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Consent and the Mere Means Principle

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Notes

  1. GMS, AA 04: 392.03–04. All citations are to the standard Prussian Academy editions of the works of Immanuel Kant. All translations, except where otherwise noted, are my own, although I have consulted, where possible, the Guyer/Wood Cambridge Editions of the Works of Immanuel Kant.

  2. GMS, AA 04: 412.26–413.11. The implications of this are explored in Kahn, Samuel. 2021. "Rethinking Kant on Duty." Review of Metaphysics, Vol. 74, No. 4: 497–526.

  3. GMS, AA 04: 429.10–12, emphasis omitted.

  4. Calling it "the" FH prohibition is somewhat misleading. To say that you ought to treat humanity, whether in yourself or any other person, always as an end is also, arguably, a prohibition. That is, the FH does not command us to perform every action that treats humanity in every person as an end. Such a command would be absurd. Rather, the FH forbids us to perform any action that fails to treat humanity in any person at the same time as an end. So, the mere means prohibition is (merely) part of a broader prohibition, and that broader prohibition perhaps more rightly could be called "the" FH prohibition. I would like to thank an anonymous reviewer from The Journal of Value Inquiry for pressing me to clarify this.

  5. GMS, AA 04: 429.33–430.09.

  6. See Formosa: "According to the above passage, I use another as a mere means if, first, the other cannot possibly agree or consent to my way of acting toward her or if, second, the other cannot possibly contain in herself the end of the very same action" (Formosa, Paul. 2014. "Dignity and Respect." Philosophical Forum, Vol. 45, Issue 1: 407–422, 57).

  7. According to Parfit, "We treat people as ends, Kant claims, and not merely as a means, if we deliberately treat these people only in ways to which they could rationally consent" (Parfit, Derek. 2011. On What Matters. Oxford University Press, vol. I, p. 218). As may be inferred from this quotation, Parfit interprets the consent condition in terms of rational consent. So Parfit's assertion may be paraphrased: if an action passes the consent condition, then it treats people as ends. But Parfit is mistaken: Kant does not claim this. Kant claims only that if an action passes the end-containment condition, then it treats people as ends, not that if an action passes the consent condition, it treats people as ends. As such, Parfit's assertion could be attributed to Kant only if Kant claimed that passing the consent condition entails passing the end-containment condition. But Kant does not claim this either. What Kant does claim, in the first sentence of the passage above, is the converse of this: failing the consent condition entails failing the end-containment condition--exactly what we would expect if the consent condition is equivalent to the mere means prohibition whereas the end-containment condition is equivalent to the FH.

  8. Patrone suggests that, in the FH, "'merely' modifies 'using' rather than 'means'" (Patrone, Tatiana. 2018. "Treating Others as Means, but Not Merely as Means." Ethical Perspectives, Vol. 25, Number 1: 61–86, p. 75). On the basis of this she ascribes the following two claims to Kant: (1) if you are using someone as a means, you are using her merely as a means, and (2) if you are not using someone merely a means, your actions are permissible (Patrone, Tatiana. 2018. "Treating Others as Means, but Not Merely as Means." Ethical Perspectives, Vol. 25, Number 1: 61-86). If Patrone is right about this, then the sentence to which this footnote is appended is false. However, neither (1) nor (2) should be ascribed to Kant, and Patrone's reading of the FH is mistaken.

    Regarding (1): this would make it difficult to understand the phrase 'always at the same time' in the FH. Indeed, Kant is explicit in the Metaphysics of Morals that there are conditions in which, because I am treating a person at the same time as an end, I "can make use of a person exactly as of a thing, nevertheless without abridgment of their personality" (MS, AA 06: 659.20–22; I owe this reference to Kleingeld, Pauline. 2020. "How to Use Someone Merely as a Means." Kantian Review, Vol. 25, Issue 3: 389–414, p. 403). Regarding (2): in the Groundwork Kant asserts that

    ...in relation to contingent (meritorious) duty to oneself it is not enough that the action not conflict with the humanity in our person, as end in itself, it must also harmonize therewith. (GMS, AA 04: 430.10–13)

    So Kant thinks an agent can fail to fulfill his duties to himself even if he does not use his own humanity as a mere means. And Kant makes a similar claim about duties to others a few lines later (GMS, AA 04: 430.19-24). This is repeated in the Metaphysics of Morals when Kant argues that, because I "nevertheless can be indifferent" to the needs and wants of others, I can fail in my duty to treat persons as ends even if I use neither myself nor anyone else as a mere means (MS, AA 06: 395.15–21, esp. 19). Regarding Patrone's reading of the FH: Patrone's suggestion that 'merely' modifies 'using' rather than 'means' overlooks the fact that there is only one verb that governs both the mere means clause and the end clause of the FH.

  9. (O'Neill, Onora. 1995. Constructions of Reason. Cambridge University Press, chapter 6); (Korsgaard, Christine. 1995. Creating the Kingdom of Ends. Cambridge University Press, chapter 5, esp. pp. 138–139; Korsgaard, Christine. 2004. "Fellow Creatures." Tanner Lectures on Human Values Vol. 24: 77–110, p. 80; Korsgaard, Christine. 2011. "Interacting with Animals." In The Oxford Handbook of Animal Ethics, ed. Tom L. Beauchamp and R. G. Frey: 91–118. Oxford University Press, pp. 109-110; Korsgaard, Christine. 2018. Fellow Creatures. Oxford University Press, sections 5.1.1, 8.4.5, and 12.2.1).

  10. (Korsgaard, Christine. 2004. "Fellow Creatures." Tanner Lectures on Human Values Vol. 24: 77–110, 80n40).

  11. (Richards, Janet Radcliffe. 2009. "Consent with Inducements." In The Ethics of Consent, ed. Franklin G. Miller and Alan Wertheimer: 281-304. Oxford University Press, pp. 296–297).

  12. (Kerstein, Samuel. 2013. How to Treat Persons. Oxford University Press, pp. 73–74). The example also appears in his (Kerstein, Samuel. 2009. "Treating Others Merely as Means." Utilitas, Vol. 21, No. 2: 163–180, p. 173).

  13. A few brief comments: I am not sure that hypnotism can work in this way. Moreover, being convinced that one cannot turn down any request is not the same as not being able to turn down any request. Finally, as the example is constructed, it is impossible for the taxi driver not to consent rather than impossible for the driver to consent. But these details can be overlooked for present purposes.

  14. Kleingeld, Pauline. 2020. "How to Use Someone Merely as a Means." Kantian Review, Vol. 25, Issue 3: 389–414, p. 398; see also Kleingeld, Pauline. 2020. "A Kantian Solution to the Trolley Problem." Oxford Studies in Normative Ethics, Vol. 10: 204–228, p. 210.

  15. According to Cherry, "we do not treat someone merely as a means if he consents to be so treated" (Cherry, Mark J. 2005. Kidney for Sale by Owner. Georgetown University Press, p. 98). I owe this reference to Kerstein, Samuel. 2013. How to Treat Persons. Oxford University Press, 85n1.

  16. Kleingeld tries to distinguish between possible and actual consent in a different way:

    There is an important class of cases of violence that seem to involve the use of others merely as a means, although the nature of the action does not make it impossible, for the person who is used, to consent. Consider, for example, the action of using a healthy person’s organs, thereby killing him, in order to save the lives of five others. Does this constitute a case of using the person merely as a means? On Korsgaard’s account, the question here is not whether the person does or would consent, but ‘strictly’ whether the person can consent given the nature of the action. In contrast to the false promising example, here the nature of the action does not make it impossible for the victim to consent. If, in a spirit of radical altruism, he did consent, the agent’s action would still be properly described as using his organs to save five others, thereby killing him. It follows from Korsgaard’s account of the prohibition, therefore, that organ harvesting does not qualify as using the victim ‘merely as a means’, not even when the victim does not or would not consent. (Kleingeld, Pauline. 2020. "How to Use Someone Merely as a Means." Kantian Review, Vol. 25, Issue 3: 389–414, p. 395.)

    However, this does not work. On Korsgaard's account, the nature of an action is determined by the agent's maxim. So organ harvesting does qualify as using the victim merely as a means on Korsgaard's account if the victim has been coerced or forced. An organ harvester acting in accordance with a maxim that passes the possible consent account is not performing the same kind of action as an organ harvester acting in accordance with a maxim that does not pass the possible consent account (and an organ harvester who proceeds even in light of the victim's refusal is almost certainly acting on a maxim that does not pass the possible consent account).

  17. It is worth noting that, although Kleingeld says she adopts an "agent-focused actual consent interpretation," the way that she spells out her account makes it clear that it is patient-centered, at least as I am using the terms (Kleingeld, Pauline. 2020. "How to Use Someone Merely as a Means." Kantian Review, Vol. 25, Issue 3: 389–414, p. 404, emphases omitted). For example, consider the following:

    ...in order to be able to give genuine consent, the person whom you want to use as means needs to be mentally competent and mature enough, and the person also needs to have and understand the relevant information. The person needs to know which end you want him to serve, how you plan to use him, what this will require of him and so on. (Kleingeld, Pauline. 2020. "How to Use Someone Merely as a Means." Kantian Review, Vol. 25, Issue 3: 389–414, p. 404)

    That is, Kleingeld says in this passage that the person needs to how you plan to use her, not that you need to tell her how you plan to use her. If, unbeknownst to you, the agent is not paying attention when you tell her what you are going to do, then an agent-centered account will come apart from a patient-centered one like Kleingeld's.

  18. (Parfit, Derek. 2011. On What Matters. Oxford University Press, vol. 1 chapters 8 and 9, and vol. 2 chapter 18); (Rohlf, Michael. 2009. "Contradiction and Consent in Kant's Ethics." The Journal of Value Inquiry, Vol. 43: 507–520, esp. section 3); and (Papadaki, Lina. 2016. "Treating Others Merely as Means." Utilitas, Vol. 28, No. 1: 73–100). Sussman also seems to advocate rational consent: "In the Groundwork, Kant claims that if I am to treat other people as ends in themselves, every one affected by my act must consent, or be rationally able to consent, to what I am doing" (Sussman, David. 2008. "Shame and Punishment in Kant's 'Doctrine of Right.'" The Philosophical Quarterly, Vol. 58, No. 231: 299–317, p. 310). Formosa claims to advocate a possible consent interpretation (Formosa, Paul. 2014. "Dignity and Respect." Philosophical Forum, Vol. 45, Issue 1: 49-68, p. 57). But by the end of his exposition, it is clear that he advocates what I am calling rational consent: "we treat others as mere means by failing to interact with them on terms that they could possibly rationally consent to" (Formosa, Paul. 2014. "Dignity and Respect." Philosophical Forum, Vol. 45, Issue 1: 49–68, p. 65, emphasis in original).

    There is a subtlety about Parfit that is worth noting here. Parfit advances his rational consent test as an interpretation of Kant's remarks about the lying promise example. But Parfit argues that Kant's mere means prohibition should be understood differently, as prohibiting action that involves using someone as a means while simultaneously regarding her as a tool, where an agent regards someone as a tool if but only if he does not pay any heed to the person's interests. Parfit then argues that Kant's mere means prohibition, unlike the rational consent condition, has no explanatory value because (i) if I pay only the slightest heed to a person's interests, this will not change whether my action is wrong even though it will change whether the action passes the prohibition, and (ii) if my action is permissible (as when ordering coffee from a barista), then how I regard a person is irrelevant (Parfit, Derek. 2011. On What Matters. Oxford University Press, vol. 1, esp. 231–232).

    I do not accept Parfit's interpretation of Kant's mere means prohibition. But bracketing that, there are at least three problems with Parfit's argument. First, a moral principle need not explain why all (or even many) wrong actions are so for it to have explanatory value. Second, if how I regard a person is part of my maxim of action, then it is relevant in determining whether my maxim and, thus, my action is permissible. Third, Parfit's attempt to divorce the lying promise example remarks from the FH prohibition disagrees with the text.

  19. (Papadaki, Lina. 2016. "Treating Others Merely as Means." Utilitas, Vol. 28, No. 1: 73–100, p. 98).

  20. (Rohlf, Michael. 2009. "Contradiction and Consent in Kant's Ethics." The Journal of Value Inquiry, Vol. 43: 507–520, p. 514).

  21. (Parfit, Derek. 2011. On What Matters. Oxford University Press, vol. 1, p. 187).

  22. GMS, AA 04: 429.15–28.

  23. MS, AA 06: 424.09–428.26.

  24. MS, AA 06: 434.32–435.01.

  25. MS, AA 06: 359.24–29.

  26. MS, AA 06: 426.07–12.

  27. MS, AA 06: 426.12–15.

  28. According to Pascoe, (1) Kant "rejected the idea that sex was about procreation," and (2) Kant thought that, even in marriage, "sex is really never morally permissible" (Pascoe, Jordan. 2012. "Kant and Kinky Sex." In What Philosophy Can Teach You About Your Lover, ed. Sharon M. Kaye: 25–36. Open Court, p. 32). I think both of these attributions are mistaken. Against (1): in the Metaphysics of Morals Kant states that "nature's purpose, in the cohabitation of the sexes, is procreation" (MS, AA 06: 426.02–03; see also 424.29–425.05). Against (2): also in the Metaphysics of Morals, Kant notes that "bodily union of both sexes" can be "permissible" in marriage (MS, AA 06: 425.16–17). More, the casuistical questions referred to in the paragraph to which this note is appended would make little sense if Kant thought that all sex (or even all sex that takes place "without consideration of this [procreative end of nature]" (MS, AA 06: 426.05, emphasis omitted)) is impermissible.

  29. See Bruers, Stijn. 2016. "Can Deontological Principles be Unified?" Philosophia, Vol. 44: 407–422.

  30. Alternatively, some might object that Kant had possible or actual consent in mind when presenting the mere means prohibition but that he misapplied that formula when he talks about sex and marriage. This objection takes us into something I gesture to one paragraph up: assumptions regarding how charitable we should be when reading Kant. As such, I address it more completely in section 4 of this paper. I would like to thank an anonymous reviewer from The Journal of Value Inquiry for pressing me to clarify this.

  31. O'Neill attacks actual consent on similar grounds. She points out that, if Marx is correct, then actual consent can be the result of false consciousness and, when it is so, it is spurious (O'Neill, Onora. 1995. Constructions of Reason. Cambridge University Press, pp. 107–108). O'Neill does not notice that this also poses a problem for possible consent.

  32. (Kleingeld, Pauline. 2020. "How to Use Someone Merely as a Means." Kantian Review, Vol. 25, Issue 3: 389–414, p. 404).

  33. A qualifier is needed here: in contemporary professional medical ethics this is so. However, at least in the Western world, this does not always seem to have been the case.

  34. I would like to thank an anonymous reviewer from The Journal of Value Inquiry for suggesting this.

  35. This last point can be reformulated as a dilemma using a lying promise example. Suppose that Abba tells Baab a lying promise in order to get some ready money. But suppose that, unbeknownst to Abba, Baab knows what is going on and wants to help Abba. If Baab gives Abba the money, is the possible consent account vitiated because Baab has consented to being used as a mere means? Proponents of possible consent point out that, although Baab has consented to give Abba the money, Baab has not consented to Abba's maxim (which is to deceive Baab) and, indeed, it is impossible for Baab to do so. If this is correct, then it is vacuously true that, if Baab consents to Abba's maxim, Baab is not required to give up the end of respecting humanity, whence it follows that Papadaki's rational consent criterion is unable to account for the very example in Kant's text that inspired it. Alternatively, if this is incorrect and Baab is able to to consent to Abba's maxim, then although it is certainly possible to imagine scenarios in which such consent would require Baab to give up the end of respecting humanity, it also seems possible to imagine scenarios that would not require this--in which case, once again, Papadaki's rational consent criterion is unable to account for the very example in Kant's text that inspired it.

  36. (Rohlf, Michael. 2009. "Contradiction and Consent in Kant's Ethics." The Journal of Value Inquiry, Vol. 43: 507–520, p. 514).

  37. An additional issue: as noted in the introduction of this paper, Kant introduces the FH in order to bring the Categorical Imperative closer to intuition. So, if we need help understanding the FH prohibition, seeking that help from other formulations of the Categorical Imperative does not seem like Kant's strategy. Rather, the other formulations should be illuminated by means of the FH. This is borne out by the fact that most of the duties discussed in the Metaphysics of Morals appeal to the FH.

  38. But see (Timmermann, Jens. 2005. "Why Kant Could Not Have Been a Utilitarian." Utilitas, Vol. 17, No. 3: 243–264).

  39. GMS, AA 04: 423.17–35.

  40. Although it is perhaps worth noting that Kant does not suggest that a world full of egoists would be the best of all possible worlds (and, indeed, such a conclusion would be contradicted by his later claims about the highest good); rather, he is arguing that a world full of (non-cheating) egoists would be better than the current one.

  41. Parfit might concede this without objection: his primary goal is not exegetical. See note 18 above.

  42. GMS, AA 04: 429.03–430.01.

  43. There is no entry for einstimmen in Caygill, Howard. 2000. A Kant Dictionary. Blackwell or Schmid, Carl Christian Erhard. 1795. Worterbüch zum Leichtern Gebrauch der Kantischen Schriften. Cröker.

  44. TG, AA 02: 342.17–21.

  45. KpV, AA 05: 013.02–05.

  46. KpV, AA 05: 028.07–12.

  47. KpV, AA 05: 069.25–30.

  48. KpV, AA 05: 078.33–34.

  49. KpV, AA 05: 087.21–27.

  50. KU, AA 05: 216.13–15.

  51. KU, AA 05: 240.31–241.03.

  52. KU, AA 06: 451.15–16.

  53. RGV, AA 06: 034.09–11.

  54. MS, AA 06: 259.01–04.

  55. MS, 06: 271.11–14.

  56. MS, AA 06: 333.18–21.

  57. SF, AA 07: 008.24–30.

  58. TP, AA 08. 297.20–24.

  59. ZeF, AA 08: 367.22–29.

  60. Br, AA 1o: 131.15–22.

  61. Refl, AA 16: 132.11–13.

  62. Refl, AA 18: 547.25–548.06.

  63. VAMS, AA 23: 375.27–29.

  64. The way Kant's correspondents use the term suggests that Kant's use was not idiosyncratic (e.g., Br, AA 11: 243.17–22).

  65. (Seymour Fahmy, Melissa. 2021. "Shadow Students in Georgia." Journal of Philosophy of Education, Vol. 55, Issue 6: 1057–1071, esp. pp. 5–8) and (Sticker, Martin. 2021. "Poverty, Exploitation, Mere Things and Mere Means." Ethical Theory and Moral Practice, esp. section 2). Seymour Fahmy follows Hill, who sets out his account in a series of publications including his Hill, Jr. Thomas E. 1980. "Humanity as an End in Itself." Ethics, Vol. 91, No. 1: 84–99; Hill, Jr. Thomas E. 2003. "Treating Criminals as Ends in Themselves." Jahrbuch für Recht und Ethik, Vol. 11: 17–36; and Hill, Jr. Thomas E. 2012. Virtues, Rules, and Justice. Oxford University Press, chapter 8.

  66. I am indebted in the following to (Wood, Allen. 1999. Kant's Ethical Thought. Cambridge University Press, chapter 5 section 8).

  67. I would like to thank an anonymous reviewer from The Journal of Value Inquiry for pressing me to clarify this.

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Kahn, S. Consent and the Mere Means Principle. J Value Inquiry (2022). https://doi.org/10.1007/s10790-022-09909-2

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