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Published online by Cambridge University Press: 13 April 2010
In A Theory of Justice, Rawls claims that “to each according to his threat advantage is not a conception of justice.” Although it may indeed seem intuitively plausible that a principle based on “threat advantage” cannot count as a principle of justice, it is an altogether different matter to explain why this is so. The question is especially pressing if one bears in mind that such a principle of bargaining in fact underlies many institutionally regulated interactions. Moreover, to the extent that morality is thought of as a mechanism for guaranteeing mutual advantage in the resolution of conflicts, it may indeed seem necessary that it reflect the bargaining power of the parties (in order to make sure that it is indeed advantageous for all of them). In fact, there is a prominent tradition of social-contract theories (from Hobbes to Gauthier) that work under this assumption and claim to provide an answer to what justice requires as much as Rawls's theory does. So seen, the burden of proof seems to fall rather on the shoulders of those committed to claim both that morality is a mechanism that works to the advantage of all and that it nevertheless requires neutralizing all differences in bargaining power.
1 Rawls, J., A Theory of Justice (Cambridge, MA: Harvard University Press, 1971), p. 134.Google Scholar
2 Of course, here it all depends on how the idea of mutual advantage is understood. On this issue, see Barry, B., Justice as Impartiality (Oxford: Oxford University Press, 1995).Google Scholar
3 In this work I focus exclusively on Heath's discussion of discourse ethics in the second part of his book. I offer a general overview of the complex and multifaceted lines of argument of the book as a whole in my review of it (Philosophy and Social Criticism, 31,2 : forthcoming).
4 In a nutshell, the problem is that Heath criticizes Habermas's explanation of the moral point of view in terms of a regulation of conflicts that is “equally in the interest of all,” but does not provide his own alternative explanation of what, according to him, the moral point of view consists in. Moreover, given that he argues against Habermas's introduction of a moral principle (U) to operationalize the discourse principle (D), it seems obvious that, following this proposal, there would be no way left to specify what distinguishes among the possible resolutions of conflicts those that are valid from the moral point of view in particular (as opposed to other possible points of view, such as pragmatic, prudential, ethical, etc.). In his argument, Heath claims that the moral principle (U) “articulate[s] the way that the generic rules of discourse become operationalized when applied to the topic of which norms are valid” (p. 228). However, here Heath gets the “topic” wrong. Obviously, his description applies to the discourse principle (D), but not to the moral principle (U). According to Habermas, the difference between the two is precisely that, whereas the former expresses an unspecific sense of the validity of norms, the latter expresses not just which norms are valid, but which norms are morally valid (i.e., “just,” as opposed to “good,” “legitimate,” “prudential,” etc.). On Habermas's distinctions among the discourse, the moral, and the democratic principle, see Habermas, J., Between Facts and Norms (Cambridge, MA: MIT Press, 1996, pp. 104–31Google Scholar).
5 Here it is important to note that in order to get this result it is not sufficient to replace the assumption that the parties are moved by self-interest with the assumption that they are moved by the moral interest in reaching an agreement equally good for all, for, no matter how genuine this interest is supposed to be, if we did not assume that their basic interests and needs actually overlap, there would be literally nothing equally good for all.
6 As a good Hobbesian, Heath shares this assumption. This can be seen clearly in the context of his main criticism of Habermas's principle of universalization, namely, that “the notion of a common interest is, at best, unhelpful” (p. 243). Assuming, as Heath seems to do, that “in principle each persons's interests [are] her own” (ibid.), it surely follows that in cases of conflict “all that agents are going to discover at a higher level of abstraction … is that they have an abstract or general interest in compromising” (ibid., p. 233).
7 It should be clear that in this context nothing turns on the “name” we give to each type of conflict. What is at issue here is not the definition of “moral.” but ruling out the possibility that solutions to conflicts of the second type should be considered valid for conflicts of the first type as well. It is the need for a sharp distinction between the two cases that characterizes Kantian approaches, regardless of the names one may use to draw the distinction.
8 Although strictly speaking that would not be a valid move even in the context of discourses on ethical questions, according to the Habermasian approach, it is clear that practical discourses focused on the validity of norms from an ethical point of view come closest to what Heath is arguing about here; as long as the counterarguments offered in such discourses were not directed at showing that the norm is immoral (i.e., unjust), but merely that it would not be good for other communities given their different goals, values, etc., one could indeed reply to them, according to the Habermasian approach, that this is just what we, the affected, consider “good for us,” given who we are.
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