Justice 05 Hired Guns? / For Sale: Motherhood 雇枪？/出售母亲
When we ended last time, we were discussing Locke's idea of government by consent and the question arose, "What are the limits on government that even the agreement of the majority can't override?" That was the question we ended with.
We saw in the case of property rights that on Locke's view a democratically elected government has the right to tax people.
It has to be taxation with consent because it does involve the taking of people's property for the common good but it doesn't require the consent of each individual at the time the tax is enacted or collected.
What it does require is a prior act of consent to join the society, to take on the political obligation but once you take on that obligation, you agree to be bound by the majority.
So much for taxation.
But what you may ask, about the right to life?
Can the government conscript people and send them into battle?
And what about the idea that we own ourselves?
Isn't the idea of self-possession violated if the government can, through coercive legislation and enforcement powers, say "You must go risk your life to fight in Iraq
Does the government have the right to do that?
Yes. In fact he says in 139, he says, "What matters is that the political authority or the military authority not be arbitrary, that's what matters." And he gives a wonderful example.
He says "A sergeant, even a sergeant, let alone a general, a sergeant can command a soldier to go right up to a face of a cannon where he is almost sure to die, that the sergeant can do.
The general can condemn the soldier to death for deserting his post or for not obeying even a desperate order.
But with all their power over life and death, what these officers can't do is take a penny of that soldier's money because that has nothing to do with the rightful authority, that would be arbitrary and it would be corrupt." So consent winds up being very powerful in Locke, not consent of the individual to the particular tax or military order, but consent to join the government and to be bound by the majority in the first place.
That's the consent that matters and it matters so powerfully that even the limited government created by the fact that we have an unalienable right to life, liberty, and property, even that limited government is only limited in the sense that it has to govern by generally applicable laws, the rule of law, it can't be arbitrary.
That's Locke.
Well this raises a question about consent.
Why is consent such a powerful moral instrument in creating political authority and the obligation to obey?
Today we begin to investigate the question of consent by looking at a concrete case, the case of military conscription.
Now some people say if we have a fundamental right that arises from the idea that we own ourselves, it's a violation of that right for government to conscript citizens to go fight in wars.
Others disagree.
Others say that's a legitimate power of government, of democratically elected governments, anyhow, and that we have an obligation to obey.
Let's take the case of the United States fighting a war in Iraq
News accounts tells us that the military is having great difficulty meeting its recruitment targets.
Consider three policies that the U.S.
Solution number one: increase the pay and benefits to attract a sufficient number of soldiers.
Option number two: shift to a system of military conscription, have a lottery, and whose ever numbers are drawn, go to fight in Iraq
System number three: outsource, hire what traditionally have been called mercenaries, people around the world who are qualified, able to do the work, able to fight well, and who are willing to do it for the existing wage.
So let's take a quick poll here.
How many favor increasing the pay?
A huge majority.
How many favor going to conscription?
Maybe a dozen people in the room favor conscription.
What about the outsourcing solution?
Okay, so there may be two, three dozen.
During the Civil War, the Union used a combination of conscription and the market system to fill the ranks of the military to fight in the Civil War.
It was a system that began with conscription but if you were drafted and didn't want to serve, you could hire a substitute to take your place and many people did.
You could pay whatever the market required in order to find a substitute, people ran ads in newspapers, in the classified ads offering 93 for a substitute who would go fight the Civil War in their place.
In fact, it's reported that Andrew Carnegie was drafted and hired a substitute to take his place for an amount that was a little less than the amount he spent in the year on fancy cigars.
Now I want to get your views about this Civil War system, call it the hybrid system, conscription but with a buyout provision.
How many think it was a just system?
How many would defend the Civil War system?
Anybody?
Anybody else?
How many think it was unjust?
Most of you don't like the Civil War system, you think it's unjust.
Let's hear an objection.
Why don't you like it?
What's wrong with it? Yes.
Well by paying $300 to be exempt one time around, you're really putting a price on valuing human life and we established earlier, that's really hard to do so they're trying to accomplish something that really isn't feasible.
Good. So paying someone $300 or $500 or $1,000 - You're basically saying that's what their life is worth to you.
That's what their life is worth, it's putting a dollar value on life.
That's good. What's your name?-Liz.
Liz.
Well, who has an answer for Liz.
You defended the Civil War system, what do you say?
If you don't like the price then you have the freedom to not be sold or hired so it's completely up to you.
I don't think it's necessarily putting a specific price on you and if it's done by himself, I don't think there's anything that's really morally wrong with that.
So the person who takes the $500, let's say, he's putting his own price on his life or on the risk of his life and he should have the freedom to choose to do that.
Exactly.
What's your name?- Jason.
Jason. Thank you.
Now we need to hear from another critic of the civil war system. Yes.
It's a kind or coercion almost, people who have lower incomes, for Carnegie he can totally ignore the draft, $300 is an irrelevant in terms of his income but someone of a lower income, they're essentially being coerced to draft, to be drafted, it's probably they're not able to find a replacement.
Tell me your name.
Sam.
Sam. All right so you say, Sam, that when a poor laborer accepts $300 to fight in the Civil War, he is in effect being coerced by that money given his economic circumstances whereas Carnegie can go off, pay the money, and not serve.
Alright. I want to hear someone who has a reply to Sam's argument, that what looks like a free exchange is actually coercive.
Who has an answer to Sam?
Go ahead.
I'd actually agree with him in saying that - You agree with Sam.
I agree with him in saying that it is coercion in the sense that it robs individual of his ability to reason.
Okay, and what's your name?
Raul.
All right. So Raul and Sam agree that what looks like a free exchange, free choice, voluntary act actually involves coercion.
It's profound coercion of the worst kind because it falls so disproportionately upon one segment of the society.
Good. Alright. So Raul and Sam have made a powerful point.
Who would like to reply?
Who has an answer for Sam and Raul?
Go ahead.
I don't think that these drafting systems are really terribly different from all volunteer army sort of recruiting strategies.
The whole idea of having benefits and pay for joining the army is sort of a coercive strategy to get people to join.
It is true that military volunteers come from disproportionately lower economic status and also from certain regions of the country where you can use like patriotism to try and coerce people to feel like it's the right thing to do to volunteer and go over to Iraq
And tell me your name.
Emily.
Alright, Emily says, and Raul you're going to have to reply to this so get ready.
Emily says fair enough, there is a coercive element to the Civil War system when a laborer takes the place of Andrew Carnegie for $500.
Emily concedes that but she says if that troubles you about the Civil War system shouldn't that also trouble you about the volunteer army today?
Before you answer, how did you vote in the first poll?
Did you defend the volunteer army?
I didn't vote.
You didn't vote.
By the way, you didn't vote but did you sell your vote to the person sitting next to you?
No. Alright.
So what would you say to that argument.
I think that the circumstances are different in that there was conscription in the Civil War.
There is no draft today and I think that volunteers for the army today have a more profound sense of patriotism that is of an individual choice than those who were forced into the military in the Civil War.
Somehow less coerced?
Less coerced.
Even though there is still inequality in American Society?
Even though, as Emily points out, the makeup of the American military is not reflective of the population as a whole?
Let's just do an experiment here.
How many here have either served in the military or have a family member who has served in the military in this generation, not parents?
Family members. In this generation.
And how many have neither served nor have any brothers or sisters who have served?
Does that bear out your point Emily?
Yes.
Alright. Now we need to hear from - most of you defended the idea of the all volunteer military overwhelmingly and yet overwhelmingly, people considered the Civil War system unjust.
Sam and Raul articulated reasons for objecting to the Civil War system, it took place against a background of inequality and therefore the choices people made to buy their way in to military service were not truly free but at least partly coerced.
Then Emily extends that argument in the form of a challenge.
Alright, everyone here who voted in favor of the all volunteer army should be able - should have to explain what's the difference in principle.
Doesn't the all volunteer army simply universalize the feature that almost everyone found objectionable in the Civil War buyout provision?
Did I state the challenge fairly Emily?
Yes.
Okay. So we need to hear from a defender of the all volunteer military who can address Emily's challenge.
Who can do that?
Go ahead.
The difference between the Civil War system and the all volunteer army system is that in the Civil War, you're being hired not by the government, but by an individual and as a result, different people who get hired by different individuals get paid different amounts.
In the case of the all volunteer army, everyone who gets hired is hired by the government and gets paid the same amount.
It's precisely the universalization of essentially paying your way to the army that makes the all volunteer army just.
Emily?
I guess I'd frame the principle slightly differently.
On the all volunteer army, it's possible for somebody to just step aside and not really think about the war at all.
It's possible to say, "I don't need the money, I don't need to have an opinion about this, I don't need to feel obligated to take my part and defend my country.
With the coercive system, or sorry, with an explicit draft then there's the threat at least that every individual will have to make some sort of decision regarding military conscription and perhaps in that way, it's more equitable.
It's true that Andrew Carnegie might not serve in any case but in one, he can completely step aside from it, and the other there's some level of responsibility.
While you're there, Emily, so what system do you favor, conscription?
I would be hard pressed to say but I think so because it makes the whole country feel a sense of responsibility for the conflict instead of having a war that's maybe ideologically supported by a few but only if there's no real responsibility.
Good. Who wants to reply?
Go ahead.
So I was going to say that the fundamental difference between the all volunteer army and then the army in the Civil War is that in the all volunteer army, if you want to volunteer that comes first and then the pay comes after whereas in the Civil War system, the people who are accepting the pay aren't necessarily doing it because they want to, they're just doing it for the money first.
What motivation beyond the pay do you think is operating in the case of the all volunteer army?
Like patriotism for the country.
Patriotism. Well what about - And a desire to defend the country.
There is some motivation in pay but the fact that it's first and foremost an all volunteer army will motivate first I think, personally.
Do you think it's better?
And tell me your name.
Jackie.
Jackie do you think it's better if people serve in the military out of a sense of patriotism than just for the money?
Yes, definitely because the people who - that was one of the main problems in the Civil War is that the people that you're getting to go in it to go to war aren't necessarily people who want to fight and so they won't be as good soldiers as they will be had they been there because they wanted to be.
Alright, what about Jackie's having raised the question of patriotism, that patriotism is a better or a higher motivation than money for military service.
Who would like to address that question?
Go ahead.
Patriotism absolutely is not necessary in order to be a good soldier because mercenaries can do just as good of a job as anyone who waves the American flag around and wants to defend what the government believes that we should do.
Did you favor the outsourcing solution?
Yes sir.
Alright, so let Jackie respond.
What's your name?
Philip.
What about that Jackie?
So much for patriotism.
If you've got someone whose heart is in it more than another person, they're going to do a better job.
When it comes down to the wire and there's like a situation in which someone has to put their life on the line, someone who's doing it because they love this country will be more willing to go into danger than someone who's just getting paid, they don't care, they've got the technical skills but they don't care what happens because they really have - they have nothing like nothing invested in this country.
There's another aspect though once we get on to the issue of patriotism.
If you believe patriotism, as Jackie does, should be the foremost consideration and not money, does that argue for or against the paid army we have now?
We call it the volunteer army though if you think about it, that's a kind of misnomer.
A volunteer army as we use the term, is a paid army.
So what about the suggestion that patriotism should be the primary motivation for military service not money?
Does that argue in favor of the paid military that we have or does it argue for conscription?
And just to sharpen that point building on Phil's case for outsourcing, if you think that the all volunteer army, the paid army, is best because it lets the market allocate positions according to people's preferences and willingness to serve for a certain wage, doesn't the logic that takes you from a system of conscription to the hybrid Civil War system to the all volunteer army, doesn't the idea of expanding freedom of choice in the market, doesn't that lead you all the way if you followed that principle consistently to a mercenary army?
And then if you say no, Jackie says no, patriotism should count for something, doesn't that argue for going back to conscription if by patriotism, you mean a sense of civic obligation?
Let's see if we can step back from the discussion that we've had and see what we've learned about consent as it applies to market exchange.
We've really heard two arguments, two arguments against the use of markets and exchange in the allocation of military service.
One was the argument raised by Sam and Raul, the argument about coercion, the objection that letting the market allocate military service may be unfair and may not even be free if there's severe inequality in the society so that people who buy their way into military service are doing so not because they really want to but because they have so few economic opportunities that that's their best choice and Sam and Raul say there's an element of coercion in that, that's one argument.
Then there is a second objection to using the market to allocate military service, that's the idea that military service shouldn't be treated as just another job for pay because it's bound up with patriotism and civic obligation.
This is a different argument from the argument about unfairness and inequality and coercion, it's an argument that suggests that maybe where civic obligations are concerned, we shouldn't allocate duties and rights by the market.
Now we've identified two broad objections.
What do we need to know to assess those objections?
To assess the first, the argument from coercion, inequality, and unfairness, Sam, we need to ask what inequalities in the background conditions of society undermine the freedom of choices people make to buy and sell their labor, question number one.
Question number two: to assess the civic obligation patriotism.
Argument: we have to ask what are the obligations of citizenship?
Is military service one of them or not?
What obligates us as citizens?
What is the source of political obligation?
Is it consent or are there some civic obligations we have, even without consent, for living and sharing in a certain kind of society?
We haven't answered either of those questions but our debate today about the Civil War system and the all volunteer army has at least raised them and those are questions we're going to return to in the coming weeks.
Today I'd like to turn our attention and get your views about an argument over the role of markets in the realm of human reproduction and procreation.
Now with infertility clinics, people advertise for egg donors and from time to time, in the Harvard Crimson ads appear for egg donors.
Have you seen them?
There was one that ran a few years ago that wasn't looking for just any egg donor, it was an ad that offered a large financial incentive for an egg donor from a woman who was intelligent, athletic, at least 5'10", and with at least 1400 or above on her SATs.
How much do you think the person looking for this egg donor was willing to pay for an egg from a woman of that description?
What would you guess?
A thousand dollars?
Fifteen thousand? Ten?
I'll show you the ad.
Fifty thousand dollars for an egg but only a premium egg.
What do you think about that?
Well there are also sometimes ads in the Harvard Crimson and the other college newspapers for sperm donors.
So the market in reproductive capacities is an equal opportunity market.
Well not exactly equal opportunity, they're not offering $50,000 for sperm but there is a company, a large commercial sperm bank that markets sperm, it's called California Cryobank, it's a for-profit company, it imposes exacting standards on the sperm it recruits, and it has offices in Cambridge , between Harvard and MIT, and in Palo Alto
Cryobank's marketing materials play up the prestigious source of its sperm.
Here is, from the website of Cryobank, the information.
Here they talk about the compensation although compensation should not be the only reason for becoming a sperm donor, we are aware of the considerable time and expense involved in being a donor.
So do you know what they offer?
Donors will be reimbursed $75 per specimen, up to $900 a month if you donate three times a week, and then they add "We periodically offer incentives such as movie tickets or gift certificates for the extra time and effort expended by participating donors." It's not easy to be a sperm donor.
They accept fewer than five percent of the donors who apply.
Their admission criteria are more demanding than Harvard's.
The head of the sperm bank said the ideal sperm donor is 6 feet tall, with a college degree, brown eyes, blond hair, and dimples for the simple reason that these are the traits that the market has shown that customers want.
Quoting the head of the sperm bank, "If our customers wanted high school dropouts, we would give them high school dropouts." So here are two instances, the market in eggs for donation and the market in sperm, that raise a question, a question about whether eggs and sperm should or should not be bought and sold for money.
As you ponder that, I want you to consider another case involving market and in fact a contract in the human reproductive capacity and this is the case of commercial surrogate motherhood, and it's a case that wound up in court some years ago.
It's the story of Baby M.
It began with William and Elizabeth Stern, a professional couple wanting a baby but they couldn't have one on their own, at least not without medical risk to Mrs. Stern.
They went to an infertility clinic where they met Mary Beth Whitehead, a 29-year-old mother of two, the wife of a sanitation worker.
She had replied to an ad that The Standard had placed seeking the service of a surrogate mother.
They made a deal.
They signed a contract in which William Stern agreed to pay Mary Beth Whitehead a $10,000 fee plus all expenses in exchange for which Mary Beth Whitehead agreed to be artificially inseminated with William Stern's sperm, to bear the child, and then to give the baby to the Sterns.
Well, you probably know how the story unfolded.
Mary Beth gave birth and changed her mind, she decided she wanted to keep the baby.
The case wound up in court in New Jersey
So let's take, put aside any legal questions, and focus on this issue as a moral question.
How many believe that the right thing to do in the Baby M case, would have been to uphold the contract, to enforce the contract?
And how many think the right thing to do would have been not to enforce that contract?
The majority say enforce so let's now hear the reasons that people had, either for enforcing or refusing to enforce this contract.
First I want to hear from someone in the majority.
Why do you uphold the contract?
Why do you enforce it?
Who can offer a reason?
Yes. Stand up.
It's a binding contract, all the parties involved knew the terms of the contract before any action was taken, it's a voluntary agreement, the mother knew what she was getting into, all four intelligent adults, regardless of formal education, whatever.
So it makes sense that if you know that you're getting into beforehand and you make a promise, you should uphold that promise in the end.
Okay, a deal is a deal in other words.
Exactly.- And what's your name?
Patrick.
Is Patrick's reason the reason that most of you in the majority favored upholding the contract?
Yes. Alright, let's hear now someone who would not enforce the contract.
What do you say to Patrick?
Why not? Yes.
Well, I mean, I agree, I think contracts should be upheld when all the parties know all the information but in this case, I don't think there's a way a mother, before the child exists, could actually know how she's going to feel about that child so I don't think the mother actually had all the information.
She didn't know the person that was going to be born and didn't know how much she would love that person so that's my argument.
So you would not, and what's your name?
Evan Wilson.
Evan says he would not uphold the contract because when it was entered into the surrogate mother couldn't be expected to know in advance how she would feel so she didn't really have the relevant information when she made that contract.
Who else?
Who else would not uphold the contract? Yes.
I also think that a contract should generally be upheld but I think that the child has an inalienable right to its actual mother and I think that if that mother wants it then that child should have the right to that mother.
You mean the biological mother not the adoptive mother?
Right.
And why is that?
First of all, tell me your name.
Anna.
Anna. Why is that Anna?
Because I think that that bond is created by nature is stronger than any bond that is created by a contract.
Good. Thank you.
Who else? Yes.
I disagree. I don't think that a child has an inalienable right to her biological mother.
I think that adoption and surrogacy are both legitimate tradeoffs and I agree with the point made that it's a voluntary agreement, the individual who made it, it's a voluntary agreement and you can't apply coercion to this argument.
You can't apply the objection from coercion to this argument?
Correct.
What's your name?- Kathleen.
Kathleen, what do you say to Evan that though there may not have been - Evan claimed that the consent was tainted not by coercion but by lack of adequate information.
She couldn't have known the relevant information namely how she would feel about the child.
What do you say to that?
I don't think the emotional content of her feelings plays into this.
I think in a case of law, in the justice of this scenario, her change of feelings are not relevant.
If I give up my child for adoption and then I decide later on that I really want that child back, too bad, it's a tradeoff, it's a tradeoff that the mother has made.
So a deal is a deal, you agree with Patrick?
I agree with Patrick, a deal's a deal.
A deal is a deal.
Yes.- Good. Yes.
I would say that though I'm not really sure if I agree with the idea that the child has a right to their mother.
I think the mother definitely has a right to her child and I also think that there's some areas where market forces shouldn't necessarily penetrate.
I think that the whole surrogate mother area smacks a little bit of dealing in human beings seems dehumanizing.
It doesn't really seem right so that's my main reason.
And what is - could you tell us your name.
I'm Andrew.
Andrew, what is dehumanizing about buying and selling the right to a child, for money, what is dehumanizing about it?
Well because you're buying someone's biological right.
I mean you can't - in the law as it stated, you can't sell your own child were you to have a child, I'd believe that the law prohibits you selling it to another person or - So this like baby selling?
Right. To a certain extent.
Though there's a contract with another person, you've made agreements and what not, there is an undeniable emotional bond that takes place between the mother and the child and it's wrong to simply ignore this because you've written out something contractually.
Right. You want to reply to Andrew?
Stay there.
You point out there's an undeniable emotional bond, I feel like in this situation, we're not necessarily arguing against adoption or surrogacy in itself, we're just sort of pointing out the emotional differences.
But wait, I mean, it's easy to break everything down to numbers and say "Oh, we have contracts," like you're buying or selling a car but there are underlying emotions, I mean, you're dealing with people, these are not objects to be bought and sold.
Alright. What about Andrew's claim that this is like baby selling.
I believe that adoption and surrogacy should be permitted, whether or not I actually will partake in it is not really relevant but I think that the government should, the government should give its citizens the rights to allow for adoption and surrogacy.
But adoption is not - according to - Is adoption baby selling?
Well, do you think you should be able to bid for a baby that's up for adoption?
That's Andrew's challenge.
Do I think I should be able to bid for a baby?
I'm not - sure! It's a market, I feel the extent to which it's been applied and I'm not sure if the government should be able to permit it and I have to think about it more but - Alright. Fair enough.
Are you satisfied Andrew?
Well, yeah, I mean, I think surrogacy should be permitted.
I think that people can do it but I don't think that it should be forced upon people that once a contract is signed, it's absolutely the end all.
I think that it's unenforceable.
So people should be free Andrew to enter into these contracts but it should not be enforceable in the court.
Not in the court, no.
Who would like to turn on one side or the other? Yes.
I think I have an interesting perspective on this because my brother was actually one of the people who donated to a sperm bank and he was paid a very large amount of money, he was six feet tall but not blond, he had dimples though.
So he actually has, I'm an aunt now, he has a daughter, he donated his sperm to a lesbian couple in Oklahoma and he has been contacted by them and he has seen pictures of his daughter but he still does not feel an emotional bond to his daughter, he just has a sense of curiosity about what she looks like and what she's doing and how she is.
He doesn't feel love for his child so from this experience, I think the bond between a mother and a child cannot be compared to the bond between the father and the child.
That's really interesting.
What's your name?
Vivian.
Vivian. So we've got the case of surrogacy, commercial surrogacy, and it's been compared to baby selling and we've been exploring whether that analogy is apt and it can also be compared, as you point out, to sperm selling.
But you're saying that sperm selling and baby selling or even surrogacy are very different because - Yes, they're unequal services.
They're unequal services and that's because Vivian, you say that the tie, the bond - Yes, and also the time investment that's given by a mother, nine months, cannot be compared to a man going into a sperm bank, looking at pornography, depositing into a cup.
I don't think those are equal.
Good. Alright.
Because that's what happens in a sperm bank.
Alright. So this is really interesting, we have - notice the arguments that have come out so far.
The objections to surrogacy, the objections to enforcing that contract are of at least two kinds.
There was the objection about tainted consent, this time not because of coercion or implicit coercion but because of imperfect or flawed information.
So tainted or flawed consent can arise either because of coercion or because of a lack of relevant information, at least according to one argument that we've heard and then a second objection to enforcing the surrogacy contract was that it was somehow dehumanizing.
Now when this case was decided by the courts, what did they say about these arguments?
The lower court ruled that the contract was enforceable, neither party had a superior bargaining position.
A price for the service was struck and a bargain was reached.
One side didn't force the other neither had disproportionate bargaining power.
Then it went to the New Jersey Supreme Court.
And what did they do?
They said this contract is not enforceable.
They did grant custody to Mr. Stern as the father because they thought that would be in the best interest of the child but they restored the rights of Mary Beth Whitehead and left it to lower courts to decide exactly what the visitation rights should be.
They invoked two different kinds of reasons, along the lines that Andrew proposed.
First, there was not sufficiently informed consent, the court argued."Under the contract the natural mother is irrevocably committed before she knows the strength of her bond with her child, she never makes a truly voluntary informed decision for any decision prior to the baby's birth is in the most important sense, uninformed," that was the court.
Then the court also made a version of the second argument against commodification in this kind of case "this is the sale of a child," the court said, "or at the very least, the sale of a mother's right to her child.
Whatever idealism may motivate the participants, the profit motive predominates permeates, and ultimately governs the transaction." And so regardless, the court said, regardless of any argument about consent or flawed consent or full information, there are some things in a civilized society that money can't buy, that's what the court said in voiding this contract.
Well, what about these two arguments against the extension of markets to procreation and to reproduction?
How persuasive are they?
There was - it's true, a voluntary agreement, a contract struck between William Stern and Mary Beth Whitehead.
But there are at least two ways that consent can be other than truly free.
First, if people are pressured or coerced to give their agreement and second, if their consent is not truly informed and in the case of surrogacy, the court said a mother can't know, even one who already has kids of her own, what it would be like to bear a child and give it up for pay.
So in order to assess criticism, objection number one, we have to figure out just how free does a voluntary exchange have to be with respect to the bargaining power and equal information Question number one: how do we assess the second objection?
The second objection is more elusive, it's more difficult.
Andrew acknowledged this, right?
What does it mean to say there is something dehumanizing to make childbearing a market transaction?
Well, one of the philosophers we read on this subject, Elizabeth Anderson, tries to brings some philosophical clarity to the unease that Andrew articulated.
She said "by requiring the surrogate mother to repress whatever parental love she feels for the child, surrogacy contracts convert women's labor into a form of alienated labor.
The surrogate's labor is alienated because she must divert it from the end which the social practices of pregnancy rightly promote, namely an emotional bond with her child." So what Anderson
Certain goods are properly valued in ways other than use.
What are other ways of valuing and treating goods that should not be open to use?
There are many modes of valuation beyond use and certain goods are not properly valued if they're treated simply as objects of use.
How do we go about evaluating that argument of Anderson
In a way, it takes us back to the debate we had with utilitarianism.
Is utility - is use the only proper way of treating goods, including life, military service, procreation, childbearing?
And if not, how do we figure out?
How can we determine what modes of valuation are fitting or appropriate to those goods?
Several years ago there was a scandal surrounding a doctor, an infertility specialist in Virginia
He didn't have a donor catalogue because unknown to his patients, all of the sperm he used to inseminate his patients came from one donor, Dr. Jacobson himself.
At least one woman who testified in court was unnerved at how much her newborn daughter looked just like him.
Now it's possible to condemn Dr. Jacobson for failing to inform the women in advance that would be the argument about consent.
The columnist, Ellen Goodman, described the bizarre scenario as follows, "Dr. Jacobson," she wrote "gave his infertility business the personal touch but now the rest of us," she wrote "are in for a round of second thoughts about sperm donation." Goodman concluded that fatherhood should be something you do, not something you donate.
And I think what she was doing and what the philosopher Elizabeth Anderson is doing and what Andrew was suggesting with his argument about dehumanization is pondering whether there are certain goods that money shouldn't buy, not just because of tainted consent but also perhaps because certain goods are properly valued in a way higher than mere use.
Justice 06 Mind Your Motive / The Supreme Principle of Morality 考虑你的动机/道德的最高准则
Now we turn Now we turn to the hardest philosopher we're going to read in this course.
Today we turn to Immanuel Kant who offers a different account of why we have a categorical duty to respect the dignity of persons and not to use people as means merely even for good ends.
Kant excelled at the University of Konigsberg
At age of 31, he got his first job as an unsalaried lecturer paid on commission based on the number of students who showed up at his lectures.
This is a sensible system that Harvard would do well to consider.
Luckily for Kant, he was a popular lecturer and also an industrious one and so he eked out a meager living.
It wasn't until he was 57 that he published his first major work.
But, it was worth the wait, the book was the "Critique of Pure Reason" perhaps the most important work in all of modern philosophy.
And a few years later, Kant wrote the groundwork for "Metaphysics of Morals" which we read in this course.
I want to acknowledge even before we start that Kant is a difficult thinker but it's important to try to figure what he's saying because what this book is about is what the supreme principle of morality is, number one, and it also gives us an account ®C one of the most powerful accounts we have ®C of what freedom really is.
So, let me start today, Kant rejects utilitarianism.
He thinks that the individual person, all human beings, have a certain dignity that commands our respect.
The reason the individual is sacred or the bearer of rights, according to Kant, doesn't stem from the idea that we own ourselves but instead from the idea that we are all rational beings.
We're all rational beings, which simply means that we are beings who are capable of reason.
We are also autonomous beings, which is to say that we are beings capable of acting and choosing freely.
Now, this capacity for reason and freedom isn't the only capacity we have.
We also have the capacity for pain and pleasure, for suffering and satisfaction.
Kant admits the utilitarians were half right.
Of course, we seek to avoid pain and we like pleasure, Kant doesn't deny this.
What he does deny is Bentham's claim that pain and pleasure are our sovereign masters.
He thinks that's wrong.
Kant thinks that it's our rational capacity that makes us distinctive, that makes us special, that sets us apart from and above mere animal existence.
It makes us something more than just physical creatures with appetites.
We often think of freedom as simply consisting in doing what we want or in the absence of obstacles to getting what we want, that's one way of thinking about freedom.
But this isn't Kant's idea of freedom.
Kant has a more stringent demanding notion of what it means to be free.
And though it's stringent and demanding, if you think it through, it's actually pretty persuasive.
Kant reasons as follows: when we, like animals, seek after pleasure or the satisfaction of our desires or the avoidance of pain, when we do that we aren't really acting freely.
Why not?
We're really acting as the slaves of those appetites and impulses.
I didn't choose this particular hunger or that particular appetite and so when I act to satisfy it, I'm just acting according to natural necessity.
And for Kant, freedom is the opposite of necessity.
There was an advertising slogan for the soft drink Sprite a few years ago.
The slogan was, "Obey your thirst." There's a Kantian insight buried in that Sprite advertising slogan that in a way is Kant's point.
When you go for Sprite or Pepsi, you're really ®C you might think that you're choosing freely, Sprite versus Pepsi, but you're actually obeying something, a thirst or maybe a desire manufactured or massaged by advertising, you're obeying a prompting that you yourself haven't chosen or created.
And here it is worth noticing Kant's specially demanding idea of freedom.
What way of acting ®C how can my will be determined if not by the promptings of nature or my hunger or my appetite or my desires?
Kant's answer?
To act freely is to act autonomously, and to act autonomously is to act according to a law that I give myself not according to the physical laws of nature or the laws of cause and effect which include my desire to eat or to drink or to choose this food in a restaurant over that.
Now, what is the opposite of autonomy for Kant?
He invents a special term to describe the opposite of autonomy.
Heteronomy is the opposite of autonomy.
When I act heteronomously, I'm acting according to an inclination, or a desire, that I haven't chosen for myself.
So, freedom as autonomy is an especially stringent idea that Kant insists on.
Now, why is autonomy the opposite of acting heteronomously or according to the dictates of nature?
Kant's point is that nature is governed by laws, laws of cause and effect for example.
Suppose you drop a billiard ball, it falls to the ground; we wouldn't say the billiard ball is acting freely.
Why not?
It's acting according to the law of nature, according to the laws of cause of effect, the law of gravity.
And just as he has an unusually demanding and stringent conception of freedom, freedom as autonomy, he also has a demanding conception of morality.
To act freely is not to choose the best means to a given end; it's to choose the end itself for its own sake.
And that's something that human beings can do and that billiard balls can't.
In so far as we act on inclination or pursue pleasure, we act as means to the realization of ends given outside us.
We are instruments rather than authors of the purposes we pursue, that's the heteronymous determination of the will.
On the other hand, in so far as we act autonomously, according to a law we give ourselves, we do something for its own sake as an end in itself.
When we act autonomously, we seize to be instruments to purposes given outside us, we become, or we can come to think of ourselves as ends in ourselves.
This capacity to act freely, Kant tells us, is what gives human life its special dignity.
Respecting human dignity means regarding persons not just as means but also as ends in themselves.
And this is why it's wrong to use people for the sake of other peoples' well-being or happiness.
This is the real reason, Kant says, that utilitarianism goes wrong.
This is the reason it's important to respect the dignity of persons and to uphold their rights.
So, even if there are cases, remember John Stewart Mill said, "Well, in the long run, if we uphold justice and respect the dignity of persons, we will maximize human happiness." What would Kant's answer be to that?
What would his answer be?
Even if that were true, even if the calculus worked out that way, even if you shouldn't throw the Christian's to the lions because in the long run fear will spread, the overall utility will decline.
The utilitarian would be upholding justice and right and respect for persons for the wrong reason, for a purely a contingent reason, for an instrumental reason.
It would still be using people, even where the calculus works out for the best in the long run, it would still be using people as means rather than respecting them as ends in themselves.
So, that's Kant's idea of freedom as autonomy and you can begin to see how it's connected to his idea of morality.
But we still have to answer one more question, what gives an act its moral worth in the first place?
If it can't be directed, that utility or satisfying wants and desires, what gives an action its moral worth?
This leads us from Kant's demanding idea of freedom to his demanding idea of morality.
What does Kant say?
What makes an action morally worthy consists not in the consequences or in the results that flow from it, what makes an action morally worthy has to do with the motive, with the quality of the will, with the intention for which the act is done.
What matters is the motive and the motive must be of a certain kind.
So, the moral worth of an action depends on the motive for which it's done and the important thing is that the person do the right thing for the right reason."A good will isn't good because of what it affects or accomplishes," Kant writes, "it's good in itself.
Even if by its utmost effort, the goodwill accomplishes nothing, it would still shine like a jewel for its own sake as something which has its full value in itself." And so, for any action to be morally good, it's not enough that it should conform to the moral law, it must also be done for the sake of the moral law.
The idea is that the motive confers the moral worth on an action and the only kind of motive that can confer moral worth on an action is the motive of duty.
Well, what's the opposite of doing something out of a sense of duty because it's right?
Well for Kant, the opposite would be all of those motives having to do with our inclinations.
And inclinations refer to all of our desires, all of our contingently given wants, preferences, impulses, and the like.
Only actions done for the sake of the moral law, for the sake of duty, only these actions have moral worth.
Now, I want to see what you think about this idea but first let's consider a few examples.
Kant begins with an example of a shopkeeper.
He wants to bring out the intuition and make plausible the idea that what confers moral worth on an action is that it be done because it's right.
He says suppose there's a shopkeeper and an inexperienced customer comes in.
The shopkeeper knows that he could give the customer the wrong change, could shortchange the customer and get away with it; at least that customer wouldn't know.
But the shopkeeper nonetheless says, "Well, if I shortchange this customer, word may get out, my reputation would be damaged, and I would lose business, so I won't shortchange this customer." The shopkeeper does nothing wrong, he gives the correct change, but does his action have moral worth?
Kant says no, it doesn't have moral worth because the shopkeeper only did the right thing for the wrong reason, out of self-interest.
That's a pretty straightforward case.
Then he takes another case, the case of suicide.
He says we have a duty to preserve ourselves.
Now, for most people who love life, we have multiple reasons for not taking our own lives.
So, the only way we can really tell, the only way we can isolate the operative motive for someone who doesn't take his or her life is to think ®C to imagine someone who's miserable and who despite having an absolutely miserable life nonetheless recognizes the duty to preserve one's self and so does not commit suicide.
The force of the example is to bring out the motive that matters and the motive that matters for morality is doing the right thing for the sake of duty.
Let me just give you a couple of other examples.
The Better Business Bureau, what's their slogan?
The slogan of the Better Business Bureau: "Honesty is the best policy.
It's also the most profitable." This is the Better Business Bureau's full page ad in the New York Times, "Honesty, it's as important as any other asset because a business that deals in truth, openness, and fair value cannot help but do well.
Come join us and profit from it." What would Kant say about the moral worth of the honest dealings of members of the Better Business Bureau?
What would he say?
That here's a perfect example that if this is the reason that these companies deal honestly with their customers, their action lacks moral worth, this is Kant's point.
A couple of years ago, at the University of Maryland, there was a problem with cheating and so they initiated an honor system and they created a program with local merchants that if you signed the honor pledge, a pledge not to cheat, you would get discounts of 276 Well what would you think of someone motivated to uphold an honor code with the hope of discounts?
It's the same as Kant's shopkeeper.
The point is, what matters is the quality of the will, the character of the motive and the relative motive to morality can only be the motive of duty, not the motive of inclination.
And when I act out of duty, when I resist as my motive for acting inclinations or self-interest, even sympathy and altruism, only then am I acting freely, only then am I acting autonomously, only then is my will not determined or governed by external considerations, that's the link between Kant's idea of freedom and of morality.
Now, I want to pause here to see if all of this is clear or if you have some questions or puzzles.
They can be questions of clarification or they can be challenges.
If you want to challenge this idea that only the motive of duty confers moral worth on the action.
What do you think?
Yes.
Yeah, I actually have two questions of clarification.
The first is, there seems to be an aspect of this that makes it sort of self-defeating in that once you're conscious of what morality is you can sort of alter your motive to achieve that end of morality.
Give me an example of what you have in mind.
The shopkeeper example.
If he decides that he wants to give the person the money to do the right thing and he decides that it's his motive to do so because he wants to be moral then isn't that sort of defeating trying to ®C isn't that sort of defeating the purity of his action if morality is determined by his motive?
His motive is then to act morally.
I see.
So, you're imagining a case not of the purely selfish calculating shopkeeper but of one who says, well, he may consider shortchanging the customer.
But then he says, "Not, or my reputation might suffer if word gets out." But instead he says, "Actually, I would like to be the kind of honest person who gives the right change to customers simply because it's the right thing to do." Or simply, "Because I want to be moral." "Because I want to be moral, I want to be a good person, and so I'm going to conform all of my actions to what morality requires." It's a subtle point, it's a good question.
Kant does acknowledge, you're pressing Kant on an important point here, Kant does say there has to be some incentive to obey the moral law, it can't be a self-interested incentive that would defeat it by definition.
So, he speaks of a different kind of incentive from that inclination, he speaks of reverence for the moral law.
So, if that shopkeeper says, "I want to develop a reverence for the moral law and so I'm going to do the right thing" then I think he's there, he's there as far as Kant's concerned because he's formed his motive, his will is conforming to the moral law once he sees the importance of it.
So, it would count, it would count.
All right, then, secondly, very quickly, what stops morality from becoming completely objective in this point?
What stops morality from becoming subjective?
Yeah, like how can ®C if morality is completely determined by your morals then how can you apply this or how can it be enforced?
All right, that's also a great question.-- What's your name?-- My name is Amady.-- Amady?-- Yes.
All right, if acting morally means acting according to a moral law out of duty and if it's also to act freely in the sense of autonomously, it must mean that I'm acting according to a law that I give myself, that's what it means to act autonomously, Amady is right about that, but that does raise a really interesting question.
If acting autonomously means acting according to a law I give myself, that's how I escape the chain of cause and effect and the laws of nature.
What's the guarantee that the law I give myself when I'm acting out of duty is the same as the law that Amady is giving himself and that each of you gives yourselves?
Well, here's the question, how many moral laws, from Kant's point of view, are there in this room?
Are there a thousand or is there one?
He thinks there's one, which in a way does go back to this question: all right, what is the moral law?
What does it tell us?
So, what guarantees ®C it sounds like to act autonomously is to act according to one's conscience, according to a law one gives oneself, but what guarantees that we ®C if we all exercise our reason, we will come up with one and the same moral law?
That's what Amady wants to know.
Here's Kant's answer: the reason that leads us to the law we give ourselves as autonomous beings is a reason, it's a kind of practical reason that we share as human beings.
It's not idiosyncratic.
The reason we need to respect the dignity of persons is that we're all rational beings, we all have the capacity for reason and it's the exercise of that capacity for reason which exists undifferentiated in all of us that makes us worthy of dignity, all of us, and since it's the same capacity for reason, unqualified by particular autobiographies and life circumstance, it's the same universal capacity for reason that delivers the moral law, it turns out that to act autonomously is to act according to a law we give ourselves exercising our reason, but it's the reason we share with everyone as rational beings, not the particular reasons we have given our upbringings, our particular values, our particular interests.
It's pure practical reason, in Kant's terms, which legislates a priori regardless of any particular contingent or empirical ends.
Well, what moral law would that kind of reason deliver?
What is its content?
To answer that question, you have to read the groundwork and we'll continue with that question next time.
For Kant, morally speaking, suicide is on a par with murder.
It's on a par with murder because what we violate when we take a life, when we take someone's life, ours or somebody else's, we use that person, we use a rational being, be use humanity as a means and so we fail to respect humanity as an end.
Today we turn back to Kant.
Before we do, remember this is the week by the end of which all of you will basically get Kant, figure out what he's up to.
You're laughing.
No, it will happen.
Kant's groundwork is about two big questions.
First, what is the supreme principle of morality?
Second, how is freedom possible?
Two big questions.
Now, one way of making your way through this dense philosophical book is to bear in mind a set of oppositions or contrasts or dualisms that are related.
Today I'd like to talk about them.
Today we're going to answer the question, what, according to Kant, is the supreme principle of morality?
And in answering that question, in working our way up to Kant's answer to that question it will help to bear in mind three contrasts, or dualisms, that Kant sets out.
The first, you'll remember, had to do with the motive according to which we act.
And according to Kant, only one kind of motive is consistent with morality, the motive of duty, doing the right thing for the right reason.
What other kind of motives are there?
Kant sums them up in the category of inclination.
Every time the motive for what we do is to satisfy a desire or a preference that we may have, to pursue some interest, we're acting out of inclination.
Now, let me pause to see if in thinking about the question of the motive of duty, the goodwill, see if any of you has a question about that much of Kant's claim.
Or is everybody happy with this distinction?
What do you think?
Go ahead.
When you make that distinction between duty and inclination is there ever any moral action ever?
I mean you could always, kind of, probably find some selfish motive, can't you?
Maybe, very often people do have self-interested motives when they act.
Kant wouldn't dispute that but what Kant is saying is that in so far as we act morally, that is in so far as our actions have moral worth, what confers moral worth is precisely our capacity to rise above self-interest and prudence and inclination and to act out of duty.
Some years ago I read about a spelling bee and there was a young man who was declared the winner of the spelling bee, a kid named Andrew, 467 The winning word, the word that he was able to spell, was "echolalia." Does anyone know what echolalia is?
What?
Some type of flower?
It's not some type of flower.
No.
It means the tendency to repeat as in echo, to repeat what you've heard.
Anyhow, he misspelled it actually but the judges misheard him, they thought he had spelled it correctly and awarded him the championship of the National Spelling Bee and he went to the judges afterward and said, "Actually, I misspelled it, I don't deserve the prize." And he was regarded as a moral hero and he was written up in the New York Times, "Misspeller is Spelling Bee Hero." There's Andrew with his proud mother and when he was interviewed afterwards, listen to this, when he was interviewed afterwards, he said, "The judges said I had a lot of integrity," but then he added that part of his motive was, "I didn't want to feel like a slime." All right.
What would Kant say?
Go ahead.
I guess it would depend on whether or not that was a marginal reason or the predominant reason and whether or not ®C and why he decided to confess that he didn't actually spell the word correctly.
Good.
And what's your name?
Bosco.
That's very interesting.
Is there anyone else who has a view about this?
Does this show that Kant's principle is too stringent, too demanding?
What would Kant say about this?
Yes.
I think that Kant actually says that it is the pure motivation that comes out of duty which gives the action moral worth.
So, it's like, for example in this case, he might have more than one motive, he might have the motive of not feeling like a slime and he might have the motive of doing the right thing itself out of duty and so, while there's more than one motivation going on there doesn't mean that the action is devoid of moral worth just because he has one other motive because the motive which involves duty is what gives it the moral worth.
Good.
And what's your name: Judith.
Well Judith, I think that your account actually is true to Kant.
It's fine to have sentiments and feelings that support doing the right thing provided they don't provide the reason for acting.
So, I think Judith actually has mounted a pretty good defense of Kant on this question of the motive of duty.
Thank you.
Now, let's go back to the three contrasts.
It's clear at least what Kant means when he says that for an action to have moral worth, it must be done for the sake of duty, not out of inclination.
But as we began to see last time, there's a connection between Kant's stringent notion of morality and his specially demanding understanding of freedom.
And that leads us to the second contrast, the link between morality and freedom The second contrast describes two different ways that my will can be determined; autonomously and heteronomously.
According to Kant, I'm only free when my will is determined autonomously.
Which means what?
According to a law that I give myself.
We must be capable, if we're capable of freedom as autonomy, we must be capable of acting according not to a law that's given or imposed on us but according to a law we give ourselves.
But where could such a law come from?
A law that we give ourselves.
Reason.
If reason determines my will then the will becomes a power to choose independent of the dictates of nature or inclination or circumstance.
So, connected with Kant's demanding notions of morality and freedom is a specially demanding notion of reason.
Well, how can reason determine the will?
There are two ways and this leads to the third contrast.
Kant says there are two different commands of reason and a command of reason Kant calls an imperative an imperative is simply an ought.
One kind of imperative, perhaps the most familiar kind, is a hypothetical imperative.
Hypothetical imperatives use instrumental reason.
If you want x then do y.
It's means-ends reasoning.
If you want a good business reputation then don't shortchange your customers, word may get out.
That's a hypothetical imperative."If the action would be good solely as a means to something else," Kant writes, "the imperative is hypothetical.
If the action is represented as good in itself and therefore is necessary for a will which of itself accords with reason, then the imperative is categorical." That's the difference between a categorical imperative and a hypothetical one.
A categorical imperative commands categorically, which just means without reference to or dependence on any further purpose and so you see the connection among these three parallel contrasts.
To be free, in the sense of autonomous, requires that I act not out of a hypothetical imperative but out of a categorical imperative.
And so you see by these three contrasts Kant reasons his way, brings us up to his derivation of the categorical imperative.
Well, this leaves us one big question: what is the categorical imperative?
What is the supreme principle of morality?
What does it command of us?
Kant gives three versions, three formulations, of the categorical imperative.
I want to mention two and then see what you think of them.
The first version, the first formula, he calls the formula of the universal law; "Act only on that maxim whereby you can at the same time will that it should become a universal law." And by maxim, what does Kant mean?
He means a rule that explains the reason for what you're doing, a principle.
For example, promise keeping.
Suppose I need money, I need $100 desperately and I know I can't pay it back anytime soon.
I come to you and make you a promise, a false promise, one I know I can't keep, "Please give me $100 today, lend me the money, I will repay you next week." Is that consistent with the categorical imperative, that false promise?
Kant says no.
And the test, the way we can determine that the false promise is at odds with the categorical imperative is try to universalize it, universalize the maxim upon which you're about to act.
If everybody made false promises when they needed money then nobody would believe those promises, there would be no such thing as a promise, and so there would be a contradiction.
The maxim universalized would undermine itself.
That's the test.
That's how we can know that the false promise is wrong.
Well what about the formula of the universal law?
You find it persuasive?
What do you think?
Go ahead.
I have a question about the difference between categoricalism and a hypothesis that if you're going to act . . .
Between categorical and hypothetical.
Hypothetical, yeah.
Imperatives.
Right. If you're going to act with a categorical imperative so that the maxim doesn't undermine itself, it sounds like I am going to do x because I want y, I'm going to not lie in dire need because I want the world to function in such a way that promises are kept.
I don't want to liquidate the practice of promises.
Right, it sounds like justifying a means by an ends.
It seems like an instance of consequentialist reasoning, you're saying.-- Right.-- And what's your name?-- Tim.
Well Tim, John Stewart Mill agreed with you.
He made this criticism of Kant.
He said, "If I universalize the maxim and find that the whole practice of promise keeping would be destroyed if universalized, I must be appealing somehow to consequences if that's the reason not to tell a false promise." So, John Stewart Mill agreed with that criticism against Kant but John Stewart Mill was wrong.
You're in good company though.
You're in good company, Tim.
Kant has often read, as Tim just read him, as appealing to consequences.
The world would be worse off if everybody lied because then no one could rely on anybody else's word therefore you shouldn't lie.
That's not what Kant is saying exactly.
Although, it's easy to interpret him as saying that.
I think what he's saying is that this is the test, this is the test of whether the maxim corresponds with the categorical imperative.
It isn't exactly the reason, it's not the reason, the reason you should universalize to test your maxim is to see whether you are privileging your particular needs and desires over everybody else's.
It's a way of pointing to this feature, this demand of the categorical imperative that the reasons for your action shouldn't depend for their justification on your interests, your needs, your special circumstances being more important than somebody else's.
That, I think, is the moral intuition lying behind the universalization test.
So, let me spell out the second, Kant's second version of the categorical imperative, perhaps in a way that's more intuitively accessible than the formula of universal law.
It's the formula of humanity as an end.
Kant introduces the second version of the categorical imperative with the following line of argument: "We can't base the categorical imperative on any particular interests, purposes, or ends because then it would be only relative to the person whose ends they were.
But suppose, however, there was something whose existence has in itself an absolute value . ..an end in itself . . .then in it, and in it alone, would there be the ground of a possible categorical imperative." Well, what is there that we can think of as having its end in itself?
Kant's answer is this, "I say that man, and in general every rational being, exists as and end in himself, not merely as a means for arbitrary use by this or that will." And here Kant distinguishes between persons on the one hand and things on the other.
Rational beings are persons, they don't just have a relative value for us but if anything has they have an absolute value, an intrinsic value, that is rational beings have dignity.
They're worthy of reverence or respect.
This line of reasoning leads Kant to the second formulation of the categorical imperative which is this: "Act in such a way that you always treat humanity, whether in your own person or in the person of any other, never simply as a means, but always at the same time, as an end." So, that's the formula of humanity as an end, the idea that human beings as rational beings are ends in themselves, not open to use merely as a means.
When I make a false promise to you, I'm using you as a means to my ends, to my desire for the $100, and so I'm failing to respect you, I'm failing to respect your dignity, I'm manipulating you.
Now, consider the example of the duty against suicide.
Murder and suicide are at odds with the categorical imperative.
Why?
If I murder someone, I'm taking their life for some purpose, either because I'm a hired killer or I'm in the throes of some great anger passion, I have some interest, some purpose, that's particular for the sake which I'm using them as a means.
Murder violates the categorical imperative.
For Kant, morally speaking, suicide is on a par with murder.
It's on a par with murder because what we violate when we take a life, when we take someone's life, ours or somebody else's, we use that person, we use a rational being, we use humanity as a means and so we fail to respect humanity as an end.
And that capacity for reason, that humanity that commands respect, that is the ground of dignity, that humanity, that capacity for reason resides undifferentiated in all of us and so I violate that dignity in my own person, if I commit suicide, and in murder if I take somebody else's life.
From a moral point of view they're the same and the reason they're the same has to do with the universal character and ground of the moral law.
The reason that we have to respect the dignity of other people has not to do with anything in particular about them and so respect, Kantian respect, unlike love in this way.
It's unlike sympathy.
It's unlike solidarity or fellow feeling or altruism because love and those other particular virtues or reasons for caring about other people have to do with who they are in particular.
But respect, for Kant, respect is respect for humanity which is universal, for a rational capacity which is universal, and that's why violating it, in my own case, is as objectionable as violating it in the case of any other.
Questions or objections?
Go ahead.
I guess I'm somewhat worried about Kant's statement that you cannot use a person as a means because every person is an end of themselves, because it seems that everyday, in order to get something accomplished for that day, I must use myself as a means to some end and I must use the people around me as a means to some end as well.
For instance, suppose that I want to do well in a class and I have to write a paper.
I have to use myself as a means to write the paper.
Suppose I want to buy something, food, I must go to the store and use the person working behind the counter as a means for me to purchase my food.
Right.
That's true, you do.
What's your name?
Patrick.
Patrick, you're not doing anything wrong.
You're not violating the categorical imperative when you use other people as means, that's not objectionable provided when we deal with other people for the sake of advancing our projects and purposes and interests, which we all do, provided we treat them in a way that is consistent with respect for their dignity and what it means to respect them is given by the categorical imperative.
Are you persuaded?
Do you think that Kant has given a compelling account, a persuasive account, of the supreme principle of morality?
Justice 07 A Lesson in Lying / A Deal is a Deal 谎言的教训/协议就是协议
Funding for this program is provided by Additional funding provided by 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 moral theory in 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.
Kant believes you the only act autonomously when you are pursuing something only the name of duty and not because of your own circumstances such as ®C like you're only doing something good and moral if you're doing it because of duty and not because something of your own personal gain.
Now why is that acting°≠ what's your name?
My name is Matt.
Matt, why is that acting on a freedom?
I hear what you're saying about duty?
Because you choose to accept those moral laws in yourself and not brought on from outside upon onto you.
Okay, good.
Because acting out of duty ®C Yeah.- is following a moral law That you impose on yourself.
That you impose on yourself.
That's what makes duty compatible with freedom.- Yeah.
Okay, that's good Matt.
That is Kant's answer. That's great.
Thank you. So, Kant's answer is it is not in so far as I am subject to the law that I have dignity but rather in so far as with regard to that very same law, I'm the author and I am subordinated to that law on that ground that I took it as much as at 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 and the same.
But that raises the question, how many moral laws are there?
Because if dignity consists and be 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?
Because a moral law trend is not contingent upon seductive conditions.
It would transcend all particular differences between people and so would be a universal law and in this respect there'd only be one moral law because it would be supreme.
Right. That's exactly right.
What's your name?
Kelly.
Kelly. So Kelly, Kant believes that if we choose freely out of our own consciences, the moral law we're guarantee to come up with one and the same moral law. -Yes.
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 is doing the choosing?
Who's the subject? Who is the agent?
Who is doing the choosing?
Reason? - Well reason°≠ Pure reason.
Pure reason and what you mean by pure reason is what exactly?
Well pure reason is like we were saying before not subject to any external conditions that may be imposed on that side.
Good that's' great.
So, the reason that does the willing, the reason that governs my will when I will the moral law is the same reason that operates when you choose the moral law for yourself 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 had said so far.
How is a categorical imperative possible?
How is morality possible?
To answer that question, Kant said 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 holy and empirical being as the utilitarian assume, if I were a being holy 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 pursued 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 probation online 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 to 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 to our Kant's readers think there's something odd and impossible 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 that question by this murder.
You are 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.
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 that's one of the options mentioned.
But I'm not sure that's a Kantian option.
You're still lying though.
No because he's in the house but he won't be.
Oh I see. All right, good enough.
One more try.
If you just say you don't know 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.
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.
Exactly.-So it would be strictly speaking true.
Yes.
And yet possibly deceiving, misleading.-But still true.
What's your name?-John.
John. All right, John has...now John may be on to something.
John you're really 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 the white lie.
What is a white lie?
It's a lie to make...you're 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.
Supposed someone gives you a tie, as a gift, and you open the box and it's just awful.
What do you say? 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.
Thank you." You shouldn't have.
That's good.
Can you think of a contemporary political leader who engaged...you can?
Who are you thinking of?
You 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 in 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?
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 Miss 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?
You know, he doesn't believe he did and because of the °≠ Well he didn't explain it.
He did explain that, 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 like this congressman because you will see it as a hair-splitting evasive answer.
But in his own mind his definition was not...
Okay, I understand that argument.-Okay.
All right, so there you have the exchange.
Now at the time, you may have thought this was just a legalistic hair-splitting exchange between a Republican who wanted to impeach Clinton
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?
Well I think when you try to say that lying and misleading truths are the same thing; you're basing it on consequentialist argument which is that they achieve the same thing.
But the fact to the fact to the matter is you told the truth and you intended that people would believe what you are saying which was the truth which means it is not morally the same as telling a lie and intending that they believe it is the truth even though it is not true.
Good. What's your name?-Diana.
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?
There's someone over here.
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 to sort of mislead someone, it's to lie, it's to sort of throw them off the track and the motivation is the same.
So there should be no difference.
Okay, 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?
Well that ®C you could look 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 t hat they might be deceived and not find out what was going on.
But that your immediate motive is that they should believe you because you're telling the truth.
May I help a little?-Sure.
You and Kant. Why don't you say...and what's your name, I'm sorry?
Wesley.
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, they're hoping that the person will be misled by the statement "I don't know 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, you're 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?-Yes.
You like that?-I do.
Okay. 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 the evasion.
Diana, yes you like? Okay.
And so there is something, some element of respect for the dignity of the moral law in the careful evasion because Clinton
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 at 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 it's at stake, what's morally at stake in Kant's notion of the categorical imperative.
As long as any effort this involved I would say that the contract is valid then.
It should take effect.
But why? What was...what morally can you point to?
For example two people agreed to be married and one suddenly called the other in two minutes say I changed my mind.
Does the contract have obligation on both sides?
Well I am tempted to say no.
Fine.
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 is 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 real constitutional convention would have different interests, values, aims, and it 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 a bargaining power, the special interests the fact that some might know 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 contrives 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 and account of a hypothetical agreement as the basis for justice.
Rawls' 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 social interests." The second respect in which Rawls' 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 fact about ourselves.
That's the idea of the veil of ignorance.
Now what would happen if we gather together just as we are here and try 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 and 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.
Suppose, 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, served 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 and the fact that I benefited from your labor So, contracts sometimes bind us in so far 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 380 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? Okay, stand up.
Why do I owe you?
I called you back after two minutes.
You haven't done any work.
I think I spent the time and effort in drafting this contract with you and also have emotional expectation that I go through the work.
So you took time to draft the contract but we did it very quickly.
We just chatted on the phone.
That wouldn't be a formal form of contract though.
Well I faxed at you.
It only took a minute.
As long as any effort is involved, I would say that the contract is valid then.
It should take effect.
But why? What was...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.
Because one might mentally go through all the work of harvesting the lobsters.
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 lobsters?
It may not worth $100, but it may worth something to some people.
All right, I'll give you a buck for that.
But what I ®C 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 that might be had.
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?
Nobody has done any work or nobody has benefited yet.
Well I'm tempted to say no.
Fine.
All, right. What's your name?-Julian.
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 I have °≠ go ahead, stand up.
I think if you back out it sort of cheapens the institution of contracts.
Good but why? Why does it?
Well I think is kind of Kantian, but there's in almost there's a certain intrinsic value in being able to make contracts and having, you know, knowing people will expect that you'll go through with that.
Good, there is some...it would cheapen the whole idea of contracts which has to do with taking in obligation on myself. Is that the idea?
Yeah, I think so.
What's your name?-Adam.
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 active consent as a voluntary act and it points...
Adam said this was a Kantian idea and I think he is 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 in so far as you do something for me.
Now, when 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 agreed 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.
And one was...there was a two-year aged...there is a two-year aged difference between them and so I had to institute a rule about the trades that no trade was complete until I had approved it 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 agreements were fair.
Now you may say, "Well this is paternalism." Of course it was. That's what paternalism is for that kind of thing.
So what does this show?
What is the baseball cards 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, "Why do you need all of that money for?" And she said, "Well, I have a leaky toilet." And the teller called authorities and they discovered this unscrupulous contractor.
Now, I suspect that even the most ardent contract carryings 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?
Where are you?
So, maybe there's no dispute then to my first claim that an actual agreement is not necessary to their..is not a sufficient condition of there being an obligation.
I want to now make us stronger, maybe more controversial claim about the moral limits of actual contracts that a contract or an active 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 heaps scorn on his 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 us the basis of obligation.
Hume had a house in Edinboro.
He rented 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 the painting and I gave it a very good one." 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 Edinboro 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 met 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 in 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 five 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, "But what is the likelihood that you'll be able to fix the car" and he didn't answer.
But he did start looking under the poking around 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." I didn't go into the distinction between consent based and benefit based applications.
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 and 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 as 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?
Anyone? You do?
Why? Go ahead.
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? I mean...
No, I didn't want it broken.
Yeah in this case. I mean...
But who would?
Who would?
I don't know, someone.
I mean what if Hume, you know, what if the painter that painted his house blue but he hated the color blue, I mean you have to sort of define what your benefit is before the person does it.
Well all right, so what would you conclude for that though for the larger issue here, would you conclude that therefore consent is a necessary condition of their being an obligation?
Absolutely.-You would. What's your name?
Nate.
Because otherwise how can we know, Nate says, whether there has been an exchange of equivalent or fair benefits unless we have the subjective evaluation 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
This part is completely made up by the way.
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 doing 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 haven'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, performance of the contract I mean, I would still with Julian, I'd be able to say but you promised, you promised.
That would isolate the pure element of consent, right where there were no benefits, never mind. You get the idea.
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 are identically situated rather than differently situated?
That is the idea behind Rawls' claim that the way to think about justice is from the standpoint of a hypothetical contract, behind a veil of ignorance that creates the condition of equality by ruling out or enabling us to forget for the moment the differences in power and knowledge that could even in principle lead to unfair results.
This is why for Kant and 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.
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Justice 08 What’s a Fair Start? / What Do We Deserve? 什么是公平的起点？/我们该得到什么？
Today, we turn to the question of distributive justice.
How should income in wealth and power and opportunities be distributed?
According to what principles?
John Rawls offers a detailed answer to that question.
And we're going to examine and assess his answer to that question, today.
We put ourselves in a position to do so last time.
By trying to make sense of why he thinks that principles of justice are best derived from a hypothetical contract.
And what matters is that the hypothetical contract be carried out in an original position of equality, behind, what Rawls calls, the veil of ignorance.
So that much is clear?
Alright, then let's turn to the principles that Rawls says would be chosen behind the veil of ignorance.
First, he considered some of the major alternatives.
What about utilitarianism?
Would the people in the original position choose to govern their collective lives utilitarian principles, the greatest good for the greatest number?
No, they wouldn't, Rawls says.
And the reason is, that behind the veil of ignorance, everyone knows that once the veil goes up, and real life begins, we will each want to be respected with dignity.
Even if we turn out to be a member of a minority.
We don't want to be oppressed.
And so we would agree to reject utilitarianism, and instead to adopt as our first principle, equal basic liberties.
Fundamental rights to freedom of speech, freedom of assembly, religious liberty, freedom of conscience and the like.
We wouldn't want to take the chance that we would wind up as members of an oppressed or a despised minority with the majority tyrannizing over us.
And so Rawls says utilitarianism would be rejected."Utilitarianism makes the mistake", Rawls writes, "of forgetting, or at least not taking seriously, the distinction between persons." And in the original position behind the veil of ignorance, we would recognize that and reject utilitarianism.
We wouldn't trade off our fundamental rights and liberties for any economic advantages.
That's the first principle.
Second principle has to do with social and economic inequalities.
What would we agree to?
Remember, we don't know whether we're going to wind up rich or poor.
Healthy or unhealthy.
We don't know what kind of family we're going to come from.
Whether we're going to inherit millions or whether we will come from an impoverished family.
So we might, at first thought, say, "Well let's require an equal distribution of income and wealth." Just to be on the safe side.
But then we would realize, that we could do better than that.
Even if we're unlucky and wind up at the bottom.
We could do better if we agree to a qualified principle of equality.
Rawls calls it "the Difference Principle".
A principle that says, only those social and economic inequalities will be permitted that work to the benefit of the least well off.
So we wouldn't reject all inequality of income and wealth.
We would allow some.
But the test would be, do they work to the benefit of everyone including those, or as he specifies, the principle, especially those at the bottom.
Only those inequalities would be accepted behind the veil of ignorance.
And so Rawls argues, only those inequalities that work to the benefit of the least well off, are just.
We talked about the examples of Michael Jordan making 81 Of Bill Gates having a fortune in the tens of billions.
Would those inequalities be permitted under the difference principle?
Only if they were part of a system, those wage differentials, that actually work to the advantage of least well off.
Well, what would that system be?
Maybe it turns out that as a practical matter you have to provide incentives to attract the right people to certain jobs.
And when you do, having those people in those jobs will actually help those at the bottom.
Strictly speaking, Rawls's argument for the difference principle is that it would be chosen behind the veil of ignorance.
Let me hear what you think about Rawls's claim that these two principles would be chosen behind the veil of ignorance.
Is there anyone who disagrees that they would be chosen?
Alright, let's start up in the balcony, if that's alright.
Go ahead.
OK, your argument depends upon us believing that we would argue in said policy, or justice from a bottom.
For the disadvantaged.
And I just don't see from a proof standpoint, where we've proven that.
Why not the top?
Right, and what's your name?- Mike.
Mike, alright, good question.
Put yourself behind the veil of ignorance.
Enter into the thought experiment.
What principles would you choose?
How would you think it through?
Well, I would say things like, even Harvard's existence is an example of preaching toward the top.
Because Harvard takes the top academics.
And I didn't know when I was born how smart I would be.
But I worked my life to get to a place of this caliber.
Now, if you had said Harvard's going to randomly take 1600 people of absolutely no qualification, we'd all be saying, "There's not much to work for." And so what principle would you choose?
In that situation I would say a merit based one.
One where I don't necessarily know, but I would rather have a system that rewards me based on my efforts.
So you, Mike, behind the veil of ignorance, would choose a merit-based system, where people are rewarded according to their efforts?
Alright, fair enough.
What would you say?
Go ahead.
My question is, if the merit-based argument is based on when everyone is at a level of equality?
Where from that position, you're rewarded to where you get, or is it regardless of what advantages you may have when you began your education to get where you are here?
I think what the question you're asking is saying that if we want to look at, whatever, utilitarianism, policy, do you want to maximize world wealth.
And I think a system that rewards merit is the one that we've pretty much all established, is what is best for all of us.
Despite the fact that some of us may be in the second percentile and some may be in the 98th percentile.
At the end of the day it lifts that lowest based level, a community that rewards effort as opposed to an differences.
But, I don't understand how you're rewards someone's efforts who clearly has had, not you, but maybe myself, advantages throughout, to get where I am here.
I mean, I can't say that somebody else who maybe worked as hard as I did would have had the same opportunity to come to a school like this.
Alright, let's look at that point.
What's your name?
Kate. -Kate, you suspect that the ability to get into top schools may largely depend on coming from an affluent family.
Having a favorable family background, social, cultural, economic advantages and so on?
I mean, economic, but yes, social, cultural.
All of those advantages, for sure.
Someone did a study, of the 146 selective colleges and universities in the United States
And they looked at the students in those colleges and universities to try to find out what their background was, their economic background.
What percentage do you think, come from the bottom quarter of the income scale?
You know what the figure is?
Only three percent of students, at the most selective colleges and universities come from poor backgrounds.
Over 70 percent come from affluent families.
Let's go one step further then, and try to address Mike's challenge.
Rawls actually has two arguments, not one, in favor of his principles of justice.
And in particular, of the difference principle.
One argument is the official argument, what would be chosen behind the veil of ignorance.
Some people challenge that argument, saying, "Maybe people would want to take their chances.
Maybe people would be gamblers behind the veil of ignorance.
Hoping that they would wind up on top." That's one challenge that has been put to Rawls.
But backing up the argument from the original position is the second argument.
And that is the straightforwardly moral argument.
And it goes like this, it says, the distribution of income and wealth and opportunities should not be based on factors for which people can claim no credit.
It shouldn't be based on factors that are arbitrary from a moral point of view.
Rawls illustrates this by considering several rival theories of justice.
He begins with the theory of justice that most everyone these days would reject.
A feudal aristocracy.
What's wrong with the allocation of life prospects in a feudal aristocracy?
Rawls says, well the thing that's obviously wrong about it is that people's life prospects are determined by the accident of birth.
Are you born to a noble family or to a family of peasants and serfs?
And that's it.
You can't rise.
It's not your doing where you wind up or what opportunities you have.
But that's arbitrary from a moral point of view.
And so that objection to feudal aristocracy leads, and historically has lead, people to say, careers should be open to talents.
There should be formal equality of opportunity regardless of the accident of birth.
Every person should be free to strive, to work, to apply for any job in the society.
And then, if you open up jobs, and you allow people to apply, and to work as hard as they can, then the results are just.
So it's more or less the libertarian system that we've discussed in earlier weeks.
What does Rawls think about this?
He says it's an improvement.
It's an improvement because it doesn't take as fixed the accident of birth.
But even with formal equality of opportunity the libertarian conception doesn't extend that, doesn't extend its insight far enough.
Because if you let everybody run the race, everybody can enter the race, but some people start at different starting points, that race isn't going to be fair.
Intuitively, he says, the most obvious injustice of this system is that it permits distributive shares to be improperly influenced by factors arbitrary from a moral point of view.
Such as, whether you got a good education or not.
Whether you grew up in a family that support you and developed in you a work ethic and gave you the opportunities.
So that suggests moving to a system of fair equality of opportunity.
And that's really the system that Mike was advocating earlier on.
What we might call a merit-based system.
A meritocratic system.
In a fair meritocracy the society sets up institutions to bring everyone to the same starting point before the race begins.
Equal educational opportunities.
Head start programs, for example.
Support for schools in impoverished neighborhoods.
So that everyone, regardless of their family background, has a genuinely fair opportunity.
Everyone starts from the same starting line.
Well, what does Rawls think about the meritocratic system?
Even that, he says, doesn't go far enough in remedying, or addressing, the moral arbitrariness of the natural lottery.
Because if you bring everyone to the same starting point and begin the race, who's going to win the race?
Who would win?
To use the runners example.
The fastest runners would win.
But is it their doing that they happen to be blessed with athletic prowess to run fast?
So Rawls says, "Even the principle of meritocracy, where you bring everyone to the same starting point, may eliminate the influence of social contingencies and upbringing, ...but it still permits the distribution of wealth and income to be determined by the natural distribution of abilities and talents." And so he thinks that the principle of eliminating morally arbitrary influences in the distribution of income and wealth requires going beyond what Mike favors, the meritocratic system.
Now, how do you go beyond?
Do you bring everyone to the same starting point and you're still bothered by the fact that some are fast runners and some are not fast runners, what can you do?
Well, some critics of a more egalitarian conception say the only thing you can do is handicap the fast runners.
Make them wear lead shoes.
But who wants to do that?
That would defeat the whole point of running the race.
But Rawls says, you don't have to have a kind of leveling equality, if you want to go beyond a meritocratic conception.
You permit, you even encourage, those who may be gifted, to exercise their talents.
But what you do, is you change the terms on which people are entitled to the fruits of the exercise of those talents.
And that really is what the difference principle is.
You establish a principle that says, people may benefit from their good fortune, from their luck in the genetic lottery, but only on terms that work to the advantage of the least well off.
And so, for example, Michael Jordan can make 290 only under a system that taxes away a chunk of that to help those who lack the basketball skills that he's blessed with.
Likewise, Bill Gates.
He can make his billions.
But he can't think that he somehow morally deserves those billions."Those who have been favored by nature, may gain from their good fortune but only on terms that improve the situation of those who have lost out." That's the difference principle.
And it's an argument from moral arbitrarianists.
Rawls claims, that if you're bothered by basing distributive shares on factors arbitrary from a moral point of view, you don't just reject a feudal aristocracy for a free market.
You don't even rest content with a meritocratic system that brings everyone to the same starting point.
You set up a system, where everyone, including those at the bottom, benefit from the exercise of the talents held by those who happen to be lucky.
What do you think?
Is that persuasive?
Who finds that argument unpersuasive?
The argument for moral arbitrarianists.
Yes.
I think that in the egalitarian proposition the more talented people, I think it's very optimistic to think that they would still work really hard, even if they knew that part of what they made would be given away.
So I think that the only way for the more talented people to exercise their talents to the best of their ability is in the meritocracy.
And in a meritocracy, what's your name?
Kate.
Kate, does it bother you, and Mike, does it bother you, that in a meritocratic system, that even with fair equality of opportunity, people get ahead, people get rewards that they don't deserve simply because they happen to be naturally gifted.
What about that?
I think that it is arbitrary.
Obviously it's arbitrary.
But I think that correcting for it would be detrimental.
Because it would reduce incentives, is that why?
It would reduce incentives, yeah.
Mike, what do you say?
We're all sitting in this room and we have undeserved, we have undeserved glory of some sort.
So you should not be satisfied with the process of your life.
Because you have not created any of this.
And I think, from a standpoint of, not just this room, us being upset, but from a societal standpoint we should have some kind of a gut reaction to that feeling.
The guy who runs the race, he doesn't...
He actually harms us as opposed to maybe makes me run that last ten yards faster.
And that makes the guy behind me run ten yards faster and the guy behind him ten yards faster.
Alright, so Mike, let me ask you.
You talked about effort before.
Effort.
Do you think when people work hard to get ahead, and succeed, that they deserve the rewards that go with effort?
Isn't that the idea behind your defense?
I mean, of course, bring Michael Jordan here, I'm sure you can get him, and have him come and defend himself about he makes 31 million dollars.
And I think what you're going to realize is his life was a very, very tough one to get to the top.
And that we are basically being the majority oppressing the minority in a different light.
It's very easy to pick on him.
Very easy.
Alright, effort.
You've got...
I've got a few. I've got a few.
But that's about it.
Effort, you know what Rawls's answer to that is?
Even the effort that some people expend, conscientious driving, the work ethic, even effort depends a lot on fortunate family circumstances.
For which you, we, can claim no credit.
Let's do the test.
Let's do a test here.
Never mind economic class, those differences are very significant.
Put those aside.
Psychologists say that birth order makes a lot of difference in work ethic, striving, effort.
How many here, raise your hand, those of you here, who are first in birth order.
I am too by the way.
Mike, I noticed you raised your hand.
If the case for the meritocratic conception is that effort should be rewarded, doesn't Rawls have a point that even effort striving, work ethic is largely shaped even by birth order?
Is it your doing?
Mike, is it your doing that you were first in birth order?
Then why, Rawls says, of course not.
So why should income and wealth and opportunities in life be based on factors arbitrary from a moral point of view?
That's the challenge that he puts to market societies, but also to those of us at places like this.
A question to think about for next time.
A justice of the United States Supreme Court, what do they make?
It's just under $200,000.
But there's another judge who makes a lot more than Sandra Day O'Connor.
Do you know who it is?- Judge Judy?
Judge Judy.
How did you know that?
Judge Judy, you know how much she makes?$25 million.
Now, is that just?
Is it fair?
We ended last time with that remarkable poll, do you remember?
The poll about birth order.
What percentage of people in this room raised their hands, was it, to say that they were the first born?403 And what was the significance of that?
If you're thinking about these theories of distributive justice.
Remember, we were discussing three different theories of distributive justice.
Three different ways of answering the question, "How should income and wealth and opportunities and the good things in life, be distributed?" And so far we've looked at the libertarian answer.
That says, the just system of distribution is a system of free exchange, a free market economy.
Against a background of formal equality.
Which simply means, that jobs and careers are open to anyone.
Rawls says that this represents an improvement over aristocratic and caste systems, because everyone can compete for every job.
Careers open to talents.
And beyond that, the just distribution is the one that results from free exchange.
Voluntary transactions.
No more, no less.
Then Rawls argues, if all you have is formal equality, jobs open to everyone, the result is not going to be fair.
It will be biased in favor of those who happen to be born to affluent families, who happen to have the benefit of good educational opportunities.
And that accident of birth is not a just basis for distributing life chances.
And so, many people who notice this unfairness, Rawls argues, are lead to embrace a system of fair equality of opportunity.
That leads to the meritocratic system.
Fair equality of opportunity.
But Rawls says, even if you bring everyone to the same starting point in the race, what's going to happen?
Who's going to win?
The fastest runners.
So once you're troubled by basing distributive shares on morally arbitrary contingencies, you should, if you reason it through, be carried all the way to what Rawls calls, "the democratic conception".
A more egalitarian conception of distributive justice that he defines by the difference principle.
Now, he doesn't say that the only way to remedy or to compensate for differences in natural talents and abilities is to have a kind of, leveling equality.
A guaranteed equality of outcome.
But he does say there's another way to deal with these contingencies.
People may gain, may benefit from their good fortune, but only on terms that work to the advantage of the least well off.
And so, we can test how this theory actually works by thinking about some paid differentials that arise in our society.
What does the average school teacher make in the United States
Roughly.-$35,000.
It's a little more, 40, $42,000.
What about David Letterman?
How much do you think David Letterman makes?
More than a school teacher?$31 million.
David Letterman.
Is that fair?
That David Letterman makes that much more than a school teacher?
Well, Rawls's answer would be, it depends whether the basic structure of society is designed in such a way that Letterman's $31 million is subject to taxation so that some of those earnings are taken to work for the advantage of the least well off.
One other example of a paid differential.
A justice of the United States Supreme Court.
What do they make?
It's just under $200,000.
Here's Sandra Day O'Connor, for example. There she is.
But there's another judge who makes a lot more than Sandra Day O'Connor.
Do you know who it is?- Judge Judy.
Judge Judy.
How did you know that?
You watch?
You're right.
Judge Judy, you know how much she makes?
There she is.$25 million.
Now, is that just?
Is it fair?
Well, the answer is, it depends on whether this is against a background system in line with the difference principle.
Where those who come out on top, in terms of income and wealth are taxed in a way that benefits the least well off members of society.
Now, we're going to come back to these wage differentials, pay differentials, between a real judge and a TV judge.
The one Marcus watches all the time.
What I want to do now, is return to these theories and to examine the objections to Rawls's more egalitarian theory.
The difference principle.
There are at least three objections to Rawls's difference principle.
One of them came up last time in the discussion and a number of you raised this worry.
What about incentives?
Isn't there the risk, if taxes reach 506 that Michael Jordan won't play basketball?
That David Letterman won't do late night comedy?
Or that CEOs will go into some other line of work?
Now, who among those who are defenders of Rawls who has an answer to this objection about the need for incentives?
Yes. Go ahead, stand up.
Rawls's idea is that there should only be so much difference that it helps the least well off the most.
So if there's too much equality, then the least well off might not be able to watch late night TV, or might not have a job because their CEO doesn't want to work.
So you need to find the correct balance where taxation still leaves enough incentive to least well off to benefit from the talents.- Good.
And what's your name?- Tim.
Tim. Alright, so Tim is saying, in effect, that Rawls is taking count of incentives.
And could allow for pay differentials and for some adjustment in the tax rate to take account of incentives.
But, Tim points out, the standpoint from which the question of incentives needs to be considered is not the effect on the total size of the economic pie.
But instead from the standpoint of the effect of incentives, or disincentives, on the well-being of those on the bottom.
Right?
Good. Thank you.
I think that is what Rawls would say.
In fact, if you look in section 17, where he describes the difference principle, he allows for incentives."The naturally advantaged are not gain merely because they are more gifted, but only to cover the costs of training and education and for using their endowments in ways that help less fortunate as well." So you can have incentives.
You can adjust the tax rate.
If taking too much from David Letterman or from Michael Jordan, or from Bill Gates, winds up actually hurting those at the bottom.
That's the test.
So incentives, that's not a decisive objections against Rawls's difference principle.
But there are two weightier, more difficult objections.
One of them comes from defenders of a meritocratic conception.
The argument that says, what about effort?
What about people working hard having a right to what they earn because they've deserved it.
They've worked hard for it.
That's the objection from effort and moral desert.
Then there's another objection.
That comes from libertarians.
And this objection has to do with reasserting the idea of self-ownership.
Doesn't the difference principle, by treating our natural talents and endowments as common assets, doesn't that violate the idea that we own ourselves?
Now, let me deal first, with the objection that comes from the libertarian direction.
Milton Friedman writes, in his book, "Free to Choose," "Life is not fair.
And it's tempting to believe that government can rectify what nature has spawned." But his answer is, "The only way to try to rectify that is to have a leveling equality of outcome." Everyone finishing the race at the same point.
And that would be a disaster.
This is an easy argument to answer.
And Rawls addresses it.
In one of the most powerful passages, I think, of the theory of justice.
It's in Section 17."The natural distribution", and here he's talking about the natural distribution talents and endowments."...is neither just nor unjust."Nor is it unjust that persons are born into society at some particular position.
These are simply natural facts.
What is just and unjust is the way that institutions deal with these facts." That's his answer to libertarian laissez faire economists like Milton Friedman who say, "Life is unfair but get over it." Get over it and let's see if we can, at least, maximize the benefits that flow from it.
But the more powerful libertarian objection to Rawls is not libertarian from the libertarian economists like Milton Friedman.
It's from the argument about self-ownership.
Developed as we saw, in Nozick.
And from that point of view, yes, it might be a good thing, to create head start programs and public schools so that everyone can go to a decent school and start the race at the same starting line.
That might be good.
But if you tax people to create public schools, if you tax people against their will, you coerce them.
It's a form of theft.
If you take some of Letterman's $31 million, tax it away to support public schools, against his will, the state is really doing no better than stealing from him.
It's coercion.
And the reason is, we have to think of ourselves as owning our talents and endowments.
Because otherwise we're back to just using people and coercing people.
That's the libertarian reply.
What's Rawls's answer to that objection?
He doesn't address the idea of self-ownership directly.
But the effect, the moral weight of his argument for the difference principle is, maybe we don't own ourselves in that thoroughgoing sense after all.
Now, he says, this doesn't mean that the state is an owner in me, in the sense that it can simply commandeer my life.
Because remember, the first principle we would agree to behind the veil of ignorance, is the principle of equal basic liberties.
Freedom of speech, religious liberty, freedom of conscience and the like.
So the only respect in which the idea of self-ownership must give way, comes when we're thinking about whether I own myself in the sense that I have a privileged claim on the benefits that come from the exercise of my talents in a market economy.
And Rawls says, on reflection, we don't.
We can defend rights.
We can respect the individual.
We can uphold human dignity.
Without embracing the idea of self-possession.
That, in effect, is his reply to the libertarian.
I want to turn now, to his reply to the defender of a meritocratic conception.
Who invokes effort as the basis of moral desert.
People who work hard to develop their talents deserve the benefits that come from the exercise of their talents.
Well, we've already seen the beginning of Rawls's answer to that question.
And it goes back to that poll we took about birth order.
His first answer is even the work ethic, even the willingness to strive conscientiously, depends on all sorts of family circumstances and social and cultural contingencies for which we can claim no credit.
You can't claim credit for the fact that you, most of you, most of us, happen to be first in birth order.
And that for some complex psychological and social reasons that seems to be associated with striving, with achieving, with effort.
That's one answer.
There's a second answer.
Those of you who invoke effort, you don't really believe that moral desert attaches to effort.
Take two construction workers.
One is strong and can raise four walls in an hour without even breaking a sweat.
And another construction worker is small and scrawny.
And has to spend three days to do the same amount of work.
No defender of meritocracy is going to look at the effort of that weak an scrawny construction worker and say "Therefore he deserves to make more".
So it isn't really effort.
This is the second reply to the meritocratic claim.
It isn't really effort that the defender of meritocracy believes is the moral basis of distributive shares.
It's contribution.
How much do you contribute?
But contribution takes us right back to our natural talents and abilities.
Not just effort.
And it's not our doing, how we came into the possession of those talents in the first place.
Alright, suppose you accepted these arguments, that effort isn't everything, that contribution matters, from the standpoint of the meritocratic conception.
That effort, even, isn't our own doing.
Does that mean, the objection continues, does that mean that according to Rawls, moral desert has nothing to do with distributive justice?
Well, yes.
Distributive justice is not about moral desert.
Now, here, Rawls introduces an important and a tricky distinction.
It's between moral desert, on the one hand, and entitlements to legitimate expectations, on the other.
What is the difference between moral deserts and entitlements?
Consider two different games.
A game of chance and a game of skill.
Take a game of pure chance.
Say, I play the Massachusetts
And my number comes up.
I'm entitled to my winnings.
But even though I'm entitled to my winnings, there's no sense in which, because it's just a game of luck, no sense in which, I morally deserve to win in the first place.
That's an entitlement.
Now contrast the lottery with a different kind of game.
A game of skill.
Now, imagine the Boston Red Sox winning the World Series.
When they win, they're entitled to the trophy.
But it can be always asked of a game of skill did they deserve to win?
It's always possible, in principle, to distinguish what someone's entitled to, under the rules, and whether they deserve to win in the first place.
That's an antecedent standard.
Moral desert.
Now, Rawls says distributive justice is not a matter of moral desert though it is a matter of entitlements to legitimate expectations.
Here's where he explains it."A just scheme answers to what men are entitles to.
It satisfies their legitimate expectations as founded upon social institutions.
But what they are entitled to is not proportional to nor dependent upon their intrinsic worth." "The principles of justice that regulate the basic structure do not mention moral desert and there is no tendency for distributive shares to correspond to it." Why does Rawls make this distinction?
What, morally, is at stake?
One thing morally at stake is the whole question of effort that we've already discussed.
But there's a second contingency, a second source of moral arbitrariness that goes beyond the question of whether it's to my credit that I have the talents that enable me to get ahead.
And that has to do with the contingency that I live in an society that happens to prize my talents.
The fact that David Letterman lives in a society that puts a great premium, puts a great value, on a certain type of smirky joke, that's not his doing.
He's lucky that he happens to live in such a society.
But this is a second contingency.
This isn't something that we can claim credit for.
Even if I had sole, unproblematic, claim to my talents and to my effort.
It would still be the case, that the benefits I get from exercising those talents, depend on factors that are arbitrary from a moral point of view.
What my talents will reap in a market economy.
What does that depend on?
What other people happen to want or like in this society.
It depends on the law of supply and demand.
That's not my doing.
It's certainly not the basis for moral desert.
What counts as contributing depends on the qualities that this or that society happens to prize.
Most of us are fortunate to possess, in large measure, for whatever reason, the qualities that our society happens to prize.
The qualities that enable us to provide what society wants.
In a capitalist society it helps to have entrepreneurial drive.
In bureaucratic society it helps to get on easily and smoothly with superiors.
In a mass democratic society it helps to look good on television and to speak in short, superficial sound bites.
In a litigious society, it helps to go to law school and have the talents to do well on LSATs.
But none of this is our doing.
Suppose that we, with our talents, inhabited not our society, technologically advanced, highly litigious, but a hunting society, or a warrior society.
What would become of our talents then?
They wouldn't get us very far.
No doubt some of us would develop others.
But would we be less worthy?
Would we be less virtuous?
Would we be less meritorious if we lived in that kind of society rather than in ours.
Rawls's answer is, no.
We might make less money and properly so.
But while we would be entitled to less, we would be no less worthy.
No less deserving than we are now.
And here's the point.
The same could be said of those in our society who happen to hold less prestigious positions, who happen to have fewer of the talents that our society happens to reward.
So here's the moral import of the distinction between moral desert and entitlements to legitimate expectations.
We are entitled to the benefits that the rules of the game promise for the exercise of our talents.
But it's a mistake and a conceit to suppose that we deserve, in the first place, a society that values the qualities we happen to have in abundance.
Now we've been talking here about income and wealth, what about opportunities and honors?
What about the distribution of access of seats in elite colleges and universities?
It's true, all of you most of you first born, worked hard, strived, developed your talents, to get here.
But Rawls asks, in effect, what is the moral status of your claim to the benefits that attach to the opportunities that you have?
Are seats in colleges and universities a matter, a kind of reward, an honor for those who deserve them, because they've worked so hard?
Or, are those seats, those opportunities and honors entitlements to legitimate expectations that depend for their justification on those of us who enjoy them doing so in a way that works to the benefit of those at the bottom of society?
That's the question that Rawls's difference principle poses.
It's a question that can be asked of the earnings of Michael Jordan and David Letterman and Judge Judy.
But it's also a question that can be asked of opportunities to go to the top colleges and universities.
