“The prohibition on bettering by worsening seems to me to lie at the core of any adequate social morality.” David Gauthier, 2013

In may 2011, the York University in Toronto organized a conference celebrating the 25th anniversary of David Gauthier’s Morals by Agreement. Gauthier’s own contribution to the conference, “Twenty-Five On,” was published in the July 2013 issue of Ethics. Since Gauthier has only sporadically published since the start of this millennium, his article provides a valuable resource to understand how Gauthier’s views have changed since the publication of Morals by Agreement.

Gauthier identifies his contractarian approach as an alternative to both “Kantianism or utilitarianism” and contrasts the maximization paradigm of classical game theory with Pareto-optimization:

“Instead of supposing that an action is rational only if it maximizes the agent’s payoff given the actions of the other agents, I am proposing that a set of actions, one for each agent, is fully rational only if it yields a Pareto-optimal outcome….To the maximizer’s charge that it cannot be rational for a person to take less than he can get, the Pareto-optimizer replies that it cannot be rational for each of a group of persons to take less than, acting together, each can get.”

Gauthier’s rational cooperators (the updated version of his “constrained maximizers”) do do not “bargain” and interact on a maximizing basis but seek agreement using the principle of “maximin proportionate gain” (previously called “maximin relative benefit”). Unlike in Morals by Agreement, Gauthier does not really discuss under which conditions these issues are relevant, but perhaps they comes into play in the production of “public goods.” After all, as has been argued by philosophers such as Jan Narveson, without such an argument, Gauthier’s Lockean proviso can do all the important work without having to consider the distribution of goods arising from public action. As Anthony de Jasay has written:

“Output is distributed while it is produced. Wage earners get some of it as wages in exchange for their efforts; owners of capital get some of it as interest and rent in exchange for past saving. Entrepreneurs get the residual as profit in exchange for organization and risk bearing. By the time the cake is “baked,” it is also sliced and those who played a part in baking it have all got their slices. No distributive decision is missing, left over for “society” to take.”

Interestingly enough, Gauthier has strengthened the role of his revised Lockean proviso:

“The proviso is not the whole of morality or even the last word, but it is, I believe, the first word. It provides a default condition that may be appealed to set a baseline for social interaction.”

It does not seem Gauthier has substantially revised his interpretation of the Lockean proviso. In a nutshell, the proviso forbids bettering oneself at the expense of another person. As such, the proviso can be “sharpened as a weapon of reason against parasitism.” As Gauthier appears to recognize in his discussion of “Robin Hood,” the proviso does not seem to leave much room for coerced income re-distribution where one party is worsened for the benefit of another (provided the proviso was not violated prior to this action). In his final remarks in an online discussion that his paper triggered, he writes:

“Any form of redistribution may involve a proviso violation, and so is prima facie wrong. Whether the violation is actually justified depends on (among other considerations) whether it rectifies an earlier wrong.”

While Gauthier has often followed John Rawls in characterizing society as a “cooperative venture for mutual advantage,” he now prefers the phrase “mutual fulfillment” because mutual advantage puts too much emphasis on “competitive or positional orientation” and is too restrictive. This change of wording, however, does not fundamentally change the contractarian framework that Gauthier advocates. In fact, one could argue that the word “contractarianism” suffers from a similar defect in characterizing his approach to morality.

Perhaps the most interesting part of this paper is where Gauthier reflects on the nature of his contractarian enterprise. In Gauthier’s opinion, absent a plausible justification of Kantian and utilitarian approaches, the Hobbesian contractarian approach is the only credible road to construct a modern, rational, approach to morality. As evidenced by his emphasis on the Lockean proviso, Gauthier’s contractarianism is not aimed at conferring legitimacy on whatever outcome results from markets and bargaining because this would privilege conditions that reflect prior violations of the provis. As such, his contractarianism is not an exclusive forward-looking approach using the status quo as a starting point. He writes:

“The key idea is that the best justification we can offer for any expectation or requirement is that it could be agreed to, or follow from what could be agreed to, by the persons subject to it, were they to be choosing, ex ante, together with their fellows, the terms of their (subsequent) cooperation. The hypothetical nature of the justification is clear—if, per impossible, you were to be choosing, together with your fellow humans, the terms on which you would interact with them, then what terms would you accept? Those are the terms of rational acceptance, the terms that you, as a cooperator, have good reason to accept given that others have like reason. “

In reality this requirement can, of course, produce vigorous discussion because it is rather challenging to objectively demonstrate who has unjustly benefited from violations of the proviso/contractarian approach and to what degree. This challenge is further exacerbated by the fact that over time groups that were deprived of their liberties have now been granted special privileges by governments to offset such events. It also not clear how the individualist assumption embodied in Gauthier’s contractarianism can be squared with compensating victims (ranging from taxpayers to minority groups) by any other person than the specific individual(s) who engaged in behavior that violated the proviso.

Gauthier discusses three different objections to his contractarian approach.

The first is the objection that only actual contracts are binding. Gauthier replies that “actual agreement would not show that the terms agreed to were rational, since it privileges existing circumstances. The contractarian test, in taking the ex ante perspective, removes that privilege.” This perspective may sound overly optimistic because it requires that people who think about ex-ante agreement reach a specific determinate result (see below). In response to Gauthier, however, one could argue that there is an interesting asymmetry here. While the existence of a contract does not necessarily reflect (non-coerced) rational agreement, a person who denies and can demonstrate not having agreed to a certain obligation (as is the case with most government obligations) provides reasonably good evidence that the contractarian test has failed.

A second objection to the contractarian framework is that it is redundant. If it is rational to act in a certain way, than the appeal of a social contract is superfluous. Gauthier answers that this misses the point because individual rational behavior will not tell us what it would be rational to agree under “suitably constrained circumstances.” As with the first objection, it is clear that Gauthier, like Rawls, wants to push the reset button on existing circumstances to allow for a social agreement that does not privilege existing conditions. What is really important for Gauthier is to show that a rejection of existing conditions as a starting point does not follow from an (arbitrary) moral conviction but is required by his contractarian framework, a non-trivial challenge.

The third objection, and in my opinion the strongest, is that an appeal to ex-ante agreement does not yield a sufficiently determined result. One might even go further and argue that the substance of hypothetical agreements cannot be established in a meaningful fashion.

Gauthier disagrees and refers the reader to his paper on “Political Contractarianism,” where he outlines which kind of society would pass the contractarian test. Most readers read some kind of (moderate) libertarianism in his political writings (he also wrote a back cover endorsement of Jan Narveson’s “The Libertarian Idea”) so it would seem that in Gauthier’s view rational agreement produces classical liberalism, perhaps with some allowance for a very limited welfare state based on mutual insurance arguments (Gauthier’s own writings are not particularly clear here).

Gauthier may not sufficiently recognize that his emphasis on voluntary association, the Lockean proviso, and rejection of parasitism puts him at odds with many other philosophers and people. In particular, his position that there is a morally relevant distinction between “harming” and “failing to help” is a core libertarian belief that is not shared by many. When most people think about a (hypothetical) social contract they do not think about the terms of interaction (like Robert Nozick’s side constraints) but about specific conditions they would like society to conform to such as equality of opportunity or equality of income. Absent these conditions, they will “reject’ the society they live in, regardless of whether such conditions can occur without worsening the position of anyone. Similarly, Gauthier’s writings strongly reflect the perspective that non-zero sum interactions between people prevail in markets that pass the contractarian test, a position that does not seem to resonate with many people yet.

Both Gauthier’s approach to morality and his view of society as a cooperative venture for mutual fulfillment is far removed from the democratic “churning society” that we live in today. Gauthier seems to be very much a philosopher of the future, or of a society with people of high intelligence. This would be consistent with Steven Pinker’s perspective, who writes in his book “The Better Angels of Our Nature” that the General Social Survey, which tracks the characteristics of society in the United States, contains hints that “intelligence tracks classical liberalism more closely than left-liberalism” (p. 663).