Three vulnerability objections to justice as mutual advantage

Abstract

Critics allege that justice as mutual advantage excludes vulnerable people and is thus inadequate as a conception of justice. Building on Peter Vanderschraaf’s Strategic Justice, this paper considers three distinct vulnerability objections. After Sect. 1 clarifies the “vulnerable,” Sect. 2 discusses an objection according to which it is impossible for a mutual advantage view to protect the vulnerable. Answering this objection only requires a possibility proof, such as that Vanderschraaf provides. Section 3 discusses an objection according to which it is merely contingent whether, not guaranteed that, a mutual advantage view protects the vulnerable. Mutual advantage theorists indeed cannot provide such guarantees, so they must argue that such guarantees are too much to demand from a conception of justice. Section 4 discusses an objection according to which it is improbable that a mutual advantage view will protect the vulnerable. Addressing this concern opens paths for future fruitful research, including considering the conditions that make including the vulnerable more or less likely as well as the conditions that facilitate cooperative ability or create vulnerability. Section 5 builds on the foregoing by emphasizing the diversity of vulnerabilities along with the broader social contract tradition’s diversity of strategies for addressing vulnerability.

Many critics object that justice as mutual advantage will exclude the vulnerable, such as dependents and people with severe disabilities or otherwise unable to contribute to mutually beneficial cooperation. Justice as mutual advantage may exclude many people as non-contributors given the view’s narrow understanding of benefits and avoiding the warm-hearted—or soft-headed—moralistic appeals to civic friendship, impartial concern of a good will, or that notorious fount of exploitation, fellow-feeling.¹ Justice as mutual advantage theorists see “justice as a system of rules that people follow because these rules benefit them all” (Vanderschraaf, 2019, 271). Such people interact strategically for their benefit, rather than necessarily being guided by concern for fairness, human dignity, or other moral ideals. But, the objection goes, such individuals will find it rational to exclude vulnerable people from the benefits of justice and such exclusions are incompatible with a proper conception of justice. ²

Peter Vanderschraaf’s Strategic Justice (2019) insightfully addresses vulnerability concerns. This paper will consider Vanderschraaf’s recent reply to the vulnerability objection and add nuance to both the objection and replies available to mutual advantage theorists. In so doing, the paper illuminates issues and resources for mutual advantage views more generally while focusing on Vanderschraaf’s account as an recent exemplar building on earlier work. While Vanderschraaf considers only one—the— vulnerability objection, I will discuss three important variants of the objection. Though the variants are on the surface very similar, supporters of justice as mutual advantage must address them with very different strategies. Vanderschraaf’s argument is effective only against one version of the vulnerability objections, so other resources are required for the other two versions. Moreover, considering the strategies available for mutual advantage theorists to address these objections will highlight and clarify important features of justice as mutual advantage.

Though vulnerability objections are most acute for justice as mutual advantage, such objections are raised to many other accounts that take mutually beneficial cooperation as a foundational aspect of justice. For instance, Kittay (2019, pt. II) raises a vulnerability objection to John Rawls’s justice as fairness for not addressing the needs of people with severe disabilities.³ So, while I will focus specifically on justice as mutual advantage, this discussion is relevant for alternative views, particularly in the social contract and public reason traditions.⁴

The paper will proceed as follows. Section 1 briefly sketches justice as mutual advantage. Section 1.1 discusses how justice as mutual advantage accounts for temporary vulnerabilities and clarifies that the concept of the “vulnerable” for the remaining objections. Section 2 discusses an objection according to which it is impossible for a mutual advantage view to protect the vulnerable. Answering this objection only requires a possibility proof, such as that Vanderschraaf provides. Section 3 discusses an objection according to which it is merely contingent whether, not guaranteed that, a mutual advantage view protects the vulnerable. Mutual advantage theorists indeed cannot provide such guarantees, so they must argue that such guarantees are too much to demand from a conception of justice. Section 4 discusses an objection according to which it is improbable or not sufficiently likely that a mutual advantage view will protect the vulnerable. This is particularly important since Vanderschraaf’s own defense of justice as mutual advantage shows that it is possible to include the vulnerable but does not explicitly attempt to show that inclusion is likely in real social conditions. Addressing this concern opens paths for future fruitful research, including considering the conditions that make including the vulnerable more or less likely as well as the conditions that facilitate cooperative ability or create vulnerability. Section 5 builds on the foregoing by emphasizing the diversity of vulnerabilities along with the broader social contract tradition’s diversity of strategies for addressing vulnerability. It concludes by defending shifting from a pure mutual advantage account to a multilevel account with mutual advantage as a firm foundation supplemented by more traditionally moral levels in addition.

1 Justice as mutual advantage

Vanderschraaf (2019, 271) characterizes justice as mutual advantage as “the idea of defining and analyzing justice as a system of rules that people follow because these rules benefit them all.” People avoid conflict and realize cooperative benefits through restraining themselves under such rules. Paradigmatic here is the benefit for each in maintaining mutual cooperation rather than mutual defection in situations with a structure like that of the well-known Prisoner’s Dilemma. The mutual advantage account, however, does not rest on the fact that compliance with such rules would be better for all, but instead requires that the compliance itself be instrumentally rational for each person. Threats of punishment, or at least of withdrawing cooperation, elicits compliance from those with instrumental rationality but not necessarily moral concern.

It is worth clarifying mutual advantage theorists’ views regarding people’s motivation. Mutual advantage theorists aim to appeal only to a widely accepted account of rational choice and weak assumptions about people’s beliefs and motives.⁵ These theorists assume, for instance, that people adopt what they believe to be effective means to pursue their own ends, while the theorists remain open about people’s ends. While people may pursue egoistic or self-regarding interests, justice as mutual advantage does “not presuppose that the members of society have only egoistic preferences” (Vanderschraaf, 2019, 276; emphasis added). The members of society might take interest in things beyond their self-interest, such as concern for their friends and families or “wish[ing] to advance the conflicting agendas of various communities represented in society, such as political movements or religions” (Vanderschraaf, 2019, 276). Self-regarding interests are paradigmatic for conflicts for which mutual restraint can provide mutual benefit and mutual advantage theorists seem to me to at least presuppose substantial self-interest is wide-spread, but mutual advantage theorists recognize people’s many social desires and other-regarding ends.⁶ Central, however, is that the agents have conflicting ends rather than completely shared preferences over states of affairs. Mutual advantage theorists typically conceive of agents as non-tuistic in bargaining or exchange, though they may be altruistic towards others.

Importantly, advantage theorists aspire “to build justice completely from scratch” (Vanderschraaf, 2011, 320), particularly “without introducing prior moral assumptions” (Gauthier, 1986, 6) or need for “specific religious or metaphysical doctrines” (Vanderschraaf, 2011, 319). They contrast their view with alternative accounts that “rely upon what look suspiciously like ad hoc special motivations, choice situations or accounts of rational decision that are rigged to get a desired result or perhaps even beg the question” (Vanderschraaf, 2011, 320).⁷ Justice as mutual advantage, then, wants to explain justice without having to attribute to people special moral motives such as concerns for fairness or conceiving of others as free and equal ends in themselves. Self-regarding interests, such as each person’s desire to avoid her own death, provide a useful foundation for mutual advantage theorists in explaining why people have at least some significant reason to accept restraints with appeal only to the relative “scratch” of uncontroversial motivational assumptions and avoiding morally-loaded premises, though again mutual advantage theorists do not claim that self-regard exhausts people’s concerns.

1.1 The vulnerable

Since justice as mutual advantage understands justice in terms of rules from which non-moralized, potentially egoistic, people would derive mutual benefit, critics worry that this account leaves some people vulnerable to exclusion from justice because they are unable to provide the relevant benefits. Vanderschraaf (2019, 280) defines “the vulnerable members of society as those humans living in this society who are unable through their own efforts to contribute to the cooperative surplus.” This definition needs refinement for our purposes.⁸ The initial definition includes among the vulnerable people who are unable to contribute currently—in a given moment—but whose inability may be temporary and expected as part of a normal life. That vulnerability includes, for instance, the temporary incapacities in childhood, old age, and the normal range of illness and injury (Vanderschraaf, 2019, 280). It seems to even include anyone merely sleeping! To be at all plausible, justice as mutual advantage must account for justice owed to the temporarily vulnerable.⁹

Consider the case of sleep. All humans sleep at some points and don’t contribute to the social surplus while sleeping. Even in the rare cases of socially productive sleeping, such as sleeping under observation for research, a person is not choosing whether to maximally pursue her interests or to restrain herself while asleep. Sleepers, then, do not meet Vanderschraaf’s (2019, 275–76) conditions for the parties of mutual advantage. Of course, it would be disastrous for an account of any conception of justice to that no one owned anything to the sleeping. One could not rest easy knowing the benefits of justice, including the benefit of prohibition against murder, stop when one’s dreams begin.

Mutual advantage theorists can account for sleeping essentially because rules that protect people even while sleeping are mutually advantageous who each have more to gain from such protection for themselves than from a free-for-all against sleepers. To fill in key details, justice as mutual advantage appeals to two features. First, cooperation happens over time. People do not need to be able to contribute to the cooperative surplus at every moment, but instead to contribute to the cooperative surplus over time. Most people spend significantly more time awake than asleep and produce enough in the wakeful times to cover our needs while sleeping. Mutual advantage accounts centrally regard interactions over time, as is clear in the well-known and widely discussed Folk Theorem and tit-for-tat strategy.¹⁰ (I’ll focus on tit-for-tat as clear, though not unique, for my point.) Tit-for-tat is cooperation conditional on what another did in the previous interaction and thus secures cooperation in the present with what one can do in the future rather than presently. Of course, “withholding cooperation” here may include imposing heavy sanctions as “eye for an eye” retribution. So, within justice as mutual advantage, incapacity in some encounter does not matter so much as capacity to provide or withhold benefits, or to inflict harms, in the future. Justice as mutual advantage can support the rule: “don’t attack people while they’re sleeping.”

A second key feature of justice as mutual advantage is extending cooperation through indirect reciprocity. Instead of an agent conditioning cooperation with another on that other’s prior choices regarding her, she conditions cooperation with another on that agent’s prior choices with anyone. Alf cooperates with Betty if she is innocent in her prior encounter, whether with Alf or Charlie or Delphine, but Alf withholds cooperation from Betty if she had wrongly refused to cooperate with someone previously. As before, response to wrongdoing may include imposition of significant sanctions (e.g., ocular extraction). Indirect reciprocity is important for any large population, but also for people who sleep. That Alf and Betty may exact retribution can deter Charlie from murdering Delphine in her sleep even though she would have no way to directly retribute for her own murder.

To recap, justice as mutual advantage supports rules whose benefits accrue over time, such mutually beneficial rules include rules that provide the benefits of justice to people even in the moments those beneficiaries are not able to contribute, and the rules are maintained through indirect reciprocity. These features readily show that justice as mutual advantage accounts for the sort of vulnerability one has when sleeping. Perhaps that is why there is not a considerable literature on “the sleeping objection.” Notice, however, that this result generalizes to the standard range of common, temporary incapacities beyond sleep. Much as cooperators want the benefits of justice even while sleeping, they also want them while ill, injured, young, or old. Mutual benefit is realized through cooperation across a lifetime that includes moments of sleep, illness, or other incapacities.¹¹ Justice as mutual advantage supports a rule like: “don’t attack people while they’re injured, ill, infants, infirm, or insensate.” Parallel considerations can support rules requiring positive provision of benefits during periods of incapacity, since these too would be mutually advantageous for self-interested individuals living full lives including significant periods of incapacity. Enforcement of the rule through indirect reciprocity, moreover, extends the protection to those who having been productive in their earlier years now face few prospects for recovering productive capacity.

So, refining Vanderschraaf’s (2019, 280) characterization, I take the vulnerable relevant to a vulnerability objection to be people in the society unable through their own efforts to contribute to the cooperative surplus on the whole across their life. Vulnerability in this sense, as a term of art instead of colloquial usage, characterizes someone’s lifetime productive capacity.¹² We should keep in mind that Vanderschraaf (2019, 281) characterizes the vulnerable as unable to contribute to the cooperative surplus, not that they are unable to produce anything at all. In fact, someone may be among the vulnerable even while able to produce a lot if their costs are too high. Overall, rather than common incapacities of sleep or retirement, typical vulnerability would be severe disability preventing productivity or needs surpassing one’s productivity.

2 Impossible

With those preliminaries out of the way, consider an initial vulnerability objection. According to the impossible objector, justice “as mutual advantage denies the vulnerable any of its advantages” (Vanderschraaf, 2019, 281) in the strong sense in which justice as mutual advantage necessarily denies the vulnerable the benefits. Since the vulnerable lack a viable bargaining position, they must be excluded from the bargain.¹³ One must expect the non-vulnerable people, pursuing their own various and potentially egoistic interests, to create rules that share the cooperative surplus only among those producing that surplus while excluding those incapable of contributing to it. Or so the argument goes.

Against this sort of vulnerability objection, Vanderschraaf (2019, 287–90) provides The Indefinitely Repeated Provider-Recipient Game in which providing for others even at personal cost is in equilibrium. This amounts to a possibility proof decisively refuting the objection. Instead of reproducing Vanderschraaf’s beautiful formal proof—which I encourage the reader to examine—I will discuss the issue informally in ways that parallel that formal proof to shed further light on justice as mutual advantage and its theoretic resources.

I noted above that justice as mutual advantage secures justice for people even when temporarily incapacitated with reciprocity across time rather than in each encounter and with indirect reciprocity. Cooperating people can mutually benefit from conforming to a rule like “don’t attack people while they’re injured, ill, infants, infirm, or insensate” since each gains more from such restraint by others than she would gain from being unrestrained and the enforcement of the rule by others ensures that compliance more prudent for her than attempting to merely free-ride on others’ restraint.

Note that adding to the population some who are incapacitated for uncommonly long does not change the overall result. This stable rule promoting their mutual advantage does not involve fine distinctions regarding how long people are incapacitated. The rule protects even those who sleep so long they become vulnerable. The convention says not to murder Rip Van Winkle if people stumble upon him during his twenty years slumber. The convention even prohibits murdering someone in a permanent coma. The same applies to long-term illness and injury and applies to rules requiring providing benefits. These rules realize justice as mutual advantage and, contrary to the objection, share the cooperative surplus with the vulnerable. Moreover, this case does not depend on attributing ad hoc special motives of the sort Vanderschraaf (2011, 320) indicates mutual advantage theorists seek to avoid—e.g., the model does not involve agents with universal benevolence.

At this point an objector is likely to point to the fact that for the cooperators it would be even more advantageous to have alternative rules that excluded the vulnerable. Perhaps, “don’t attack sleeping people unless they are permanently comatose” or “don’t attack sleeping people who have or can contribute to the cooperative surplus.” Sect. 5 will consider some reasons that even the most advantageous rules might be more inclusive, but for now I will merely note that justice as mutual advantage need not be optimal.

The rules of justice, on a mutual advantage account, can be socially evolved conventions stable because each instrumentally rational member of society has sufficient reason to not unilaterally defect. Accident and path-dependence significantly shape a society’s conventions, so they will often be sub-optimal. Shifting to superior rules can be infeasible, have excessive transition costs even if feasible, involve coordination and collective action problems, and face challenges from people’s conflicting preferences over alternate rules. Stable conventions that work to mutual advantage and avoid the costs of free-for-all pursuit of personal interest are extremely valuable, so one need not deny them the honorific of “justice” simply for not being fully optimal.

Though I think the best version of justice as mutual advantage will not require the rules of justice to be optimal for the cooperators, it is worth noting that the impossible variant of the vulnerability objection fails even against an account requiring optimal rules. Consider a society with information constraints preventing identification of the vulnerable such that the possible rules the people could follow are inclusive. Justice as optimal mutual advantage in such a society would provide benefits of justice to the vulnerable, thus it is possible for this conception of justice to benefit the vulnerable. One may see from this that the impossible variant of the vulnerability objection is too easy to answer since the mutual advantage theorist need only provide one possible, perhaps hypothetical and unrealistic, case. Vanderschraaf certainly provides one with his Indefinitely Repeated Provided-Recipient Game, and theorists can generate further cases.

These replies to the impossible variant are limited. Vanderschraaf (2019, 292) is clear that his case shows only that “[j]ustice as mutual advantage need not exclude the vulnerable from its benefits” but does not imply “that justice as mutual advantage will guarantee that the vulnerable are to receive adequate benefits of justice.” Let us now turn to the question of guarantees.

3 Contingent

According to a contingent objector, a proper conception of justice should include the vulnerable along with other people necessarily, as through the conception’s foundational commitments. A conception of justice, the objection claims, should guarantee that the vulnerable will share in justice’s benefits, but justice as mutual advantage provides no such guarantee. This objector would recognize that it is possible for justice as mutual advantage to share benefits with the vulnerable in some society, but objects that it is also possible that it will deny the vulnerable any benefits. It is the possibility of excluding the vulnerable that this objector opposes.¹⁴

The issue is not whether vulnerable people ultimately are included or excluded in, say, our own society, but whether the conception of justice is such as to necessarily include the vulnerable or instead leaves inclusion to chance. Whether the vulnerable will be included in or excluded from justice’s benefits is purely contingent on the particular social circumstances and evolved conventions. The objector would argue that even if justice as mutual advantage holds that the vulnerable should be included in our own society, thanks to its favorable and contingent circumstances, the view still holds that the vulnerable should be excluded in other circumstances. Moreover, one may have to assess the circumstances of our society carefully to have confidence that including the vulnerable meets the requirements of mutual advantage. This contrasts starkly with conceptions of justice on which moral standing is not determined by productive capacity or bargaining position, but instead by features shared by vulnerable and non-vulnerable alike such as having been created free and equal by God or having Kantian dignity as an end in oneself. Of course, even such accounts cannot guarantee that all will receive benefits since extreme scarcity or other restrictions may make that impossible, though some accounts will hold that the state of affairs is unjust or that everyone still has a justice-based claim to benefits even if it is not possible to meet all such claims.¹⁵

Thus far, the objector is correct. It is possible for a society with rules conforming to justice as mutual advantage to deny benefits to some or even all vulnerable people in the society. Neither Vanderschraaf’s possibility proof nor any other argument guarantees that justice as mutual advantage will always protect every vulnerable person. Vanderschraaf (2019, 292) admits: “Human societies adopt many alternative systems of cooperative equilibria that settle the competing interests of their members in different ways. Such a system might provide benefits to only some of the vulnerable, or even to none. Or whatever benefits the vulnerable do receive might be inadequate.” Whether the system of mutually beneficial rules will share benefits with the vulnerable and, if so, how much benefit with which vulnerable is contingent upon the society’s circumstances, members, and how its conventions formed.

With agreement on the descriptive fact that justice as mutual advantage does not guarantee benefits for all vulnerable people, the dispute must regard the extent to which this is a problem for justice as mutual advantage. The objector claims that the possibility of leaving out the vulnerable, in Vanderschraaf’s (2019, 281) phrasing, “shows that justice as mutual advantage is in fact no proper account of justice at all.” The objector may elaborate that their intuitions or considered convictions about justice involve always necessarily including the vulnerable, that “justice” denotes a pure ideal that cannot compromise with such social contingencies, or some other elaboration on why any adequate conception of justice must guarantee benefits for the vulnerable. One may particularly expect an objection like this from philosophers who and understand justice, or morality more generally, in highly abstract and idealized ways, particularly as highly independent of our practices and practical circumstances. On such an account, mutual advantage theorists study mere convention or rules of regulation but not justice (perhaps best rendered Justice).¹⁶

Though justice as mutual advantage clearly cannot provide the demanded guarantees, the significance of that depends upon highly contentious philosophic and methodological commitments. This objection brings into sharp relief fundamental differences in approaches to conceptions of justice, such as differences in the extent to which such conceptions are meant to be explanatory of the world as we see it, of the requirements of rationality, or of intuitions. I will not here settle this dispute, but will note some key strategies for mutual advantage theorists. Some mutual advantage theorists reject the importance of philosophers’ intuitions about the specific content of justice.¹⁷ Such theorists aim to discover what a rational form of justice requires or to explain the systems we find in the world with their actual variation in scope, rather than to produce pre-established intuitive results. They may in this way dissolve the dispute for those demanding guarantees of inclusion are thinking of justice in fundamentally different ways than mutual advantage theorists. They seem to be talking past one another rather than necessarily disagreeing. If the question is whether “justice” requires guarantees, the mutual advantage theorist should heed Karl Popper’s (2005) anti-essentialist exhortation: “Never let yourself be goaded into taking seriously problems about words and their meanings. What must be taken seriously are questions of fact, and assertions about facts: theories and hypotheses; the problems they solve; and the problems they raise.”

Other mutual advantage theorists, however, will not reject the role of intuitions so may instead work to clarify or revise those intuitions themselves. Reflective equilibrium can go both ways with theories leading people to revise their convictions. For instance, one may on reflection find that one’s intuitions inclusion of the vulnerable are best construed as about values besides justice. Some mutual advantage theorists would stand firm that justice does not necessarily include the vulnerable whose interests are instead the business of beneficence, charity, or other ethical values. As Rawls (1999, 448) highlights and mutual advantage theorists may emphasize, people have “duties of compassion and humanity” even where we lack duties of justice.

4 Improbable

Having considered vulnerability objections focused on what is possible, we will now consider a version focused on what is probable. According to the improbable objector, justice “as mutual advantage [probably] denies the vulnerable any of its advantages” (Vanderschraaf, 2019, 281). This objector does not demand guarantees and necessity and acknowledges that it is possible for justice as mutual advantage to include the vulnerable. But, the objector holds, the circumstances of inclusion are unrealistic and inclusion is fragile since it is too easy and profitable for people who produce cooperative surplus to exclude the vulnerable from its benefits.¹⁸

The improbable objection is importantly different from the contingent objection since the contingent objection regarded the fact that justice as mutual advantage could exclude the vulnerable at all. The contingent objection does not concern what the probabilities actually are beyond that the chance of exclusion is not zero. The improbable objection, on the other hand, is not demanding guarantees or concerned about the mere fact that mutual advantage could conceivably exclude the vulnerable. Someone making the improbable objection could grant that a proper conception of justice might not provide guarantees for all cases, yet hold that a conception of justice should tend toward inclusion and make it probable that the vulnerable will share in justice’s benefits. This objector, then, is unimpressed with Vanderschraaf’s possibility proof, holding that the mere possibility of inclusion in some circumstances does little if the conditions for inclusion are extremely rare, remote from the conditions of ordinary human life, or it is highly improbable that any society we live in will have circumstances favoring inclusion of the vulnerable. Vanderschraaf shows that inclusion is possible, but fails to show that inclusion is likely, leaving much for an objector to worry about.

The objector may emphasize that models like Vanderschraaf’s ignore important features of the real world. Like any good model, Vanderschraaf’s provider-recipient game abstracts away from many of the complex aspects of real societies to clarify some important features.¹⁹ Vanderschraaf shows that a rule requiring sharing can be mutually advantageous and stable at least if all members have periods of dependency. The sharing rule Vanderschraaf considers does not distinguish between agents based on how frequently they are dependent so does not permit acting greedy against the vulnerable (though the rule does distinguish between the innocent and defectors, requiring that people sanction the latter).

Social rules often lack fine distinctions and discriminations. One reason, from the perspective of cooperators seeking mutual advantage, is to save information costs and avoid certain errors. Getting and processing information is costly in terms of scarce time, cognitive capacity, and investigative resources. Excluding the vulnerable, defined in terms of capabilities for lifetime contribution to the cooperative surplus, requires first identifying the vulnerable, but that is not always an easy task.²⁰ Many disabilities hamper one’s capabilities without obviously preventing one from contributing to the cooperative surplus. Whether a condition makes an individual vulnerable often depends on other factors, including her social circumstances and other talents. Moreover, systems conditioning benefits on such discriminations incentivize people to engage in (costly) deception that must be countered with (costly) detection efforts. For these and other reasons, it will often not be feasible at all to confidently distinguish all the vulnerable, but even when feasible doing so will often not be worth the costs. Even self-interested cooperators will sometimes prefer rules that extend rights and material benefits indiscriminately to avoid the costs of gathering information for discriminating.

Regarding avoiding certain errors, people want to avoid being wrongly excluded. That is especially so if exclusion is extremely costly, as when it leaves one open to being killed, tortured, enslaved, or used for dangerous medical experiments. Benn (1988, 102), for instance, argues that moral persons (definitionally non-psychopathic) have reason to extend rights fundamentally owed to moral persons also to psychopaths because “the category of psychopath is very uncertainly defined” so it would be hazardous to use it to exclude anyone from rights protections.²¹ It would be extremely dangerous to exclude psychopaths from basic rights since people with moral personality may be mistaken for psychopaths. On Benn’s (1988, 102) account, then, moral persons should not exclude psychopaths from the protections of justice because, “[b]y and large, the status of moral persons is better safeguarded” this way. Though Benn is not a mutual advantage theorist, his argument illustrates a general strategy for expanding the protections of justice beyond the set of people fundamentally owed the protections insofar inclusive practices mitigate risks for those fundamentally included people. Similarly, strict evidential standards in criminal trials reduce the risk for innocent people of being severely punished. Even self-interested cooperators will sometimes prefer non-discriminatory rules to reduce their own risk of exclusion.

Another factor worth noting is that social factors affect not only which members of society are vulnerable (which Vanderschraaf (2019, 280) notes), but also how many people are made vulnerable or enabled to cooperate. Justice as mutual advantage can emphasize cooperators’ interests in rules that enable more people to contribute to the cooperative surplus.²² This especially includes the extension of markets to drive the division of labor, specialization, new products and productive processes, and overall creating opportunities for ever wider sets of people with different abilities. Moreover, increasing economic prosperity can reduce the costs of what people need, which tends to raise people out of vulnerability.

Of course, vibrant markets do not guarantee that no one is vulnerable. Likewise, rational mitigation of risk and information costs does not guarantee that mutually advantageous rules never discriminate. Much depends on the costs of the information, the level of risk, the marginal costs of greater inclusion, the sources of potential vulnerability, and other factors. My point here, though, is that justice as mutual advantage has resources for explaining why this conception will, in many realistic circumstances, include people who are vulnerable or, better yet, enable people to be full contributors to the cooperative surplus. Insofar as justice as mutual advantage aims to explain actual societies, these considerations help explain why so many real societies extend the benefits of justice as indiscriminately as they do and empower potentially vulnerable people with economic opportunity.

These considerations suggest a few points about positive policy for mutual advantage theorists concerned to protect the vulnerable. Instead of considering benefits for the vulnerable in terms of transfers to the vulnerable as such, justice as mutual advantage is more likely to benefit the vulnerable through non-discriminatory rules that provide benefits to those who produce the cooperative surplus. Salient here are protections of basic rights like rights to bodily integrity and freedom of association, as well as provision of social insurance such as unemployment, social security, or even a basic income guarantee. These policies can operate without having to identify whether an individual is vulnerable, but instead merely that they meet more criteria that people can meet whether vulnerable or not. Public goods, in the economic sense with non-excludability and non-rivalrous consumption, provide another potential for policies advantageous to the producers that would also benefit the vulnerable.²³ The very nature of public goods implies that it would not be worth the cost to exclude the vulnerable from enjoying their benefits once established.

It is unclear how far these strategies would go account for the needs of the vulnerable. They certainly do not guarantee that justice as mutual advantage will always protect every vulnerable person, though they show that justice as mutual advantage will tend to protect at least vulnerable people under some realistic conditions. Further research is needed to fully assess when and how often benefitting the vulnerable is strategic.

5 Diversity

In the above sections, I focused on agents’ self-regarding interests as seems common in mutual advantage accounts at least as a basic case. I will conclude by considering how a wider range of motives either within or supplementing justice as mutual advantage can best secure the interests of the vulnerable and ultimately provide a plausible conception of justice.

While mutual advantage accounts are primarily conceived in terms of advantage for individuals, Vanderschraaf (2019, 271) notes in passing that his conditions for justice as mutual advantage “can in principle apply to societies where the parties are groups.” Now, it is possible that these groups are internally also characterized by mere prudence and rules for mutual advantage. As example here may be the rule structures between and within prison gangs, with each gang having rules regulating its members for their mutual advantage and an overall framework of rules regulating the gangs for the mutual advantage of the gangs as such.²⁴ Vanderschraaf’s account, however, allows for groups whose internal relations are not those of self-interested strategy. Insofar as such groups need not themselves conform to justice as mutual advantage, it is possible for vulnerable individuals to share in the benefits of justice between groups insofar as they are members of the groups.

Whether people constitute such groups or remain as individuals, their interests are not restricted to those of narrow self-interest. As noted previously, Vanderschraaf’s (2019, 276) specification of justice as mutual advantage does “not presuppose that the members of society have only egoistic preferences.” The members of society might take interest in things beyond their self-interest, “might wish to advance the conflicting agendas of various communities represented in society, such as political movements or religions,” or even be “purely altruistic” according to Vanderschraaf (2019, 276). Vanderschraaf does not put much weight on such other-regarding interests for answering the vulnerability objection at least in part because it does not ensure that all vulnerable people will be included in justice. Some unloved individuals with neither friends nor family would be excluded and some may even have families who do not care for their interests. That said, we are not looking for full guarantees. In realistic conditions, other-regarding interests are an important part of how justice as mutual advantage accounts for vulnerable people. Whether the rules sufficiently protect my friends, family, or members of the communities I identify with is a necessary part of assessing whether the rules work to my advantage. Even rules that work to my narrow self-interest can be destructive of that in which I take an interest.

I would emphasize that the strategies in the prior sections can combine with the other-regarding interests. For instance, the other-regarding interests give some members reason to prefer non-discriminatory rules since they are concern not merely with whether the rules exclude themselves but also whether the rules exclude those they care about. Many people would reject a rule excluding the vulnerable from the protections of justice since those people care about people who are or may be among the vulnerable. But even if they only care about non-vulnerable people, discriminatory rules bring risks of misidentification. Now, people have other-regard for different others and to different extents, and some people lack other-regard altogether, so which rules are mutually advantageous and stable will depend on the particulars of the society and its members. Forms of other-regard, however, tend to push in the direction of benefitting vulnerable people.

Though mutual advantage theorists avoid appealing to moral concerns, often hoping to derive moral outcomes from non-moral premises, recognition of other-regard already breaks from the barest of asocial preferences. A fuller accounting for the vulnerable would come from allowing in moral commitments, though as with other-regard recognizing that these commitments vary across people. Some members of society may be amoral, but others hold moral values. Recognizing this would perhaps push the theorist out of pure justice as mutual advantage and into something like Michael Moehler’s (2018) multilevel conception of justice.²⁵

In brief, Moehler defends a conception of justice in the Hobbesian social contract tradition that has two main levels.²⁶ The first level relies on bargaining based on prudential concerns to maintain peace among people with moral disagreements at the deepest level, including amoral agents. When people are interacting with nothing more robustly moral between them, they should regulate their actions in accordance with the rules of peace for prudence’s sake. People sharing traditional moral values such as commitment to respecting human dignity and fairness, however, can form a traditional morality regulative over their interactions together reflecting these shared values. Drawing on the shared values, a traditional morality has many resources for including the vulnerable, particularly by recognizing people’s moral worth independent of their material contribution to cooperative surplus. For the present purposes, one does not need to share Moehler’s view that a traditional morality takes precedence, for it is enough to recognize that people’s moral values provide additional considerations and resources for a social morality.

Following this structure, Vanderschraaf and others should consider justice as mutual advantage with its avoidance of assuming moral motives as a first level that we especially need for regulating societies of the deepest levels of diversity. Justice as mutual advantage produces impressive results while remaining in line with Vanderschraaf’s (2011, 320) methodological emphasis on building “from scratch” with minimal motivational assumptions. Justice as mutual advantage can include the vulnerable, though it is not guaranteed to do so. As important as mutually advantageous conventions are for sustaining cooperation, they do not exhaust justice. At least in some circumstances groups of people build social-moral systems drawing on recognizably moral commitments, including commitments to protect, help, and live as equals with vulnerable people. Though this draws on moral motives that mutual advantage theorists typically avoid, it does not merely assume the motives in an ad hoc way. Instead, it builds on the observable fact that many people do have such values and considers the ways that those values influence justice and its scope. Considering the role of moral values illuminates not so much what justice is but instead what it can be.