Justice: What's The Right Thing To Do? Episode 07: "A LESSON IN LYING"

SPEAKER: Funding for this program is provided by-- Additional funding provided by-- [MUSIC PLAYING] MICHAEL SANDEL: Last time, we began trying to-- we began by trying to navigate our way through Kant's moral theory. Now, fully to make sense of Kant's moral theory and the groundwork requires that we be able to answer three questions. How can duty and autonomy go together?

What's the great dignity in answering to duty? It would seem that these two ideas are opposed-- duty and autonomy. What's Kant's answer to that?

Need someone here to speak up on Kant's behalf. Does he have an answer? Yes, go ahead.

Stand up. AUDIENCE: Kant believes that you only act autonomously when you are pursuing something only in the name of duty and not because of your own circumstances, such as you're only doing something good and moral if you're doing it because of duty and not because of something of your own personal gain. MICHAEL SANDEL: Now, why is that acting-- what's your name?

AUDIENCE: My name is Matt. MICHAEL SANDEL: Matt, why is that acting out of freedom? I hear what you're saying about duty.

AUDIENCE: You choose to accept those moral laws on yourself, and they're not brought on from outside upon onto you. MICHAEL SANDEL: OK, good, because acting out of duty is following a moral law-- AUDIENCE: --that you impose on yourself. MICHAEL SANDEL: --that you impose on yourself.

That's what makes duty compatible with freedom? AUDIENCE: Yeah. MICHAEL SANDEL: OK, that's good, Matt.

That is Kant's answer. That's great. Thank you.

So Kant's answer is it is not insofar as I am subject to the law that I have dignity, but rather, insofar as with regard to that very same law, I'm the author. And I'm subordinated to that law on that grounds that I took it-- as Matt just said, I took it upon myself. I willed that law.

So that's why, for Kant, acting according to duty and acting freely in the sense of autonomously are one in the same. But that raises the question, how many moral laws are there? Because if dignity consists in being governed by a law that I give myself, what's to guarantee that my conscience will be the same as your conscience?

Who has Kant's answer to that? Yes? AUDIENCE: Because a moral law is not contingent upon subjective conditions, it would transcend all particular differences between people and so would be a universal law.

And in this respect, there would only be one moral law, because it would be supreme. MICHAEL SANDEL: That's exactly right. What's your name?

AUDIENCE: Kelly. MICHAEL SANDEL: So, Kelly, Kant believes that if we choose freely out of our own consciences, the moral law, we're guaranteed to come up with one and the same moral law? AUDIENCE: Yes.

MICHAEL SANDEL: And that's because when I choose, it's not me, Michael Sandel, choosing. It's not you, Kelly, choosing for yourself. What is it exactly?

Who's doing the choosing? Who's the subject? Who's the agent who's doing the choosing?

AUDIENCE: Reason. MICHAEL SANDEL: Well, reason. AUDIENCE: Pure reason.

MICHAEL SANDEL: Pure reason. And what you mean by pure reason is what exactly? AUDIENCE: Well, pure reason is, like we were saying before, not subject to any external conditions that may be imposed on it.

MICHAEL SANDEL: Good, that's great. So the reason that does the willing, the reason it governs my will when I will the moral law is the same reason that operates when you choose the moral law for yourself. AUDIENCE: Yes.

MICHAEL SANDEL: And that's why it's possible to act autonomously to choose for myself, for each of us to choose for ourselves as autonomous beings, and for all of us to wind up willing the same moral law, the categorical imperative. But then there is one big and very difficult question left, even if you accept everything that Matt and Kelly have said so far. How is a categorical imperative possible?

How is morality possible? To answer that question, Kant says we need to make a distinction. We need to make a distinction between two standpoints-- two standpoints from which we can make sense of our experience.

Let me try to explain what he means by these two standpoints. As an object of experience, I belong to the sensible world. There, my actions are determined by the laws of nature and by the regularities of cause and effect.

But as a subject of experience, I inhabit an intelligible world. Here, being independent of the laws of nature, I am capable of autonomy, capable of acting according to a law I give myself. Now, Kant says that only from this second standpoint can I regard myself as free, for to be independent of determination by causes in the sensible world is to be free.

If I were wholly an empirical being, as the utilitarians assume, if I were a being wholly and only subject to the deliverances of my senses-- to pain and pleasure and hunger and thirst and appetite-- if that's all there were to humanity, we wouldn't be capable of freedom, Kant reasons, because in that case, every exercise of will would be conditioned by the desire for some object. In that case, all choice would be heteronomous choice, governed by the pursuit of some external end. "When we think of ourselves as free," Kant writes, "we transfer ourselves into the intelligible world as members and recognize the autonomy of the will.

" That's the idea of the two standpoints. So how are categorical imperatives possible? Only because the idea of freedom makes me a member of an intelligible world.

Now, Kant admits we aren't only rational beings. We don't only inhabit the intelligible world, the realm of freedom. If we did-- if we did, then all of our actions would invariably accord with the autonomy of the will.

But precisely because we inhabit simultaneously the two standpoints, the two realms, the realm of freedom and the realm of necessity, precisely because we inhabit both realms, there is always potentially a gap between what we do and what we ought to do, between is and ought. Another way of putting this point-- and this is the point with which Kant concludes the groundwork-- morality is not empirical. Whatever you see in the world, whatever you discover through science can't decide moral questions.

Morality stands at a certain distance from the world, from the empirical world. And that's why no science could deliver moral truth. Now, I want to test Kant's moral theory with the hardest possible case, a case that he raises, the case of the murderer at the door.

Kant says that lying is wrong. We all know that. We've discussed why.

Lying is at odds with the categorical imperative. A French philosopher, Benjamin Constant, wrote an article responding to the groundwork, where he said, this absolute prohibition on lying is wrong. It can't be right.

What if a murderer came to your door looking for your friend who was hiding in your house. And the murderer asked you point blank, is your friend in your house? Constant says it would be crazy to say that the moral thing to do in that case is to tell the truth.

Constant says the murderer certainly doesn't deserve the truth. And Kant wrote a reply. And Kant stuck by his principle that lying even to the murderer at the door is wrong.

And the reason it's wrong, he said, is once you start taking consequences into account to carve out exceptions to the categorical imperative, you've given up the whole moral framework. You've become a consequentialist or maybe a rule utilitarian. But most of you, and most of Kant's readers, think there's something odd and implausible about this answer.

I would like to try to defend Kant on this point. And then I want to see whether you think that my defense is plausible. And I would want to defend him within the spirit of his own account of morality.

Imagine that someone comes to your door. You were asked the question by this murderer. You're hiding your friend.

Is there a way that you could avoid telling a lie without selling out your friend? Does anyone have an idea of how you might be able to do that? Yes?

Stand up. AUDIENCE: I was just going to say, if I were to let my friend in my house to hide in the first place, I'd probably make a plan with them. So I'd be like, hey, I'll tell the murderer you're here, but escape.

And-- [LAUGHTER] That's one of the options mentioned. MICHAEL SANDEL: But I'm not sure that's a Kantian option. You're still lying though.

AUDIENCE: No, because he's in the house. But he won't be. Oh, I see.

[LAUGHTER] MICHAEL SANDEL: All right, good enough. One more try. AUDIENCE: If you just say you don't where he is, because he might not be locked in the closet.

He might have left the closet. You have no clue where he could be. [LAUGHTER] MICHAEL SANDEL: So you would say, I don't know, which wouldn't actually be a lie, because you weren't at that very moment looking in the closet?

AUDIENCE: Exactly. MICHAEL SANDEL: So it would be, strictly speaking, true. AUDIENCE: Yes.

MICHAEL SANDEL: And yet possibly deceiving, misleading. AUDIENCE: But still true. [LAUGHTER] MICHAEL SANDEL: What's your name?

AUDIENCE: John. MICHAEL SANDEL: John. All right.

John has a-- now, John may be on to something. John, you're really are offering us the option of a clever evasion that is, strictly speaking, true. This raises the question whether there is a moral difference between an outright lie and a misleading truth.

From Kant's point of view, there actually is a world of difference between a lie and a misleading truth. Why is that, even though both might have the same consequences? But then remember, Kant doesn't base morality on consequences.

He bases it on formal adherence to the moral law. Now, sometimes in ordinary life, we make exceptions for the general rule against lying with a white lie. What is a white lie?

It's a lie to make-- well, to avoid hurting someone's feelings, for example. It's a lie that we think of as justified by the consequences. Now, Kant could not endorse a white lie.

But perhaps he could endorse a misleading truth. Suppose someone gives you a tie as a gift. And you open the box, and it's just awful.

What do you say? AUDIENCE: Thank you. MICHAEL SANDEL: Thank you?

You could say thank you. But they're waiting to see what you think of it. Or they ask you, what do you think of it?

You could tell a white lie and say, it's beautiful. But that wouldn't be permissible from Kant's point of view. Could you say not a white lie but a misleading truth?

You open the box, and you say, I've never seen a tie like that before? [LAUGHTER] Thank you. AUDIENCE: You shouldn't have.

MICHAEL SANDEL: You shouldn't have. [LAUGHTER] That's good. [LAUGHTER] Can you think of a contemporary political leader who engaged-- you can?

Who are you thinking of? AUDIENCE: Bill Clinton. Remember the whole carefully worded denials in the Monica Lewinsky affair of Bill Clinton?

Now, those denials actually became the subject of very explicit debate and argument during the impeachment hearings. Take a look at the following excerpts from Bill Clinton. Is there something, do you think, morally at stake in the distinction between a lie and a misleading, carefully couched truth?

[VIDEO PLAYBACK] - I want to say one thing to the American people. I want you to listen to me. I'm going to say this again.

I did not have sexual relations with that woman, Ms. Lewinsky. I never told anybody to lie, not a single time, never.

These allegations are false. - Did he lie to the American people when he said "I never had sex with that woman"? - He doesn't believe he did.

And because of that-- - But-- - May I explain, congressman? What he said was, to the American people, that he did not have sexual relations. And I understand you're not going to this, congressman, because you will see it as a hairsplitting evasive answer.

But in his own mind, his definition was not-- - OK, I understand that argument. [END PLAYBACK] [LAUGHTER] MICHAEL SANDEL: All right. So there, you have the exchange.

Now, at the time, you may have thought this was just a legalistic, hairsplitting exchange between a Republican who wanted to impeach Clinton and a lawyer who was trying to defend him. But now, in the light of Kant, do you think there is something morally at stake in the distinction between a lie and an evasion, a true but misleading statement? I'd like to hear from defenders of Kant, people who think there is a distinction.

Are you ready to defend Kant? AUDIENCE: Well, I think when you try to say that lying and misleading truths are the same thing, you're basing it on a consequentialist argument, which is that they achieve the same thing. But the fact of the matter is you told the truth.

And you intended that people would believe what you were saying, which was the truth, which means it is not morally the same as telling a lie and intending that they believe it as the truth, even though it's not true. MICHAEL SANDEL: Good. What's your name?

AUDIENCE: Diana. MICHAEL SANDEL: So, Diana says that Kant has a point here. And it's a point that might even come to the aid of Bill Clinton.

And that is-- well, what about that? Someone over here. AUDIENCE: For Kant, motivation is key.

So if you give to someone because primarily you want to feel good about yourself, Kant would say that has no moral worth. Well, with this, the motivation is the same. It's just to mislead someone.

It's to lie. It's to throw them off the track. And the motivation is the same.

So there should be no difference. MICHAEL SANDEL: OK, good. So here, isn't the motive the same, Diana?

What do you say to this argument that, well, the motive is the same? In both cases, there is the attempt, or at least the hope, that one's pursuer will be misled. AUDIENCE: You could look at it that way, but I think that the fact is that your immediate motive is that they should believe you.

The ultimate consequence of that is that they might be deceived and not find out what was going on. But your immediate motive is that they should believe you because you're telling the truth. MICHAEL SANDEL: May I help a little?

AUDIENCE: Sure. MICHAEL SANDEL: You and Kant. Why don't you say-- and what's your name?

I'm sorry. AUDIENCE: Wesley. MICHAEL SANDEL: Why don't you say to Wesley, it's not exactly the case that the motive in both cases is to mislead.

They're hoping that the person will be misled by the statement "I don't where they are" or "I never had sexual relations. " You're hoping that they will be misled. But in the case where you're telling the truth, your motive is to mislead while at the same time telling the truth and honoring the moral law and staying within the bounds of the categorical imperative, I think Kant's answer would be.

Diana, yes? AUDIENCE: Yes. MICHAEL SANDEL: You like that?

AUDIENCE: I do. MICHAEL SANDEL: OK. So I think Kant's answer would be, unlike a falsehood, unlike a lie, a misleading truth pays a certain homage to duty.

And the homage it pays to duty is what justifies that the work of-- even the work of evasion. Diana, yes? You like?

OK. And so there is something, some element of respect for the dignity of the moral law in the careful evasion because Clinton could have told an outright lie, but he didn't. And so I think Kant's insight here is in the carefully couched but true evasion, there is a kind of homage to the dignity of the moral law that is not present in the outright lie.

And that, Wesley, is part of the motive. It's part of the motive. Yes, I hope he will be misled.

I hope the murderer will run down the road or go to the mall, looking for my friend, instead of the closet. I hope that will be the effect. I can't control that.

I can't control the consequences. But what I can control is standing by and honoring, however I pursue the ends I hope will unfold, to do so in a way that is consistent with respect for the moral law. Wesley, I don't think, is entirely persuaded.

But at least this brings out-- this discussion brings out some of what's at stake, what's morally at stake in Kant's notion of the categorical imperative. [MUSIC PLAYING] [APPLAUSE] AUDIENCE: As long as any effort is involved, I would say that the contract is valid. And it should take effect.

MICHAEL SANDEL: But why? What morally can you point to? AUDIENCE: For example, two people agreed to be married.

And one suddenly calls the other in two minutes, say, I've changed my mind. Does the contract have obligation on both sides? MICHAEL SANDEL: Well, I'm tempted to say no.

[LAUGHTER] AUDIENCE: Fine. [LAUGHTER] MICHAEL SANDEL: Last time, we talked about Kant's categorical imperative. And we considered the way he applied the idea of the categorical imperative to the case of lying.

I want to turn briefly to one other application of Kant's moral theory, and that's his political theory. Now, Kant says that just laws arise from a certain kind of social contract. But this contract, he tells us, is of an exceptional nature.

What makes the contract exceptional is that it's not an actual contract that happens when people come together and try to figure out what the constitution should be. Kant points out that the contract that generates justice is what he calls an idea of reason. It's not an actual contract among actual men and women gathered in a constitutional convention.

Why not? I think Kant's reason is that actual men and women gathered in a real constitutional convention would have different interests, values, aims. And there would also be differences of bargaining power and differences of knowledge among them.

And so the laws that would result from their deliberations wouldn't necessarily be just, wouldn't necessarily conform to principles of right, but would simply reflect the differences of bargaining power, the special interests, the fact that some might more than others about law or about politics. So Kant says, "A contract that generates principles of right is merely an idea of reason, but it has undoubted practical reality because it can oblige every legislator to frame his laws in such a way that they could have been produced by the united will of the whole nation. " So Kant is a contractarian, but he doesn't trace the origin or the rightness of law to any actual social contract.

This gives rise to an obvious question. What is the moral force of a hypothetical contract, a contract that never happened? That's the question we take up today.

But in order to investigate it, we need to turn to a modern philosopher, John Rawls, who worked out, in his book A Theory of Justice, in great detail, an account of a hypothetical agreement as the basis for justice. Rawls's theory of justice, in broad outline, is parallel to Kant's in two important respects. Like Kant, Rawls was a critic of utilitarianism.

"Each person possesses an inviolability founded on justice," Rawls writes, "that even the welfare of society as a whole cannot override. The rights secured by justice are not subject to political bargaining or to the calculus of social interests. " The second respect in which Rawls's theory follows Kant's is on the idea that principles of justice, properly understood, can be derived from a hypothetical social contract, not an actual one.

And Rawls works this out in fascinating detail with the device of what he calls the veil of ignorance. The way to arrive at the rights, the basic rights that we must respect, the basic framework of rights and duties is to imagine that we were gathered together trying to choose the principles to govern our collective lives without knowing certain important, particular facts about ourselves. That's the idea of the veil of ignorance.

Now, what would happen if we gathered together, just as we are here, and tried to come up with principles of justice to govern our collective life? There would be a cacophony of proposals, of suggestions reflecting people's different interests. Some are strong.

Some are weak. Some are rich. Some are poor.

So Rawls says, imagine instead that we are gathered in an original position of equality. And what assures the equality is the veil of ignorance. Imagine that we are all behind a veil of ignorance which temporarily abstracts from or brackets, hides from us who in particular we are-- our race, our class, our place in society, our strengths, our weaknesses, whether we're healthy or unhealthy.

Then, and only then, Rawls says, the principles we would agree to would be principles of justice. That's how the hypothetical contract works. What is the moral force of this kind of hypothetical agreement?

Is it stronger or weaker than a real agreement, an actual social contract? In order to answer that question, we have to look hard at the moral force of actual contracts. There are really two questions here.

One of them is, how do actual contracts bind me or obligate me? Question number one. And question number two, how do actual real-life contracts justify the terms that they produce?

If You think about it, this is in line with Rawls and Kant. The answer to the second question, how do actual contracts justify the terms that they produce? The answer is they don't, at least not on their own.

Actual contracts are not self-sufficient moral instruments of any actual contract or agreement. It can always be asked, is it fair what they agreed to? The fact of the agreement never guarantees the fairness of the agreement.

And we know this by looking at our own constitutional convention. It produced a constitution that permitted slavery to persist. It was agreed to.

It was an actual contract. But that doesn't establish that the laws agreed to, all of them, were just. Well, then what is the moral force of actual contracts?

To the extent that they bind us, they obligate in two ways. Maybe here it would help to take an example. We make an agreement, a commercial agreement.

I promise to pay you $100 if you will go harvest and bring to me 100 lobsters. We make a deal. You go out and harvest them and bring them to me.

I eat the lobsters, serve them to my friends. And then I don't pay. And you say, but you're obligated.

And I say, why? What do you say? Well, we had a deal.

And you benefited. You ate all those lobsters. Well, that's a pretty strong argument.

It's an argument that depends, though, on the fact that I benefited from your labor. So contracts sometimes bind us insofar as they are instruments of mutual benefit. I ate the lobsters.

I owe you the $100 for having gathered them. But suppose now take a second case. We make this deal.

I'll pay you $100 for 100 lobsters. And two minutes later, before you've gone to any work, I call you back and say I've changed my mind. Now there's no benefit.

There's no work on your part. So there's no element of reciprocal exchange. What about in that case?

Do I still owe you merely in virtue of the fact that we had an agreement? Who says, those of you who say yes, I still owe you? Why?

OK. Stand up. Why do I owe you?

I call you back. After two minutes, you haven't done any work. AUDIENCE: I think I spent the time and effort in drafting this contract with you.

And also, I have emotional expectation that I'll go through the work. MICHAEL SANDEL: So you took time to draft the contract. But we did it very quickly.

We just chatted on the phone. AUDIENCE: That wouldn't be a formal form of contract though. MICHAEL SANDEL: Well, I faxed it to you.

It only took a minute. [LAUGHTER] AUDIENCE: As long as any effort is involved, I would say that the contract is valid, and it should take effect. MICHAEL SANDEL: But why?

What morally can you point to that obligates me? I admit that I agreed. But you didn't go to any work.

I didn't enjoy any benefit. AUDIENCE: Because we might mentally go through all the work of harvesting the lobsters. MICHAEL SANDEL: You mentally went through the work of harvesting the lobsters.

That's nothing, is it? It's not much. Is it worth $100 that you were imagining yourself going and collecting lobster?

AUDIENCE: It may not worth $100. But it may be worth something to some people. MICHAEL SANDEL: All right, I'll give you $1 for it, for that.

So you're still pointing-- what's interesting, you're still pointing to the reciprocal dimension of contracts. You did or imagined that you did or looked forward to doing something on my behalf. AUDIENCE: For example, two people agree to be married.

And one suddenly calls the other in two minutes, say, I've changed my mind. Does the contract have obligation on both sides? [LAUGHTER] Nobody has paid any work, or nobody has benefited yet.

[LAUGHTER] MICHAEL SANDEL: Well, I'm tempted to say no. [LAUGHTER] AUDIENCE: Fine. [LAUGHTER] MICHAEL SANDEL: All right.

What's your name? AUDIENCE: Julian. MICHAEL SANDEL: Thank you, Julian.

All right. That was good. Now, is there anyone who has-- who agrees with Julian that I still owe the money for any other reason now?

Go ahead. Stand up. AUDIENCE: I think if you back out, it cheapens the institution of contracts.

MICHAEL SANDEL: Good. But why? Why does it?

AUDIENCE: Well, I think this is kind of Kantian. But there's almost a certain intrinsic value in being able to make contracts and having-- knowing that people will expect that you'll go through with that. MICHAEL SANDEL: Good.

It would cheapen the whole idea of contracts, which has to do with taking an obligation on myself. Is that the idea? AUDIENCE: Yeah, I think so.

MICHAEL SANDEL: What's your name? AUDIENCE: Adam. MICHAEL SANDEL: So Adam points instead not to any reciprocal benefit or mutual exchange but to the mere fact of the agreement itself.

We see here there are really two different ways in which actual contracts generate obligations. One has to do with the act of consent as a voluntary act. Adam said this was a Kantian idea.

And I think he's right because it points to the ideal of autonomy. When I make a contract, the obligation is one that is self-imposed. And that carries a certain moral weight independent of other considerations.

And then there's a second element of the moral force of contract arguments, which has to do with the sense in which actual contracts are instruments of mutual benefit. And this points toward the ideal of reciprocity, that obligation can arise. I can have an obligation to you insofar as you do something for me.

Now, we're investigating the moral force and also the moral limits of actual contracts. And here, I would like to advance an argument about the moral limits of actual contracts, now that we know what moral ingredients do the work when people come together and say, I will do this if you do that. I would like to argue first that the fact that two people agree to some exchange does not mean that the terms of their agreement are fair.

When my two sons were young, they collected baseball cards and traded them. There was a two-year age-- there is a two-year age difference between them. And so I had to institute a rule about the trades that no trade was complete until I had approved it.

[LAUGHTER] And the reason is obvious. The older one knew more about the value of these cards and so would take advantage of the younger one. So that's why I had to review it, to make sure that the agreement-- that the agreements were fair.

Now, you may say, well, this is paternalism. [LAUGHTER] Of course it was. That's what paternalism is for, that kind of thing.

So what does this show? What is the baseball card example show? The fact of an agreement is not sufficient to establish the fairness of the terms.

I read some years ago of a case in Chicago. There was an elderly widow, an 84-year-old widow named Rose, who had a problem in her apartment with a leaky toilet. And she signed a contract with an unscrupulous contractor who offered to repair her leaky toilet in exchange for $50,000.

But she had agreed. She was of sound mind, maybe terribly naive and unfamiliar with the price of plumbing. She had made this agreement.

Luckily, it was discovered. She went to the bank and asked to withdraw $25,000. And the teller said, what do you need all of that money for?

And she said, well, I have a leaky toilet. [LAUGHTER] And the teller called the authorities. And they discovered this unscrupulous contractor.

Now, I suspect that even the most ardent contractarians in the room will agree that the fact of this woman's agreement is not a sufficient condition of the agreement being fair. Is there anyone who will dispute that? No one?

Am I missing anyone? Alex, where are you? [LAUGHTER] Where are you?

So maybe there's no dispute then to my first claim that an actual agreement is not necessary to there-- it's not a sufficient condition of there being an obligation. I want to now make a stronger, maybe more controversial, claim about the moral limits of actual contracts, that a contract or an act of consent is not only not sufficient. But it's not even a necessary condition of there being an obligation.

And the idea here is that if there is reciprocity, if there is an exchange, then a receipt of benefits-- there can be an obligation even without an act of consent. One great example of this involves the 18th century philosopher, the Scottish moral philosopher David Hume. When he was young, Hume wrote a book arguing against Locke's idea of an original social contract.

Hume heaped scorn on this contractarian idea. He said it was a philosophical fiction, one of the most mysterious and incomprehensible operations that can possibly be imagined, this idea of the social contract. Many years later, when he was 62 years old, Hume had an experience that put to the test his rejection of consent as the basis of obligation.

Hume had 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 and a paint job.

He hired a contractor to do the work. The painter did the work and sent the bill to Hume. Hume refused to pay on the grounds that he hadn't consented.

He hadn't hired the painter. The case went to court. The contractor said it's true Hume didn't agree.

But the house needed a painting, and I gave it a very good one. [LAUGHTER] Hume thought this was a bad argument. The only argument this painter makes is that the work was necessary to be done.

But this is no good answer, because by the same rule, this painter 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, that the work was necessary and that the house was the better for it. So Hume didn't like the theory that there could be obligation to repay a benefit without consent. But the defense failed, and he had to pay.

Let me give you one other example of the distinction between the consent-based aspect of obligations and the benefit-based aspect and how they're sometimes run together. This is based on a personal experience some years ago. I was driving across the country with some friends.

And we found ourselves in the middle of nowhere, in Hammond, Indiana. We stopped at a rest stop and got out of the car. And when we came back, our car wouldn't start.

None of us knew much about cars. We didn't really know what to do until we noticed that in the parking lot driving up next to us was a van. And on the side, it said Sam's mobile repair van.

And out of the van came a man, presumably Sam. And he came up to us, and he said, can I help you? Here's how I work.

I work by the hour for $50 an hour. If I fix your car in 5 minutes, you owe me the $50. And if I work on your car for an hour and can't fix it, you'll still owe me the $50.

So I said, well, what is the likelihood that you'll be able to fix the car in-- he didn't answer. But he did start looking under the-- poking around under the steering column. Short time passed.

He emerged from under the steering column and said, there's nothing wrong with the ignition system, but you still have 45 minutes left. Should I look under the hood? I said, wait a minute.

I haven't hired you. We haven't made any agreement. And then he became very angry.

And he said, do you mean to say that if I had fixed your car while I was working under the steering column that you wouldn't have paid me? And I said, that's a different question. [LAUGHTER] I didn't go into the distinction between consent-based and benefit-based obligations.

But I think he had the intuition that if he had fixed it while he was poking around that I would have owed him the $50. I shared that intuition. I would have.

But he inferred from that-- this was the fallacy in the reasoning that I think lay behind his anger. He inferred from that fact that therefore, implicitly, we had an agreement. But that, it seems to me, is a mistake.

It's a mistake that fails to recognize the distinction between these two different aspects of contract arguments. Yes, I agree I would have owed him $50 if he had repaired my car during that time, not because we had made any agreement-- we hadn't-- but simply because if he had fixed my car, he would have conferred on me a benefit for which I would have owed him in the name of reciprocity and fairness. So here's another example of the distinction between these two different kinds of arguments, these two different aspects of the morality of contract.

Now, I want to hear, how many think I was in the right in that case? That's reassuring. Is there anyone who thinks I was in the wrong?

[LAUGHTER] Anyone? You do? Why?

Go ahead. AUDIENCE: Isn't the problem with this is that any benefit is inherently subjectively defined? I mean, what if you wanted your car broken and he had fixed it?

MICHAEL SANDEL: No, I didn't want it broken. AUDIENCE: Yeah, in this case. MICHAEL SANDEL: Who would?

Who would? AUDIENCE: I don't know, someone. I mean, what if Hume-- what if the painter had painted his house blue but he hated the color blue?

I mean, you have to define what your benefit is before the person does it. MICHAEL SANDEL: Well, all right. So what would you conclude from that, though, for the larger issue here?

Would you conclude that therefore consent is a necessary condition of there being an obligation? AUDIENCE: Absolutely. MICHAEL SANDEL: You would?

What's your name? AUDIENCE: Nate. MICHAEL SANDEL: Because otherwise, how can we know, Nate says, whether there has been an exchange of equivalent or fair benefits, unless we have the subjective valuation, which may vary one person to the next, of the situation?

All right. That's a fair challenge. Let me put to you one other example in order to test the relation between these two aspects of the morality of contract.

Suppose I get married. And suppose I discover that after 20 years of faithfulness on my part, every year on our trip across the country, my wife has been seeing another man, a man with a van on the Indiana toll road. This part is completely made up, by the way.

[LAUGHTER] Wouldn't I have two different reasons for moral outrage? One reason could be we had an agreement. She broke her promise, referring to the fact of her consent.

But I would also have a second ground for moral outrage, having nothing to do with the contract as such. But I've been so faithful for my part. Surely, I deserve better than this.

Is this what I'm due in return, and so on? So that would point to the element of reciprocity. Each reason has an independent moral force.

That's the general point. And you can see this if you imagine a slight variation on the marriage case. Suppose we hadn't been married for 20 years.

Suppose we were just married and that the betrayal occurred on the way to our honeymoon in Hammond, Indiana, after the contract has been made but before there is any history of performance on my part. [LAUGHTER] Performance of the contract, I mean. [LAUGHTER] I would still-- [APPLAUSE] Oh, come on.

Come on. I would still-- with Julian, I'd be able to say, but you promised. You promised.

That would isolate the pure element of consent, where there were no benefit. Never mind. You get the idea.

[LAUGHTER] Here's the main idea. Actual contracts have their moral force in virtue of two distinguishable ideals-- autonomy and reciprocity. But in real life, every actual contract may fall short, may fail to realize the ideals that give contracts their moral force in the first place.

The ideal of autonomy may not be realized, because there may be a difference in the bargaining power of the parties. The ideal of reciprocity may not be realized, because there may be a difference of knowledge between the parties. And so they may misidentify what really counts as having equivalent value.

Now, suppose you were to imagine a contract where the ideals of autonomy and of reciprocity were not subject to contingency but were guaranteed to be realized. What kind of contract would that have to be? Imagine a contract among parties who were equal in power and knowledge rather than unequal, who were identically situated rather than differently situated.

That is the idea behind Rawls's claim, that the way to think about justice is from the standpoint of a hypothetical contract, behind a veil of ignorance that creates a condition of equality by ruling out, or enabling us to forget for the moment, the differences in power and knowledge that would-- that could, even in principle, lead to unfair results. This is why for content for Rawls, a hypothetical contract among equals is the only way to think about principles of justice. What will those principles be?

That's the question we'll turn to next time. [APPLAUSE] [MUSIC PLAYING] SPEAKER: Don't miss the chance to interact online with other viewers of Justice. Join the conversation.

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