Journal of Philosophy, Inc.

Review
Authors(s): Thomas W. Pogge
Review by: Thomas W. Pogge
Source: The Journal of Philosophy, Vol. 87, No. 7 (Jul., 1990), pp. 375-384
Published by: Journal of Philosophy, Inc.
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 BOOK REVIEWS 375

BOOK REVIEWS

A Treatise of Social Justice, Vol. I: Theories of Justice. BRIAN

BARRY. Berkeley: University of California Press, 1989. xv, 428 p.

Cloth $45.00.

In this trilogy, Barry is concerned with justice, which, following

Rawls, he conceives as a property of basic social institutions (146).

He distinguishes two main functions that can be attributed to justice

so understood: either "the function ofjustice is to provide a rational

basis for agreement among people who . . . seek to take due ac-

count of the interests of all" or it "is to enable egoists to get along

better with one another" (272). These two views of the function of

justice are correlated with two substantive approaches: justice as

impartiality and justice as mutual advantage.

In discussing these two approaches, Barry further confines himself

to, what he calls, constructivist theories of justice. These are theories

that select a criterion ofjustice, or just practices, in an indirect (259),

broadly contractualist (269) way, as "what the parties would them-

selves agree on in some hypothetical situation" (269). Barry contrasts

this with "intuitionist" theories favoring "the direct route, which

would have us simply say what we think justice requires" (259).'

Constructivist theories of justice as impartiality are dubbed origi-

nal-position theories. Barry classifies these into four types, distin-

guished on the basis of two questions (294, 320f): Do the parties

know their (clients') personal characteristics? And are they motivated

by self-interest or by a desire to reach agreement on reasonable

terms? In the second volume of his trilogy, Barry intends to develop

an original-position theory that conceives the parties-though "they

do not have to be completely detached from their own interests"

(352)-as motivated by a desire to reach agreement on reasonable

' Barry also maintains, however, that constructivist theories are intuitionist by

relying on intuitions (271-5). He might have been clearer here that "intuitionism"

may name two distinct doctrines. One holds that value conflicts can be resolved only

intuitively through case-by-case judgment, not algorithmically through priority

rules or assignment of weights. The other holds that our moral reflections must be

based on certain intuitions as fixed points (to be understood as glimpses of the

moral facts, as in G. E. Moore, or as considered judgments, as in Rawls). Barry also

wavers on whether the latter doctrine allows appeal to intuitions on all levels of

generality (272f) or only to "intuitions about well-described particular cases"

[which, falsely, he takes to be Rawls's "official theory" (281)].

0022-362X/90/8707/375-384 (?) 1990 The Journal of Philosophy, Inc.

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376 THE JOURNAL OF PHILOSOPHY

terms.2 This original position is to be a debate rather than a game

(371), though (in keeping with the definition of "constructivism") a

fictional debate among "agents of construction" (371). These agents

"do not operate behind a veil of ignorance" (371), though such a veil

will be invoked occasionally for dramatic emphasis (333, 345, 371).

Does this mean that reference to a veil will occasionally be made by

the debating parties, or that Barry will occasionally spread a veil over

their debate? Will Barry's theory resemble that of Jiirgen Habermas

or of Bruce Ackerman, who also reject the use of a veil? While

awaiting the sequel, we can discuss the main goal of the present

volume, which is to analyze and discredit some competing construc-

tivist theories of justice.

Barry takes seriously competing original-position theories of only

one type-those which conceive the parties as self-interested and

ignorant of their (clients') personal characteristics. We are told, how-

ever, that this combination is bound to constitute a "mismatch be-

tween the fundamental intuition about the separateness of persons

and the machinery of rational choice under uncertainty" (336); "im-

partial morality does not emerge from self-interested choices, how-

ever we rig the rest of the specification of the original position"

(334). This objection misses the dominant moral rationale behind

the assumption of self-interest (or, more accurately, of mutual disin-

terest). This rationale is clearest when the parties are conceived as

representatives of prospective citizens: the parties' single-minded

concern for their clients' interests (which need not be selfish ones)

reflects the idea that, to be just, social institutions ought to accom-

modate and protect the interests of all and only those who are to live

under them.

Barry further worries that such theories pack so much into their

premises (their original position) that these premises do not have

enough independent plausibility to increase our confidence in the

favored criterion of justice. In leveling this charge against John

Harsanyi (334f), Barry fails to point to particular premises. When he

levels it against Rawls (336-340), he claims that, by stipulating "that

the people for whom principles are to be chosen have an overriding

desire to be just" (337), Rawls makes his entire construction irrele-

vant, for "if you do not in fact have the higher-order interests that

Rawls attributes to you, then a theory premised on the assumption

2 This desire is borrowed from T. M. Scanlon's "Contractualism and Utilitarian-

ism," in A. K. Sen and B. Williams, eds. Utilitarianism and Beyond (New York:

Cambridge, 1982), pp. 103-128.

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 BOOK REVIEWS 377

that you do have them cannot be of any concern to you" (338). But

what Rawls stipulates is not that those whom the parties represent

have a sense ofjustice, but that they have an interest in having it, i.e.,

an interest in institutions that will engender it. This stipulation is

plausible because such institutions are good for citizens. We all have

strong reasons to value a sense of justice in one another.3

Constructivist theories of justice as mutual advantage, which seek to

appeal only to rational prudence and self-interest, are dubbed two-

stage theories. The mutual advantage approach has received a great

impetus from modern game theory, and Barry spends the entire first

third of his book discussing two-person bargaining games. I found

this discussion competent and helpful in locating the differences

among John Nash, R. B. Braithwaite, John Lucas, David Gauthier,

and others. It also provides (though Barry no more than hints at this)

one reason for being skeptical about two-stage theories: none of the

several supposedly unique general solutions to bargaining problems

now in the field shows much promise of trouncing all its competitors.

Likely to prevail is therefore the claim, made already in 1944 byJohn

von Neumann and Oskar Morgenstern (1 2f), that there is no unique

solution. This would presumably entail that there is no uniquely

acceptable two-stage theory of justice either.

But two-stage theories face a deeper challenge as well, one that

tends to be obscured by the exciting parallels with game theory.

Barry assumes that, being constructivist, such a theory will seek to

show what agreement it would be mutually advantageous to make in

some particular hypothetical bargaining setting (266, 269). It will do

this (hence the label) in two stages: it will first establish the noncoop-

erative baseline (the payoffs resulting from how parties would be-

have before any agreement), and then proceed from there to an

agreement on the Pareto frontier. Yet this is not enough, for such a

theory must also motivate the hypothetical bargaining setting itself,

must show that actual parties here and now have reason to care

3For the details of this response, see for example my Realizing Rawls (Ithaca:

Cornell, 1989), pp. 99-103. I also review there (pp. 11 if) some reasons for doubt-

ing the old charge, repeated by Barry (215, 340), that, barring strong new stipula-

tions, Rawlsian parties would adopt an averaging rather than a maximin criterion.

Briefly, a maximin criterion is easier to apply, better supports a shared sense of

equal citizenship, engenders weaker strains of commitment, and for these reasons is

more likely to foster stability. Hence, it may well be chosen over an averaging

criterion even by parties concerned to maximize their expected payoffs (as a re-

sourcist criterion may well be chosen over a welfarist one even by parties ultimately

concerned with welfare).

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 378 THE JOURNAL OF PHILOSOPHY

about what bargain would be struck in the idealized setting.4 That

some hypothetical contractors would be fools not to set up market

institutions, for example, does not show that the same is true of our

Mssrs. Ceausescu or Kim I1 Sung. Seeing that our world is quite

different from any textbook bargaining setting, they, and anyone,

should surely ask: What does that hypothetical bargaining have to do

with me?

This question-though a staple in discussions of original-position

theories-is too often neglected in discussions of the mutual-advan-

tage approach. Barry is no exception. At the outset of his discussion

of original-position theories he writes: "Unless we have been given

some good reason for believing that what would be chosen in a

certain kind of situation will constitute a principle of justice, it is a

waste of time even to inquire about what might be chosen in it"

(321). But his discussion of mutual-advantage theories starts out as

follows: "The first thing that has to be settled is the nature of the

nonagreement baseline: Should it depend on the results of strategic

play for relative advantage, or should it reflect the best the parties

could do for themselves independently?" (293f). Barry fails to realize

that two-stage theories (as he calls them) must have three stages: (A)

an argument for some particular hypothetical bargaining setting, (B)

an argument for a precooperative baseline appropriate to this set-

ting, and (C) an argument for the bargain that, given this baseline,

would be struck in that setting.5

It seems difficult, within the mutual-advantage approach, to moti-

vate the favored hypothetical bargaining setting while appealing only

to the diverse interests and rational prudence of fully situated par-

ties.6 Failing this, one might invoke moral considerations-though

this would undermine the key rationale behind a theory of justice as

4 This challenge is quite different from the question, which Barry considers (367),

why a merely hypothetical agreement should be binding on those for whom it would

have been rational to make.

5 While Barry often flatly overlooks stage (A), he occasionally (302f, 327, 368)

seems to conflate it with stage (B), e.g., by using the word 'baseline' with a double

meaning.

6 Only Hobbes seems to me to have a serious response in this vein: my hypotheti-

cal bargaining setting incorporates assumptions about the human environment and

psychology which are realistic, so that the two main outcomes for my fictional

bargainers are also the two main outcomes in the real world. Of course, human

persons differ widely in their endowments. The state of nature, however, is a

disastrous outcome for all, whatever their human endowments; and the alternative

outcome can be achieved only if all persons subject themselves equally to a common

power. Hence, it would be irrational, even for the best-endowed actual persons, to

try to exact more favorable terms from their sovereign or compatriots.

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 BOOK REVIEWS 379

mutual advantage. Instead, one might also radically confine one's

ambitions, seeking merely to show how, given some particular actual

bargaining setting, a just agreement is to be derived for that setting.7

But even merely offering a general recipe for such derivations would

not fully avoid the problem, because the recipe would still be based

on the assumption that all parties in such actual settings are fully

rational maximizers. But this assumption is not true, nor is it neces-

sarily the case that each party has sufficient reason to want all to

become such maximizers.

Barry wants to classify mutual-advantage theories into four types

(2940. In theories of type 1, both the precooperative baseline and

the division of cooperative gains are determined by how rationally

self-interested parties would bargain with one another. The other

three types differ from type 1 by making a stipulation that is not

based on what would emerge among rational self-interested parties,

namely, the stipulation that the parties make no threats, agree to

equal gains (in terms of utility), or both. Barry has little trouble

showing that, in making such stipulations, theories of the latter three

types fall outside the mutual-advantage approach. But the point of

this achievement is unclear. With only one type remaining, Barry's

classification becomes idle. And the theories he expels from the

mutual-advantage approach never find a new home. (Although

clearly constructivist in his sense, they do not appear among the

original-position theories.)

Moreover, an important recent theory is expelled unjustly. Barry

acknowledges (296) that Gauthier's advocacy of equal gains (strictly:

minimax relative concession) does not place Gauthier outside the

mutual-advantage approach, because this advocacy is based not on

the claim that equal gains is "ethically attractive," but on the claim

that it is the rational bargain to strike. Yet Barry fails to acknowledge

(296) the parallel point about Gauthier's exclusion of threats (his

"Lockean" proviso), which likewise is not based on ethical attrac-

tiveness, but on the claim that it is not advantageous, among rational

parties, to honor and make threats.8 Even if Gauthier's argument for

7Such a genuinely two-stage theory would make justice extremely context-de-

pendent (more so even than utilitarianism does). No practice would be just simpli-

citer; and almost any practice advantageous to a few would be just in some context,

e.g., when it is disadvantageous for the others to rebel. (What international order is

just, for example, would vary dramatically with shifts in the international distribu-

tion of power.)

8 See Gauthier, Morals by Agreement (New York: Oxford, 1986), esp. p. 195. Let

me note that Gauthier's proviso is extremely weak. It imposes upon the precooper-

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380 THE JOURNAL OF PHILOSOPHY

this latter point is unconvincing, this cannot alter the fact that his

theory has the type-I structure and thus properly instantiates the

mutual-advantage approach.

II

Thus far, I have concentrated on the final, third part of Barry's book

which, for his purpose in this trilogy, is clearly the most important. I

have briefly mentioned the first part, a state-of-the-art discussion of

two-person bargaining theory. Let me now say a little about the

second part, which interprets both Hume and Rawls as committed to

two conflicting theories of justice, one within the impartiality and

one within the mutual-advantage approach (152). This part is, I

think, the weakest of the book because, mainly exegetical in nature, it

is just too deeply wrong about the works it is interpreting. I shall

briefly address some of the more important points.

Hume's main object is to "introduce the experimental method of

reasoning into moral subjects"; he wants to be anatomist rather than

painter, i.e., explain morality rather than preach it.9 Not being clear

about this distinction, Barry often takes Hume to be involved in

Barry's own project of justifying (and appraising) practices, rather

than in that of explaining existing practices and human attitudes

toward them. Of course, these two projects are not entirely indepen-

dent. Motives appealed to in justifications may also figure in explana-

tions. The inverse, however, is not generally true, as the case of,

unconscious motives attests. It is not surprising, then, that Barry sees

flaws in Hume's account (which he explains as conservative bias)

precisely at points where Hume's explanation invokes subtle psycho-

logical mechanisms that could not possibly play a justificatory role.

Although an explanation, Hume's account is still exposed to a

possible conflict of the kind Barry envisions, for it is on the basis of

self-interest (combined with sympathy and reflection) that Hume

seeks to explain the prevalent commitment to a conception ofjustice

as impartiality. "The question is: why should we want to bring our

own sympathetic judgments into line with those of everybody else?

ative baseline the constraint that A not make B's situation worse than it would be in

A's absence except insofar as is necessary to prevent A's situation from becoming

worse than it would be in B's absence (Gauthier, pp. 203-5). Thus, in the case of

Jonathan and Joanna stranded on an island (Gauthier, p. 207), he may prevent her

from eating any naturally available food, because her eating would reduce his choice

of foods and thus make him worse off than he would be in her absence. By contrast,

neither Locke nor even Nozick would allow Jonathan to starve Joanna in this way.

9 Hume: A Treatise of Human Nature (New York: Oxford, 1973), subtitle and

pp. 620f.

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 BOOK REVIEWS 381

. In the end, I think that Hume was forced to abandon his official

theory and allow that the desire to behave in a way that can be

justified in impersonal terms must be admitted as an irreducible

motive" (166f). But Hume has a response to this version of Barry's

conflict charge [though Barry denies that this response is in Hume

(165f)]: it is because human beings are "sensible of' the mutual

advantageousness of uniform dispositions of praising and blaming

that they tend to equilibrate toward a common mioral vantage point

-perhaps unconsciously, like two rowers who may fall in with each

other without being fully aware that this is the most effective method

of rowing (cf. Treatise, p. 490).

'Tis impossible we cou'd ever converse together on any reasonable

terms, were each of us to consider characters and persons, only as they

appear from his peculiar point of view. In order, therefore, to prevent

those continual contradictions, and arrive at a more stable judgment of

things, we fix on some steady and general points of view; and always, in

our thoughts, place ourselves in them, whatever may be our present

situation (Treatise, p. 581f).10

Barry's conflation of explanation and justification is most damag-

ing in his discussion of the circumstances of justice. These are very

general facts about human beings and their environment which,

according to Hume and Rawls, must obtain if the problem of justice

(parties making conflicting claims on the design of common prac-

tices) is to arise at all. Barry thinks, however, that these circumstances

also constrain how the problem, once it does arise, should be re-

solved. Thus, where Hume and Rawls assume that common practices

will exist only in an environment in which mutually advantageous

cooperation is possible, Barry takes them also to demand that such

practices be mutually advantageous:

If the reason for adhering to the solution is self-interest, as the doctrine

of the circumstances of justice implies, the solution must first give the

parties what they could get at the nonagreement point; but it must then

divide the gains that are to be made by moving away from the nonagree-

ment point in a way that leaves them equally satisfied, in a sense of

'equally satisfied' that takes account of bargaining strength (186f,

cp. 249).

The mistake here lies in the supposed implication. The causal claim

that cooperative practices will exist only in environments in which

10 Cf. Hume, Enquiries Concerning Human Understanding and Concerning

the Principles of Morals (New York: Oxford, 1972), p. 229.

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382 THE JOURNAL OF PHILOSOPHY

some such practices can yield a net benefit does not imply that the

participants' reason for compliance with cooperative practices is

self-interest. (Compare: the claim that monotheistic beliefs will exist

only in large societies asserts a necessary causal condition. It does

not imply that people's reason for holding monotheistic beliefs is

that their society is a large one."1) Thus, Barry fails to show that their

view on the circumstances ofjustice commits Hume and Rawls to the

central normative demand of mutual-advantage theories of justice

(which then allegedly conflicts with the commitment to impartiality

ascribed to those same authors).

The mistake is further compounded. For Hume and Rawls,

whether the circumstances of justice obtain depends on our psychol-

ogy, environment, and (to some extent) on the general level of tech-

nological advance. It does not depend on how a society is organized

once these factors are given. Barry, however, takes the circumstances

of justice to be predicated of full-fledged social systems, and thus

concludes that these circumstances may not obtain in some societies

because, for example, one group is capable of enslaving others by

virtue of its superior technology. It is, Barry reasons, "an immediate

consequence of Hume's position" that such enslavement would not

be unjust, because one of the circumstances of justice, rough equal-

ity of powers, is absent (162). But in the passage from which Barry

derives his "immediate consequence," Hume does not make a nor-

mative point about any, but a factual point about natural, inequal-

ity of powers:

Were there a species of creatures intermingled with men, which . . .

were possessed of such inferior strength, both of body and mind, that

they were incapable of all resistance, and could never . . . make us feel

the effects of their resentment; . . . the restraints of justice and prop-

erty ... . would never have place in so unequal a confederacy (En-

quiries, pp. 190f)."

Barry misunderstands Rawls analogously. The circumstances of

justice would not obtain, Rawls holds, if there were no feasible mode

" The mistake, obvious here, is often obscured by Barry's use of ambiguous

language, such as 'because', which may indicate a cause or a reason, or 'the require-

nent of mutual advantage' (249), which may allude either to the factual precondi-

tion that mutually advantageous practices must be possible or to the demand that

cooperative practices ought to be mutually advantageous.

12 Yet Barry is right to ask (190) how Rawls can speak of justice between genera-

tions, given that future persons can never make us feel the effects of their resent-

ment. This problem, to which Rawls seems indeed to have given no adequate

response, has however been raised before-e.g., by D. C. Hubin, "Justice and

Future Generations," Philosophy and Public Affairs, Iv (1976): 70-83, pp. 79f.

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 BOOK REVIEWS 383

of cooperation that achieves a sharable net benefit relative to non-

cooperation. But Barry reads Rawls as committed to the claim that

the circumstances of justice do not obtain in a society if a transition

to just institutions would not be advantageous to those presently rich

and powerful (326f, 330). Thus, Barry concludes, Rawls must pre-

suppose "that the principles of international morality that he pro-

poses would really be found mutually advantageous by all countries

irrespective of power" (246)'3 and is committed to the demand "that

principles of justice should be capable of being presented as mutu-

ally advantageous in the real world. This is precisely the significance

of the doctrine of the circumstances of justice" (195).

The idea that his endorsement of Hume's circumstances ofjustice

commits Rawls to a mutual-advantage theory of justice is adven-

turous enough. Yet even more fantastic is Barry's notion that Rawls

had initially intended the circumstances ofjustice as a representation

of impartiality. In his earlier article "Justice as Fairness," 14 "Rawls

says that the 'typical circumstances of justice' represent 'the con-

straints of having a morality' " (325). Here even the quotations are

invented. What Rawls actually says is:

The character and respective situations of the parties reflect the typical

circumstances in which questions of justice arise. The procedure

whereby principles are proposed and acknowledged represents con-

straints, analogous to those of having a morality, whereby rational and

mutually self-interested persons are brought to act reasonably (ibid.,

p. 172).

Thus, Barry is wrong to claim that here "fairness is defined by the

presence of the circumstances of justice" (325) and "the circum-

stances ofjustice are put into the original position" (329). Fairness is

represented by the "procedure whereby principles are proposed";

and "the typical circumstances in which questions of justice arise"

are those of everyday life. The original position, in any case, does not

yet appear in "Justice as Fairness."

The misreadings of Hume and Rawls reveal a pervasive feature of

Barry's book: though composed in the assuring style of an elder

statesman, it is in fact written with little care and riddled with mis-

takes. A few further examples must suffice. (1) Although about half

the book (and much of Barry's earlier work) is on Rawls, Barry cites

only three of the thirteen or so papers Rawls has published since A

'" An earlier version of this claim by Barry is discussed in my Realizing Rawls,

pp. 105-146, 263-5.

14 Philosophical Review, LXVII (April 1958): 164-198.

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 384 THE JOURNAL OF PHILOSOPHY

Theory ofJustice. He also fails to consult the revised text from which

translations have been made since 1975. It is then not surprising that

he repeats misunderstandings of Rawls's theory that have long been

cleared up.'5 (2) Barry finds highly suggestive that the idea of con-

ceiving of the original position as an instance of pure procedural

justice does not yet occur in A Theory of Justice (267f, 278). One

glance at the index of Rawls's book ("Procedural justice, pure .

and original position") would have given him two passages where this

idea does occur. (3) Barry asserts that "the difference principle picks

out the most egalitarian of all the Pareto-optimal 'arrangements sat-

isfying the requirement that everyone should gain from inequality"

(227). Shortly thereafter (230), he himself describes a case (without

chain connection) that is a counterexample to this assertion. (4) The

book would have benefitted from proper proofreading, quote

checking, and a more reliable index.

Having focused this review on the weaknesses of Barry's book (as I

think he would have wanted a reviewer to do), I have probably made

it appear worse than it is. Still, it really is not a strong book-not in a

class with Barry's earlier Political Argument.

THOMAS W. POGGE

Columbia University

15 Another example of this is Barry's comment on Rawls's assumption that "the

parties take no interest in one another's interests" (A Theory ofJustice, p. 127): "It

is important to realize that the 'parties' being referred to here are not the people in

the original position . . . [but] people in real life" (181). The one passage that

suggests this reading (p. 128) is corrected in the translations. And many other

passages militate against Barry's reading: Rawls speaks of "the postulate of mutual

disinterest in the original position" (p. 129); and he later spends an entire section

(?79) explaining that mutual disinterest must not be understood "as describing a

certain kind of social order . . . that is actually realized" (p. 520), that his ideal is

not that of a "private society" (p. 521 f) but that of a "social union of social unions"

(pp. 527-9).

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