2 Gauthier, David offers a parable illustrating this in Morals by Agreement (Oxford: Clarendon Press 1986), 190-1.Google Scholar Unless otherwise indicated, page numbers in the text refer to this work.

3 I use ‘desire’ here as a surrogate for a variety of subjective conative states, some of which may be more properly called ‘ends,’ ‘aims,’ or ‘goals.’

4 This sort of view is adopted by Buchanan, James The Limits of Liberty (Chicago: University of Chicago Press 1975)Google Scholar and Freedom in Constitutional Contract (College Station, TX: Texas A & M Press 1977); and Harman, Gilbert The Nature of Morality (New York: Oxford University Press 1977).Google Scholar

5 Gauthier makes this point, no doubt with Rawls in mind, when he says, ‘Those who claim that moral principles are objects of rational choice in special circumstances fail to establish the rationality of actual compliance with these principles’ (17). The rational compliance problem—the problem of showing that compliance is rational—is not, as even a casual observer of human nature knows, the same thing as the problem of ensuring compliance.

6 Gauthier appears to hope for more from his moral theory: ‘ … moral constraints must apply in the absence of other-directed interests .. .indeed they must apply whatever preferences individuals happen to have’ (100). This claim can be interpreted in various ways. Taken sans phrase it might appear to mean that regardless of the preferences of individuals and the situation in which they find themselves, moral restrictions exist and are applicable to them. It will become apparent, I think, that Gauthier cannot simultaneously satisfy this requirement, carry out his contractarian project, and succeed in showing that moral restrictions are rationally binding. Probably, though, we should take Gauthier’s claim to mean only that when people’s preferences and external circumstances are such that a mutually advantageous bargain would be struck in the initial situation, then the terms of the bargain apply regardless of the preferences people actually have. This requirement appears consistent with the contractarian project and the goal of rationalizing moral restrictions. However, I argue below that this latter goal puts severe limits on what restrictive assumptions we are warranted in making about the motivations of agents in the initial situation. As a result, the cases in which a mutually advantageous bargain would be struck may be far fewer than Gauthier believes.

7 I have more to say about this rationale below, 462 ff.

8 The specific assumptions Gauthier makes in Morals by Agreement regarding mutual concern have been clarified and criticized by Christopher Morris in ‘The Relation Between Self-Interest and Justice in Contractarian Ethics,’ in Paul, Ellen Frankel ed., Gauthier’s, New Social Contract (Social Philosophy & Policy 5 [1988]), 119-53;Google Scholar and by Vallentyne, Peter in ‘Contractarianism and the Assumption of Mutual Unconcern,’ Philosophical Studies 56 (1989) 187-92.CrossRefGoogle Scholar Gauthier, has responded to some of these criticisms in ‘Morality, Rational Choice, and Semantic Representation: A Reply to My Critics,’ Social Philosophy & Policy 5 (1988) 213-17,CrossRefGoogle Scholar suggesting thatthe assumption of non-tuism can be given a less problematic role. The retrenchment is tentative, though. He says:

I maintain that, contrary to Gauthier’s wish, in fact a more radical change is needed. Nothing less than dropping the assumption of non-tuism will be consistent with the primary goal of Gauthier’s project. If he is serious about his assumptions and the criteria he explicitly endorses for the adequacy of a moral theory, he should be pleased to be rid of the assumption of non-tuism.

9 The well-being of an agent might include the satisfaction of her desires, but plausible accounts will not restrict it to this. See my ‘Prudential Reasons,’ Canadian journal of Philosophy 10 (1979) 63-81.

10 The definition of ‘mutual unconcern’ is semantically ambiguous because we don’t know whether ‘interests’ is used collectively or distributively. The definition of ‘non-tuism’ is univocal given the labelling I have endorsed for the above distinction, but we can hardly stick Gauthier with this labelling.

11 There are passages in Morals by Agreement that seem based on a confusion of interest and interests in the senses suggested in the text here. For example, Gauthier says: ‘co-operation is possible only among contemporaries who actually interact. Although an individual can do much to benefit or harm his descendants, only those whose lives overlap with his can benefit or harm him in return’ (298). But this is not true if ‘benefit’ and ‘harm’ are interpreted, as Gauthier explicitly requires, in terms of the utility level of agents. For as our considered desires can be about anything whatsoever, and our utility is determined by the degree to which our desires are satisfied, we can surely be benefited or harmed in the sense of having our utility level raised or reduced by actions of distant future people (and indeed by people with whom we have no causal relations at all). For a related discussion, see my and Lambeth’s, Mark ‘Providing for Rights,’ Dialogue 27 (1988), 497;Google Scholar reprinted in Vallentyne, Peter ed., Contractarianism and Rational Choice (Cambridge: Cambridge University Press 1990).Google Scholar

12 Peter King has pointed out to me that the requirement that people’s utility functions be independent and that the people take no interest in the interests (understood in terms of preferences) of others are not equivalent. Parents frequently have desires about the content of the desires of their children. This is not equivalent to having desires about the degree of satisfaction of the desires of the children. Thus, two people could have independent utility functions (in the sense that their levels of utility are logically independent) and yet ‘take an interest in the interests of others.’ Most of us have derivative desires about the content of the interests of others. If we enjoy live jazz, we hope that enough of our neighbors do so as well, to support local jazz clubs. Those who are preferentially conformist or non-conformist also take an interest in the interests of others without necessarily gaining or losing from the utilities of others.

13 As Gauthier points out, ‘[w]ere the scarcity faced by each person not aggravated by the presence of her fellows, then however self-biased she might be, her activities would bear little relation to those of others, and neither conflict nor co-operation would result’ (114).

14 The most elegant statement of this is still Hume’s, I believe. See §III, Part I of An Enquiry Concerning the Principles of Morals (La Salle, IL: Open Court 1960).

15 The problem of identifying the offending desire in a set of extrinsically logically dependent desires arises because extrinsic dependence is, obviously, not an intrinsic property of a desire. We might, then, choose to reject all desires that could be logically related to the desires of others. The possibility of extrinsic logical dependence is an intrinsic property. Unfortunately for this strategy, it is an intrinsic property of all desires; no desire is such that someone cannot have a desire that is extrinsically logically related to it.

16 When two people have desires that conflict, it is, no doubt, good strategy for the resolution of conflict to try to find more basic desires that ground these directly conflicting desires but are not themselves directly in conflict. Perhaps I desire that the tract of land be developed only because I see this as a means to housing the homeless, and you desire that it not be only because you see development as a threat to wildlife. Shifting discussion to the more fundamental desires of housing the homeless and preserving wildlife habitat—desires that are not in logical conflict—raises the possibility of solutions that are mutually satisfactory. But it is not always possible to ‘retreat’ to desires that are not in logical conflict (or otherwise logically related). In the text I assume that the conflicting desires are basic (non-derivative) desires.

17 See Vallentyne, ‘Contractarianism and the Assumption of Mutual Unconcern,’ and Morris, ‘The Relation Between Self-Interest and Justice in Contractarian Ethics.’

18 Narveson, Jan clearly holds this view in ’McDonald, and McDougal, Pride and Gain, and Justice: Comment on a Criticism of Gauthier,’ Dialogue 27 (1988) 503-6.CrossRefGoogle Scholar

19 This is especially true with respect to ‘mutual unconcern.’ ‘Non-tuism’ is more a quasi-technical term, of which, perhaps, there is no common understanding (at least among common people). Even with respectto ‘non-tuism,’ though, there is a history of broader usage than Gauthier’s. (See Wicksteed’s, P.H. The Common Sense of Political Economy [London: MacMillan 1910], 163-82.)Google Scholar

20 Indeed, Gauthier presents and defends a purely subjective theory of value- more precisely, one that makes value dependent only on individual preferences. This may seem to preclude offering the sort of account mentioned in the text. But perhaps not. One might, consistent with such a subjective theory of value, hold that sense can be made of a purely naturalistic account of individual well-being (or flourishing) that is not wholly dependent on individual preferences. While such a concept has, this sort of subjectivist might insist, no direct moral significance—certainly not that attached to the concept of moral value by a consequentialist—it is a well-defined concept, and one that can be used in understanding ‘non-tuism.’ The fact, though, that Gauthier offers no account of ‘individual well-being’ distinct from utility maximization is further indication that this sense of ‘non-tuism’ is not what he has in mind.

21 Narveson seems to assume that desires for positional goods must be excluded in order for the bargaining situation to be a non-zero-sum game — for there to be a mutually advantageous bargain possible (505). This, of course, is not true. In the first place, we may have other desires that make the situation non-zero-sum. Second, the various positional desires may not be opposed to one another. So, for example, I may desire to make more money than you and you to have better developed pectoral muscles than I (or even, less plausibly, to make less money than I). Whether a situation is zero-sum or not depends on the collective preferences of the agents. Garden variety positional desires are not intrinsically related to the desires (preferences) of others; hence, they do not necessarily render a situation zero-sum. Finally, even if each positional desire I have is directly opposed by a positional desire of yours we may still be in a non-zero-sum game. Suppose that I want to have both a larger income and more advanced academic degrees than you, and you have similar desires with respect to me. It may still be that I care more about ‘winning’ in the category of income and you care more about ‘winning’ in the degrees category. We will, perhaps, find ourselves in a non-zero-sum game. Even if Narveson were correct in believing that desires for positional goods must be excluded if a non-zero-sum game is to exist, this would constitute a tenuous defense of the exclusion. Presumably the reasoning is that if the game is zero-sum there will be no mutually advantageous bargaining solution and if there is no such bargaining solution, then contractarian theories of morality will be silent about such cases. This will constitute a reason for excluding desires for positional goods only if one assumes (a) the correctness of contractarian theories of morality, and (b) that morality is not silent on these cases. The first of these is frequently what is at issue in such discussions. The second is by no means one to which a contractarian must commit herself. Indeed, where the situation is one of strict competition, where there is no possibility for mutual advantage, it seems more consonant with the contractarian project to hold that there are no moral restrictions than to hold that the moral restrictions are those it would be reasonable to institute were we to have different preferences — ones that did not put us in strict competition.

22 ‘Problems of inheritance may seem to be dissolved by the assumption of mutual unconcern. A person who takes literally no interest in her fellows and their interests must be entirely indifferent to what befalls her possessions and privileges when she is no longer able to derive benefit from them’ (300; my emphasis). Here, mutual unconcern is taken to include the assumption that agents take no interest in other agents, not just that they take no interest in the preference satisfaction of other agents.

It is not clear, by the way, why Gauthier thinks that a person who takes ‘no interest in her fellows and their interests’ must be unconcerned with the posthumous disposition of her property. It does not, of course, follow from the fact that one takes no interest in one’s fellows that one takes an interest only in oneself. Perhaps, rather than (or in addition to) non-tuism, Gauthier means to assume that a person’s utility is entirely a function of the commodities and services he consumes or of the experiences he has. At one point he says, ‘each person’s utility is strictly determined by the goods he consumes and the factor services he provides’ (86). Whether this endorses the position described here depends, of course, on how we understand ‘goods.’ In any event, Gauthier never defends the extremely strong assumption that a person’s preferences not extend to states of affairs beyond his experience. Such an assumption seems both indefensible and unnecessary for the defense of Gauthier’s theory.

23 Given that ‘to make covenants with brute beasts, is impossible’ (Hobbes, Leviathan [London: Collier-MacMillan 1969], 109),Google Scholar contractarians typically include the interests of animals in the theory by pointing to human concern for them. (See, for example, Richards, D.A.J. A Theory of Reasons for Acting [Oxford: Clarendon 1971], 182.)Google Scholar

24 ‘Morality, Rational Choice, and Semantic Representation,’ 214-15

25 It is not clear, however, whether it solves the problem raised by Chris Morris that Gauthier invokes it to solve. But I set this issue aside here.

26 A bargaining theory can still offer an outcome, of course. But any plausible theory will offer only the default, ‘no-agreement’ outcome. Thus, the theory can be universal in the sense of always offering an outcome for any coherent set of preferences, but some of these outcomes will not plausibly be considered the outcomes of bargains, even if they are the outcomes of a bargaining theory.

27 Again, a bargaining theory may offer a solution in these cases, but there seems to be no natural sense in which the parties have struck a bargain.

28 In ‘Morality, Rational Choice, and Semantic Representation: A Reply to My Critics,’ Gauthier suggests that he must assume that people are likely to confront prisoners’ dilemma situations. But this assumption is necessary, he makes quite clear, in order to show ‘that it is advantageous for each person to comply with constraints that it would be rational for all to agree to, provided that others may be expected to be generally similarly compliant’ (215). That is, he sees it as necessary for the derivation of (rationally binding) moral rules, not for the correctness of the contractarian position.

29 This case is presented, in more detail and with consideration of some responses, in Hubin & Lambeth, 498-9.

30 Narveson clearly holds this position (505-6). His comments indicate that he takes the ‘non-tuism’ assumption to rule out desires for positional goods. (To avoid all of the counterexamples raised in ‘Providing for Rights,’ the non-tuism assumption would have to be interpreted even more broadly.) It is doubtful that Gauthier ever intended any interpretation except the first one discussed in the text — unconcern with the utility levels of others. For reasons discussed above, this will clearly not justify Narveson’s maneuver.

31 See, for example, the introductory comments to Morals by Agreement (11).

32 Morris, 138. See also Vallentyne’s discussion.

33 This Book Needs No Title (Englewood Cliffs, NJ: Prentice Hall 1980), 56. Cited by Morris, 138.

34 We can suppose that the first boy’s utility is linear with the amount of cake he receives and the second boy’s is linear with the ‘degree of equality’ in the division of the cake, where ‘degree of equality’ could be defined as: MIN(c¹, c²)/MAX(c¹, c²), where ‘c¹’ is the fraction of the cake received by the ith boy. We are to suppose that the latter boy’s utility function is the result of a non-moral tuistic concern with the welfare of the other boy.

35 See, for example, his comments, cited above (454), from Morals by Agreement (269).

36 Whether the same can be said for an assumption of non-moral motivation depends crucially on how one conceives such motivation. If all positive concern directed at others is conceived of as moral, then the assumption of non-moral motivation will pose the same difficulties for the rational compliance project as does the assumption of non-tuism. But there may be ways of construing the distinction between moral and non-moral motivation that will avoid this problem.

37 As Gauthier presents his views in Morals by Agreement, it is the expected utility of dispositions that determines the rationality of the actions they are dispositions to perform; an action is rational if it is in accordance with a disposition that would maximize expected utility for an ideal agent. But while much of his work is dedicated to showing that an ideal agent would have a reason to adopt a disposition not to maximize utility in interdependent situations, he believes that no such reason exists with respect to independent action. Thus, while even in independent choice situations actions are judged rational in terms of their conformance with rational dispositions, the rational disposition is to maximize utility in such situations.

38 Of course, it might tum out that a given institution enjoying such a sanction would be one with which we should rationally comply but this would not be simply because it represented the solution to the bargaining problem defined as in the text.

39 Calvin Normore suggested this case to me.

40 The same point can be made using the other senses of ‘non-tuism.’