Bargaining Advantage and the Veil of IgnoranceIntroductionOne of the distinctive features of John Rawlss account of justice is the idea that principles of justice can be determined by conducting the following thought experiment: Rational, mutually disinterested parties who represent the members of society are tasked with choosing principles of justice. As these parties are prevented from knowing the specific features of the members of society they represent, as well as particular features of the society they will end up in by a thick Veil of Ignorance, Rawls proposes that whatever these parties choose will be the principles of justice.Rawlss argument for the Veil of Ignorance is that whatever is chosen from a fair hypothetical choice situation is justified. The Veil is supposedly justified because it makes the initial choice situation procedurally fair. Rawls argues that some types of information about oneself provide bargaining advantages in the initial choice situation, and that since these are morally arbitrary, the advantage provided by such information is unfair. The Veil is supposed to make the initial choice situation fair, by preventing parties from using such morally irrelevant information about the represented persons to obtain an unfair bargaining advantage over others (Rawls 2001, p87; Freeman 2007, pp. 342-343). The above argument has met with many objections. For instance, Dworkin (1973) and Scanlon (1982) have taken issue with the first step of the above argument. They have argued that hypothetical agreements or choices lack justificatory power. Stark (2000) has rebutted their argument by arguing that since it is appropriate to place certain constraints on reasoning about justice, hypothetical agreements justify principles of justice if and only if the features of the choice situation model those constraints.Gauthier took aim at a different aspect of the argument. While he agreed with Rawls and commentators like Freeman that the party having knowledge of the person she represents can provide a bargaining advantage, he argued that such a natural advantage is not unfair (Gauthier 1978) and need not be corrected for. Rawls, however, has a ready reply to this. Rawls contends that it was not a distribution of natural assets which was unfair, but how the fundamental social institutions respond to that distribution that was fair or unfair (Rawls 1997, p. 87). The moral arbitrariness of the distribution of natural assets means that there is no reason to morally privilege a situation where advantages accrue to those with assets. Indeed there may be other reasons why a choice situation in which everyone has equal bargaining power is appropriate when determining the principles of justice. In this paper, I bracket these issues and instead examine whether the party having knowledge of the person she represents confers a bargaining advantage. I will show that doing so does not. If my argument is successful, then this will moot the question as to whether it is appropriate to equalise bargaining power by imposing a Veil of Ignorance.The Original PositionAccording to Rawls, principles of justice are principles that ought to regulate the fundamental social institutions of society. Rawls proposes a thought experiment where the results of a hypothetical agreement in a suitably described choice situation called the Original Position are the principles of justice whatever those results turn out to be.The Original Position is a choice situation with at least three major components. The first component is a set of choosing parties who represent the members of society. In the Original Position, the parties are characterised as rational and mutually disinterested. That is to say, that they will, subject to constraints, reject a given set of principles so long as there is another they prefer more. They do not care one way or another how well other parties do with respect to their respective preference orderings. The second part of the Original Position is the fundamental or highest order interests of the member of society that the party. The highest order interests of a person are characterised as consisting of pursuing that persons conception of the good and exercising and developing that persons two moral powers (Freeman 2007, p297): namely, the capacity for a conception of the good and that for a sense of justice. The capacity for a conception of the good, according to Rawls, consists of the capacity to formulate the means to pursue ones final ends as well as the capacity to assess and revise those final ends. The capacity for a sense of justice consists of the normally effective desire to comply with the duties and burdens required by the principles of justice. The parties order their preferences for conceptions with reference to the extent to which their clients can successfully pursue their highest order interests. The account of the highest order interests is supposed to ground valid claims[footnoteRef:1]. By this, I also mean that any claims that are based on ends not regulated by the account of the highest order interest lack moral weight. Only if the highest order interests account for all relevant moral considerations in this way can it be that a choice situation in which parties order their preferences as earlier described will yield the principles of justice, whatever those principles may be. [1: Rawls conceives of the members of society making claims against the fundamental social institutions. A claim is valid just in case it carries moral weight. That is to say a claim is valid if and only if there is some prima facie moral reason to prefer a basic structure in which said claim is successful.]

The third major feature of the Original Position is the Veil of Ignorance. The Veil of Ignorance blocks certain sorts of information about the persons they represent and the society they will live in from the parties. The Veil blocks information about the identity of the person being represented as well as personal particulars like the ethnicity, religious affiliation, conception of the good and talents that the person has. The Veil also blocks various markers like of social position like how much wealth and power that person enjoys in any given society. Since Rawls conceives of the Veil as thick, it also hides specific information about the society. This includes demographic information which will reveal the likelihood that a given person has a particular characteristic as well as the particular historical circumstances people will find themselves in. Rawlss Argument from fairnessIn this paper, I will be examining Rawlss main argument for the Veil of Ignorance and will show that the argument is not successful. The key motivating idea behind the Veil of Ignorance is that the principles that are chosen via a fair procedure will be just. This would be because a fair procedure balances each persons fundamental interests against one another fairly, and thus affords each person their due concern. Crucially, if the initial choice situation without the veil were unfair, then there would be no guarantee that the principles thus chosen would be just. One key concern is that a relative bargaining advantage possessed by some parties makes a bargaining situation unfair. Thus, if the some parties in the initial choice situation without the Veil had a bargaining advantage, it would be unfair, and any principles agreed to in such a situation would arbitrarily favour the interests of those so advantaged. The Veil of Ignorance is thus supposed to be justified because it eliminates bargaining advantages stemming from knowledge of ones own preferences, talents and position in society. In this paper, I will argue that even without the Veil, no party has a bargaining advantage over another.Bargaining AdvantageIn order to show that there is no bargaining advantage, I will provide a definition of a bargaining advantage and provide an analysis of what is involved in one party having a bargaining advantage over another. One intuitive definition of a bargaining advantage is a difference in bargaining power. Bargaining Advantage: A person A has a bargaining advantage over another B, if and only if, A has more bargaining power than B.One way of explicating bargaining power is by cashing it out in terms of the effect it has on the outcome of the bargain: Bargaining power, all else equal, allows a person to get his way (Weber 1915, p152; Dahl 1957, pp202-203). This captures the intuition that unequal bargaining power can force the disadvantaged party to accept an option that would otherwise be unacceptable to that person. In fact, since there seems to be no other reason for a person to accept the unacceptable, if a person agreed to terms that he would not have originally found acceptable while the other parties did not, he must have had less bargaining power than them. Showing that there would be no difference in principles chosen even when there is no Veil should be sufficient to establish that the Veil is not necessary in order to eliminate bargaining advantages. However, I will not address this question in this paper. Instead, I will focus on some features of bargaining situations which are determinants of bargaining advantage and show that in the initial choice situation without the Veil, the configuration of those features does not confer a bargaining advantage.As mentioned earlier, the Veil of Ignorance blocks information about the parties preferences, wealth and other markers of social position. It also blocks information about what fraction of society possesses those characteristics. This raises two concerns pertaining to bargaining power. The first concern is that if the party is aware of the various markers of social position, he would strongly prefer those conceptions that advantaged him greatly even at the expense of the less fortunate. The party would then be unwilling to compromise and agree to a lesser but fairer share. This could result in that party getting his way more often than the other. This would presumably be an indication of a bargaining advantage. Alternatively, if all parties were so intransigent, they may not end up agreeing to any conception of justice. The Veil of Ignorance is thus aimed at preventing these outcomes. However, it is unclear if this particular concern is one that pertains to having a bargaining advantage. After all, it seems plausible that there could be a bargaining situation in which the parties of equal bargaining power have different preferred outcomes, but one party desires his favoured option more strongly than the other party does hers. Let me illustrate with the following example:John and Mary are both shopping for tomatoes and they both come across the last undamaged tomato in the supermarket. They both need that tomato for the recipe that they plan to cook. If neither of them gets the tomato they will both be equally badly off. They have the option of bargaining with each other for the tomato. If neither of them wishes to bargain, they will fight over the tomato, damage it and neither of them will receive the tomato. They both have more than adequate resources to bring to bear in bargaining for the tomato. It is also the case that there is no other unclaimed undamaged tomato in the vicinity. It is the case that Mary likes tomatoes more than John. Mary, per the above hypothesis will be more intransigent than John and thus more likely to get her way when they bargain. Yet, it would be counterintuitive to suppose that Mary had more bargaining power than John just because she desired the tomato more than John. Assuming that my intuitions about bargaining power are widely shared, bargaining power is not the only factor which affects the likelihood of getting ones way in a bargain even if it is sufficient to increasing the likelihood of such happening, all other factors being equal,. Thus, even if knowing ones own position made it such that some parties were more likely to get their preferred option, this does not occur in a way which confers a bargaining advantage on any party.The second concern is that if there are many more members of society who have a particular conception of the good or preference, parties, knowing that they vastly outnumber people with other preferences will allow them to force their preference onto others and perhaps end up forcing those others to accept conceptions that are otherwise unacceptable to them. However, the threat of coalitions amassing bargaining power is misplaced for a number of reasons. A coalition can influence an outcome if and only if there is some mechanism by which adding more people to a given coalition reduces the incentive to oppose the coalition or reduces the ability of the opposition to successfully block the larger coalitions preferences. These conditions, while being present in many normal situations involving coalitions, are not present in the initial choice situation. Indeed, even in more feudal or aristocratic systems, the ruler will have to gain the support of nobles and land owners who are sufficiently powerful, that they can subdue the opposing coalition by force of arms and can force or threaten them into capitulating to terms. In this case, a larger coalition poses a more credible threat and thus reduces the chances of successful opposition. This decreases the expected utility of opposing that coalition. Notice, however, that the success of that coalition depends on the use of coercive power. The winning coalition is able to win only because they have more coercive power than the opposition. However, in the initial choice situation, the parties have no way of coercing one another. Since the choice situation is purely hypothetical, there is no possibility of a person carrying out any threat that the party representing him made. Moreover, it would be trivially easy to simply disallow inter-partite coercion. Contrariwise, in democratic regimes, coalitions are successful because in addition to an existing political apparatus capable of bringing to bear coercion on others, there is an antecedent rule accepted by everyone which gives political power to the winning coalition. However, the parties in the Original Position (and likewise in the choice situation without the Veil) are rational and mutually disinterested. They are not specified as accepting any sort of majoritarian norm. One possible reply to the above is that the parties will adopt a majoritarian procedural norm in order to avoid entering the non-agreement situation. However, this cannot be the case. Without the Veil, each party knows all the other parties preferences and is thus able to calculate the outcome of any majoritarian procedure. Thus, a given majoritarian procedure would be acceptable to a given party only if the outcome of that procedure was antecedently acceptable to that party. However, if that outcome was antecedently acceptable, then the only reason the party could be worried about the lack of agreement is if there were other parties who would not accept that conception. However, if other parties would not accept that conception, they would not accept the procedure that would necessarily lead to the selection of that conception. In order for all parties to accept the procedure, they would all have to antecedently accept the conception that the procedure inevitably led to. If they all accepted that conception, then they would not be concerned that no conception could be agreed to, since they knew that there was a conception that everyone accepted. Therefore, there would be no need to adopt the majoritarian procedure.Are there any other factors that would affect bargaining advantage? According to Trebilcock, The real measure of market power is not whether a supplier presents his terms on a take-it-or-leave basis but whether the consumer, if he decides to leave it has available to him a workably competitive range of alternative sources of supply. (Trebilcock 1976, pp364-365)This picks out the central determinant of bargaining power: The best alternative to negotiated agreement (BATNA). According to Fisher, Ury and Patton, the better a persons BATNA, the better her negotiating power. The reason for this advantage is that this power depends on how attractive the option of not reaching an agreement is to each party in a bargain (Fisher et al 1991, p. 52). There are two significant ways in which a difference in BATNA can confer a bargaining advantage. The first pertains to the availability of alternative agreements and the second pertains to the share of goods a person has or can expect to have if the deal falls through. The first aspect is ordinarily understood to be the primary component of BATNA. If a person has many other alternative opportunities to bargain, then he has little incentive to accept a bad deal offered by any one party. To take one extreme example, suppose that in a given town there is only one employer but many prospective employees. In this situation, said employer has one job opening. The prospective employees are at the mercy of the sole employer because the employer only needs to make an offer good enough to attract a small percentage of the candidates. His offer can therefore be bad enough that most people would not ordinarily accept it. However, if the prospective employees needed a job, they would have to accept whatever offer they got and in addition refrain from insisting on favourable terms for themselves.However, the description of the initial choice situation straightforwardly precludes any differences in BATNA due to one party having more opportunities to bargain than another. Since the initial agreement must be made with all the available parties, there is no set of possible parties who are not part of the current agreement and who could be available for forming an alternative agreement with. Even if the parties could try again if they do not come to an agreement the first time, all the parties have the same number of attempts. Moreover, it is not clear if additional attempts could count as genuine alternatives since the parties involved would be the same. Even if this could be considered a genuine alternative, all parties have the same number of alternatives. The expected utility of the BATNA that could accrue due to availability of alternatives is the same for everyone. As a consequence, another aspect of BATNA plays a larger role in generating bargaining power in the initial choice situation. This aspect pertains to the amount of resources a person has if no agreement is made. As an illustration: Consider the case where a rich music production executive is making a deal with a poor, starving unknown musician over royalties. The executive, in virtue of the wealth that he can fall back on, is less willing, all else equal, to revise the offer he makes to one that is more favourable. The musician, on the other hand, would be less willing to hold out. His resources can only stretch for so long and since his current standard of living is so poor, he has a greater incentive to alleviate that condition to any degree. This would include accepting a deal which would raise his standard of living by some significant amount but which would end up very nearly enslaving him. In the initial choice situation, this is translated as the outcome that the parties can expect if they fail to come to an agreement. If, given a correct description of the consequences of not coming to an agreement, all parties have the same utility under said description, this aspect of BATNA can be said to be equalised for them.One anticipated objection to the argument I am making here is that the agreement in the initial choice situation is not a bargain in the ordinary sense. Correspondingly, the sense in which parties in a choice situation without the Veil would have a bargaining advantage is not the ordinary one either. However, this objection is mistaken because it too undermines Rawlss argument for the Veil of Ignorance. The intuitive connection between procedural fairness and a lack of bargaining advantage rests on the ordinary understanding of the concept. If the Veil is required in order to prevent some other thing which is not what we would normally understand as a bargaining advantage but is merely termed so, it is not clear that a choice situation with that thing is not procedurally fair. The strength of Rawlss argument rests on the intuitive connection between fairness and our ordinary understanding of bargaining advantages. Rawlsians cannot have it both ways. Either there is a commonsense intuition about fairness and bargaining advantage that we all share and which we can use to ground our theorising about justice, or our intuitions about fairness and bargaining advantages are irrelevant. If the former, Rawlss argument would be unsuccessful since there is no bargaining advantage even without the Veil. If the latter, then all this talk about fairness and bargaining advantages is severely misleading at best and incoherent at worst.Best Alternative To Negotiated AgreementAs mentioned earlier, in order to show that the BATNA is the same for all parties, I must specify some appropriate description of the consequences for the people the parties represent should they fail to come to an agreement. While Rawls states that the parties are motivated to agree on a set of principles of justice, Rawls says little about the significance of non-agreement in the initial choice situation. One interpretation of this is that it is not possible for the parties to fail to agree on a set of principles. Thus, there need not be any description of the consequences of failing to agree. However, this cannot be the case. It is clearly conceivable that parties in the Original Position may reject all of the options available to them. In fact, this would happen if all available options treated at least one representative person unacceptably badly. Since it is conceivable that parties in the Original Position would not choose any conception of justice, it is logically possible that no conception of justice would be agreed to. Therefore, it is the case that a conception of justice would be agreed to in the Original Position only if all parties preferred that conception to not agreeing to any conception of justice. This in turn could only happen if the utility of agreeing to that conception was larger than the utility of not coming to any agreement. It is also the case that there can only be a utility value for not coming to an agreement if there was some definite description of the non-agreement point, that is, the consequences the parties may face if they fail to make an agreement.One possible description of the non-agreement point that is relevant to the justification of the Veil is the status quo. In the status quo option, if no agreement is made in the initial choice situation, everyone gets what they currently have. It is the possibility of the status quo option that seems to give us reason to favour a Veil of Ignorance that hides information about peoples circumstances. The disquiet here is that parties representing those who are currently well off have little or no incentive to agree to a conception of justice which might require them to give up some of their wealth. This would cause them to be intransigent in making reasonable concessions to those who are unfairly disadvantaged by the current rules. The Veil of Ignorance hides information about ones current social position and thus increases the incentive for the parties to negotiate. Failure to come to an agreement might cause a party to end up in an unacceptably bad position. Thus, if the status quo is the appropriate description of the non-agreement point, without the Veil, the parties BATNA will be different. In order to show that the BATNA is the same, I will show that the status quo is not an appropriate description of the non-agreement point. In order to do this, I will appeal to the justification of using hypothetical choice situations in general. If descriptions like the status quo are ruled out by considerations that justify hypothetical agreement arguments more generally, then such descriptions of the non-agreement point are not justified.What justifies a hypothetical agreement is its modelling of the reasons people bring to bear when accepting or rejecting a conception of justice. The hypothetical agreement would model those reasons poorly if the parties could come to an agreement even if no principles were acceptable to all free and equal persons in a pluralistic society. In such a case, the fact that some principles are agreed to in the hypothetical choice situation does not tell us if any principles, and if so which ones, are acceptable to all free and equal persons in a pluralistic society. The principles chosen in an initial choice situation would be the principles of justice whatever they turned out to be, if and only if, the set up of the initial choice situation was a reformulation of an argument for those principles. If the initial choice situation is indeed such a reformulation, then, since the principles chosen would be a function of the extent to which people can successfully pursue their highest order interests, the successful pursuit of said interests can be said to stand as reasons in favour of a given conception of justice. In fact, the initial choice situation could not be justified unless the highest order interests were all (and the only reasons) in favour of a given conception of justice. Moreover, the choice situation can count as a reformulation of the argument, if and only if, the strength of the preference a party had for a given conception of justice was proportional to the reasons pertaining to the person represented by a party, on net, in favour of a conception of justice. Given the way I have spelled out what a persons reasons for a conception of justice are, those reasons can be equated with the extent to which she could successfully pursue her highest order interests under that conception. A person who has a lot of her highest order interests fulfilled under a conception of justice has, all else equal, a lot of reasons for that conception of justice. A conception of justice thus consists of terms of cooperation which provide some payoff in terms of the fulfilment of a persons highest order interests. It would be inappropriate to claim that a person had reason to engage in a given scheme of social cooperation if her payoff under that scheme was no higher than her payoff if no social cooperation had taken place, given that these gains form the basis for engaging in such social cooperation. Where there is no gain relative to what one could get on ones own, there is no reason to engage in social cooperation. The reasons one has for that conception are thus the payoff she gets under that conception less the payoff she would get when there is no social cooperation. In a bargaining situation, if the BATNA exceeds a given option, that party will not agree to that option since walking away is preferable to agreeing. This makes it the case that the strength of the preference for an option can be nothing other than the difference in payoffs between agreeing to that option and not agreeing to anything. If the strength of a persons reasons for a conception is to be proportional to the strength of the corresponding parties preference for that option, a persons gains from social cooperation must be made proportional to the strength of her partys preference. This can only happen if the consequence the parties must face when they fail to agree is the situation where there is no social cooperation. If on the other hand, the non-agreement point was the status quo, the strength of the preference for a conception would be proportional to the strength of the reasons for that conception less the strength of the reasons for the status quo. Since the status quo can exhibit at least some degree of morally appropriate social cooperation, the strength of the preference for that conception would not be proportional to the strength of the reasons. This disqualifies the status quo as well as any other description which involves some amount of social cooperation from being the description of the non-agreement point.This complete absence of social cooperation and institutions is akin to Hobbes state of nature where there is a perpetual war of all against all. The key point in evaluating this counterfactual is to imagine people behaving as if they were not motivated to behave in ways that was required by a conception of justice. The idea is that people are ordinarily motivated by personal affection and a sense of morality to act in ways that conform to most reasonable accounts of justice. If we are to evaluate the extent to which a given set of moral rules contributes to a persons highest order interests, the relevant contrast should be with a situation where people are not ordinarily motivated to act as if they are constrained by morality.It seems to be a home truth that most if not all of the advantages we have in life are the product of ours and other peoples developed talents. Developing our talents requires, at the minimum, non-interference and in at least some cases positive assistance from others. For instance, accumulating wealth requires cooperation with others for extended periods of time. If one wishes to sell some widget that she has made, she requires other people to honour their agreement to pay for the widget. In order for other people to be willing to purchase the widget and not merely take it by force, they require that the seller honour the agreement to hand over the product once she has been paid. All these require norms, which as stipulated, people lack the effective desire to abide by. Since there are no norms regulating the conduct between persons, no one can expect non-interference let alone positive assistance from others. Even the family and clan cannot be relied upon. The family and clan are basic social institutions which impose duties on its members. In the state of nature, it is stipulated that people lack the effective motivation to perform such duties. This makes long term planning as well as the development of ones latent talents impossible. Hence, everyone is unacceptably badly off. There might be some differences between people who are differently capable of being self sufficient. However, these differences are so small compared to what can be gained by social cooperation as to be negligible. When this is the case, everyones BATNA is the same.ConclusionI have thus shown that there is no difference in BATNA between the parties even in the choice situation without the Veil. The above account should clarify some of the ways in which knowledge of ones position does not confer a bargaining advantage. If it turns out that there is no mechanism by which knowledge of ones position confers a bargaining advantage in the initial choice situation, then the Veil would not be necessary to eliminate bargaining advantages. Even if other arguments for the Veil of Ignorance are successful, the above exercise serves to clear away one of those which are not. This would cut away some of the theoretical bloat in Rawlss theory even if it leaves untouched some of its more important conclusions. This latter goal is important if we think that we should not just believe things which are justified, but believe them based on the reasons that justify them and not for any other ones.ReferencesDahl, Robert A, 1957, The Concept of Power, Behavioral Science, Volume 2, Issue 3, pp. 201215Dworkin, Ronald, 1973, The Original Position, The University of Chicago Law Review, Vol. 40, No. 3 (Spring), pp. 500-533Fisher, Roger; Ury, William; and Patton, Bruce; 1991, Getting to Yes: Negotiating an Agreement without giving in, Random House Business BooksFreeman, Samuel, 2007, Rawls, RoutlegeGauthier, David, 1978, Social Choice and Distributive Justice, Philosophia, Vol. 7, No. 2, pp. 239-253Harsanyi, John C, 1975, Can the Maximin Principle Serve as a Basis for Morality? A critique of John Rawlss Theory, The American Political Science Review, Vol. 69, No. 2, pp. 594-606Rawls, John, 1974-1975, The Independence of Moral Theory, Proceedings and Addresses of the American Philosophical Association, Vol. 48, pp. 5-22Rawls, John, 1993, Political Liberalism, Columbia University PressRawls, John, 1999, A Theory of Justice: Revised Edition, Cambridge, Massachusetts: The Belknap Press of Harvard University PressRawls, John, ed. Erin Kelly, 2001, Justice as Fairness: A Restatement, Cambridge, Massachusetts: The Belknap Press of Harvard University PressScanlon, T. M, 1982, Chapter 5: Contractualism and Utilitarianism in Utilitarianism and Beyond ed. Amartya Sen and Bernard Williams pp. 103-128, Cambridge University PressStark, Cynthia A, 2000, Hypothetical Consent and Justification, The Journal of Philosophy, Vol. 97, No. 6 (Jun), pp. 313-334Trebilcock, M J, 1976, The Doctrine of Inequality of Bargaining Power: Post-Benthamite Economics in the House of Lords, The University of Toronto Law Journal, Vol. 26, No. 4, pp. 359-385Weber, Max, 1915, Tr. A M Henderson and Talcott Parsons, 1947, The Theory of Social and Economic Organisation, Oxford University Press2