9-28 Lecture.docx

28 September Lecture David Hume?Of the Original Contract Historical Consent: state is legitimate iff it originally arose my consent Hypothetical consent: state is legitimate iff it would be rational for free, equal persons to consent to it Actual consent: individual is obligated to obey state iff State is legitimate Individual has consented Individual is within state?s jurisdiction Hume?s critique of historical consent: Fact: most states arose by violence, not consent. What follows, given historical consent theory? Most states are illegitimate What follows, given actual consent theory? There is no obligation to obey the laws of most states Why does Hume think these implications are absurd? Consent theory grants a license to catastrophic social disorder. Fact: It is usually impossible to get the consent of all. We need better ways to found states Locke?s best response: reject historical consent theory, which contradicts hypothetical consent Hume?s critique of actual consent theory: ?Can we seriously say, that a poor peasant or artisan has a free choice to leave his country, when he knows no foreign language or manners, and lives from day to day, by the small wages which he acquires? W4e may as well assert, that a man, by remaining in a vessel, freely consents to the dominion of the master; though he was carried on board while asleep, and must leap into the ocean, and perish, the moment he leaves her.? Consent obligates only if it is freely given Free consent requires effective access to reasonable alternatives In order for your consent to be freely given, it requires that you have real options, real alternatives that you have access to. Furthermore, these alternatives have to be reasonable. Choosing between jumping off the boat or staying on and obeying the captain is not really a choice, since the consequence of one is death. The poor don?t choose their state freely (they don?t have a reasonable option) They don?t have the equipment to learn new culture, don?t know how to make a living in a foreign country, etc. Therefore, Locke?s tacit consent theory (e.g. walking on the highway, bridges) cannot obligate them. Consent obligates only if not given out of sense of obligation. Fact: Almost all believe they owe allegiance to the state independent of their consent. So, consent adds no new ground of obligation. Should payment/performance be required? (cases): Must I pay for unsolicited car repair (well done, at below market price)? May employer dock employee whole day?s pay for one minute late to work (assuming negligible cost to employer from lateness)? Depends on the contract?whether it is stated in the contract that you cannot be late or else you will not be paid for the entire day. Must aunt pay your tuition if she promised to do so (without asking anything from you)? If you have the money and resources to pay on your own, then it?s okay for the aunt to renig because you have reasonable alternatives. Similar to the Michigan Promise Scholarship? Must aunt pay your tuition if she promised to do so if you quit smoking (and you did quit)? She is obligated in this case because there was a deal and she needs to uphold her side of the deal. OR she is less obligated in this case because you are already benefitting from quitting smoking, so she is less obligated to do more for you and pay your tuition for you. I don?t think this argument would hold in a legal context. If I contract with you to rent construction equipment for $1000, must I supply it for that price, or may I rent it for $5000 to another party, and pay you $1000 damages? Comment by Your User Name: Distinction between these two scenarios: labor vs. object. Employees can walk away from their contracts. If I contract with you to work construction equipment for $1000, must I do so, or may I hire my construction skills to a competing employer for $5000? If you hire me to pass your Law&Phil exam, and I fail it, can you sue me? THREE theories of the obligation of contracts: Reciprocity (fairness): if you do something for me, I?ll do something for you. Advantage: no obligation to fulfill unfair, exploitative contracts E.g. case 2 above is unfair Disadvantage: entitles others to put you under involuntary obligation, by granting unsolicited favors E.g. case 1 above Reliance: obligation to fulfill reasonable expectations you raise in others, on which they rely. E.g. aunt cases Version (a): reasonable reliance itself creates obligation (if someone relies on your word, then you have obligation to carry it through) Advantage: recipients of unreciprocated promises of gifts entitle to enforcement Disadvantage: others can put you under involuntary liability just by relying on you Version (b): utility of having a reliance mechanism: enables planning ahead Advantage: not bound to specifically perform inefficient contracts Disadvantage: people can get away with breaking promises Autonomy: will theory of contract?a promise is a promise Consent expresses agent?s free will, and now you are bound simply because you consented The only theory that gives consent independent binding force.