DATOS IDENTIFICATIVOS DE CADA VÍA

Apart from the problem with the scope of contract, another reason why Hobbesian contractarianism is reasonably objectionable is that, even if people are included in

62 Barry (1995a: 42).

63 Gauthier (1986: 269).

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the contract, they can still be unjustifiably treated. Gauthier might disagree with this point by arguing that he also recognizes the importance of reasonableness and the Lockean proviso in his theory represents the constraint of justifiability in reasonableness. Under the regulation of the Lockean proviso, no one in the initial bargaining situation is unjustifiably treated. So I will now discuss whether the Lockean proviso can prevent people from being unjustifiably treated. In Gauthier’s contract, predation and parasitism are prohibited in the initial bargaining position, for the Lockean proviso acts as a minimum moral baseline and distinguishes the initial bargaining position from the mutually predatory natural situation. It says that one person should not appropriate some goods if this appropriation ‘betters one’s situation through interaction that worsens the situation of another’.⁶⁴Whether a person is better-off or worse-off by the action of another depends on comparing the current situation with the situation in which the other was absent. I am made worse-off by your acquisition if my utility could be higher in your absence. For example, suppose that there is a strong person who does not produce anything but only waits for a weak person to produce and then seizes these goods. This weak person is then made worse off because of the acquisition and hence his rights are infringed by the strong person. Based on this proviso, the rights of people are defined. The bargains, which are based on these rights, are not tainted by predation and parasitism. What goods a person can legitimately own depends on how much they can acquire as long as the Lockean proviso is not violated. This proviso is controversial for it seems that rational utility-maximizers have no reason to accept this proviso if their utility could be maximized through predation and parasitism.⁶⁵ However, whether it is rational to accept the Lockean proviso is not my concern. What I want to discuss is how Gauthier might argue that his contract theory in fact does not ignore justifiability and the Lockean proviso is the evidence.

64 Gauthier (1986: 205).

65 Representatives of this view are Danielson (1991), Narveson (1991); Goodin (1993); Harman (1988) and Buchanan (1988).

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I doubt that the Lockean proviso can perform the function of the constraint of justifiability. For example, something can be clearly unjustified to others but not violate the Lockean proviso. Imagine that there is a rare but highly valuable resource in the world and I am the only one who knows how to exploit this resource. I then appropriate it, and exploit it. Since this resource is highly valuable, I become very rich by selling it. But my appropriation does not violate the Lockean proviso because if I were absent, no one would have had the skill to exploit it and the resource would be left alone. Since no one would be better-off if I were absent, my appropriation does not make anyone worse off. Even if a great gap of wealth between myself and others is created because of my appropriation, this is still permissible by the Lockean proviso. However, this is clearly unjustifiable from the reasonable perspective. Again, the constraint of justifiability requires people to test their behaviour by imagining what a person who is concerned with justifiability would do. Imagine that I was a person who doesn’t possess the skills to exploit this resource. I would become relatively poor because the resource is monopolized by people who have the skills to exploit it. Compared with the rich class, I would have a much lower social status and a relatively poor life. Many people find this situation hardly acceptable because of its serious unfairness. The bargaining powers would be radically unequal to the extent that it is difficult to call it a fair distribution. Due to this unfairness, this situation is unjustifiable to many people even though, according to the Lockean proviso, no one was made worse off. From this example we can see how the Lockean proviso fails to rule out behaviours that violate the constraint of justifiability.⁶⁶

There are also behaviours that are clearly justifiable, but the Lockean proviso prohibits them. For example, imagine that there are two fishermen, A and B. Both are working in the same sea area. Given that fisherman A is more talented and

66 Similar examples can also be found in Hubin and Lambeth (1991: 119-121) and Lehning (1993:

112-114).

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hardworking, they do better and the poor fisherman B does badly. This result frustrates fisherman B. Fisherman B is an envious person and would prefer to be the best fisherman in this sea zone. But A is a contented person who is insensitive to this kind of comparison. Now it appears that the productive activities of fisherman A violate the Lockean proviso. For fisherman B would have a higher utility in the absence of fisherman A. If fisherman A were absent, fisherman B’s preference to become the best fisherman in this sea zone could be satisfied and hence his utility could increase. So fisherman B can claim that fisherman A’s use of power and ability betters A’s position and worsens B’s position. However, it seems absurd to say that fisherman A is not justified in using his abilities. Provided that the result of distribution is not radically unequal, there is no problem for A to exercise his talents and become the best fisherman, even though the preference of B will be compromised. B’s objection is unjustifiable because even if people were put into the shoes of B, many of them would still think A’s use of abilities is allowable. From this example we can see how Lockean proviso sometimes rules out behaviours that are permitted by the constraint of justifiability.

These counterexamples show that behaviours prohibited by the Lockean proviso are significantly different from behaviours prohibited by the constraint of justifiability.

One could hardly claim that these two circles are the same. In fact, the Lockean proviso is mainly concerned with the comparison of utility between individuals. No matter what the preferences are and what has occurred, once a person’s utility decreases because of the increase of another person’s utility, this person is made worse off. However, the constraint of justifiability is concerned with something different from this. It prohibits some actions, independent of what the effect of these actions on others’ utility would be. These actions are prohibited simply because people generally think that it would be unacceptable if they were treated by these actions. They are unjustifiable to people, but these actions do not necessarily violate the Lockean proviso. For example, the constraint of justifiability is concerned with fairness; it requires the distribution of goods to be fair to all people. The meaning of

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fairness cannot be exhausted by comparison between utilities. For sometimes even if people are not made worse off, they can still be unfairly treated in a way that would be unacceptable to anyone who was in their position, as the rare resource example illustrates. As David Copp argues, ‘the proviso would permit a rich man to keep his goods, while an unlucky woman starves on his doorstep’.⁶⁷ Hence we can see the Lockean proviso is inadequate from the perspective of reasonableness. The bargaining outcome which is based on the Lockean proviso can still violate the constraint of justifiability.

Therefore we can see that Hobbesian contractarianism is reasonably objectionable in two ways. First, it fails to include the ‘powerless’ in social cooperation. Secondly, even within the scope of contract, it fails to prohibit behaviours which are generally unjustifiable (and sometimes it prohibits behaviours which are generally justifiable).

In these two respects, Hobbesian contractarianism violates the constraint of justifiability. Even though the interests of people are rationally advanced in the mutually beneficial agreement, reasonableness would still motivate people to object to it.

This explains why Hobbesian contractarianism can satisfy the condition of generality only, but fails to satisfy the condition of priority. Since reasonableness is one of the aspects of practical reason, it also has the normative authority to justify or reject obligations, just as rationality does. Ignoring it is a false step of Hobbesian contractarianism. The result is that, even though people will accept Hobbesian contractarianism because of rationality, this is not enough to secure the allegiance of people. The conception of rationality justifies the obligation to follow Hobbesian contractarianism, whereas the conception of reasonableness justifies the obligation to

67 Copp (1991: 210).

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reject Hobbesian contractarianism. Since both of these obligations have the same strong normative force, this implies that, on the one hand, people have a strong reason to agree with political principles and, on the other hand, people have the same strong reason to disagree with the same political principles. They have no overriding reason for adhering to political principles. Reasonableness will become a source of strong motivation to go against Hobbesian contractarianism.