Samuel Kerstein's How to Treat Persons is an ambitious attempt to develop a new, broadly Kantian account of what it is to treat others as mere means and what it means to act in accordance with others’ dignity. His project is explicitly non-foundationalist: his interpretation stands or falls on its ability to accommodate our pre-theoretic intuitions, and he does an admirable job of handling carefully a range of well fleshed out and sometimes subtle examples. In what follows, I shall give a quick summary of the chapters and then say two good things about the book and one critical thing.

In chapter 1, Kerstein sets out his project, explains his methodology and discusses some basic concepts that will be used in the book. He moves from there to an attack on Wood's respect-expression approach to Kant's formula of humanity (in chapter 2). After concluding that the respect-expression approach is unsustainable, in chapter 3 Kerstein tries to develop a plausible sufficient condition for treating persons merely as means. Chapter 4 deepens our understanding of the account set out in chapter 3 with an attempt to develop a plausible sufficient condition for treating persons as means in general, and Kerstein then builds on this account in chapter 5 to articulate a Kant-inspired account of dignity. In the second part of the book, Kerstein applies the account he developed in the first five chapters to problems associated with the allocation of scarce, life-saving resources (chapter 6), organ markets (chapter 7) and some controversial topics in research ethics (chapter 8).

One of the things that any reader should take away from this book is an appreciation of Kerstein's account of non-ideal background conditions. This is a topic that is easy to overlook, but it is also one that is well worth broaching. Based on the stories I hear my students tell, I infer that they often use someone else's previous bad behaviour as an excuse for their own bad behaviour in turn. That is, when they have to act in a context in which they know someone has done them a wrong turn, ‘anything goes’. Bad behaviour is taken to be the ethical analogue of a contradiction in the sense of the principle of explosion, ex contradictione sequitur quodlibet. Perhaps this is the expression of a deep-seated intuition in favour of retribution, but there are limits, often expressed in equally aphoristic ideas (‘two wrongs do not make a right’).

The point is that Kerstein does a nice job of developing a systematic way of thinking about what to do in non-ideal background conditions, which include, of course, what to do when others are being, to put it nicely, uncooperative, as well as what to do when others are being, to put it bluntly, nasty. Here is Kerstein's formulation:

Explaining these exception clauses in detail is a task that Kerstein undertakes in his book. These clauses are meant to handle cases like using an assailant as a human shield when fleeing a hostage situation. For example, suppose multiple terrorists have taken hostage a group of people. Suppose, further, that one member of the group runs at the terrorists to distract them and thereby enable the others to escape. That person would be justified (according to Kerstein's principles) in using the first terrorist she or he reaches as a human shield against gunfire from the other terrorists. So the intuition that ‘anything goes’ is to some extent vindicated on Kerstein's account. However, these exception clauses do not allow just anything: the realm of reasonable response and retaliation is restricted to some degree. An agent may treat another as having lower value only so far as ‘is necessary’ (necessary for what? Kerstein explains the circumscription in detail in the book). So the intuition that ‘not anything goes’ is also vindicated on Kerstein's account. Given the nature of his project (i.e. as non-foundationalist) this is exactly the sort of confirmation for which Kerstein is looking.

However, in addition to advancing his positive view, Kerstein also spends a lot of time trying to take down relevant alternatives. The problem with this part of his project is that his attacks often do not connect. For example, in chapter 2, Kerstein argues that Wood's respect-expression approach to the formula of humanity generates counterintuitive results. To support this thesis, Kerstein examines three cases involving the withdrawal of medical treatment, killing in self-defence and heroic self-sacrifice, respectively. Kerstein argues that each case describes conditions in which it is intuitively permissible to take a human life but that this is countermanded by the respect-expression approach.

There are a few problems with this argument. First, the claim that taking a life is permissible in the cases in question is not adequately defended. The defence rests on saying that this is what ‘many of us’ believe (pp. 39, 48 and 49). But Kerstein cites no polls or surveys despite the fact that (1) end-of-life issues and self-defence are quite controversial,Footnote ¹ and (2) recently some neo-Kantians have argued that heroic self-sacrifice might not be so heroic, after all.Footnote ² Second, the claim that taking a life in the cases in question expresses disrespect for humanity (and therefore ought not to be allowed on Wood's respect-expression approach) is contentious at best.Footnote ³ Wood certainly never claims that taking the life of a rational being always expresses disrespect for humanity. Indeed, Wood points out that suicide might be permissible in some cases because expressive of respect for humanity.Footnote ⁴ It follows immediately that he thinks that taking the life of a rational being might not always express disrespect for humanity.

But the problems with Kerstein's attack on the respect-expression approach do not end here. For one thing, there are methodological issues: even if Kerstein had shown that many do take these things to be permissible and that they express disrespect for humanity (he did not show either of these things, but even if he did) this will not go very far if (1) one thinks that, in matters of ethics, it is the opinions of experts that should be trusted and many experts think these things are impermissible or (2) one thinks that the respect-expression approach can be grounded on considerations that are logically prior to, or perhaps simply of more weight in some sense than, the results of that principle when applied to any given case or small subset of cases (as Wood, in fact, does). Even by the standards of Kerstein's own method, considering a small handful of cases and showing that a principle gives results that many disagree with would not constitute good (let alone sufficient) evidence to discard a principle, especially if that principle succeeds in many other cases (which, if Aretha Franklin is anything to go by, the r-e-s-p-e-c-t-expression account does).Footnote ⁵

So the respect-expression account seems to withstand Kerstein's attack, and this looks to be the case with many of the other accounts Kerstein attacks, too. For example, in chapter 3 Kerstein attacks the possible consent interpretation, according to which agents ought not to act on maxims that would preclude consent from their interlocutors. However, Kerstein tells us that he is going to jettison the problematic notion of a maxim. He is open about this – it is ‘for the sake of simplicity’ (72 n. 36) – but the problem is that it means his attack goes wide of the mark. One cannot attack an account that makes ineliminable appeal to maxims unless one is willing to take maxims on board.Footnote ⁶

But even if I am right about all of this, there is still enough of value in Kerstein's book to make it well worth reading, and I would like to focus on one such thing in my closing remarks. In the final chapters of his book, Kerstein develops an impressive theoretical framework to handle cases in which an agent is not treated in accordance with his or her dignity despite voluntary, informed consent to a mutually beneficial arrangement. The sort of thing Kerstein has in mind is organ donation, which in some cases is financially remunerative and, thus, beneficial for both the donor and the recipient. But even if the donation is voluntary and consensual and even if the donor is well informed, if the background conditions that make these circumstances possible are themselves corrupt, they can exert a corrupting influence on the donation itself. The idea seems to be that we need to pay as close attention or perhaps even closer attention to background conditions as/than we pay to the action occurring in the foreground. Voluntary, informed consent to a mutually beneficial arrangement seems ironclad and bullet proof, at least from a moral perspective – but Kerstein patiently and convincingly exposes its Achilles heel and, it is hoped, in so doing stakes out a new territory for fruitful and interesting discussion.