Justice_ What's the Right Thing to Do_ - Michael Sandel [71]
Despite our tendency to read consent into every moral claim, it is hard to make sense of our moral lives without acknowledging the independent weight of reciprocity. Consider a marriage contract. Suppose I discover, after twenty years of faithfulness on my part, that my wife has been seeing another man. I would have two different grounds for moral outrage. One invokes consent: “But we had an agreement. You made a vow. You broke your promise.” The second would invoke reciprocity: “But I’ve been so faithful for my part. Surely I deserve better than this. This is no way to repay my loyalty.” And so on. The second complaint makes no reference to consent, and does not require it. It would be morally plausible even if we never exchanged marital vows, but lived together as partners for all those years.
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 pressured 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 contracts are not self-sufficient moral instruments. It always makes sense to ask, “But is it fair, what they have agreed to?”
But imagine a contract among parties who were equal in power and knowledge, rather than unequal; who were identically situated, not differently situated. And imagine that the object of this contract was not plumbing or any ordinary deal, but the principles to govern our lives together, to assign our rights and duties as citizens. A contract like this, among parties like these, would leave no room for coercion or deception or other unfair advantages. Its terms would be just, whatever they were, by virtue of their agreement alone.
If you can imagine a contract like this, you have arrived at Rawls’s idea of a hypothetical agreement in an initial situation of equality. The veil of ignorance ensures the equality of power and knowledge that the original position requires. By ensuring that no one knows his or her place in society, his strengths or weaknesses, his values or ends, the veil of ignorance ensures that no one can take advantage, even unwittingly, of a favorable bargaining position.
If a knowledge of particulars is allowed, then the outcome is biased by arbitrary contingencies… If the original position is to yield agreements that are just, the parties must be fairly situated and treated equally as moral persons. The arbitrariness of the world must be corrected for by adjusting the circumstances of the initial contract situation.10
The irony is that a hypothetical agreement behind a veil of ignorance is not a pale form of an actual contract and so a morally weaker thing; it’s a pure form of an actual contract, and so a morally more powerful thing.
Two Principles of Justice
Suppose Rawls is right: The way to think about justice is to ask what principles we would choose in an original position of equality, behind a veil of ignorance. What principles would emerge?
According to Rawls, we wouldn’t choose utilitarianism. Behind the veil of ignorance, we don’t know where we will wind up in society, but we do