This content explores the philosophical basis of justice and obligation, contrasting actual social contracts with hypothetical ones, and arguing that true justice and moral obligation stem from principles derived from hypothetical agreements among equals, rather than from actual, potentially flawed, agreements.
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last time we talked about Khan's
categorical imperative and we considered
the way he applied the idea of the
categorical imperative to the case of
lying I want to turn briefly to one
other application of Khan's moral theory
and that's his political theory now Kant
says that just laws arise from a certain
kind of social contract but this
contract he tells us is of an
exceptional nature what makes the
contract exceptional is that it's not an
actual contract that happens when people
come together and try to figure out what
the Constitution should be Kant points
out that the contract that generates
justice is what he calls an idea of
reason it's not an actual contract among
actual men and women gathered in a
constitutional convention why not I
think Kahn's reason is that actual men
and women gathered in real
constitutional convention would have
different interests values aims and
there would also be differences of
bargaining power and differences of
knowledge among them and so the laws
that would result from their
deliberations wouldn't necessarily be
just wouldn't necessarily conform to
principles of right but would simply
reflect the differences of bargaining
power the special interests the fact
that some might know more than others
about law or about politics
so Kant says a contract that generates
principles of right is merely an idea of
reason but it has undoubted practical
reality because it can oblige every
legislator to frame his laws in such a
way that they could have been produced
by the United will of the whole nation
so Kant is a contract Arian but he
doesn't trace the origin or the
rightness of law to any actual social
contract this gives rise to an obvious
question what is the moral force of a
hypothetical contract a contract that
never happened that's the question we
take up today but in order to
investigate it we need to turn to a
modern philosopher John Rawls who worked
out in his book a theory of justice in
great detail an account of a
hypothetical agreement as the basis for
justice well the theory of justice in
broad outline is parallel to Kant's in
two important respects like Kant Rawls
was a critic of utilitarianism each
person possesses and inviolability
founded on justice Rawls writes that
even the welfare of society as a whole
cannot override the rights secured by
justice are not subject to political
bargaining or to the calculus of social
interests the second respect in which
Rawls's theory follows Kant's is on the
idea that principles of justice properly
understood can be derived from a
hypothetical social contract not an
actual one
and walls works this out in fascinating
detail with the device of what he calls
the veil of ignorance the way to arrive
at the right the basic rights that we
must respect the basic framework of
Rights and duties is to imagine that we
were gathered together trying to choose
the principles to govern our collective
lives without knowing certain important
particular facts about ourselves that's
the idea of the veil of ignorance now
what would happen if we gather together
just as we are here and tried to come up
with principles of justice to govern our
collective life there would be a
cacophony of proposals of suggestions
reflecting people's different interests
some are strong some are weak some are
rich some are poor so Rawls says imagine
instead that we are gathered in an
original position of equality and what
assures the equality is the veil of
ignorance imagine that we are all behind
abstracts from or brackets hides from us
who in particular we are our race our
class our place in society our strengths
our weaknesses whether we're healthy or
unhealthy then and only then it all says
the principles we would agree to would
be principles of justice that's how the
what is the moral force of this kind of
hypothetical agreement is it stronger or
weaker than a real agreement an actual
social contract in order to answer that
question we have to look hard at the
moral force of actual contracts there
are really two questions here one of
them is how do actual contracts bind me
or obligate me question number one in
question number two how do actual
real-life contracts justify the terms
that they produce if you think about it
this is in line with walls and conte the
answer to the second question how do
actual contracts justified the terms
that they produce the answer is they
don't at least not on their own actual
contracts are not self sufficient moral
instruments of any actual contract or
agreement it can always be asked is it
fair what they agreed to the fact of the
agreement never guarantees the fairness
of the agreement and we know this by
looking at our own Constitutional Convention
Convention
it produced a constitution that
permitted slavery to persist it was
agreed to it was an actual contract but
that doesn't establish that the laws
agreed to all of them were just well
then what is the moral force of actual
contracts to the extent that they bind
us they obligate in two ways
suppose maybe here it would help to take
an example we make an agreement
a commercial agreement I promise to pay
you $100 if you will go harvest and
bring to me a hundred lobsters we make a
deal you go out and harvest them and
bring them to me I eat the lobsters
serve them to my friends and then I
don't pay and you say but you're
obligated and I say why what do you say
well we had a deal and you benefited you
ate all those lobsters well that's a
pretty strong argument it's an argument
that depends though and the fact that I
benefited from your labor
so contracts sometimes bind us in so far
as they are instruments of mutual
benefit I ate the lobsters I owe you the
hundred dollars for having gathered them
but suppose now take a second case we
make this deal I'll pay you $100 for 100
lobsters in two minutes later before
you've gone to any work I call you back
and say I've changed my mind now there's
no benefit there's no work on your part
so there's no element of reciprocal
exchange what about in that case do I
still owe you merely in virtue of the
fact that we had an agreement who says
those of you who say yes I still owe you
why okay stand up why do I owe you I
call you back after two minutes you
haven't done any work I think I spent a
time and effort in drafting this
contract with you and also I have
emotional expectation that I'll go
through the work
so you took time to draft the contract
but we did it very quickly we just
chatted on the phone
that wouldn't be a formal form of
contract though
well I faxed it to you it only took a
minute as long as any effort is involved
I would say that the contract is valid
and it should take effect but why what
was what morally can you point to that
obligates me I admit that I agreed but
you didn't go to any work I didn't enjoy
any benefit because when I mentally go
through all the work of harvesting the
lobsters you mentally went through the
work of harvesting the lobsters
that's nothing is it it's not much is it
worth $100 that you were imagining
yourself going and collecting up it may
not worth a hundred dollars but it may
worth something to some people all right
I'll give you a buck for it for that but I
I
so you're still pointing what's
interesting you're still pointing to the
reciprocal dimension of contracts you
did or imagine that you did or look
forward to doing something I might be
here for example the two people agree to
be married and one suddenly caused the
other than two minutes say I changed my
mind does the contract have obligation
work or nobody has benefited yet well
all right what's your name
Julian Thank You Julian all right that
was good
now is there anyone who has who agrees
with Julian that I still owe the money
for any other reason now I have go ahead
stand up I think if you back out it sort
of cheapens the institution of contracts
good but why why does it well I think
this is kind of con tin but there's you
almost there's a certain intrinsic value
in being able to make contracts and
having you know knowing that people will
expect that you'll go through with that
good there is some it would cheapen the
whole idea of contracts which has to do
with taking an obligation on myself is
that is that the idea
yeah thank you what's your name I don't
know so Adam points instead not to any
reciprocal benefit or mutual exchange
but to the mere fact of the agreement
itself we see here there are really two
different ways in which actual contracts
generate obligations one has to do with
the act of consent as a voluntary act
and it points adam said this was a
continent idea and I think he's right
because it points to the ideal of
autonomy when I make a contract the
obligation is one that is self-imposed
and that carries a certain moral weight
independent of other considerations and
then there's a second element of the
moral force of contract arguments which
has to do with the sense in which actual
contracts are instruments of mutual
benefit and this points toward the ideal
of reciprocity that obligation can arise
I can have an obligation to you insofar
now we're investigating
moral force and also the moral limits of
actual contracts and here I would like
to advance an argument about the moral
limits of actual contracts now that we
know what moral ingredients do the work
when people come together and say I will
do this if you do that I would like to
argue first that the fact that two
people agreed to some exchange does not
mean that the terms of their agreement
are fair when my two sons were young
they collected baseball cards and traded
them and one was there was a two-year
age there is a two-year age difference
between them and so I had to institute a
rule about the trades that no trade was
complete until I had approved it and the
reason is obvious the older one knew
more about the value of these cards and
so would take advantage of the younger
one so that's why I had to review it to
make sure that the agreement that the
agreements were fair now you may say
well this is paternalism of course it was
was
that's what paternalism is for that kind
of thing so what does this show what is
the baseball card example show the fact
of an agreement is not sufficient to
establish the fairness of the terms I
read some years ago of a case in Chicago
there was an elderly widow an 84 year
old widow named Rose who had a problem
in her apartment with a leaky toilet and
she signed a contract with an
unscrupulous contractor who
offered to repair her leaky toilet in
exchange for $50,000 but she had agreed
she was of sound mind may be terribly
naive and unfamiliar with the price of
plumbing she had made this agreement
luckily it was discovered she went to
the bank and asked to withdraw twenty
five thousand dollars and the teller
said what do you need all of that money
for and she said well I have a leaky
toilet and the teller called authorities
and they discovered this unscrupulous
contractor now I suspect that even the
most ardent contract Aryans in the in
the room will agree that the fact of
this woman's agreement is not a
sufficient condition of the agreement
being fair is there anyone who will
dispute that no one am I missing anyone
Alex where are you so maybe there's no
dispute then - my first claim that the
that an actual agreement is not
necessary - there is not a sufficient
condition of there being an obligation I
want to now make us a stronger maybe
more controversial claim about the moral
contract or an act of consent is not
only not sufficient but it's not even a
necessary condition of there being an
obligation and the idea here is that if
there is reciprocity if there is an
exchange then a receipt of benefits
there can be an obligation even without
an act of consent one great example of this
involves the 18th century philosopher
the Scottish moral philosopher David
Hume when he was young
humor owned a book arguing against
Locke's idea of an original social
contract Hume heap scorn on this
contract carrion idea he said it was a
philosophical fiction one of the most
mysterious and incomprehensible
operations that can possibly be imagined
this idea of the social contract many
years later when he was 62 years old
Hume had an experience that put to the
test his rejection of consent as the
basis of obligation Hume had a house in
Edinburgh he rented it to his friend
James Boswell who in turn sublet it to a
subtenant the subtenant decided that the
house needed some repairs and a paint job
job
he hired a contractor to do the work the
painter did the work and sent the bill
to Hume Hume refused to pay on the
grounds that he hadn't consented
he hadn't hired the painter the case
went to court the contractor said it's
true Hume didn't agree but the house
needed a painting and I gave it a very
good one
Hume thought this was a bad argument
the only argument this painter makes is
that the work was necessary to be done
but this is no good answer because by
the same rule this painter may go
through every house in Edinburgh and do
what he thinks proper to be done without
the landlord's consent and give the same
reason that the work was necessary and
that the house was the better for it so
Hume didn't like the theory that there
could be obligation to repay a benefit
without consent
but the defense failed and he had to pay
let me give you one other example of the
distinction between the consent based
aspect of obligations and the benefit
based aspect and how they're sometimes
run together this is
based on a personal experience some
years ago I was driving across the
country with some friends and we found
ourselves in the middle of nowhere in
Hammond Indiana we stopped at a rest
stop and got out of the car and when we
came back our car wouldn't start none of
us knew much about cars we didn't really
know what to do until we noticed that in
the parking lot driving up next to us
was the van and on the side it said
Sam's mobile repair van and out of the
van came a man presumably Sam and he
came up to us us and he said can I help
you here's how I work I work by the hour
for $50 an hour if I fix your car in
five minutes you owe me the $50 and if I
work on your car for an hour and can't
fix it you'll still owe me the $50 so I
said well what is the likelihood that
you'll be able to fix the car him he
didn't answer but he did start looking
under the poking around under the
steering column short time passed he
emerged from under the steering column
and said there's nothing wrong with the
ignition system but you still have 45
minutes left should I look under the
hood I said wait a minute I haven't
hired you we haven't made any agreement
and then he became very angry and he
said do you mean to say that if I had
fixed your car while I was working under
the steering column that you wouldn't
have paid me and I said that's a
I didn't I didn't go into the
distinction between consent-based and
benefit based applications but I think
he had the intuition that if he had
fixed it while he was poking around that
I would have owed him the 50 bucks I
shared that intuition I would have but
he inferred from that this was the
fallacy and the reasoning that I think
lay behind his anger he inferred from
that fact that therefore implicitly we
had an agreement but that it seems to me
is a mistake it's a mistake that fails
to recognize the distinction between
these two different aspects of contract
arguments yes I agree I would have owed
him $50 if he had repaired my car during
that time not because we had made any
agreement we hadn't but simply because
if he had fixed my car he would have
conferred on me a benefit for which I
would have owed him in the name of
reciprocity and fairness so here's
another example of the distinction
between these two different kinds of
arguments these two different aspects of
the morality of contract now I want to
hear how many think I was in the right
in that case that's reassuring is there
anyone you do
why go ahead isn't the problem with this
is that any benefit is inherently is
subjectively defined I mean what if you
wanted your car broken and he had fixed
it I mean no I didn't want it broken
yeah I mean what I don't know someone I
mean what if what if Hume you know what
if the painter I painted it has blue but
he hated the color blue I mean you have
to sort of define what your benefit is
before the person does it well all right
so what would you conclude from that
though for the larger issue here would
you conclude that therefore consent is a
necessary condition of there being an
obligation absolutely you would what's
your name need because otherwise how can
we know Nate says whether there has been
an exchange of equivalent or fair
benefits unless we have the subjective
valuation which may vary one person to
the next of the situation all right
that's a fair challenge let me put you
one other example in order to test the
relation between these two aspects of
the morality of contracts suppose I get
married and suppose I discover that
after 20 years of faithfulness on my
part every year on our trip across the
country my wife has been seeing another
man a man with a van on the indiana toll road
road
this part is completely made up by the
way wouldn't I have two different
reasons for moral outrage one reason
could be we had an agreement
she broke her promise referring to the
fact of her consent that I would also
have a second ground for moral outrage
having nothing to do with the contract
as such but I've been so faithful for my
part surely I deserve better than this
is this what I'm doing return and so on
so that would point to the element of reciprocity
reciprocity
each reason has an independent moral
force that's the general point and you
can see this if you imagine a slight
variation on the marriage case suppose
we haven't been married for 20 years
suppose we were just married and that
the betrayal occurred on the way to our
honeymoon in Hammond Indiana after the
contract has been made but before there
performance of the contract I mean
I would still L c'mon I would still with
you Julianne I'd be able to say but you
promised you promised that would isolate
the pure element of consent right where
where there were no benefit nevermind
you get the idea here's the main idea
actual contracts have their moral force
in virtue of two distinguishable ideals
autonomy and reciprocity but in real
life every actual contract may fall
short may fail to realize the ideals
that give contracts their moral force in
the first place the ideal of autonomy
may not be realized because there may be
a difference in the bargaining power of
the parties the ideal of reciprocity may
not be realized because there may be a
difference of knowledge between the
parties and so they may miss identify
what really counts as having having
equivalent value now suppose you were to
imagine a contract where the ideals of
autonomy and of reciprocity we're not
subject to contingency but we're
guaranteed to be realized what kind of
contract would that have to be imagined
a contract among parties who were equal
in power and knowledge rather than
unequal who were identically situated
rather than differently situated that is
the idea behind Rawls is claimed
that the way to think about justice is
from the standpoint of a hypothetical
contract behind a veil of ignorance that
creates a condition of equality by
ruling out or enabling us to forget for
the moment the differences in power and
knowledge that would that could even in
principle lead to unfair results this is
why for a content for Rawls a
hypothetical contract among equals is
the only way to think about principles
of justice what will those principles be
that's the question we'll turn to next time
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