, or 99%, of one’s fellow men. The conclusion, it seems to me, can only be that the principles of politics, like all others, are going to have to reflect the constraints of the Lockean Proviso if they are to be rational. Neither individuals nor groups may seek advantage by extracting it from the disadvantage of interactees.

The Social Contract, in short, puts us on the high road to libertarianism.

Endnotes

1. David Gauthier, Morals by Agreement (New York: Oxford University Press, 1986)

2. Gauthier, Op. Cit., p. 167

3. Gauthier, Op. Cit., p. 137

4. Gauthier, Op. Cit., p. 203

5. Gauthier, Op. Cit., pp. 209, 210

6. Gauthier, Op. Cit., p. 211

7. Gauthier, Op. Cit., p. 213

8. Gauthier, Op. Cit., p. 222

9. Hobbes, Leviathan (New York: E. P. Dutton, Everyman Library, 1950), First Law of Nature: ch. XIV, p. 107.

10. Robert Nozick, Anarchy, State, and Utopia (New York: Basic Books, 1974. See also Jan Narveson, “Critical notice: Anarchy, State and Utopia” Dialogue, l977, pp. 298-328 – written before I completed the abandonment of utilitarianism described at the outset, though published later.

11. See Narveson, Op. Cit., pp. 302-305. Nozick’s meager discussion is found in Nozick, Op. Cit., pp. 49-51.

12. Jan Narveson, The Libertarian Idea (Philadelphia: Temple University Press, 1988.)

13. David Gauthier, “Uniting Separate Persons”, in David Gauthier and Robert Sugden, Rationality, justice and the social contract: themes from Morals by agreement (Ann Arbor : University of Michigan Press, 1993.

14. Gauthier, Op. Cit., p. 182.

15. Hobbes, Op. Cit, p. 107

16. Gauthier, Op. Cit., p. 13; repeated, p. 83 ff.

17.In Morals by Agreement, the term ‘libertarianism’ does not occur, but Gauthier criticizes Nozick’s view, which is libertarian, in a manner entailing rejection. In addition, see p. 232, quoted below.

18. Hobbes, Op. Cit, p. 119

19. Gauthier, “Uniting Separate Persons,” Op. Cit., p. 183.

20. Gauthier, Morals by Agreement, Op. Cit., p. 233

21. Hobbes, Hobbes, Op. Cit, Ch. XIII, p. 104.

22. Gauthier, Morals by Agreement, Op. Cit., p. 227

23. Gauthier, Op. Cit., Gauthier, “Uniting Separate Persons”, Op.Cit., p. p. 229

24. Gauthier, “Uniting Separate Persons”, Op.Cit., p. 189

25. The phrase, and persistence in reminding me of its importance, is due to my former colleague Paul Viminitz.

26. Gauthier, Morals by Agreement, Op. Cit., p. 200

27. The late colleague was R. J. C. Burgener.

28. Hobbes, Op. Cit, p. 125-6; this is Hobbes’ fifth Law of Nature, which he calls Compleasance.