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Rethinking Exploitation: A Process-Centered Account

Lynn A. Jansen, Steven Wall

Kennedy Institute of Ethics Journal, Volume 23, Number 4, December 2013,


pp. 381-410 (Article)

Published by Johns Hopkins University Press


DOI: https://doi.org/10.1353/ken.2013.0015

For additional information about this article


https://muse.jhu.edu/article/532466

Access provided by Australian National University (5 Sep 2018 20:01 GMT)


Jansen and Wall • Rethinking Exploitation: A Process-Centered Account
Lynn A. Jansen and Steven Wall

Rethinking Exploitation:
A Process-Centered Account

ABSTRACT. Exploitation has become an important topic in recent discussions of


biomedical and research ethics. This is due in no small measure to the influence of
Alan Wertheimer’s path-breaking work on the subject. This paper presents some
objections to Wertheimer’s account of the concept. The objections attempt to show
that his account places too much emphasis on outcome-based considerations and
too little on process-based considerations. Building on these objections, the paper
develops an alternative process-centered account of the concept. This alternative
account of exploitation takes as its point of departure the broadly Kantian notion
that it is wrong to use another as an instrument for the advancement of one’s
own ends. It sharpens this slippery notion and adds a number of refinements to
it. The paper concludes by arguing that process-centered accounts of exploitation
better illuminate the ethical challenges posed by research on human subjects than
outcome-centered accounts.

T
he term “exploitation” has gained wide currency in recent discus-
sions of biomedical and research ethics. This is due in no small
measure to the influence of Alan Wertheimer’s path-breaking work
on the topic (Wertheimer 1999, 2011). Wertheimer presented a clear and
compelling non-Marxist account of the concept of exploitation—one
that stressed the connection between exploitation and unfair distributive
outcomes. On this account, when one party exploits another, she takes
advantage of the other to gain unfairly. A number of contemporary bio-
ethicists have accepted Wertheimer’s account of exploitation and have
proceeded to apply it to a range of issues in research ethics (Hawkins and
Emanuel 2008; Miller and Brody 2003; Gbadegesin and Wendler 2006).
Notwithstanding its substantial influence, Wertheimer’s account has
not been subject to much careful critical discussion.1 In this paper, we
present some objections to it. The objections attempt to show that his

Kennedy Institute of Ethics Journal Vol. 23, No. 4, 381–410 © 2013 by The Johns Hopkins University Press
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account places too much emphasis on outcome-based considerations and


too little on process-based considerations. Building on these objections,
we then present an alternative process-centered account of the concept.
This alternative account of exploitation takes as its point of departure the
broadly Kantian notion that it is wrong to use another as an instrument
for the advancement of one’s own ends. This broadly Kantian notion is
notoriously slippery. As the discussion proceeds, we sharpen it consider-
ably, adding a number of refinements to it. Finally, and briefly, we argue
that the process-centered account of exploitation presented here better
illuminates the ethical challenges posed by research on human subjects
than more outcome-centered accounts.

PROCESS AND OUTCOME

Since the distinction between outcome-based and process-based con-


siderations is pivotal to our argument, we start by clarifying it. To focus
the discussion, consider a stylized case.
Trial: Joan, who is poor and out of work, is presented with the option of
participating in a two-month experimental trial designed to test the safety
and efficacy of a new drug, one known to have potentially serious side ef-
fects. Participation in the trial will not benefit Joan medically, and it will
subject her to significant risks of discomfort and serious harm. The trial has
the potential to advance scientific understanding that could benefit future
people, but Joan is not motivated to participate out of altruistic concern.
Those conducting the trial persuade her to participate by offering to pay
her $100.

There are two senses in which Joan is treated unfairly. The first sense is
outcome-based. The outcome of the interaction between Joan and those
conducting the trial is unfair, since (presumably) she does not receive suf-
ficient monetary benefit to compensate her for the risks she is assuming.
The second sense is procedural or process-based. Those conducting the
trial take unfair advantage of Joan’s poor economic circumstances to get
her to agree to participate at the very low rate of compensation they are
offering.
The two senses of unfair treatment illustrated in Trial can be made
more precise. Following Wertheimer, let us say that an interaction has
an unfair outcome if one party is made worse off relative to a normative
baseline that specifies how much each party ought to gain. Determining
the normative baseline in Trial is not a straightforward matter. One would
need to identify the level of benefit2 that would need to be provided to

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the participants in the trial to warrant the risks imposed on them. One
also would need to take into account the magnitude of the benefits that
the researchers and others would receive as a result of their participation.
The difference between this normative baseline level of benefit and $100
would then reflect the extent to which Joan received an unfair share of
the benefits from the interaction. The normative baseline approach to
outcome-based exploitation has the advantage of explaining how mutu-
ally beneficial interactions can still be exploitative. In Trial, after all, Joan
might be better off in absolute terms as a result of her participation in the
trial than she would have been had she not had this option. It all depends
on how desperately she needs the $100.
Process-based considerations, by contrast, do not refer to the outcome
of an exploitative transaction. An interaction is exploitative in the pro-
cess sense if one party plays on a weakness or vulnerability of the other
in order to advance his ends. In Trial, Joan is vulnerable because of her
unfortunate economic circumstances. She is in no position to press for a
higher level of compensation. Those who conduct the trial take advantage
of this vulnerability; and, by so doing, they take unfair advantage of her.
With the distinction between outcome-based and process-based senses
of exploitation in view, we now can consider how they are related. Here
three theses should be distinguished:
Outcome Exclusive Thesis: A transaction is exploitative if, and only if, at
least one party benefits unfairly from the transaction.

Process Exclusive Thesis: A transaction is exploitative if, and only if, one
party plays on a weakness or vulnerability of another to advance his or
her ends.

Inclusive Thesis: A transaction is exploitative if, and only if, one party plays
on a weakness or vulnerability of another to advance his or her ends and
benefits unfairly from the transaction.

On the Outcome Exclusive Thesis, a person can exploit another without


playing on a weakness or vulnerability of the exploited person. Process-
based considerations are relevant to exploitation only as means of bring-
ing about unfair outcomes. Similarly, on the Process Exclusive Thesis,
outcome-based considerations are not essential. Proponents of the Process
Exclusive Thesis will explain the outcome-based considerations in terms
of characteristic upshots of process-based exploitation. But they will deny
that one must gain unfairly if one is to exploit another. Finally, as its name

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suggests, on the Inclusive Thesis both outcome-based and process-based


considerations must be present for an interaction to be exploitative.
Wertheimer defends the Inclusive Thesis.3 We will defend the Process
Exclusive Thesis. Before looking at Wertheimer’s account in more de-
tail, it is worth pausing to explain why the Outcome Exclusive Thesis
is untenable. The idea of a fair distributive outcome is too broad to be
identified with an exploitative interaction. Unfair distributive outcomes
can be produced by processes that have nothing to do with exploitation.
Two farmers agree to work together in tilling their respective fields, but
unforeseen events destroy the crops of one, but not the other. Here an
unfair distributive outcome arises from bad luck. The distribution of the
benefits from their joint work is unfair,4 but no one is to blame for it and
it would be a mistake to characterize the interaction between the farmers
as exploitative. In like fashion, unfair, but not exploitative, distributive
outcomes can arise through coordination problems. Even if all parties to
a transaction are committed to fairness, an unfair outcome can result be-
cause of difficulties in coordinating the activities of a group of individuals.
Bad luck and coordination difficulties can explain how unfair distribu-
tive outcomes come about in a variety of settings. They might explain, for
example, an unfair distributive outcome that results from participation
in international biomedical research. Some parties might benefit unfairly
from the participation of other parties in the research; but the unfairness
might have nothing to do with exploitation or a desire on the part of any-
one to take unfair advantage of anyone else. This would not mean that
there would be no reason to try to correct the unfairness. The point here
is only that the Outcome Exclusive Thesis is insufficiently discriminat-
ing. Even if it were true that all exploitation involves unfair advantage, it
would not follow that all unfair advantage involves exploitation (Goodin
1987, p. 181).5
This point is not lost on Wertheimer. He notes that just because there
is an unfair distribution of benefits and costs between two parties it does
not follow that either party exploited the other. And he claims further that
“a relationship or transaction is exploitative only if there is some defect in
the process by which it came about” (2001). So, on Wertheimer’s account,
a relationship or transaction is exploitative if, and only if, it involves an
unfair distribution of benefits/costs and there is some defect in the process
that accounts for the unfair distributive outcome. This just is what we
have termed the Inclusive Thesis.

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WERTHEIMER’S ACCOUNT

The Inclusive Thesis is superior to the Outcome Exclusive Thesis. But


we believe that ultimately it should be rejected in favor of the Process
Exclusive Thesis. To explain our reasons for this judgment we first need
to discuss Wertheimer’s account of exploitation in more detail. A careful
consideration of his account is also valuable since it will bring into view
a number of insights that must be taken into account by any adequate
discussion of the concept. We will focus in particular on four features
of Wertheimer’s account. According to Wertheimer, exploitation is (1) a
moralized concept (1999, pp. 6, 205, 278) that (2) refers, in the main, to
local or transaction-specific interactions (pp. 8–9) that involve (3) distribu-
tive unfairness (pp. 24, 207–246) that (4) results from some defect in the
process that gives rise to the distributive unfairness (p. 25).
Each feature requires comment. The first one—the claim that exploita-
tion is a moralized concept—implies that a judgment that some interaction
is exploitative is a judgment that the interaction is, at least, pro tanto mor-
ally wrong. An account of exploitation, on this understanding, must tie the
extension of the concept to an underlying explanation of why exploitation
involves wrongful treatment. A purported instance of exploitation will
not qualify as a genuine instance of exploitation unless it can be shown
to be, at least, pro tanto morally wrong. We will add (uncontroversially)
that if an interaction is pro tanto morally wrong, then there is at least
some reason to oppose the interaction.6
The second feature is that exploitation refers, in the main, to transaction-
specific interactions. Very roughly, we can distinguish issues of macro-level
fairness from issues of micro-level fairness. The former concern how the
main political and economic institutions of a society distribute goods and
burdens. The latter concern how goods and burdens get distributed by
transactions made by individuals acting within this institutional structure.7
Wertheimer expresses the basic idea as follows: “I believe that we should
distinguish between fairness as a principle for the distribution of social
resources and fairness as a principle for transactions and that principles
of fair transactions should bracket information that might be relevant to
other moral purposes, such as justifying aid or redistribution” (1999, p.
216). These remarks imply that instances of micro-level transaction un-
fairness can be identified in abstraction from macro-level socioeconomic
injustice or unfairness.
Assuming, then, that an exploitative transaction is a micro-level wrong,
we need to know how we can determine whether a micro-level transaction

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is distributively unfair. This brings us to the third feature. According to


Wertheimer, a transaction is distributively unfair if one party gains exces-
sively relative to the other. For instance, if one person defrauds another
and gains from the transaction, then we can say that the person gained
excessively, since it is wrong for him to gain at all from the interaction. In
addition, and more interestedly, if one person gains more than she ought
to from a transaction relative to the gains of another, then she has gained
excessively. This possibility explains how a transaction can be both ex-
ploitative and mutually beneficial. Accordingly, on Wertheimer’s account,
to determine whether a micro-level interaction is distributively unfair we
need to refer (as we noted above in discussing Trial) to a normative base-
line that specifies how much each party to the interaction ought to gain
relative to one another in the interaction.
Wertheimer’s notion of a normative baseline is an important idea—one
that we will return to later. For now, it is worth recalling Wertheimer’s
claim that “a relationship or transaction is exploitative only if there is
some defect in the process by which it came about” (2001). Wertheimer
himself does not say very much about the kinds of defects in process that
are necessary to exploitative interactions. Much of his discussion of process
is devoted to arguing that a defect in consent is not a necessary element
of an exploitative interaction. This leaves it open exactly what kinds of
process defects are necessary (1999, pp. 247–277).
Might there be exploitation in an interaction even if no unfairness in
outcome is present? On the Inclusive Thesis, the answer is “no.” Wert-
heimer presents the following case in support of this view.
Snow Storm: An entrepreneur “roams the highways in a snow storm and
offers to rescue stranded motorists for an eminently fair price. He takes ad-
vantage of the rescuee’s plight in order to supplement his income.” He gains
from the transactions, and he takes advantage of the bad circumstances of
others; but he does not exploit any of the stranded motorists. (1999, p. 208)

The lesson Wertheimer draws from the case is “no unfairness in the terms
of the transaction, no exploitation.”
Snow Storm is indeed instructive. We argue below that while Wert-
heimer is correct to judge that there is no exploitation in this case, he errs
in drawing the lesson he draws. The case does not show that an interac-
tion that has a procedural defect, but no unfair distributive upshot, is
not exploitative. It does not show this since, correctly viewed, the case
depicts an interaction that has neither an unfair distributive outcome nor

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a defect in the process of interaction. For this reason, Snow Storm cannot
be used to support the Inclusive Thesis over the Process Exclusive Thesis.
On inspection, the case is interesting because it helps us to see what must
be true for there to be a defect in the process that leads to an exploitative
transaction. To appreciate this point, we need now to consider the main
considerations that support an account of exploitation that is consistent
with the Process Exclusive Thesis.

A PROCESS-CENTERED VIEW EXPOUNDED AND DEFENDED

In common usage, the term “exploit” is roughly synonymous with the


term “use” (Wood 1995, p. 141). We speak of exploiting natural resources
or exploiting an opportunity. These uses of the term do not involve the
notion of unfair treatment. With respect to persons, matters are different.
When one person exploits another, she does treat the other unfairly. How
exactly should we understand the sense of unfair treatment in this context?
In rejecting the Outcome Exclusive Thesis, we argued that it is a mistake
to equate unfair treatment with treatment that leads to an unfair distribu-
tive outcome. Exploitative treatment must involve some procedural defect
in the interaction. The Process Exclusive Thesis holds that this defect is
the primary feature of exploitative interaction and that unfair distribu-
tive outcomes are merely the characteristic upshots of this interaction. To
understand this view, we must understand better the kinds of “defect”
inherent in exploitative interactions.
Since the defects in question are moral defects, we need a characteriza-
tion of them that shows them to be of moral concern. The above remarks
regarding the exploitation of resources and opportunities suggest a starting
point for this task. The exploitation of a person may be wrong because
it involves treating a person as if he were a mere object or thing. The
exploiter uses another as an instrument for the advancement of his ends;
and this can be, even if it is not always, morally objectionable.
This general view of exploitation has been advanced by a number of
writers on the topic (Buchanan 1985, pp. 87–90; Wood 1995; Sample
2003, pp. 62–73). But it is subject to familiar problems and ambigui-
ties—problems and ambiguities that have not, to our knowledge, been
adequately resolved. In what follows, we seek to make progress on this
front. We first sharpen and expand on the basic Kantian idea that, we claim,
stands behind the charge of exploitation. This will enable us to present a
reasonably well-developed process-centered account of exploitation. Then
we present two arguments that support this account of exploitation over

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accounts such as Wertheimer’s that are committed to the Inclusive Thesis.


This, in turn, will put us in a position to revisit Snow Storm and explain
more fully why this case does not tell against the Process Exclusive Thesis.
One thing is clear: it is not always wrong to treat another as an instru-
ment for the advancement of one’s ends. When a person mails a letter,
she uses the mail carrier as an instrument for advancing her end; but she
does not thereby “exploit” the mail carrier in any morally objectionable
sense (Paton 1965, p. 165). In response, it is often said that while it is not
wrong to use another as a means to one’s end, it is always wrong to use
another as a mere means to one’s end. This maneuver can explain why it
is not wrong to use the mail carrier to send a letter, but it cannot explain
why it is wrong to use people in other ways that are morally objection-
able in the pursuit of one’s ends. As Frances Kamm points out (2007,
pp. 12–13), an evil person might be inclined to use you as a means to his
ends, threatening to kill you if you do not do as he says, and yet he might
be unwilling to treat you merely as a means. Perhaps he is unwilling to
torture you, even if doing so would serve his ends better.8 In threatening
to kill you the evil person is using you as a means in a way that is mor-
ally illicit, even though it is not strictly true that he views you as a mere
means to his ends.
The bare appeal to the idea of using another as an instrument for the
advancement of one’s ends, then, is insufficient for an account of exploita-
tion. At most, the idea provides the skeleton of an account. Flesh must be
added to the bones. With this in mind, consider the following proposition:
(P1): An interaction between two parties is exploitative if one party uses
the other—in a way that is disrespectful to her—as an instrument for ad-
vancing his ends.

(P1) explains why the evil person in the above example exploits his vic-
tim by threatening to kill him. Threats of this kind are disrespectful to
their victims. But the explanation provided by (P1) pretty clearly needs
supplementation. We need to know what makes the use of another dis-
respectful to her.
Recent theoretical work on exploitation suggests some possibilities for
filling in the picture. Robert Goodin (1987) claims that wrongful exploita-
tion involves taking inappropriate advantage of those who are vulnerable.
Inappropriate advantage-taking of the vulnerable is disrespectful to them.
Goodin then identifies some of the characteristic ways by which exploiters
take inappropriate advantage of the vulnerable. In a similar vein, Ruth

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Sample (2003) claims that “respect for persons is the core requirement
underpinning our judgments of exploitation” and she identifies three ba-
sic forms of disrespect: neglecting what is necessary for the well-being of
those one interacts with, taking advantage of injustices done to them, and
commodifying an aspect of a person that ought not to be commodified.
Both Goodin and Sample make a number of points relevant to an
adequate supplementation of (P1), but we seek a more general supple-
mentation, one that does not simply advert to different ways or forms
of disrespectful treatment, but seeks instead to identify an underlying
explanation for why different kinds of purportedly disrespectful treatment
are exploitative. Consider now the following general supplement to (P1):
A interacts with B in a way that is disrespectful to B if (i) A uses B as an
instrument for advancing A’s ends and (ii) B would not rationally consent
to the interaction with A under favorable conditions. This supplementary
claim appeals to a counterfactual condition that is defined by two key
ideas—“rational consent” and “favorable conditions.” We will not say
much here about the first of these ideas. A person rationally consents
when she is aware of sufficient relevant information and is not impaired
by various incapacities and distorting influences.9 So understood, a person
can rationally consent to an exploitative interaction.
The specification of “favorable conditions” is a more difficult matter. It
must advert to the absence of weaknesses and/or vulnerabilities due both to
personal circumstance (e.g. an agent may have an emotional weakness that
makes him vulnerable) and to extrapersonal circumstance (e.g. an agent
may be in conditions in which she has little or no bargaining power). Cor-
rectly specified, unfavorable conditions frame the context for exploitative
interaction. When one party “plays on” the weakness or vulnerability of
another, he takes advantage of the unfavorable conditions in which the
other finds herself so as to get her to advance his ends on his terms.
The trick is not to read too much into the favorable conditions. In Trial,
Joan is in a circumstance in which she desires $100, but does not have
it. This is, in one sense, an unfavorable circumstance. She would be in a
better situation if she already had the money. But the fact that Joan does
not have the money, and the fact that she desires it, are circumstances that
constitute the occasion for her interaction with those conducting the trial.
We will refer to circumstances of this kind as constitutive conditions. They
establish the occasion for an interaction between two or more parties.
We can contrast these conditions with conditions that affect the quality
or nature of the interaction that takes place between the interacting par-

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ties. These latter conditions are framing conditions, since they frame or
condition the context in which the interaction takes place.10 Using this
distinction, we can say that when we appeal to what a person would ra-
tionally consent to under “favorable conditions” we are referring to the
framing conditions of the interaction and not to the conditions that create
the occasion for the interaction in the first place.
We now can present a more complete account of process-centered
exploitation.
(P2): An interaction between two parties is exploitative if one party, A, in-
teracts with the other, B, under unfavorable framing conditions, in order to
advance A’s ends and it is true that B, under favorable framing conditions,
would not rationally consent to the interaction with A (or consent to the
interaction with A on the same terms).

This account leaves much open for debate. Two people can accept (P2)
and yet disagree over a particular issue in a given context because they
disagree over the correct specification of the relevant framing conditions of
interaction in that context. Yet, irrespective of how the details are worked
out, proponents of (P2) will agree that it is wrong to take advantage of
the fact that others are in unfavorable conditions to advance one’s ends
when it is true that they would not rationally consent to the terms of the
interaction if they were not in these conditions. To treat others in this way
is to treat them disrespectfully.11
As these remarks make plain, (P2) relies on a distinction between actual
and counterfactual consent. This distinction calls for further comment.
If A is the exploiting party and B is the exploited party, then exploitation
can occur with or without the actual consent of B. There are two pos-
sibilities to consider.12
(1) B consents to the interaction, but would not consent to the interaction
under favorable framing conditions.
(2) B does not consent to the interaction, and would not consent to the
interaction under favorable framing conditions.

The first possibility depicts consensual exploitation, whereas the second


depicts nonconsensual exploitation. With nonconsensual exploitation,
there is no divergence between actual and counterfactual consent; but with
consensual exploitation the two come apart. (One must assume here that
the actual consent in question is valid. If it were not, then the exploitation
depicted in (1) would not be consensual exploitation.)

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How might valid actual consent come apart from rational counter-
factual consent? To answer this question, we have appealed to various
conditions that affect the quality of the interaction between the parties.
As mentioned, these include two broad categories of factors—one that
involves the extrapersonal circumstances of the parties and the other the
personal vulnerabilities or weaknesses of the parties. Both categories of
factors can condition the consent of the interaction. With extrapersonal
circumstances, this fact is easy to illustrate. Exploitation often occurs
when one party is backed up against the wall and does not have a genuine
option to refuse the interaction.13 In such a situation, it is possible for a
person to validly consent to the interaction, but it is instructive to ask
whether she would consent if she were not subject to that kind of pressure.
With personal vulnerabilities and weaknesses, the issue is more delicate.
In some cases, the exploiter takes advantage of a weakness of another to
advance an end and the weakness is quite incidental to who the person is.
For example, one can exploit a person’s poor mathematical abilities to sell
him an insurance policy at an unfair price. Here we can ask whether the
person would consent to buy the policy if he had adequate mathematical
abilities. But some personal vulnerabilities are more tightly bound up with
a person’ identity and it may not be possible always to determine what a
person would consent to if he didn’t have the vulnerability in question.
For example, suppose a person is very trusting by nature and one just can’t
imagine what he would be like without his trusting disposition. Presum-
ably, an exploiter could play on this trait to get this person to serve his ends,
but in asking what he would consent to under favorable conditions, we
cannot imagine him in the relevant situation since we cannot imagine him
without his trusting disposition. One response to this problem is to ask if
the person, with his trusting disposition, would consent to the interaction
if he were aware that the other party was playing on it for advantage. If
the answer were yes, then exploitation plausibly would not occur.
This raises a further issue. If we construe exploitation in terms of (P2),
then whether a given interaction is exploitative will vary depending on
the beliefs and preferences of the parties involved. Consider Trial again.
If Joan would not consent to participate in the study on the terms offered
to her under favorable conditions, then the transaction between her and
those conducting the trial will count as exploitative. However, if she
would consent to do so on those same terms under favorable conditions,
then no exploitation will have occurred. Suppose that, contrary to the
description given above, Joan has altruistic concern for future patients.

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Under favorable framing conditions, she would be willing to participate


in the trial, even if she were offered no compensation for doing so. Her
main motive for participating is to contribute to scientific knowledge that
will help others. Here, or so we think, it is not plausible to claim that
she is the victim of exploitation.14 A preference/belief-sensitive account
of exploitation, such as the one we have presented, can account for this
judgment. Still, Joan might have crazy preferences. She might prefer to be
treated poorly because she believes that she is worthless. Here we must
ask whether the fact that she has these beliefs, and the preferences based
on them, is properly characterized as a weakness or vulnerability. This
is by no means a straightforward task, since not every mistaken belief is
properly characterized as a weakness or vulnerability. For a mistaken belief
to qualify as vulnerability, other conditions need to be satisfied. Perhaps
a person’s belief is properly characterized as a weakness or vulnerability
only if (i) the belief is false; (ii) the belief is such that person would give it
up if she came to understand the conditions under which it was acquired;
and (iii) the belief strongly contributes to the person’s acceptance of unfair
treatment by others.15
Suppose now that we do judge, in the version of the case that we are
presently considering, that Joan’s misguided belief that she is worth less
than others is indeed a vulnerability. Then, in asking whether the interac-
tion is exploitative, we are asking whether she would rationally consent
to participate in Trial if she did not have this false belief. That is, we are
asking whether the cited false belief is part of the correct explanation for
why she would consent to the interaction. If the answer is “yes,” then the
interaction will count as an instance of exploitation under the account
we are presenting.
The fact that (P2) makes judgments of exploitation depend, in part, on
the preferences of the parties involved is therefore not a weakness of the
account. The account has the resources to discriminate between beliefs—
and the preferences that are based on them—that should and should not
be screened out in applying the counterfactual condition expressed in (P2).
Yet, at least as it has been presented so far, (P2) does remain vulnerable
to counterexample. Suppose that B is morally required to interact with
A in a certain way, but refuses to do so (and would refuse to do so under
favorable framing conditions). In this kind of case it may not be morally
wrong for A to play on some vulnerability of B in order to get B to do
what he is morally required to do, even if this serves A’s ends.16 To account
for such possibilities, we need to say that for an interaction between two

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or more parties to be exploitative, the exploited party must be at moral


liberty to refuse to interact with the exploiting party.17 The interaction
mentioned in (P2) should be read with this qualification in mind.
A second worry about (P2) is that, in making reference to what a person
would rationally consent to under favorable conditions, it assumes that
exploited agents have the capacity to consent to the interactions that they
participate in, but this seems to imply that noncompetent agents, such as
small children or mentally ill persons, could not be exploited. And this
implication is surely false. In response, we should imagine a caretaker or
surrogate for the noncompetent agent and then let his judgment, under
favorable conditions, determine whether exploitation has occurred.
This completes our presentation of a general account of exploitation. We
will call it the process-centered account to distinguish it from other views
of exploitation that emphasize outcome over process. The process-centered
account contrasts with the views of Goodin and Sample mentioned above.
For example, Goodin claims that one characteristic way by which exploit-
ers exploit is “to play for advantage when [their] relative advantage derives
from others’ grave misfortunes” (1987, p. 186). On the process-centered
account, this will often be true, but not always. In Trial, if Joan were
paid a sufficiently high level of compensation, then the interaction might
not qualify as exploitative, even if Joan’s situation resulted from grave
misfortune. If she would rationally consent to participate under favorable
conditions, then she would not be exploited by those who conducted the
trial. Likewise, Sample claims that exploitation occurs when one party
takes advantage of injustice done to another, but this will not always be
true under the process-centered account. Research subjects in the devel-
oping world may be the victims of injustice, but if they are compensated
sufficiently well for their participation in trials, then it is likely that many
of them would consent to participate under favorable framing conditions.
If so, no exploitation would occur. The process-centered account, accord-
ingly, can be relied on to determine when alleged defects in the process
of interaction—defects highlighted by other process-sensitive accounts of
exploitation—constitute exploitation and when they do not.
Proponents of the Inclusive Thesis, such as Wertheimer, need not reject
the core of the account we have presented. They will need to hold, how-
ever, that an exploitative interaction must have, in addition to the elements
articulated by (P2), an unfair distributive outcome. We now present two
arguments designed to cast doubt on this claim.

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(a) The Intuitive Argument


Exploitation is present in some cases that do not involve outcome un-
fairness. These cases are the converse of cases like Snow Storm. Consider
the following:
Fair Bet: David’s car has stalled on a deserted road. Fortunately, an ac-
quaintance of his, Jack, sees him and stops to help him. But Jack will help
David only on the condition that David agree to a $1000 bet, on fair terms,
regarding an upcoming football game. David thinks that this is an outra-
geous proposition, but under the circumstances he needs the help and so
agrees to the bet.

Here there is no distributive unfairness. The bet is fair. Indeed, depending


on the outcome of the football game, David, and not Jack, may be the
beneficiary of the transaction. Still, intuitively, Jack has taken unfair ad-
vantage of David. He has taken advantage of the unfavorable conditions
that David is in so as to further his own end. The lesson we draw from
this case is: “No unfairness in the terms of the transaction, but exploita-
tion nonetheless.”
It might be objected that there is outcome fairness in Fair Bet, since
one party, Jack, gains nonfinancial benefits from the interaction. Perhaps
Jack will get a great deal of enjoyment from the bet that he is proposing.
But this need not be the case. After all, Jack may have any number of
motives for making his strange offer, and securing enjoyment may not be
high on the list. It might be thought as well that David’s interests will be
set back unfairly by accepting the bet, since he may experience resentment
from it. But David’s resentment, if present, will be a function of his judg-
ment that he is being treated wrongly by Jack. Without that judgment,
he would have no negative feelings. In short, the appeal to nonfinancial
benefits cannot explain how Fair Bet, despite appearances, is really a case
of outcome unfairness.
Fair Bet is a token of a class of cases that involve uncertainty with
respect to the distributive outcomes that result from interaction between
parties with different aims and interests. As we explain later, these cases
are particularly important for understanding exploitation in the practice of
clinical research, since uncertainty in outcome is a key feature of research
on human subjects. For now, we seek to emphasize only that cases of this
kind are plausible counterexamples to the Inclusive Thesis.
At one point Wertheimer himself comes close to seeing the force of
cases like Fair Bet:

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Let us say that A exploits B tout court when A transacts with B on terms
that are harmful or unfair to B. . . . But we can also say that A exploits B as
a decision maker when A gets B to agree to a transaction to which B would
or might not agree if B were to give fully voluntary consent, whatever the
effects of the transaction on B’s (other) interests. (1999, p. 254)

We agree that one can exploit the decision-making capacity of a person


without thereby exploiting the person. A football coach can exploit the
decision-making capacity of his quarterback by directing the quarterback
to audible plays at the line of scrimmage without thereby exploiting the
quarterback. But Wertheimer presses this valid observation too far. Some
ways of exploiting a person’s decision-making capacities clearly do con-
stitute exploitation of the person. Specifically, if one exploits the decision-
making capacity of another to get him to advance an end that he does not
share and would reject under better conditions, then one plausibly exploits
the person. In fact, a standard way to exploit a person is to exploit her
capacity as a decision maker to advance ends that she rejects.
Two further remarks are in order. First, in Fair Bet Jack takes unfair
advantage of David’s unfavorable conditions to advance an end that he
has, but he does not do so in a way that necessarily benefits him. This
brings into view an important point. It is not true in general that when a
person’s end is achieved the person thereby benefits or gains. This is often
true, but it is not true in general. So it is a mistake to subsume “acting in
a way that satisfies an end that one has” to “acting in a way that benefits
one.” One should not, accordingly, characterize Jack’s behavior in Fair
Bet as behavior that benefits Jack, irrespective of how the bet turns out.
Second, in Fair Bet, Jack may benefit after the fact. He may win the bet.
But it would be a mistake to say that the interaction between Jack and
David becomes exploitative at the point in time in which Jack wins the
bet. The interaction was either exploitative all along irrespective of how
the bet turns out or it was not exploitative at all.

(b) The Canceling Argument


The second argument supplements the intuitive argument. To appreciate
it, we need to recall, once again, that exploitation is a moralized concept.
We also need to recall that exploitation, on the inclusive view, involves
an unfair distribution of benefits and costs with respect to specific or lo-
cal interactions. Thus, on this view, to assess whether a given transaction
is exploitative we do not need to refer to the background distribution of

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social goods. An exploitative transaction involves “transaction-specific”


unfairness (Wertheimer 1999, p. 216).
The canceling argument maintains that these two points—that an
exploitative interaction is pro tanto wrong and that exploitative transac-
tions involve transaction-specific distributive unfairness—do not sit well
together. For suppose the unfair transaction-specific distribution of benefit
that results from an exploitative interaction perfectly offsets or cancels
out what was an unfair distribution of benefits prior to the interaction.
For example, suppose the following claims were all true.
C1: A acquires an unjust share of goods relative to B at time t1.
C2: B takes unfair advantage of A in an interaction that occurs at a later
time t2 and the interaction produces a transaction-specific unfairness in the
distribution of goods between A and B.
C3: The transaction-specific unfairness in the distribution of goods that
results from the interaction at time t2 cancels the injustice in distribution
present at time t1.

Given these suppositions, it is plausible to hold that if the interaction that


occurs between A and B at t2 were pro tanto wrong, then this moral as-
sessment would not be explained by the fact that the interaction yielded
a transaction-specific unfair distribution. For the transaction-specific un-
fairness generated by the interaction merely offsets prior unfairness. Put
otherwise, there is no reason, grounded in distributive fairness, to correct
for the transaction-specific unfairness that results from the interaction at
time t2. This shows that if the exploitative interaction between A and B
depicted in these claims really is pro tanto wrong, then this will need to
be explained by considerations other than outcome-based considerations.
Note that it is not important to the canceling argument exactly how the
unfair distribution between A and B arises at time t1. We need not sup-
pose that A mistreated B at this prior time. Some third party, C, may have
been the cause of the initial unfair distribution of benefits between A and
B. Thus, it would be a mistake to respond to the canceling argument by
holding that the interaction between A and B is an extended interaction
that begins at t1 and extends through t2.18
Since this discussion of the canceling argument has been abstract, it
will be helpful to consider an example to illustrate its force. Consider a
variant on Snow Storm:
Snow Storm*: An entrepreneur, call him Mark, roams the highway in search
of stranded motorists. He is prepared to rescue them for an eminently fair

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price of $100. He comes across Alex, who needs his assistance and, as it
turns out, owes him $300 from a previous interaction. (Alex has made it
plain that he has no intention of ever paying back the money.) Mark proposes
to rescue Alex, but only if Alex agrees to pay him an exorbitant price of
$400 upfront. Alex reluctantly agrees, as he needs the assistance and there
are no other people around to help him.

In this case, there is a transaction-specific unfairness. The price of $400


for the rescue is excessive, and Mark takes advantage of Alex’s bad cir-
cumstances to get him to pay it. But if Mark wrongs Alex, then this fact
would not be explained by the distributive outcome of their interaction.
For this distributive outcome merely cancels a prior unfairness in distri-
bution. Thus, if Mark wrongs Alex it must be in virtue of the process
of their interaction. Perhaps Mark is entitled to the money that Alex
owes him, but his method of recovering it is disrespectful to Alex. This
judgment is consistent with the claim that while Mark exploits Alex and
thereby wrongs him, his conduct is nonetheless justified overall, since the
value of correcting the past wrong may outweigh the wrongness of his
exploitative interaction.
In considering Snow Storm* one should bear in mind the point we just
pressed. The interaction between Mark and Alex should not be viewed as
one long extended interaction, one that began at the point at which Alex
refused to repay the $300. To make this abundantly clear, we can alter the
details of the case. Suppose Alex is unaware of the fact that he has $300
of Mark’s money, as a third party transferred the money from Mark’s to
Alex’s bank account—a fact about which Mark, but not Alex, is aware.
In this version of the case it is clearer that Mark wrongfully exploits Alex
in charging him the exorbitant price for the rescue. But the wrongness
of the interaction remains unexplained by the distributive outcome that
results from it.
The canceling argument thus puts pressure on one to reject either the
thought that exploitation is pro tanto morally wrong or the thought that
a necessary element of the wrongness of exploitation is the transaction-
specific unfairness in distribution that it produces. Since the first thought
is plausible, the argument gives us reason to reject the second thought. A
successful explanation for why an interaction of the type hypothesized
above is exploitative must appeal to process-based considerations, such
as, for instance, the claim that B treats A disrespectfully by taking unfair
advantage of him at t2. Moreover, the appeal to the process-based consid-
erations in cases of this kind does all the explanatory work. The fact that

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a transaction-specific unfair distributive outcome results from the interac-


tion between A and B contributes nothing to the explanation for why B’s
treatment of A is pro tanto wrong. In this way, the canceling argument
provides further support for the Process-Exclusive Thesis.19
Return now to the challenge posed by the original version of Snow
Storm. This case appears to provide the strongest support for the In-
clusive View. We now can explain why the appearance is misleading.
Wertheimer is correct to claim that there is no exploitative interaction in
Snow Storm. But notice that the process-centered account of exploitation
we have developed supports the same judgment. The entrepreneur pro-
vides a needed service at a reasonable price. It is, accordingly, reasonable
to believe that when he provides assistance to a stranded motorist he is
providing a service that the motorist not only consents to, but also would
consent to under favorable (framing) conditions. The motorist, that is,
would consent to the interaction if he were in a situation in which he were
in a much better bargaining position than he actually is and in which he
had a genuine option to refuse the offer from the entrepreneur. Thus, in
Snow Storm, while it is true that the entrepreneur is profiting from the
misfortune of others, he is not exploiting them since he is not taking ad-
vantage of their circumstances so as to interact with them on terms that
they would not rationally consent to under favorable conditions.20 Thus,
our process-centered account of exploitation can handle this case as well
as Wertheimer’s inclusive account. Indeed, it handles the case better than
Wertheimer’s account, since it provides a way to discriminate between it
and Snow Storm*.

BORDERLINE CASES

The process-centered account of exploitation that we are advancing can


be further contrasted with Wertheimer’s account by considering a couple
of borderline cases. Whether these cases should be classified as instances
of exploitation cannot be settled by conceptual analysis. To get answers
we must appeal to the underlying moral considerations that motivate
interest in the concept. With this in mind, consider:
Pint of Blood: The society in which Rebecca lives has a shortage of blood.
As a consequence, each person in the society has a moral duty to give one
pint of blood to the blood banks that have been set up. It is also true that
each person has a moral right to refuse to do so. As it turns out, Rebecca
is the only member of her society to refuse to give the pint of blood. In
response, Karen, an acquaintance of Rebecca’s, threatens to make public

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some embarrassing information about Rebecca’s past if Rebecca continues to


refuse to give blood. Reluctantly, Rebecca relents and gives a pint of blood.

Karen does not gain from the interaction. The outcome of the interaction
is fairer—the burdens of blood donation are shared more fairly—than it
would have been had Karen not intervened, but Karen herself does not
profit as a result. Still, Karen does take advantage of a vulnerability of
Rebecca’s to get her to do what she wants her to do. Furthermore, if it is
true, as we stipulated in the example,21 that Rebecca has a moral right to
refuse to give blood, then it is plausible to think that it is at least pro tanto
wrong to exploit a vulnerability of hers in order to pressure her to do so.
One response to Pint of Blood is to say that Karen treats Rebecca
wrongly, but that she does not exploit her. The case depicts an unusual
case of blackmail. Karen manipulates Rebecca and treats her disrespect-
fully, but she does not thereby exploit her. There is, in fact, a considerable
overlap between cases of exploitation and cases of disrespectful manipula-
tion. And manipulation is sometimes defined in terms that make it appear
essentially exploitative (Feinberg 1988, p. 179). But one might insist that
exploitation always involves gain to the exploiter, whereas manipulation
can occur when the manipulator gains nothing. Accordingly, one could
insist that Karen manipulates, but does not exploit, Rebecca in the case
under consideration.
Against this, we think the case plausibly depicts an exploitative interac-
tion.22 Not every instance of disrespectful manipulation is an instance of
exploitation. One party might manipulate another to get her to advance an
end, but if this end is one that the manipulated party would accept under
favorable conditions, then the manipulation would not be exploitative,
even if it remained disrespectful. But in Pint of Blood we are assuming
that Rebecca would not rationally consent to give blood under favorable
conditions. The case depicts exploitation since it involves the same kind
of disrespectful treatment that is present in more standard instances of
exploitative interaction. Karen plays on a vulnerability of Rebecca’s in
order to get her to advance Karen’s end—an end which is, in this case,
directed toward the establishment of a morally laudable state of affairs,
yet one that Rebecca has a moral right to resist.
Consider next a case that involves paternalistic concern that a person
is morally at liberty to resist.
Physician: David is physically weak and ill. He visits his physician, who
recommends a particular procedure that is in David’s best medical interests.

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Despite being fully informed about the procedure and the consequences of
forgoing it, David refuses the procedure. However, his physician is able to
pressure David into agreeing to the procedure in part by taking advantage
of the trust David places in him and in part by taking advantage of David’s
weak condition and his consequent lack of motivation to resist this pressure.

Wertheimer would allow that the physician in this case takes advantage
of the patient, but he would deny that this constitutes exploitation (Wert-
heimer 1999, p. 254). Since the physician acts so as to benefit the patient
and not himself, there is no exploitation. Let us assume that both David
and his physician share the end of doing what is in David’s best medical
interests, but they disagree as to whether the procedure in question will
serve that end. Clearly, the physician fails to respect the autonomy of his
patient. But this failure, it may be thought, does not amount to exploita-
tion.
We think that while Physician does not depict a standard or typical
case of exploitation, it does, in fact, depict an instance of it. The physi-
cian takes unfair advantage of a vulnerability of his patient to get him
to do something that the patient would not consent to under favorable
conditions, viz. conditions in which David was not in a weakened state.
The moral defect in the interaction between David and his physician, ac-
cordingly, is a form of the disrespectful treatment that is present in more
standard cases of exploitation.
The cases discussed in this section—Pint of Blood and Physician—are
very unusual cases. But they illustrate an important point. There is a dif-
ference between taking advantage of someone so as to benefit oneself and
taking advantage of someone so as to advance an end that one has. Quite
often, the two go together, since quite often a person’s ends are tightly
linked to her welfare. But, as the cases illustrate, the two can come apart;
and when they do, we need to decide whether taking unfair advantage of
the weaknesses or vulnerabilities of others to advance ends that one has,
but they don’t, constitutes morally objectionable behavior of the kind that
the concept of exploitation is meant to pick out.23
In passing, we note one further implication of our disagreement with
Wertheimer on this issue. Sometimes one party, A, exploits another party,
B, for the sake of gains to a third party, C. This can occur in clinical re-
search. Investigators can exploit research participants not for their own
benefit, but for the benefit of future patients. Wertheimer agrees. He calls
exploitation of this kind “mediated exploitation” (1999, p. 210). But the
term “mediated” here is not particularly apt. A mediator is an agent who

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interposes between two other parties. Consider, for example, a retailer


who serves as a middleman between suppliers and consumers of a product.
Both the suppliers and consumers participate in an economic interaction,
one that is facilitated by the mediating role played by the retailer. But
there is no comparable interaction between future patients and research
participants. Certainly it would not be correct to say that the investigator
facilitates the exploitative treatment of research subjects by future patients.
A more apt description of “mediated exploitation” would identify the
investigators as the agents of exploitation, but it would characterize their
aim or end as one that concerns benefiting future patients, not one that is
centered on their own profit. And this more apt description coheres well
with an account of exploitation, such as the one that we have advanced,
that puts the accent on the exploiters’ ends rather than on their interests.

INTENTIONS AND MOTIVES

In the next section, we apply the account of exploitation developed


here to the specific context of research on human subjects. But before
embarking on this task, we need to make some additional points about
process-centered exploitation, since these points bear on the issue of when
practices, including research practices, are exploitative.
In the examples discussed above, one party intentionally took advantage
of another. But an exploitative interaction can occur even when no such
intention is present. For example, a person can take advantage of another’s
bad bargaining position even though she is unaware that the other party
is in this position. Here exploitation occurs, but the exploiting party is
not acting with the intention to exploit. The intentions of people are, to
be sure, relevant to assessing how blameworthy they are for the activities
that they are engaged in. But the attribution of blame is distinct from the
question of whether an exploitative interaction has occurred (Wertheimer
1999, p. 209).
These points are germane to current debates over the possible ex-
ploitative nature of some clinical trials. The existence of the so-called
“therapeutic misconception”24 illustrates the situation well. Suppose an
investigator recruits participants into a trial designed to test the efficacy
of an experimental drug against a placebo. Suppose further that, unbe-
knownst to the investigator, many of the recruited participants are under
the misconception that the purpose of the trial is to provide them with
therapy rather than to generate scientific knowledge for the benefit of
future patients. In this example, the investigator can exploit the partici-

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pants by taking unfair advantage of their misunderstanding, even if he is


unaware that the participants suffer from this misunderstanding.
The intentions of researchers, then, are not key elements in judgments
of exploitation in clinical research. This brings us to a second issue that
merits comment. Can the benevolent motives of interacting parties affect
a charge of exploitation? The question is interesting, and the answer to it
is not straightforward. We have held that A exploits B if (1) A interacts
with B, under unfavorable conditions, to advance A’s ends and (2) it is
true that B, under favorable conditions, would not rationally consent to
the interaction with A or do so on the same terms. Benevolent motives
on the part of B plainly seem to matter on this account (as we indicated
above in discussing the possibility that Joan is altruistically motivated to
participate in Trial). For if B is genuinely altruistic then he may agree to
bear greater costs than he would if he were not genuinely altruistic in or-
der to advance A’s ends and it may be true that he would rationally agree
to do so under favorable framing conditions. This explains the truth in
the often asserted claim that altruistic motivation on the part of research
subjects can show that what would otherwise be exploitation in a clinical
trial is not exploitation at all (Jansen 2009).
At the same time, one might wonder whether it is possible for one party
to take unfair advantage of another’s unusually generous nature. Feinberg
gives the following example:
A loving and devoted spouse may find no higher satisfaction than unques-
tioning service to his partner. Helping the other unquestioningly is what he
likes doing. If that trait is cynically exploited by the partner, who makes
ever more unreasonable demands on him, the devoted husband may not
feel ill-used in the slightest. He has not been wronged or harmed, but his
wife exploited his disposition to the fullest for her own selfish advantage.
(1988, p. 207)

One’s reaction to this example is conditioned by Feinberg’s description


of the wife as making “ever more unreasonable demands” on her spouse.
The description invites us to conclude that she wrongly takes advantage
of his virtuous nature. But would the husband rationally consent to these
unreasonable demands under favorable framing conditions? The question
requires us to decide whether the husband’s self-sacrificing nature is aptly
characterized as a weakness or vulnerability. If it is not, then his wife does
not take unfair advantage of him. She merely benefits, however unseemly
it may strike us, from his generosity. However, if his generosity is aptly

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characterized as a vulnerability, then, on the account of exploitation that


we have provided, it will follow that the wife engages in exploitation.
This raises a difficult issue. In general, to determine whether a person’s
altruistic disposition is a weakness or vulnerability, as opposed to simply
a virtuous trait, we need to identify the limits, if any, of reasonable self-
sacrifice. This is not a task that we will undertake here.25 Our discussion
seeks to underscore a modest point. Simply pointing to the existence of
altruistic motives on the part of one, or all, parties to an interaction is not
sufficient for concluding that no exploitation is present in the interaction.
Feinberg’s example shows why it continues to make sense to worry about
exploitation even after one has ascertained that the party or parties on
the “losing” end of a transaction have consented to the transaction for
altruistic reasons.

UNCERTAINTY IN RESEARCH

At the outset we claimed that the process-centered account of exploita-


tion that we will defend better illuminates the ethical challenges posed by
research on human subjects than more outcome-centered accounts. The
reasons for this claim can now be spelled out more fully.
Research on human subjects engages a number of distinct ethical
considerations.26 For a trial to be ethically permissible the recruited par-
ticipants must give their informed consent and the trial must be scientifi-
cally well-designed. Over and above these requirements, for the trial to
be ethically permissible, the risks of harm to the participants presented by
the trial must be reasonable in proportion to the anticipated benefits of
conducting the trial. As it is commonly understood, the benefits in ques-
tion include both the health-related benefits the research participants can
expect to receive from participating in the research and the expected ben-
efits to future patients that the research is designed to advance (Emanuel,
Wendler, and Grady 2000). A contentious issue in research ethics is how
to determine when the risk of harm to the research participants is not
reasonably proportionate to the expected benefits of the research. We will
not offer an answer to this issue. Instead, we will focus on research that
uncontroversially satisfies the reasonable proportion test. That is, we will
focus on a trial in which the risk of harm to participants would be judged
by nearly everyone to be reasonably proportionate to the anticipated
benefits of the research. We seek to show that even though the fairness
of the distribution of risks and benefits is not in question in trials of this
sort, they nonetheless raise concerns about exploitation.

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To illustrate this possibility, consider a clinical trial with multiple arms.


The trial, let us assume, fully satisfies the principle of clinical equipoise.
That is, the trial is one in which there is genuine uncertainty within the
medical–scientific community as to which arm of the trial is more ben-
eficial for participants. In addition, the trial also offers its participants
treatment that is at least as good as standard treatment available to them
outside of the trial.27 Call a trial of this kind an equipoise trial. It is widely
acknowledged that a physician can enroll her patient in an equipoise trial
without compromising her therapeutic obligations to the patient. It is also
widely acknowledged that the decision to participate in such a trial is an
important one, and researchers have an obligation to make sure that those
who participate in these trials have given their informed consent to do so.
The key point for present purposes is that the hallmark of an equipoise
trial is the uncertainty it presents to its participants. At the time in which
the trial is initiated it is not known whether participation in the trial is
better or worse for participants than the receipt of standard available
treatment. It is also not known which arm of the trial, if any, is better than
the others. Equipoise trials, in short, have the structure of a fair bet. As
things turn out, participants in an equipoise trial may benefit from their
participation in the trial or they may not. From an ex ante perspective,
participation in such a trial is neither in, nor against, the best medical
interests of the participants.
Yet it remains true that an equipoise trial will advance the ends of the
researchers. Providing it is well designed, the trial will produce generaliz-
able scientific knowledge. In all likelihood, the trial also will advance the
professional careers of those who conduct the research. For this reason,
it is natural to worry about the possibility of exploitation in such a trial.
Importantly, the concern here has nothing at all to do with an ex ante as-
sessment of the distribution of benefits and burdens. It is a concern that
participants not be used as a means, in a disrespectful way, to advance
the ends of the researchers. And that is why, among other reasons, it is
vital to insist on the requirement of informed consent for participation
in these trials. In this context, the requirement of informed consent is a
safeguard against exploitation.
It is not a foolproof safeguard, however. Very sick patients are often
in a desperate condition. As a result, they can be susceptible to forms of
manipulation that do not invalidate informed consent, but are ethically
troublesome, nonetheless. For example, researchers can take advantage
of the hope that participants have that an experimental drug will cure

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them, even when the researchers know that this hope is not a realistic one
(Jansen 2006, Martin 2008). Or, alternatively, researchers (who often are
also physicians) may take advantage of the trust that participants place
in them, however misplaced this trust may be. In different ways, and
involving different degrees of manipulation, researchers can take unfair
advantage of the vulnerabilities of research participants to advance their
ends. Such treatment would constitute exploitation on the process exclusive
account that we have defended. But so long as the trial in question was
an equipoise trial, it is hard to see how it would qualify as exploitation
on an outcome-centered account of the concept.
The exploitation that can occur in an equipoise trial does not come at the
expense of the medical interests of the participants. By hypothesis, they are
not receiving inferior medical care. However, it remains the case that they
can be treated disrespectfully by others. Their vulnerabilities, and the fact
that they may be in a desperate condition,28 can be taken advantage of by
others to advance ends that they do not share. Just as Fair Bet depicts an
exploitative interaction in the absence of an unfair distributive outcome,
so too an equipoise trial can be exploitative in the absence of an unfair
ex ante distribution of risks and anticipated benefits.
In pressing this point, we do not need to endorse the requirement of
equipoise in clinical research. Some have argued that this requirement
should be replaced by a less stringent requirement that holds that, in ad-
dition to other requirements like informed consent, an ethical trial must
have a favorable balance of risks and benefits (Miller and Brody 2007).
The point we are making here, however, applies with the same or greater
force to a trial that satisfies this less demanding favorable risk/benefit re-
quirement. For participation in such a trial could be contrary to the best
medical interests of at least some of the participants, providing the risks it
imposed were not too excessive and the anticipated benefits it yielded were
sufficiently high. The same possibilities for exploitative treatment discussed
above then would apply to these trials, but in addition there would be
the concern that the participants’ own medical interests, from an ex ante
standpoint, were being set back as a result of the interaction. Still, if the
favorable risk/benefit requirement ensures that the distribution of risks
and anticipated benefits is not unfair (as proponents of the requirement
insist), then the trials would not involve outcome-based exploitation. As a
consequence, trials that satisfy the favorable risk/benefit requirement could
not be judged to be exploitative on an inclusive, or outcome-exclusive,
view of the concept, despite exhibiting the kind of process-based defects
to which we have called attention.
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The process-centered account of exploitation that we have presented,


by contrast, can account for the kind of disrespectful treatment that can
occur in clinical trials that satisfy either a demanding equipoise standard
or a less demanding favorable risk/benefit standard. And it can explain
why such treatment is pro tanto morally wrong and why it is plausibly
considered to be exploitative. Over and above the more general theoretical
advantages that our account enjoys over Wertheimer’s inclusive account,
this fact provides a further reason to favor it in the specific context of
clinical research on human subjects.

NOTES

1. For a notable exception see Sample 2003, Chapter 1. We discuss Sample’s


views below.
2. The benefit need not be purely financial. The participants could receive medi-
cal care as compensation for participating, for example.
3. Or so we believe. There is some textual basis for attributing the Outcome
Exclusive Thesis to him, however. See Wertheimer 2011, where Wertheimer
claims that “a moral defect in the outcome [of a transaction] is both neces-
sary and sufficient to constitute exploitation” (p. 202). Elsewhere, and we
think more consistently, he claims that a defect in the process of interaction
is a necessary element of exploitation. This matter of interpretation is not
important to our argument. If Wertheimer accepts the Outcome Exclusive
Thesis, his account is all the more vulnerable to the objections we press.
4. Some may think that an outcome can be unfair only if it is produced in a
way that involves the wrongful treatment of those who have less than their
fair share. Viewing the farmers in our example they will see only misfortune,
not unfairness. But unfairness is often used in a wider sense, as when it is
said that it is unfair for some to have less than others when they have done
nothing to deserve less. On this wider sense, it is unfair that one farmer enjoys
the benefits of their common labor, while the other does not.
5. This point is nicely pressed by Goodin (1987). For Goodin “the essence of
exploitation must be sought in some characteristic of the process, rather than
in some characteristic of the end results” (p. 181).
6. A pro tanto moral reason always speaks against the interaction in question,
but it does not establish that the interaction is all-things-considered unjusti-
fied.
7. See Rawls’s distinction between the “basic structure” and the interactions
and associations that occur within the basic structure (1971).

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8. The mobster might, for example, believe that it is always morally wrong to
torture another human being, even though he is prepared to engage in murder
at will.
9. For an illuminating discussion of a range of impairments and incapacities
that compromise rational choice see Feinberg 1986, pp. 269–344.
10. In Trial the fact that there is not a less burdensome alternative way for Joan
to acquire the money would be a framing condition of the interaction, for
example.
11. Compare this claim to Wood’s claim: “Proper respect for others is violated
when we treat their vulnerabilities as opportunities to advance our own
interests or projects” (1995, pp. 151–152).
12. In a third possibility B does not consent, but would do so under favorable
framing conditions. Here the interaction often would be wrong, but not
exploitative. Sometimes, however, the interaction would not even be wrong.
This will be true in cases in which B lacks capacity to consent in the actual
situation, but would consent in the relevant counterfactual situation.
13. This point is central to the account of exploitation presented in Valdman
2009.
14. We say more about the relation between altruism and exploitation below.
15. For suggestive remarks along these lines, although not in the context of
exploitation, see Williams’s account of the “critical theory test” (2002, pp.
225–232).
16. Here is an example. Suppose B has borrowed a vase from A and has decided
that he will not return it to her. A points out to B that he is morally required
to return the vase, but B is unmoved. A knows, however, that B has an exces-
sive concern about what some third person, C, thinks about him. As B really
ought not care so much about what C thinks, this is a personal weakness. If
A plays on it to get B to return the vase—C will think less well of B if B does
not return the vase and both A and B know this—then his doing so would
be manipulative, but not manipulative in a way that is disrespectful to B. Or
so we believe.
17. This is a simplification. As we explain below, there may be cases in which a
person is not at moral liberty to refuse the interaction in question, but has
a moral right to refuse the interaction. In such cases, the person can be the
victim of exploitation.
18. So the interaction in question is not an example of what Feinberg calls
“double-stranded cases,” cases in which “A exploits B by doing x, while
during the same time period of A’s activity, B exploits A by doing the distinct
and unrelated act Y” (Feinberg 1988, p. 195).

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19. One might respond by insisting that exploitation always requires that one
party gain unfairly—all things considered—from the interaction. Then one
might allow that interactions of the kind here depicted can be pro tanto
morally wrong, even if this condition is not met, but insist that they are not
properly characterized as exploitative. But this stipulation looks to be ad
hoc, designed merely to get around the problem exposed by the canceling
argument.
20. Suppose, however, that a stranded motorist in Snow Storm has unusual views.
Under favorable conditions, he would not consent to being rescued even at a
fair price. He would consent to rescue only if he were charged substantially
less than the fair price. Accordingly, if the entrepreneur rescues him, and if
he consents to the rescue under actual conditions, then would he have been
exploited in any way? We think that the answer depends on whether the
entrepreneur has a duty to rescue the motorist. If he does, then he does not
exploit him, as he is merely acting in accord with duty. If he does not, then
he exploits him, but the moral wrong of the exploitation is likely outweighed
by the benefits conferred by the interaction.
21. For discussion see Enoch 2002. See also Otsuka 2008 discussing the specific
case of the moral right to refuse to give blood when it is one’s moral duty to
do so.
22. Blackmail is often cited as an instance of exploitation. See Feinberg 1988,
pp. 238–274.
23. Here we are in broad agreement with Wood (1995). He writes that “exploi-
tation consists in the exploiter’s using something about the person for the
exploiter’s ends by playing on some weakness or vulnerability in that person”
(p. 147). Note the emphasis on the exploiter’s ends as opposed to his interests.
24. The therapeutic misconception has been extensively discussed in the litera-
ture on research ethics. See, for example, Appelbaum et al. 1987 and Dresser
2002.
25. For discussion of this issue see Hampton 1993, pp. 135–165.
26. For the sake of simplicity, we limit our discussion here to research in devel-
oped countries.
27. For the seminal defense of the principle of equipoise, see Fried 1974. See also
Freedman 1987.
28. For example, the participants may be cancer patients and they may realize
that they have no chance for cure with standard available treatment.

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