1. The Basic Thesis of Morals by Agreement

In 1974 David Gauthier organized a Workshop on Contractarian Theory in Toronto, which I had the good fortune to attend. From that stemmed one of the relatively few cases I know of in which a philosopher actually was moved to change his mind on a major question as the result of an argument. Gauthier’s ‘Reason and Maximization’ made me realize that I was, basically, wrong, and he was, basically, right, about the foundations of morals. If morals are to be rational, they’re going to have to be, in effect, the terms of a rational agreement among us all, and that agreement is propelled by our several interests and powers viewed as such, rather than as mere components of some grand social interest. Moreover, there is no way that the terms of that agreement will be utilitarian, as I had up until then been inclined to suppose. In consequence, I before too long – it took about two years to complete, as I recall – ceased my allegiance to the utilitarian view, and my conceptual life became more complicated – though, I think, improved.

But what, then, are the terms of the grand social agreement? In his subsequent book Morals by Agreement Gauthier spells out the basic components of morals in three phases, designated by the now famous abbreviations CM, MRC, and LP

(1) CM, or Constrained Maximization, is his proposed response to the Compliance Problem, and holds that the rational person, in a Prisoner’s Dilemma situation, is to cooperate with anyone willing to cooperate, defecting only against defectors.

(2) MRC, or Maximin Relative Concession is Gauthier’s proposal concerning the bargaining game, and holds that the proper distribution of gains from cooperation gives each person who is party to that cooperative undertaking what requires the least concession for each, between the minimum and maximum it would be possible for him to claim – normally, an equal relative concession.

(3) Finally, there is LP, the Lockean Proviso, which calls upon us to refrain from pursuing our own utility by imposing disutility on our interactees, relative to the baseline of noninteraction, except when this is necessary in order to avoid an even greater disutility being imposed on ourselves.

2. Gauthier’s Lockean Proviso and Libertarianism

The Lockean Proviso has a strikingly libertarian ring to it. It ‘converts the unlimited liberties of Hobbesian nature into exclusive rights and duties;’ and it ‘affords each person exclusive right to the use of his body and its powers, his physical and mental capacities. Moreover, it provides, as libertarians insist, the basis for private property. If others take what I have produced, they owe me compensation. How much? According to Gauthier, if they pay me the equivalent of ‘what I expected from my labor in the absence of intervention, then my situation has not been worsened. Nonworsening is the basic constraint – just what the libertarian asserts.

The Proviso also leads to the robust, market-oriented conception of private property advocated by the libertarian. For when we interact, it is possible for me to impose uncompensated costs on you even when you would otherwise have been fully compensated, or your initial right not violated in the first place. This happens if I do what imposes a disadvantage on you that is relevant to the further gains we seek from our separate but interacting activities. His favored example concerns pollution imposed on what has become your source of income from commercial exchange with third parties, bettering the terms of trade for me by worsening them for you. The general principle, then, is that ‘all of the costs of one person’s activities that fall on others within the sphere of interaction are displaced costs, requiring compensation if the proviso is not to be violated.
It would be difficult to improve on this as a general statement of libertarian principles. Gauthier, it would appear, is a libertarian. Yet he claims not to be. The question is, why? And are his reasons for demurring valid? That forms the subject of this essay.

3. What does Libertarianism Require?

It is possible, and for that matter familiar, to attribute to libertarians a stronger view than that sketched in Gauthier’s exposition of LP. In particular, many and no doubt most libertarians have asserted not only the substance of the preceding, but also a theory about its basis that goes beyond what Gauthier will grant. In their view, each person has ‘an inherent moral status in relation to her fellows’, as Gauthier puts it. The trouble is, though, that ‘In a pure state of nature, in which persons interact non-co-operatively and with no prospect of co-operation, they [that is, the moral claims delineated above] have no place. But then, why would or should a libertarian have to make the further claim that the rights he asserts also hold in a non-cooperative situation? After all, libertarianism, like any political and moral theory, is a theory about man in the social condition. True, it proclaims the superiority of that state to the nonsocial state. Yet the basis of that claim is merely the advantages of the social state, for each individual, as compared with what can be expected in a nonsocial one. And those advantages are precisely due to the distinctive practical profile of the agent’s moral outlook in the social state. It is the practical reasoning of individuals in the state of nature that makes that state such an undesirable condition.

It is, to be sure, exceedingly unclear what it is to be in such a situation as the ‘state of nature’ unless it is what results when some party insists on disregarding the LP restrictions. Or perhaps it has never occurred to them that there are or should be any such restrictions. If that should be the case, however, Gauthier’s principle of Constrained Maximization clearly allows us to defend ourselves against such parties, and in this, of course, the libertarian fully concurs – the libertarian is no pacifist. He insists on his rights, and if he does not get them, he proceeds, in accordance with Hobbes’s maxim, ‘by all means to defend himself’. In conditions in advance of the “state of nature,” of course, the sweeping reference to “all” means may be appropriately modified.
But it remains that it would seem to be irrelevant whether, as many libertarians think, the principle of liberty has an a priori basis unrelated to our interests. Its practical substance and effect is the same in either case, and is what defines a view as libertarian.
Beyond this substantial point, on which there is full agreement, it would seem that the rest is pure metaphysics. But why impute metaphysics to libertarianism, which after all is asserted as a political and moral principle? I suggest that the ringing assertion of natural rights, so familiar in the writings of libertarians, and the assumption of those rights without further argument or analysis, is due to the fact that libertarians have intuitively discerned this plausible principle, but, not being game theorists or philosophers, have simply not addressed themselves to the important philosophical question of its foundations.

To be sure, they may also have misread it altogether. For example, some may become vegetarians, attributing the LP status to animals as well as their fellow humans. Many are adherents of conservative views on abortion, attributing LP status to human organisms not yet capable of cognitive functioning, let alone any of the other capabilities normally associated with persons who value their liberty. But Gauthier’s view accounts for the typical substantive morals of libertarians, for relatively few of them are in fact vegetarians, and a considerable number are liberals concerning abortion. Those libertarians, at any rate, cannot suppose that the right to liberty is inherent in all beings that are capable of having liberty ascribed to them. Instead they ascribe it, as their slogans normally do, to all rational beings whose level of practical power is at the typical adult human level, cognitively and otherwise. Turkeys, tigers, and fetuses do not qualify at this theoretical level.