JOHN RAWLS----continued

                  THE MORAL LIMITS OF CONTRACTS

   To appreciate the moral force of Rawls's hypothetical contract, it helps to notice the moral limits of actual contracts. We sometimes assume that, when two people make a deal, the terms of their agreement must be fair. We assume, in other words, that contracts justify the terms that they produce. But they don't --- at least not on their own. Actual contracts are not self-sufficient moral instruments. The mere fact that you and I make a deal is not enough to make it fair. Of any actual contract, it can always be asked, "Is it fair, what they agreed to?" To answer this question, we can't simply point to the agreement itself ; we need some independent standard of fairness. 

   Where could such a standard come from ? Perhaps, you might think, from a  bigger, prior contract --- a constitution, for example. But constitutions are open to the same challenge as other agreements. The fact that a constitution is ratified by the people does not prove that its provisions are just. Consider the U.S. Constitution of 1787. Despite its many virtues, it was marred by its acceptance of slavery, a defect that persisted until after the Civil War. The fact that the Constitution was agreed to ---by the delegates in Philadelphia and then by the states --- was not enough to make it just.
   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 convention. 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 Carleone 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 when 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 pounds of shrimp, and I will pay you $1,000. You harvest and deliver the shrimp, 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 shrimp 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 catch the shrimp while relying on the expectations that I would buy them. You could say I'm obliged to pay by virtue of the efforts you've made on my behalf. (Lawyers might talk about "detrimental reliance.") 
   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 shrimp, I call you back and say, "I've changed my mind. I don't want any shrimp." 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 ? 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, even in the absence of a contract. This points to the moral limits of consent : In some cases, consent may not be enough to create a morally binding obligation ; in others, it may not be necessary. 

                  WHEN CONSENT IS NOT ENOUGH 

   Consider two cases that show that consent alone is not enough : When a friend's 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 my friend instituted a rule that no trade was complete until my friend 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 be unfair. 

   Some years ago, there was a newspaper story 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. 
   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 obligated to pay the outrageous sum. 
   It might be argued 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. 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 act that the agreement was voluntary by no means ensures that it involves the exchange of equal or comparable benefits. 
   So far the argument has been that consent is not a sufficient condition of moral condition ; a lopsided deal may fall so far short of mutual benefit that even its voluntary character can't redeem it. Now here's a further, more provocative claim : Consent is not a necessary condition of moral obligation. If the mutual benefit is clear enough, the moral claim of reciprocity may hold even without an act of consent.