Chapter ǴǺ: Rights, Contract, and Utility in Policy Espousal ȃȈȈknown.” Equivalently, “the best society would be that in which we would
prefer to place our children if we knew that their position in it would be
determined by lot” (ȀȈȆȅ, p.ȀȂȁ; similar passages occur inȀȈȅȆ, p.ȀȅȂ;ȀȈȆȇ,
pp.ȅȁ–ȅȂ;ȀȈȆȅ, p.ȀȀȃ).
Hayek’s formulations are similar to those of John C. Harsanyi, an
avowed utilitarian, who considers a person contemplating alternative so-
cial arrangements in ignorance or at least in disregard of what his per-
sonal situation would be. On Harsanyi’s theory, that person “would
have to choose the social situation yielding him a higher expected util-
ity, which in this case would mean choosing the situation providing a
higher average utility level to the individual members of the society.”
(HarsanyiȀȈȆȅ, chap.Ȅ, p.ȅȆ; cf. HarsanyiȀȈȄȄ/ȀȈȆȂ, pp.ȁȆȅ–ȁȆȆ. If
Harsanyi’s method resembles Rawls’sȀȈȆȀnotion of choice behind a
veil of ignorance, the similarity goes to show that such a conception of
impartiality need not be a distinctively contractarian one, as Rawls seems
to think.)
Ļe version of utilitarianism here attributed to Hayek, among oth-
ers, might also, as already suggested, be called a comparative-institutions
or good-society approach. Although Hayek repeatedly emphasizes how
spontaneously evolved rules and institutions may serve an order that tends
to reduce conflicts and ease cooperation among persons pursuing their
own diverse ends, he does not discourage looking critically at those rules
and institutions and sometimes deliberately modifying them.
Consciously designing a society from scratch, however, is not a live
option. No one knows enough for such an undertaking. Ļrough trial and
error and survival of what works, our existing society incorporates much
unarticulated knowledge. Ļrowing that knowledge away merely because
of its being unarticulated and therefore unappreciated would be reckless.
We should have a certain humility in undertaking reform—so Hayek in
effect argues—but not reject all thought of reform.
šŠŕŘŕŠōŞŕōŚŕşř ōŚŐ ŜśŘŕŠŕŏōŘ śŎŘŕœōŠŕśŚ
Ļe comparative-institutions strand of utilitarianism does not try to ground
government and political obligation in contractarian fictions. Ļe notion
of consent—tacit consent—may have heuristic value, admittedly; but argu-
ments using it should, if sound, be amenable to translation into straight-
forward English. In such arguments, tacit consent alludes to considerate-
ness, reciprocity, and self-esteem, all of which are valuable on broadly