Justice_ What's the Right Thing to Do_ - Michael Sandel [68]
It might be argued that this defect can be traced to a flaw in the consent. African American slaves were not included in the Constitutional Convention, nor were women, who didn’t win the right to vote until more than a century later. It is certainly possible that a more representative convention would have produced a more just constitution. But that is a matter of speculation. No actual social contract or constitutional convention, however representative, is guaranteed to produce fair terms of social cooperation.
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 fulfill 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 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 any 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?3 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 fulfill 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,