Is mutually-beneficial exploitation always wrong?

Exploitation, broadly, is the act of Person A taking unfair advantage of Person B – usually made possible from B’s vulnerability (2022:1). Whilst cases of non-consensual and/or disadvantaging exploitation seem uncontroversially wrong, cases of mutually-beneficial exploitation (MBE) are harder to evaluate. Traditionally, theorists have held the requirement of distributive unfairness for judging the wrongness of exploitation. However, with Benjamin Ferguson (2024), I argue that distributive unfairness is not a requirement for wrongful MBE, and instead, is a subsidiary to valid and morally transformative consent. To ground this analysis, I discuss the ‘paradox of exploitation’ as a source of uneasiness with distributive unfairness accounts and argue that only Ferguson’s account provides a satisfying solution.

Note, for a concise analysis, alternative solutions to the paradox of exploitation – e.g. adapting ‘Non-Worseness’ – are not discussed; Ferguson’s account is sufficient – with minor adjustment – to fully account for both the paradox and wrongful MBE. In this way, I first discuss accounts of distributive unfairness, with the most effective formulation arising from Mikhail Valdman (2009). Proceeding this, I introduce the paradox of exploitation, and explain the concerning conclusion for distributive unfairness accounts. Finally, Ferguson’s account of consent is discussed – crucially, his solution to the paradox, and an important adjustment for morally transformative consent.

1.      Distributive unfairness accounts:

In general, distributive unfairness accounts identify unfairness to be at least one requirement for wrongful mutually-beneficial exploitation (MBE). As Valdman explains, just as to exploit “one’s muscular friend [to] move one’s piano” need not necessarily be wrong, so too all instances of exploitation need not be wrongful (2009:2). Instead, these accounts argue that in all instances of wrongful MBE, there is an unfair distribution of the goods being transacted over (the ‘distribuendum’).[1]

Perhaps the most compelling of these accounts is proposed by Valdman, who maintains that the extraction of excessive benefits – from those unable, or reasonably unable, to refuse – is necessary and sufficient for wrongful MBE. This is because these acts violate “a prima facie moral obligation” against them. For example, in his paradigm ‘Antidote’ case, Valdman describes how B is bitten by a poisonous snake; facing imminent death, A offers to sell B the only antidote. Despite retailing for $10, however, A insists that he will accept no less than $20,000. Fearing his life, B accepts the offer. As Valdman explains, “this is about as clear a case of wrongful exploitation” as possible. Indeed, whilst both parties gain from transacting, the Antidote case remains deeply convincing as an instance of wrongful MBE (2009:3).

Valdman explains our intuition with two conditions: vulnerability, and the extraction of excessive benefits. First, B’s vulnerability is undeniable; choosing between death (the end of all proceeding choices) or financial loss, it is unreasonable for us to consider B’s decision as ‘free’. Specifically, under the conditions of urgency and A’s monopoly over the antidote, B “cannot, or cannot reasonably, refuse [the] offer” (2009:1). This is convincing; under such extreme pressure, anyone would clearly decide that which we would otherwise not. Whilst we might take this wrongness by invalidating B’s consent, Valdman refuses to recognise “extreme pressure to transact [as] a consent-defeater” – as, by the same logic, all life-saving surgeries would also be considered non-consensual (2009:3).

However, some accounts stop merely at the first condition. For instance, Allen Wood (1995) argues that all that is needed for wrongful exploitation is that A takes advantage of B, “for his own purposes”. By this ‘vulnerability view’, “proper respect for others is violated when we treat their vulnerabilities as opportunities” for our gain (1995:150). This is initially convincing, since treating others as ‘means’ – rather than ‘ends’ – seems to violate a basic obligation of respect for others.

On the other hand, Valdman pre-empts Wood by proposing a variation on his Antidote case. Now, A chooses to give B his antidote simply because he gains immense pleasure from helping others; A still uses B’s predicament entirely for his own purposes. Here, Valdman argues, even if A violates an obligation of respect towards B, his behaviour is at least “not morally on par with…the Antidote case”. Thus, the vulnerability view is unable to “fully explain the wrongness therein”. Instead, in addition to vulnerability, Valdman argues that excessive benefit is required – clearly seen in the differential between A’s original offer price and the market price (2009:6). Indeed, Valdman’s counter is highly convincing; the mere existence of vulnerability is insufficient for wrongful exploitation, since there is then no reference to the distribuendum. By Wood’s logic, in the adapted Antidote case, wrongful exploitation occurs, despite no clear reason to believe that B was wronged.

In this way, Valdman presents a strong case for the two conditions jointly necessary and sufficient for wrongful MBE – vulnerability, and the extraction of excessive benefits.

2.      The paradox of exploitation:

Valdman’s first condition of vulnerability remains largely uncontroversial – since most accounts of any type accommodate for extreme pressure in establishing wrongdoing in a transaction. The same cannot be said, however, for his second condition. The extraction of extreme benefit for one’s own purposes, can be thought of as the ‘distributive fairness’ condition – it requires that permissible, or non-wrongful, transactions not contain an unfair allocation of the distribuendum.

However, as Ferguson (2016) outlines, this is concerning for the ‘paradox of exploitation’. The paradox explains that all four of its terms cannot consistently be held simultaneously – the first of which, is given by Valdman’s account: ‘Necessary Fairness’ (NF). NF states that all permissible transactions must have distributive fairness. Upon this, two further terms are applied: ‘Non-Worseness’ (NW) and ‘Betterness of Permissibility’ (BP).

First, NW states that, assuming consent and MBE, “engaging in the transaction is morally better than not transacting” (2016:956). For the Antidote case, it is morally better for B to transact at A’s price, than to not transact at all. As a consequentialist term, NW takes the ‘moral goods’ here as morally good; clearly, it is a better outcome for both parties that the transaction takes place. However, NW need not conflict with the deontological NF term – it is consistent to argue that transacting in the Antidote case is both morally better and morally impermissible. This is compelling; it is highly dubious to claim that B’s preventable death is a morally-equivalent, or even better, outcome than being saved – even if he is wronged in the process.

Second, BP requires that – for any two acts X and Y – “if X is morally permissible and Y is impermissible, then X is morally better than Y”. This term allows deduction of permissibility, from another act. For example, assuming that theft is impermissible, and murder is morally worse than theft, we can deduce that murder is “also impermissible” (2016:959). By this term, if NF means that B’s choice to transact is impermissible – and not transacting is morally worse by NW – then to not transact would also be impermissible. Ferguson argues that BP is uncontroversial – since it serves as a ‘consistency requirement’ for any moral framework; without BP, we encounter either the ‘paradox of deontology’ or become ‘axiologically incongruous’.[2]

Finally, ‘Optionality of Ordinary Transactions’ (OT) explains how transactions are not ‘ordinarily’ obligatory; ordinarily excludes states of ‘extra-ordinary’ moral obligations – e.g. “promises, reparations, and especially duress” (2016:960). The motivation behind this term is intuitive: we want to avoid the demandingness of a theory which obligates individuals to always transact if it is the most moral decision. In the Antidote case, it is appealing to allow B the choice to refuse A’s wrongful offer, despite the morally-worse outcome of his death.

As may already be apparent, these four terms are inconsistent. For instance, taking the first three as true, NF, NW, and BP, mean that not transacting is impermissible, and morally-worse than transacting. Since both transacting and non-transacting are impermissible, there can be no free choice between them; against OT, B is morally obligated to choose the less wrongful impermissible act – wrongful transaction.[3]

This is indeed a worrying conclusion; Valdman – arguing for distributive fairness – is forced to obligate B’s wrongful exploitation. This conclusion undermines the foundation of any theory of wrongful exploitation – to judge between acceptable and unacceptable forms of exploitation and prohibit the latter. With no obvious solution, it is difficult to see how distributive unfairness accounts can solve the paradox of exploitation – and, by extension, provide convincing conditions for wrongful MBE. As Ferguson convincingly argues “it cannot be…that every unfair transaction…is also one in which [B] has a general obligation to transact” (2024:13).

3.      Valid and transformative consent:

A compelling solution to the paradox of exploitation is, however, found in Ferguson. Ferguson identifies a ‘grounding problem’ in distributive unfairness accounts like Valdman’s – that is, a problem with basing wrongness on merely distributive unfairness.[4] This is because if B offers morally valid consent, this consent can morally transform the pro tanto wrong of unfairness – thus making the transaction pro tanto permissible. In other words, distributive unfairness is “morally and causally subsidiary” to wrongs which invalidate consent – wrongs which do not include distributive unfairness (2024:2). Evidence of the transformative power of consent is found in many situations – in the transformation of “theft into borrowing, rape into permissible intercourse, and assault into a boxing match” (2024:4). Thus, consent is the primary means by which wrongful exploitation can be transformed into a non-wrongful act – and the primary condition for his account of wrongful MBE.

This argument is highly compelling; in the cases outlined, it is difficult to see how Valdman’s violation of an obligation not to extract excessive benefits is necessarily present in assault but not in boxing. We can easily conceive of a case where a man is merely punched by a stranger walking down a street, and a boxer fighting for a fair pay-day; in these cases, there appears to be no differentiating factor according to Valdman. In the Antidote case, Ferguson would therefore argue that B’s valid consent is individually sufficient to transform the sale into non-wrongful exploitation – much like Valdman’s surgeons. Further, whilst Valdman intentional moves away from the language of consent, Ferguson inevitably captures the essence of his vulnerability condition, since if B is not able to give valid consent, he is neither able to (reasonably) refuse A’s offer – and vice versa.

Perhaps more compelling, however, is how Ferguson’s consent-based account deals with the paradox of exploitation. Unlike Valdman, Ferguson essentially rejects NF in substantive terms; in its revised form, the new term (NF*) states that all permissible transactions must have morally valid and transformative consent. With this adjustment, the solution becomes clear; in combining NF* and NW, the option to transact, assuming valid and transformative consent, is permissible, and is morally-better than non-transacting. Under this state, BP simply establishes that non-transacting can possibly be permissible or impermissible, but without a single, necessary answer. As either choice is permissible, OT is therefore no longer violated. This solution is persuasive; with the reasonable adjustment of the primacy of transformative consent, Ferguson evades the worrying conclusion of necessarily obligating wrongful MBE.

On the other hand, however, Matthew Kramer (1998) would likely object to Ferguson’s extensive use of consent to ground wrongful MBE. For example, valid consent provides the moral power to engage and transform wrongness; taking the example of one’s own labour, Ferguson explains that “the moral power to rent…is to say that her valid consent to enter into these contracts is morally transformative”. Specifically, he argues that an individual has both first- and second-order rights – first-order being the “right of self-ownership”, and second-order being the right to transform one’s first-order right (2024:4). Whilst first-order rights remain uncontroversial, Kramer takes issue with second-order; Kramer argues that a necessary condition for one to hold second-order rights is for that right to protect their interests. In his form of ‘interest theory’, Kramer argues that in MBE, the unfairness of the transaction overrides one’s right to transform, or ‘waive’, first-order rights (1998:62).

Yet, Ferguson highlights that, since such transactions are mutually-beneficial, they, by definition, further one’s own interests. This is compelling; in the Antidote case, if B gave valid consent, he is certainly made better off by not dying. Thus, it appears insufficient to restrict B’s transformative power – and so too make the transaction wrong – on these grounds alone. It is also possible, however, for interest theorists to clarify one’s interests her to “be treated fairly in transactions” (2024:5). By this standard, Kramer introduces a right against the other party transacting unfairly with oneself. As workers can be assigned a ‘minimum’ wage but cannot waive their entitlements to be paid a ‘certain’ wage, so individuals do not have the power to waive first-order rights in unfair transactions simply by valid consent.

Ferguson, however, takes issue with this conclusion, since – in ‘ordinary’ cases – one has “no general duty to transact” with another (2024:6). The obligation to transact fairly is conditional on one’s choice to transact with another; since one has the liberty to not transact, they must also have the right not to transact. He explains, if there is no general right to be transacted with, then it is unclear how there can be a right to a fair transaction. Ferguson’s case is appealing; indeed, whilst we want to maintain a right against unfair transactions, it is just as desirable to maintain a right to non-transaction. Without the latter right, we return to an uneasy situation like the paradox of exploitation – with an incredibly morally-demanding account.

Another issue arises when we consider Ferguson’s restriction of his argument to first- and second-order rights. Just as limitations on second-order rights limit one’s power to transform the pro tanto wrong of unfairness, it seems that third-order rights would do the same. Here, a third-order right can be conceptualised as the right to waive a second-order right. Again, regarding labour, if the second-order right is a right to rent one’s own labour, the third-order right is a right to waive one’s right to rent one’s own labour – i.e. the right to enslave oneself. Once again, the attraction of a right to fair transaction maintains appeal – yet, as we saw, Ferguson rules out this avenue for establishing wrongful MBE.

Yet, there is a solution; if third-order rights are included within consent-invalidating wrongs, then wrongful MBE can be established without conceding ground to interest theory. The work of Jason Brennan and Peter Martin Jaworski (2015) is particularly useful; regarding the distribuendum, only that which can be permissibly owned or transferred to others, can be permissibly sold (2015:10:54). Adapting this, if one cannot permissibly transfer their right to rent, then a MBE transaction which entails a third-order right will invalidate that individual’s consent; without valid consent, there can neither be transformation of the pro tanto wrong. Thus, transactions which entail third-order rights can be treated the same as Ferguson treats transactions with fraud, coercion, or vitiating pressure (2024:10-15). Further, whilst it is not easy to conceptualise what exactly a ‘fourth-order’ right would entail, the same conditions from Brennan and Jaworski seem applicable to invalidate consent (and likewise for higher-order rights). Whilst this inclusion to Ferguson’s wrongs is not uncontroversial – as libertarians contest the invalidating effect on consent of selling oneself into slavery – it satisfyingly accounts for the issue of third-order rights in most mainstream accounts of MBE (2024:4).

Conclusion:

In conclusion, we have seen how distributive unfairness accounts of when MBE is wrong presents initial appeal – particularly again ‘pure’ vulnerability accounts. However, they failed to convincingly evade the uneasy conclusion of the paradox of exploitation. Against interest theories, Ferguson more convincingly established the basis of wrongful MBE as transactions lacking valid and transformative consent – wrongs which include coercion, fraud, vitiating pressure, and, with my adaptation, the exercise of rights higher than second-order.

Footnotes:

[1] Accounts discussed only deal with distributive, instead of procedural, unfairness; the latter – involving disrespect – is individually-insufficient, as it fails to deal with the distribuendum.

[2] A deep understanding of these problems lies outside the scope of this analysis. However, both issues are incredibly concerning for any moral theory, such that BP’s inclusion is widely uncontroversial.

[3] An alternative formulation of this paradox is given by Ferguson (2024). Here, if non-transacting is taken as permissible, then the morally-better transacting is also taken as permissible – despite being unfair. This isn’t the same as the full paradox, but by the same terms proves that the standard NF term is untenable.

[4] Note, Valderman’s account does not ground wrongness solely on distributive fairness, yet his vulnerability term is reasonably accounted for in Ferguson’s limitations on valid consent. Thus, the crucial condition discussed is the extraction of excessive benefits.

Bibliography:

• Brennan, J. and Jaworski, P. M. (2015), “Markets without Symbolic Limits”. Ethics, Vol. 125, No. 4, pp. 1053-1077.
• Ferguson, B. (2016), “The Paradox of Exploitation”. Erkenn, Vol. 81,  pp. 951-972.
• –––. (2024), "Exploitation's Grounding Problem". Unpublished draft.
• Kramer, M., et al. (1998), “A Debate over Rights". Oxford University Press.
• Valdman, M. (2009), “A Theory of Wrongful Exploitation”. Philosophers’ Imprint, Vol. 9, No. 6, pp. 1-14.
• Wood, A. (1995), “Exploitation”. Social Philosophy and Policy, Vol. 12, No. 2, pp. 136-158.
• Zwolinski, M., et al. (2022), “Exploitation”. The Stanford Encyclopedia of Philosophy, edited by N. Zalta and Uri Nodelmans: https://plato.stanford.edu/archives/win2022/entries/exploitation/ . Date accessed: 02/09/2024.