Allan Gibbard - Constructing Justice (Barry's Theories of Justice Review)

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Constructing JusticeTheories of Justice. by Brian BarryReview by: Allan GibbardPhilosophy & Public Affairs, Vol. 20, No. 3 (Summer, 1991), pp. 264-279Published by: WileyStable URL: http://www.jstor.org/stable/2265434 .

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ALLAN IBBARD Constructing Justice

Brian Barry'sTreatise on Social Justice is to comprise three volumes.Such a literaryundertakinghas an olden feel, but the characters aremostly in modem dress, and they help themselves to modem devices.Volume i is now at hand, and in it we see two greatrival theories stepforward o vie for the hand of Justice. MutualAdvantage s a theorywithsterling qualities, but in him too we note substantial flaws. We get toknow him well; he is treatedwith elaborateconsideration,and providedwith enough rope to hang himself. Impartialitys the nobler of the two,and though we come to know his ways less thoroughly,he surviveswithhonorintact to playthe lead rolein the forthcomingvolumes 2 and 3.Justice as Mutual Advantage,explains Barry,consists in "the con-straintson themselves that rationalself-interestedpeoplewould agree toas the minimumprice that has to be paidin order to obtain the coopera-tion of others."Justice, then, "is simply rationalprudence pursued incontexts where the cooperation or at least forbearance)of other peopleis a conditionof our being able to get what we want." Plato took this asthe theory to beat, and so does Barry.Barry,though, says he hopes togive it "a betterrun for its money than it got fromPlato" pp. 6-7).Justice as Impartialitys "lessconceptuallyparsimonious."The reasonforbehaving justly, on this view, "isnot reducibleto even a sophisticatedand indirect pursuit of self-interest."The motive for just conduct is,rather, "the desire to act in ways that can be defended to oneself andothers without appealingto personaladvantage."This, Barrysays, is anoriginalprincipleof human nature(pp. 7-8, 36I-64).

A review of Brian Barry, Theories of Justice (Berkeley and Los Angeles: University ofCalifornia Press, I989). Parenthetical page references are to this book.


Diferenciaoentre justia

comoimparcialidadee justia como

vantagensmtuas
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265 ConstructingJustice

Justice as MutualAdvantage s coherent,Barry hinks, but wrong:wecannot recognize it as all of justice. Justice redresses bargainingadvan-tages, whereas Justice as MutualAdvantage hreatensmerely to smooththe path of exploitation.Truejustice is Justice as Impartiality.In a running subplot, mathematicalgame theoryplays Barberof Se-ville to both rivals,proffering he most ingenious help-but in the end itfails to gain foritself a secure lackeyhood n the castle of justice. A greatcurrenthope in moraltheoryhas been thatmodern,technical game the-orycould be put to moraluse. Gametheorybeautifullycapturesvariousinsights of Hobbes and Hume. The hope is to use it to formulateprecisemoraltheoriesthat capture these insights, theories with powerfulration-ales powerfullydisplayed.A recurrentstratagemin this enterprise hasbeen constructivist: The theorist specifies an ideal, hypothetical situa-tion in which people choose the principlesthat shall govern them. Hethen proclaims that whateverprincipleswould be chosen in that situa-tion are, by virtue of this very fact, validprinciplesof justice. What theideal situation is to be like is hotly disputed: Harsanyiand Rawls haveself-interestedpartiesbehind a veil of ignorance;Gauthierhas self-inter-ested agents who knowtheirbargainingadvantagesand use them to thehilt.' Still,with any versionof this program, he hope is thatprecise the-ories of self-interestedbargainingand choice will yield precise conclu-sions aboutjustice. Barrycalls this hard constructivism. We can thinkof this first volume as a painstakingrejectionof hard constructivism inall of its forms.

Barry oo is a constructivist,but, as he puts it, a soft constructivist.Heagrees that we learn valid principlesof justice by considering a hypo-thetical choice of principles.The partieswho do the choosing, though,must not be purely self-interested.They are "reasonable"-a term thathas moral content. When asked to say what is reasonable n this morallyladen sense, technical game theorystandsmute.Brian Barryis a grand master of normativepoliticaltheory, and thebest course for a discussant might well be uncriticaladulation.Barry sunmatched in his knowledge of this field, and he is dogged, incisive,judicious, and insightful. Indeed, when we learn more in the next vol-

i. John Harsanyi, "Cardinal Utility in Welfare Economics and in the Theory of Risk-Taking,"Journal of Political Economy 6i (I953): 434-35; John Rawls, A Theory of Justice(Cambridge, Mass.: Harvard University Press, I971); and David Gauthier, Morals byAgreement (Oxford: Oxford University Press, I986).


Teoria dos

jogos


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266 Philosophy& PublicAffairs

ume about what Justice as Impartialitys, we may well find to boot thatBarryis right: that Justice as Impartialitys the best interpretationofjustice. Still, in the wake of Barry'sharvest I glean a few doubts worththreshing. Barry,I think,may dismiss tooeasily an importantalternativeconceptionofjustice, the one Rawls has called Justice as Reciprocity.AsforJustice as Mutual Advantage,Barrymay give it moreof a run for itsmoney than it merits.AndJustice as Impartialitymay be toovague to bea clear,distinct alternative.I. THE MOTIVEOF FAIR RECIPROCITYBarrytreats John Rawls as hoveringuneasily between the two perchesBarryidentifies-between impartialityand mutual advantage. Perhapshe is right in this, but Rawlslong ago seemed to have his eye on a thirdperch: one he called Justice as Reciprocity.Whether Rawls had identi-fied a coherent,distinctalternative s unclear,but let me pursue the casethat he had.If I return favor for favor, I may be doing so in pursuit of my ownadvantage,as a means to keep the favorsrolling. My motivationmight,though, be more intrinsically reciprocal:I might be decent to him be-cause he has been decent to me. I might prefer treating another wellwho has treatedme well, even if he has no furtherpower to affect me.We tip for goodservicein strangerestaurants.Reciprocityneeds terms of trade: we exchange unlikes, and we canask what makes the exchange fair or unfair. Rawlsproposesthatjusticeis fairness in exchange, but on a grandscale: it is fairness in the termsgoverning a society-wide system of reciprocity.The system consists ineach person's supportinga basic social structure and drawing benefitsfromit. The citizen of a well-ordered ociety is motivatedto return ben-efits fairly,and this generalmotivationbecomes a motivationto conformto the rules of a social structurehe considersfair.Is Justice as FairReciprocitya distinct alternative o Barry's wo? Is itdifferent in any way from Justice as MutualAdvantageand Justice asImpartiality?The case that it is, in a nutshell, is this: On the one hand,it is distinct fromJustice as MutualAdvantagebecause it drawson non-egoistic motives. On the other,it is distinct from Justice as Impartialitybecause it says that a person cannot reasonablybe asked to support asocial order unless he gains fromit.


Tese centralda

reciprocidadeem Rawls


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267 Constructing Justice

Takefirst MutualAdvantage.Motivationsof reciprocityare not purelyegoistic. DavidGauthier, o be sure, embracesfairreciprocityas a dictateof mutual advantage.2Intrinsic motivationsof reciprocityconstitute apartof rationalprudence, Gauthierclaims, a partof the rationalpursuitof one's own interest. It is selfishly rational to tip the waiter you willnever see again. Why? Because if you had been the sort of person whowould not tip, he could have seen it in your face and would not havegiven you goodservice.Manycommentatorson Gauthier,however,have been unpersuadedbythis partof his argument.Muchdepends, first,on just how hard it is fora cad to put on an honest face. Some,alas, seem to manageit quite well.Second, even if you cannot keep a straightface, what that shows is notthat true honorand decency constitute rationalprudence. It shows thatit could be rationallyprudent to cultivate a nature that disposes one, attimes, to departfrom rationalprudence.If these criticismsareright, mo-tives of fairreciprocitycannotbe reduced tomotivesof prudence.Justiceas FairReciprocity s not a versionof Justice as MutualAdvantage.3Turn now to Justice as Impartiality,which celebrates a nonegoisticmotivation to be just. "The motive for behavingjustly is, on this view,the desire to act in accordance with principlesthat could not reasonablybe rejected by people seeking an agreement with others under condi-tions free from morally rrelevantbargainingadvantagesand disadvan-tages"(p. 8).4The just person is moved to adhere to an agreement thatis acceptablefrom all points of view. Is this any differentfrom wantingto reciprocate airly?Fairreciprocity,afterall, requiresa standardof fair-ness in exchanges. Justice as Impartialitymight providethe standard.Perhaps fair terms of reciprocityare whatever terms every reasonableperson wouldfind acceptable.In Barry'sarguments for Justice as Impartiality,however, he rejectsthe veryfeatures of Rawls's treatment that most characterize t as a ver-sion of Justice as FairReciprocity.Rawlstreats society as "acooperativescheme formutual advantage,"and the mutual advantage s in compar-

2. See esp. Morals by Agreement.3. Cf. Allen Buchanan, "Justice as Reciprocity versus Subject-Centered Justice," Philos-ophy & Public Affairs ig, no. 3 (Summer I990): 230.4. This motive and this test for principles were formulated in T. M. Scanlon, "Contrac-tualism and Utilitarianism," in Utilitarianism and Beyond, ed. Amartya Sen and BernardWilliams (Cambridge: Cambridge University Press, I982), pp. 103-28.



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ison to a benchmarkof general egoism. This comparisonwith a nonco-operativebenchmarkof nonagreement s no partof Justice as Impartial-ity as Barryconceives it. Barry, ndeed, argues that the benchmark s outof spirit with various other commitments of Rawls's. I myself do notthink the case is clear-cut,and I shall sketch a case for the coherence ofmuch of Rawls'sapproach.Natural and social advantages are morally arbitrary.Rawls stressesthis, and Barryagrees heartily.Now these considerations,argues Barryagainst Rawls,discredit Justice as FairReciprocity.We must reject "thejustice of inequalities based on morallyarbitraryadvantages"(p. 239).That means we cannot treatsocietyas a "cooperative enture formutualadvantage," or in the course of setting the termsof such a venture, eachparty bringshis natural advantagesand disadvantages o the bargaining

table. That skews the outcome unjustly (pp. 234-35).Barryno more than Rawls, though, outright rejects "thejustice of in-equalities based on morally arbitraryadvantages."Rawls's differenceprincipleallowsforinequalities, so long as they are to the benefit of theworst-off,and Barrydoes not object. Any inequalities that flow from asocial orderwill have causes, and Rawls agrees with Barry n thinkingthat the ultimate causes must be morallyarbitrary.Neither concludesfrom this that all such inequalitiesare unjust.Atothertimes Barryputs his pointfar moretenably."The centralissuein any theoryof justice is the defensibilityof unequal relationsbetweenpeople" (p. 3). Equalityneeds no justification,whereas departuresfromit do. The point aboutthe moral arbitrariness f endowments, then, con-cerns justification. Differingnatural and social endowments do not bythemselves justify unequal outcomes. If it is just that unequal endow-ments lead to unequal outcomes, that must be because the social struc-ture that lets this happenis just-and in arguingthat the socialstructureis just, we cannot assume at the outset that unequal endowments giverise to unequal desert orentitlements.Now this point seems correctto me, and important-and it can, sureenough, be combinedwith Barry'sdefault preferencefor equality. Still,the points are separate.The moral arbitrariness f naturaland social en-dowments in itself places no priorrestrictionon ways desert and entitle-ment can justly be affected by these endowments-as propertyentitle-ments are under Rawls's differenceprinciple.The point is, if we claimthat there is such a dependence, this claim needs to be justified.



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For all this tells us, we can still regard society as a joint venture formutual advantage. The prime question Rawls addresses might be not"Why accept inequality?"but "Why limit myself in pursuit of my ownadvantage?"This is a question that can be asked also by a well-off per-son: he has much, but why not go for more?Rawls,in effect, gives thisanswer: "Youhave what you have only because others constrain them-selves, in ways that makefora faircooperativeventure for mutual advan-tage. Constrainyourselfby those rules in return,and you give them fairreturnforwhat they give you."Whether this answermoves a person de-pends on his sentiments of fairreciprocity.Supposeeach personspranginto existence on a separate sland, adultand able. Each produced ndependently,and each was protectedby thewater from threats and from takings. Even then, Barryholds, equal di-vision would prima facie be requiredby justice. If some islands werefertile and others barren,the differencewould be morallyarbitrary.Thelucky ones, then, would be requiredby considerationsofjustice to share(pp. 238-39).5So argues Barry,and perhapshe is right. Still, from the bareassump-tion that fertility s morallyarbitrary,no obligationto share follows. Thelucky ones could admit that their luck is morally arbitrary,and still ask"Why share?"One answer they could not be given is that sharing paysothers back for their cooperationor their restraint. No one has cooper-ated and no one has restrainedhimself, and so there is nothing to payback. Motivesof fairreciprocity,then, would not lead the lucky ones toshare, even though they freely admittedthat their luck was morallyar-bitrary.

II. THE CONTENT OF FAIR RECIPROCITYCould Rawls's difference principlebe accepted by people whose moralmotivationsare ones of fair reciprocity?Couldit be accepted as givingfair terms of reciprocity n society conceived as a venture formutual ad-vantage? Barrythinks not. Fairterms, so conceived, should be not onlymutuallyadvantageous,but advantageous o an equal degree. "Tobe sta-ble, in other words, the solution should reflect the bargainingpower of

5. See Robert Nozick, Anarchy, State, and Utopia (New York: Basic Books, I974), p.i85, and Gauthier, Morals by Agreement, pp. 218-19.



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the parties."This requirementyields not the difference principle, butsomething more inegalitarian."Introducing he requirementof mutualadvantagethreatensto unravelRawls'stheory" p. 249).Now perhaps fair reciprocitydoes requireequal advantagefor all, asBarry maintains. This would mean equal advantageas measured fromthe "disagreementpoint,"meaning the situationthat would obtainif no

agreementwere reached. If the disagreementpointrelevantto the socialcontract made some peoplequitewell off andothersquite badlyoff, thensentiments of fair reciprocitymight endorse preservingthis inequality.Perhaps-though it must be psychologicallycontingent what terms ofsocial exchange will be seen as fair. In truth, though, a disagreementpoint of general egoism would be highly egalitarian.In a world wherelife is short, nasty, and brutish forall, could there be much difference inprospects for misery, comparedto the gains to be had fromcooperationand mutual restraint?Even the strongest s easilykiUled.We are temptedto think that if a native qualityis fortunate for a person in an orderlymarket society, it must be a godsend to him in a state of nature. Barryhimself, though, points out that a "brilliantbut severely handicappedperson may do verywell in a marketsociety"(p. 253), though he wouldstarve in a world without nurture, education, and protection.Strengthand guile we imagine to be useful anywhere,but they may put one indeadlycompetitionwith otherswho also have guile if not strength.6Gauthierappears to draw inegalitarianconclusions from bargainingconsiderations,but as Barrynotes, the conclusions depend on a bizarrechoice of disagreementpoint. Gauthier'sbargainingproceedsnot fromastate of generalegoism, but froman idyllic (for the lucky) market econ-omy-a Lockeanworld,except that whereas Lockethought that rules ofpropertywould need enforcement, and that enforcement would lead toquarrelsand fighting, the marketconstraintsof Gauthier'sdisagreementpoint are enforced as if by magic. Why should anyone starvepeaceably

6. The notion of a disagreement point for the social contract may be puzzling. It is notto be a breakdown into warring subgroups, as in recent years in Lebanon. For then eachsubgroup has elements of a social contract, whereas the disagreement point is to be lifewithout a social contract at all. Moreover, when a social contract breaks down, people stillhave characteristics formed under old arrangements. Part of what we reciprocate under asocial contract is the cooperation and mutual restraint that allowed our nurture and for-mation. Should the relevant disagreement point, then, be one in which we are all dead asbabies? Should it be like Rousseau's state of nature, with each person solitary and animal-like? It is hard to say-but in any case, it will be bad, and roughly equally bad for everyone.



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just because he would do badlyin a Lockean worldwith magic police?(Gauthierhas answers; Barryand I both find them unconvincing.)7Gauthier awards the person who gains least the most gain possible,where gain is measuredfromGauthier's trangelychosen disagreementpoint. As for the unit of gain, it is the gain that would come if the entiresurplus derivablefrom cooperationwere awarded to that person.8Callthis each person'smaximumgain. Maximumgain is insensitive to pro-ductive abilities; f everyoneworks foryou, why workyourself?Roughly,we can say this: If Gauthier'sdisagreement point were one of generalegoism and not of Lockeanmagic, everyone'sstate at the disagreementpoint would be about the same. Roughly, too, everyone's state of maxi-mum gain is the same. To maximize the gain of the one who gains leastis to make the worst-off as well off as possible-the requirement ofRawls'sdifference principle.Fix up Gauthier'sdisagreement point, andfrom his theoryout pops Rawls.s

Still, not all is well with Justice as FairReciprocity-for reasons laidout recently by AllenBuchanan.loThe great fly in the ointment is exclu-sion." The rationalefor being just, on this conception,is that one givesfairreturnto othersby supportinga society-widescheme of fairreciproc-ity. Whogets includedin the scheme? Nothingin this barerationale ellsus. There are good egoistic reasons for including anyone who wouldmake too much trouble otherwise. But if outsiderscan be controlled atsmall enough cost withoutinvokingtheirvoluntaryrestraint,must theybe offeredfair terms?

Barry argues that because of the possibilityof exclusion, a require-7. See Gauthier, Morals by Agreement, pp. I90-22I, and Barry, pp. 249-54.8. Gauthier, Morals by Agreement, pp. II 3-56.9. Gauthier's theory employs utilities, whereas Rawls uses primary social goods: things

such as money, powers, and opportunities that it is rational to want whatever else onewants. This difference, though, should not much affect the present argument. In a state ofnature, whether Hobbes's or Rousseau's, primary social goods are grievously lacking forall. On the other hand, anyone who could pocket the entire social surplus would haveprimary social goods without practical limit. In terns of primary social goods, then, eachperson's allotment is roughly equal to everyone else's at the disagreement point, and eachperson's maximum gain is equal to everyone else's. Thus unless there are great differencesin the broad shapes of people's utility curves connecting these two extreme points, thisshould translate, by Gauthier's theory of maximin relative utility gains, into a maximindistribution of prospects for primary social goods-Rawls's difference principle.io. Buchanan, "Justice as Reciprocity."

II. Ibid., esp. pp. 250-51.



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ment of mutual advantage has the following strong consequence:"Justice s done when the distributionof income is such that thereis nocoalition that could do better for itself economicallyby withdrawingwith a per-capitaequal share of the society'snonhuman productiveas-sets-capital, goods, natural resources, etc." (p. 243; italics mine).12Imyself think that this is wrong, and indeed that it repeats a mistake ofGauthier's.It is not only cooperation hat is at stake in questions of jus-tice, but mutual restraint:nonaggression and respect for a system ofpropertyrights. Just people forgo chances to seize advantage,and theidea of Justice as Fair Reciprocity s that they forgo these chances inreturn for others' voluntarysupportof just arrangements.Now a coali-tion that withdrawsfrom society renounces any claim to justice fromthose who remain. Why think they could take along their per capitashare of nonhuman productiveassets? Why think they could avoidslav-ery at the hands of everyoneelse? Why think they could keep the prod-uct of their laborand capital?To claim Justice as FairReciprocity,onemust offer fairreciprocity.The real sources of worrythat Barry dentifies are, I think, these two:First, groups incapable of voluntaryrestraintin accordancewith stan-dardsof justice. Animalsand some of the feeblemindedareincapableofhaving their actions guided by standardsof justice. Some congenitallyhandicappedpeoplecan be ignoredas incapableeitherof contributionordisruption.Babiesmayreciprocate omeday f they live, but could be tor-turedto death withoutviolatingdemandsof fairreciprocity.Future gen-erationscannot directlyaffect the living.13Rawls finds himself forced totreat these all as separateproblems.Perhapshe is right: fairreciprocityis not everything,but stillit is crucial tomany typesof socialcooperation.Its content needs to be elucidated.Barry, hough, hopes fora conceptionof justice that admitsthese cases as central.A second, worse worry s helotry-and this bullet would be hardertobite.Whatif a groupcan be enslavedwithoutexcuses, andenslavedprof-itably?The groupis excluded from the terms of voluntary cooperation

I2. As Barry notes, this standard is developed by John Roemer, A General Theory ofExploitation and Class (Cambridge, Mass.: Harvard University Press, I982), esp. chap. 7.It avoids "capitalist exploitation," Roemer says, but is still inadequate.I3. Rawls gives different treatments of these various problems. See A Theory of Justice,

p. 509, on infants; p. 5I 2 on animals; and pp. 284-93 on justice between generations. Seealso Barry, pp. I89-2I2.



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not because it has nothing to offer, but because it can be kept undercontrol. Sufficient contribution can be exacted from members of thegroupwithout calling on their motives of fairreciprocity.Can the mas-ters engage in fair reciprocity among themselves, cooperating to takefrom the helots by force?If so, what requirementsof fairreciprocityareviolated?If an extant fair scheme of social cooperation ncludes everyone, theneveryoneis owed fairreciprocity. f helotry s already n force, though, itmight be secure for the masters. What is needed is a helot group sharplyidentifiedby marks of birth,for in that case no master need fear exclu-sion. Rawls,of course, stoutlyrejects any such exclusion-but where ina generalrationaleof Justice as FairReciprocityie groundsfordoing so?

III. JUSTICE AS MUTUAL ADVANTAGEIn the end Barryrejects Justice as MutualAdvantage,but first he givesit a lengthy run. Orat least he exploresa closelyrelatedtheory:that therequirementsof justice are the ones that would be agreed to by ideal,self-interestedbargainers.Wemight call this Justice as IdealBargainingOutcome. These two conceptionsare not quite the same. Justice as Mu-tual Advantageassumes egoistic motives in society, and an egoist mightnot care about ideal bargains.He cares about actual bargainsand whathe can get awaywith. Egoisticbargainingdoes giverise to standards hatsuggest a kind of conventional ustice, but ideal bargainingmight settleon differentstandards romthese.Barry hinks there is sense in asking "what deallyrationalbargainerswould finish up with in any given situation" p. i i). He needs to answertwo classic objectionsto this claim. One stems fromThomas Schelling'sworkon bargaining: he outcomeof actualbargaining,Schelling argued,depends greatlyon the "salience"of some outcome for the bargainers-the subjective prominenceof that outcome. That explains why the out-come is often to leave each "hisown,"and often to "splitthe difference."Salience lends itself poorly o fruitful dealization,andif we take salienceaway, nothing is left to determinethe outcome of bargaining.4 This ob-jection Barry s at pains to answer.

14. Thomas Schelling, The Strategy of Conflict (Cambridge, Mass.: Harvard UniversityPress, I960), chap. 2.



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The second objection s this: Concede that in two-person nteractions,there is definiteness in how ideal bargainingwould come out. Society,though, is not a two-person nteraction.Withmore than two people, co-alitionscome into play.Whatmatters n multilateralbargaining s whichcoalition forms stably enough to dominate the others. That is partly amatter of historicalhappenstance.We cannot fruitfullyask what wouldhappen with an ideal hypotheticalbargainthat abstractsawayfrom thecontingencies of history.Then, too, which coalitionforms stably oftendepends on salient marksof group dentity.If we want to know how so-cial bargainingwill come out, it does no good to consult an ideal hypo-thetical bargainthat abstractsawayfrom such game-theoretic rrelevan-cies as skin color,dialect,kinship,dress, and ritual.I myself think that both these objectionsare correct. In self-interestedinteractions,trueenough, agents will often strikebargainsandwill oftenenforce them. That gives rise to actionsthatmakeit seem as if the agentis respecting conventionalentitlements.(Of course, self-interested nter-actions also give rise to challenges, theft by stealth, raids,enslavement,and wars of attrition.)Now respectingentitlements can preventwastefulstruggle, and so bargaining o an agreementto respect a particular et ofentitlements can be gainful for all. Once we have despairedof anythingmoreinspiring,a strategywith greatappeal s to find what is systematicin the waste-preventingaspects of egoistic interactions,and label it jus-tice.This strategy depends on a claim that ideal hypotheticalbargainingyields a definite outcome.Barryrebutsargumentsthatit will not. Justiceas Ideal BargainingOutcome is responsive to bargaining power. Whatexactly bargainingpowermeans is unclear,but Barry hinks that we canfind it in the abstractgame-theoreticstructure of two-personbargainingsituations-and indeed thatJohn Nash's famous solutioncapturesidealresponsiveness to bargaining power. (Nash argued that bargainerswillmaximize the mathematicalproductof their utility gains-but exactlywhat his solution is will not matter for what I say here.) These claimsraise many difficultiesthat Barryexpounds marvelously,and I can onlytouch on what he says. Barryargues,first,thatwe have strongintuitionsaboutbargainingpower,andon this I thinkhe is right.Barry hinks thatthe intuitionsdependon the featuresof the situationcapturedby a stan-dardmathematicalgame theorist'sanalysis:the possiblecombinationsofutilities the bargainerscan jointlyattain.I myself suspect that our intu-



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itions on bargainingpower are powerfullydrivenby factors that escapestandardanalyses-factors probablynot capableof idealization.Barry'sclincher is a case of a rich man bargainingwith a poor manover a pot of money. Neither will get anythingunless they can agree ona division. The poorman is desperatefor a small amount of the moneyin the pot, and needs the rest far less urgently (pp. I3-I4). Now in thiscase, I agree, we do feel that the rich manis in the strongerposition. TheNash solution, too, has the rich man coming away with the lion's shareof the money, and so we might think that the Nash solution is vindi-cated.Still, I claim, not all of the features that guide our intuitions of bar-gaining power help determine the Nash solution. Suppose instead thatthe poor man needs each dollarequally, and needs money desperately.Each five dollars will feed him another day. Suppose the rich man'spockets are empty, and he needs five dollars for a taxi ride in order tosave himself a one-mile walk in gloomyweather.Any additionalmoneyhe gets will go in the bank and be little noticed. Suppose they bargainover splitting one hundred dollars. In this case the Nash solution is togive most of the money to the poorman. Do we reallythinkthe poormanwill have the lion's share of bargainingpower?Much of what makes for bargaining power is uncertainty. The richman can act on a whim: he may feel magnanimous,or he mayfeel dom-ineering. Quirksof moodaffect his utilities, and so the poorman is un-certain what the rich man's utilitiesare. In economists'jargon,he is un-certain which divisions lie on the contract curve, the set of efficientdivisions each prefers to disagreement.He does not know whether therich man would ratherspite him and walk in the rain ratherthan takeless than the lion's share.My own rough story of what goes on in self-interested bargainingwouldowe much to Schelling.Conventions atch ontosubjectivelyprom-inent features of bargainingoutcomes. Often, though, the conventionaloutcome turns out not to be mutually advantageous-or at least oneparty cannot be at all confident that it will be mutually advantageous.That may be because of personal quirks in utility, like mood, or, moreprobably,because of alternativesthat each partycan retreatto-self-re-liance, or deals with thirdparties.When a conventionbecomes system-atically disadvantageous to one kind of party-say, customary wagesmake for labor shortages, or a traditionallydeferentialcaste gains eco-



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nomic power,or the ratio of young women to oldermen shifts-this putspressure on the conventionaloutcomes. Novel accommodationsare re-sented at first as unfair,but then they come to seem right andjust.In the end, as I say, BarryrejectsJustice as MutualAdvantage.If I amright, though, he concedes morethanhe needs to along the way. Justiceas MutualAdvantage s doubtfullycapturedby Justice as Ideal Bargain-ing Outcome, and Justice as IdealBargainingOutcomecannot be madecoherent and convincing. Too much in actual bargainingdepends onfeatures of the situationthat are not subject to standardgame-theoreticidealizations.IV. JUSTICE AS IMPARTIALITYBarry'sown conception of justice is Justice as Impartiality. n this vol-ume, however, we learn more about what this conception is not thanaboutwhat it is. Rawls(on one of his perches at least) tries to formulatesuch a conception by invokinghis "originalposition,"a hypotheticalsit-uation of self-interestednegotiationfrombehind a veil of ignorance. Inthe originalposition,no one knows his own identityor variousotherfactsabout his situation, and each tries to do as well for himself as he can.Now Rawls thinks that behind this veil of ignorance,rationalself-inter-ested choosers would act with maximum risk aversion. They wouldchoose the differenceprinciple,to give those in the worst startingposi-tions the best possible life prospects.Barryapplaudsthe differenceprin-ciple, but rejects Rawls's originalposition argument for the differenceprinciple.He agrees with John Harsanyi'sclaim that the test of self-in-terest frombehind the veil of ignoranceyields utilitarianism.Barrymis-trusts utilitarianism or much the same reasons as Rawls: chief amongthem, that utilitarianism,in some circumstance, might endorse out-comes like slaverythat no one would find acceptable.Accordingto Barry,though, Rawls has anotherargument for the dif-ference principle,to be found in chapter 2 of Rawls's book. This argu-ment is valid,Barrysays, andit "runsfromequal opportunity o equalityof income and from there to the differenceprinciplevia the notion of aParetoimprovementon equality"(p. 214). It is not supposed to be en-tirelydistinct fromthe originalpositionargument.The originalpositionis meant only to represent "in a dramaticform the constraintsthat im-partialappraisal mposes on anything that can count as a principle of



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justice" (p. 214). Barrytakes it that the argument the original positiondramatizes s supposedto be the equal opportunityargumentof chapter2. Barry thinks the arguments are in fact not equivalent, however, be-cause the originalposition "does not capture adequatelythe moral in-sights thatunderlieRawls'sfundamentalegalitarianismand drive his ad-vocacy of the differenceprinciple" p. 215).

Rawls's argumentin chapter 2 startswith a demand for equal oppor-tunity. In a laissez-faireeconomy,threemorally ndifferentfactors affectoutcomes: natural talents, initial social circumstances, and subsequentluck. If we correct fora person'scircumstances of birth and upbringing,we satisfy one demand of equal opportunity: hat people with the sametalent and abilityand the same willingness to use them should have thesame prospectsforsuccess. Then the only thing left to affect one's pros-pects at conception is genetic makeup. But genetic makeup is just asmorally arbitraryas parental supportand influence. A full-fledged de-mand forequalityof opportunitywould be that nothing morallyarbitraryaffect one's prospects-not even genetic makeup.

Still, if everyone'sprospectscan be improvedby waiving the demandfor this strictequalityof opportunity,no one need complainof injustice.We move, then, to the social structurethat makes the prospects of theworst-offgroupas goodas possible. (Thereis more to be said about thismove, and Barryscrutinizesit carefully,but this is roughlyhow it goes.)The chapter 2 argument, in short, pushes the rationale for equality ofopportunity o the limit, and then allowsa move to Paretoefficiency.Rawls himself disclaims this as his officialargumentfor the differenceprinciple.15Still, Rawlsdoes present the argumentbeforedisclaiming it,and, taken on its merits, the argumentis well worthexamining. Shouldwe accept it? Should we demand equalityof opportunity,and press thisdemand to the limit?Justice does requireequalityin some sense: it requires,we might say,equality of consideration. But there are many ways this requirementcould be interpreted.Utilitarianismoffers one interpretation: veryonetocount as one, and nobodyas more than one. Utilitarianism reatsevery-

one equally, in the sense that every personis told that his interests willbe overriddenonly when otherwiseothers would have to forgoa greaterinterest. Why step, though, from this loose demand for equalityof con-I5. Rawls, A Theory of Justice, p. 75.



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siderationto the strict-and possiblyexpensive-demand that opportu-nities be equal? Or,more precisely,why demand that the least opportu-nities be as greatas possible,cost what it mayto achieve this? Increasingone person'sprospectsslightly,afterall, may sometimes requiredecreas-ing another'sgreatly.A small increase in the prospectsof the worst-sit-uated may cost a big decrease in the prospects of the better-situated.Why must it be preciselythis thatjustice demands?Genetic makeup, social starting point,and luck aremorally rrelevant.It might be claimed,then, thata socialstructure,to be just, cannot allowoutcomes to dependon any of these properties.Strictequalitywould sat-isfy this demand, though equal prospectswould not. (What could be ofless moral relevance than pure luck?) A requirementof strict equalitymight be waivedwhen it is to everyone'sadvantageto do so; this seemsentirelyreasonable.I arguedabove,however,that when a difference be-tween peopleis morally rrelevant,what follows s not that this differencecannot be allowed to influence outcomes.What follows is that the socialstructurecannot be justified on the groundsthat it makes outcomes de-pend on this property. f, though, the social structurecan be justified insome other way, the fact that, underit, outcomes depend on morally r-relevant contingencies is no objection.Barryhas stillanotherwayto defend the differenceprinciple-and thisway will occupy the rest of the three-volume reatise. He calls his theorya formof soft constructivism.A theory s constructivist, he explains, if,first, it is a theoryof pure procedural ustice: "Whatcomes out of a cer-tain kind of situation is to count as just," and there is no standardofjustice independentof this test (p. 266). Second, the test situation is hy-pothetical; t need not be playedout in fact (as, say, a lotterymust). Thetheorist posits the situation and deduces what would emerge from it.Barry'sown constructivism s soft in that the partieshave "acapacityandpreparednessto be moved by moral considerations"p. 350). They havehuman decency, with an emphasison human.Rawls, with his original position, sought a construction that wouldyield an outcome cleanly, without appealto furthermoralnotions. Thishope Barryeschews; he does not think we can "hopefor anythinglike adeductive proof"of which principles emerge from his framework(p.345). We can ask, then, Barryrecognizes, whether so soft a constructionas his is doing any work.Barry's est is to askwhich agreements agentsof certain kindscouldreject and still be reasonable.This puts the burden



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on the moral term 'reasonable'.Barrydoes not think the term can use-fully be defined; rather,we must depend on intuitive understandings.Still, he thinks he can avoidsimply "putting n as reasonableness whatwe take out at the end as justice" (p. 347). The construction changesone's ideas, he says: it "encourages-indeed, virtuallyforces-one tomake a distinctionbetween what one wouldpersonallysupportand whatone believes could not reasonablybe rejected"(p. 352).In this firstvolume, Barry'sdiscussionof these pointsis brief. Presum-ablywe will learn morelater. Fornow, we still need to ask how much asoft constructioncan tell us. We do have intuitions, I agree, aboutwhatis reasonable and what is not. The question is how we should regardthese intuitions. Perhaps they can be given an illuminating rationale.Then we can see the intuitions as implicitlyrespondingto this rationale.If the rationale s good,we can regardthe intuitions as giving us a kindof knowledge of what is reasonable. We can hope, then, that Barrywillbe able to display a convincing rationalefor our intuitions that certainprinciplescould not reasonablybe rejected.If, though, the unreasonablenessof rejecting certainprinciplesis justa brutemoral fact, whisperedto us bythe voice of intuition,then I worry.Argument stops somewhere, to be sure, but I hope it does not have tostop with bruteintuitionsof what is reasonableand what is not. If some-one tells me a demand is unreasonable,I want to ask why.

Documents

Allan Gibbard - Constructing Justice (Barry's Theories of Justice Review)