Editor’s Note: Professor Sandel teaches a course on Justice at Harvard University and his popular course is available for viewing online in a 12-part series at this link: http://tinyurl.com/OnJustice. For more information on Michael J. Sandel and his works, please visit http://www.justiceharvard.org.
Contractual Obligations v. The Meaning of Justice
An excerpt from Harvard Professor Michael J. Sandel’s Justice: What’s the Right Thing to Do? (Farr, Straus and Giroux, New York: 2009, pp. 140-150)
Most of us Americans never signed a social contract. In fact, the only people in the United States who have actually agreed to abide by the Constitution (public officials aside) are naturalized citizens—immigrants who have taken an oath of allegiance as a condition of their citizenship. The rest of us are never required, or even asked, to give our consent. So why are we obligated to obey the law? And how can we say that our government rests on the consent of the governed?
John Locke says we’ve given tacit consent. Anyone who enjoys the benefits of a government, even by travelling on the highway, implicitly consents to the law, and is bound by it. But tacit consent is a pale form of the real thing. It is hard to see how just passing through town is morally akin to ratifying the Constitution.
Immanuel Kant appeals to hypothetical consent. A law is just if it could have been agreed to by the public as a whole. But this, too, is a puzzling alternative to an actual social contract. How can a hypothetical agreement do the moral work of a real one?
John Rawls (1921-2002), an American political philosopher, offers an illuminating answer to this question. In A Theory of Justice (1971), he argues that the way to think about justice is to ask what principles we would agree to in an initial situation of equality.
Rawls reasons as follows: Suppose we gathered, just as we are, to choose the principles to govern our collective life—to write a social contract. What principles would we choose? […]
The Moral Limits of Contracts
To appreciate the moral force of Rawl’s hypothetical contract, it helps to notice the moral limits of actual contracts. We sometimes assume that, when two people make a deal, the terms of their agreement must be fair. We assume, in other words, that contracts justify the terms that they produce. But they don’t—at least not on their own. The mere fact that you and I make a deal is not enough to make it fair. Of any actual contract, it can always be asked, “Is it fair, what they agreed to?” To answer this question, we can’t simply point to the agreement itself; we need some independent standard of fairness. […]
To those who believe that morality begins and ends with consent, this may seem a jarring claim. But it is not all that controversial. We often question the fairness of the deals people make. And we are familiar with the contingencies that can lead to bad deals: one of the parties may be a better negotiator, or have a stronger bargaining position, or know more about the value of the things being exchanged. The famous words of Don Corleone in The Godfather, “I’m gonna make him an offer he can’t refuse,” suggest (in extreme form) the pressure that hovers, to some degree, over most negotiations.
To recognize that contracts do not confer fairness on the terms they produce doesn’t mean we should violate our agreements whenever we please. We may be obligated to fulfil even an unfair bargain, at least up to a point. Consent matters, even if it’s not all there is to justice. But it is less decisive than we sometimes think. We often confuse the moral work of consent with other sources of obligation.
Suppose we make a deal: You will bring me a hundred lobsters, and I will pay you $1,000. You harvest and deliver the lobsters, I eat them and enjoy them, but refuse to pay. You say I owe you the money. Why, I ask? You might point to our agreement, but you might also point to the benefit I’ve enjoyed. You could very well say that I have an obligation to repay the benefit that, thanks to you, I’ve enjoyed.
Now suppose we make the same deal, but this time, after you’ve gone to the work of catching the lobsters and bringing them to my doorstep, I change my mind. I don’t want them after all. You still try to collect. I say, “I don’t owe you anything. This time, I haven’t benefited.” At this point, you might point to our agreement, but you might also point to the hard work you’ve done to trap the lobsters while relying on the expectation that I would buy them. You could say that I’m obligated to pay by virtue of the efforts you’ve made on my behalf.
Now let’s see if we can imagine a case where the obligation rests on consent alone—without the added moral weight of repaying a benefit or compensating you for the work you did on my behalf. This time, we make the same deal, but moments later, before you’ve spent any time gathering lobsters, I call you back and say, “I’ve changed my mind. I don’t want any lobsters.” Do I still owe you the $1,000? Do you say, “A deal is a deal,” and insist that my act of consent creates an obligation even without benefit or reliance?
Legal thinkers have debated this question for a long time. Can consent create an obligation on its own, or is some element of benefit or reliance also required? This debate tells us something about the morality of contracts that we often overlook: actual contracts carry moral weight insofar as they realize two ideals—autonomy and reciprocity.
As voluntary acts, contracts express our autonomy; the obligations they create carry weight because they are self-imposed—we take them freely upon ourselves. As instruments of mutual benefit, contracts draw on the ideal of reciprocity; the obligation to fulfil them arises from the obligation to repay others for the benefits they provide us.
In practice, these ideals—autonomy and reciprocity—are imperfectly realized. Some agreements, though voluntary, are not mutually beneficial. And sometimes we can be obligated to repay a benefit simply on grounds of reciprocity, even in the absence of a contract. This points to the moral limits of consent: In some cases, consent may not be enough to create a morally binding obligation; in others, it may not be necessary.
When Consent is Not Enough: Baseball Cards and the Leaky Toilet
Some years ago, I read a newspaper article about a more extreme case: An elderly widow in Chicago had a leaky toilet in her apartment. She hired a contractor to fix it—for $50,000. She signed a contract that required her to pay $25,000 as a down payment, and the remainder in instalments. The scheme was discovered when she went to the bank to withdraw $25,000. The teller asked why she needed such a large withdrawal, and the woman replied that she had to pay the plumber. The teller contacted the police, who arrested the unscrupulous contractor for fraud.
All but the most ardent contractarians would concede that the $50,000 toilet repair was egregiously unfair—despite the fact that two willing parties agreed to it. This case illustrates two points about the moral limits of contracts: First, the fact of an agreement does not guarantee the fairness of the agreement. Second, consent is not enough to create a binding moral claim. Far from an instrument of mutual benefit, this contract mocks the ideal of reciprocity. This explains, I think, why few people would say that the elderly woman was morally obliged to pay the outrageous sum.
I’ve argued so far that consent is not a sufficient condition of moral obligation; a lopsided deal may fall so far short of mutual benefit that even its voluntary character can’t redeem it. I’d now like to offer a further, more provocative claim: Consent is not a necessary condition of moral obligation. If the mutual benefit is clear enough, the moral claims of reciprocity may hold even without an act of consent.
Benefit or Consent? Sam’s Mobile Auto Repair
…Many years ago, when I was a graduate student, I drove across the country with some friends. We stopped at a rest stop in Hammond, Indiana, and went into a convenience store. When we returned to our car, it wouldn’t start. None of us knew much about car repair. As we wondered what to do, a van pulled up beside us. On the side was a sign that said, “Sam’s Mobile Repair Van.” Out of the van came a man, presumably Sam.
He approached us and asked if he could help. “Here’s how I work,” he explained. “I charge fifty dollars an hour. If I fix your car in five minutes, you will owe me fifty dollars. If I work on your car for an hour and can’t fix it, you will still owe me fifty dollars.”
“What are the odds you’ll be able to fix the car?” I asked. He didn’t answer me directly, but started poking around under the steering column. I was unsure what to do. I looked to my friends to see what they thought. After a short time, the man emerged from under the steering column and said, “Well, there’s nothing wrong with the ignition system, but you still have forty-five minutes left. Do you want me to look under the hood?”
“Wait a minute,” I said. “I haven’t hired you. We haven’t made any agreement.” The man became very angry and said, “Do you mean to say that if I had fixed your car just now while I was looking under the steering column you wouldn’t have paid me?”
I said, “That’s a different question.”
I didn’t go into the distinction between consent-based and benefit-based obligations. Somehow I don’t think it would have helped. But the contretemps with Sam the repairman highlights a common confusion about consent. Sam believed that if he had fixed my car while he was poking around, I would have owed him fifty dollars. I agree. But the reason I would have owed him the money is that he could have performed a benefit—namely, fixing my car. He inferred that, because I would have owed him, I must (implicitly) have agreed to hire him. But this inference is a mistake. It wrongly assumes that wherever there is an obligation, there must have been an agreement—some act of consent. It overlooks the possibility that obligation can arise without consent. If Sam had fixed my car, I would have owed him in the name of reciprocity. Simply thanking him and driving off would have been unfair. But this doesn’t imply that I hired him.
Imagining the Perfect Contract
What do these various misadventures tell us about the morality of contracts? Contracts derive their moral force from two different ideals, autonomy and reciprocity. But most actual contracts fall short of these ideals. If I’m up against someone with a superior bargaining position, my agreement may not be wholly voluntary, but pressure or, in the extreme case, coerced. If I’m negotiating with someone with greater knowledge of the things we are exchanging, the deal may not be mutually beneficial. In the extreme case, I may be defrauded or deceived.
In real life, persons are situated differently. This means that differences in bargaining power and knowledge are always possible. And as long as this is true, the fact of an agreement does not, by itself, guarantee the fairness of an agreement. This is why actual contract are not self-sufficient moral instruments. It always makes sense to ask, “But is it fair, what they have agreed to?”