All You Need Is Consent: Cummiskey’s Proceduralist Approach to Respect

Lori Alward

Pace University

In “Sex, Suicide, and Two Conceptions of Dignity,” David Cummiskey distinguishes between two conceptions of respect for the dignity of persons in the Kantian literature: the substantive conception and the procedural conception. The procedural conception, according to Cummiskey, considers the Kantian requirement to respect dignity fulfilled if appropriate consent is obtained. The substantive conception relies on something other than, or in addition to, consent. Yet precisely how these two conceptions are to be distinguished is not fully spelled out by Cummiskey. This could be because a paper of this length does not permit clearly distinguishing between the two conceptions and Professor Cummiskey will perhaps develop the distinction more fully in his response. I believe, however, that the two conceptions cannot be clearly distinguished because they are not wholly independent, as Cummiskey believes. In fact, constructing an appropriate procedure for arriving at correct moral decisions requires taking into account substantive considerations of moral values such as autonomy. Furthermore, far from being incompatible, both conceptions of respect for dignity are necessary to any adequate moral theory. Not all moral action or moral decision-making involves obtaining consent, and so one must have other ways of considering whether what one considers doing respects the dignity of all persons involved. Moreover, the requirement that one obtain consent seems particularly unhelpful with regard to whether one’s actions are self-respecting. The standard for self-respecting action cannot be whether or not one consents to what one in fact does.

In discussing Rawls’s Original Position, Cummiskey asks us to leave aside questions about the construction of the situation (p. 4), but of course leaving such questions aside obscures the substantive considerations regarding autonomy that Rawls relies on in constructing the Original Position. For example, the parties in the Original Position are assumed not to be risk takers. Such an assumption presupposes a certain conception of rationality, and hence, of autonomy. As a result of such substantive considerations being built into constructivist procedures, it turns out that certain actions that people in fact consent to all the time are prohibited, since according to the theory either no one ought to consent to them or no one would consent to them if she were acting in a fully autonomous manner. Such actions include things such as accepting bribes, selling votes, and selling oneself into slavery.

Cummiskey, of course, recognizes that such considerations must be built into constructivist procedures, but he sees that use of such considerations as distinctly different from taking such considerations into account in making particular moral decisions. He sees the latter as an illegitimate use of substantive considerations, and worries that even constructivists such as Rawls and Korsgaard fall prey to this “confusion.” (n 1, p. 11.) There are at least two ways of interpreting such discussions of particular moral decisions. The first is that the discussion of dignity or autonomy in a particular case is simply a refinement of the constructivist view, so the discussion is merely making clear what would be or ought to be consented to in a particular case. Hence, this is not truly the substantive approach; it is merely the application of the constructivist procedure to a particular case. Perhaps Cummiskey would have no problem with such an argument, but as I will argue, he should, since such an argument creates problems with his own interpretation of consent to suicide. A second interpretation is that not all moral decision-making involves obtaining appropriate consent, and so one needs another way of talking about respecting the dignity of persons. Clearly Cummiskey would find such arguments problematic since he believes that the sole requirement for respecting the dignity of other persons is obtaining their consent.

But surely obtaining consent is not sufficient to determine whether or not dignity is respected in every instance of moral action. For example, much of my moral deliberation regards what I ought to do in a particular circumstance, and often I know that the question of consent will not arise. How I decide to handle a case of student plagiarism, whether I decide to buy products from an environmentally unsound corporation, and whether I decide to contribute to a particular charitable organization are all moral decisions which may not require obtaining anyone’s consent, yet most likely require me to take the dignity of other persons into account. Furthermore, as Cummiskey himself notes, part of what it means to be a Kantian agent is to adopt ends autonomously. Deciding what ends to adopt may not require securing other persons’ consent, either. And it makes no sense to say that the standard of consent in such a case is whatever the agent herself consents to. That would mean that any ends I adopt are morally good simply because I have adopted them. Similarly, the consent standard does not help us to decide what actions are self-respecting, any more than it helps us to decide what ends to adopt. It cannot be the case that I act with self-respect simply because I freely choose to act in the way that I do. Finally, there are certain kinds of actions that are morally unjustifiable despite the fact that they are widely and frequently consented to—and the only way to make clear that they are morally unjustifiable is to discuss dignity as a substantive moral value. For example, humiliating a subordinate violates the dignity of the person who is humiliated. Yet such behavior is widespread—some professors routinely humiliate students, some employers routinely humiliate employees, some parents routinely humiliate their children, and so on. On some theories of consent, if the humiliated person neither protests nor severs the relationship, consent can be presumed. And in some cases, individuals would sincerely claim to consent to such treatment. Yet even genuine, freely given consent would not make such behavior morally justifiable.

Now Cummiskey could object to this example by saying that a constructivist could argue that no one ought to consent to humiliating treatment or that no one who was acting in a fully autonomous manner would consent to humiliating treatment. But this objection creates problems for Cummiskey’s own account. If it is true that humiliation is something to which no fully autonomous agent would or ought to consent, then this is an example of an apparently substantive approach that is in fact an instance of the proceduralist approach. If that is the case, then there is no distinction between the proceduralist conception and the substantive conception in this and many other cases. Furthermore, this solution would allow one to argue precisely what Cummiskey objects to, namely that some actual suicides are ones that no one would or ought to choose were she acting in a fully autonomous manner. Thus, despite Cummiskey’s glossing over the distinctions among actual consent, presumed consent, possible consent, and hypothetical consent (p. 2), the distinction is important since a different standard of consent will result in different answers to substantive moral questions. Although he does not explicitly say so, it appears that Cummiskey favors a standard of actual consent over one of hypothetical consent, despite his endorsement of constructivist procedures such as those of Rawls and Korsgaard. Arguments that could be understood as arguments regarding hypothetical consent Cummiskey interprets as arguments which illegitimately employ substantive considerations regarding the dignity of persons.

Now even if these criticisms are correct, I believe that I have not yet addressed Professor Cummiskey’s main concern regarding the use of substantive considerations of dignity in making moral decisions. That concern is revealed in two places. In his conclusion, Cummiskey says that imposing one’s moral intuitions on others “is itself a violation of the dignity of others.” (p. 10.) And in his statement of the Proceduralist Principle of Permission, Cummiskey says that

[E]ach person has a right to live and die in the light of his or her own

convictions. To force a person to continue living against his or her will

is to force one person to live up to another person’s conception of the

good. Such an action degrades and devalues a person’s autonomy, and

thus fails to respect the special and equal dignity of each person. (p. 8.)

So Cummiskey seems to believe that judging that an action is morally wrong gives us the right to force others to refrain from that action. But this is not true. The use of force requires further justification. One can consistently believe that the right to die should be legally protected, that we have no right to interfere in another person’s suicide, and that some suicides are morally wrong.

Cummiskey may also be worried that if we judge certain actions that others apparently consent to to be morally wrong, then we will act in a judgmental manner. This could be what he means by “imposing [our] intuitions on others.” (p. 10.) Yet making moral judgments need not lead to being judgmental, and in fact, Kant warns against this. Since the moral worth of an action depends upon the maxim of the action, and since we generally cannot be certain of the maxims on which other persons act, we should be very careful in assessing the actions of other persons. For the Kantian agent, the point of making moral judgments is generally to decide how she herself should act, not to pass judgment on her fellow human beings.

In conclusion, then, the substantive and procedural conceptions of respecting the dignity of moral agents are not as easily distinguished as Cummiskey claims, nor are they incompatible. Moreover, since not all moral decision-making involves securing other persons’ consent, substantive considerations of the dignity of other persons are necessary to moral deliberation. Yet reliance on such considerations does not amount to a heteronomous reliance on cultural prejudices or on uninformed moral intuitions, any more than using them in constructing a moral decision procedure does. Nor does it lead to the dire results that Cummiskey fears. Concern for the dignity of others in our moral deliberation does not by itself lead to justification of interfering in the liberty of others or of a harshly judgmental attitude toward others.