Melissa Seymour Fahmy (University of Georgia), "Never Merely as a Means: Rethinking the Role and Relevance of Consent"
Kantian Review, 2023
Kant’s second formulation of the categorical imperative, commonly referred to as the formula of humanity, commands us to “act that you use humanity, whether in your own person or in the person of another, always at the same time as an end, never merely as a means.” This principle has broad appeal. It is not uncommon for authors writing about issues in applied ethics to invoke this principle, often in a rather shallow manner, to support some position they wish to defend. But Kant’s commentators have long acknowledged the challenges we face when we endeavor to apply Kant’s principle to any particular practice. One such challenge is the need for some set of criteria for distinguishing the permissible use of others (e.g. using a bus driver to get across campus) from the impermissible use of others, or using others merely as a means (e.g. making a false promise).
In the mid-1980s, Onora O’Neill and Christine Korsgaard each independently articulated and defended a sufficient condition for using another merely as a means based on the impossibility of consent. Roughly, if I use another in a manner to which they cannot possibly consent, then I use the other merely as a means. Both O’Neill and Korsgaard developed their accounts by working from Kant’s Groundwork analysis of the false-promising example. The possible consent account of using another merely as a means was influential for a period of time, however, in the late 2000s, several philosophers persuasively argued that there are some significant problems with the accounts developed by O’Neill and Korsgaard. The earliest critique I am aware of is Samuel Kerstein’s 2009 paper, “Treating Others Merely as Means,” which demonstrates that O’Neill’s possible consent account produces counter-intuitive results in fairly simple cases. Japa Pallikkathayil’s paper, “Deriving Morality from Politics,” published the following year, makes an even stronger case against the possible consent reading by demonstrating that it not only produces counter-intuitive results, it is also incompatible with fundamental elements of Kant’s political philosophy. Similar critiques followed: Parfit (2011), Kerstein (2013), Formosa (2014), Kleingeld (2020).
Many of the authors who successfully critique some version of the possible consent account of using another merely as a means, propose alternative accounts that are also fundamentally about consent (Kerstein 2013, Formosa 2014, Kleingeld 2020). Unfortunately, these alternative consent-based accounts suffer from similar problems: they yield moral assessments that are both counter-intuitive and incompatible with fundamental Kantian commitments.
My paper endeavors to explain why these consent-based accounts fail. My interest in figuring out why consent-based accounts fail led me to explore the literature on consent (which is extensive), which led me to Victor Tadros’s excellent book, Wrongs and Crimes. When I read Tadros’s description of consent-sensitive duties, I knew this was something that would likely be very useful to me. (I had not encountered this phrase prior to reading Wrongs and Crimes, and I’m not aware of anyone’s use of it prior to Tadros.) Very briefly, a consent-sensitive duty is a duty that one agent can release another agent from via valid consent. The duty not to pierce my skin with a sharp object is a consent-sensitive duty that all others owe to me. However, I can release particular others from this duty with my consent. If I have given valid consent to the pharmacist, then she does not wrong me when she injects me with a vaccine. Likewise, the tattoo artist does not wrong me when she injects ink under my skin, provided she has my valid consent to do so.
Several months after reading Tadros’s description of consent-sensitive duties, I had a lightbulb moment when I identified Kant’s false-promising example from the Groundwork as a case that centrally involves a consent-sensitive duty, namely, the duty to refrain from taking or interfering with what belongs to another. Because this duty is consent-sensitive, agents can release particular others from this duty in specified ways with their valid consent, such as when we give another a gift or a loan. But if someone takes what is mine without my consent, then they wrong me. This is what occurs in the false promising example. Indeed, the false promising case has a lot in common with the paradigmatic case of a gunman who threatens your life unless you hand over your wallet. If you give the gunman your wallet, you do not transfer ownership to the gunman because his coercion makes your valid consent impossible, and valid consent is necessary for a transfer of ownership. Likewise, in the false-promising case, the false-promiser’s deception makes valid consent impossible. When you hand over the money, it is not a legitimate transfer.
I maintain that Kant’s Groundwork analysis of the false-promising case does not purport to give us a wrong-making feature that is universal to all cases of using another merely as a means; rather, it gives us a feature that is common only to violations of consent-sensitive duties. This, I argue, is why consent-based accounts of using another merely as a means fail. These accounts assume that the wrong-making feature Kant attributes to false-promising is more universal than it is. Consent-based accounts of using another merely as a means would not be problematic if all ethical duties were consent-sensitive duties, however, they are not. Though Kant does not use this language, I argue that his ethical theory clearly contains both consent-sensitive and consent-insensitive duties, and that both are included in the scope of the formula of humanity’s prohibition against using persons merely as a means. In the paper, I demonstrate that the duty to refrain from inflicting lethal harm on others and the duty to respect others are two examples of consent-insensitive duties found in Kant’s published work. This is to say that agents lack the normative power to release others from these obligations through an exercise of consent.
The insight I draw from this observation regarding the Groundwork false-promising example is that any acceptable set of necessary and sufficient conditions for using another merely as a means must reflect the fact that in some cases another’s consent is highly relevant (e.g. consent-sensitive duties), and in other cases another’s consent is not relevant (e.g. consent-insensitive duties). I propose what I call a duty-based account that aims to capture this insight. According to the duty-based account, X uses Y merely as a means if and only if (1) X uses Y as a means and (2) X’s use of Y violates either a consent-sensitive duty or a consent-insensitive duty that X owes to Y. It follows from the duty-based account that we can use another merely as a means even when they have given their voluntary, informed, and competent consent to our use.
The duty-based account requires us to know what at least some of our duties are prior to drawing the conclusion that some form of conduct uses another merely as a means. I propose that the proper way to use Kant’s formula of humanity is to first derive duties from the positive command to always treat humanity as an end in itself, and then use these duties to produce conclusions about when one agent uses another merely as a means. I maintain that is it a virtue of the duty-based account that is requires us to think through what we owe others under particular conditions and to utilize other Kantian resources, such as the concept of dignity and Kant’s political philosophy, to answer these questions.
It is my hope that the paper inspires Kantians to investigate the range of consent-insensitive duties that Kant’s ethics supports, even if Kant himself did not articulate them as such. At the moment, I’m particularly interested in exploitation as a form of conduct we are obliged to refrain from independent of another’s consent, as well as questions about consent and lying. Those interested can access the full paper here or email me (meseymou@uga.edu) for a copy.