120 The Nature of Political Theory(in a completely ahistorical manner), tries essentially to make Hobbes compatible for
twentieth-century game theoretic language. For Gauthier, the appeal to rationality
is not though a concealed moral premise. He admits that if ‘I became convinced
that an appeal to equal rationality was...a concealed moral appeal...then I should
abandon the core argument ofMorals by Agreement’ (Gauthier 1986: 186).
Gauthier sees a further constraint on rational choice, namely a proviso that pro-
hibits bettering one’s own position by worsening another’s. The proviso basically
affirms ‘enough and as good for others’. For Gauthier, it is rational and just ‘for
each individual to accept a certain constraint on natural interaction...as a condition
of being voluntarily acceptable to his fellows as a party to cooperative and market
arrangements’ (Gauthier 1986: 192). In sum, morals by agreement expresses ‘the
real concern each of us has in maintaining the conditions in which society can be a
co-operative venture’ (Gauthier 1986: 18).
Justice as mutual advantage arguments usually tend to end up with the same or
very similar basic rule of law structure and social vision as proceduralists (discussed
earlier). Proponents of both sets of arguments also share overlapping foundational
beliefs about the importance of individualism, the negative liberty and rights of
individuals, the importance of the free market economy, and a more minimalist
conception of the constitutional state. Apart from the manner in which justice is
generated—proceduralists such as Hayek, for example, repudiate the contractual
idea—the outcome and subsequent account of the scope of justice would tend to be
markedly similar, in both justice by mutual advantage proceduralist arguments.
Justice and Utility
Before moving to impartialist arguments, it is worth discussing another cognate
theory to rational choice and mutual advantage, which has never really shown its
clear conceptual relation with justice or rights—that is utilitarianism. On one level
the attractions of utilitarianism are obvious. It is only concerned with equal happiness
and welfare, in some cases of all sentient life. Its basic question is always: does the
consequence of an action, or policy X, produce an increase in happiness or welfare for
Y. In this sense, it looks like a theory that readily solves moral or political problems on
a very basic level. Yet for utilitarians one would never want to inquire what a just act is,
in itself. The only point to ascertain is whether its ‘consequence’ produces happiness or
greater welfare. This is, though, one point to immediately underscore with all forms of
utilitarianism. Utilitarian arguments donotstandardly try to argue for a substantive
account or concept of justice; conversely, a situation—which some might regard as a
case of justice—is morally and politically acceptable (and justified), in utility terms,
if and only if, it can be shown to have the consequence of maximizing interests,
preferences, welfare, or happiness. This also means that justice isnotsignificant or
meaningful, in itself, butonlyinsofar as it corresponds with something ‘I’ or ‘we’
might ‘want’. In this sense, it is a misnomer to think of utilitarianism offering a theory
of justice, except indirectly. It is a wholly second order theory. It offers no first order