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العدالة (جامعة هارفرد) المحاضرة 14: الاتفاق هو الاتفاق

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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

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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คำบรรยาย YouTube:العدالة (جامعة هارفرد) المحاضرة 14: الاتفاق هو الاتفاق