Now, back on topic. So, the upshot of John Rawls philosophical proposition is this argument with respect to contracts – an insurance policy being an example: one should distinguish between the legal aspect that’s enforceable by a court of law and a moral one that by its very nature cannot and ought not to be enforceable under the legal system. Now, there is certainly no argument to be had when it comes to circumstances where a benefit derived from a contract or an act by someone requires payment or some sort of recompense. Where there is a clear-cut prima facie evidence of a legally enforceable contract, one cannot question the relationship between derived benefits, payment and the enforcement of the contract. But then there is the issue of ‘autonomy’ and ‘reciprocity’. More on this and insurance later, for now let’s unpack John Rawls’ fundamental proposition. Rawls constructs his proposition on the basis of two notions i.e. ‘autonomy’ and ‘reciprocity’ in an original bargaining position from which, he argues, contracts derive their values. For Rawls, ‘autonomy’ comes from when both parties to the contract enter into it voluntarily and by equal consent – for the sake of simplicity I am restricting this illustration to only two parties. What ‘reciprocity’, the other basis means is simply this: if I do something from which you derive a benefit, you will owe me something in return (payment), and vice versa. Now, trouble is, these two notions would work marvellously well in an ideal–world but not so much in real-world situations where most contracts fall woefully short of the two ideals. Let’s just pause for moment here and think why this is so in reality. The reality is that most contracts in real-world bargaining contexts are inherently unfair since the original bargaining position as posited by Rawls is, as some would argue, wrongly premised on an assumption that all parties to the contract have equal power or knowledge. This is indeed an equality of power not usually there in most real-world contexts, which leaves room for unfair advantages, coercion and deception in contracts. Without that inequality, there would be justness and fairness in the terms of any contract simply by the virtue of their agreements – whatever the terms were. This is certainly the state of affairs envisioned by Rawls from an original negotiating position where all the parties to a contract are hypothetically guaranteed equal power and knowledge at the original negotiating positions. Let me put it this way: if you and I are entering into a contract and at the start (original negotiating position) we both know all there is to know about the contractual relationship we are about to enter (say benefits and drawbacks, just to keep it simple) and there is an equality between us, then and only then would the contract be deemed fair and just, whatever the terms. Now, let’s turn back to insurance for a minute. In insurance contracts, one can easily see how the premise derived from Rawls’ original negotiating position might be an impossible one. By their very nature insurance contracts have lots of what some would see as confusing legalese and small print, and which an ordinary mwananchi may find hard to navigate through, let alone understand. The mwananchi too certainly has much more knowledge and information about the risk than the insurer. In other words there is what is known as information asymmetry, which in turn creates a power imbalance in the relationships to an insurance contract. It is this imbalance of power and knowledge (and of course, inequality) that takes away from the justness and fairness envisioned by the original negotiating position’s ideals of autonomy and reciprocity.