Lecture 5

Lecture 5

DEONTOLOGY (IN GENERAL)  

To introduce deontological theories it is good to contrast them with various forms of consequentialism, especially from act-utilitarianism. According to act-utilitarian theory, we evaluate each action as an action token (i.e., some particular act performed on a particular occasion that has some particular consequences). According to all form of deontology we evaluate an action as falling under some general rule (i.e., as an act of lying, or deception, or killing, or stealing, or disrespectful behavior, etc.). That is, according to all versions of deontological theories:

Deontology: An act is right or wrong because
A) it belongs to a certain general category; and
B) we have a general duty to perform (or to avoid performing) actions of these general kinds.

Deontology must address four issues:

  • What duties do we have?
  • To whom do we have our duties? (E.g., do we have duties only to humans or also to animals?)
  • Is there some hierarchy of duties so some duties are more important than others? (Theories assuming that there are many irreducible duties are sometimes called the deontological pluralism. Theories that assume that there is one overarching duty from which we can derive all other duties may be called deontological monism.)
  • How strong are our duties? Are duties to some beings generally stronger? Are there any absolute duties that never admit to any exceptions (or cannot be overridden by any other considerations?)

Different answers to these questions generate different versions of deontology.

Different versions of deontological theories were proposed, e.g., by a British philosopher and Aristotelian scholar, Sir William David Ross (1877 - 1971) and by a German philosopher Immanuel Kant (1724 - 1804). Ross's theory is relatively simple and illustrates well some general features of deontological thinking. So, it will be discussed first.

 W. D. ROSS'S SYSTEM OF PRIMA FACIE DUTIES

W.D. Ross thought that an action may belong to several morally relevant categories such that each of those categories can contribute to this act being either right or wrong. For example, my action of coming to class on time may be treated as an instance of keeping a promise to my students. Keeping a promise is a right‑making characteristic of this action. Another right‑making characteristic is that, if I teach my class well, students in my class may benefit from my lecture. Benefitting others and especially helping them to gain knowledge is another right making feature of my action. It may happen, however, that (while on the way to class) I can save someone's life. Suppose also that, in order to save one's life, I would have break my promise to be to class on time. Failing to save someone's life would be a wrong‑making characteristic of my action. It is obvious that, for Ross, some of the right (or wrong) making features of an action may be in conflict with other right (or wrong) making features.

In order to capture the idea that an action may belong to several different morally relevant kinds, and some of those kinds contribute to the action rightness while others contribute to its wrongness, Ross introduced the concept of prima facie duty:

I suggest "prima facie duty" or "conditional duty" as a brief way of referring to characteristic... which an act has, in virtue of being of certain kind (e.g., the keeping of a promise)... Whether an act is a duty proper or an actual duty depends on all morally significant kinds it is an instance of. (Ross, The Right and the Good (1930), pp. 19‑20).

Ross did not think that we can provide a fully exhaustive list of all prima facie duties. But he thought that the following duties are among the most important ones (notice, this is not a complete list):

  • Fidelity
  • Reparation
  • Gratitude
  • Justice
  • Beneficence
  • Self‑improvement
  • Non‑maleficence

Ross recognizes that that prima facie duties may be in conflict. For example, I may have a prima facie duty to help someone and another prima facie duty to keep my promise and I cannot do both. In such situations, we must carefully weigh all duties. Our moral decisions should be guided by our intellectual intuition. We should choose the duty that is most important.

Thus Ross's deontology may be approximated in the following principle:

Ross's Deontology (RD): An action is morally right if and only if (iff) no alternative to this action is a more stringent prima facie duty.  (In other words: An action is morally right iff it is our duty all things considered (or, our unconditional duty).)

The main problem for Ross's theory is that it seems to have some unfortunate relativistic implications. For imagine that various "competent" people have radically different intuitions about what we should do (that is, what duty is the most stringent one). In such a case, Ross's theory would give us no practical guidance about how to resolve such differences and what to do.

Notice, a rule (indirect) utilitarian ethical theories are to some extend similar to deontological theories. This is the case because one feature of rule utilitarian thinking is to put emphasis on following the rules. These rules are chosen on the grounds that, once accepted and internalized, they will contribute to the good aggregate utility (or good balance of utility in a long run. 

Rule utilitarians, could answer some of the problems encountered by Ross. First, they would argue that, in a long run, fulfilling our prima facie duties contributes utility (or happiness) to the world. They would suggest, furthermore, that in cases our prima facie duties are in conflict we need to use directly act-utilitarian considerations.

Ross's theory is not, however, a version of utilitarianism. He wants to make all relevant decisions on intuitive grounds, instead of engaging into the utility calculus. That's why his view may have some relativistic consequences (in case when human intuitions are radically different). Notice, this is one of the consequence of what we earlier introduced as a deontological pluralism.

 

KANT AND ETHICS OF RESPECT FOR PERSONS 

SUMMARY:

Two kinds of imperatives:

  • Hypothetical Imperatives are commands that apply to us only if we have some goal; they link actions with desirable goals. (For example, "If you don’t want to get wet, take an umbrella," or "If you want to clench your thirst, drink water.")
  • Categorical Imperatives assert that some actions are absolutely and unconditionally necessary; they must be followed no matter what.

Categorical imperative(s):

The formula of "universal law": Act in such a way that the maxim of your action (i.e., the rule that you accept) may become universal a principle that everyone follows (i.e., using Kant's terminology) a universal (moral) law.

The formula of respect: Act in such a way that you do not treat any person (any rational being) merely as a means but always also as an end in itself.

Interpretation(s) of the idea of respect:

At the most basic level,  we are supposed to treat someone with respect; otherwise we use this being merely as a means. Rachels' proposes two different interpretations of what respect may require (pp. 3-4):

Principle of Respect #1 (R1) We use someone merely as a means when a) this person has autonomy (i.e., is able to make fully rational decisions about what is to happen to him/her); and b) we violate their autonomy through manipulation, trickery, deceit, or coercion. (This idea is due to Immanuel Kant.)

Principle of Respect #2 (R2) When someone hanse autonomy but still has "point of view", we use someone merely as a means when we violate someone’s interests or preferences (respect requires, at the very least, that someone is not harmed or harmed as little as possible). (This idea is due to contemporary neo-Kantian philosophers, e.g., Tom Regan.)
 

TWO KINDS OF RULES: HYPOTHETICAL AND CATEGORICAL IMPERATIVES

As a starting point, Kant recognizes a difference between actions and bodily movements. Actions are not merely bodily movement; for example, blinking is not the same thing as winking. But what distinguishes actions from mere bodily movements? In essence, actions involve intentionality. When we act, we try to achieve something, we imagine different outcomes, we think of what we do in general terms, and so on. All of these are signs or aspects of us being persons. Then, after we do this sort of analysis, we commit ourselves to do something.

Kant uses the term "maxim" in reference to the internal (or subjective) principle that an agent follows. (Let us put to one side possible complication that, perhaps, arise for spontaneous action that are not grounded in any principles. We may assume that, indirectly, some of them may be based on principles, too, as opposed to being purely instinctive. And there may be further problems arising from the fact that sometimes we act on more than one principle.) 

Suppose that we chose a rule on which to act and we wonder whether our action will be right or wrong. Kant thinks that, in such cases, we may have in mind two different things, namely:

  • (A) We may wonder whether or not the action is an efficient way to achieve a certain goal.
  • (B) We may also wonder whether the action is right even when taken in itself (and not on the account of leading to a certain goal).

When we try to do (B), i.e., evaluate an act in itself, a huge part of our assessment is for Kant related to the subjective principle (or, in his terminology, maxim) that was our motive. As he observed:

"The hypothetical imperative, therefore, says only that the action is good to some purpose, possible or actual. In the former case it is a problematical, in the latter an assertoric, practical principle. The categorical imperative, which declares the action to be of itself objectively necessary without making any reference to a purpose, i.e., without having any other end, holds as an apodictic (practical) principle... " (Immanuel Kant, "The Categorical Imperative")  

Thus, to sum up, Kant distinguishes two kinds of imperatives:

  • Hypothetical Imperatives are commands that apply to us only if we have some goal; they link actions with desirable goals. (For example, "If you don’t want to get wet, take an umbrella," or "If you want to clench your thirst, drink water.")
  • Categorical Imperatives assert that some actions are absolutely and unconditionally necessary; they apply no matter what.

We might say, following Kant's idea of categorical imperative, that an action is morally desirable (or right), just because it is an action of a certain kind; e.g., it is an act of telling the truth, or helping in need, etc.

Kant provided several very general formulas from which, he claimed, we can deduced all specific duties. He called those general formulas categorical imperatives and claimed that they are all equivalent. So, he maintained, ultimately there is only one imperative. The critics disagree. Scholars distinguish, in particular, two versions (formulations) of categorical imperative; namely, the formula of universal moral law and the formula of respect.

 

BACKGROUND: PERSONS AND THE COMPONENTS OF PERSONHOOD

According to Kant, all persons have special dignity or special worth. As he observes:

 ...man and, in general, every rational being (emphasis added) exists as an end in himself and not merely as a means to be arbitrarily used by this or that will. In all his actions, whether they are directed to himself or to other rational beings, he must always be regarded at the same time as an end...(Immanuel Kant, "The Categorical Imperative")

But why does he claim that we are "ends in themselves" rather than merely means to some goal. Why do we have this special dignity? According to Kant

The ground of this principle is: rational nature exists as an end in itself. Man necessarily thinks of his own existence in this way; thus far it is a subjective principle of human actions. Also every other rational being thinks of his existence by means of the same rational ground which holds also for myself, thus it is at the same time an objective principle from which, as a supreme practical ground, it must be possible to derive all laws of the will. The practical imperative, therefore, is the following: Act so that you treat humanity, whether in your own person or in that of another, always as an end and never as a means only. (Immanuel Kant, "The Categorical Imperative", emphasis added)

That is, Kant thinks that normal  human beings do not just act in instinctual way. On the contrary, we are able to act on a principle. That is, we can rationally deliberate about various rules, we can rationally choose one (or more) of them, and we can commit ourselves to following the rule(s) we have chosen. All of this goes into his concept of rationality.

Consequently, Kant distinguishes what he calls "persons" from what he calls "(mere) things":

Beings whose existence does not depend on our will but on nature, if they are not rational beings, have only a relative worth as means and are therefore called "things"; on the other hand, rational beings are designated "persons," because their nature indicates that they are ends in themselves, i.e., things which may not be used merely as means. Such a being is thus an object of respect and, so far, restricts all [arbitrary] choice. Such beings are not merely subjective ends whose existence as a result of our action has a worth for us but are objective ends, i.e., beings whose existence in itself is an end. Such an end is one for which no other end can be substituted, to which these beings should serve merely as means. For, without them, nothing of absolute worth could be found, and if all worth is conditional and thus contingent, no supreme practical principle for reason could be found anywhere. (Immanuel Kant, "The Categorical Imperative)

It's important to clarify what Kant means when he talks about persons. He makes this notion quite clear in numerous passages. Most importantly, it is clear that Kant uses the term person to refer to any being (human being or not, it is not important) who has rational or intellectual nature. This interpretation is further supported by (relatively little known) Kant's work, "Lectures in Ethics." In one of the lectures Kant attempts to answer two questions. The first is about duties to animals. Kant maintains that, since animals are not rational, we do not have any direct duties to them. (Using his terminology, animals are mere things. The second question is about duties to other kinds of non‑human beings. In particular, Kant discusses whether we can possibly have duties to ghosts or spirits. He maintains that we do not know that there are any non‑humans who are rational. But he also maintains that, if they were any non‑human persons, we would have duties to them. For example, Kant maintains that, if there were ghosts, spirits, or angels and if they had rational nature, we would have duties to them.

To gather all of this together, Kant thinks that we are the only known rational  beings. That is, he thinks that A) animals are not able to act on principle; they are not rational or autonomous in his sense and thus they are not persons. Furthermore, B) even though there can be some other rational beings (Kant mentions sometimes examples of angels and spirits) we do not know they really exists. Rationality and autonomy is what explains what is special about us or why we have that special already mentioned dignity or worth. 

These days philosophers like to draw a distinction between several different, yet overlapping, senses (or, at least, aspects or components) of the term "person" and/or the concept of personhood.  Here are some of these meanings (you can read more about it in any English-English (Webster) dictionary or any good encyclopedia):

  • A) Biological Sense: The word “person” refers to a biological kind; in this sense, members of Homo Sapiens (i.e., all beings who have human DNA) count as persons.
  • B) Philosophical/Theological Sense: The term “person” refers to all beings who have rational nature and intellect, are self‑conscious, have autonomy (ability to guide themselves by rules and principle they themselves adopt), and have other related characteristic (e.g., have some developed linguistic skills that are necessary for abstract thinking). 

In this sense, some non-biological people can qualify as persons. Usual example include God as God is understood in traditional monotheism. More at home, the Neanderthal Men were persons and there is a dispute how to classify primates (see below).

  • C) Moral Sense: In moral sense of the word “person” refers to all beings protected by moral rules, especially by the rule prohibiting killing them. Another way to express this idea might involve the claim that persons, in this sense, have moral rights, including the right to life.
  • D) Legal Sense: In legal sense, persons are those being that have full legal protection. (E.g., corporations are persons in this sense but, in jurisdiction allowing for slavery, the slaves are not.)

There is a very serious debate about how to best explain the concept of rationality and what kinds of beings qualify as fully rational. Discussions focus on the following list of characteristics taken from a contemporary book on metaphysics and philosophical anthropology (Peter Van Inwagen, “Metaphysics”, p. 171); according to Van Invagen persons:

  • represent to themselves complex states of affairs, including counterfactuals strikingly remote from the current perceptions;
  • believe that some states are actual and others are non-actual (but possible);
  • desire that actual states become non-actual and vice-versa;
  • be aware of logical and casual connections between states of affairs;
  • sort things in categories such as “probable” and “improbable”;
  • assign comparative values to various states of affair;
  • devise plans of actions based on the above categories;
  • recognize that other beings have the same abilities and can communicate with them;
  • can use language to issue statements and commands and to raise questions -

The fact is, theologians and philosophers agree that some non-human (in biological sense of this term) beings can be rational persons. Usual examples include God, possibly angels and spirits, extraterrestrial beings, Neanderthal Men, and so on. 

Here are two recent essays on some of these topics:

Please notice how the distinctions introduced above function in these essays. 


CATEGORICAL IMPERATIVES: THE FORMULA OF UNIVERSAL (MORAL) LAW

Kant's first idea is to link maxims (subjective principles) with the general or universal moral principles everyone ought to follow. Roughly, if my act based on a certain maxim is morally right (or wrong), then for Kant this action is right because I follow a "correct rule". But if this rule is correct, then when someone else acts on the same rule or maxim, his or her actions are also right (wrong).This insight is summarized in the principle that he calls the Categorical Imperative. As he maintains:

"[The categorical] imperative contains besides the law only the necessity of the maxim of acting in accordance with this law [...] there is nothing remaining in it except the universality of law as such to which the maxim of the action should conform; and in effect this conformity alone is represented as necessary by the imperative.

There is, therefore, only one categorical imperative. It is: Act only according to that maxim by which you can at the same time will that it should become a universal law." (Immanuel Kant, "The Categorical Imperative")

We can, perhaps, restate Kant's idea along the following line:

Kant's Imperative 1 (KI1): Act in such a way that the maxim of your action may become universal a principle that everyone follows (i.e., using Kant's terminology) a universal (moral) law.

Actions that fulfill this imperative are morally right, and those that fail to fulfill it are morally wrong. Hence, we can also restate Kant's imperative as follows.

 

A) The First Step of Kant's Argument: Universalization (Generalization)

To see how this principle is supposed to work, we need to remind ourselves what maxims are. For Kant, they are subjective rules that actually motivate a person. Generalized maxims are principles that we achieve by eliminating all references to individuals. Here are some examples that illustrate this proces of generalization (from a subjective maxim to a general principle):

A MAXIM(1) ("subjective" rule): I will lie when I'm tempted to lie.

A GENERALIZED MAXIM(1): Everyone will lie when one is tempted to lie.

 

A MAXIM(2): I will keep change due to a customer when I can get away with this.

A GENERALIZED MAXIM(2): Everyone will keep money do to others when one can do this.

Imagine now that someone considers a certain action. This person must consider his or her maxim. Then she needs to consider a generalized form of this maxim. Finally, she has to determine this generalized maxim can becomes a moral rule in a society. That is, she or he must consider what would happen when everyone acted on the same maxim. Can we rationally will (want) that everyone follows the same rule?

* If the answer is YES, then his or her action (based on this maxim) is morally right.

* If the answer is NO, then his or her action (based on this maxim) is morally wrong.

Consider now Kant's own example (his example #2):

"Another man finds himself forced by need to borrow money. He well knows that he will not be able to repay it, but he also sees that nothing will be loaned him if he does not firmly promise to repay it at a certain time. He desires to make such a promise, but he has enough conscience to ask himself whether it is not improper and opposed to duty to relieve his distress in such a way. Now, assuming he does decide to do so, the maxim of his action would be as follows: When I believe myself to be in need of money, I will borrow money and promise to repay it, although I know I shall never do so. Now this principle of self‑love or of his own benefit may very well be compatible with his whole future welfare, but the question is whether it is right. He changes the pretension of self‑love into a universal law and then puts the question: How would it be if my maxim became a universal law? He immediately sees that it could never hold as a universal law of nature and be consistent with itself; rather it must necessarily contradict itself. For the universality of a law which says that anyone who believes himself to be in need could promise what he pleased with the intention of not fulfilling it would make the promise itself and the end to be accomplished by it impossible; no one would believe what was promised to him but would only laugh at any such assertion as vain pretense."

 A person in Kant's example acts on the following maxim:

 (Max) When I believe myself to be in need of money, I will borrow money and promise to repay it, although I know I shall never do so.

The generalization of this maxim would go as follows:

(GenMax) Anyone who believes himself to be in need could promise what he pleased with the intention of not fulfilling this promise.

Kant asks whether (GenMax) can become the universal moral principle that everyone follows (in his terminology, a universal moral law for a society. In other words, can a society of rational being adopt (GenMax) as a general principle they will follow. He thinks that it cannot  happen. For, if (GenMax) were adopted, no one would believe any promising. So, no promising could take place. So, no one could borrow money by making a false promise.
 

B) The Second Step in Kant's Argument (or Problems with Kant's absolutism) 

When Kant considers lying he could consider the generalization of two slightly different maxims:

  • Max1: When in great need that cannot be fulfilled otherwise, I will lie.
  • Max2:  I will lie, period.

Kant never considers Max1 but only Max2. He argues that such simple rule cannot become a universal moral principles 

But why should we generalize only the simple exceptionless rules? Why not to allow for exceptions and their generalizations, too. Kant's give no argument for that. And this is a very serious problem for his view. 

Contemporary Kantians tend to consider much more complex maxims (that allow for exceptions) and their generalizations. The mai point is that both the "root" of the maxim and the "qualifications" (stating the exceptions) must be universalizable. 
 

C) Appendix

 Let us consider another of Kant's examples (it is his example #1):

"A man reduced to despair by a series of misfortunes feels wearied of life, but is still so far in possession of his reason that he can ask himself whether it would not be contrary to his duty to himself to take his own life. Now he inquires whether the maxim of his action could become a universal law of nature. His maxim is: 'From self‑love I adopt it as a principle to shorten my life when its longer duration is likely to bring more evil than satisfaction.' It is asked then simply whether this principle founded on self‑love can become a universal law of nature. Now we see at once that a system of nature of which it should be a law to destroy life by means of the very feeling whose special nature it is to impel to the improvement of life would contradict itself and, therefore, could not exist as a system of nature; hence that maxim cannot possibly exist as a universal law of nature and, consequently, would be wholly inconsistent with the supreme principle of all duty." (Quoted from the Fundamental Principles of the Metaphysic of Morals, as translated by T.K. Abbott)

 In this example, a person contemplates the act of suicide. The maxim for his act is:

(Max) = Whenever continuing to live will bring me more evil than satisfaction, then I shall commit suicide out of self‑love.

The generalized form of that maxim is:

(GenMax) = Whenever continuing to live will bring someone more evil than satisfaction, she shall commit suicide out of self‑love.

Kant argues as follows:

1. (GenMax) cannot be a universal law.

2. If (GenMax) cannot be a universal law, then no one can consistently will that (GenMax) be a universal law.

3. An action is morally right if and only if the agent thinking about doing this act can consistently will that his maxim be a universal law. (The Categorical Imperative)

4. Therefore, an act of suicide is not morally right.

But why (GenMax) cannot be the universal principle. Kant thinks that's the case that the function of self-love is to support life while suicide would destroy life. Thus, suicide would contradict the general law of nature. The problem with this argument is, of course, that self-love can have more than one function. Typically, it may support life but not in cases when life is to harmful to an agent. 

One of the biggest problem for this argument is its first premise. Kant claims gives an argument for it based on the claim thatt the function of self‑love is to impel us to improve life (or at least the conditions of our life). So, he thinks, self‑love cannot also lead to the life destruction for those functions are incompatible. Critics of Kant argued that those two functions are not really incompatible. In most cases, someone who is alive has good chances to have more benefits than harms. So, in those cases, self‑love impels us to continue being alive. But, in a few cases, a person may have no reasonable chance for a satisfactory life. In such cases self‑love may impel us (or at least permit) to shorten our life. I will leave it to you to think about Kant's arguments and problems with it.

 

CATEGORICAL IMPERATIVES THE SECOND FORMULATION (THE FORMULA OF RESPECT)

Kant claims, in addition, that we (and, in general, all rational beings) cannot help but to think of ourselves (and, more generally, of our rational nature) as an end in itself. Thus, the existence of rational nature provides grounds for another formulation of the categorical imperative:

"The ground of this principle is that rational nature exists as an end in itself. Man necessarily thinks of his own existence in this way; thus far it is a subjective principle of human actions. Also every other rational being thinks of his existence by means of the same rational ground which holds also for myself, thus it is at the same time an objective principle from which, as a supreme practical ground, it must be possible to derive all laws of the will. The practical imperative, therefore, is the following: Act so that you treat humanity, whether in your own person or in that of another, always as an end and never as a means only." (Immanuel Kant, "The Categorical Imperative", emphasis added)

The last sentence in this passage is Kant's expression of his categorical imperative. It is frequently called second formulation of categorical imperative also known as the formula of respect:

Kant Imperative #2 (KI2): Act in such a way that you do not treat any person (any rational being) merely as a means but always also as an end in itself.

Some things to remember:

  • Treating someone as a means is not the same thing as treating someone merely as a means. That is, when I treat someone else as a means, I may also treat this person as an end in itself. But when I treat someone merely as a means, I do not treat this person also as an end.
  • Kant is not completely clear what it means to treat someone merely as a means (as opposed to, as a means and also as an end in itself). However, some of his examples suggest what he has in mind.
  • Kant is not a consequentialist. That is, for Kant, the respect for a person cannot be explained in terms of benefits and harms. There is a fundamental difference between Kant's approach to ethics and consequentialist approach to ethics. For consequentialists, persons are "tools" (or "machines") to produce utility (e.g., benefits and harms). For Kant, persons have special value that is independent of our ability to produce utility or disutility.
  • Respect for a person seems to have something to do with respect for this persons will, autonomy, rationality, dignity, etc.

 

THE IDEA OF "RESPECT FOR AUTONOMY"

In general, we respect one's autonomy if we act in accordance with his or her rational evaluations and will. To put things very crudely, when we have (or, at least, could have) someone's rational consent, we are respecting this person's autonomy. When we do not (or would not) have this person's rational consent, we disrespect this person's autonomy.

Rachel's addresses this idea, in the 1st Chapter of his book (pp. 2-3). According to him, to respect someone's autonomy there must be something to respect. That is, we must deal with someone who is rational and able to make decisions for himself or herself. When we use coercion, deceit, trickery, or manipulation, we disrespect a person. In such a case, Kant might say that we are using this person merely as a mean.

There are still some problems related to precise interpretation of what is involved in the respect for autonomy.

Some complications: Valid consent: respect for autonomy, coercion, and need for information

Coercion seems the most obvious example of violating someone's autonomy. When someone is forced to do something against her will, it is an obvious case of violation. Even when someone is facing a credible threat of violence, Kantian philosophers would count it as an unjustified violation.

Lack of information, specifically, withholding or withdrawing relevant information, is another way in which autonomy may be violated. Consider the infamous "Tuskegee Syphilis Experiment" in which the participants were informed only that it is the study of "bad blood". They were offered no access to all relevant information, including knowledge of alternatives and the likely outcomes. Apparently. they "agreed" to participate in that study. It's implausible to maintain such "agreement" was morally valid.

This suggests what follows:

(Rational and Informed Consent): The consent is valid only if the person is rational and has access to all relevant information. In particular, the person must have full knowledge of risks, benefits, and alternative treatments to any proposed procedure. Only fully informed consent given by fully rational person counts as a valid form of consent.

More complications: Explicit vs. Hypothetical Consent

Does a person have to give an explicit consent. The requirement seems plausible when the outcomes are unclear and so it is not obvious what the person's choices might be. But what about more obvious cases.

For example, consider a car-accident victim who is rushed to the emergency room. Imagine that this person is unconscious and so cannot explicitly consent to some forms of "emergency" treatment. Still, it seems that the doctor would not do anything wrong if she did not wait for the patient to give her an explicit consent. That is, it looks like the explicit consent is not always requires.

In cases when we do not know what someone's will is (perhaps they did not tell us), sometimes we can assume what this will would be. Namely, we can assume that he or she would like to be treated in ways that do not impose any hardship on her, do not thwart her important interests and preferences, etc. Contemporary philosophers working within Kantian tradition (neo-Kantians) propose this interpretation as a way to elucidate Kantian ideas. It is called the idea of hypothetical consent.

Rachels himself suggests the idea of hypothetical consent towards the end of section in which he discusses the idea on not using a person merely as a means. As he observes what follows: 

We might ask, If she could tell us what she wants, what would she say? This sort of thought is useful when we are dealing with people have preferences (or once had them) but cannot express them -- for example, a comatose patient who signed a living will before slipping into the coma. (p. 4). 

Two Level View:
It is possible to combine the idea of explicit consent with the idea of hypothetical consent and apply them to different cases. This sort of view can be named a two level view, or two level interpretation of Kantian ethics.

Clear cut cases: When it is obvious what persons rational will would be, we do not have to expect the explicit consent. Rather, we may base the decisions on the idea of informed rational hypothetical consent. That is, we ask what a rational and well informed agent would choose in a particular case.

Hard cases: Sometimes it is not clear whether someone, S, would consent or not. For example, S is seriously harmed and it is not clear whether he or she will benefit from this procedure or not (e.g., the procedure is risky). Furthermore, it is not clear how S would evaluate the harms and benefits involved. For example, imagine that we have to operate on a virtuoso guitar player who devoted her life to arts; guitar playing is her whole life. Imagine that she will loose her hand if we perform an operation. On the flip side, if we do not operate, there is 50% that she will die. In such a case, it's not clear what choice this person would make.

Under those circumstances, we require that Y gives an explicit and rational consent to the proposed course of action (e.g. the medical treatment). Otherwise, w/o the consent, Y is treated merely as a means

Even more complications: Rachels' qualifications (infants, small children, animals)

For Kant, beings who lack rationality and autonomy are outside the sphere of morality. They are classified as mere "things" that, in principle, can be used in whatever way we feel like. Kant himself did not think that  we have any direct duties to lower animals or other beings that lack rational nature. (It's not clear what he would think about treating small children or people with extremely severe mental limitations.) So, does it mean that we can poke an eye of a puppy with a sharp stick simply because we feel like doing it? This is apparently an implication of Kant's view

In the 1st chapter, Rachels suggests a remedy to this implication. He suggests two different interpretations of the idea of respect and not using someone merely as a means:

(R1) Principle of Respect #1 (due to Immanuel Kant): We use someone merely as a means when a) this person has autonomy (i.e., is able to make fully rational decisions about what is to happen to him/her); and b) we violate their autonomy through manipulation, trickery, deceit, or coercion. 

(R2) Principle of Respect #2 (due to contemporary Kantian philosophers, e.g., Tom Regan): We use someone merely as a means when we violate someone’s interests or preferences (respect requires, at the very least, that someone is not harmed or harmed as little as possible).

(R2) implies that using someone (merely) as a means may also involve violating someone’s conscious interests or preferences. This idea is used by some neo-Kantian philosophers trying to develop Kant's ideas this days. Notably, Tom Regan (the author of "The Case For Animal Rights" (1983)) uses this idea to include animals into the sphere of morality. He argues that humans in general, including children, and also animals have a right not to be harmed. This right implies that harming them is wrong even if it has some overall desirable consequences. At one place, Regan says that harming someone is equivalent to using this being (a human or animal) merely as a means, which is morally wrong.

SOME PROBLEMS FOR KANT AND KANTIANS

* Would a burglar consent to our calling police? 

* Would a criminal consent to being sent to jail?

* Would an enemy consent to being spied upon?

Kant did not think it a real possibility. He is an absolutist about his moral rules – they are very simple and admit to no exceptions. He also thinks that, no matter what, we can do something that does not violate anyone’s autonomy.

He seemed not realistic about the real life cases. Sometimes absolute requirements are in conflict. For example, rules that "it is always wrong to lie" and "it is always wron to facilitate the murder" are sometimes in conflict (see Chapter 9.4). Contemporary kantians understand that some exceptions to moral rules are necessary. So, how can we approach these sorts of circumstances.

An MIT philosopher, Judith Jervis Thomson (in her paper “Some Ruminations on Rights”) suggests a possible answer that kantian philosophers can adopt. What follows is not exactly what Thomson says, though it stays close to her idea. To begin with the distinction:

  • (Infringement) Autonomy can be infringed upon. It is infringed upon when it is constrained in any way.
  • (Violation) Autonomy can be also violated. It is violated when it is infringed upon with any (sufficiently) good reason.

Using this ideas we might say that

Not every infringement of autonomy is also a violation of autonomy. So, sometimes we can infringe upon someone’s autonomy without violating it and thus, without doing anything wrong. In such a cease, coming back to Kant's concepts, we would not be using a person merely as a mean

What would Kantian philosophers say about justified infringements on someone's autonomy? They frequently postulate that there are various degrees in which we can constrain it. Other things being equal, we have to constrain the autonomy as minimally as it is feasible.
 

KANT’S ETHICAL THEORY -- APPLICATION GUIDELINES

Kant's deontology is based on the “categorical imperative”.  There are several formulations of the categorical imperative. Two most frequently discussed (and covered in our book) are the formula of universal moral law and the formula of respect. The latter version, often considered the easiest to apply, can be formulated as follows:

(KI formula of respect) An act is ethically right if and only if it does not involve treating a person merely as a means.

There are different interpretations of the notion of “treating a person merely as a means”.  Most agree, though, on at least this much:

We treat someone merely as a means when we use them to achieve an end or purpose without respecting their autonomy in the process. For example, if a person uses coercion, trickery, manipulation, or deception then, most likely, he is violating someone’s autonomy.

It is ethically permissible, according to Kant, to treat someone as a means to achieve an end or purpose (e.g., to use them as a means to get somewhere by asking them for a ride) provided that someone is also used as an end in itself. However, it is wrong to treat them merely as a means by using them to achieve an end or purpose without respecting their autonomy. E.g., it is morally wrong to use someone as a means to get somewhere by putting a gun to someone’s head and hijacking their car, or by tricking someone into loaning you his/her car, and so on.

In order to ethically evaluate an act using the second formulation of the categorical imperative, ask yourself whether the act would involve treating a person merely as a means. 

In other words, ask yourself whether the person performing the act respects everyone autonomy in the process. One way to determine is to see whether we have someone’s consent or not.  If the act in question would involve treating someone merely as a means, then it is wrong.

Complications: What if every action affects someone’s autonomy.

Kant did not think it a real possibility. He is an absolutist about moral rules. For Kant, moral rules must be very simple; they admit to no exceptions. (Notice, Kant’s theory is different in this respect from utilitarian theory.) He also thinks that, no matter what, we can do something that does not violate anyone’s autonomy.

Contemporary Kantians (neo-Kantians) think that my choices (my rational will)sometimes clash with your choices. So, as a matter of life necessities, sometimes we have to infringe on someone’s autonomy. However, not every infringement is automatically the violation of autonomy.

When we infringe upon someone’s autonomy, we must have good reasons to do so (e.g., it prevents an even bigger infringement or, perhaps, some enormous harm). Furthermore, we must constrain someone’s autonomy as little as possible. Thus, some contemporary Kantians  postulate that an action is right if it limits someone’s autonomy less than other alternatives.