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Bargaining, Justice, and Justification: Towards Reconstruction

Published online by Cambridge University Press:  13 January 2009

James S. Fishkin
James S. Fishkin
Affiliation:
Government and Philosophy, University of Texas at Austin.
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Extract

Part I of this essay will be devoted to Gauthier's principle of minimax relative concession. Part II will focus, more generally, on the variety of possible strategies available to liberal theory. In Part I, I will argue that the principle of minimax relative concession does not define “essential justice” as Gauthier claims. In Part II, I will argue that the difficulties facing Gauthier's strategy are common to other strategies of die same general kind. I will close by suggesting what I think may prove to be a more promising approach.

Type
Research Article
Information
Social Philosophy and Policy , Volume 5 , Issue 2 , Spring 1988 , pp. 46 - 64
Copyright
Copyright © Social Philosophy and Policy Foundation 1988

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References

1 All references to Gauthier, are to his Morals by Agreement (Oxford: Oxford University Press, 1986);Google Scholar in subsequent notes and parenthetical references in the text, the tide of this work will be abbreviated to MA. The term “Lockean proviso” refers to the morally appropriate baseline for bargaining. Central to Gauthier's position is that “the proviso prohibits bettering one's situation through interaction that worsens the situation of another. This, we claim, expresses the underlying idea of not taking advantage.” [Gauthier, MA, p.205].

2 Gauthier, , MA, p.204.Google Scholar

3 Nozick, Robert “Coercion,” Laslett, Peter, Runciman, W.G., and Skinner, Quentin, eds., Philosophy, Politics and Society, Fourth Series (Oxford: Basil Blackwell, 1972), pp.101–135, esp. p.115.Google Scholar

4 Gauthier explains the principle of minimax relative concession as follows: “in any cooperative interaction, the rational joint strategy is determined by a bargain among the co-operators in which each advances his maximal claim and then offers a concession no greater in relative magnitude than the minimax concession” (the minimum maximum concession, MA, p.145).

5 This kind of dynamic status quo also surfaced as a weakness in the theory of James Buchanan which Gauthier relies on at certain points. See Rae, Douglas W. “The Limits of Consensual Decision” The American Political Science Review, Vol. LXIX, no. 4 (12 1975), pp.1270–94, esp. p.1289CrossRefGoogle Scholar for an incisive critique of the early version developed by Buchanan and Tullock.

6 We might even imagine that once this hole in the Lockean proviso is discovered, A will regularly hold such dinner parties for C, and C will return the favor by holding them for A – permitting each of them to exchange chances to extort money from the unwitting third guest, all in full conformity with the theory and without violating the Lockean proviso.

7 Brown, Claude, “Manchild in Harlem”, New York Times Magazine, 09 17, 1984, p.44.Google Scholar

8 This discussion is taken from a draft of my forthcoming book which is tentatively entitled Reconstructing Liberal Theory. In this section, I borrow substantially from my brief presentation in “Liberal Theories: Strategies of Reconstruction” D'Amico, A., ed, Liberals on Liberalism (Totowa, NJ: Rowman and Allanheld, forthcoming).Google Scholar

9 Ackerman's theory employs neutrality as a “filter” on the motivations which can bear on the choice of principles. See the discussion below and Ackerman, Bruce A., Social Justice in the Liberal State (New Haven and London: Yale University Press, 1980).Google Scholar

10 A good account of these ambiguities, along with specimen illustrations, can be found in Pitkin, , “Obligation and Consent” Laslett, Peter and Runciman, W.G., eds., Philosophy, Politics and Society, Fourth Series (Oxford: Basil Blackwell, 1972).Google Scholar

11 Nozick, Robert, Anarchy, State and Utopia (New York: Basic Books, 1974) p.5.Google Scholar

12 Can they be fully compensated by the protection services they have already refused (that is, after all, why they are independents)? But if they are not fully compensated, then have not rights been violated? Nozick might, of course, hypothesize that they all would simply love to join the state but this departs from the bounds of realism.

13 Rawis, John, A Theory of Justice (Cambridge, Mass. Harvard University Press, 1971).Google Scholar

14 By “neutrality” Ackerman means “No reason is a good reason if it requires the powerholder to assert: (a) that his conception of the good is better than that asserted by any of his fellow citizens, or (b) that, regardless of his conception of the good, he is intrinsically superior to one or more of his fellow citizens.” (p.11).

15 Tussman, Joseph, Obligation and the Body Politic (New York: Oxford University Press, 1960).Google Scholar

16 Michael, Walzer, Spheres of Justice: A Defense of Pluralism and Equality (New York: Basic Books, 1983).Google Scholar For further criticisms along these lines, see my “Defending Equality: A View From the Cave” Michigan Law Review, Vol. 82, no. 4 (02 1984), pp.755–760.CrossRefGoogle Scholar

17 For a critical discussion which argues that Mill stretches utility to the point of vacuity, see Berlin, Isaiah, “John Stuart Mill and the Ends of Life,” in Four Essays (New York: Oxford University Press, 1969).Google Scholar For a more sympathetic interpretation, see Wollheim, Richard “John Stuart Mill and Isaiah Berlin: The Ends of Life and the Preliminaries of Morality” in Ryan, Alan, ed. The Idea of Freedom (New York: Oxford University Press, 1979).Google Scholar

18 For some useful observations on the intuitive appeal of the notion of equality at die core of utilitarianism, see Williams, Bernard, Ethics and the Limits of Philosophy (Cambridge, MA: Harvard University Press, 1985), pp.105–6;Google ScholarWidgwick, HenryThe Methods of Ethics, Seventh Edition (London: MacMillan, 1963), pp.382, 420–42).Google Scholar

19 For more on the jurisdiction problem see my Beyond Subjective Morality: Ethical Reasoning and Political Philosophy (New Haven and London: Yale University Press, 1984), Chapter Four.Google Scholar

20 See Rawls, , “A Weil-Ordered Society,” Laslett, Peter and Fishkin, James, eds., Philosophy, Politics and Society, Fifth Series (Oxford: Basil Blackwell/New Haven: Yale University Press, 1979), pp.6–21.Google Scholar

21 This notion of a self-reflective political culture is developed in greater detail below.

22 For further arguments along these lines, see my Beyond Subjective Morality (New Haven, CT: Yale University Press, 1984).Google Scholar