Utilitarianism, Institutions, and Justice This page intentionally left blank UTILITARIANISM, INSTITUTIONS, and JUSTICE James Wood Bailey New York • Oxford Oxford University Press 1997 Oxford University Press Oxford New York Athens Auckland Bangkok Bogota Bombay Buenos Aires Calcutta Cape Town Dar es Salaam Delhi Florence Hong Kong Istanbul Karachi Kuala Lumpur Madras Madrid Melbourne Mexico City Nairobi Paris Singapore Taipei Tokyo Toronto Warsaw and associated companies in Berlin Ibadan Copyright © 1997 by Oxford University Press, Inc. Published by Oxford University Press, Inc. 198 Madison Avenue, New York, New York 10016 Oxford is a registered trademark of Oxford University Press All rights reserved No part of this publication may be reproduced, stored in a retrieval system, or transmitted, in any form or by any means, electronic, mechanical, photocopying, recording, or otherwise, without the prior permission of Oxford University Press. Library of Congress Cataloging-in-Publication Data Bailey, James Wood, 1967- Utilitarianism, institutions, and justice / James Wood Bailey. p. cm Includes bibliographical references. ISBN 0-19-510510-9 1. Utilitarianism. 2. Institutions (Philosophy) 3. Justice (Philosophy) I. Title. B843.B35 1997 171'5—dc20 96-41290 987654321 Printed in the United States of America on acid-free paper Dedicated to my mother and father This page intentionally left blank PREFACE I did not know it at the time, but I was well on my way to becoming a utilitarian when, as a wet-behind-the-ears graduate student, I first heard an intemperate debate between a group of free-speech advocates and a group of feminists over the legal regulation of pornography. What was remarkable about this debate was not just the wide gulf be- tween factual premises that separated the two groups but also the relative insensitiv- ity each expressed toward the moral concerns of the other. The free-speech advocates were willing to concede, at least arguendo, that pornography might have negative consequences for the behavior of at least some people but that a supposed right of free expression required us to live with these consequences. The feminists were will- ing to concede, in considering questions of public policy, that any strong program for regulating pornography would be expensive and intrusive, but they were unwill- ing to concede that these costs ought to be a barrier to such a legal regime. Surely, 1 thought, all costs should matter. The end of moral rights should be to secure a decent existence for human beings, not to allow some to run roughshod over others. If I had to summarize the doctrine of utilitarianism in one sentence, it would be as follows: the imposition of a cost can only be justified by the avoidance of a greater cost, and all costs matter equally. It does not matter whether the cost is immediately observable or it exists only in the form of an opportunity foregone. And what is more, it does not matter on whom the cost may fall. Man or woman, rich or poor, fellow countryman or foreigner, quick or yet unborn, the burdens of life on each count the same. Utilitarianism tells us to do the best we can, with utter impartiality. As such, it is a powerful engine both for justifying and for criticizing the way we live. Small won- der that it should hold such an attraction for a young political theorist. But striving for the best leads to both a problem and a paradox. The problem has two branches. A system of ethics that tells us to achieve the best at once permits too much and demands too much. Achieving the best overall outcome can mean impos- ing very large costs on some people, and this is something many of us find intuitively viii Preface to be horrible. We do not want to sacrifice an innocent person to achieve some other end, perhaps any other end. If we are told that we can save the lives of five dying persons by murdering some unsuspecting fellow, we would not do so even if the magnitude of the cost works out in favor of doing it. Most of us accept that there are moral constraints on what use we can make of other people; but utilitarianism, it is alleged, tells us to override this constraint in some instances, and so permits too much. At the same time, it also appears to demand too much because, given the amount of suffering and unhappiness in the world, the amount of time and energy any one agent could devote to bringing about the best outcome overall would be formidable. I do not give away almost all of my income to feed starving children, even though some have argued that a good utilitarian would do just that. The paradox follows quickly on the second branch of the problem. In principle, it would appear that utilitarianism tells us to make each and every choice such that it leads to the best consequences overall. But an insight made clearer by the develop- ment of game theory is that no choice has consequences in isolation, only in con- junction with many other choices of many other agents. So while utilitarianism gives us the duty to make things go as well as possible, it does not give to any individual agent at any particular juncture any definite responsibility because causally the out- come of his or her choice lies in the hands of so many other agents. My individual contribution to the overall good may be consequential if and only if others also con- tribute in the right way. In the absence of some knowledge about how others are likely to act, the principle of utility alone can tell me nothing useful about what I should do. I have written this book to show that both the problem and the paradox can be resolved simultaneously. The resolution of the paradox of individual responsibilities is achieved by elaborating an account of institutions as equilibria in complex games. Within institutions, individuals have specific responsibilities they cannot get from the principle of utility alone. But the principle of utility still has work to do even in an institutional account because it can help us identify some institutions as more mor- ally desirable than others. When we have identified those institutions, we find that utilitarianism is not the doctrine that makes the horrible recommendations it is ac- cused of making. Utilitarianism can thus be the basis for a viable public philosophy, the kind of doctrine capable of resolving precisely those problems of difficult trade- offs that first led me to its study. ACKNOWLEDGMENTS Many people have provided help and encouragementx>yer the years without which this book would not have been possible. I am grateful most of all to Alan Ryan, who supervised this project as a doctoral dissertation at Princeton University, and to Amy Gutmann, Russell Hardin, and Elizabeth Kiss, who served on my dissertation com- mittee and were tireless in providing useful comments, criticism, and support. 1 owe special thanks also to Tim Scanlon, who made me feel welcome during my academic year (1991-92) at Harvard, learning as best I could how to think like a philosopher. 1 was helped in this endeavor by the excellent teaching and occasional encourage- ment of Robert Nozick, Derek Parfit, and Amartya Sen. I received the financial sup- port of the Woodrow Wilson Fellowship Foundation in the form of a dissertation- year award. As I was turning the dissertation into a book, Jon Elster, David Johnston, Andrew Koppelman, Dan Sabia, and two anonymous reviewers for Oxford Univer- sity Press read the manuscript either in whole or in part while it was in preparation and contributed helpful comments. Other helpful comments were made at lectures I gave on my version of utilitarianism by my colleagues David Austen-Smith, Steven Brams, Joshua Cohen, Andrew W. Dick, Jim Johnson, and Ken Oye. Finally, I feel a gratitude hard to express in words to those friends whose conver- sation and companionship were able to sustain me in both heart and mind through the long process of thinking and writing: Jonathan Allen, Astrid Arraras, Tomas Chuaqui, George W. Downs, Roxanne Euben, Kyle Hudson, George Kateb, Cliff Landesman, Chris Marrison, Jamie Mayerfeld, Pratap Mehta, Jason Scorza, Jeannie Sowers, and Stuart White. This page intentionally left blank CONTENTS 1 Introduction to Utilitarianism 3 What Is Utilitarianism? 3 Why Study Utilitarianism? 7 What Is Not Wrong with Utilitarianism 13 What Is Really Wrong with Utilitarianism 20 Living by the Rules 24 What Is to Be Done? 27 2 Reasoning about Right and Wrong 28 The Need for a Metaethics 28 Intuitions 34 Contractualism 37 Form and Substance 46 3 Nonexploitation as a Rule of Thumb 49 Exploitation in a Simple Game 49 Norms: Minimalist and Utilitarian 52 The Natural Selection of Norms 56 The Utilitarian Nonexploitation Rule 60 Moral Mimicry 64 4 A Skeletal Theory of Institutions 68 What Are Institutions? 68 Rules, Equilibria, and Sell-enforcement 70 xii Contents Coordination 73 Cooperation 75 Rules, Equilibria, and v 82 Institutions and Interpersonal Comparisons: K 86 5 Basic Distributive Institutions 90 Introduction 90 Utilitarian Utopias 92 The Imperfect World 94 Utilitarian Dystopias 114 Comparative Dynamics 117 Moral Conclusions from Institutions 118 6 The Problem of Redistribution 120 What the Problem Is 120 The Rule of Political Semirigidity 123 Comprehensive Redistribution 125 Social Minima 131 Boosting Endowments 135 The Private World and Redistribution 140 7 The Acceptability of Utilitarianism 142 Intuitions, Institutions, and Evidence 142 Utilitarianism as a Horrible Doctrine 143 Utilitarianism as an Alienating Doctrine 147 Utilitarianism and the Publicity Objection 152 What Is Left of Utilitarianism? 153 Conclusion 160 Notes 163 Bibliography 189 Index 197 Utilitarianism, Institutions, and Justice This page intentionally left blank ONE Introduction to Utilitarianism What Is Utilitarianism? In this book, I propose to make a contribution to the doctrine of utilitarianism.