Gauthier's title is potentially misleading. The phrase “morals by agreement” suggests a social contract theory of morality according to which basic moral principles arise out of an actual or hypothetical agreement. John Rawls defends a hypothetical agreement version, arguing that the basic principles of justice are those that would be agreed to in an initial position of fair equality. I myself defend an actual agreement version, arguing that the moral principles that apply to a person derive from implicit conventions the person has accepted in dealing with other people. Gauthier's view is different from either of these sorts of contract theory. Instead, he holds that certain basic principles of impartiality are prior to actual agreements.

Is a government required or permitted to redistribute the gains and losses that differences in biological endowments generate? In particular, does the fact that individuals possess different biological endowments lead to unfair advantages within a market economy? These are questions on which some people are apt to have strong intuitions and ready arguments. Egalitarians may say yes and argue that as unearned, undeserved advantages and disadvantages, biological endowments are never fair, and that the market simply exacerbates these inequities. Libertarians may say no, holding that the possession of such endowments deprives no one of an entitlement and that any system but a market would deprive agents of the rights to their endowments. Biological endowments may well lead to advantages or disadvantages on their view, but not to unfair ones.

I do not have strong intuitions about answers to these questions, in part because I believe that they are questions of great difficulty. To begin, alternative answers rest on substantial assumptions in moral philosophy that seem insufficiently grounded. Moreover, the questions involve several problematical assumptions about the nature of biological endowments. Finally, I find the questions to be academic, in the pejorative sense of this term. For aside from a number of highly debilitating endowments, the overall moral significance of differences between people seems so small, so I interdependent and so hard to measure, that these differences really will 1 not enter into practical redistributive calculations, even if it is theoretically i permissible that they do so.

Before turning to a detailed discussion of biological endowments and their moral significance, I sketch my doubts about the fundamental moral theories that dictate either the impermissibility or the obligation to compensate for different biological endowments.

Liberalism has often been viewed as a continuing dialogue about the relative priorities between liberty and equality. When the version of equality under discussion requires equalization of outcomes, it is easy to see how the two ideals might conflict. But when the version of equality requires only equalization of opportunities, the conflict has been treated as greatly muted since the principle of equality seems so meager in its implications. However, when one looks carefully at various versions of equal opportunity and various versions of liberty, the conflict between them is, in fact, both dramatic and inescapable. Each version of the conflict poses hard choices which defy any systematic pattern granting priority to one of these basic values over the other. In this essay, I will flesh out and argue for this picture of fundamental conflict, and then turn to some more general issues about the kinds of answers we should expect to the basic questions of liberal theory.

Gauthier's magnificent book erects a conception of morality, “morals by agreement,” on the foundation of his own theory of practical rationality. This is as it should be if, as he claims, following Hobbes and others, there is an initial “presumption against morality” (MA, p. 13) and no theory of morals “can ever serve any useful purpose, unless it can show that all the duties it recommends are also truly endorsed in each individual's reason” (MA, p.1), indeed, that it is a requirement of rationality that one always satisfy the requirements of morality (MA, p.5). This means, however, that the initial assumption against morality is inherited by his theory of practical rationality. His theory of morals therefore can serve a useful purpose only if his theory of rationality is sound. In this paper, I want to explore some of the more dubious aspects of that theory to see whether it can bear the heavy load of justification that “morals by agreement” places on it.

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.

“Does the existence of unequal social and economic starting points in life nullify capitalism's claims to justice?” Notice is hereby given that this essay's answer to this question is an unequivocal “maybe.” For it is a banal but true claim that everything depends upon what is meant by capitalism, justice and life's starting point. And it is a less banal but no less true claim that their meanings are opaque or controversial or both. In what follows I shall devote little attention to the question of what justice is and shall simply presume that it is best characterized by historical entitlement theory. The last part of the essay discusses the notion of life's starting point and vacillates over what it would mean for one such point to be equal to another. Hence, the bulk of my argument is taken up with exploring what capitalism must be like to conform to historical entitlement theory. And my conclusion will be that, insofar as capitalism respects every person's right of self-ownership, its claims to justice require that no one be denied one type of equal payment – a payment which might be rendered at each life's starting point.

David Gauthier's Morals by Agreement presents a partial theory of distributive justice. It is partial because it applies only to the distribution of gains from joint endeavors, or what we may call the ‘social surplus’ from cooperation. This surplus is the benefit we receive from cooperation insofar as this is greater than what we might have produced through individual efforts without interaction with others. The central core of Gauthier's theory of distributive justice is his bargaining theory of ‘minimax relative concession’ or MRC. Whether his theory is compelling turns essentially on whether MRC is workable and compelling. It is this issue that I wish to address.

Rights to compensation are much invoked and much disputed in recent liberal debates. The disputes are generally about supposed fundamental (natural, human or moral) rights to compensation, whose recognition and legal enactment would transform some lives. For example, special treatment in education or employment are claimed as compensation for past denials of equal opportunity; special consideration for Third World countries in aid and trade terms is claimed as compensation for the injustices of the colonial past.

We can make ready sense of the idea of legal rights to compensation. Legal rights to compensation guarantee (some) recompense for damage suffered. The damage for which compensation is given may or may not be produced by wrongdoing; it may also be negligent or accidental or due to natural causes. In law, compensation is not always contingent upon the victim having suffered injury as well as harm, nor upon saddling a wrong-doer with the costs of compensation. Insurance policies standardly cover damage due to accident and neglect. Legal rights to compensation may provide for payments to victims of violent crime, to those whose property is requisitioned or damaged, to victims of libel or malpractice, and even to victims of natural disasters such as floods or earthquakes. Legal rights to compensation are a standard way of dealing with the predicament of those who become victims, whether of others' (criminal) action, of their own negligence, or of natural catastrophe.

None of this shows that there are fundamental rights to compensation. Legal rights to compensation may lack moral grounding: and if they are morally grounded, they may rest not on fundamental rights to compensation, but on background positions in which rights are derivative or inessential.

I take it as my assignment to criticize the Gauthier enterprise. At the outset, however, I should express my general agreement with David Gauthier's normative vision of a liberal social order, including the place that individual principles of morality hold in such an order. Whether the enterprise is, ultimately, judged to have succeeded or to have failed depends on the standards applied. Considered as a coherent grounding of such a social order in the rational choice behavior of persons, the enterprise fails. Considered as an extended argument implying that persons should (and possibly must) adopt the moral stance embodied in the Gauthier structure, the enterprise is, I dunk, largely successful. Considered as a set of empirically falsifiable propositions suggesting that persons do, indeed, choose as the Gauthier precepts dictate, the enterprise offers Humean hope rather than Hobbesian despair.

As a preliminary to the justification of equal opportunity, we require a few words on the concept. An opportunity is a chance to attain some goal or obtain some benefit. More precisely, it is the lack of some obstacle or obstacles to the attainment of some goal(s) or benefit(s). Opportunities are equal in some specified or understood sense when persons face roughly the same obstacles or obstacles of roughly the same difficulty of some specified or understood sort. In different contexts we might have different sorts of benefits or obstacles in mind. But in the current social context, and in the context of this discussion, we refer to educational and occupational opportunities, chances to attain the benefits of higher education and of socially and economically desirable positions, benefits assumed to be desired by many or most individuals, other things being equal. And we generally divide obstacles into two broad classes: those imposed by the social system or by other persons in the society, for example, the hardships of life in the lower economic classes or barriers from prejudices based on race, sex, or ethnic background; and those imposed by natural disabilities, for example, low intelligence or lack of talents.

The initial question is whether a moral society is obligated to create equality in opportunities in the senses just defined. I shall assume here initially that there is some such obligation on the part of society or the state, although I shall specify its nature and limits more precisely below. With the exception of certain libertarians, almost everyone, liberal and conservative alike, agrees in this assumption.

The United States has never been culturally or religiously homogeneous, but its diversity has greatly increased over the last century. Although the U.S. was first a multicultural nation through conquest and enslavement, its present diversity is due equally to immigration. In this paper I try to explain the difference it makes for one area of thought and policy – equal opportunity – if we incorporate cultural and religious pluralism into our national self-image. Formulating and implementing a policy of equal opportunity is more difficult in diverse, pluralistic countries than it is in homogeneous ones. My focus is cultural and religious diversity in the United States, but my conclusions will apply to many other countries – including ones whose pluralism is found more in religion than in culture.

In Morals By Agreement, David Gauthier concludes that under certain conditions it is rational for an agent to be disposed to choose in accordance with a fair cooperative scheme rather than to choose the course of action that maximizes his utility. This is only one of a number of important claims advanced in that book. In particular, he also propounds a distinctive view concerning what counts as a fair cooperative arrangement. The thesis concerning the rationality of adopting a cooperative disposition is, however, logically independent of his substantive view of a fair cooperative scheme and is itself central to the project as a whole. Gauthier's concern is to establish that certain moral principles are those that fully rational, self-interested persons would agree to take as regulative of their dealings with one another – that a contractarian approach, in this sense, can provide an adequate basis for a theory of morality.

One of the most noteworthy features of David Gauthier's rational choice, contractarian theory of morality is its appeal to self-interested rationality. This appeal, however, will undoubtedly be the source of much controversy and criticism. For while self-interestedness is characteristic of much human behavior, it is not characteristic of all such behavior, much less of that which is most admirable. Yet contractarian ethics appears to assume that humans are entirely self-interested. It is not usually thought a virtue of a theory that its assumptions are literally false. What may be said on behalf of the contractarian?

We are often told that we are morally obligated to produce equal opportunity for all. Therefore, it seems we should examine what power we have to produce that desirable state. For it would be nonsense to say we are required to provide what is beyond our power to provide. When we examine this question, we find our power limited by two sets of constraints. One set comprises formal constraints upon the idea itself of equal opportunity. We cannot do the logically impossible. The other set comprises limits upon our ability to produce the directed socio-economic change, getting known outputs for known inputs. I illustrate the formal constraints by outlining the work of Douglas Rae. The constraints upon our abilities I illustrate with evidence from sociology and politics. At the end, we shall discover that our power to make opportunities equal is sharply though not unbearably limited. A critical but unbaised survey will reveal that in the past fifty years we have gone remarkably far towards doing all that we are presently capable of doing to equalize opportunities. Perhaps we shall go even farther when we learn how.

The word ‘real’ in the title is opposed to ‘ideal’ or even ‘chimerical'. It may seem an interesting question what equality of opportunity should consist in were we able to produce directed socio-economic change at will. But we are not. Therefore, a more interesting and more important question is what equality of opportunity consists in given the very large number of constraints within which we must work to achieve it.

There is a way of doing moral philosophy which goes something like this: If it can be shown that it is rational for perfectly selfish people to accept the constraints of morality, then it will follow, a fortiori, that it is rational for people capable of affective bonds, and thus less selfish, to do so. On this way of proceeding the real argument – that is, the argument for the actual constraints (theory or principles) to be adopted – proceeds with only fully rational individuals who have no other concern than to maximize their nontuistic (selfish) preferences. Then it is noted that the affective capacities of human beings actually make quite palatable the constraints that the fully rational persons with wholly nontuistic preferences have agreed upon.

Philosophers have long distinguished various interpretations of the principle of equal opportunity and argued over their implications and justifications. But they have almost always tacitly assumed that the context was a national one. They have not, in particular, considered whether some interpretation of the principle could apply and be justified globally, that is, to all people without regard to their nationality or citizenship. Yet, such an investigation is clearly demanded. The leading moral theories seem to support a case for at least some interpretation of the equal opportunity principle, and it is not obvious that they can support it only domestically.

Consider, first, those moral theories which place great value on negative liberty, for example, libertarianism. Libertarianism supports a standard interpretation of the equal opportunity principle – “formal” equality of opportunity; formal equality of opportunity requires that legal restrictions j on the taking of opportunities be lifted, and such restrictions diminish negative liberty. But libertarianism would also seem to support a global. version of formal equality of opportunity, for example, that laws be rescinded which require that candidates for jobs in a country be citizens of that country, or which restrict emigration or immigration. Such laws also diminish negative liberty.

Or consider those moral theories which place great value on efficiency, for example, utilitarianism. Utilitarianism probably supports formal equality of opportunity because legal restrictions on the taking of opportunity not only diminish negative liberty, but also often prevent talent and skill from going where it can best be used and thus reduce efficiency.

Discrimination against particular groups has existed throughout history and in all types of societies. Few would challenge the idea that inequality of income based on discrimination is unjust. The more problematic issues are the extent to which discrimination is in fact a significant source of inequality and whether such discrimination-based inequality is inherent in a capitalist system.

There is little doubt that discrimination can affect a group's income. But the link is by no means automatic or certain. Thus, the incomes of blacks, particularly in past decades, seem surely to have been lowered by discrimination. Yet other examples are less clear. Jewish and Japanese Americans, for instance, have had incomes substantially above those of white non-Jewish groups, despite evidence of discrimination against them.

(1) In his recent paper, “Justice as Fairness: Political not Metaphysical,” John Rawls makes use of a footnote to disown what to many readers must have seemed one of the most striking and original underlying ideas of his theory of justice, that it “is a part, perhaps the most significant part, of the theory of rational choice.” That Rawls should issue this disclaimer indicates, at least in my view, that he has a much clearer understanding of his theory, and its relationship to rational choice than he did at the time that he wrote A Theory of Justice. As I note in Morals by Agreement (pp.4–5), Rawls does not show that principles of justice are principles of rational choice. Hence, in appropriating the idea, I can claim diat I am undertaking a pioneering enterprise. No doubt Thomas Hobbes would have undertaken it had the resources of the theory of rational choice been at his disposal, but I do not intend to pursue counterfactuals in a search for historical antecedents. Moral theory as rational choice theory is, I claim, a new venture.

Equal opportunity requires (at least) that persons be selected for desirable positions on the basis of their qualifications. To assess an applicant's qualifications, we must both predict how well he would perform if chosen, and compare his projected performance with that of his rivals. Since we lack direct access to future performance (and since only those, who are chosen will ultimately perform), all such predictions must be based on some past– or present-tense information about the applicants, together with some relevant supporting information. But is any and every way of predicting performance acceptable? Or are some methods of predicting improper even if they are more accurate than any available alternatives? And, if some methods of predicting are improper, which ones are these, and why?