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Article

Orthodox rational
choice contractarianism:
Before and after Gauthier

Politics, Philosophy & Economics


2016, Vol. 15(2) 113131
The Author(s) 2015
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DOI: 10.1177/1470594X15599102
ppe.sagepub.com

Michael Moehler
Virginia Tech, USA

Abstract
In a recent article, Gauthier (2013) rejects orthodox rational choice contractarianism in
favor of a revisionist approach to the social contract that, according to him, justifies his
principle of maximin proportionate gain (formerly the principle of minimax relative
concession or maximin relative benefit) as a principle of distributive justice. I agree with
Gauthier that his principle of maximin proportionate gain cannot be justified by
orthodox rational choice contractarianism. I argue, however, that orthodox rational
choice contractarianism, before and after Gauthier, is still a viable approach to the social
contract, although the scope of this approach is limited. Orthodox rational choice
contractarianism can be applied fruitfully to moral philosophy only in situations of deep
moral pluralism in which moral reasoning is reduced to instrumental reasoning, because
the members of society do not share, as assumed by traditional moral theories, a
consensus on moral ideals as traditionally conceived as a starting point for the derivation
of moral rules but only an overarching end that they aim to reach. If orthodox rational
choice contractarianism is applied adequately, then it offers a viable approach to the
social contract that, in contrast to Gauthiers theory, justifies a rival principle for distributive conflicts that is valid for deeply morally pluralistic societies.
Keywords
Rational choice contractarianism, agreed Pareto-optimization, principle of maximin
proportionate gain, weak principle of universalization

Corresponding author:
Michael Moehler, Department of Philosophy, Virginia Tech, 229 Major Williams Hall, Blacksburg, VA 24061,
USA.
Email: moehler@vt.edu

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Introduction
In Morals by Agreement, Gauthier aims to show that:
. . . in certain situations involving interaction with others, an individual chooses rationally
only in so far as he constrains his pursuit of his own self interest or advantage to conform to
principles expressing the impartiality characteristic of morality. To choose rationally, one
must choose morally . . . Morality, we shall argue, can be generated as a rational constraint
from the non-moral premisses [sic] of rational choice.1

Gauthiers goal in Morals by Agreement is to develop a theory of orthodox rational


choice contractarianism that, according to the traditional understanding of morality,
derives moral conclusions on the grounds of nonmoral premises alone. More precisely,
Gauthiers aim is to justify a specific bargaining principle that he calls the principle of
minimax relative concession (or maximin relative benefit) as a principle of distributive justice for rational agents. Over the past 25 years, however, critics have shown that
Gauthiers attempt to develop a theory of orthodox rational choice contractarianism has
failed, because Gauthiers moral theory relies ultimately on substantial moral premises
in the traditional sense of morality that are not fully justifiable on rational grounds, especially Gauthiers state of nature theory and his bargaining theory.2 In addition, Gauthiers account of practical reasoning, as captured by his concept of constrained
maximization,3 relies on a nonorthodox concept of rationality, which assumes that
agents have the capacity to develop dispositions to choose that, under certain conditions,
may increase the agents overall utility.4
These characteristics of Gauthiers social contract theory render Gauthiers moral theory inadequate for the project of orthodox rational choice contractarianism, and 7 years
after the publication of Morals by Agreement, Gauthier rejected his own bargaining theory and his principle of minimax relative concession as a principle of distributive justice
in favor of the standard Nash bargaining solution.5 In a recent article, however, Gauthier
goes one step further by rejecting bargaining theory in its standard formulation entirely
in the context of the social contract and by introducing a new contractarian test for the
justification of the terms of the social contract.6 Moreover, as an account of practical reasoning, Gauthier modifies his concept of constrained maximization and argues for
another nonorthodox concept of rationality that he calls agreed Pareto-optimization.7
According to Gauthier, this new revisionist approach to the social contract justifies,
although not necessarily uniquely, his principle of minimax relative concession as a principle of distributive justice under the new name principle of maximin proportionate
gain.8 In essence, 25 years after the publication of Morals by Agreement, Gauthier now
fully rejects orthodox rational choice contractarianism as an approach to the social contract in an attempt to vindicate and reestablish his principle of distributive justice.
In this article, I agree with Gauthier that his principle of maximin proportionate gain
cannot be justified by orthodox rational choice contractarianism as a principle of distributive justice. I argue, however, that orthodox rational choice contractarianism, before
and after Gauthier, is still a viable approach to the social contract and that Gauthier
de facto never developed a genuine theory of orthodox rational choice contractarianism,

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because he applied this approach outside of its domain. The scope of orthodox rational
choice contractarianism, which represents an instance of the purely instrumental
approach to morality, is limited. Orthodox rational choice contractarianism can be
applied fruitfully to moral philosophy only in situations of deep pluralism in which moral
reasoning is reduced to instrumental reasoning, because the members of society do not
share, as assumed by traditional moral theories, a consensus on moral ideals as traditionally conceived as a starting point for the derivation of moral rules, but only an overarching end that they aim to reach. If orthodox rational choice contractarianism is applied
adequately, then it represents a viable approach to the social contract. To demonstrate
this point, I lay out the basic structure of an adequate theory of orthodox rational choice
contractarianism that, in contrast to Gauthiers theory, justifies a rival principle for distributive conflicts that is valid for deeply morally pluralistic societies.
The argument proceeds as follows. In the second section, I discuss the general features of the purely instrumental approach to morality in order to clarify the scope and
nature of orthodox rational choice contractarianism. In the third section, I discuss the
basic structure and core assumptions of Gauthiers moral theory in its old and new versions in order to show that Gauthier does not develop a genuine theory of orthodox
rational choice contractarianism. In the fourth section, I lay out the framework for an
adequate theory of orthodox rational choice contractarianism that, for the circumstances
described, justifies in the form of the weak principle of universalization a distributive
principle that is valid for deeply morally pluralistic societies. In the final section, I conclude with some general remarks concerning the adequate role of orthodox rational
choice contractarianism in moral philosophy.

Pure instrumental morality


Gauthiers project in Morals by Agreement originates from Hobbes view of morality.9
According to the orthodox interpretation of Hobbes view of morality,10 morality is a
means by which rational, predominantly self-interested agents can leave the state of
nature and cooperate peacefully with one another in society. Morality allows rational
agents to fulfill their interests best in a world of natural equality, scarce resources, and
conflicting ends. According to the orthodox interpretation of Hobbes view of morality,
morality is merely a means to an end that all members of society are assumed to share, in
particular the end of securing peaceful long-term cooperation, which Hobbes considers
to be instrumental in the fulfillment of agents more specific goals. For Hobbes, such
pure instrumental morality, as expressed by the science of the laws of nature, is the
true and only moral philosophy.11
Hobbes applies the purely instrumental approach to morality to specific circumstances. In Hobbes state of nature, agents face de facto a situation of deep moral pluralism due to their divergent moral and nonmoral ideals and potentially conflicting
interpretations of the laws of nature. In this situation, moral reasoning is (fully) reduced
to instrumental reasoning, because agents do not share, as assumed by traditional moral
theories, a consensus on moral ideals on traditional moral grounds as a starting point for
the derivation of moral rules. Traditional moral theories, as understood in this article,
assume that agents embrace moral ideals, such as the moral ideals of equality and

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impartiality, at least partially for intrinsic reasons or for other traditional moral reasons
(such as altruistic reasons) as a basis for the derivation of moral conclusions. Without
such a moral consensus in the traditional sense of morality that serves as a basis for the
derivation of moral conclusions, agents will not necessarily have sufficient reasons to
embrace the moral conclusions reached by traditional moral theories. In Hobbes state
of nature, such a moral consensus in the traditional sense of morality does not exist, and
agents share, apart from certain basic human needs and the empirical conditions of the
world in which they live, only the overarching goal of securing peaceful long-term cooperation. In such situations, the purely instrumental approach to morality has full normative authority.
Three clarifications are necessary with regard to the features of the purely instrumental approach to morality. First, the approach does not aim to defy the logic of isought.12 The purely instrumental approach to morality does not aim to derive normative
conclusions from nonnormative premises alone.13 However, a distinction between normative assumptions and moral assumptions in the traditional sense of morality exists.
Although all moral assumptions as traditionally conceived are normative, not all normative assumptions are moral assumptions in the traditional sense of morality. The purely
instrumental approach to morality derives its conclusions based upon a combination of
normative assumptions (in particular assumptions about the rationality of agents) and
assumptions about human nature and the empirical conditions under which human
beings live. The approach does not, however, rely on substantial moral premises in the
traditional sense of morality, because under the condition of deep moral pluralism such
premises are, by definition, controversial.
Second, according to the purely instrumental approach to morality, agents do not need
to be motivated to follow moral rules on the basis of what are traditionally conceived to
be moral reasons (although some agents may be motivated by such reasons), as long as
the agents reasons for action (even if the reasons are selfish) promote the overarching
shared goal among agents. This feature of the purely instrumental approach to morality
does not imply that this approach offers generally the wrong kind of reasons for acting
morally.14 Instead, only from the perspective of traditional morality may the purely
instrumental approach to morality offer the wrong kind of reasons. However, the traditional approach to morality is not authoritative for situations of social interaction that are
regulated by the purely instrumental approach to morality, because, by definition, no
agreement on the precise nature and demands of morality exists in such situations from
the perspective of traditional morality. In other words, the wrong kind of reasons objection arises only if the distinction between the domain of traditional morality and the
domain of pure instrumental morality is not considered adequately.
Third, as a result of the previous two features of the purely instrumental approach to
morality, which derives its conclusions without relying on substantial moral premises in
the traditional sense of morality and without requiring that agents follow its conclusions
on traditional moral grounds, the conclusions reached by the purely instrumental
approach to morality may be considered not to be genuine moral conclusions. This is
a legitimate concern and, in order for the purely instrumental approach to morality to
represent an adequate approach to morality, its conclusions must at least reflect traditional moral ideals, such as the moral ideal of impartiality (as Gauthier stresses for his

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moral theory),15 even if the conclusions are not derived based upon such moral ideals as
traditionally conceived. The conclusions reached by the purely instrumental approach to
morality must reflect traditional moral ideals in order to be viewed as genuine moral conclusions. Only then will the purely instrumental approach to morality represent a legitimate moral approach.
These features of the purely instrumental approach to morality that underlie the position of orthodox rational choice contractarianism show that orthodox rational choice
contractarianism can be applied fruitfully to moral philosophy only in situations in which
agents do not share a substantial moral basis in the traditional sense of morality, as
expressed, for example, by a shared moral sense among agents that stems from shared
moral ideals, for the derivation of moral rules. In such situations, the purely instrumental
approach to morality is the only viable account of morality and has full normative
authority, because the approach is neutral with regard to the motivation and content of
agents interests as well as to their particular goals. If agents have a shared moral basis
in the traditional sense of morality, then the purely instrumental approach to morality
loses its justificatory power and cannot offer a convincing account of moral motivation,
because the approach operates in the domain of traditional morality that considers morality to be at least partially noninstrumental. The scope of pure instrumental morality,
and thus the scope of orthodox rational choice contractarianism, is limited.

Gauthiers moral theories: Old and new


Although Gauthiers project in Morals by Agreement originates from Hobbes view of
morality and Gauthier develops a broadly Hobbesian moral theory,16 Gauthier does not
develop a purely instrumental theory of morality, and thus does not develop a genuine
theory of orthodox rational choice contractarianism, because Gauthiers moral theory
relies ultimately on substantial moral premises in the traditional sense of morality that
are not fully justifiable on rational grounds in the orthodox sense of the concept of rationality. In particular, in contrast to Hobbes nonmoralized state of nature in the traditional
sense of morality, Gauthier bases his moral theory on a Lockean state of nature that is
assumed to justify the acquisition of private property rights prior to the formation of society and . . . prohibits bettering ones situation through interaction that worsens the situation of another.17 This Lockean proviso, according to Gauthiers interpretation,
defines the standard for the fair acquisition of private property in the state of nature and
serves as the baseline of comparison for the social contract. More specifically, Gauthiers
moral theory defines the disagreement point for the social contract in terms of agents
justified holdings according to the Lockean proviso and in the absence of coercion in the
state of nature.18
As critics have shown,19 Gauthiers attempt to justify the Lockean proviso on purely
rational grounds in the orthodox sense of the concept of rationality fails. As such, Gauthiers moral theory, de facto, does not assume that agents embrace the starting point for
the social contract on the grounds of pure instrumental rationality. Instead, the agents
must consider the starting point for the social contract to be fair and, in this sense, justified on traditional moral grounds. As Gauthier himself realizes, the [i]ntroduction of
the Lockean state of nature moralizes the base point for social cooperation. Thus, moral

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factors enter into the derivation of the principles of justice.20 In comparison to a nonmoralized Hobbesian state of nature, the introduction of fairness considerations to the
state of nature morally constrains the interaction of agents in the state of nature that
forms the basis for the social contract. For Gauthiers new moral theory, the Lockean
proviso, in Gauthiers specific interpretation, remains central as a standard for the fair
acquisition of private property in the state of nature and now plays an even bigger role
in Gauthiers moral theory as a condition for the justification of all morally relevant
types of social interaction and not only social interaction in the state of nature, although
the proviso may be overridden if doing so is mutually beneficial according to Gauthiers
principle of distributive justice.21
In addition to moralizing the state of nature, Gauthiers social contract theory, as presented in Morals by Agreement, moralizes the bargaining theory that justifies Gauthiers
principle of distributive justice. Gauthier argues that agents must consider the bargaining
process to be fair (impartial) in order to accept its outcome.22 Gauthier suggests that his
principle of minimax relative concession (or maximin relative benefit), which minimizes
anyones maximum relative concession in the bargaining process, fulfills this demand.23
To clarify, agents maximum relative concessions in the bargaining process are the
excess utility that the agents receive if their most favorable option is realized over the
utility that the agents receive at the disagreement point. In general, the maximal claims
that agents make at the beginning of the bargaining process are incompatible, because
rational agents will claim the whole cooperative surplus at the beginning of the bargaining process. In order to find agreement on a bargaining outcome, the agents must make
concessions regarding their initial claims until their claims are mutually compatible.
According to Gauthier, the largest relative concession that anyone must make in the bargaining process should be as small as possible, because the agents primary reason for
rejecting the bargaining outcome is the size of the relative concessions that they must
make in the bargaining process. As such, minimizing agents maximum relative concessions in the bargaining process minimizes the agents reasons to reject the bargaining
outcome.
Gauthier argues that his principle of minimax relative concession distributes the gains
from cooperation fairly among agents. However, the bargaining theory that underlies
Gauthiers moral theory and that justifies his bargaining principle has been criticized
severely, especially in comparison to Nashs bargaining theory, which assumes that
rational agents will agree with the bargaining outcome that maximizes the product of the
differences between the utilities that the agents receive at the disagreement point from
which the bargaining process takes place and the cooperative outcome.24 Nashs bargaining theory is supported by noncooperative game theory. It allows rational agents
to benefit as much as they would have benefited if they had engaged in a direct bargaining process with each other, if plausible assumptions are made about the bargaining process. In this sense, the Nash bargaining solution represents a natural agreement point for
rational agents in conflict situations in which their bargaining process is, in the traditional sense of morality, morally unrestricted and free from other ethical considerations,
such as interpersonal utility comparisons.25
In contrast to Nashs bargaining theory, Gauthiers bargaining theory is not supported
by noncooperative game theory,26 partly as a result of the feature that Gauthiers

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bargaining theory enforces a specific notion of fairness that, in the traditional sense of
morality, morally constrains the bargaining process in some form from the perspective
of rational agents, especially in asymmetric bargaining situations.27 As a result of this
feature of Gauthiers bargaining theory, the bargaining outcome that is justified by Gauthiers bargaining theory is not necessarily accepted by all rational agents in the orthodox
sense of the concept of rationality, especially not by agents who do not embrace the specific notion of fairness that is expressed by Gauthiers bargaining theory.28 This feature
of Gauthiers bargaining theory that is reflected by the fact that Gauthiers bargaining
theory is not supported by noncooperative bargaining theory renders Gauthiers bargaining solution inadequate for the project of orthodox rational choice contractarianism that
aims to derive moral conclusions on the grounds of nonmoral premises alone, which is
one of the main reasons that 7 years after the publication of Morals by Agreement Gauthier rejected his own bargaining solution in favor of the standard Nash bargaining solution.29 In his recent article, however, Gauthier rejects bargaining theory in its standard
formulation entirely in the context of the social contract, because, according to Gauthier,
the Nash bargaining solution does not offer a reasonable basis for agreed voluntary cooperation from the perspective of the state of nature.30
The introduction of this new contractarian test as a necessary condition for the justification of the terms of the social contract marks a significant shift in the development of
Gauthiers moral theory, because Gauthiers new moral theory considers social moral
rules to be justified only if they . . . could be reasonably agreed to by individuals choosing their social structure from an ex ante perspective.31 According to Gauthier, this new
contractarian test justifies his principle of minimax relative concession as a principle of
distributive justice under the new name principle of maximin proportionate gain,
because this principle, in contrast to the standard Nash bargaining solution, meets a standard of reasonable efficiency and fairness by affording . . . the fullest possible consideration for the concerns of the person who gains proportionately least from
cooperation.32 In the context of his new moral theory, Gauthier no longer considers his
principle of distributive justice primarily as a bargaining principle in the standard formulation of the theory but as a principle of rational and reasonable cooperation.
The synthesis of the rational and the reasonable is reflected also in Gauthiers new
account of practical reasoning. For his new moral theory, Gauthier replaces the concept
of constrained maximization by an even stronger revisionist concept of rationality that
cannot be derived from the orthodox concept of rationality, in particular because it
rejects the ideal of expected individual utility maximization for nonzero sum interactions. In doing so, Gauthier rejects standard bargaining theory, which demands that
agents coordinate on equilibrium outcomes that maximize their expected individual utility. To clarify, bargaining theory embraces two conditions that rational outcomes must
fulfill, namely, the Pareto-optimality condition and the equilibrium condition. The former condition, in its strong formulation, demands that outcomes are such that they do
not allow improvement of the situation of one member of society without worsening the
situation of another group member. The latter condition demands that outcomes are stable, in that no member of society has an incentive to deviate from the selected outcomes,
ceteris paribus.

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According to the orthodox concept of rationality, which demands that agents maximize their expected individual utility, the equilibrium condition trumps the Paretooptimality condition if the two conditions conflict with each other in situations of social
interaction in order to ensure that stable social outcomes are reached. This feature of the
orthodox concept of rationality is the reason that rational agents coordinate to reach,
individually and collectively, suboptimal outcomes in situations of social interaction that
have the structure of (one-shot) prisoners dilemma games, because the orthodox concept
of rationality demands that agents deviate from distributional outcomes if such (unilateral) defection allows the agents to increase their personal gains. As such, in the absence
of external enforcement mechanisms, the orthodox concept of rationality does not guarantee that the individually and collectively most beneficial Pareto-optimal outcomes are
always selected.
Gauthiers new account of practical reasoning avoids this problem because it rejects
the ideal of expected individual utility maximization for morally relevant types of nonzero sum interactions and prioritizes the Pareto-optimality condition.33 Gauthiers new
concept of agreed Pareto-optimization, as he calls it, demands that agents prioritize the
Pareto-optimality condition over the equilibrium condition in morally relevant types of
nonzero sum interactions and that agents do not primarily maximize their expected individual utility but, ultimately, consider their personal good in the same way that they consider the good of other agents in the selection of distributional outcomes.34 As a result of
this feature of Gauthiers new account of practical reasoning, for morally relevant types
of nonzero sum interactions in which more than one Pareto-optimal outcome exists,
agreed Pareto-optimizers will always select the individually and collectively most beneficial Pareto-optimal outcome that is reasonably fair (and that may or may not be an
equilibrium outcome), even in (one-shot) prisoners dilemma games. In Gauthiers own
words:
A Pareto-optimizing account of rational choice ascribes to each person the capacity to coordinate her actions with those of her fellows, and to do so voluntarily, without coercion. It
treats the exercise of this capacity as rational, when the person sees the outcome of coordination as reasonably efficient, so that no significant possible benefit is left unrealized, and
reasonably fair, in that no one can reasonably complain that her concerns were not taken
sufficiently into account, in determining the outcome to be achieved by coordination.35

In Morals by Agreement, Gauthier argues that the notion of reasonableness goes . . .


beyond the bounds of rational choice,36 and 25 years later he argues that the notion
is an evaluative or normative term that needs further specification.37 Gauthier, however,
does not provide such specification. Rawls, by contrast, does provide such specification,
although Rawls and Gauthiers notions of reasonableness may differ slightly from each
other. According to Rawls, the notion of reasonableness is morally substantial. It
requires that agents possess a . . . particular form of moral sensibility that underlies the
desire to engage in fair cooperation as such, and to do so on terms that others as equals
might reasonably be expected to endorse.38
Gauthiers new concept of practical reasoning can solve the problem of compliance.
Because Gauthiers agreed Pareto-optimizers are assumed to have an interest in realizing

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reasonably efficient and fair distributional outcomes, they will, in theory and practice,
comply with the principle of maximin proportionate gain as a principle of distributive
justice in morally relevant types of nonzero sum interactions, if others do so, too.39
Under such conditions, agreed Pareto-optimizers will follow the demands of the principle of maximin proportionate gain as a principle of distributive justice in morally relevant types of nonzero sum interactions, even if the agents could improve their personal
situations by unilateral defection, because in nonzero sum interactions agreed Paretooptimizers, in Gauthiers sense, are not guided primarily by considerations of expected
individual utility maximization. Instead, they are cooperators by choice.
In sum, although Gauthier develops a broadly Hobbesian moral theory, he does not
develop a purely instrumental theory of morality, because Gauthiers moral theory, in
its old and new versions, relies ultimately on substantial moral premises in the traditional
sense of morality that are not fully justifiable on rational grounds in the orthodox sense of
the concept of rationality and that serve as a basis for the derivation of moral conclusions. Apart from a Lockean state of nature, Gauthiers new moral theory relies in particular on a new contractarian test and employs a strongly revisionist account of practical
reason that invokes the notion of reasonableness and considerations of fairness. To this
extent, Gauthiers social contract theory is moralized in the traditional sense of morality
and thus does not justify moral conclusions on the grounds of nonmoral premises alone.
Instead, moral assumptions in the traditional sense of morality set the limits within which
instrumental reasoning takes place. Gauthiers moral theory oversteps the bounds of pure
instrumental morality, which is one of the main reasons that Gauthiers moral theory
received such severe criticism.
This feature of Gauthiers moral theory is not objectionable per se. However, it limits
the scope of Gauthiers moral theory to societies in which agents share an interest in
determining reasonably fair terms of social cooperation as a basis for the derivation of
moral rules, as may be the case for certain Western liberal societies. Many contemporary
societies, however, are morally pluralistic and not necessarily populated exclusively by
liberal moral agents but also by nonliberal moral agents and, in the traditional sense of
morality, nonmoral agents alike. In such societies, not all members of society necessarily
share an interest in determining reasonably fair terms of social cooperation, or, if they do,
their understanding of such terms may differ significantly. For such societies, Gauthiers
moral theory is not valid.
Considering the development of Gauthiers moral theory since its first publication in
Morals by Agreement and the features of Gauthiers new moral theory, especially its new
contractarian test and new account of practical reasoning, Gauthiers new moral theory
may ultimately be considered to be closer to the position of moral contractualism than
to the positon of moral contractarianism, because Gauthier assumes as a basis for his
new moral theory that agents consider each other as moral equals to the extent demanded
by reasonably fair agency, independent of the agents physical strength. According to
moral contractualism, the purpose of morality is to ensure the status of rational beings
as free and equal moral persons independently of their relative bargaining power. Moral
contractarianism, by contrast, assumes merely that agents are rational and equal by
nature in the Hobbesian sense that the weakest is able to kill the strongest.40 The reliance of Gauthiers new moral theory on the notions of reasonableness and fairness in the

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sense described brings Gauthiers new moral theory closer to Rawls contractualist theory of justice and to Scanlons moral contractualism,41 although significant differences
still remain between Gauthiers new moral theory and the position of moral
contractualism.42

Orthodox rational choice contractarianism


The failure of Gauthiers project as initially described by Gauthier in Morals by Agreement led many scholars to reject orthodox rational choice contractarianism and, indirectly, the purely instrumental approach to morality as a viable approach to the social
contract, although Gauthier de facto never developed a genuine theory of orthodox
rational choice contractarianism that reduces moral reasoning to instrumental reasoning.
Gauthiers moral theory, in its old and new versions, operates within the domain of traditional morality, and thus, criticism of Gauthiers moral theory cannot generally discredit orthodox rational choice contractarianism as a viable approach to the social contract.
In the following, I argue that, if orthodox rational choice contractarianism is applied adequately, then it represents a viable approach to the social contract, as I have shown
recently.43
Assume, according to the traditional understanding of morality, a nonmoralized Hobbesian state of nature in which agents behave as if they were to maximize their expected
individual utility as represented by von NeumannMorgenstern utility functions. The
agents are forward-looking, roughly equal by nature, and live under the conditions of
moderate scarcity of resources. The agents expect that living in a society that secures
peaceful long-term cooperation is more beneficial to them than living in the state of
nature, because a stable social order allows the agents to realize additional gains from
peaceful long-term cooperation and helps them to avoid the costs that are associated with
the violent destruction of scarce resources, which includes the destruction of the agents
lives. Specifically, all agents are assumed to value their lives, together with the expected
gains from peaceful long-term cooperation, more than noncooperation per se in distributive conflicts.44
Further, assume that after the formation of society no substantial moral agreement
exists among agents with regard to distributive questions. Although some, or all, agents
may be morally sensible, the agents moral senses concerning distributive questions may
differ significantly. The agents live with regard to distributive questions in a deeply
morally pluralistic society that is populated by liberal moral agents, nonliberal moral
agents, and (in the traditional sense of morality) nonmoral agents alike. Under these conditions, instrumental rationality is the only means for rational agents to secure peaceful
long-term cooperation, assuming that distributive conflicts are the primary source of
social conflict in society and all members of society expect that, after careful consideration of their interests, peaceful cooperation is most beneficial to them in the long run. In
this case, the agents rationality demands that they identify the least costly means for
resolving distributive conflicts.
I have argued that if, under the conditions described, rational agents decide on a principle of conflict resolution in an idealized but empirically defensible nonmoralized
hypothetical decision situation that models accurately the agents real-world situations

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by imposing only a thin veil of uncertainty on them (I call this decision situation the
empathetic contractor theory), then the agents would agree with a modified version
of the standard Nash bargaining solution as a principle of conflict resolution that I call,
in its generalized and universalized form, the weak principle of universalization.45 The
principle reads as follows:
In cases of conflict, only pursue your interests subject to the side constraints that your opponents can (i) enter the process of conflict resolution at least from their minimum standards of
living, if the goods that are in dispute permit it, and (ii) fulfill their interests above this level
according to their relative bargaining power.46

Applied to distributive questions, the weak principle of universalization defines the minimal behavioral restrictions that must be imposed on rational agents in distributive conflicts in order to ensure mutually beneficial long-term cooperation in deeply morally
pluralistic societies, as compared to the agents situations in a nonmoralized Hobbesian
state of nature in the traditional sense of morality. In deeply morally pluralistic societies
in which not all members of society, due to their divergent moral and nonmoral ideals,
agree on distributive questions, the weak principle of universalization represents the best
means for rational agents to secure peaceful long-term cooperation. As such, according
to the purely instrumental approach to morality, agents will act both imprudently and
immorally if, under the circumstances described, they do not accept the constraints of
the weak principle of universalization in distributive conflicts.
Although the derivation of the weak principle of universalization does not rely on substantial moral premises in the traditional sense of morality, the principle itself reflects
certain traditional moral ideals, especially the moral ideal of impartiality (as Gauthier
demands for his moral theory),47 which is expressed by the strict universalizability condition that the weak principle of universalization imposes on agents. The weak principle
of universalization demands that agents do not unjustifiably favor their own positions, or
the position of anyone else, in distributive conflicts. In addition, the principle expresses
the moral ideal of equality in a weak sense, although the derivation, and thus, the justification of the principle, assumes merely that agents are naturally equal and not morally
equal.
The weak principle of universalization demands that the members of society are
treated equally if they have equal bargaining power and they are above their minimum
standards of living with regard to the goods that are in dispute at the beginning of a distributive conflict. If the members of society have unequal bargaining power in distributive conflicts, then the weak principle of universalization allows the strong parties to a
conflict to gain more in the process of conflict resolution than the weak parties to a conflict, if all parties to a conflict are above their minimum standards of living with regard to
the goods that are in dispute at the beginning of the process of conflict resolution. If, by
contrast, the weak parties fall below their minimum standards of living, and the goods
that are in dispute allow the weak parties to reach their minimum standards of living
as a basis for conflict resolution, then the weak principle of universalization restricts the
bargaining power of the strong parties to a conflict.48

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Moreover, the discussion shows that, if orthodox rational choice contractarianism is


applied in its adequate domain, such as to distributive conflicts in deeply morally pluralistic societies under the circumstances described, then in theory no additional problem
of compliance arises compared to traditional moral theories. If (i) a decision-making procedure is employed for the derivation of a principle of conflict resolution for distributive
conflicts that is uniquely justifiable to all current members of society for the domain for
which the principle prescribes behavior, (ii) the procedure realistically models the realworld situations of all members of society (as the empathetic contractor theory assumes
to do), and (iii) the principle derived by this procedure imposes on agents only the minimal behavioral restrictions that are necessary to secure peaceful long-term cooperation,
then orthodox rational choice contractarianism can solve the problem of compliance,
because, by definition, following the derived principle pays off for each member of society in each instance for which the principle prescribes behavior, if all members of society
expect that the principle is beneficial for them in the long run.
The concept of rule-guided behavior that is implied by this argument is compatible
with orthodox rational choice contractarianism and is best described, in contrast to Gauthiers concept of constrained maximization, as maximization under a side constraint.
In short, if the members of society are rational, then in theory they have no incentive not
to follow the demands of the weak principle of universalization in distributive conflicts,
if others follow the principle, too, because, in theory, not following the demands of the
weak principle of universalization would be disadvantageous for the agents in each
instance for which the principle prescribes behavior, because such behavior would
directly threaten the goal of securing peaceful long-term cooperation. In theory, the principle is self-enforcing.
In practice, by contrast, rational agents may often fail to follow the weak principle of
universalization in distributive conflicts due to shortsightedness, overruling passions,
and/or weak will, and thus they will follow the principle only if the costs for institutionalizing the principle in practice together with the costs for the behavioral restrictions
that the principle imposes on agents are lower than their expected gains from peaceful
long-term cooperation. In practice, enforcement of the social contract is necessary for
large and fairly anonymous groups, such as contemporary pluralistic societies, independent of whether agents are de facto rational or reasonable or both. Although enforcement
is always suboptimal in theory, because it is costly, it is the only means for human beings
to live peacefully with one another in this world. Enforcement of the social contract is
not second best in the real world. Instead, it is a necessary means to ensure peace. If
orthodox rational choice contractarianism is applied in its adequate domain, then the
approach is not inherently inconsistent and it can successfully address the problem of
compliance.49

Conclusion
Twenty-five years after the publication of Morals by Agreement, Gauthier has rejected
the foundation of his moral theory by rejecting not only his bargaining theory but also
his concept of constrained maximization, and with it, Gauthier has rejected orthodox
rational choice contractarianism as an approach to the social contract. Gauthier now

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argues in favor of a revisionist approach to the social contract that, according to the traditional understanding of morality, relies on a morally substantial contractarian test and a
nonorthodox account of practical reasoning that, according to Gauthier, together justify
(although not necessarily uniquely) his principle of maximin proportionate gain as a
principle of distributive justice.
However, Gauthiers ultimate rejection of orthodox rational choice contractarianism
and the criticisms of his moral theory over the past 25 years do not warrant the conclusion that orthodox rational choice contractarianism is not a viable approach to the social
contract. The problem with Gauthiers moral theory, in its old and new versions, is that
Gauthier de facto never developed a genuine theory of orthodox rational choice contractarianism that reduces moral reasoning to instrumental reasoning. Instead, Gauthier
developed a traditional moral theory that is partly noninstrumental and assumes a consensus on some moral ideals as traditionally conceived as a starting point for the derivation of moral conclusions. Clarification of the precise nature of Gauthiers moral theory
early on could have saved the position of orthodox rational choice contractarianism
much criticism and possibly could have avoided the unfortunate circumstance whereby
the baby was (almost) thrown out with the bathwater.
In response to Gauthiers moral theory, I have laid out the basic structure of an adequate theory of orthodox rational choice contractarianism that does not rely on substantial moral premises in the traditional sense of morality as a starting point for the
derivation of moral conclusions and that scope is limited to morally relevant types of
social interaction in which moral reasoning is reduced to instrumental reasoning, such
as to distributive conflicts in deeply morally pluralistic societies. The theory justifies the
weak principle of universalization as a distributive principle for conflicts in which, apart
from their shared human nature and empirical conditions of the world in which they live,
agents share only the overarching goal of ensuring peaceful long-term cooperation. My
argument suggests that if orthodox rational choice contractarianism is applied within its
adequate domain, then it represents a viable approach to the social contract. Independent
of the merits of Gauthiers moral theory, in its old and new versions, the position of
orthodox rational choice contractarianism, before and after Gauthier, is very much alive
and can play a significant role in moral philosophy. In fact, the true strength of this position has never been fully probed in moral philosophy, although I have recently made
some initial attempts to do so in Moehler (2012, 2014, 2015).
Acknowledgments
I am very grateful to Derek Haderlie and two anonymous reviewers of this journal for
very helpful comments on earlier versions of this article. My argument also benefited
greatly from discussions with participants of the conference that commemorated the
25th anniversary of Gauthiers Morals by Agreement at York University (Canada) in
May 2011, in particular from David Gauthiers contributions to this conference.
Declaration of Conflicting Interests
The author(s) declared no potential conflicts of interest with respect to the research,
authorship, and/or publication of this article.

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Funding
The author(s) received no financial support for the research, authorship, and/or publication of this article.
Notes
1. Gauthier (1986: 4).
2. For such criticism, see Kraus and Coleman (1987), Danielson (1991), Lehning (1993: 112
113), Harman (1988), Goodin (1993), and Binmore (1993: 149151). For criticism of Gauthiers use of the notion of rationality, see Mendola (1987).
3. See Gauthier (1986: 15, 167). For insightful discussion of Gauthiers concept of constrained
maximization, see McClennen (1988), Mintoff (1997), and Sayre-McCord (1991).
4. Gauthiers account of practical reasoning has changed significantly since its first statement in
Morals by Agreement, especially in Gauthier (1991). For discussion of the development of
Gauthiers account of practical reasoning and potential problems with it, in particular under
the consideration of risk, see Finkelstein (2013). See also Parfit (2011: 433447).
5. See Gauthier (1993: 177178, 2013: 610).
6. See Gauthier (2013: 610).
7. See Gauthier (2013: 609). See also MacIntosh (2013) and Bratman (2013).
8. See Gauthier (2013: 611612, 617).
9. See Hobbes (1996 [1651]). The following discussion draws from Moehler (2014: 432, 445).
10. In this article, I follow the orthodox interpretation of Hobbes view of morality, because this
interpretation of Hobbes moral theory is most relevant for my argument. For a prominent
nonorthodox interpretation of Hobbes moral theory that attributes to Hobbes more than a
purely instrumental approach to morality, see Lloyd (1992: 254270, 2009). For further discussion of the differences between orthodox and nonorthodox interpretations of Hobbes
moral theory, see Gaus (2013).
11. See Hobbes (1996 [1651], part 1, chapter 15).
12. See Hume (2000 [1739/1740], book 3, part 3, section 6).
13. For such potential misreading of the project of Hobbesian moral contractarianism, see Kraus
(1993: 31, 310).
14. For such criticism of the purely instrumental approach to morality, see Gaus (2011: 185187).
15. See Gauthier (1986: 7).
16. See Gauthier (1986: 268).
17. Gauthier (1986: 205).
18. See Gauthier (1986: 200205).
19. For critical discussion of Gauthiers version of the Lockean proviso and its use as a baseline of
comparison for the social contract, see Morris (2013: 597), Fishkin (1988: 4654), Hampton
(1991), Danielson (1991: 99111), and Van Donselaar (2009: 1667, 2013).
20. Gauthier (1984: 266). See also Gauthier (1986: 193, 201, 1993: 183184).
21. See Gauthier (2013: 621622).
22. For further discussion of this point, see Kraus (1993: 269273).
23. See Gauthier (1986: 14, 157). For a critical discussion of Gauthiers bargaining principle, see
Hardin (1988: 6670).
24. See Nash (1950, 1953).

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25. The Nash bargaining solution relies merely on comparisons of differences of intrapersonally
determined utility ratios. For support of the Nash bargaining solution in this context, see Barry
(1989: 2224), Binmore (1994: 8084, 1998: 7795, 2005: 26), Skyrms (1996: 107), and
Moehler (2013: 36).
26. For discussion of this point, see Binmore (1993: 149151).
27. In this context, see Luce and Raiffa (1985: 133).
28. For further discussion of the notion of fairness (impartiality) employed by Gauthiers theory,
see Copp (1991: 209212).
29. See Gauthier (1993: 177178, 2013: 610).
30. See Gauthier (2013: 608).
31. Gauthier (2013: 619). See also Gauthier (1997: 132).
32. Gauthier (2013: 612). As indicated earlier, Gauthier claims only that his argument supports his
principle of distributive justice and not that it proves it uniquely.
33. See Gauthier (2013: 605, 609).
34. As Gauthier (2013: 609) puts it:
. . . rational cooperators need not seek a collective or substantively common good. Each is
concerned to realize his own good, as expressed by his utility function . . . . But the cooperator manifests her concern with her good in a quite different way than does the straightforward maximizer who is wedded to best reply calculations about expected utility. In
recognizing the other parties to interaction as individuals like herself, she is aware that the
terms on which she considers it rational to act must be paralleled by the terms that others
consider rational. Thus her own good enters into the determination of the appropriate
Pareto-optimal state of affairs but in the same way as does the good of each other person.
35.
36.
37.
38.
39.

40.
41.
42.
43.

44.

Gauthier (2013: 608). Italics added.


Gauthier (1986: 5).
See Gauthier (2013: 608).
Rawls (1993: 51). For a recent discussion of Rawls notion of reasonableness, see McMahon
(2014).
It is not entirely clear whether Gauthiers new moral theory simply assumes that all members
of society are rational and reasonable in the specified sense, or whether they are assumed to be
translucent, as Gauthier (1986: 174) assumes in Morals by Agreement.
See Hobbes (1996 [1651]: part 1, chapter 13).
See Rawls (1971) and Scanlon (1998).
See also Gauthier (2003).
See Moehler (2012, 2014). The following discussion borrows from my arguments and their
presentation in these articles, especially from Moehler (2012: 92, 100, 102) and Moehler
(2014: 449450).
Agents who do not fulfill this assumption fall outside the scope of my theory. Apart from this
assumption concerning agents interests, my argument relies on an entirely formal notion of
utility that assumes merely that agents do not have positive tuistic interests toward their
opponents in distributive conflicts. For a detailed discussion of my assumptions, see Moehler
(2012: 89). For discussion of Gauthiers assumption of nontuism, see Vallentyne (1991). For
the use of the notion of self-interest in orthodox rational choice contractarianism, especially in

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45.
46.

47.
48.

49.

Politics, Philosophy & Economics 15(2)

the context of Gauthiers moral theory, see Morris (1988: 119153) and Testa (2003: 223
242).
See Moehler (2012: 92101).
Moehler (2012: 100). In contrast to Sugden (1993: 172), I do not consider the contractarian
enterprise to be doomed to failure if the domain of orthodox rational choice contractarianism
is restricted in the way described in this article. Under these circumstances, the weak principle
of universalization represents a uniquely rational and, in the traditional sense of morality, nonmoralized principle of conflict resolution, even if the standard Nash bargaining solution that
underlies the principle invokes a symmetry condition, as Thrasher (2014) points out. The
symmetry condition of the Nash bargaining solution is, in the traditional sense of morality,
morally neutral, because it demands merely that, if the parties in a bargaining situation were
to switch their roles, including their utility functions, then the bargaining outcome would not
change overall. The symmetry condition of the Nash bargaining solution does not morally
constrain, in the traditional sense of morality, the bargaining process among rational agents.
Instead, it represents a rational constraint that, together with the other constraints of Nashs
bargaining theory, is necessary to justify a unique bargaining outcome. The strength of the
Nash bargaining solution lies precisely in the fact that it is a nonmoralized solution concept,
as discussed in the previous section. Nevertheless, although the symmetry condition of the
Nash bargaining solution represents merely a normative and not a moral constraint of the bargaining process in the traditional sense of morality, the demand to reach a unique bargaining
outcome may come with a price in that, in certain types of social interaction, the application of
the Nash bargaining solution, or a generalized and universalized version of this principle, may
lead to slightly less beneficial outcomes than the application of other less abstract and empirically more contingent principles of conflict resolution that are not necessarily unique and may
evolve over time, because they are better tailored to the specific circumstances of particular
conflict situations than the Nash bargaining solution. However, for the project of orthodox
rational choice contractarianism that aims to justify normative principles that allow the resolution of conflicts unequivocally, it is essential that under the circumstances described a
unique bargaining outcome is reached, especially to guarantee the institutional implementation of the derived principles.
See Gauthier (1986: 7, 1987: 177).
If all parties to a conflict are below their minimum standards of living when a conflict arises,
then they all must reach their minimum standards of living as a basis for conflict resolution,
assuming that the goods that are in dispute permit it. If all parties to a conflict are below their
minimum standards of living when a conflict arises, and the goods that are in dispute are insufficient to bring all parties to their minimum standards of living, then the weak principle of universalization does not apply. For further discussion of the moral properties of the weak
principle of universalization, see Moehler (2012: 101103).
For further discussion of this point in a slightly different context, see Moehler (2015: 589
592).

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Author biography
Michael Moehler is an associate professor in the Department of Philosophy at Virginia Tech and
Director of its Program in Philosophy, Politics, and Economics. In addition, he is a Core Faculty
Member of the ASPECT Program at Virginia Tech. His main research interests lie in moral and
political philosophy, with a specific focus on the contractarian tradition.

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