Basic Equality and Discrimination

Reconciling Theory and Law

Nicholas Mark Smith

• Publisher: Routledge
• Year: 2016
• ISBN:
  9781317176046
• Edition: 1
• Topic: Ciencias sociales
• Subtopic: Discriminación y relaciones raciales

The focus of this book is the idea of equality as a moral, political and jurisprudential concept. The author is motivated primarily by a concern to better understand conundrums in the justification, interpretation and application of discrimination law. Nicholas Smith aims to provide a clearer understanding of the nature of the value that the law is trying to uphold - equality. He rejects the notion that the concept of equality is vacuous and defends the idea as the proper range of moral concern. After discussing the general characteristics of the denial of equality and some types of discrimination, Smith considers prominent views on the point of equality law. He argues that human rights lawyers should step back from the business of trying to steer courts towards vague equality goals informed by conceptions of equality that are either empty or even more abstract than the notion of equality itself. If they do, Smith thinks that the meaning of 'equality' will be apparent, though abstract, and our difficulties will be shown to be, in the first instance, moral ones. These moral issues will require more rigorous attention before we can draft discrimination law which gives clear effect to a widely legitimate understanding of what it means to uphold and promote equality. This book will be a valuable resource for students and researchers working in the areas of legal philosophy, political theory, public law, and human rights law.

Chapter 1
Introduction

Equality is a core value in moral, political and legal philosophy. Morally and politically it is seen as an important part of the justification of the distribution of rights and goods, and the democratic form of government generally. It also plays important roles in other areas of moral concern. Jurisprudentially, equality has become central to modern Bills of Rights discourse and finds its most obvious role in anti-discrimination provisions in Bills of Rights and human rights legislation. The idea of equality is also used to justify or discredit a wide range of other laws, from corporate takeover codes to tax legislation. Equality is not a new idea, of course, but it does enjoy particularly high prestige in much current political and legal thought. As Louis Pojman and Robert Westmoreland, in the introduction to their anthology on the idea of equality, write:

It is one of the basic tenets of almost all contemporary moral and political theories that humans are essentially equal, of equal worth, and should have this ideal reflected in the economic, social, and political structures of society.1

The editors of that compendium cite Will Kymlicka, who has suggested that all theories of justice that are taken seriously today are egalitarian in the sense that equality is their foundational value.2 Kymlicka was, in turn, taking this idea of equality’s central role in modern political philosophy from the work of Ronald Dworkin who has, over the last 30 years or so, had a great deal to say about the importance of the idea of equality.3 The popularity of the idea, however, is not matched by agreement about what upholding that value entails in terms of the specific treatment that persons are due.

If Kymlicka is right to say that, for example, Robert Nozick’s and Karl Marx’s social theories both, in some sense, respect equality,4 we cannot know all of what is to be done to achieve a just social order simply by concluding it will be one based on equality simpliciter. Naturally, Kymlicka and Dworkin, and other writers who compare and contrast different sorts of equality, understand this. They are not suggesting that we all now agree on what kinds of equality are required in a just society. Dworkin’s own work is concerned with defending particular conceptions5 of equality rather than the plain assertion that ‘equality’6 is what we are after. He and others have written extensively about which kind of equality produces the best theory of distributive equality, political equality, equal liberty, and so on.7

Although there is plenty of disagreement about which equalities we should value and employ in the creation and maintenance of a just society, the basic egalitarianism8 identified by Kymlicka is itself a substantial value. The substance of what Kymlicka identifies as common in modern political philosophy is the requirement ‘that the government treat its citizens with equal consideration; each citizen is entitled to equal concern and respect’.9 There are theories that deny this, even if they are rare, but those who are ‘egalitarians’, in this broad sense, are in agreement at this abstract level at least. They may, and often do, disagree about some of the implications of that general belief in equal human worth but they are, nevertheless, constrained by it.

There is then, in modern social ethics, an abstract notion of equality, a belief in the equal worth of human beings, about which there is widespread (although sometimes implicit rather than explicit) agreement, and a large range of specific equalities about which there is much disagreement. These two senses capture the difference between, as John Rawls puts it: ‘equality as it is invoked in connection with the distribution of certain goods … and equality as it applies to the respect which is owed to persons irrespective of their social position’.10 Noting the difference between these two meanings of ‘equality’ helps to explain in what sense it is meaningful to refer to a libertarian like Robert Nozick or to an apparent opponent of equality like Anthony Flew as ‘egalitarians’, in the sense used here.11 Libertarians are sometimes said to eschew equality in favour of freedom but it is equality in particular instances of Rawls’s first sense that are usually thought to be in tension with liberty. It is at least rare in modern academic political argument to find a justification for the freedom to treat some as intrinsically less worthy of respect than others.

There is much debate, in political philosophy, about the implications of ‘basic equality’, to use the term Jeremy Waldron uses to refer to the abstract belief in equal human worth.12 As Waldron says:

A tremendous amount of energy has been devoted to … [equality as a specific standard] … in recent political philosophy: people ask whether equality of wealth, income, or happiness is something we should aim for; whether it is an acceptable aim in itself or code for something else, like the mitigation of poverty; whether it implies an unacceptable levelling; whether, if achieved, it could possibly be stable; how it is related to other social values such as efficiency, liberty, and the rule of law etc.13

The difficulty in sorting out which type or types of equality are morally supportable is also reflected in modern jurisprudential debates about the meaning of equality provisions in Bills of Rights. These provisions are concerned with discrimination on various grounds and, more recently, remedies for past discrimination. In the United States, the first country to have a Bill of Rights in the modern sense, the fundamental point of the equality provisions found in the Fifth and Fourteenth Amendments to the United States Constitution is now construed quite differently to the way it was 100 years ago and there is, still today, not complete agreement in the US Supreme Court about the meaning of the right. Equality provisions found in recently introduced Bills of Rights and various sorts of human rights legislation are, too, the source of labyrinthine expositions in which courts try to fathom what conception of equality or discrimination the legislature had in mind.14 There is some consensus amongst political and legal philosophers about equality as a social norm, in the sense of a basic restraint. All who take the idea at all seriously now agree that treating people differently just because of their race or sex is wrong. And while there is a strong consensus on matters of race and sex (and some of the other ‘forbidden grounds’ for discrimination that are found in modern Bills of Rights, such as religion and national or ethnic origin) that agreement entails only condemnation of ‘direct’ discrimination.

There is widespread agreement in liberal democracies that we should not have arbitrarily treated some groups of people differently in the past. That accord does not extend, in particular, to questions of remedial action in favour of communities disadvantaged by earlier discrimination. The fight over affirmative action has been bitter and divisive.15 The affirmative action debate is, however, only a part of, or sometimes a reflection of, a broader new set of difficulties we now have in deciding which differences between groups and individuals are morally relevant. These are various and complex.

The debate on gender and sex,16 for example, which raises questions about equal treatment and appropriate different treatment, is now not only about whether affirmative action is permissible. There is debate about whether it is, to make up for hostile discrimination practised by men who thought, or think, that women are inherently less capable of filling demanding professional roles. But those concerned to achieve justice for women now also argue about whether women really are just the same as men in all relevant respects. Non-sexist writers do not all think that any lack of proportional gender representation in desirable roles can only be the result of discrimination.17

Race and gender are difficult topics but they are at least matched by the issues and challenges which come under the rubric of ‘cultural equality’. The word ‘culture’ can refer to entire ways of life which, while clearly different in many respects, are, according to some, all equal in some sense. This gives rise to a number of difficult ethical questions because, first, the very existence of some cultural differences is, and should be in the view of many, doubted. While there are generalisations that people make about the behaviour and attitudes of members of various groups, for example, that are reasonably accurate, some do not seem at all plausible.

‘Multiculturalism’ as a policy gives rise to a substantial set of questions about what should or should not be made equal. Many of these questions do not as yet have universally convincing answers. And it is not hard to see why. For one thing, if a culture is a way of life – a way of doing things – then, as a factual thesis, cultural equality runs up against the very stubborn intuition that there are always better and worse ways of doing things. It is not clear in what sense these different strategies for dealing with the problems of life in contemporary society are meant to be equal. The point for now18 is simply, again, that with culture, as with race and gender, it is not always clear or uncontroversial what the dictates of equality and other relevant values are.

There is, despite the fact of many differences of opinion in areas such as race, sex and culture, widespread agreement that equality at a more abstract level is important. But there are some who think the difficulty in finding out what it is that equality requires is not just that one has to choose between different conceptions of equality, to decide what or which equality or equalities are fundamental and which incidental. There are those who think the problem is a more basic one: ‘equality’ is not a useful concept at all. Professor Peter Westen has proposed that we recognise the ‘emptiness’ of the idea of equality19 or at least the ‘derivative’ nature of statements about normative equality.20 Professor Westen argues that not only are calls for equality often elliptical but also that when the desired metric, in terms of which equality is required, is identified, the rule of distribution that is being commended can be expressed without any reference to ‘equality’. Talk of equality is not only often confusing and misleading, it is redundant. Westen is not alone in thinking that equality is a worthless concept. Other legal philosophers, including the renowned British scholar Joseph Raz, have expressed similar views.21

If one takes this criticism of the usefulness of ‘equality’ seriously, one’s starting point, in any treatment of the point and value of equality, must be its refutation. I will accordingly, in Chapter 2, first set out Westen’s thesis and then turn to a promising exploration of the point of talk about equality which was a direct response to his redundancy thesis. This is the response to Westen’s suggestion, that talk about equality is pointless and misleading, made by Jeremy Waldron, first expressed in his review of Westen’s book Speaking of Equality.22 I will agree with Waldron’s analysis and offer an expanded argument, which I think is consistent with his. While Westen has helped to identify the sources of much confusing talk about equality, his work has failed to make the distinction, made by Rawls and others, between the role played by ‘equality’ in claims for treatment made in terms of other standards, and the abstract equality expressed as the idea that we should treat people with equal concern and respect.

Demands for equality in specific contexts are often inchoate because they do not specify the measure by which they want people to be equal. Westen shows that when we know what the desired standard is, we are able to express the claim without reference to ‘equality’. But when we ask what justifies the principles Westen has liberated from their egalitarian baggage, part of the answer is, very often: equality. Equality in the sense of the ‘basic equality’ which dictates that the interests of all persons concerned must be taken into account when deciding how society is to be ordered or administered, and in morally relevant decision making generally.

Westen usefully stresses the confusing nature of much talk about equality, and while he is right to point out the manipulative uses that the vague positive connotations of the word may allow, he has not shown that ‘equality’ as a basic constraint on all rule and policy making is redundant. That notion of ‘basic equality’ is clear and has substance. There is no good reason to stop speaking of equality. Westen thinks there is because he has forgotten about half of the idea of equality – the most fundamental part of it.

The core idea of basic equality is well known, at least intuitively; we should treat people as equals. Its justification and role in social policy making are not particularly well understood. It is a very abstract idea and that has tempted some to replace it with various conceptions of equality. But conceptions of some broad notion must come from the same concept, and a clear concept of equality is missing in much recent jurisprudential writing. That concept, the idea of equal human worth, is not another conception amongst many; it is, I will argue, the concept of equality which will in turn require equal treatment or equal outcomes sometimes and permit unequal treatment or unequal outcomes at other times.

I think remembering this will help us to think more clearly about the moral importance of equality. But accepting that it cannot be reduced to a simpler, more concrete, idea that could be applied like a rule does mean admitting that equality’s conundrums will be with us for some time. It is hard to know, for example, whether treating people as equals justifies treating some differently, beneficially, when what their forbears asked for was equal treatment; and simply choosing a conception of equality which determines the matter one way or the other by semantic fiat does not solve the moral problem.

Equality as a basic constraint on policy goals is quite abstract and its implications still have to be argued about, as they of course are. A more neglected task has been the justification of the commitment to basic equality itself. I will address this issue in Chapter 3. The idea of equal human worth is of course the rallying point of our intellectual resistance to, and political struggles against, racism and sexism and the like; it is the point of a large part of the twentieth century’s political philosophising. But what supports that belief? There is an important sense in which individual humans are in fact equal. We share what John Rawls calls ‘range properties’. Human characteristics like rati...

Table of contents

• Cover
• Dedication
• Title
• Copyright
• Contents
• Preface
• 1 Introduction
• 2 Why Should We Speak of Equality?
• 3 Why Do We Value Basic Equality?
• 4 The Scope of Basic Equality
• 5 Basic Equality and Other Values
• 6 Denying Basic Equality
• 7 Discrimination and Culture
• 8 Equality’s Law
• 9 Basic Equality and Different Treatment
• 10 Affirmative Action
• Conclusion
• Bibliography
• Index