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哈佛大学公开课
公正课 迈克尔・桑德尔教授主讲
第十三讲 《有关谎言的一课》
上次我们开始... Last time we began trying to ...
开始尝试用我们的方式来理解康德的道德哲学 we began by trying to navigate our way through Kant's moral theory.
想充分理解康德《道德形而上学基础》中的道德哲学 Now, fully to make sense of Kant moral theory in the Groundwork
我们需要解答三个问题 requires that we be able to answer three questions.
义务和自律如何统一 How can duty and autonomy go together?
履行义务高尚在哪里 What's the great dignity in answering to duty?
义务和自律 这两个概念看似对立 It would seem that these two ideas are opposed duty and autonomy.
康德就此又如何解释 What's Kant's answer to that?
请哪位同学告诉我们康德的观点 Need someone here to speak up on Kant's behalf.
他对这些问题有答案吗 Does he have an answer?
好 你来 站起来说 Yes, go ahead, stand up.
康德认为当人仅因义务 Kant believes you the only act autonomously
而非自身处境去追求什么时 when you are pursuing something only the name of duty
才称得上完全的自律 and not because of your own circumstances
比如 如果你是出于义务 such as - like you're only doing something good and moral
而非任何个人目的做一件事 if you're doing it because of duty
这才是好事 是道德的 and not because something of your own personal gain.
为什么这种行为... 你叫什么 Now why is that acting... what's your name?
马特 My name is Matt.
马特 为什么这种行为是自主的呢 Matt, why is that acting on a freedom?
你刚提到了义务... I hear what you're saying about duty...
因为是你自己选择接受这些道德法则 Because you choose to accept those moral laws in yourself
而非被外界强迫 and not brought on from outside upon onto you.
很好 因为履行义务其实是在遵循... Okay, good. Because acting out of duty is following a moral law...
你给自己制定的道德法则 That you impose on yourself.
你给自己制定的道德法则 that you impose on yourself.
这使得义务与自主相统一 That's what makes duty compatible with freedom.
很好 马特 Okay, that's good Matt.
这正是康德的解答 非常好 That is Kant's answer. That's great.
谢谢 康德对此的解答是 Thank you. So, Kant's answer is
我并不因遵循法则而崇高 it is not in so far as I am subject to the law that I have dignity
而是由于我所遵循的这一法则 but rather in so far as with regard to that very same law,
是我自主决定 自愿服从的 I'm the author and I am subordinated to that law
因此 我对其负有完全的责任 on that ground that I took it, as much as I said, I took it upon myself.
我决定了这一法则 I willed that law.
这就是为什么康德说 So that's why for Kant
履行义务和自律意义上的自由 acting according to duty and acting freely in the sense of autonomously
高度统一 相互等价 are one and the same.
但这又引发了新问题 But that raises the question,
究竟有多少道德法则 how many moral laws are there?
因为如果高尚源于遵守为自己制定的法则 Because if dignity consists in being governed by a law that I give myself,
那如何保证我的道德心和你的一样呢 what's to guarantee that my conscience will be the same as your conscience?
康德怎么回答这个问题呢 你来说 Who has Kant's answer to that? Yes?
因为道德法则并不取决于主观条件 Because a moral law trend is not contingent upon subjective conditions.
它超越了任何人与人之间的个体差异 It would transcend all particular differences between people
因此是一种普遍的法则 and so would be a universal law
从这方面来说 and in this respect
只存在一种道德法则 因为它至高无上 there'd only be one moral law because it would be supreme.
没错 很准确 你叫什么 Right. That's exactly right. What's your name?
凯丽 Kelly.
那么凯丽 康德认为 Kelly. So Kelly, Kant believes
如果我们出于自己的道德心 自主选择道德法则 that if we choose freely out of our own consciences, the moral law
我们就一定会提出相同的道德法则 we're guarantee to come up with one and the same moral law.
因为当我选择时 And that's because when I choose
那其实不是我迈克尔・桑德尔在选择 it's not me, Michael Sandel choosing.
凯丽 你也不是在为自己选择 It's not you, Kelly choosing for yourself?
那究竟是怎样 究竟谁在选择 What is it exactly? Who is doing the choosing?
谁是主体 谁是媒介 谁又在选择 Who's the subject? Who is the agent? Who is doing the choosing?
-理性 -好的 理性 - Reason? - Well reason...
纯粹理性 Pure reason.
你说的纯粹理性到底是什么 Pure reason and what you mean by pure reason is what exactly?
纯粹理性 如我们之前所说 Well, pure reason is, like we were saying before,
不受到任何可能的外界条件影响 not subject to any external conditions that may be imposed on that side.
非常好 所以说选择道德法则的理性 Good, that's' great. So, the reason that does the willing,
我决定道德法则时 支配我意志的理性 the reason that governs my will when I will the moral law
和你选择时 支配你意志的理性 都是一样的 is the same reason that operates when you choose the moral law for yourself
这使得我可以自主选择 and that's why it's possible to act autonomously to choose for myself,
每个人作为自主的个体 都可以自主选择 for each of us to choose for ourselves as autonomous beings
并最终都得以选择同样的道德法则 and for all of us to wind up willing the same moral law,
这就是绝对命令 the categorical imperative.
但即使我们认可了马特和凯丽的解释 But then there is one big and very difficult question left
仍然存在一个很复杂的难题 even if you accept everything that Matt and Kelly had said so far.
绝对命令如何可能存在呢 How is a categorical imperative possible?
道德又如何可能存在 How is morality possible?
为了回答这个问题 To answer that question,
康德认为我们需要加以区分 Kant said we need to make a distinction.
我们需要区分两种论点 We need to make a distinction between two standpoints,
两种解释人类体验的论点 two standpoints from which we can make sense of our experience.
我来尝试解释康德对这两个论点的看法 Let me try to explain what he means by these two standpoints.
作为体验的客体 我属于感观世界 As an object of experience, I belong to the sensible world.
我的行为受自然法则 There my actions are determined by the laws of nature
以及因果规律的支配 and by the regularities of cause and effect.
但作为体验的主体 我属于理智世界 But as a subject of experience, I inhabit an intelligible world here
独立于自然法则 being independent of the laws of nature,
我可以自主 I am capable of autonomy,
可以按照自己制定的法则做事 capable of acting according to a law I give myself.
康德说 Now Kant says that,
只有在第二种论点成立时 我才能认定自己自由 "Only from this second standpoint can I regard myself as free
因为自由就是不受感官世界他因所支配 for to be independent of determination by causes in the sensible world is to be free
假设我属于功利主义者眼中虔诚的经验主义者 If I were holy and empirical being as the utilitarian assume,
如果我只服从自己的感官 if I were a being holy and only subject to the deliverances of my senses,
痛苦 欢乐 饥饿 欲望 to pain and pleasure and hunger and thirst and appetite,
如果这就是人性的全部 if that's all there were to humanity,
我们不可能有真正的自由 康德推理道 we wouldn't be capable of freedom, Kant reasons
因为这种情况下每种意志 because in that case every exercise of will
都伴随着对某种目标的渴望 would be conditioned by the desire for some object.
这样 所有选择都将受外界支配 In that case all choice would be heteronomous choice
被对某种外在目标的追寻所主导 governed by the pursued of some external end.
康德说 当我们认为自己自由的时候 "When we think of ourselves as free," kant writes,
我们就将自己上升到了理智世界 "We transfer ourselves into the intelligible world as members
并且意识到意志的自主性 and recognize the autonomy of the will."
这就是两个论点的解释 That's the idea of the two standpoints.
那么绝对命令如何成为可能 So how are categorical imperatives possible?
只因为觉得自由就能让我进入理智世界吗 Only because the idea of freedom makes me a member of an intelligible world?
康德承认我们不仅是理性的存在 Now Kant admits we aren't only rational beings.
我们并不仅仅生活在理智世界 自由的领域 We don't only inhabit the intelligible world, the realm of freedom.
因为如果那样 If we did -- if we did,
我们所有的行为将总是与自主意志相一致 then all of our actions would invariably accord with the autonomy of the will.
但正因为我们同时从属于两种世界 But precisely because we inhabit simultaneously the two standpoints,
两个领域 自由领域和必要性领域 the two realms, the realm of freedom and the realm of necessity
正因为我们同时属于这两个领域 precisely because we inhabit both realms
我们所做和应该做的事之间总是可能不同 there is always potentially a gap between what we do and what we ought to do
这是理所应当的 between is an ought.
换种方式来说 Another way of putting this point
正是基于上述事实 and this is the point with which
康德得出道德不等同于经验主义的基本结论 Kant concludes the groundwork, morality is not empirical.
无论你看到了什么 Whatever you see in the world,
无论你通过科学发现了什么 whatever you discover through science
都不能解决道德问题 can't decide moral questions.
道德与这个充斥着经验主义的世界 Morality stands at a certain distance from the world,
保持着特定的距离 from the empirical world.
这也是为什么没有科学能够揭示道德真相 And that's why no science could deliver moral truth.
现在我想用最难的案例来检验康德的理论 Now I want to test Kant's moral theory with the hardest possible case,
他提出的 门外凶手的案例 a case that he raises, the case of the murderer at the door.
我们都知道康德认为说谎是不对的 Kant says that lying is wrong. We all know that.
也讨论过原因 We've discussed why.
因为谎言不符合绝对命令 Lying is at odds with the categorical imperative.
法国哲学家本杰明・贡斯当 A French philosopher,Benjamin Constant
写了篇文章驳斥这个理论 wrote an article responding to the groundwork
他说 这完全是无稽之谈 where he said, "This absolute probation online is wrong, it can't be right."
如果凶手来敲门 What if a murderer came to your door
找躲在你家里的你朋友 怎么办 looking for your friend who was hiding in your house?
而且如果凶手直接问你 And the murderer asked you point blank,
你朋友在你家吗 "Is your friend in your house?"
贡斯当认为 只有疯子才会认为 Constant says, "It would be crazy to say
在这种情况下说实话是道德的 that the moral thing to do in that case is to tell the truth."
贡斯当认为凶手不该知道实情 Constant says the murderer certainly doesn't deserve the truth
康德对此也作出了回应 and Kant wrote to reply.
他坚持他的原则认为 And Kant stuck by his principle
即使对上门的凶手撒谎也是不对的 that lying even to the murderer at the door is wrong.
至于原因 他解释道 And the reason it's wrong, he said
一旦你开始考虑事情的后果 is once you start taking consequences into account
试图找出绝对命令的例外 to carve out exceptions to the categorical imperative,
你已经放弃了整个道德框架 you've given up the whole moral framework.
成为一个结果主义者 或规则功利主义者 You've become a consequentialist or maybe a rule utilitarian.
但在座大部分人 以及康德的大部分读者 But most of you and most to our Kant's readers
都认为这个解释有点不可理喻 think there's something odd and impossible about this answer.
我想试着论证康德这一观点 I would like to try to defend Kant on this point
并想看看大家是否认为我的解释说得通 and then I want to see whether you think that my defense is plausible,
我会用他的道德理论来为他辩解 and I would want to defend him within the spirit of his own account of morality.
想象一下凶手来到你家门 Imagine that someone comes to your door.
问了你这个问题 You were asked that question by this murder.
你朋友躲在你家里 You are hiding your friend.
有没有方法可以既不用说谎 Is there a way that you could avoid telling a lie
也不用出卖你的朋友呢 without selling out your friend?
有人有解决办法吗 Does anyone have an idea of how you might be able to do that?
好的 请起立 Yes? Stand up.
我想说 I was just going to say
如果一开始我让朋友躲在我家 if I were to let my friend in my house to hide in the first place,
我会和他说好 I'd probably make a plan with him
比如说 我会跟凶手说你在这里 但你要逃走 so I'd be like, "Hey I'll tell the murderer you're here, but escape,"
这是一种方案 And that's one of the options mentioned.
但我不认为康德会作出这种选择 But I'm not sure that's a Kantian option.
毕竟你仍然撒谎了 You're still lying though.
没有啊 因为他现在确实在我家 但将来不在 No, because he's in the house but he won't be.
明白了 不错 你再试试 Oh I see. All right, good enough. One more try.
你可以只说你不知道他在哪里 If you just say you don't know where he is
因为他可能没被锁在衣柜里 已经不在衣柜了 because he might not be locked in the closet. He might have left the closet.
你不清楚他具体可能在哪 You have no clue where he could be.
所以你可以说不知道 其实并没说谎 So you would say, I don't know which wouldn't actually be a lie
因为那个时刻你确实不知道衣柜里的情况 because you weren't at that very moment looking in the closet.
-没错 -所以这完全是句真话 - Exactly. - So it would be strictly speaking true.
对 Yes.
-虽然可能有误导作用 -但仍是实话 - And yet possibly deceiving, misleading. - But still true.
-你叫什么 -约翰 - What's your name? - John.
很好 约翰也许说得很有道理 John. All right, John has... now John may be on to something.
你给了我们一个很聪明的借口 John you're really offering us the option of a clever evasion
那严格说确实是实话 that is strictly speaking true.
这又提出了新的问题 This raises the question
直接的谎言和误导性的实话之间 whether there is a moral difference between
存在道德上的差异吗 an outright lie and a misleading truth.
在康德看来 From Kant's point of view
在谎言和误导性的实话之间是存在差别的 there actually is a world of difference between a lie and a misleading truth.
为什么呢 这两者可能导致同样的后果啊 Why is that even though both might have the same consequences?
请记住 康德的道德观不关注后果 But then remember Kant doesn't base morality on consequences.
他只关注于坚守道德法则 He bases it on formal adherence to the moral law.
在日常生活中 Now, sometimes in ordinary life
我们有时候会违背法则说善意的谎言 we make exceptions for the general rule against lying with the white lie.
什么是善意的谎言 What is a white lie?
它是这样一种谎言 It's a lie to make...
比如 使你避免伤害某人的感情 you're well to avoid hurting someone's feelings for example.
我们认为是为了后果才说这样的谎言 It's a lie that we think of as justified by the consequences.
康德不会赞同善意的谎言 Now Kant could not endorse a white lie
但或许他会支持误导性的实话 but perhaps he could endorse a misleading truth.
比如有人送你条领带 你打开盒子 Supposed someone gives you a tie, as a gift, and you open the box
发现实在很难看 你会怎么说 and it's just awful. What do you say?
谢谢 Thank you.
你可以说谢谢 You could say thank you.
但他们在等着你的反应 But they're waiting to see what you think of it
或会直接问你觉得怎么样 or they ask you what do you think of it?
你可以说善意的谎言 说它很好看 You could tell a white lie and say it's beautiful.
但在康德看来这是不被允许的 But that wouldn't be permissible from Kant's point of view.
如果不说善意的谎言而说误导性的实话呢 Could you say not a white lie but a misleading truth,
你打开盒子 然后说 you open the box and you say,
我从未见过这样的领带 多谢 "I've never seen a tie like that before. Thank you."
你确实没见过这样的 You shouldn't have.
不错 That's good.
你能举出一个现代政治家的例子吗 可以吗 Can you think of a contemporary political leader who engaged...you can?
你们都想到了谁 Who are you thinking of?
比尔・克林顿在莫妮卡・莱温斯基事件中 You remember the whole carefully worded denials
谨慎的否认措辞 大家还记得吧 in the Monica Lewinsky affair of Bill Clinton.
这些否认成为了弹劾听证会上 Now, those denials actually became the subject of very explicit debate
讨论争辩的主体了 in argument during the impeachment hearings.
看看比尔・克林顿发言片段吧 Take a look at the following excerpts from Bill Clinton.
你们是否觉得区分谎言和误导性实话 Is there something do you think morally at stake in the distinction
存在道德瑕疵呢 between a lie and a misleading carefully couched truth?
比尔・克林顿总统 1998年1月26日
我想告诉所有美国公民 I want to say one thing to the American people.
我希望大家能听我说 我重申一遍 I want you to listen to me. I'm going to say this again.
我和那个女人 莱温斯基小姐 没有发生性关系 I did not have sexual relations with that woman Miss Lewinsky.
我从没让任何人就此撒谎 从来没有 I never told anybody to lie not a single time, never.
所有的指控都是无稽之谈 These allegations are false.
众议院司法委员会 弹劾听证会 1998年12月8日
当他说 我没跟那个女人发生性关系时 Did he lie to the American people
他对全美公民撒谎了吗 when he said I never had sex with that woman?
其实 他确实不觉得自己撒谎 因为... You know, he doesn't believe he did and because of the...
他没有解释这个 Well he didn't explain it.
议员 他解释了 He did explain that, explain congressman.
他告诉美国公民的是 What he said was to the American people
他从未和她发生性关系 that he did not have sexual relations
我理解你不会喜欢这说法 议员 and I understand you're not going to like this congressman
可能你会觉得这是个无聊的刻意回避 because you will see it as a hair-splitting evasive answer.
但他自己确实觉得这不叫性关系 But in his own mind his definition was not...
-好了 我理解了 -好 - Okay, I understand that argument. - Okay.
好 看过了这段辩论 All right, so there you have the exchange.
大家现在可能会觉得 Now at the time, you may have thought
这些不过是想弹劾克林顿的共和党人 this was just a legalistic hair-splitting exchange
和一个试图为他辩护的律师之间 between a Republican who wanted to impeach Clinton
在法律基础上的无谓争论 and a lawyer who is trying to defend him.
但按康德的观点来看 But now in the light of Kant,
大家觉得区分谎言和有误导性的阐述 do you think there is something morally at stake in the distinction
存在某种道德瑕疵吗 between a lie and an evasion, a true but misleading statement?
我希望听听康德支持者的观点 I'd like to hear from defenders of Kant.
认为这之中存在区别的人 People who think there is a distinction.
你准备好为康德辩解了吗 Are you ready to defend Kant?
我觉得当你试图阐明 Well I think when you try to say
谎言和误导性的实话没有区别时 that lying and misleading truths are the same thing;
你实际上依据的是结果主义者的观点 you're basing it on consequentialist argument
即两者的结果相同 which is that they achieve the same thing.
但事实上 关键的是 But the fact that matters is
你说了实话 you told the truth
并且希望大家相信你的真话 and you intended that people would believe what you are saying, which was the truth
这意味着 这和你说了谎 which means it is not morally the same as telling a lie
却希望别人相信你的谎话 是有道德区别的 and intending that they believe it is the truth, even though it is not true.
-很好 你叫什么 -戴安娜 - Good. What's your name? - Diana.
那么戴安娜认为康德的观点没错 So Diana says that Kant has a point here
即使这个论点可能支持比尔・克林顿 and it's a point that might even come to the aid of Bill Clinton and that is...
大家怎么看 well what about that?
那边的同学 There's someone over here.
对康德来说 动机是关键 For Kant motivation is key,
如果你告诉别人真相 so if you give to someone
根本上是为了让自己问心无愧的话 because primarily you want to feel good about yourself
康德会认为这没有任何道德价值 Kant would say that has no moral worth.
就这件事来说 动机还是一样 Well with this, the motivation is the same.
是想误导别人 是撒谎 It's to sort of mislead someone, it's to lie,
是为了摆脱他们的追查 动机是一样的 it's to sort of throw them off the track and the motivation is the same.
所以没有什么区别 So there should be no difference.
好的 那戴安娜 动机不一样吗 Okay, good. So here isn't the motive the same Diana?
你怎么反驳两者动机相同这个观点 What do you say to this argument that well the motive is the same in both cases
它们都试图或至少希望有人被误导 there is the attempt or at least the hope that one's pursuer will be misled?
嗯 你也可以这么说 Well that you could look it that way
但我认为实际上 but I think that the fact is
你的直接动机是他们应该相信你 that your immediate motive is that they should believe you.
最后的结果可能是他们会被欺骗 The ultimate consequence of that is that they might be deceived
且没有发现事实真相 and not find out what was going on.
但你的直接动机是他们应该相信你 But that your immediate motive is that they should believe you
因为你说的是事实 because you're telling the truth.
-我来帮你解释下吧 -好的 - May I help a little? - Sure.
帮你和康德 你为何不说 You and Kant. Why don't you say...
抱歉 你叫什么名字 and what's your name, I'm sorry?
韦斯利 Wesley.
你为何不这样告诉韦斯利 Why don't you say to Wesley
这两种情况的动机并不是都为了误导 it's not exactly the case that the motive in both cases is to mislead?
他们希望人们被误导 就会这样说 They're hoping, they're hoping that the person will be misled by the statement
我不知道他们在哪 "I don't know where they are"
或我从未和她发生过性关系 Or "I never had sexual relations."
你希望他们会被误导 You're hoping that they will be misled
但当你说实话时 but in the case where you're telling the truth,
你的动机是误导别人 your motive is to mislead
但与此同时又遵从道德法则 说实话 while at the same time telling the truth and honoring the moral law
并仍然在绝对命令允许的范围之内 and staying within the bounds of the categorical imperative.
我想康德是这么认为的 I think Kant's answer would be
-戴安娜 对吗 -对 - Diana, yes? - Yes.
-你同意吗 -是的 - You like that? - I do.
好 所以我想康德是认为 与谎言不同 Okay. So I think Kant's answer would be unlike a falsehood, unlike a lie,
误导性的实话仍然服从于义务 a misleading truth pays a certain homage to duty.
正因为它服从于义务 And the homage it pays to duty
使得即便是回避[误导性的实话]也是道德的 is what justifies that the work of even the work of the evasion.
戴安娜 对吗 Diana, yes you like? Okay.
所以在这些谨慎的回避中 And so there is something,
存在着某种对高尚道德法则的敬意 some element of respect for the dignity of the moral law in the careful evasion
克林顿本来可以直接说谎 但他没有 because Clinton could have told an outright lie but he didn't.
所以我认为康德的观点是 And so I think Kant's insight here is
这些小心隐藏但实实在在的回避中 in the carefully couched but true evasion,
确实有一种谎言里所没有的 there is a kind of homage to the dignity of the moral law
对高尚道德法则的敬意 that is not present in the outright lie
韦斯利 这也是动机的一部分 and that, Wesley, is part of the motive.
是动机的一部分 It's part of the motive.
是的 我希望他被误导 Yes, I hope he will be misled.
我希望凶手去大街上 I hope the murderer will run down the road
或商场里找我的朋友 而不是去衣柜找 or go to the mall looking for my friend instead at the closet.
我希望能达到这样的效果 I hope that will be the effect.
我不能控制结果 I can't control that. I can't control the consequences.
但我所能控制的是 忠于并崇尚道德 But what I can control is standing by and honoring
不论我希望结果如何 however I pursue the ends,
我仍然希望表明这样做在某种程度上 I hope will unfold to do so in a way
符合对道德法则的敬意 that is consistent with respect for the moral law.
韦斯利 你可能没被完全说服 Wesley, I don't think, is entirely persuaded
不过至少这能说得通 but at least this brings out,
这次讨论说明了一些边缘化的东西 this discussion brings out some of what it's at stake,
在康德的绝对命令概念中的边缘化东西 what's morally at stake in Kant's notion of the categorical imperative.
公正课 下讲预告
我得说合约就是有效的 As long as any effort this involved I would say that the contract is valid then.
第十四讲 《协议就是协议》
它应该生效 It should take effect.
为什么呢 你想说明有什么道德影响呢 But why? What was... what morally can you point to?
比如两个人决定要结婚 但两分钟之后 For example two people agreed to be married and one suddenly
其中一个突然打电话给另一个说我反悔了 called the other in two minutes say I changed my mind.
这时双方对这份合约还有践行义务吗 Does the contract have obligation on both sides?
看来我只能说没有 Well I am tempted to say no.
好吧 Fine.
上讲我们讨论了康德的绝对命令 Last time we talked about Kant's categorical imperative
我们一起讨论了 and we considered the way
他如何把绝对命令的理念应用于谎言 he applied the idea of the categorical imperative to the case of lying.
我想暂时转向康德道德哲学的另一个应用 I want to turn briefly to one other application of Kant's moral theory
也就是他的政治理论 and that's his political theory.
康德认为公正的法律出自一种特定的社会契约 Now Kant says that just laws arise from a certain kind of social contract.
但他所说的这种契约性质很特殊 But this contract he tells us is of an exceptional nature.
特殊之处在于这不是真正意义上的契约: What makes the contract exceptional is that it is not an actual contract
那就是 人们聚集在一起 that happens when people come together
试图讨论出究竟宪法应该有什么内容 and try to figure out what the constitution should be.
康德指出 这种产生公正的契约 Kant points out that the contract that generates justice
正是他所说的理性概念 is what he calls an idea of reason.
它不是制宪会议上形形色色的人之间 It's not an actual contract among actual men and women
真正的契约 为什么不是 gathered in a constitutional convention. Why not?
我想康德的理由是 I think Kant's reason is
参加真实的制宪大会的 真实存在的人们 that actual men and women gathered in real constitutional convention
会有不同的利益 价值观 目标 would have different interests, values, aims,
同样还有不同的议价能力 and it would also be differences of bargaining power
知识也都不同 and differences of knowledge among them.
所以他们商议出的法律 And so the laws that would result from their deliberations
未必公正 wouldn't necessarily be just,
未必完全遵从正义的原则 wouldn't necessarily conform to principles of right
只是反映了议价能力的差异 but would simply reflect the differences a bargaining power,
特定的利益 the special interests,
以及部分人对法律或政治更了解 the fact that some might know more than others about law or about politics.
所以康德说 So Kant says,
产生公正标准的契约只是一个理性的概念 "A contract that generates principles of right is merely an idea of reason
但它确实实际存在着 but it has undoubted practical reality
因为它能束缚每个立法者 because it can oblige every legislator to frame his laws in such a way
都在整个国家意志的框架内制定法律 that they could have been produced by the united will of the whole nation."
康德是个契约论者 So Kant is a contractarian,
但他并未从实际的社会契约中 but he doesn't trace the origin
去寻求法律的源头或其公正性 or the rightness of law to any actual social contract.
这就有个明显的问题了 This contrives to an obvious question.
对于一个假定的 其实并不存在的契约 What is the moral force of a hypothetical contract,
它的道德力量何在 a contract that never happened?
这是我们今天要探讨的问题 That's the question we take up today
但为了更好地研究这个问题 but in order to investigate it,
我们先要来了解一位现代哲学家 we need to turn to a modern philosopher,
约翰・罗尔斯 在他的书《正义论》中 John Rawls, who worked out in his book, a Theory of Justice,
详尽地阐释了一个作为正义基础的 in great detail and account of a hypothetical agreement
假定协议 as the basis for justice.
大体说来罗尔斯的正义论 Rawls' theory of justice in broad outline
和康德的理论在两个重要方面是一致的 is parallel to Kant's in two important respects.
和康德一样 罗尔斯批判功利主义 Like Kant, Rawls was a critic of utilitarianism.
他说 基于公正 每个人的权利都是神圣的 "Each person possesses an inviolability founded on justice," rawls' writes,
即便是全社会的福利也不能比拟 "That even the welfare of society as a whole cannot override.
受正义保护的这种权利 The rights secured by justice
不受政治协商或社会利益所影响 are not subject to political bargaining or to the calculus social interests."
罗尔斯和康德理论的第二个相同点是 The second respect in which Rawls' theory follows Kant's is on the idea that
认为正义的原则 principles of justice properly understood
源自于假定的社会契约 can be derived from a hypothetical social contract.
而不是实际存在的契约 Not an actual one.
罗尔斯用他所称的"无知的面纱" And Rawls works this out in fascinating detail
淋漓尽致地解释了这个理论 with the device of what he calls the "Veil of Ignorance".
找到我们必须尊重的基本权利的方式 The way to arrive at the rights... the basic rights that we must respect,
找到权利和义务基本框架的方式 the basic framework of rights and duties
是假定大家聚集在一起 is to imagine that we were gathered together
共同选择指引我们共同生活的法则 trying to choose the principles to govern our collective lives
但对自己某些重要的特质却毫无所知 without knowing certain important particular fact about ourselves.
这就是"无知的面纱"的概念 That's the idea of the "Veil of Ignorance".
假设我们像现在这样聚集在一起 Now what would happen if we gather together just as we are here
并试图提出指导我们集体生活的正义原则 and try to come up with principles of justice to govern our collective life?
由于人们的不同利益 There would be a cacophony of proposals of suggestions
将会出现很多不一致的声音 reflecting people's different interests,
有些人强大 有些人弱势 some are strong, some are weak,
有些人富裕 有些人贫穷 some are rich, some are poor.
因此罗尔斯说 倒不如想像 So Rawls says, imagine instead
我们都处于一个平等的原始状态 that we are gathered in an original position of equality
而确保平等的 就是无知的面纱 and what assures the equality is the veil of ignorance.
假设我们都处于无知的面纱背后 Imagine that we are all behind a veil of ignorance
它暂时将我们抽象化 归为一类 which temporarily abstracts from or brackets,
使我们不知道自己的确切角色 hides from us who in particular we are.
种族 阶级 社会地位 Our race, our class, our place in society,
长处 短处 our strengths, our weaknesses,
健康与否 whether we're healthy or unhealthy,
罗尔斯认为 只有在这种情况下 then and only then Rawls says,
我们共同达成的原则才是正义原则 the principles we would agree to would be principles of justice.
这就是假定契约的原理 That's how the hypothetical contract works.
那么假定契约的道德约束力何在 What is the moral force of this kind of hypothetical agreement?
它与一份实际契约 有效的社会契约相比 Is it stronger or weaker than a real agreement,
效力孰强孰弱 an actual social contract?
为了解答这个问题 In order to answer that question,
我们要深入理解实际契约道德约束力 we have to look hard at the moral force of actual contracts.
这实际上就变成了两个问题 There are really two questions here.
实际契约对人有怎样的约束或强制作用 One of them is how do actual contracts bind me or obligate me?
这是第一个问题 Question number one.
第二个问题是 And question number two,
实际契约如何证明其产生的条例是正义的 how do actual real life contracts justify the terms that they produce?
仔细想想 这与罗尔斯和康德的观点是一致的 If you think about it and this is in line with Rawls and Kant,
第二个问题的答案是 the answer to the second question,
实际契约如何证明其产生的条例是正义的 how do actual contracts justify the terms that they produce,
答案是无法证明 the answer is they don't.
至少仅靠本身无法证明 At least not on their own.
任何实际的契约都不能确保其自身的道德性 Actual contracts are not self-sufficient moral instruments
任何实际的契约 协议 Of any actual contract or agreement,
经常会受到质疑：其达成的内容公平吗 it can always be asked, is it fair what they agreed to?
实际上契约从来不能保证其公正性 The fact of the agreement never guarantees the fairness of the agreement
看看美国的修宪会议就会明白了 and we know this by looking at our own constitutional convention.
它制定了一部允许奴隶存在的宪法 It produced a constitution that permitted slavery to persist.
这部宪法获得了通过 这是一部实际契约 It was agreed to. It was an actual contract
可这并不意味着 but that doesn't establish
法律所认同的所有内容都是公正的 that the laws agreed to all of them were just.
那么实际契约的道德力量到底如何体现 Well then what is the moral force of actual contracts?
从约束程度看 其强制性体现在两方面 To the extent that they bind us, they obligate in two ways.
举个假设的例子 Suppose, maybe here it would help to take an example.
我们达成了一份协议 一份商业协议 We make an agreement, a commercial agreement.
你帮我捉回一百只龙虾 我就给你一百美元 I promise to pay you $100 if you will go harvest and bring to me 100 lobsters.
就此达成协议 We make a deal.
你出发并捉回足够的龙虾给我 You go out and harvest them and bring them to me.
我吃了 并拿来招待朋友 I eat the lobsters, served them to my friends,
然而我拒绝付钱 and then I don't pay.
你会说 你有义务付钱 And you say, "But you're obligated."
我说 为什么 And I say, "Why?"
你会说 因为我们达成协议了 What do you say? "Well we had a deal."
你吃掉了所有龙虾 你受益了 And you benefited. You ate all those lobsters.
你这样争辩很有道理 Well that's a pretty strong argument.
但这个观点是基于我从你的劳动中受益 It's an argument that depends though and the fact that I benefited from your labor
所以说 有时候契约有约束作用 So, contracts sometimes bind us
体现在共同利益的实现上 in so far as they are instruments of mutual benefit.
我吃了龙虾 欠你一百美元的劳务费 I ate the lobsters. I owe you the $100 for having gathered them.
但再看看第二个例子 But suppose, now take a second case.
我们达成同样的协议 We make this deal,
我说给你一百美元换一百只龙虾 I'll pay you $100 for 100 lobsters
但是两分钟后 and two minutes later,
你还没来得及做任何事 before you've gone to any work
我就叫你回来 说我改变了主意 I call you back and say I've changed my mind.
现在 没有利益存在了 Now, there's no benefit.
你不用再付出任何努力 There's no work on your part
就不存在任何互惠交易 so there's no element of reciprocal exchange.
这时 我还需要付钱给你吗 What about in that case, do I still owe you
仅仅因为我们有过协议 merely in virtue of the fact that we had an agreement?
谁认为我还应该付钱 Who says those of you who say, yes, I still owe you?
为什么呢 好的 请起立 Why? Okay, stand up.
我为什么依然欠你钱 Why do I owe you?
才两分钟我就把你叫回来了 I called you back after two minutes.
你没付出任何劳动 You haven't done any work.
我认为我花费了时间与精力跟你达成协议 I think I spent the time and effort in drafting this contract with you
并在感情上作了完成工作后的打算 and also have emotional expectation that I go through the work.
你说你花了时间来达成协议 So you took time to draft the contract
但我们是很快完成的 只打了通电话而已 but we did it very quickly. We just chatted on the phone.
那就不是正式的实际契约了 That wouldn't be a formal form of contract though.
我传真给你的 就花了一分钟 Well I faxed at you.It only took a minute.
我认为只要为之花费了精力 As long as any effort is involved,
契约就是有效的 I would say that the contract is valid then.
应该生效 It should take effect.
可为什么 你如何说明道德上我有义务 But why? What was...what morally can you point to that obligates me?
我当时确实同意了 但你尚未付诸行动 I admit that I agreed but you didn't go to any work.
我也没有任何收益 I didn't enjoy any benefit.
因为也许我在想像中已经历了捉龙虾的过程 Because one might mentally go through all the work of harvesting the lobsters.
你想像着捉龙虾的过程 You mentally went through the work of harvesting the lobsters.
这并不能说明问题 对吗 That's nothing is it?
这还不够 It's not much.
仅仅想象自己去捉龙虾就值一百美元吗 Is it worth $100 that you were imagining yourself going and collecting lobsters?
也许不值一百美元 It may not worth $100,
但对于有些人可能有一定的价值 but it may worth something to some people.
好吧 那我为此给你一美元 All right, I'll give you a buck for that.
但你仍然指出 But what I... so you're still pointing...
有趣的是你仍然指出了 what's interesting you're still pointing to
契约的互惠层面 the reciprocal dimension of contracts.
你做了 或者想象你去做 You did or imagined that you did or
或者期待做一件事 looked forward to doing something that might be had.
举个例子 两个人决定结婚 For example two people agreed to be married
结果两分钟后 一个人突然给另一个打电话 and one suddenly calls the other in two minutes say,
说改变主意了 I've changed my mind,
这时双方对这份合约还有践行义务吗 does the contract have obligation on both sides?
还没有任何一方作出努力或受益 Nobody has done any work or nobody has benefited yet.
看来我只能说没有 Well I'm tempted to say no.
好吧 Fine.
-很好 你叫什么名字 -朱利安 - All, right. What's your name? - Julian.
谢谢你朱利安 分析得很好 Thank you Julian. All right, that was good.
还有人同意朱利安 认为我要付钱吗 Now is there anyone who has who agrees with Julian that I still owe the money?
认为有其他原因的 请讲 For any other reason now I have... go ahead, stand up.
我认为你收回承诺就等于贬低了契约制度 I think if you back out it sort of cheapens the institution of contracts.
很好 但为什么这么说 Good but why? Why does it?
这么说有点像康德学派 Well I think is kind of Kantian,
不过既然能签订契约了 but there's in almost there's a certain intrinsic value
肯定有某种内在默契 in being able to make contracts
就知道人们会期待你履行契约 having, you know, knowing people will expect that you'll go through with that.
说得不错 它会贬低整个契约概念 Good, there is some... it would cheapen the whole idea of contracts
而这正与履行我的义务有关 是这样的 which has to do with taking in obligation on myself. Is that the idea?
嗯 我认为是的 Yeah, I think so.
-你叫什么 -亚当 - What's your name? - Adam.
那么亚当认为关键不在互惠或互相交换 So Adam points instead not to any reciprocal benefit or mutual exchange
而只在协议本身 but to the mere fact of the agreement itself.
我们现在可以看出有两种 We see here there are really two different ways
契约产生义务的不同方式 in which actual contracts generate obligations.
一种是出于自愿的积极同意 One has to do with the active consent as a voluntary act and it points...
亚当说这是康德学派的观点 Adam said this was a Kantian idea
我认为确实是这样 and I think he is right
因为它说明了自律的理想状态 because it points to the ideal of autonomy.
当我签订契约时 When I make a contract,
就默认接受了义务 the obligation is one that is self-imposed
这包含着某种独立于其他因素的道德力量 and that carries a certain moral weight, independent of other considerations.
还有第二个要素论证契约的道德约束 And then there's a second element of the moral force of contract arguments
即实际契约是实现互惠互利的工具 which has to do with the sense in which actual contracts are instruments of mutual benefit
也就引出了产生义务的互惠概念 and this points toward the idea of reciprocity that obligation can arise,
只要你为我做了事情 我对你就有义务 I can have an obligation to you in so far as you do something for me.
那么 审视实际契约的道德力量 Now, when investigating the moral force
和道德界限的同时 and also the moral limits of actual contracts
我想论述一个实际契约 and here I would like to advance an argument
缺乏道德约束力的情况 about the moral limits of actual contracts
我们已经知道了人们聚到一起 now that we know what moral ingredients do the work
说 "如果你那样做 我就这样做"时 when people come together and say,
道德因素所在起的作用 "I will do this if you do that."
首先我想论证 I would like to argue first
即使两个人都同意进行某种交易 that the fact that two people agreed to some exchange
也不能说明他们的协议条款是公平的 does not mean that the terms of their agreement are fair.
我两个儿子小时候 When my two sons were young
曾经收集棒球卡并互相交换 they collected baseball cards and traded them.
其中一个... And one was...there was a two-year aged...
两个孩子相差两岁 there is a two-year aged difference between them
所以我必须规定 and so I had to institute a rule about the trades
只有得到我的批准才能成交 that no trade was complete until I had approved it
原因显而易见 and the reason is obvious.
哥哥比弟弟更清楚那些卡片的价值 The older one knew more about the value of these cards
他可能会占弟弟的便宜 and so would take advantage of the younger one.
所以我必须把关 So that's why I had to review it
以确保他们的交易是公平的 to make sure that the agreements were fair.
你可能会说这是家长作风 Now you may say, "Well this is paternalism."
这当然是了 Of course it was.
这就是家长作风在这类事情上的意义 That's what paternalism is for that kind of thing.
那么 这说明了什么 So what does this show?
这个棒球卡的例子说明什么 What is the baseball cards example show?
协议的存在并不能确保条款的公平性 The fact of an agreement is not sufficient to establish the fairness of the terms.
几年前 我在报纸上看到 I read some years ago of a case
芝加哥有个年迈的寡妇 in Chicago there was an elderly widow,
84岁了 名叫罗斯 an 84-year-old widow named Rose
她遇到点小麻烦 公寓的马桶漏水了 who had a problem in her apartment with a leaky toilet
然后她和一个黑心承包商签了合同 and she signed a contract with an unscrupulous contractor,
对方开了五万美元的修理费 who offered to repair her leaky toilet in exchange for $50,000.
她竟然同意了 她头脑清醒 But she had agreed she was of sound mind,
也许太过天真 也不熟悉管道工的价格 maybe terribly naive and unfamiliar with the price of plumbing,
她签了份协议 she had made this agreement.
幸运的是有人发现了 Luckily, it was discovered.
她到银行要取两万五千美元 She went to the bank and asked to withdraw $25,000.
出纳员问 你要这么多钱干什么 And the teller said, "Why do you need all of that money for?"
她说 我的马桶漏水了 And she said, "Well, I have a leaky toilet."
出纳员给有关部门打了电话 And the teller called authorities
这个黑心承包商被揭发了 and they discovered this unscrupulous contractor.
我想 就连在座最忠实的契约执行者 Now, I suspect that even the most ardent contract carryings in the room
也会同意 她虽然签了协议 will agree that the fact of this woman's agreement
但这并不能充分说明协议公平 is not a sufficient condition of the agreement being fair.
有人反对这点吗 Is there anyone who will dispute that?
没人 我没漏掉谁吧 No one. Am I missing anyone?
亚历克斯 你在哪儿 Alex, where are you?
在哪呢 Where are you?
看来没人反对我的第一个观点 So, maybe there's no dispute then to my first claim
就是实际契约本身不是... that an actual agreement is not necessary to their.. is not a sufficient condition
义务存在的充分条件 of there being an obligation.
现在我要提出更强有力 也许也更有争议的 I want to now make us stronger,maybe more controversial claim
关于实际契约道德缺陷的论断 about the moral limits of actual contracts
契约或是主动的许可 that a contract or an active consent is
不仅不是构成义务存在的充分条件 not only not sufficient
甚至也不是必要条件 but it's not even a necessary condition of there being an obligation.
我想表明的是 如果存在互惠 And the idea here is that if there is reciprocity,
如果存在交易 然后一方获得了利益 if there is an exchange, then a receipt of benefits,
即使没有达成双方同意 义务也产生了 there can be an obligation even without an act of consent.
18世纪一位哲学家的经历是很好的例子 One great example of this involves the 18th century philosopher,
他就是苏格兰道德哲学家大卫・休谟 the Scottish moral philosopher David Hume.
休谟年轻时写过一本书 When he was young, Hume wrote a book
驳斥洛克关于原始社会契约的观点 arguing against Locke's idea of an original social contract.
休谟对洛克的契约论嗤之以鼻 Hume heaps scorn on his contractarian idea.
他说这纯属哲学家的虚构 He said it was a philosophical fiction.
这种社会契约论是人们所能想到的 One of the most mysterious and incomprehensible operations
最难以理解和不可思议的一种模式 that can possibly be imagined, this idea of the social contract.
但多年后 62岁休谟的亲身经历 Many years later when he was 62 years old, Hume had an experience
恰恰检验了他反对的"同意是义务的基础" that put to the test his rejection of consent as the basis of obligation.
休谟在爱丁堡有一座房子 Hume had a house in Edinboro.
他把房子租给了朋友詹姆斯・博斯韦尔 He rented to his friend James Boswell
詹姆斯又把房子转租给了别人 who in turn sublet it to a subtenant.
结果那个人觉得房子需要一些维修和粉刷 The subtenant decided that the house needed some repairs and a paint job.
他雇了个人做这些工作 He hired a contractor to do the work.
结果漆匠完工后把帐单寄给了休谟 The painter did the work and sent the bill to Hume.
休谟拒绝支付帐单 Hume refused to pay on the grounds
因为他并没有签订协议 没有雇用那个油漆匠 that he hadn't consented. He hadn't hired the painter.
这个案子上了法庭 The case went to court.
漆匠说 休谟确实没有同意 The contractor said, "It's true, Hume didn't agree
但房子需要粉刷了 而且我做得很好 but the house needed the painting and I gave it a very good one."
休谟认为这个辩词很糟糕 Hume thought this was a bad argument.
漆匠唯一的论据是这项工作有必要完成 The only argument this painter makes is that the work was necessary to be done
这显然不是一个好答案 but this is no good answer
因为以此类推 漆匠不需要征得房主同意 because by the same rule, this painter may go through every house in Edinboro
就去遍爱丁堡的每户人家 做他认为该做的事 and do what he thinks proper to be done without the landlord's consent
并给出相同理由 and give the same reason
即这些工作是必要的 房子因他的工作变得更好 that the work was necessary and that the house was the better for it.
这也是为什么休谟不觉得 So Hume didn't like the theory
在没有协议时 有义务回报所得 that there could be obligation to repay a benefit without consent.
但他败诉了 只好付钱 But the defense failed and he had to pay.
我再举例说明下 Let met give you one other example of the distinction
基于同意的义务 和基于利益义务的区别 between the consent-based aspect of obligations and the benefit-based aspect
以及它们个别情况下怎样合为一体 and how they're sometimes run together.
这基于我的个人经历 This is based on a personal experience.
几年前 我和朋友一起开车穿越美国 Some years ago, I was driving across the country with some friends
我们到了印第安纳州哈蒙德的一片不毛之地 and we found ourselves in the middle of nowhere in Hammond, Indiana.
我们在休息站下车休息 We stopped in a rest stop and got out of the car
回来时 车却突然发动不了 and when we came back our car wouldn't start.
我们对汽车都不太在行 None of us knew much about cars.
不知道该怎么办 We didn't really know what to do
直到停车场里的一辆货车开过来 until we noticed that in the parking lot driving up next to us was a van
车身上写着 山姆流动维修车 and on the side it said, "Sam's mobile repair van."
一男子走下车 他八成就是山姆 And out of the van came a man, presumably Sam
走到我们面前问 需要帮忙吗 and he came up to us and he said, "Can I help you?
我的规矩是 Here's how I work.
修车每小时五十美元 I work by the hour for $50 an hour.
如果我五分钟就把车修好了 你们付我五十美元 If I fix your car in five minutes, you owe me the $50
如果我修了一小时还是没修好 and if I work on your car for an hour and can't fix it,
仍然需付五十美元 you'll still owe me the $50."
我说 但你修好车的可能性有多大呢 So I said, "But what is the likelihood that you'll be able to fix the car"
他没有回答 he didn't answer.
但他开始往下看 检查转向柱 But he did start looking under the poking around the steering column.
过了一会 他从转向柱下面钻出来说 Short time passed, he emerged from under the steering column and said,
点火系统没问题 "There's nothing wrong with the ignition system
不过你还有45分钟 but you still have 45 minutes left.
要不要我看看引擎盖下面 Should I look under the hood?"
我说 等会 我根本还没雇你 I said, "Wait a minute. I haven't hired you.
我们没有达成协议 We haven't made any agreement."
他很生气 说 And then he became very angry and he said,
你的意思是说 "Do you mean to say that
如果我刚才在转向柱下面检查 修好了你的车 if I had fixed your car while I was working under the steering column
你也不会给我钱吗 that you wouldn't have paid me?"
我说 那是另一码事 And I said, "That's a different question."
我没有点明基于许可 I didn't go into the distinction
和基于利益契约的区别 between consent based and benefit based applications.
但我想他是觉得如果他刚才修好了车 But I think he had the intuition that if he had fixed it
我会付给他五十美元 while he was poking around that I would have owed him the $50.
我同意他的想法 我会付钱的 I shared that intuition. I would have.
但他由此进行了推论 But he inferred from that.
这就是激起他愤怒的推理和谬论 This was the fallacy and the reasoning that I think lay behind his anger.
他从中推判出我们达成了心照不宣的协议 He inferred from that fact that therefore implicitly we had an agreement.
但我认为 这是错的 But that it seems to me as a mistake.
他错在没能认清契约论 It's a mistake that fails to recognize the distinction between
两个不同方面的区别 these two different aspects of contract arguments.
是的 我同意 如果他那时修好车 Yes, I agree. I would have owed him $50
我会付给他五十美元的 if he had repaired my car during that time
但并非因为我们的协议 没有订协议 not because we had made any agreement. We hadn't.
只是因为如果他修好了我的车 But simply because if he had fixed my car,
他就给我带来了利益 he would have conferred on me a benefit
基于互惠和公平 我该付给他钱 for which I would have owed him in the name of reciprocity and fairness.
这又说明了 So here's another example of
这两种不同的论点 the distinction between these two different kinds of arguments,
两个不同方面的区别 these two different aspects of the morality of contract.
现在我想知道 多少人认为我在这件事上是对的 Now I want to hear how many think I was in the right in that case?
那我就放心了 有人认为我做错了吗 That's reassuring. Is there anyone who thinks I was in the wrong?
有人吗 你这样认为吗 Anyone? You do?
为什么 请讲 Why? Go ahead.
问题是难道 Isn't the problem with this is
所谓利益不都是内在主观定义的吗 that any benefit is inherently subjectively defined?
我是说 如果你希望你的车是坏的 I mean what if you wanted your car broken
而他却把它修好了呢 and he had fixed it?
我的意思是 I mean...
不 我不希望它坏 No, I didn't want it broken.
在这个案例里是这样 可我是说 Yeah in this case. I mean...
但谁会希望车坏 谁会呢 But who would? Who would?
我不知道 总有人会吧 I don't know, someone.
如果休谟遇到的那个漆匠 I mean what if Hume, you know, what if the painter
把他的房子漆成蓝色 但他讨厌蓝色 that painted his house blue but he hated the color blue,
你必须在别人做事之前 I mean you have to sort of define
对你的利益进行明确定义 what your benefit is before the person does it.
好吧 那你的结论是什么 Well all right, so what would you conclude for that though
广泛来说 你是否会得出结论 for the larger issue here, would you conclude that
同意是义务存在的必要条件 therefore consent is a necessary condition of their being an obligation?
-是的 -好 你叫什么 - Absolutely. - You would. What's your name?
奈特 Nate.
奈特是说 因为不然我们从何得知 Because otherwise how can we know, Nate says,
交易是否平等互惠 whether there has been an exchange of equivalent or fair benefits
除非我们经过了主观评价 unless we have the subjective evaluation
但这种主观评价可能是因人而异的 which may vary one person to the next of the situation.
好 说得有道理 All right, that's a fair challenge.
我再举个例子来检验契约的道德性中 Let me put to you one other example in order to test the relation
两个不同方面的关系 between these two aspects of the morality of contract.
假设我结婚了 Suppose I get married
在忠于婚姻20年后 我发现 and suppose I discover that after 20 years of faithfulness on my part,
每年我们国内旅行的时候 every year on our trip across the country
我妻子都和另一个男人幽会 my wife has been seeing another man,
一个在印第安纳收费公路上开货车的男人 a man with a van on the Indiana toll road.
顺便说一下 这部分完全是虚构的 This part is completely made up by the way.
我的愤怒可能出于两种不同的理由 Wouldn't I have two different reasons for moral outrage?
一种理由是我们结婚是种契约 One reason could be we had an agreement.
她违背了当时她自愿同意作出的承诺 She broke her promise referring to the fact of her consent.
但我的愤怒还可以用第二种理由解释 But I would also have a second ground for moral outrage
它和契约本身没有太大关系 having nothing to do with the contract as such
但我一直忠于我们的婚姻 but I've been so faithful for my part.
理应得到更好的回报 Surely I deserve better than this.
我的付出难道就换回这些吗 Is this what I'm doing in return and so on?
这就指向了互惠的要素 So that would point to the element of reciprocity.
每一种理由都有独立的道德力量支撑 Each reason has an independent moral force.
大致是这样 That's the general point
把这个版本作一点小改动 你就会明白 and you can see this if you imagine a slight variation on the marriage case.
假设我们结婚不到20年 Suppose we haven't been married for 20 years.
假设我们新婚 Suppose we were just married
在印第安纳州哈蒙德度蜜月中 她就背叛了我 and that the betrayal occurred on the way to our honeymoon in Hammond, Indiana.
这时契约已经成立 After the contract has been made,
但我这一方还没有履行任何义务 but before there is any history of performance on my part,
我是指关于契约的履行 performance of the contract I mean,
我会和朱利安一样说 I would still with Julian, I'd be able to say
但你承诺了 你承诺了 but you promised, you promised.
这就把单纯的同意这一要素抽立出来 That would isolate the pure element of consent,
虽然还未产生利益 但这无关紧要 right where there were no benefits, never mind.
大家明白我的意思 You get the idea.
这就是主要观点 Here's the main idea,
实际契约的道德力量借助于两个不同的理念: actual contracts have their moral force in virtue of two distinguishable ideals:
自律和互惠 autonomy and reciprocity,
但现实生活中的每个实际契约都可能 but in real life every actual contract may fall short,
没能在订立之初赋予契约道德约束力 may fail to realize the ideals that give contracts their moral force in the first place.
自律的理念可能实现不了 The ideal of autonomy may not be realized
因为各方争议权力可能不平等 because there may be a difference in the bargaining power of the parties.
互惠的理念可能实现不了 The ideal of reciprocity may not be realized
因为各方在认知上可能存在差距 because there may be a difference of knowledge between the parties
可能错误地判断 and so they may misidentify
什么是真正具有对等价值的 what really counts as having equivalent value.
想象一个契约 Now suppose you were to imagine a contract
其自律和互惠的理念不受制于偶然因素 where the ideals of autonomy and of reciprocity were not subject to contingency
而是确保能够实现的 but were guaranteed to be realized,
这是什么样的契约 what kind of contract would that have to be?
想象如果有一个契约 Imagine a contract among parties
各方在权力和认知上平等 而非不平等 who were equal in power and knowledge rather than unequal
各方的地位是相同的 而非不同 who are identically situated rather than differently situated?
这就是罗尔斯观点背后的理念 That is the ideal behind Rawls' claim
达成正义的方法 that the way to think about justice
源自假定契约的角度 is from the standpoint of a hypothetical contract,
站在无知的面纱之后 behind a veil of ignorance
它通过排除或使我们暂时忘记 that creates the condition of equality by ruling out
会导致不公平结果的 or enabling us to forget for the moment the differences in power and knowledge
权力和认知的差距 that could even in principle lead to unfair results.
这就是为什么康德和罗尔斯认为 This is why for Kant and for Rawls
平等各方达成的假定契约 a hypothetical contract among equals
才是达到正义原则的唯一途径 is the only way to think about principles of justice.
这些原则具体是什么 What will those principles be?
那是我们下次要讨论的问题 That's the question we'll turn to next time.