The Ethics of Deference Part 9 pot

The Problem of Fair Play 151

provides can reasonably assume that persons who can’t yet be consulted about

their willingness to pay would agree if they had the chance.27

Two Kinds of Dissent

The major point of the preceding discussion is that if prior negotiations are

possible in advance of providing benefits (even nonexcludable benefits), we

should always end up in one of the two situations already imagined: Either

there is consent, so that fair play arguments are unnecessary, or there is explicit

dissent by some recipients, creating doubt about why they should have any

duty to pay if, with full knowledge of the dissent, providers (who are now self￾serving intermeddlers) produce the benefits anyway. But the problems with

the paradigm case are serious even if we assume that no possibility of prior

negotiation exists. Though it is somewhat harder to see how this might happen

in the simple two-person case we are considering, it is not entirely implausible.

Mary might think, based on prior conversations about the importance of a

humidifier, that Jim would pay his share if she purchased a humidifier; and it

is easy to imagine that Jim might know that if Mary made such a purchase,

she would not be intending to make him a gift. But there has been no explicit

discussion about actually making the purchase. Once Mary makes the purchase

(not consulting Jim in advance, either because there was no time or because she

reasonably thought it wasn’t necessary), we have the ingredients that explain

how it could happen that neither party could be faulted for the absence of prior

negotiations. Jim has no reason to know that Mary is about to make the purchase,

and Mary has no reason to know that Jim would object if she did.

If all of this is conceded, do we now have a paradigm case for an obligation

of fair play in Jim’s case? We have assumed the following: (1) Jim agrees that

the humidifier is worth its costs to him (and was, in fact, on his shopping list

for tomorrow); (2) he knows that Mary never intended to make him a gift; (3)

he recognizes that Mary was not acting unreasonably or negligently in failing

to ask him first about whether he would pay his share.

To understand what is missing in establishing Jim’s duty, imagine how Jim

might explain to Mary why he doesn’t think he should pay. Most of the fair play

literature assumes that someone in Jim’s situation can make only the unappeal￾ing sort of response that shows he is a free rider, a kind of grasping freeloader,

happily availing himself of benefits just because there is nothing Mary can do

to prevent his doing so. But Jim has another possible explanation, one that is

far more appealing morally than the brute assertion of a willingness to “reap

where one has not sown.” Jim’s explanation for why he thinks he shouldn’t pay

could reflect a different view of the principle that he thinks should be followed

27 Klosko’s definition of “presumptively beneficial” goods nicely fits into this rationale as well.

See footnote 10.

152 part ii: the ethics of deference

in distributing the burdens and benefits of this particular collective good – a

principle that is no less fair than the principle of proportionate payment by all

who benefit that is presupposed by the notion of fair play.

Here is the major problem with the fair play literature. The literature assumes

that the only legitimate grounds for dissent from a beneficial cooperative scheme

is based on subjective disagreements about the value of the benefits – dissenters

object because the benefits aren’t worth it to them. Thus attention is focused on

the benefits condition: If the benefits are subjectively worth it in the relevant

sense, then, we are told, dissent that comes too late (and, as we have seen,

even dissent that comes ex-ante, according to some) is dissent for the wrong

reasons: It is a kind of selfishness, grabbing benefits just because nobody can

now do anything about it. But dissent can also be based on disagreement about

the principle of distribution itself that underlies the fair play idea. What other

distribution principle might one suggest? At least two come to mind. The first

is a lottery. Jim might say that when it comes to making major purchases for the

apartment, he would prefer to draw lots, with the loser bearing the entire cost.

The second distribution principle is what I referred to earlier as a “bluffing”

strategy. “We both want the humidifier, and either of us might pay for it alone

if the other doesn’t agree, so we’ll just see who can hold out longer.”28 There’s

nothing unfair about such a principle; indeed, since it allows either party to win,

it satisfies a generally accepted condition for denying that any obligation to pay

should result.29 Jim may be free riding, but since Mary had the same chance

to end up as the free rider, it is more appropriate to call him a “winning rider.”

This principle, to be sure, risks the possibility that both parties end up worse

off (by suffering dry air longer than either would prefer), a problem that once

again leads back to an enormous collective action literature. But the point is

that there is nothing irrational or immoral about choosing to risk this particular

disutility as long as it is at least offset by the possibility of winning: Depending

on the particular circumstances (and one’s willingness and ability to bluff ), the

expected value of the holding-out strategy could be positive.

So even the best paradigm case remains incomplete. We need to explain

why Jim, if his dissent is in fact based on an honest disagreement about the

appropriate distribution principle, should have an obligation to defer to Mary’s

different fair play principle. Though we are still some way, perhaps, from un￾derstanding the duty of fair play, we have made at least one significant change

in our approach to the issue. In line with the thesis of this study, the fair play

issue, according to the preceding analysis, is better approached by re-presenting

it as a question of why one might have a duty to defer to the normative views

28 By calling this the “bluffing” strategy, I don’t mean to suggest that bluffing is inevitable, but just

that it is permissible. It is possible that one could accept the bluffing principle simply because

it might be a better way of seeing who cares about the humidifier more. 29 See Klosko, Fairness and Obligation, 35 (there is unfairness only if “the advantages of non￾cooperation cannot be extended” [to all]).