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Introduction
One of the distinctive features of John Rawlss account of justice is the
idea that principles of justice can be determined by conducting the
following thought experiment: Rational, mutually disinterested parties who
represent the members of society are tasked with choosing principles of
justice. As these parties are prevented from knowing the specific features
of the members of society they represent, as well as particular features of
the society they will end up in by a thick Veil of Ignorance, Rawls proposes
that whatever these parties choose will be the principles of justice.
Rawlss argument for the Veil of Ignorance is that whatever is chosen from
a fair hypothetical choice situation is justified. The Veil is supposedly
justified because it makes the initial choice situation procedurally fair.
Rawls argues that some types of information about oneself provide
bargaining advantages in the initial choice situation, and that since these
are morally arbitrary, the advantage provided by such information is
unfair. The Veil is supposed to make the initial choice situation fair, by
preventing parties from using such morally irrelevant information about
the represented persons to obtain an unfair bargaining advantage over
others (Rawls 2001, p87; Freeman 2007, pp. 342-343).
The above argument has met with many objections. For instance, Dworkin
(1973) and Scanlon (1982) have taken issue with the first step of the
above argument. They have argued that hypothetical agreements or
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choices lack justificatory power. Stark (2000) has rebutted their argument
by arguing that since it is appropriate to place certain constraints on
reasoning about justice, hypothetical agreements justify principles of
justice if and only if the features of the choice situation model those
constraints.
Gauthier took aim at a different aspect of the argument. While he agreed
with Rawls and commentators like Freeman that the party having
knowledge of the person she represents can provide a bargaining
advantage, he argued that such a natural advantage is not unfair
(Gauthier 1978) and need not be corrected for. Rawls, however, has a
ready reply to this. Rawls contends that it was not a distribution of natural
assets which was unfair, but how the fundamental social institutions
respond to that distribution that was fair or unfair (Rawls 1997, p. 87). The
moral arbitrariness of the distribution of natural assets means that there is
no reason to morally privilege a situation where advantages accrue to
those with assets.
Indeed there may be other reasons why a choice situation in which
everyone has equal bargaining power is appropriate when determining the
principles of justice. In this paper, I bracket these issues and instead
examine whether the party having knowledge of the person she
represents confers a bargaining advantage. I will show that doing so does
not. If my argument is successful, then this will moot the question as to
whether it is appropriate to equalise bargaining power by imposing a Veil
of Ignorance.
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Bargaining Advantage
In order to show that there is no bargaining advantage, I will provide a
definition of a bargaining advantage and provide an analysis of what is
involved in one party having a bargaining advantage over another. One
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be more intransigent than John and thus more likely to get her way when
they bargain. Yet, it would be counterintuitive to suppose that Mary had
more bargaining power than John just because she desired the tomato
more than John. Assuming that my intuitions about bargaining power are
widely shared, bargaining power is not the only factor which affects the
likelihood of getting ones way in a bargain even if it is sufficient to
increasing the likelihood of such happening, all other factors being equal,.
Thus, even if knowing ones own position made it such that some parties
were more likely to get their preferred option, this does not occur in a way
which confers a bargaining advantage on any party.
The second concern is that if there are many more members of society
who have a particular conception of the good or preference, parties,
knowing that they vastly outnumber people with other preferences will
allow them to force their preference onto others and perhaps end up
forcing those others to accept conceptions that are otherwise
unacceptable to them.
However, the threat of coalitions amassing bargaining power is misplaced
for a number of reasons. A coalition can influence an outcome if and only
if there is some mechanism by which adding more people to a given
coalition reduces the incentive to oppose the coalition or reduces the
ability of the opposition to successfully block the larger coalitions
preferences. These conditions, while being present in many normal
situations involving coalitions, are not present in the initial choice
situation.
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Indeed, even in more feudal or aristocratic systems, the ruler will have to
gain the support of nobles and land owners who are sufficiently powerful,
that they can subdue the opposing coalition by force of arms and can
force or threaten them into capitulating to terms. In this case, a larger
coalition poses a more credible threat and thus reduces the chances of
successful opposition. This decreases the expected utility of opposing that
coalition. Notice, however, that the success of that coalition depends on
the use of coercive power. The winning coalition is able to win only
because they have more coercive power than the opposition. However, in
the initial choice situation, the parties have no way of coercing one
another. Since the choice situation is purely hypothetical, there is no
possibility of a person carrying out any threat that the party representing
him made. Moreover, it would be trivially easy to simply disallow interpartite coercion.
Contrariwise, in democratic regimes, coalitions are successful because in
addition to an existing political apparatus capable of bringing to bear
coercion on others, there is an antecedent rule accepted by everyone
which gives political power to the winning coalition. However, the parties
in the Original Position (and likewise in the choice situation without the
Veil) are rational and mutually disinterested. They are not specified as
accepting any sort of majoritarian norm.
One possible reply to the above is that the parties will adopt a
majoritarian procedural norm in order to avoid entering the nonagreement situation. However, this cannot be the case. Without the Veil,
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each party knows all the other parties preferences and is thus able to
calculate the outcome of any majoritarian procedure. Thus, a given
majoritarian procedure would be acceptable to a given party only if the
outcome of that procedure was antecedently acceptable to that party.
However, if that outcome was antecedently acceptable, then the only
reason the party could be worried about the lack of agreement is if there
were other parties who would not accept that conception. However, if
other parties would not accept that conception, they would not accept the
procedure that would necessarily lead to the selection of that conception.
In order for all parties to accept the procedure, they would all have to
antecedently accept the conception that the procedure inevitably led to. If
they all accepted that conception, then they would not be concerned that
no conception could be agreed to, since they knew that there was a
conception that everyone accepted. Therefore, there would be no need to
adopt the majoritarian procedure.
Are there any other factors that would affect bargaining advantage?
According to Trebilcock,
The real measure of market power is not whether a supplier
presents his terms on a take-it-or-leave basis but whether the
consumer, if he decides to leave it has available to him a
workably competitive range of alternative sources of supply.
(Trebilcock 1976, pp364-365)
This picks out the central determinant of bargaining power: The best
alternative to negotiated agreement (BATNA). According to Fisher, Ury and
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Patton, the better a persons BATNA, the better her negotiating power. The
reason for this advantage is that this power depends on how attractive the
option of not reaching an agreement is to each party in a bargain (Fisher
et al 1991, p. 52).
There are two significant ways in which a difference in BATNA can confer a
bargaining advantage. The first pertains to the availability of alternative
agreements and the second pertains to the share of goods a person has or
can expect to have if the deal falls through.
The first aspect is ordinarily understood to be the primary component of
BATNA. If a person has many other alternative opportunities to bargain,
then he has little incentive to accept a bad deal offered by any one party.
To take one extreme example, suppose that in a given town there is only
one employer but many prospective employees. In this situation, said
employer has one job opening. The prospective employees are at the
mercy of the sole employer because the employer only needs to make an
offer good enough to attract a small percentage of the candidates. His
offer can therefore be bad enough that most people would not ordinarily
accept it. However, if the prospective employees needed a job, they would
have to accept whatever offer they got and in addition refrain from
insisting on favourable terms for themselves.
However, the description of the initial choice situation straightforwardly
precludes any differences in BATNA due to one party having more
opportunities to bargain than another. Since the initial agreement must be
made with all the available parties, there is no set of possible parties who
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are not part of the current agreement and who could be available for
forming an alternative agreement with. Even if the parties could try again
if they do not come to an agreement the first time, all the parties have the
same number of attempts. Moreover, it is not clear if additional attempts
could count as genuine alternatives since the parties involved would be
the same. Even if this could be considered a genuine alternative, all
parties have the same number of alternatives. The expected utility of the
BATNA that could accrue due to availability of alternatives is the same for
everyone.
As a consequence, another aspect of BATNA plays a larger role in
generating bargaining power in the initial choice situation. This aspect
pertains to the amount of resources a person has if no agreement is
made. As an illustration: Consider the case where a rich music production
executive is making a deal with a poor, starving unknown musician over
royalties. The executive, in virtue of the wealth that he can fall back on, is
less willing, all else equal, to revise the offer he makes to one that is more
favourable. The musician, on the other hand, would be less willing to hold
out. His resources can only stretch for so long and since his current
standard of living is so poor, he has a greater incentive to alleviate that
condition to any degree. This would include accepting a deal which would
raise his standard of living by some significant amount but which would
end up very nearly enslaving him.
In the initial choice situation, this is translated as the outcome that the
parties can expect if they fail to come to an agreement. If, given a correct
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under a conception of justice has, all else equal, a lot of reasons for that
conception of justice. A conception of justice thus consists of terms of
cooperation which provide some payoff in terms of the fulfilment of a
persons highest order interests. It would be inappropriate to claim that a
person had reason to engage in a given scheme of social cooperation if
her payoff under that scheme was no higher than her payoff if no social
cooperation had taken place, given that these gains form the basis for
engaging in such social cooperation. Where there is no gain relative to
what one could get on ones own, there is no reason to engage in social
cooperation. The reasons one has for that conception are thus the payoff
she gets under that conception less the payoff she would get when there
is no social cooperation.
In a bargaining situation, if the BATNA exceeds a given option, that party
will not agree to that option since walking away is preferable to agreeing.
This makes it the case that the strength of the preference for an option
can be nothing other than the difference in payoffs between agreeing to
that option and not agreeing to anything. If the strength of a persons
reasons for a conception is to be proportional to the strength of the
corresponding parties preference for that option, a persons gains from
social cooperation must be made proportional to the strength of her
partys preference. This can only happen if the consequence the parties
must face when they fail to agree is the situation where there is no social
cooperation. If on the other hand, the non-agreement point was the status
quo, the strength of the preference for a conception would be proportional
to the strength of the reasons for that conception less the strength of the
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reasons for the status quo. Since the status quo can exhibit at least some
degree of morally appropriate social cooperation, the strength of the
preference for that conception would not be proportional to the strength
of the reasons. This disqualifies the status quo as well as any other
description which involves some amount of social cooperation from being
the description of the non-agreement point.
This complete absence of social cooperation and institutions is akin to
Hobbes state of nature where there is a perpetual war of all against all.
The key point in evaluating this counterfactual is to imagine people
behaving as if they were not motivated to behave in ways that was
required by a conception of justice. The idea is that people are ordinarily
motivated by personal affection and a sense of morality to act in ways
that conform to most reasonable accounts of justice. If we are to evaluate
the extent to which a given set of moral rules contributes to a persons
highest order interests, the relevant contrast should be with a situation
where people are not ordinarily motivated to act as if they are constrained
by morality.
It seems to be a home truth that most if not all of the advantages we have
in life are the product of ours and other peoples developed talents.
Developing our talents requires, at the minimum, non-interference and in
at least some cases positive assistance from others. For instance,
accumulating wealth requires cooperation with others for extended
periods of time. If one wishes to sell some widget that she has made, she
requires other people to honour their agreement to pay for the widget. In
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order for other people to be willing to purchase the widget and not merely
take it by force, they require that the seller honour the agreement to hand
over the product once she has been paid. All these require norms, which
as stipulated, people lack the effective desire to abide by. Since there are
no norms regulating the conduct between persons, no one can expect
non-interference let alone positive assistance from others. Even the family
and clan cannot be relied upon. The family and clan are basic social
institutions which impose duties on its members. In the state of nature, it
is stipulated that people lack the effective motivation to perform such
duties. This makes long term planning as well as the development of ones
latent talents impossible. Hence, everyone is unacceptably badly off.
There might be some differences between people who are differently
capable of being self sufficient. However, these differences are so small
compared to what can be gained by social cooperation as to be negligible.
When this is the case, everyones BATNA is the same.
Conclusion
I have thus shown that there is no difference in BATNA between the
parties even in the choice situation without the Veil. The above account
should clarify some of the ways in which knowledge of ones position does
not confer a bargaining advantage. If it turns out that there is no
mechanism by which knowledge of ones position confers a bargaining
advantage in the initial choice situation, then the Veil would not be
necessary to eliminate bargaining advantages. Even if other arguments
for the Veil of Ignorance are successful, the above exercise serves to clear
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away one of those which are not. This would cut away some of the
theoretical bloat in Rawlss theory even if it leaves untouched some of its
more important conclusions. This latter goal is important if we think that
we should not just believe things which are justified, but believe them
based on the reasons that justify them and not for any other ones.
References
Dahl, Robert A, 1957, The Concept of Power, Behavioral Science, Volume
2, Issue 3, pp. 201215
Dworkin, Ronald, 1973, The Original Position, The University of Chicago
Law Review, Vol. 40, No. 3 (Spring), pp. 500-533
Fisher, Roger; Ury, William; and Patton, Bruce; 1991, Getting to Yes:
Negotiating an Agreement without giving in, Random House Business
Books
Freeman, Samuel, 2007, Rawls, Routlege
Gauthier, David, 1978, Social Choice and Distributive Justice,
Philosophia, Vol. 7, No. 2, pp. 239-253
Harsanyi, John C, 1975, Can the Maximin Principle Serve as a Basis for
Morality? A critique of John Rawlss Theory, The American Political
Science Review, Vol. 69, No. 2, pp. 594-606
Rawls, John, 1974-1975, The Independence of Moral Theory,
Proceedings and Addresses of the American Philosophical Association, Vol.
48, pp. 5-22
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