Justice_ What's the Right Thing to Do_ - Michael Sandel [66]
A second distinctive feature of Kant’s political theory is that it derives justice and rights from a social contract—but a social contract with a puzzling twist. Earlier contract thinkers, including Locke, argued that legitimate government arises from a social contract among men and women who, at one time or another, decide among themselves on the principles that will govern their collective life. Kant sees the contract differently. Although legitimate government must be based on an original contract, “we need by no means assume that this contract… actually exists as a fact, for it cannot possibly be so.” Kant maintains that the original contract is not actual but imaginary.46
Why derive a just constitution from an imaginary contract rather than a real one? One reason is practical: It’s often hard to prove historically, in the distant history of nations, that any social contract ever took place. A second reason is philosophical: Moral principles can’t be derived from empirical facts alone. Just as the moral law can’t rest on the interests or desires of individuals, principles of justice can’t rest on the interests or desires of a community. The mere fact that a group of people in the past agreed to a constitution is not enough to make that constitution just.
What kind of imaginary contract could possibly avoid this problem? Kant simply calls it “an idea of reason, which nonetheless has undoubted practical reality; for it can oblige every legislator to frame his laws in such a way that they could have been produced by the united will of a whole nation,” and obligate each citizen “as if he had consented.” Kant concludes that this imaginary act of collective consent “is the test of the rightfulness of every public law.”47
Kant didn’t tell us what this imaginary contract would look like or what principles of justice it would produce. Almost two centuries later, an American political philosopher, John Rawls, would try to answer these questions.
6. THE CASE FOR EQUALITY / JOHN RAWLS
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 traveling on the highway, implicitly consents to the law, and is bound by it.1 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.2
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? We would probably find it difficult to agree. Different people would favor different principles, reflecting their various interests, moral and religious beliefs, and social positions. Some people are rich and some are poor; some are powerful and well connected; others, less so. Some are members of racial, ethnic, or religious minorities; others, not. We might settle on a compromise. But even the compromise would likely reflect the superior bargaining