Justice

4. Justice as mutual advantage

Utilitarianism is based on the assumption that the good of different individuals can be in some sense lumped together, and the pursuit of aggregate utility proposed as the objective of everyone. But, in the absence of an external lawgiver, how can an (not naturally benevolent) individual be encouraged to adopt the maximization of total utility as a binding demand? If we doubt that any satisfactory answer can be given, we may be tempted by a theory of justice that takes as its starting point the assumption that each person has a conception of their own good, and that justice must be shown to contribute to the attainment of that good. Justice is thus the terms of a modus vivendi: it gives everyone the best chance of achieving their good that they can reasonably expect, given that others are simultaneously trying to achieve their (different) good. Versions of ‘justice as mutual advantage’ can be found in Thrasymachus’ ‘might is right’ argument in Book I of Plato’s Republic and in the fraudulent social contract identified by Rousseau (1755: Part II) as having been perpetrated by the rich on the poor. But the locus classicus of this theory is undoubtedly Leviathan by Thomas Hobbes (§7).

If the terms of agreement are to be to the advantage of each (compared with unrestrained conflict), they must reflect the relative bargaining strengths of the cooperators. The strong and talented have little to gain (or to fear) from the weak or infirm, and the latter may even ‘fall beyond the pale’ of morality if the strong have no reason for taking their interests into account (Gauthier 1986: 268). Intuitively, it may seem perverse to call this a theory of justice. It is true that justice as mutual advantage has much of the structure of a theory of justice in that it results in rules that constrain the pursuit of self-interest. But the content of those rules will correspond to those of ordinary ideas of justice only if a rough equality of power holds between all the parties.

Even if this objection is not regarded as decisive, the theory suffers from internal problems. These concern the determinacy of the rules and their stability. The determinacy problem arises because of the necessity for all to start from a common view of the relative bargaining strengths of the participants. This is an immensely demanding condition, given the information about resources required and the different predictions that are liable to be made about the outcome of conflict. Even after rules have been agreed, some parties will have reason to press for changes if their bargaining power increases. Justice as mutual advantage results in rules which are no more than truces and, like truces, they are unlikely to be stable if there are changes in the balance of power between the sides (Barry 1995: 41).

Stability will also be challenged by the problem of non-compliance. Justice as mutual advantage appeals to the self-interest of each and does so by establishing rules that, if generally complied with, will further the interests of all individuals. However, this gives the agent no reason to comply with a given rule when there is greater advantage to be had by breaking it. This applies especially when the agent can free ride on the compliance of others. All that can be attempted is to increase the costs of non-compliance by increasing the sanctions if the agent is detected. To run a society using only self-interest and sanctions, however, would mean using a degree of coercion and of ‘policing’ hitherto unthought of in even the most totalitarian society.