The Concept of Justice from the Contractarian Perspective

Данная статья посвящена анализу научных подходов Канта и Гоббса к идее общественного договора и их влиянию на концепцию справедливости. В статье раскрыто взаимоотношение указанных подходов с двумя разными моделями общественного договора. Показана роль теорий общественного договора в процессе развит...

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Datum:	2005
1. Verfasser:	Załuski, W.
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Sprache:	English
Veröffentlicht:	Інститут держави і права ім. В.М. Корецького НАН України 2005
Schlagworte:	Аксіологія права: принципи свободи, рівності і справедливості
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spelling	irk-123456789-118992010-10-26T17:12:16Z The Concept of Justice from the Contractarian Perspective Załuski, W. Аксіологія права: принципи свободи, рівності і справедливості Данная статья посвящена анализу научных подходов Канта и Гоббса к идее общественного договора и их влиянию на концепцию справедливости. В статье раскрыто взаимоотношение указанных подходов с двумя разными моделями общественного договора. Показана роль теорий общественного договора в процессе развития понятия справедливости. Автор указал, что относительно теорий общественного договора справедливость может рассматриваться или как взаимная выгода или как беспристрастность. The present article is dedicated to the analysis of the Kantian and the Hobbesian approaches to the idea of the social contract and their influence on the concept of justice. The correlation of these approaches with two different models of the social contract has been shown. The role of the contractarian theories in the process of explication of the notion of justice has been demonstrated. The author points out that according to the contractarian theories justice can be realized either as the mutual advantage or as the impartiality. 2005 Article The Concept of Justice from the Contractarian Perspective / W. Załuski // Проблеми філософії права. — 2005. — Т. III. — С. 278-285. — Бібліогр.: 12 назв. — англ. 1818-992X http://dspace.nbuv.gov.ua/handle/123456789/11899 en Інститут держави і права ім. В.М. Корецького НАН України
institution	Digital Library of Periodicals of National Academy of Sciences of Ukraine
collection	DSpace DC
language	English
topic	Аксіологія права: принципи свободи, рівності і справедливості Аксіологія права: принципи свободи, рівності і справедливості
spellingShingle	Аксіологія права: принципи свободи, рівності і справедливості Аксіологія права: принципи свободи, рівності і справедливості Załuski, W. The Concept of Justice from the Contractarian Perspective
description	Данная статья посвящена анализу научных подходов Канта и Гоббса к идее общественного договора и их влиянию на концепцию справедливости. В статье раскрыто взаимоотношение указанных подходов с двумя разными моделями общественного договора. Показана роль теорий общественного договора в процессе развития понятия справедливости. Автор указал, что относительно теорий общественного договора справедливость может рассматриваться или как взаимная выгода или как беспристрастность.
format	Article
author	Załuski, W.
author_facet	Załuski, W.
author_sort	Załuski, W.
title	The Concept of Justice from the Contractarian Perspective
title_short	The Concept of Justice from the Contractarian Perspective
title_full	The Concept of Justice from the Contractarian Perspective
title_fullStr	The Concept of Justice from the Contractarian Perspective
title_full_unstemmed	The Concept of Justice from the Contractarian Perspective
title_sort	concept of justice from the contractarian perspective
publisher	Інститут держави і права ім. В.М. Корецького НАН України
publishDate	2005
topic_facet	Аксіологія права: принципи свободи, рівності і справедливості
url	http://dspace.nbuv.gov.ua/handle/123456789/11899
citation_txt	The Concept of Justice from the Contractarian Perspective / W. Załuski // Проблеми філософії права. — 2005. — Т. III. — С. 278-285. — Бібліогр.: 12 назв. — англ.
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fulltext	АКСІОЛОГІЯ ПРАВА: ПРИНЦИПИ СВОБОДИ, РІВНОСТІ І СПРАВЕДЛИВОСТІ 278 Проблеми філософії права. – 2005. – Том III. – № 1-2. © 2005 W. Załuski Institute of the Philosophy of Law Krakow, Poland THE CONCEPT OF JUSTICE FROM THE CONTRACTARIAN PERCPECTIVE 1. Introductory remarks The concept of justice occupies a central position in the philosophy of law and in political philosophy. However, owing to its complexity as well as its sus- ceptibility to ideologically tainted interpretations, the concept is seldom clearly understood. Nevertheless, the misunderstandings connected with the concept of justice can be at least partly avoided provided one makes an appeal to contractarian theories, i.e., the theories making use of the idea of the social contract. This article’s purpose is to provide an overview of contemporary versions of contractarianism. More spe- cifically, we shall be concerned with the following top- ics: (1) The place of contractarianism in practical phi- losophy∗. (2) The differences between the traditional and the contemporary contractarianism. (3) Two opposed approaches (Kantian and Hobbesian) in the contempo- rary contractarianism. (4) The proper model of the so- cial contract. In our presentation we shall put a stress on the fun- damental controversy between the adherents of the contractarian approach – namely whether justice is to be understood as mutual advantage (the Hobbesian approach) or as impartiality (the Kantian approach) 1. The place of contractarianism in practical philosophy The principal idea of any contractarian theory might be stated as follows: an action, a social practice, a political institution or a law is permissible provided it, or principles upon which it is based, would be agreed to by the agents under appropriately deter- mined conditions. If the object of agreement are principles, then the contractarian theory is indirect, otherwise it is direct. Most contemporary contractari- ans interpret the social contract as a hypothetical one, i.e., as the one that would be made under suitable cir- cumstances, not as an actual one; on the former inter- pretation, the idea of the social contract is an analyti- ∗ We use this term in a free manner viz. as embracing moral, legal and political philosophy. See Vallentyne 2001, p.3. cal device to assess human actions, institutions and practices. The general idea of contractarianism being presented, we can compare it with its main rival among ethical metatheories – namely philosophical utilitarianism. At the outset, it should be noted that every moral theory is to fulfill two functions*: (1) to provide an account of the foundations of moral reasoning, i.e., to answer the question about the subject matter of moral- ity and (2) to offer a plausible theory of human motivation to comply with moral rules, i.e., to account for the fact that moral considerations are in great measure determinative of human actions. How do both metatheories solve these problems? The adherents of philosophical utilitarianism claim that (1) the subject matter of morality are facts about individual wellbeing and that (2) our motivation to act in accordance with moral rules is a consequence of our ability to identify with the good of other people. It should be noted that philosophical utilitarianism dif- fers essentially from normative utilitarianism in that while the former is an ethical metatheory, the latter is an ethical theory, i.e., a set of moral rules or simply one fundamental rule of conduct. As is well known, the main demand of normative utilitarianism is that people act in a way that maximizes aggregate social welfare. It is worth noting that a theory of the social contract may serve as a justification of normative utilitarianism*. The defenders of the contractarian approach main- tain that (1) the foundations of moral reasoning are determined by the agreement concluded (or which would be concluded) by individuals willing to gain the benefits of cooperation and that (2) our sense of obligation to comply with moral rules can be ac- counted for by our having agreed to these rules. Of * See Scanlon 1983, pp. 104-105. ** Kymlicka (1998a, p. 226) says that the first task of a moral theory is to point at norms that should be ob- served; as we see, this view differs slightly from that of Scanlon who writes that a moral theory should define a subject matter of morality. * A good example is Harsanyi’s utilitarian theory (see Harsanyi, 1976, 1977). W. Zaluski Проблеми філософії права. – 2005. – Том III. – № 1-2. 279 course, (2) applies only to those theories that take the social contract to be an actual one. It can, however, be reformulated in such a way that it will embrace hypo- thetical contracts as well. It suffices to assume two theses – namely that a given theory of the hypotheti- cal social contract generates a principle of justice and that human beings are concerned with being able to justify their actions. Then, it is plausible to argue that the morality’s motivational force lies in the fact that people desire to be able to justify their actions to other parties on grounds that could be reasonably accepted by all parties or could not be reasonably rejected by these parties. Given the fact that the contract is a hy- pothetical one, it should be added that the justification in question is an ideal one, which means that an agent should not be concerned with the fact that some peo- ple reject the grounds she provides to justify her ac- tions if only she knows that such a justification does exist, i.e., if she knows that were all people to satisfy the ideal conditions imposed on the agreement they would accept her justification. To sum up, it seems that the idea of social contract provides plausible grounds for morality: it implies that “the justificatory status of moral properties”∗ and their motivational appeal are derivative of the idea of the rational agreement. Now that the general remarks on contractarianism and philosophical utilitarianism have been made, we can examine more closely the notion of the social con- tract. 2. Two types of contractarianism∗∗ The traditional contractarianism It was in the17th and in the18th centuries that the social contract became one of the central notions of political philosophy. The rationale of having intro- duced this concept was that the traditional ways of justifying citizens’ obedience to the state authority based on the ideas of the natural or the divine order were no longer acceptable. The concept of the social contract gave an alternative justification of citizens’ obedience. It implied that having concluded the agreement to form the political power, individuals assumed a promise to obey it on condition that the power respected and protected their natural rights. As we see, the traditional versions of contractarianism were political, i.e., they were to justify the state’s exis- tence and to determine citizens’ obligations towards the state. The social contract was frequently inter- ∗ This is Scanlon’s expression (see 1982, p.116). ∗∗ See Kymlicka 1998a, pp.226-237, Hampton 2002, pp. 495-500 and Atger 1906. preted as the actual agreement, i.e., as the agreement concluded at a historical time by the agents determined to leave the state of nature and to found society. The traditional interpretation of the social contract has been criticized for multiple reasons. As has been shown, on this interpretation, the social contract rests on the theory of natural rights and duties: the state is obliged to protect the citizens’ rights, who – on their part – ought to keep their promises to observe the con- tract resolutions. Considering, however, that the the- ory of natural rights and natural duties* is question- able, one could plausibly argue that the theory of so- cial contract – the response to the decline of the pre- Enlightenment ethics – replaced one doubtful type of duties (i.e., the divine ones) by the other being equally controversial (i.e., the natural duties). Another objec- tion pressed against the traditional contractarianism was that the social contract had never been concluded. The consequences of this fact seemed to be especially troubling: assuming that without the agreement hav- ing been made, no authority can be called a legal one, it had to be admitted that there are no obligations binding the citizens and the government. Conse- quently, all the governmental institutions were to be regarded as deprived of legal validity. One attempted to evade these consequences by inventing the concept of the hypothetical contract, i.e., the contract that would have been concluded by the agents had they found themselves in some kind of the state of na- ture***. On this interpretation, the social contract was understood not as a historical explanation of the ori- gins of a political power, but simply as the manner in which one can speak about conditions under which the government may have the authority over citizens.. However, this approach was found out to be useless as a way of justifying political obligations, for the simple reason that contracts can be considered as a source of obligation only if they were really concluded – as Dworkin says: “a hypothetical contract is not simply a pale form of an actual contract; it is no contract at all”. Therefore, a fictitious contract cannot account for real duties. * The natural duty presupposed by the theory of the social contract is the requirement to keep promises. ** In fact, the theorists of the social contract (e.g., Hobbes, Locke, Rousseau) early understood that the contractarian ideas make sense only if one interprets the social contract as the hypothetical agreement. It can be added that one of the most severe critics of the social contract as the actual agreement was Hume. * Dworkin 1978, p.18. The Concept of Justice from the Contractarian Perspective 280 Проблеми філософії права. – 2005. – Том III. – № 1-2. To conclude, the traditional versions of the social contract which were to provide a justification of po- litical obligations are open to three main objections: first, if one assumes that that the only justification of political obligations towards the state derives from the actual contract concluded by citizens, then, given the fact that no such contract was in fact made, one has to admit that these obligations are groundless; second, the social contract interpreted as the hypothetical agreement cannot generate obligations; third, the tra- ditional contractarianism assumes natural rights, which themselves need to be justified. The contemporary contractarianism Contemporarily, the social contract is conceived of as a hypothetical agreement being an analytical device to highlight the essence of morality and to assess social institution, practices or individual actions. Therefore, the contemporary contractarianism tackles the problem of grounding personal – moral – duties which were taken for granted by the traditional ver- sion; it is, therefore, to realize in some sense a mo-re ambitious task than the one faced by its older coun- terpart, which was primarily to justify the obedience to and the legitimacy of the state. Contemporary theorists of the social contract put a stress on two elements: first, on the fact that obliga- tions are conventional, i.e., that they result from a co- operation of equal human beings; second, on the fact that conventional duties in some satisfy human inter- ests. Therefore, the essence of the social contract in its contemporary version consists in determining conven- tions which advance human interests. What does it, however, mean that human beings are equal? How is the phrase “advance human interests” to be under- stood? To answer these questions precisely, we shall have to distinguish two main currents of the contem- porary contractarianism. 3. Justice: impartiality or mutual advantage? The contemporary theories of the social contract can be neatly divided into two groups depending on which conception of equality of men they presup- pose: * In particular, the essence of justice (it can be noted that, e.g., Rawls takes the social contract as a method of defining justice, while Scanlon as a method of deter- mining moral obligations). * See Kymlicka 1998a and 1998b,respectively, pp.229-231, pp. 145-153, and Hampton 2002, p.495-498. (1) the Kantian theories of social contract – justice as impartiality: based upon the idea of moral equal- ity of men. (2) the Hobbesian theories social contract – justice as mutual advantage: based upon the idea of natural equality of men, i.e., the equality of physical and psychological forces. Each group offers an entirely different view on the essence of morality, in particular – on the essence of justice. However, before we pass to analyzing these differences, we shall first present the assumptions both approaches share. Both types of contractarianism assume that society exists for the mutual benefit of its members. They presuppose the idea of the social contract as described in the following passage: The social contract represents the agreement one would have made in an initial state of nature, in order to enter civil society. It does not represent the agree- ment one would now make, within civil society, in order to continue in this condition. Nor does it repre- sent the agreement one would in hindsight have made, at the time of entry into civil society, could one have known the consequences. One must eliminate from considerations all information which could have been acquired only subsequently to entry into society, in determining what agreement would have been rational for one to make in the initial state of nature*. The underlying ideology of both versions of the social contract is individualistic: society is regarded as a conventional entity and as an instrument for realiz- ing individual ends of its members rather than deter- mining these ends. The parties to the contract are con- sidered to be mutually unconcerned, i.e., without other-regarding desires. Both versions treat the social contract as a hypothetical one. The aim of the social contract to determine a principle for cooperative ac- tion (interpreted as a principle of justice – Rawls, or as morality tout court – Gauthier). Now we can examine the differences between both approaches. Ad.1 Kantian theorists of the social contract as- sume the intrinsic value of each individual, or, as Kant put it, each individual’s being ‘an end-in-itself’. (They make, therefore, some assumptions concerning moral- ity prior to using the notion of social contract). The role of the social contract is to ascertain how thus characterized people ought to be treated. In this con- text, the fundamental concept of the social contract proves to be that of impartiality which requires that **** Gauthier 1978, p.49. * Which reveals a simplifying character of our general description of the contemporary contractarianism. W. Zaluski Проблеми філософії права. – 2005. – Том III. – № 1-2. 281 each individual has the right to equal treatment (to ‘equal concern and respect’). The social contract, therefore, epitomizes the basic principle of the impar- tial judgment which demands that everyone should take into account needs of others as of free and equal human beings. A good illustration of the Kantian approach to the idea of the social contract is Scanlon’s contractarian definition of a wrong act: An act is wrong if its performance under the cir- cumstances would be disallowed by any system of rules for the general regulation of behavior which no one could reasonably reject as a basis for informed, unforced, general agreement. Of course, there are very serious differences be- tween Kant’s original moral theory and the theories of, e.g., Scanlon, Rawls or Harsanyi as well as be- tween the latter theories themselves. Nevertheless, the presence in these theories of such notions as moral person, generalisability, the right to equal treatment, freedom, ethical preferences, overcoming one’s self in- terest (or to use Kantian terms, one’s empirical motives) entitles one to take those otherwise various theories as belonging to one group. Some more remarks are needful with reference to the Kantian approach. It is worth noting that the adherents of the Kantian tradition replace the picture of the state of nature as ‘the war of all against all’ with the situation of equal- ity in which every party is to take into account the interests of the other parties. The state of nature*, therefore, represents the equality of human beings as persons in the moral sense. Accordingly, the social contract leads to accepting some version of the equal- ity of rights and resources. Of course, various principles may fulfill the above general conditions of a ‘Kantian’ contractarian theory. Therefore, in order that more definite answers to the question about ‘the right rules of conduct’ be gained, it is necessary to impose some additional conditions on the type of agreement to be made and on the crite- ria of rationality to be used. Now, the most sophisti- cated tool that may prove helpful while realizing this task is the theory of rational choice including game the- ory and decision theory. As will be shown in the next section, it is decision theory that can be particularly use- ful for Kantian theorists of the social contract. As has been mentioned, one of the tasks of each moral theory is to provide an account of human moti- See Dworkin 1978, p. 50. * Scanlon 1983, p.110. Rawls avoids this term speaking instead about the original position (see Rawls 1973, pp. 17-22). vation to act morally. It turns out that the Kantian theories run into serious difficulties in the face of this task. One of their basic assumptions is that a truly moral action ought to be motivated solely by the agent’s intellectual understanding of the reasons that stand behind moral rules, not by her subjective prefer- ences. Needless to say, the thesis that understanding alone has a motivational force is very controversial. Ad.2. The defenders of the Hobbesian approach to the idea of the social contract claim that human beings have only instrumental value. This claim entails the rejection of the crucial notions of Kantian philoso- phers (e.g., the notion of a man as an ‘end-in-itself) as fictions that prevent rational grounding of morality. The Hobbesian approach to the social contract rests on the supposition that morality can be grounded in instrumental rationality, i.e., that can be derived from non-moral premises. Therefore, while within the Kantian theories morality is constructed from the moral premises concerning human reason*, within the Hobbesian theories morality is interpreted as in- vented to maximize human beings preference satisfac- tion, or – at best – as inferred from non-moral prem- ises**. The Hobbesian theories assume that the potential parties to the contract will reach it provided they re- frain from the direct pursuit of their self-interest. The state in which individuals put no constraints on the maximization of their prefernces is the Hobbesian ‘war of all against all’, or, to use a modern terminol- ogy, the state in which only suboptimal equilibria can be reached – the state that rational individuals will be will- ing to leave by concluding the social contract. As for the philosophical assumptions of the Hob- besian approach, it should be noted that Hobbesian philosophers deny the existence of objective values. They claim that all one can reasonably speak about as regards morality are subjective preferences of indi- viduals. Accordingly, they affirm that there is no natu- ral distinction between good and evil. They concede, though, that it may advantageous for the promotion of our interests to establish a convention that condemns certain deeds (e.g., killing, lying) as evil. In this view, therefore, morality is a mode of cooperation which should be accepted voluntarily by all rational people, since it advances their interests. The defenders of this controversial view claim that in the world in which there are no objective values and natural obligations morality as mutual advantage * The Kantian theories, as has been mentioned, assume some moral notions (e.g., that of moral person etc.). ** See Hampton 2001, pp.50-53. The Concept of Justice from the Contractarian Perspective 282 Проблеми філософії права. – 2005. – Том III. – № 1-2. is the best thing that we may have, i.e. we have no alternative but to content ourselves with the existence of a moral code that is the effect of mutually benefi- cial conventions. The conventions that arise as a result of negotiations among parties will reflect the differ- ences in their bargaining forces (by contrast, Kantian philosophers claim that the aim of the social contract is to negate the existence of differences as regards the bargaining forces of parties). The content of the con- ventions having arisen in consequence of bargaining will correspond with traditional moral norms provided that parties have equal bargaining forces, i.e., that they are in fact equal; otherwise, i.e., if there is a dispro- portion in these forces, the outcome is bound to be disadvantageous for the weakest individuals, which violates our moral intuitions. What’s more, it may be plausibly argued that given the fact that each individ- ual has the right to make use of all resources at her disposal, moral norms will emerge only if these indi- viduals have approximately equal capacities, since otherwise ‘stronger’ parties will not be motivated to leave the state of nature. Understandably, the notion of inalienable rights to which an individual is entitled independently of her bargaining force is incompre- hensible on the ground of the Hobbesian theories. As for the motivational function of morality, Hob- besian philosophers assume that people are motivated to undertake moral actions only if these actions satisfy some of their desires. Accordingly, they claim that the fact that compliance with moral norms accepted by the parties to the social contract increases in the log run their chance of satisfying their preferences pro- vides a clear account of human motivation to act mor- ally. As can be easily inferred from the above consid- erations, the adherents of the Hobbesian approach to the idea of the social contract claim that the same cri- teria of rationality and objectivity should be applied both in the sphere of moral reflection and in other spheres of human knowledge. Such an assumption excludes of course Kantian reflections about moral equality of human beings (or about the natural right to equal concern and respect) from the area of rational discourse. What is at issue is whether we should require that morality should satisfy the same crite- ria of objectivity and rationality as those satisfied by ‘more exact’ disciplines. Thus, we see that the fundamental philosophical controversy within contrac- tarian theories boils down to the old controversy be- tween naturalism (represented, e.g., by Hobbes) and anti-naturalism (represented, e.g., by Kant). Summing up, within the Hobbesian tradition, the notion of morality gains an entirely different meaning as compared with a traditional one. What’s more, it may be plausibly argued that the Hobbesian theo- ries of the social contract do not represent an al- ternative conception of morality, but an alternative to morality∗. The last question to be answered in this section is whether the theories of the social contract really base morality on the notion of agreement∗∗. As regards its traditional versions, the answer is positive, though a reservation must be made that an underlying as- sumption of these theories is the thesis that there exist natural obligations. As regards the contemporary con- tractarianism, the matter is even more complicated: although prima facie the notion of the social contract may seem to be of great moment, as it is believed to provide the foundation of justice, it may be plausibly argued that this notion is no more than an analytical device to explicate impartiality and mutual advantage which are the real foundations of morality∗∗∗. In the next section we will show that the two ap- proaches to the social contract discussed above can be correlated with two different models of the social con- tract. 4. The social contract: an ideal in dividual decision or an ideal social bargain? One of the sources of controversies connected with the notion of the social contract is that it is by no means clear what conditions should be imposed on the contract as well as on the parties to it; more specifi- cally, one must decide whether the social contract should be modeled as an ideal individual decision (IID) or as an ideal collective bargain (ICB). As will turn out, this distinction, strictly connected with the distinction analysed in the previous section, can be interpreted as derivative of the amount of information available to parties at the moment of entering the so- cial contract. We shall compare both models of the social con- tract in the table. Points of diver- gence The social con- tract as an ideal collective bargain The social contract as an ideal individ- ual decision ∗ See Kymlicka 1998b, p. 151. ∗∗ See Kymlicka 1998a, p. 236. ∗∗∗ This thesis is defended by Kymlicka (see ibid., pp. 236-237). ** See Gauthier 1978. A bargain is a situation in which two or more agents are able to produce some bene- fit through cooperating with each other on condition that they agree in advance on a division between them (See Hargreaves Heap, Varoufakis, 1996, p. 111). W. Zaluski Проблеми філософії права. – 2005. – Том III. – № 1-2. 283 1. The par- ties to the contract Only those persons whose cooperation may benefit at least some other persons, which means, e.g., that children and the severely disabled cannot be parties to the contract. Each person as a moral person is a party to the contract. Since all moral persons are identical, the social contract can be thought of as a IID. 2.The re- quired level of the igno- rance of the parties Gauthier: no veil of ignorance – the so-cial contract is a bargain among real persons who are ful-ly in- formed, deter-minate and who know their utility functions. Rawls: a thick veil of ignorance: a decision- maker lacks the knowl- edge of her particular self; she knows only that she has certain abilities, certain interests and that she uses the former to maximize the satisfaction of the latter (she has also the knowledge of the laws of nature and of some general features of the world) Therefore, the decision-maker – a moral person – does not know her utility function. Scanlon: parties have full knowledge of their particular features, yet they cannot make use of it – the only motive of their actions is the desire to reach a ra- tional agreement. 3. Notable contempo- rary repre- sentatives. David Gauthier (“Morals by Agree- ment”), James Bu- chanan (“The Limits of Liberty”) John Rawls (“A Theory of Justice”), John Har- sanyi (“Rational Be- havior and Bargaining Equilib- rium in Games and Social Situations”), Thomas Scanlon (“Contractualism and Utiltarianism”) 4. The main tool of analysis Game theory Decision theory 5.The chosen principles of justice Gauthier: the mini- max relative con- cession principle Harsanyi: the avera- geutilitarian principle, Rawls: the difference (maximin) principle* 6. The in- terpretation of justice Mutual advantage Impartiality*** * See Vallentyne., p. 4. Scanlon does not formulate a principle of justice; he provides instead what he calls “a contractualist account of moral wrongness” (1983, p. 110); its full formulation can be found above in the text in the section 3. * Rawls defines justice as fairness. We identify fairness with impartiality, though we must admit that it is a slightly simplifying assumption, since the notion of 7. Philoso- phical back- ground The Hobbesian ap- proach The Kantian (Rawls, Scanlon) or the utilitar- ian (Harsanyi) ap- proach 8. The main objection Incompatibility with our moral intuiti- ons: since parties are fully informed about their capacities and particular situations, they can make use of it in a bargain, with the re-sult that the ‘stron-ger’ parties will ac-quire a greater share of the benefits than the ‘weaker’ ones. The lack of motiva- tional force: a real per- son cannot identify her present self with the chooser in the hypo- thetical state of nature, since there is no real individual in the state of nature (as regards Harsanyi’s theory) or the real individual is arbitrarily chosen (‘the least advantaged per- son’ in Rawls’ theory) Comments on some controversial points. Ad.1. The adherents the ICB approach defend their claim by pointing out that the rational agreement implies each party’s ability to offer benefits to other parties. Ad.2. The level of ignorance explains why the so- cial contract can be conceived of as an individual de- cision: since the parties do not know difference be- tween them and each of them is equally rational and similarly situated, the choice in the state of nature can be viewed as made by one person randomly selected from the society**. As we see, the social contract can be interpreted as IID provided the individuals are re- garded not as real persons with varied preferences, but as moral persons who are identical in respect of their right to equal concern and respect. Ad.5. Given point 2, it should be understandable that if one demonstrates that a randomly selected agent chooses a given principle, one may conclude that all rational agents would choose the same princi- ple. The chosen principle constitutes the content of the social contract as viewed by the adherents of the IID interpretation. Harsanyi’s principle differs from classical utilitari- anism in that while the latter prescribes maximization of total happiness (utility), the former prescribes maximization of average utility∗. As for Rawls, his well known principle is as follows: fairness contains elements of selfinterest and reciprocity, from which the notion of impartiality is free. See Rawls 1973, p. 139. ∗ To give some flesh to this general statement, let us examine more closely Harsanyi’s principle. In the first step, a chooser of principle considers each possible principle for cooperative action. Next, she calculates the expected utility of a given principle’s adoption for each The Concept of Justice from the Contractarian Perspective 284 Проблеми філософії права. – 2005. – Том III. – № 1-2. Social an economic inequalities are to be arranged so that they are both: (a) to the greatest benefit of the least advantaged, consistent with the just savings principle, and (b) attached to offices and positions open to all under conditions of fair equality of oppor- tunity∗∗. According to Gauthier, however, neither Harsanyi nor Rawls succeeded in providing a standpoint from which the principle of justice rational for all parties to the social contract might be chosen∗∗∗. Gauthier claims that such a standpoint is gained if we interpret the social contract as ICB. Gauthier offers a precise definition of the social contract thus understood, which we shall summarize below∗∗∗∗: Let P be the set of all basic institutions and prac- tices*. Let N be any set of persons. For any N, there will be a proper subset of P, P(N) including all sets of basic social institutions and practices which are possible for N. P(N) is therefore the set of possible bases for societies, for the members of N. For each person i in N, there will be a subset of P(N), Ai [P(N)] which includes all sets of basic social institutions and practices which it would be rational for her to accept in order to enter society. The social contract for N, S (N), will be the intersection of the sets Ai [P(N)] for all i in N. Therefore, it is a set of sets of basic institu- tions and practices which all members of N could ra- tionally accept to enter society (of course S(N) may be an empty set, which means that social cooperation is not mutually advantageous for all members of N). By definition, a bargain is rational provided it is rational from everyone’s standpoint. Of course, in order that the ICB approach to the idea of the social contract be successful, there must exist a unique solu- party to the contract. In the third step, she determines the average of these expected utilities for each principle (this step implies the usage of some interpersonally comparable measure of utility). Finally, she selects the principle that maximizes the average of the expected utilities of the parties. We may remark en passant that it is doubtful whether Harsanyi’s procedure is consistent with the requirement that in the state of nature, no agent can know her utility function. Besides, it is questionable whether on can identify the expected utilities of different persons with the average expected utility of a chooser; as Rawls says, “the average of expected utilities is not, as expectations should be, founded on one system of aims” (Rawls, 1973, p. 175). See also Harsanyi 1976 and Gauthier 1978, p. 51. ∗∗ Rawls 1973, p. 302. ∗∗∗ See point 8 (column for IID) of our table. ∗∗∗∗ See Gauthier 1978, p. 60. * That is, of “those procedures which allocate social costs and distribute social benefits” - ibid., p. 60. tion to the bargaining problem. This solution is the content of the social contract. Gauthier’s proposal of such a solution, i.e., his theory of justice, is the mini- max relative concession principle. This principle re- quires that each bargainer should receive the same proportion of the difference between her status quo** and the maximum utility compatible with the other obtaining their status quo payoffs, and that this proportion should be maximal. Ad.7. Considering that the IID approach in con- trast with the ICB is based on the concept of moral person, it should be clear that the interpretation of the social contract as IID is assumed within the Kantian tradition. 5. Final remarks It was not our intention in this article to attempt to declare either for the Kantian or for the Hobbesian approach to the idea of the social contract. All we wanted to achieve was to present these approaches in a possibly comprehensive way, e.g., by showing their correlation with two different models of the social contract. We wanted to demonstrate that contractarian theories help explicate the notion of justice, i.e., that they reveal that justice can be understood either as mutual ad- vantage or as impartiality. We hope to have demonstrated that this most general distinction underlies and determines the differences between specific principles of justice pro- posed by different philosophers. Reference 1. Atger F. (1906), Essai sur l’Histoire des Doctrines du Contrat Social, Paris. 2. Axelrod R. (1984), The Evolution of Coopera- tion, Basic Books, New York. 3. Buchanan J. (1975), The Limits of Liberty, The University of Chicago Press, Chicago-London. 4. Dworkin R. (1978), The Original Position, in: N. Daniels (1978), Reading Rawls. Critical Studies on Rawls’ A Theory of Justice, Basic Blackwell, Oxford. 5. Gauthier D. (1978), The Social Contract: Individ- ual Decision or Collective Bargain?. In C. A. Hooker, J. J. Leach, E. F. McClennen (editors), Foundations and Applications of Decision Theory, Vol. II, Reidel Publishers, Dordrecht, 47-67 (1986), Morals by Agreement, Clarendon Press, Oxford. 6. Hampton J. (2001),Two Faces of Contractarian Thought. In: P. Vallentyne (ed.) (2001), Contractari- anism and Rational Choice. Essays on David Gauthier’s Morals by Agreement, Cambridge Univer- **** Status quo determines payoffs bargainers would receive were they to fail to reach the agreement. W. Zaluski Проблеми філософії права. – 2005. – Том III. – № 1-2. 285 sity Press, Cambridge, pp.31-55. (First published 1991) (2002), Umowa i zgoda, w: (R E. Goodin P. Pettit (red.) (2002), Przewodnik po współczesnej filo- zofii politycznej (A Companion to Contemporary Po- litical Philosophy 1993), Książka i Wiedza, War- szawa, 489-507. 7. Hargreaves Heap S. P., Varoufakis Y. (1996), Game Theory. A Critical Introduction, Routledge, London – New York. 8. Harsanyi J. C. (1976), Cardinal Welfare, Indi- vidualistic Ethics, and Interpersonal Comparisons of Utility. In: J C. Harsanyi (1976), Essays on Ethics, Social Behavior, and Scientific Explanation, D. Rei- del Publishing Company, Dordrecht, Boston p. 6-24. (1977), Rational Behavior and Bargaining Equilib- rium in Games and Social Situations, Cambridge University Press, Cambridge-London- New York - Melbourne. 9. Kymlicka W. (1998a), Tradycja umowy społec- znej, w: Przewodnik po etyce (red. P.Singer) (A Com- panion to Ethics1991), Książka i Wiedza, Warszawa, s.226-237. (1998b),Współczesna filozofia polityczna, (Contempoary Political Philosophy. An Introduction. 1990), przeł. A. Pawelec, Znak, Kraków. 10. Rawls J. (1973), A Theory of Justice, Harvard University Press, Cambr., Mass. 11. Scanlon T. M. (1983), Contractualism and Utilitarianism. In: A. Sen, B. Williams (ed.) (1983), Utilitarianism and beyond, Cambridge University Press, Cambridge, pp.103-128. 12. Vallentyne P. (2001), Gauthier’s Three Pro- jects. In: P. Vallentyne (ed.) (2001), Contractarianism and Rational Choice. Essays on David Gauthier’s Morals by Agreement, Cambridge University Press, Cambridge, p.1-11 (First published 1991). В. Залуски КОНЦЕПЦИЯ СПРАВЕДЛИВОСТИ С ПОЗИЦИИ ТЕОРИЙ ОБЩЕСТВЕННОГО ДОГОВОРА Данная статья посвящена анализу научных подходов Канта и Гоббса к идее общественного дого- вора и их влиянию на концепцию справедливости. В статье раскрыто взаимоотношение указанных подходов с двумя разными моделями общественного договора. Показана роль теорий общественного договора в процессе развития понятия справедливости. Автор указал, что относительно теорий обще- ственного договора справедливость может рассматриваться или как взаимная выгода или как беспри- страстность. W. Załuski THE CONCEPT OF JUSTICE FROM THE CONTRACTARIAN PERSPECTIVE The present article is dedicated to the analysis of the Kantian and the Hobbesian approaches to the idea of the social contract and their influence on the concept of justice. The correlation of these approaches with two different models of the social contract has been shown. The role of the contractarian theories in the process of explication of the notion of justice has been demonstrated. The author points out that according to the contractarian theories justice can be realized either as the mutual advantage or as the impartiality.

The Concept of Justice from the Contractarian Perspective

Institution

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