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Dignity, Contractualism and Consequentialism

Published online by Cambridge University Press:  01 December 2008

DAVID CUMMISKEY
DAVID CUMMISKEY*
Affiliation:
Bates [email protected]
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Abstract

Kantian respect for persons is based on the special status and dignity of humanity. There are, however, at least three distinct kinds of interpretation of the principle of respect for the dignity of persons: the contractualist conception, the substantive conception and the direct conception. Contractualist theories are the most common and familiar interpretation. The contractualist assumes that some form of consent or agreement is the crucial factor that is required by respect for persons. The substantive conceptions of dignity, on the other hand, treat the concept of dignity as a substantive value that justifies a deontological conception of respect for persons. A third conception of respect for the dignity of persons, the conception that I favor, focuses directly on the special value of our rational nature. According to this consequentialist conception, we respect the dignity of persons by promoting the flourishing of rational nature.

Type
Research Article
Information
Utilitas , Volume 20 , Issue 4 , December 2008 , pp. 383 - 408
Copyright
Copyright © Cambridge University Press 2008

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References

1 Cummiskey, David, ‘Consequentialism, Egoism, and the Moral Law’, Philosophical Studies 57 (1989), pp. 111–34CrossRefGoogle Scholar; ‘Kantian Consequentialism’, Ethics 100 (1990), pp. 586–615; Kantian Consequentialism (Oxford, 1996); ‘Gewirth's Kantian Consequentialism’, Gewirth, ed. Michael Boylan (Lanham, 1998). R. M. Hare, ‘Could Kant Have Been a Utilitarian?’, Sorting Out Ethics (Oxford, 1997). Shelly Kagan, ‘Kantianism for Consequentialists’, in Allen Wood's edition of Kant's Groundwork for the Metaphysics of Morals (New Haven, 2002), pp. 111–56. Derek Parfit, ‘Climbing the Mountain’, Tanner Lectures on Human Values, forthcoming.

Hare and Kagan focus on the formula of universal law. Kagan unlike Hare realizes that a Kantian theory of the good will not be similar to utilitarian theories. This is a point emphasized in Kantian Consequentialism. In addition to these arguments, Parfit also considers the full range of Kantian principles and supposed arguments for non-consequentialism, and both give a great deal of attention to the imperative to treat people as ends-in-themselves and not means only. Parfit's account is especially detailed and discusses almost all of the recent literature on the formula of humanity as an end in itself.

Critics of Hare and Kagan argue that the formula of the end-in-itself, not universalizability, is the basis of the Kantian rejection of consequentialism. Critics of my work argue either that I neglect the formula of universalizability (but do not go on to argue that it in fact rules out fundamental consequentialist maxims), or criticize my account of Kantian value theory. The latter takes two distinct forms. The first argues that it is mistaken to rely on Korsgaard's argument for the special value and status of rational nature. These critics do not contest the argument that consequentialism can accommodate the idea of the special status of rational nature. They object instead to the Kantian argument for the special value of rational nature, rather than the consequentialist interpretation of respect for rational nature. The other critics argue that I have misunderstood the nature of the special value of rational nature, and these critics appeal to contractualist procedures like Scanlon's or Kamm's account of the inviolability of persons as the correct Kantian explication of the respect due to rational nature. We will thus focus below on Scanlon's and Kamm's arguments.

2 On these issues, see Korsgaard, , The Sources of Normativity (Cambridge, MA, 1996)Google Scholar; Creating the Kingdom of Ends (Cambridge, MA, 1996). Schneewind, Jerome, The Invention of Autonomy (Cambridge, MA, 1997)Google Scholar. Darwall, Stephen, The British Moralist and the Internal Ought: 1640–1740 (Cambridge, 1995)Google Scholar. Scanlon, Thomas's What We Owe Each Other (Cambridge, 2000)Google Scholar also defends a proceduralist account of moral facts.

3 Paul Guyer argues that Kant's mature view recognizes that our nature (inclinations) can be shaped and altered by our own practical reason, in Kant on Freedom, Law, and Happiness (Cambridge, 2000).

4 See Wood, Allen, Kant's Ethical Thought (Cambridge, 1999)CrossRefGoogle Scholar for a recent discussion of this issue. The problem is that even the most sophisticated accounts give rise to false positives and false negatives. It seems that the various interpretations of universalizability procedure assume that we antecedently know what is right and what is wrong, and it this prior knowledge that guides the tinkering with the procedure. The result is that universalizability is not really working as a procedural test of rightness at all. Furthermore, Cummiskey, ‘Consequentialism’ and Kantian, ch. 3, as well as Kagan, ‘Kantianism’, argue that consequentialism ‘passes’ the universalizability procedural test. This is an additional significant ‘false positive’ for deontologists. If the test procedure can be further doctored so as to avoid consequentialism, how would what results be an argument against consequentialism at all?

5 Most centrally, see Rawls, ‘Kantian Constructivism in Moral Theory’ (The Dewey Lectures), Journal of Philosophy 77 (1980), pp. 515–72 and reprinted in Rawls's Collected Papers, ed. Samuel Freeman (Cambridge, 1999). Rawls argues that his theory of justice is constructed from an ideal of the moral person that includes the capacity to form, to revise and to effectively pursue a conception of the good. Korsgaard focuses on the capacity for ‘reflective endorsement’ as the source of normativity in Sources. Will Kymlicka defends the idea of rational revisability as a core assumption of liberalism in Contemporary Political Philosophy, 2nd edn. (Oxford, 1992), esp. ch. 6 on ‘Communitarianism’ and ch. 8 on ‘Multiculturalism’.

6 For a review of these arguments see references in n. 2.

7 Hilary Bok has developed this Kantian conception of practical freedom, or freedom from a practical point of view, and she provides a compelling basis for a compatibilist conception of freedom and responsibility in Freedom and Moral Responsibility (Princeton, 1998).

8 On the formula of universal law and the practical contradiction interpretation, see Korsgaard, ‘Kant's Formula of Universal Law’, Creating. (For problems with the formula of universal law, see, for example, Wood, Kant's.)

9 For a fuller discussion of Kant's distinction between dignity and price, see Cummiskey, Kantian, pp. 127–31. On this issue also see Hill, Thomas Jr, Dignity and Practical Reason (Ithaca, 1992), ch. 10Google Scholar.

10 Anderson, Elizabeth, Value in Ethics and Economics (Cambridge, 1993)Google Scholar; Velleman, J. David, ‘A Brief Introduction to Kantian Ethics’, Self to Self (Cambridge, 2005), ch. 2Google Scholar; ‘A Right of Self-Termination’, Ethics 109 (1999), pp. 608–28. For a response to Velleman's Kantian argument against the right to die, see Cummiskey, David, ‘The Right to Die and the Right to Health Care’, Public Health Policy and Ethics, ed. Boylan, Michael (Dordrecht, 2004)Google Scholar.

11 Kagan, ‘Kantianism’; Cummiskey, Kantian, ch. 2 and 3; Hare, ‘Could’.

12 It is a common feature of much recent Kantian ethics, despite its excellence in other respects, that it simply ignores consequentialism. In addition to Korsgaard and O'Neill, for example, both Andrews Reath and Stephen Engstrom, in their excellent recent explications of the formula of universal law, do not consider and do not rule out a basic consequentialist normative principle. Their accounts do indeed address many important concerns about the adequacy of the universalizability formula, and they do an admirable job explaining the contradiction in universalizing egoistic (prima facie immoral) maxims of action, but they do not address, and do not answer, the consequentialist challenge to Kantian deontology. Reath, Andrews, ‘Agency and Universal Law’, Agency and Autonomy in Kant's Moral Theory: Selected Essays (Cambridge, 2006)CrossRefGoogle Scholar and Stephen Engstrom, ‘Willing a Maxim as a Universal Law: Universal Legislation as a Form of Practical Knowledge’, both presented at the Beijing International Symposium on Kant's Moral Philosophy in Contemporary Perspectives (Beijing China, May 2004).

13 Railton, Peter, ‘Alienation, Consequentialism, and the Demands of Morality’, Philosophy and Public Affairs 13 (1984), pp. 134–71Google Scholar, reprinted in Consequentialism and its Critics, ed. Samuel Scheffler (Oxford, 1988); Hare, R. M., Moral Thinking (Oxford, 1981)Google Scholar.

14 On the capabilities approach, see Sen, Amartya, Commodities and Capabilities (Oxford, 1985)Google Scholar; Inequality Reexamined (Oxford, 1992); Development as Freedom (New York, 1999); Rationality and Freedom (Cambridge, 2002). Nussbaum, Martha, ‘Human Capabilities, Female Human Beings’, Women, Culture, and Development, ed. Glover, and Nussbaum, (Oxford, 1995)Google Scholar; ‘Aristotelian Social Democracy’, Liberalism and the Good, ed. R. Bruce Douglass, Gerald M. Mara and Henry S. Richardson (London, 1990). Also see Alan Gewirth's account of ‘generic rights’ to freedom and well-being that are based on the objective needs of rational agents in Reason and Morality (Chicago, 1978); especially in The Community of Rights (Chicago, 1996). I have argued that Gewirth's theory justifies a form of Kantian consequentialism in Cummiskey, ‘Gewirth's’.

15 Cummiskey, ‘Kantian’; Kantian, chs. 5, 7 and 8. The details of these principles, of course, need to be developed and specified in significantly greater detail. The arguments presented here are compatible with a wide range of consequentialist principles. In particular, one would need to consider satisficing alternatives to maximizing consequentialist principles. The argument here is also neutral between aggregative and distribution-sensitive forms of consequentialism. Our focus in particular is on the Kantian justification of deontological constraints and on the alternative consequentialist conception of the special value and dignity of rational nature.

16 For problems with the argument for the priority of rational nature, see Cummiskey, Kantian, ch. 4.

17 Scanlon, What; Rawls, John, A Theory of Justice (Cambridge, 1973)Google Scholar; O'Neill, Onora, Constructions of Reason (Cambridge, 1989)Google Scholar. These particular proceduralist accounts, however, may also include substantive elements inconsistent with the pure form.

18 Rawls, ‘Kantian’; Korsgaard, Sources.

19 Hurley, Paul, ‘Agent-Centered Restrictions: Clearing the Air of Paradox’, Ethics 107 (1997), pp. 120–46Google Scholar; Dean, Richard, ‘Cummiskey's Kantian Consequentialism’, Utilitas 12 (2000)Google Scholar.

20 Simon Blackburn, ‘Am I Right?’, New York Times Book Review (21 February 1999); Ruling Passions (Oxford University Press, 1998). In addition, Philip Pettit raises this objection in ‘Doing unto Others’, Times Literary Supplement (25 June 1999), pp. 7–8. See also Collin McGinn, ‘Reasons and Unreasons’, The New Republic (24 May 1999), pp. 34–8. Philip Stratton-Lake has named this the ‘redundancy objection’, in ‘Scanlon's Contractualism and the Redundancy Objection’, Analysis 63.1 (2003), pp. 70–6; and ‘Scanlon, Permissions, and Redundancy: Response to McNaughton and Rawling’, Analysis 63.3 (2003), pp. 332–7.

Stratton-Lake argues that Scanlon's contractualist principle ‘is not supposed to tell us what makes certain actions morally wrong, but rather to tell us what it is for these actions to be morally wrong. The principle does not, therefore, specify the ground of moral wrongness, but the nature of moral wrongness. Consequently, it cannot be criticized because it does not add to those grounds’ (Analysis 63.1 (2003), pp. 71–2). Whatever one makes of the overall adequacy of Stratton-Lake's proposal to solve the redundancy problem, it does not help with the problem at hand: namely, explaining how Scanlon's contractualism can provide a basis for non-consequentialist, deontological principles of moral wrongness. This approach to solving the redundancy problem in effect concedes that Scanlon's contractualism does not justify deontological constraints because it is not meant to provide an account of the ground of moral wrongness.

21 Ridge, Michael, ‘Saving Scanlon: Contractualism and Agent-Relativity’, The Journal of Political Philosophy 9 (2001), pp. 247–81CrossRefGoogle Scholar; ‘Contractualism and the New Improved Redundancy Objection’, Analysis 63.3 (2003), pp. 337–42.

22 Ridge here relies on Thomas Nagel's distinction between agent-neutral and agent-relative reasons in The View from Nowhere (Oxford, 1986), ch. 9.

23 For a response to Ridge, see Nicholas Southwood, ‘Reasons, Reasonable Rejectability, and Redundancy’, manuscript available at http://www.nyu.edu/gsas/dept/philo/gradconf/papers/Southwood.pdf.

24 On distribution-sensitivity, the priority of the worst-off, and aggregation problems, see Scanlon, What, pp. 223–41. Scanlon explains why the numbers will count for a contractarian (Scanlon, What, p. 232), and also argues that we need to distinguish the relative importance of goods such that lesser goods for the many do not trump the greater goods for the few (Scanlon, What, pp. 235, 239–40). The two tiers of value in Kantian consequentialism are meant to address these issues (see Cummiskey, Kantian, ch. 9), but a more refined and developed account of the status of goods is probably necessary. On distribution-sensitive consequentialism, also see Scheffler, Samuel, The Rejection of Consequentialism (Oxford, 1982)Google Scholar.

25 Scanlon, What, pp. 194, 213–18. Scanlon also considers and responds to the idea that we need a tighter contractualist model like Rawls's Original Position (Scanlon, What, pp. 241–7). Rawls's approach builds the substantive values and principles into the description of the fair choice situation.

26 For additional arguments that Scanlon's contractualism does not justify deontological constraints, see Brand-Ballard, Jeffrey, ‘Contractualism and Deontic Restrictions’, Ethics 114 (2004), pp. 269–300Google Scholar. For an argument that Scanlon's approach generates strong duties to aid others, see Ashford, Elizabeth, ‘The Demandingness of Scanlon's Contractualism’, Ethics 113 (2003), pp. 273–302Google Scholar.

27 Parfit, Climbing. Parfit has pointed out that Scanlon, at times, recognizes and acknowledges that his contractualist approach requires a restriction on the use of moral beliefs as a ground for rejecting principles. (See Scanlon, What, pp. 4–5, 213–16.) In addition, Parfit points out that Scanlon also argues that ‘it would be unreasonable . . . to reject a principle because it imposed a burden on you when every alternative principle would impose much greater burdens on others’ in Scanlon, ‘Contractualism and Utilitarianism’, Moral Discourse and Practice, ed. Stephen Darwall, Allan Gibbard and Peter Railton (Oxford, 1997), p. 272. Parfit calls the first point ‘the moral belief restriction’ and the second principle ‘the greater burden principle’. Parfit argues that the result of the combination of these two points is that the Scanlonian contractualist cannot reasonably reject principles that impose lesser burdens on some for the sake of preventing greater burdens on others, because the common objection to these types of cases appeals to the moral intuitions that it is wrong to harm some to help others – and thus violates the moral belief restriction.

The only apparent basis for the ‘substantive judgment’ that one can reasonably reject (intentionally) being harmed, but that it would be unreasonable to reject harms that are simply allowed (or not intended), is the prior ‘moral judgment’ that doing or intending harm is worse than allowing or foreseeing harm. However common this moral intuition may be, it may simply reflect the bias of the fortunate; that is, of those who are unlikely to actually need the assistance of others, as Scanlon once argued. Leaving aside the simple moral intuition that it is wrong to harm some to help others, there is nothing in itself reasonable about countenancing, through action or inaction, a greater harm over a lesser harm. On this point, see Scanlon, ‘Rights, Goals, and Fairness’, Consequentialism and its Critics, ed. Samuel Scheffler (Oxford, 1988), and Unger, Peter, Living High and Letting Die: Our Illusion of Innocence (Oxford, 1996)CrossRefGoogle Scholar, on the lack of a moral basis supporting the psychological dispositions behind these types of ‘judgments’. This issue is addressed further in the final section of this article, in which the principles of the inviolability and the unignorability of persons are considered.

28 Hill, Dignity, esp. ch. 10. See Wood, Kant's, p. 141, for Wood's argument that Kant's formula of humanity asserts the existence of a substantive value to be respected. He seems to follow Hill in his interpretation of the nature of this value. For a comprehensive response to Hill's view, see Cummiskey, Kantian, ch. 7.

29 Kamm, Frances Myrna, ‘Non-consequentialism, the Person as an End In Itself, and the Significance of Status’, Philosophy and Public Affairs 21 (1992), pp. 354–89Google Scholar.

30 Lippert-Rasmussen, Kasper, ‘Moral Status and the Impermissibility of Minimizing Violations’, Philosophy and Public Affairs 25 (1996), pp. 333–51CrossRefGoogle Scholar.

31 Lippert-Rasmussen concludes that we are faced with a stalemate of conflicting intuitions. My argument differs from his in that I argue that there is good Kantian reason supporting one side of the board and mere intuitions supporting the other side. In addition, if the best that deontological Kantians can offer in response is a robust confidence in the superiority of their intuitions – their moral sense – then they have indeed abandoned the Kantian project of providing a rational foundation for the principles of morality.

32 Kamm, Frances Myrna, Morality, Mortality, Vol. II: Rights, Duties, and Status (Oxford, 1996), pp. 276–7Google Scholar. I have benefited here from Nir Eyal's discussion of Kamm's reply. See ‘Distributing Respect’ (PhD dissertation, St Hugh's College, University of Oxford, 2003), pp. 210–11.

33 Hare, Moral; Railton, ‘Alienation’; Conly, Sarah, ‘The Objectivity of Morals and the Subjectivity of Agents’, American Philosophical Quarterly 22 (1985), pp. 275–86Google Scholar. See also many other contemporary consequentialists.

34 Joshua Greene, The Secret Joke of Kant's Soul, http://www.wjh.harvard.edu/%7Ejgreene/GreeneWJH/Greene-KantSoul.pdf. Green's argument assumes, but does not argue, that there is no rational basis for constraints. If constraints lack a principled justification, then Greene's alternative provides an interesting explanation for the emotive force of intuitive deontological judgments.

35 Earlier drafts of this article were presented at the American Philosophical Association Pacific Division Meeting, the University of Tennessee at Knoxville, Pomona College, the Beijing International Symposium on Kant's Moral Philosophy in Contemporary Perspectives, the International Society for Utilitarian Studies (ISUS) at Dartmouth College, and the Athens Institute for Education and Research International Conference on Philosophy, and I thank the audiences for their comments. I would especially like to thank Lori Alward, Michael Boylan, Richard Dean, Lara Denis, Nir Eyal, Tom Hill, Paul Hurley, Sam Kerstein, Betsy Postow, Andrews Reath, Tamar Schapiro and Larry Simon.