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Ratio Juris.Vol. 8 No.

1 March 1995 (85-90)

The Limits of Contractual

Equality: A Reply to
Jacques Bidet

The first two sentences of Jacques Bidet’s French text are as follows:
On peut unir la vent6 de J. Rawls et celle de K. Marx. La condition en est de reinter-
preter le systkme moderne de domination de classe c o m e le “renversement”du
rapport de contractualit6 qu’affirme la conscience modeme.’
I begin by expressing two disagreements with that statement. I then ask
several questions about what Bidet calls “the free difference principle.”
Finally, I criticize Bidet’s application of the Rawlsian idea that each person
must be the judge of her own good.
Turning, then, to Bidet’s opening statement, the one quoted above, I shall
argue, first, that, since modem consciousness is a consciousness that is able
to endorse the institutions of the capitalist welfare state, modern con-
sciousness goes beyond affirmation of the contractual relation: It goes
beyond it in an egalitarian direction. In connection with that first disagree-
ment with Bidet, I shall defend a criticism of Rawls, essentially due to
Gauthier (1986) and Barry (1989, Part 3), which says that Rawl’s contractual
characterization of the setting of justice is inconsistent with what Rawls says
the principles of justice are. And-this is my second disagreement with
Bidet’s opening statement-I shall also argue that Karl Marx was wrong
when he claimed that, in the contract between the capitalist and the prolet-
arian, the equality and freedom of the contractual relation are ”renversbes,”
or turned into inequality, and, on one side of the relation, unfreedom. Marx
was wrong when he said that the labour contract subverts the normative
presuppositions of the contractual relation.
’“We can bring together what’s true in Rawls with what’s true in Marx. The condition of doing
so is that we interpret the modem system of class domination as the subversion of the
contractual relation affirmed by modem consciousness.” Cf. Bidet 1995,67.
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86 Gerald A. Cohen

Modern normative consciousness, so I claim, affirms a stronger equality

than the equality that is required for contract. The contractual relation is a
relation of mutual advantage: We enter it, you and I, in order to make
ourselves better off than each of us would be out of contact and out of
contract with the other. Being a relation of mutual advantage, the contractual
relation does not encompass redistribution to, for example, wholly infirm
people, people, that is, who are incapable of benefiting other people. Such
people cannot enter a relation of mutual advantage, because no one can
obtain any advantage from relating to them. Yet the modern consciousness,
even in some of its very right-wing forms, even, for example, in its main-
stream Thatcherite form, endorses welfare provision to those who literally
cannot produce anything. Thereby, it, the modern consciousness, endorses a
principle of equality that goes beyond the equality required for contract. The
equality required for contract is nothing beyond equality of civil status,
bourgeois equality, the universal freedom from non-contractual obligation
enjoyed by everyone who is not a slave or a serf. The wholly infirm are in
that way as free as you or 1, but that equal freedom justifies no redistribution
to them.
Now, Rawls presents society as a scheme of co-operation from which
everyone benefits. The theory constructed in his book is proposed for a
context of mutual advantage in which, although people’s productive powers
are different in kind and in scope, the activity of each enhances the reward
available to all. Everyone is a net contributor to and a net beneficiary of
social co-operation, and the question answered by the Rawlsian principles
of justice is: How should the benefits of co-operation, a process in which
everyone benefits everyone, be divided?

The least advantaged are not, if all goes well, the unfortunate and unlucky-objects
of our charity and compassion, much less our pity-but those to whom reciprocity is
owed as a matter of political justice among those who are free and equal citizens along
with us, and who, though they control less resources, are doing their full share on
terms seen by each as niwtually advantageous and consistent with everyone‘s self-
respect. (Rawls 1989,127)

Possessed of a sense of justice, Rawlsian co-operators go behind a veil of

ignorance which they use as a device for generating principles that deter-
mine how the benefits of their co-operation are to be shared.
Now, this contractual framing of the problem of justice has two possibly
surprising consequences. First, it means that those who cannot benefit
others, those who would gain from association with others without being
able to confer advantage in return, those who indeed are fit ”objects of our
charity and compassion,” are simply not part of the Rawlsian game: A Theory
of justice says nothing about radically unproductive people who make no
contribution to the social product. The principles of justice, being principles
for dividing the benefits of co-operation, do not apply to them. Because they
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The Limits of Contractual Equality: A Reply to Jacques Bidet 87

cannot relevantly operate, they cannot co-operate. I am sure that Rawls the
person favours their sustenance as a matter of right, but no such favour is
justified in A Theory offusfice.
So one possibly surprising result of the Rawlsian framing of the problem
of justice is that it excludes consideration of those whose needs are most
urgent. Rawls indeed says, in various places, that we should address the
problem of radically handicapped people at a later stage. "If we can work
out a viable theory for the normal range [of human capacity], we can attempt
to handle these other cases later" (Rawls 1978,70, n. 9). But I claim that they
resist "handling" as long as we stay with the contractarian standpoint,
the standpoint of mutual advantage. (David Hume knew that, and he con-
sequently denied that justice is owed to the wholly infirm.)
And a second possibly surprising result of how Rawls frames the problem
of justice is as follows. One can show that either Rawls's criterion for recip-
rocal benefit or mutual advantage is too weak, or his theory applies only
to societies very different in composition from our own. Which of these
unwelcome consequences we obtain depends on whether, in comparing
what the individual can get through social interaction to what he can get
without it, in order to determine whether he is a net beneficiary of social
interaction, we are to consider only his autarkic alternative, in which he
withdraws from society and subsists, if he can, on his own; or, alternatively,
and more appropriately, we are to consider the rewards he would get in all
the possible withdrawing coalitions (all members of which would benefit
from withdrawal) in which he would be a member.2The former criterion of
reciprocal benefit is arbitrarily weak. The most talented individual in society
would no doubt benefit even from a flatly equal distribution of the social
product, relative to what he can produce entirely on his own, but he is never-
theless likely to get much more than what the difference principle allows
him if he withdraws with a suitable set of other talented individuals. If,
however, the criterion of reciprocal benefit is strengthened to allow for such
coalition withdrawal, then reciprocal benefit will be consistent with the
difference principle only in societies which are different from the sort one
would expect Rawls to want his theory to cover? societies, that is, which are
comparable in size and variety to our own.
On the plausible assumption that Rawls legislates for societies which are
indefinitely heterogeneous with respect to talent distribution, we can say
that the less well off get more under the difference principle than the better
off have to give in order to be in a society from which, they, the better off,
benefit. This produces the difficulty for Rawls that I have tried to expose, a
difficulty identified by Gauthier when he says that if we "agree with Rawls
* Rawls (1978,61-2) protests against the coherence of comparisons of this kind, but I do not see
how they can be avoided once one speaks of "beneficiaries of social co-operation."
3Thisstatement remains true even when we acknowledge indirect benefits got by the talented
from the presence of less talented people, such as the enhancementof their social status.
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88 Gerald A. Cohen

that society is a co-operative venture for mutual advantage, we must

disagree with his view that natural talents are to be considered a common
asset. The two views offer antithetical conceptions of both the individual
human being and society" (Gauthier 1986, 221). And that is what I meant
when I said that the contractual characterization of the setting of justice is
inconsistent with the Rawlsian principles of justice4(even when we set aside
the problem of wholly infirm people). The consistent philosopher of contract
is not Rawls but Gauthier, whose theory has no room for a norm of equality
that goes beyond what is required for contract. Rawls avoids the morally
repugnant conclusions reached by Gauthier only by being untrue to his own
contractual starting point.
As I said, I also disagree with Bidet with respect to his broad endorsement
of the Marxian "renversement" formulation (Bidet 1995, 67, 70). Marx criti-
cized the contractual capitalist relation at the bar of the principle of contract
itself. According to Marx, it contradicts that principle that there is not real
but only formal equality between the unendowed proletarian and the over-
endowed capitalist. Marx was wrong, because there is nothing in contrac-
tual equality that requires asset equality, or that rules out extreme asset
inequality, among contractors. If I have little to offer, and/or to fall back on,
and you have much, then that may be tough for me, it may mean that I must
settle on terms that I regret, but it does not mean that we cannot contract for
mutual benefit. To criticize the labour contract you must appeal to a deeper
principle of equality than what contract itself enshrines. For the principle of
equality presupposed by contract is just that no one may be forced, on pain
of imposed penalty, to exchange anything. Contractual equality is assured
by the removal of slave and feudal relations, the removal of that specific sort
of inequality. Capitalism need not, in principle, deny contractual equality and
liberty, nor does it deny it in practice, except in the case of marginal groups,
some immigrants, racially disadvantaged people, and others who lack a full
bourgeois enfranchisement. Accordingly, Bidet is wrong when he presents
typically oppressed people in capitalism as having a grievance at the bar of
contractual equality and liberty (ibid., 71-2). On this terrain, Nozick will
always defeat both Marx and Rawls. Which I regard as a reason for leaving
this terrain.
I turn to what Bidet calls "the free difference principle" (ibid., 73), which
says that there must be no inequalities in social values apart from those
which increase the power of the least powerful.
My first question is: What, precisely, or even not so precisely, is the metric
of power here? How do we measure power for the purposes of applying
the free difference principle? I note that, whatever the metric of power is
I do not mean that the original position will not generate the principles Rawls says it generates.
That is another matter. I mean that, if it generates those principles, then either it violates the
contractual setting or the principles apply to less inclusive forms of society than we can suppose
they are meant for.
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The Limits of Contractual Equality: A Reply to Jacques Bidet 89

supposed to be, it enables Bidet (ibid., 74) to agree with the lexical priority
that Rawls assigns to liberal and democratic liberties. Defending that
lexicality, Bidet says that the least favoured need those liberties more than
anyone else does. But why might the least favoured not be more powerful
than they are, in certain circumstances, in virtue of an abridgement of the
rights of the more favoured? How is it guaranteed that such selective
abridgement could never help the less powerful, within the dynamic
perspective in which Bidet applies the principle? And how do we know in
advance that a dictatorship of the proletariat, in which everyone‘s liberties
are selectively abridged, can never be to the advantage of the oppressed? It is
not evident that Indian liberty has done more for the worst off Indians than
Chinese unliberty has done for the worst off Chinese.
Bidet‘s employment of the free difference principle raises a further ques-
tion. When he speaks of inequalities of power that are necessary for the least
powerful to be as powerful as possible (ibid., 76), what sort of inequalities
does’ he have in mind? Not, as we have just noticed, inequalities at the
political level. Presumably, then, inequalities in other primary goods. So I
just want to say, as pendant to my question, that in my own recent work I
have argued that, to put the point in an over-simple form, there are no
inequalities that are necessary in a just society to make the badly off better
off. Inequalities are necessary only if the better off make them necessary, and
thereby reveal themselves to be unjust, at the bar of the difference principle
itself. Or, if you say that the inequalities are necessary if and because the
better off exercise in a particular way their rights under the first Rawlsian
principle of justice and the part of the second which can be interpreted to
confer a lexically prior freedom of occupational choice, if you say that the
inequalities are necessary if the better off are to be allowed a certain freedom,
then it is still highly misleading to call those inequalities necessary to uplift
the badly off, and a great deal of heady rhetoric in which Rawls engages
about how the better off relate fraternally to the badly off in his just society
has to go by the board.
Now those remarks suppose, with Rawls, that our topic is the principles
that govern a just society. But the dynamic use to which Bidet puts the free
difference principle seems not to be congruent with that Rawlsian stipu-
lation. Bidet‘s principle seems not to be used by him to define what a just
society is, or not only to be used for that purpose. It seems also and primarily
to be used as a weapon against injustice: Through its repeated application,
it makes society more just (that is, less unjust) over time. Bidet could
not otherwise speak of what the principle does for the “economically op-
pressed” and “exploited” (ibid., 75), for there are no such people in a just
society, only, at most, as in Rawls’s just society, people who are less well off
than others are. What I understand Bidet to be saying, in his “dynamic” and
“revolutionary” use (ibid., 78,79) of the “free difference principle,” is that,
when it prevails, the oppressed tolerate this much inequality, have reason to
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90 Gerald A. Cohen

tolerate this much, because to try to get rid of this much inequality would be
to produce even more inequality. And it seems to me to capture the spirit of
what Bidet says, and thereby to expose the unRawlsian nature of his
dynamic problematic, if we say, instead, that, under the “free difference
principle,” this much injustice is tolerated because, to try to remove it would
be to produce even more injustice. If you demand, in Bidet’s words, the
“crushing” of all unnecessary hierarchy (ibid., 78), that is because you think
hierarchy as such is unjust, and to be tolerated only as the least unjust
solution, not because you think that hierarchy is just insofar as it benefits
those at the bottom of the hierarchy, which is how Rawlsian inequality is
A final, more minor, point. It strikes me that, in the course of his dynamic
application of the free difference principle, Bidet misuses the Rawlsian idea
that each must be the judge of her own good. A person’s conception of her
good, in the relevant Rawlsian sense, is her view of what sort of goods
would appear in a life that she judges good for her. This does not imply, as
Bidet says it does (ibid., 77), that the oppressed themselves must be allowed
to judge what compromises will best advance their interests in the neutral
currency of Rawlsian primary goods or Bidet’s power. That is a matter of the
right? not the good, a matter over which not personal preference but
principles of justice are sovereign. Note, finally, that calling what they accept
“compromises” (ibid., 77) once again suggests that Bidet is talking not about
what justice is but about which injustices have to be accepted, in the spirit,
precisely, of compromise.

All Souls College

Oxford OX 4AL

Barry, Brian. 1989. Theories ofJustice. Berkeley, Cal.: University of California Press.
Bidet, Jacques. 1995. A Metastructural Interpretation of the Rawlsian Theory. Ratio
Juris 8: 67-83.
Gauthier, David. 1986. Morals by Agreement. New York Oxford University Press.
Rawls, John. 1971. A Theory oflustice. Cambridge, Mass.: Harvard University Press.
. 1978. The Basic Structure as Subject. In Values and Morals. Ed. A. 1. Goldman
and J. Kim. Dordrecht: Reidel.
. 1989. Justice as Fairness: A Briefer Restatement. Cambridge, Mass.: Harvard
University (unpublished).

51tis, more precisely, a matter of fact, given a certain conception of right.

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