Fair Bargaining; Voluntariness and Reciprocity

A further condition of voluntariness is that an agreement is free from manipulation, if actors are reasonable. There may be some cases where manipulation is justified if actors are unreasonable, but manipulation is unjustified if actors are reasonable. Manipulation, as with coercion and persuasion, is an attempt to influence someone’s behaviour (Rudinow 1978). Where coercion attempts to change behaviour through threats, persuasion does so through the force of better argument. Manipulation, on the other hand, involves changing someone’s behaviour either through deception or by taking advantage of a weakness. The problem with this, as I show below, is that it alters our volition.

There are many different accounts of what manipulation involves and why it is undesirable.³ In general, these accounts share the premise that manipulation involves influencing another actor’s behaviour, although they make different conclusions about how this is done. For Derk Pereboom, manipulation is about controlling an agent’s actions in some way (Pereboom 2001, p. 112). But manipulation isn’t just about controlling someone, in the sense of forcing someone to do something. Rather, for Pereboom, manipulation allows an actor to keep some elements of freedom and independence. For example, if someone manipulates me into joining a club by threatening to reveal something embarrassing about me, then I still have a choice as to whether or not I join. In this respect, event manipulated people maintain some element of independence. Similarly, Robert Kane argues that what is distinct about manipulation is that it influences our behaviour changing our preferences and desires, rather than influencing our actions directly (Kane 1999, p. 64). For Kane, there is at least some sense in which a manipulated person acts according to his or her own free will. With coercion, people act according to the will of another.

But there is more to manipulation than Pereboom and Kane’s accounts. If manipulation just involved influencing behaviour by changing preferences then it would be no different from persuasion. Rather, manipulation alters our preferences through deception, or by taking advantage of a weakness.

Taking deception first, some argue that deception is a necessary feature of manipulation. For Robert Goodin, manipulation necessarily involves misdirection or fraud, because manipulation means that people are unaware that someone is changing their preferences (Goodin 1980, p. 9, 19). If we are aware that someone is trying to manipulate us, then our subsequent actions must come about through our own volition, so people can only be manipulated if they are unaware that it is happening. Of course, manipulation doesn’t necessarily mean that that someone has intentionally misled us. I can manipulate someone if I know that they have an incorrect view but fail to rectify it.⁴ But on this account manipulation does rely on some element of secrecy or deception.

But there is more to manipulation than just this. There are many situations where people are aware that someone is influencing their behaviour by changing their preferences, yet they are not acting according to their volition. In a series of progressive thought experiments, Joel Rudinow argues that deception isn’t the only method through which manipulation operates (Rudinow 1978). Rather, manipulation also involves changing someone’s behaviour by playing on a supposed weakness that they have. In either case, our behaviour is changed in a way that fails to respect our freedom to act as independent agents. People become objects of someone’s will, even if they do not fully lose their independence. As such, manipulation is problematic for autonomy and it is incompatible with fair bargaining. This gives us three conditions for voluntariness. The first two conditions relate to information and rationality, whilst the third relates to manipulation.

Having argued that voluntariness requires three features (information, rationality and lack of manipulation) I now turn to a fourth. In addition to the requirements of bargaining ability and absence of manipulation, voluntariness also requires the absence of coercion. This is because coercion makes us subject to the will of another, thereby removing our ability to act as independent and autonomous agents. Coercion is also problematic for equality and justification in decisions. If someone’s actions are subject to the will of another then they aren’t able to advance their interests in a decision, nor are they able to justify their decisions to one another. Following our discussion from Chap. 4, fair bargains are therefore those that are free from unjustified coercion. I use the term: unjustified coercion because, as I go on to show, there may be some circumstances in which coercion is permissible in fair bargains.

But first it’s necessary to consider what coercion entails. There is a large literature on coercion and it is a concept that is defined in a number of different ways. It’s often thought that coercion involves getting someone to do something that they wouldn’t have otherwise done. But this leaves no distinction between coercion and other forms of influence, such as manipulation and persuasion. As such, most authors argue that coercion involves forcing someone to do something. But there are very different understandings of what this ‘force’ involves.

For Robert Nozick, A coerces B if A communicates a credible threat to B which makes B change his or her actions (Nozick 1974). This means that coercion is based on threats and sanctions, rather than direct force. Coercion is problematic for voluntariness on this account because it removes an actor’s autonomy. But whilst this meets some of our ideas about coercion, it also seems too narrow. Under Nozick’s conception, coercive acts are limited to those that force an actor to do something through a threat. But not all coercive acts involve threats. As I argued in Chap. 4, the fact that an agent has no other reasonable alternatives means that its autonomy can be constrained regardless of whether there is a threat involved. The important point is that something is coercive if it prevents us from making a free choice (Olsaretti 2004, p. 119). This doesn’t just happen if someone threatens us. It also happens if someone forces an agent to take an option, or if people aren’t in a position to reject something. So it’s also necessary to think about cases where there is a direct use of force.

Grant Lamond defines a coercive act as one that meets three conditions: (i) it forces an actor to do something against his or her will, (ii) it subjects the actor to the will of another, and (iii) the coerced actor is unable to do otherwise (Lamond 2000). This third condition is where Lamond’s account diverges from Nozick’s. It is not enough that an actor is threatened; an actor must also be forced to do something. This requires that there are no other reasonable alternatives available to the coerced actor. Coercion is important because it removes free choice; if a reasonable alternative is available, then the actor isn’t forced into an agreement.

A ‘reasonable’ set of alternative options is a sufficient range of options so that an actor can remain autonomous. If an agent’s options are sufficiently limited then they don’t have a choice over whether or not they accept an agreement. Procedural justice means that each actor should be in a position that is sufficiently appealing so that they aren’t forced into accepting an agreement, because they are in a position to reject the proposal. In the bargaining literature, this is sometimes referred to as a Best Alternative To a Negotiated Agreement (BATNA).⁵ Bargainers with good BATNAs are in strong bargaining positions, whereas those with poor BATNAs are at a disadvantage. Procedural justice requires that bargainers have sufficiently good BATNAs so that they are not forced into accepting agreements. For Olsaretti, a sufficiently acceptable alternative is one that does not require us to give up any of our basic needs (Olsaretti 2004). This is one reasonable position to take on this issue. If people are in a situation in which they are unable to meet their most basic needs, then they are not in position to reject certain bargains, agreements or offers. If people are not in a position to reject something, then they have no choice and they are, in effect, forced into accepting the agreement.

But it’s possible to force a person into a proposal even if they are able to meet their basic needs. I can coerce a wealthy person into accepting an agreement if I threaten to reveal incriminating information to the public about her. The wealthy person is able to meet her basic needs, yet she does not have a sufficient BATNA to reject my offer of blackmail: either she accepts the unfavourable agreement, or she faces defamation. Whilst basic needs provide one way for thinking about whether or not an actor has a suitable range of alternative offers, this is only one limited part of what is important. It’s necessary to provide each actor with sufficient options so that each is in a position to reject an offer. Our concern is that there are some offers that people cannot refuse because they are in a position that is so unfavourable that they literally have no choice but to accept what is put in front of them, however unfavourable that offer actually is. Whilst Olsaretti’s definition of a reasonable alternative option is appropriate to a certain extent, it’s also important to think about when an option is so bad that actors have no choice but to accept a proposal.

I’ve argued that someone can be forced into accepting an offer when his or her alternative to the offer is sufficiently bad that the person has no choice but to accept the offer. I propose that there is no way to answer what a sufficiently bad option is without considering individual cases in their own context. That is, in order to think about whether an actor faces a sufficiently bad alternative range of alternative options, it’s necessary to consider whether that actor is in a position to reject a proposal in individual cases. Olsaretti’s definition of basic needs provides one way of doing this, but there is more at stake than just this. Procedural justice requires that each actor has a sufficient range of alternative options to an agreement, yet the only way to determine this is to think about whether an actor is in a position to reject an agreement in individual cases.

It’s worth pointing out that simply having one option on the table does not mean that people do not have a reasonable BATNA. If someone’s current situation is sufficiently acceptable, then they are not forced into accepting an agreement, even if it is a ‘take it or leave it’ offer. Further, ‘take it or leave it’ offers are acceptable, provided that people are already able to meet their basic needs. It’s also worth pointing out that if an actor has a very poor BATNA, then it does not follow that an actor is coerced in a bargain. If I’m offered a way out of an extremely unfavourable situation, then I hardly have a favourable BATNA. But it seems wrong to claim that I’m coerced on this occasion. What is important about having an insufficient BATNA is that actors are not in a position to reject offers that they would otherwise refuse. But this doesn’t mean that having an insufficient BATNA necessarily implies that someone is coerced if they accept an agreement.

In addition to this account of coercion, some authors also emphasise the role of intention for coercion. For Lamond, it is not enough that a coerced actor is forced into doing something. Rather, if A coerces B, then B must be subject to A’s will. This means that coercion involves deliberately imposing a disadvantage on another actor. For Lamond, the fact that one actor intentionally changes the will of another makes it particularly damaging for autonomy. But intention doesn’t play a critical role here. People can be forced into acting in a certain way even if they are not directly subject to the will of another. Whilst intention may give us additional reasons for worrying about coercion, it is unclear why coercion doesn’t involve acts that restrict our autonomy, even if it’s unintended.

Alan Wertheimer offers an alternative account that avoids this problem by leaving intention aside. Wertheimer suggests that coercive arrangements involve two elements: (i) a choice element, whereby people are unable to exercise their free will, and (ii) a proposal element, whereby agreements take advantage of people (Wertheimer 1989, p. 32). The first element suggests that an act is coercive if an agent is unable to exercise his or her free will. The second element implies that an act is coercive if it takes advantage of someone. For Wertheimer, these are the necessary conditions for coercion. A coerces B if A creates a situation in which B has no choice to accept A’s proposal if A acts wrongly in creating B’s situation. This seems to capture our main concerns about coercion, whilst leaving aside the issue of intention. Coercion is important because of its implications for autonomy. But we are not so concerned with autonomy per se; we are concerned acts that affect our autonomy. The important point here is that coercive acts infringe an actor’s independence and autonomy. In this respect, intention doesn’t play a key role and Wertheimer’s account seems more appropriate for our understanding of coercion.

But contrary to Wertheimer’s account, coercion doesn’t necessarily involve taking unfair advantage of anyone. Whilst situations in which people take unfair advantage on one another are important, this is a matter of exploitation, rather than coercion. As I show in the following section, exploitation is a separate matter, and coercion doesn’t necessarily involve taking unfair advantage of someone. This means that we should accept the ‘choice’ element of Wertheimer’s account, whilst leaving aside his ‘proposal’ element.

This leaves us with two necessary conditions for coercion: (i) there are no reasonable alternatives, and (ii) there is a credible threat or forceful action. Given that fair bargains are free from coercion, one necessary condition for fair bargains is that these conditions are not met simultaneously. Some authors suggest that this means that decision-makers should be substantively equal. The only way to avoid coercion, so the argument goes, is to make sure that actors cannot make use of favourable distributions of power and resources (Knight and Johnson 1997, p. 294). But substantive inequalities don’t necessarily lead to coercive decision-making. Substantive equality is very difficult to achieve in multilateral institutions, and radical resource transfers are likely to be unfeasible in practice. Further, there is no reason for thinking that substantive equality is a necessary part of avoiding coercion. To be sure, substantive equality would remove the possibility of coercion here, but this doesn’t mean that substantive symmetries between actors will lead to coercive decision. Rather, it’s necessary to ensure that these asymmetries do not play a part influencing decisions.

Before moving on, it’s worth considering whether coercion or manipulation are ever justified in fair bargains. As I said earlier, if we’re considering bargaining among reasonable actors, then fair bargains are those that are free from coercion and manipulation. But, although there isn’t sufficient room to give this question the full attention it deserves here, coercion and manipulation do seem justified if we’re dealing with unreasonable actors. Unreasonable actors are those that are irrational, or who make extreme claims and proposals. These actors can hold up decision-making and obstruct agreement. Given the need to reach agreement on climate change, there may be some situations where coercion is justified in the UNFCCC. This might involve forcing unreasonable actors to accept an agreement or adopt more reasonable positions, or forcing uncooperative states to participate in, or comply with agreements. Coercion and manipulation can therefore play important roles in the UNFCCC.

Some, such as David Miller, argue that exploitation depends on some defect in consent (Miller 1987). That is, an actor wouldn’t freely enter into an exploitative agreement, so exploitation must conflict with our requirements of voluntariness set out above. On this account, exploitation only arises if an actor is coerced, or if the bargainers have incomplete information, or if some other condition of voluntariness is absent. If this is the case then it isn’t necessary to consider the problem of exploitation at all. If fair bargains are those that meet the requirements of voluntariness, and if exploitation only arises when these are not met, then we’ve already set the conditions for avoiding exploitation.

But this seems a very limited account of exploitation. Whilst it’s possible to imagine situations in which exploitation arises because an actor is coerced or manipulated, it’s also possible to imagine situations in which people are exploited even if they fully consent to agreements.⁶ If I forget my umbrella on a particularly rainy day, then I might think that I’m exploited if the only umbrella shop in town raises its prices to take advantage of my misfortune. But it seems strange to suggest that I don’t consent to the agreement if I choose to buy an umbrella. I could brave the rain instead, and I am certainly not forced into the agreement. This suggests that exploitation doesn’t depend on a defect in consent and a broader account of exploitation is needed than one that only focuses on this feature.

Given that I’ve already specified that fair bargains are those that are free from these issues, I’m particularly interested in cases where people feel that something is wrong even when an agreement is consensual. Further, given that actors only voluntarily enter agreements that are mutually beneficial, I’m concerned with consensual, mutually beneficial exploitation. Some authors, such as Joel Feinberg, say that exploitation cannot arise in consensual, mutually beneficial transactions. Feinberg claims that it is wrong to say that one party gains at another’s expense if a transaction is mutually advantageous (compared to a no-transaction baseline), since both parties benefit from the arrangement (Feinberg 1990