JOHN RAWLS --- a continuation

  WHEN CONSENT IS NOT ESSENTIAL : HUME'S HOUSE &
                          THE SQUEEGEE MEN IN N. Y. 


   This kind of case 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," and "one of the most mysterious and incomprehensible operations that can possibly be imagined." Years later, Hume had an experience that put to the test his rejection of consent as the basis of obligation. 
   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 up on the grounds that he hadn't consented. He hadn't hired the contractor. The case went to court. Te contractor acknowledged that Hume hadn't consented. But the house needed the repairs, and he performed them. 
   Hume thought this was a bad argument. The contractor's claim was simply "that the work was necessary to be done," Hume told the court. But this is "no good answer, because by the same rule he may go through every house in Edinburgh, and do what he thinks proper to be done, without the landlord's consent . . . and give the same reason for what he did, that the work was necessary and that the house was the better of it." But this, Hume maintained, was "a doctrine quite new. . . and altogether untenable." 
   When it came to his house repairs, Hume didn't like a purely benefit-based theory of obligation. But his defense failed, and the court ordered him to pay. 
   The idea that an obligation to repay a benefit can arise without  consent is morally plausible in the case of Hume's house. But it can easily slide into high - pressure sales tactics and other abuses. In the 1980s and early 1990s, "squeegee men" became an intimidating presence on New York City streets. Equipped with a squeegee and a bucket of water, they would descend upon a car stopped at a red light, wash the windshield (usually without asking the driver's permission) , and then ask for payment. They operated on the benefit-based theory of obligation invoked by Hume's contractor. But in the absence of consent, the line between performing a service and panhandling often blurred. Mayor Rudy Giuliani decided to crack down on the squeegee men and ordered the police to arrest them. 

 BENEFIT OR CONSENT : SAM'S MOBILE AUTO REPAIR

   Here is another example of the confusion that can arise when the consent-based and benefit-based aspects of obligation are not clearly distinguished. Many years ago, when Professor Michael Sandel (Harvard philosophy professor) was a graduate student, he drove across the country with some friends. They stopped at a rest stop in Hammond, Indiana, and went into a convenience store. When they returned to their car, it wouldn't start. None of them knew jackshit about car repair. As they wondered what to do, a van pulled up beside them. On the side was a sign that said, "Sam's Mobile Repair Van." Out of the van came a man, presumably Sam. 
   He approached them 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 ?" Professor Sandel asked him. Sam didn't answer Prof Sandel directly, but started poking around under the steering column. Prof Sandel was unsure what to do. He looked to his 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, Prof Sandel 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 ?"
   Prof Sandel said, "That's a different question."
   The professor didn't go into the distinction between consent-based and benefit-based obligations. Somehow he didn'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 the car while he was poking around, Prof Sandel have owed him the fifty dollars. Prof Sandel agrees. But the reason Prof Sandel would have owed him the money is that he would have performed a benefit ---namely, fixing the car. He inferred that, because Prof Sandel would have owed him, Prof S must (implicitly) have agreed to hire him. But this inference is a mistake. It wrongly assumes that whenever 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 the car, Prof S would have owed him in the name of reciprocity. Simply thanking him and driving off would have been unfair. But this doesn't infer that Prof S hired him. 
   When Professor  Sandel tells this story to his students, most agree that, under the circumstances, Prof S didn't owe Sam the fifty dollars. But many hold this view for reasons different from their prof's. They argue that, since Prof S didn't explicitly hire Sam, Prof S owed him nothing ---and would have owed him nothing even if he had fixed the car. Any payment would have been an act of generosity---a gratuity, not a duty. So they come to their prof's defense, not by embracing an expansive view of obligation, but by asserting a stringent view of consent.
   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(or woman). 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 have 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 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 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 ?" 

   For Yaweh's Sake, Read Everything That Follows With
                     The Greatest Care and Scrutiny


   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 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. (All that underscoring is VOS's, not John Rawls's.) 

   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.