The public health field frames the notion of public in terms of responsibility for the consequences of behaviour. Smoking is bad behaviour because it hurts many people. Eating fat or exercising too little is bad because it weakens health and fitness, hence disturbing prosperity and wealth of the community. Kant considers this way of reasoning as a dead end. Why is this so? The point Kant is making is that the goodness or badness in the consequences of human actions can never be the sole ground for approving or disapproving or enforcing behaviour. It is not the consequences themselves but the way people relate to each other
xvi
Cf for this intriguing view Thompson D.F., Political Ethics and Public Office. Harvard University Press, 1987; esp. p. 7. This does not exclude that Kant in other places does use the notion of ÔsubjectÕ in the ordinary sense that the citizen is ÔsubjectedÕ to the head of the state or the ruler. Cf. On the Relationship of Theory to Practice in Political Right, p. 84 and p. 85.
through these consequences which is crucial. Why is it ethically justifiable to Ð or at least ethically reasonable to ask the question whether one should Ð put a person afflicted with a highly infectious disease in quarantine? Not because of the consequence itself, but because the way we relate to each other through the consequences of our acts: spreading infections to other people canÕt be the ethical fabric of a sound practice. Otherwise one cannot make a difference, as Tomas Nagel does, between the person who knows and one who does not know they are infected with HIV, while both are infecting someone else with HIV after sexual intercourse, which in reality did occur. The person who does know they are infected with HIV, hereby knowing that he or she might through his or her actions willingly hurt other people, does injustice. Yet, two persons, one infected with HIV and the other one not, both knowing this and agreeing on sexual intercourse, although highly undesirable and probably disapproved by many in society, would not be unjust by itself (in KantÕs moral philosophy, that is his philosophy regulating behavioural practices between free and autonomous persons, this could be considered actually impermissible). Both cases undoubtedly lead to a different ethical judgment. Here Kant comes close to MillÕs argument that freedom can be infringed when causing harm to others through operating his or her freely chosen actions. Yet, there is an important difference. Even if the other person ends up being inflicted with HIV, this would not count as being unjust per se. Harm has been done, but no injustice Ð which is something else than the problem of significant harm. This is the major difference between Mill and Kant. Doing harm is one thing, doing unjust harm is another thing.
Italian law penalizes persons smoking in the presence of a pregnant woman or a breast- feeding woman Ð no substantive harm is directly suffered by this particular woman (or child) from the exposure to smoke from one cigarette. One could argue that this is a relatively trivial case. The harder case is whether Ð on the collective level Ð one is ethically justified to force people such as in the case above to avoid having intercourse (or, more preferably for many perhaps, to force to have only safe sex, e.g. because of costs for society, the suffering of the families of the two persons, or whatever). Similarly, passive smoking can be conceived of as unjust because of the costs for society, in which case, the Italian law mentioned above, is just because it symbolizes and expresses the collective concern. Indeed, this would be the line to follow in what Kant argues. But again, any proposal in this direction cannot be based on benevolence only. It has to be just.
Why is Kant so eager to preserve this distinction between doing good and doing right, between consequences of human actions and (un)just consequences? Four reasons come to the fore, the first political, the second epistemological, the third conceptual, and the fourth ethical. The first reason is the formulation of a problem as a public problem. Dewey takes here the Kantian point: the distinction between the social and the individual is no reliable yardstick for any public policy, for as Dewey says ÒThe public cannot be identified with the socially usefulÓ (p.13). So the notion to do good cannot be the defining and justifying ground of the public. The public has to be defined differently, namely in terms of Òthe indirect consequences of transactions to such an extent that it is deemed necessary to have those consequences systematically cared forÓ, that is consequences which are considered as unjust, say companies which dump chemicals in farmersÕ grounds, fast food companies who erect shops close to schools, etc. Why are they unjust? Because consequences are of two kinds, those which affect the persons directly engaged in a transaction, and those which affect others beyond those immediately concerned. In this distinction we find the germ of the distinction between the private and the public. The former is related to the domain of ethics: moral and immoral behaviour to be regulated, the latter to the domain of politics (where the moral judge in most
cases according to Kant should be the public sphere with the vitality of associating and respecting freedom).
Thus, Kant attempts to keep the bonds between the subject as the author of the action and the action (with its consequences) as its object. Yet, simultaneously, he tries to keep the judging in terms of just and unjust, since this is the basis for Òsystematically cared forÓ. In contemporary philosophy of risk this is seen as the outstanding challenge: either to shift away from the notion of authorship and extending the sphere of risks so extensively with the perverse effect that then Òthe more pressing and urgent is the search for someone responsible, that is, someone whether a physical or legal person, capable of indemnifying and making reparation. It is as though the multiplication of instances of victimization gives rise to a proportional increase in what we might well call a social resurgence of accusation. The paradox is immense: in a society that speaks of solidarity, out of a deliberate concern to reinforce a philosophy of risk, the vindictive search for whoever is responsible becomes equivalent to a reintroduction of the culpability of those identified as the authors of any harm
doneÓ.51
The second reason is that Kant doubts that all the consequences can be known.52 Only those consequences that arise in the direct transactions between persons can be known. Kant is discussing the scope of responsibility: how far in space and time does the responsibility for our acts extend? This scope is unlimited on his view for Òthe chain of empirical effects of our acts is virtually endlessÓ (ibid p.30). KantÕs rationalism has been considered by many (e.g. Nussbaum) been as opposed to emotionalism, say, the role of emotions, character and social circumstances. In fact, Kant took the opposition to the utilitarian view on action, since the objective evaluation of harm tends to obliterate the evaluation of the subjective link between an action and its author, thus putting the moral value of security at top level instead of justness (that is of solidarity: we feel at face value that unjust consequences should be cared for and retributed). Kant reflects here on the tradition in Christianity and philosophy: responsible is to account for, that is, can be imputed to someone (an individual or a community) which comes from the Latin word putare, which actually implies the notion of calculation (in Latin: comput), suggesting the idea of a kind of moral bookkeeping of merits and demerits, thus of receipts and expenses, credits and debits, with an eye to a sort of positive or negative balance (p. 14). This relates to the Christian idea of the great book of debts: the book of life and death. Only a super being, a divine being, can master such a book. KantÕs idea is that as rational beings gifted with the capacity of giving reasons for acting and exerting agency, we sense the justice and injustice of actions on the face of it. However, the calculation of all the consequences of our acts, individually or collectively, is impossible as is the calculation of all the (unintended) consequences of our interventions to prevent unjust consequences. We see, feel, sense and judge (in)justice of our actions directly, but we canÕt see, feel, sense, and judge all the consequences of our actions.
The third, conceptual reason is that Kant rejects moral value as a preference set, or as moral choice set. Versus choosing, he sets his notion of willing.53 The basic idea here is that Kant says that in many situations of individual and collective lives where we value affairs, our
valuation is not the scanning of a delimited range of acceptable moral options and then picking out the most attractive member in the set. Besides the problem of settling the difficult question how to choose the moral choice set anyway, Kant here opposes the restaurant menu
paradigmatic case (although he admits that in many areas of our lives, we can follow this line: discuss things in terms of a choice set, preferences, selection and opportunity costs). But for most of the situations in which our (moral) valuations are at stake, we really follow a radically
different structure of reasoning which does not fit into these categories. If we would relate with a partner or marry someone, we do not line up people to choose or select the one we would like to have as our partner. Similarly this is the case with acting as a parent, a friend, a colleague, a professional, or whatsoever. As Dan-Cohen notes, ÒWhen we are in the grip of moral truth, we are moved by its intrinsic value, rather than by its comparative advantage over other acceptable alternativesÓ (p. 130). Giving up one friend to gain two or more other friends is not included in the meaning of friendship. Now certainly in KantÕs philosophy a difficult metaphysical picture is underlying his philosophy: Òthe moral law is no more an option for the will than resisting gravity is an option for an appleÓ (p. 136), but any person can sense the inevitability of the moral position: being a parent is to care for your children whatever costs this takes, for your self or for others; to defend your country, implies to take care for society and dear ones at the cost of your self, etc. Why can we then on KantÕs view take collective measures to systematically care for the consequences of female incision, the silent raping and violence at home Ð say the missing 40 million women in our world statistics as put forward by Amartya Sen Ð, or the repair of the loss of life years and loss of QALYÕs in lower social-economic groups? Not because of the consequences themselves, but because in our moral values of home, partnership, friendship, parenthood, but also neighbours and
fellow citizens, lie intrinsic value structures which defy the actions stated before. It is not because of the consequences per se, but because these consequences can and should be considered as unjust and therefore as to be taken systematically cared for. Not the harm, but the injustice, that is, the infringing of the inner structure of these values, is at stake.
Similarly, public health measures do have to take up health as an intrinsic value, not as an outcome or as a consequence of the myriad of micro-decisions of individuals and communities, but as a personal and social condition of vitality, creativity and sociality. In such cases we repair and should repair unjust inequalities in terms of opportunities, social capacities and environmental conditions.
In short, a conception of autonomy and freedom that consists of options and the agentÕs choosing among them is quite at odds with KantÕs description of the moral experience and his conception of the freedom of persons and communities.
The fourth, ethical reason is KantÕs notion that responsibility is the constitution of individual and collective selves and identities.54 Choosing is a poor model for how personal and community life is constituted. The one view is the separatist conception: I could have gone to law school, to medical school, to philosophy school; I could have lived a life with smoking or non-smoking, drinking or not-drinking, eating meat or not eating meat, being ambitious or not, living a stressful live or not, having children or not. The assumption is that I or You or We understand our autonomy as a matter of choosing important aspects of our lives from a variety of options and opportunities. This is the typical utilitarian (or Anglo-American) viewpoint. On this view the identity of either individuals or communities is considered to be fixed (antecedently to or independently of the personÕs or groupÕs life). One can just choose one or the other option!
The other constitutive view holds that a self, either of an individual or a group, is constituted or shaped by its life, that is, the identity is inseparable from the personÕs or groupÕs life. This is a difficult terrain in philosophy of identity and responsibility. But the point Kant is making here is that responsibility constitutes selves and communities in a reciprocal way. We may explain this by the reciprocal way of how being responsible implies both taking subject
and object responsibility.xvii If I am causing an accident by my negligent driving, I can take up object responsibility (causing the accident), but also taking up subject responsibility (admitting that it is due to my negligent driving). If my child breaks the window of my
neighbour, playing hockey or soccer, then I can take up object-responsibility (accusing my self and paying up for the broken window), hereby taking up subject-responsibility: It was my
child and I am responsible as a subject for my childÕs actions. BUT: taking up object- responsibility and hence subject-responsibility I constitute my identity, being a father, and constitute a social and group identity, this is the way fathers (or mothers) should take up responsibility (both in an object sense and a subject sense). Kant takes up the communitarian view here, namely by constituting selves one constitutes collective identities and reverse. Now the issue is that the bond between those two forms of can be broken up: I might deny that I am the parent, I might deny that I am responsible for my childÕs actions (say he or she is 22 and has done something wrong, e.g. smoking in the presence of a pregnant women or living an ambitious life or becoming an addict), I might deny that the child is my own blood; or I might deny that the child in fact did it, that the window was already broken, that the local community does not provide a playing ground for hockey or soccer. In both directions, the parent severs the bond between subject and object responsibility, but also the parent constitute different identities: I am not the parent, my child is an addict or lunatic, the local community does not take care for children.
Besides the point that Kant agrees and would agree with liberals such as Locke and later on Mill and others that most of these affairs should be the affair of citizens and not of the state, that is, that the regulation of the interplay between subject and object responsibility should have the judge of the public sphere (and not government or any other public institution, whence a restriction on mandatory measures proposed by the public health community as an expert and public official laying down measures top down instead of promoting the capacity and vitality of the civil society), there is another point. This is, that in this back and forth process, identities are constituted and constructed.