Justice_ What's the Right Thing to Do_ - Michael Sandel [69]
When Consent Is Not Enough: Baseball Cards and the Leaky Toilet
Consider two cases that show that consent alone is not enough: When my two sons were young, they collected baseball cards and traded them with each other. The older son knew more about the players and the value of the cards. He sometimes offered his younger brother trades that were unfair—two utility infielders, say, for Ken Griffey, Jr. So I instituted a rule that no trade was complete until I had approved it. You may think this was paternalistic, which it was. (That’s what paternalism is for.) In circumstances like this one, voluntary exchanges can clearly be unfair.
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 installments. The scheme was discovered when she went to the bank to withdraw the $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.4
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.
It might be replied that the toilet repair scam was not a truly voluntary contract, but a kind of exploitation, in which an unscrupulous plumber took advantage of an elderly woman who didn’t know any better. I don’t know the details of the case, but let’s assume for the sake of argument that the plumber did not coerce the woman, and that she was of sound mind (though ill informed about the price of plumbing) when she agreed to the deal. The fact that the agreement was voluntary by no means ensures that it involves the exchange of equal or comparable benefits.
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.
When Consent Is Not Essential: Hume’s House and the Squeegee Men
The kind of case I have in mind once confronted David Hume, the eighteenth-century Scottish moral philosopher. When he was young, Hume wrote a scathing critique of Locke’s idea of a social contract. He called it a “philosophical fiction which never had and never could have any reality,”5 and “one of the most mysterious and incomprehensible operations that can possibly be imagined.”6 Years later, Hume had an experience that put to the test his rejection of consent as the basis of obligation.7
Hume owned 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. He hired a contractor to do the work, without consulting Hume. The contractor made the repairs and sent the bill to Hume. Hume refused to pay on the grounds that he hadn’t consented. He hadn’t hired the contractor. The case went to court. The contractor acknowledged that Hume hadn’t consented. But the house needed the repairs, and he performed them.
Hume thought this was a bad argument.