Consent, exploitation, fairness, and permissibility—a jumble

Many things that A can do that affect B, even if they benefit B, it would not be permissible for A to do, unless B consents to it. On the other hand, some things that A might do for B, even if they harm B, it would be permissible for A to do, if B consents to it. Clearly, in many cases where one person does something for or to another, the presence or absence of consent of the latter is a significant factor in determining the permissibility of the action.

If in cases like this B does give consent, does that make it permissible for A to perform the action in question? Franklin G. Miller and Alan Wertheimer raise this question with respect to a number of imagined cases, among them the following:

Rescue. B’s car slides off a snow-covered road into a ditch late at night. A comes by and proposes to pull B out for $200 with his four-wheel-drive pick-up truck and a chain and says it will take 5 minutes. B believes that it would be hours before another person were to come by or before AAA could help. B agrees to pay.

(Miller, Franklin G., and Alan Wertheimer. 2010. “Preface to a Theory of Consent Transactions: Beyond Valid Consent.” In The Ethics of Consent: Theory and Practice [eds. Franklin G. Miller and Alan Wertheimer; Oxford UP, 2010], p. 103; all subsequent unaccompanied page references are to this piece.)

The case comes with a qualification that A is an ‘opportunistic passerby’, as opposed to someone roaming the highway regularly looking out for just such opportunities (making it an occupation of sorts). With this qualification, Miller and Wertheimer say, Rescue is ‘a paradigm case of wrongful exploitation’ (p. 104). Their idea, I take it, is that on an adequate theory of the normative significance of consent, (a) what A does should come out impermissible, and (b) the reason for this should have to do with how the situation is exploitative.

Miller and Wertheimer suggest that what they present as the ‘prevailing’ theory fails on both these counts. According to this theory, in cases like Rescue, B’s giving a valid consent is necessary and sufficient for rendering what A does permissible, and one gives a valid consent if and only if one gives consent voluntarily (neither out of ignorance nor out of compulsion), competently, and autonomously.

First, the claim to valid consent’s sufficiency for permissibility is called into question since, in Rescue, although B seems to give valid consent, what A does is not permissible (because it is exploitative). The supporter of the prevailing view might try to argue that in this case B’s consent is invalidated, because B is forced to give it. But this is implausible. B is relevantly informed and competent; he is not coerced (A would not harm B if the latter did not consent); and it can hardly be said that the alternative to consenting is so bad that B is cannot but to give consent, that B is not free not to give consent.

So the prevailing theory seems to give an incorrect verdict on Rescue. But suppose (for the sake of argument) that it were able to give the correct verdict: in Rescue, what A does is not permissible. On the prevailing theory this must be because B either did not give consent, or he gave it but it was not valid. Since part of the scenario is that B agreed that A would pull out the car for $200, it is difficult to deny that B gave consent. So it must be that the consent given is not valid.

But—and this is Miller and Wertheimer’s second criticism—the consent’s being invalid in this case would have nothing to do with A’s being exploitative. If B’s consent is invalid, this is most likely because, given the circumstance, he has no choice but to consent to any offer to pull out the car, at any cost—perhaps B just has to get to his destination very soon. But A is not responsible for this circumstance. And the circumstance does not change even if A was not exploitative—even if A did not ask for an extortionate fee; B’s consent would still not have been given autonomously. (If it is permissible for A to pull out B’s car for free, then this version of the case casts doubt on the necessity of valid consent for permissibility.)

Thus, suggest Miller and Wertheimer, the prevailing view either cannot give the correct verdict on Rescue, or, if it did, it misidentifies the reason why what A does is not permissible; it is not that B’s consent is not given autonomously, but rather that A exploits B in his offer.

In place of the prevailing theory, Miller and Wertheimer propose their favoured view, called the Fair Transaction (FT) model, which holds:

A is morally permitted to proceed on the basis of a consent transaction if A has treated B fairly and responds in a reasonable manner to B’s token or expression of consent or what A reasonably believes is B’s token or expression of consent. (p. 81)

What does the FT model say about Rescue? Miller and Wertheimer are circumspect. They suggest that, while B’s consent makes it permissible for A to pull out B’s car, it does not obligate B to pay A the extortionate fee that A asks for. (Miller and Wertheimer do not allow this finer individuation of actions to the supporter of the prevailing theory; it is unclear why.) But if this is right, they do not claim to be able to explain why (p. 104). But presumably the idea here is something like this: A treats B fairly insofar as he pulls out B’s car (with B’s consent), but at the same time, A treats B unfairly insofar as he asks B $200 for doing this. Details still have to be unpacked, but this would broadly consist with the FT model.

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So that’s Miller and Wertheimer. I am not convinced by their criticisms of the prevailing view, in particular by their discussion of Rescue. Not that I think the FT model is misguided; it is rather that, in advancing this model partly by criticising the prevailing theory, I think Miller and Wertheimer are—if I may put it this way—treating the prevailing theory unfairly. Their piece presents the issue as if it is one in which to choose between an autonomy- or valid-consent- focused model and a fairness-focused model. But this does not seem to me right. When the question arises whether it is permissible for A to do something to or for B, it matters both whether B’s autonomy is respected (or whether B gives valid consent) and whether A treats B fairly in proceeding to do what B consents A to do, and the normative significance of, and the interaction between, these factors are complex and context-dependent.

Indeed, it does not seem to me right to think, as Miller and Wertheimer apparently do, of the FT model as giving an account of the normative significance of consent. If it is plausible to claim that it is permissible for A to do something to or for B if A treats B fairly in doing so, this is so quite independently of the question concerning the normative significance of valid consent (in many cases there might not even be an interaction between A and B in which this question arises)—unless, to be sure, much more is said about the relation between fair treatment and valid consent. As things stand, Miller and Wertheimer’s basic claim in the piece seems to boil down to this, that whenever one person does something to or for another, the former is permitted to do what he does if in doing so he treats the latter fairly—in short, that fair treatment is sufficient for permissibility.

Now, this claim would be true, but trivially so, if fair treatment is understood so generally and generously as to exclude any impermissible action performed for or to someone. (It would also be trivially true if permissible action performed for or to someone is understood so specifically and narrowly as to include only fair treatment—in effect, if ‘permissibility’ here meant ‘permissibility in respect of fairness’.) If their claim is to be substantive, Miller and Wertheimer must understand these two ideas differently.

But it is not clear, at least from the piece, what exactly they mean. There is some suggestion that they are focusing on moral permissibility. But they can hardly mean the moral permissibility of the action in question all things considered. For, assuming that treating someone fairly does not just mean not doing anything impermissible for or to that person, whether one treats someone fairly in doing something is not the only consideration that determines the moral permissibility of one’s doing it. Then again, they cannot mean moral permissibility in respect of fairness, on pain of rendering the claim trivial.

What Miller and Wertheimer mean by treating someone fairly is not clear either. They mention the distinction between procedural and substantive conceptions of fairness (p. 104), but they do not appear to think that they need to endorse a specific conception of fairness to substantiate their main claim. I wonder if they are a bit too optimistic.

And in any case—that is, whether one conceives of fairness procedurally or substantively—Miller and Wertheimer would have to argue that treating someone fairly in the relevant sense in relevant kinds of cases does not require securing this person’s valid consent. It is not clear that it does not. If anything, could not one develop and endorse a rich conception of autonomy, whereby it is negated either by negation of voluntariness or by negation of competence, so that the exercise of it is sufficient (and necessary) for valid consent? And what if respecting autonomy thus understood is required for fair treatment? It would then follow from this that valid consent is necessary for fair treatment. This is not obviously implausible.

Once we are clearer and more precise about how we want to understand these key notions, we can revisit Rescue, and ask similar clarificatory questions about what it is for one to exploit another, and how considerations of exploitativeness interact with other considerations, e.g. of fairness, valid consent, or autonomy, to determine the permissibility (in the relevant respect) of what one does.

And if we do, I daresay we will see that Miller and Wertheimer are too quick in suggesting that the prevailing valid-consent-based theory has difficulties accounting for Rescue. For, first, suppose that on this theory B’s consent is valid. It does not follow that the advocate of this theory has to say that it is permissible for A to pull B’s car out and demand him the extortionate fee. For it was never fair anyway to interpret this theory as claiming that valid consent makes the action in question permissible all things morally relevant considered. The claim is more likely that valid consent is sufficient for the permissibility of an action insofar as this action is considered as a kind of action which it would be impermissible to perform without valid consent. An action may be permissible in this respect, and still be impermissible when other considerations—having to do e.g. with fairness or exploitativeness—are taken into account.

Second, suppose that on the valid-consent-based theory B’s consent is not valid. It does not follow that the reason why the consent is not valid has nothing to do with A’s being exploitative. This would be so only if the features of B’s background circumstances that enable A to make an exploitative offer to B do nothing to compromise or undermine B’s autonomy that is required if B’s consent is to be valid. Miller and Wertheimer’s assumption must be that the kind of autonomy required for valid consent is negated only by what the person asking for consent does, or slightly more cautiously, by what this person is responsible for. But this is questionable. All manners of circumstantial factors can deprive someone like B of autonomy, or disable B from exercising it. Even if A bears no responsibility for creating such factors; even if, hence, A is not responsible for B’s being unable to give valid consent; it is still impermissible for A to do something that it would be impermissible to do in the absence of valid consent, which requires autonomy.

In Rescue, one necessary condition for A’s action’s being exploitativeand hence one necessary condition, on Miller and Wertheimer’s view, for A’s action’s being impermissible—is that certain circumstantial factors obtain. The point is that the reason why such factors enable A to make an exploitative offer to B may be precisely that they deprive B of autonomy, or disable B from exercising it. If this is so, then the reason why B’s consent is not valid in fact does have something significant to do with A’s being exploitative in doing what he does: B’s consent is not valid because B is not in the relevant sense autonomous in giving it; B is not in the relevant sense autonomous in giving consent because of certain circumstantial factors; these circumstantial factors may well be what enable A to make an exploitative offer—indeed they arguably are what makes what A offers to do exploitative.

(These and other related points about what makes an action exploitative, and what or who is responsible for it, should be discussed more carefully, at least with the distinction between structural and transactional exploitation in mind. It is surprising that Miller and Wertheimer do not even mention the distinction, given the fact that Wertheimer is an expert on the topic of exploitation.)

My dissatisfaction with Miller and Wertheimer’s treatment of Rescue in some ways encapsulates my general frustration with their piece. They claim to reveal various inadequacies of an orthodox view, and claim to advance a superior, heterodox view in its stead, thus moving the debate forward. But my overall impression is that their main claim is at best not an advance on the orthodoxy, and at worst not a substantive claim that anyone, let alone the supporter of the orthodoxy, needs to object to; that it appears otherwise largely because Miller and Wertheimer are quite loose and imprecise in their understanding and deployment of such key concepts as that of permissibility, autonomy, fairness, and exploitation.

In particular, I believe it is misleading on their part to present the FT model as an account of the normative significance of consent that is in competition with the orthodox account that explains its validity in terms of voluntariness, competence, and autonomy. For Miller and Wertheimer’s main claim is, as we saw, that it is permissible to do something for or to someone if in doing so one treats that person fairly; whereas the orthodox claim that they criticise is that it is permissible to do something which it would not be permissible to do without valid consent, if there is valid consent. These claims differ in scope: while the former concerns the class of things that one person might do for or to another, the latter concerns the class of things that one person might do for or to another which it would not be permissible for this person to do without the other’s valid consent.

To see why this difference matters, compare this pair of claims to another, analogous pair: one claim may be that a valid pass is sufficient for entering places which it would not be permissible to enter without a valid pass; the other claim may be that obeying all the laws in effect in a place is sufficient for entering that place. On the face of it, one can quite well maintain both of these claims. Upholding the second claim would commit one to rejecting the first only if there are some places which (a) it would not be permissible to enter without a valid pass, but which (b) a valid pass is not sufficient for entering, and yet which (c) obeying all the laws in effect there is sufficient for entering. (More generally, compatibility or incompatibility between the two claims depends on the kind of set-theoretical relations the two classes of actions the claims respectively concern stand in.) It is not clear whether there are, or indeed can be, places satisfying these descriptions.

But isn’t Rescue a case in point? Isn’t what A proposes to do there something which (a) it would not be permissible for one to do without valid consent, and which (b) valid consent would not be sufficient to render permissible, but which (c) it would be permissible if A treats B fairly in doing it—although, as imagined, what A does is not permissible since A fails to treat B fairly? This depends, my previous discussion suggests, among other things on whether it makes sense to say in cases like Rescue A could treat B fairly without securing valid consent from the latter (that is, whether anything A might do could count as treating B fairly if it did not also count as securing B’s valid consent). I have also suggested that the reason why (b) is satisfied, that is, the reason why valid consent would not be sufficient to render what A does permissible may be that B’s background circumstances—just the same circumstances that make it impossible to A to treat B fairly in what he proposes to do—so compromise his autonomy as to make it impossible for him to give valid consent. If this is so, then the valid-consent-based theory handles Rescue at least just as well as the FT model: in this case, there is no valid consent, and the reason why not does have to do with the exploitativeness of the situation.

At any rate, adequately assessing these points and suggestions require attending to and articulating the conceptually fine details of the relation between valid consent, its necessary and sufficient conditions (voluntariness, competence, and autonomy), fair treatment, exploitative action, circumstantial factors enabling such action, and kinds of permissibility and other normative status that all of these affect or contribute to determine. These are the details that Miller and Wertheimer do not go into. Their excuse is that their piece is only a ‘preface’. But the devil is in the details, even, or perhaps especially, at the beginning of things. Miller and Wertheimer’s piece is, unfortunately, not atypical: philosophers so often advance what appears to be a substantial thesis that improves upon the prevailing orthodoxy, which however turns out upon a bit of reflection to be little more than a vague and uninformative commonsensical claim, dressed up misleadingly in terms whose meaning is left insufficiently clarified.

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