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DISCRIMINATION BETWEEN RIGHT AND RELEVANCY
5

 

M.  Vincent  van  Mechelen
July 1988 / 43.ESE


THE MORAL AND IMMORAL APPEAL TO RIGHTS IN ISSUES OF DISCRIMINATION


 

1    INTRODUCTION

Those who believe that one ought not to discriminate against an individual or group will usually agree that we also have a duty not to discriminate against an individual or group, and that the individual or group concerned has the right not to be discriminated against. Conceptually speaking, however, one could deny the existence of the right while recognizing the duty, or even the existence of both the right and the duty while recognizing a moral principle of nondiscrimination according to which one should not make an unjust distinction or an irrelevant distinction in a moral context.

There are at least two reasons why someone may prefer to speak of "a right not to be discriminated against" instead of, or in addition to, speaking of "a principle or norm that one should not discriminate against an individual or group". The first possible reason is that speaking in terms of right is more emphatic than merely in terms of should (not) or ought (not). (Therefore, arguing, for example, that animal rights do not exist is not to the point when someone who claims that animals have rights too only wants to emphasize that one ought to treat nonhuman animals capable of suffering like human beings capable of suffering.) The second possible reason is that speaking in terms of right also indicates the status of the consideration involved. When looking at a first-order normative doctrine (in a sense which I have explained elsewhere) this consideration may be a first-order reason, a second-order reason, or perhaps even a higher-order reason à la Raz 1975. And when looking, in turn, at first-order doctrines themselves from a 'meta' perspective the status of the normative considerations involved differs so much from ordinary (first-order-)doctrinal first-order reasons expressed in plain terms like should that we cannot, or can hardly, do without the language of rights and duties. So it is not surprising that people often appeal to rights in issues of discrimination, and that rights do play an important role in discussions on these issues.

The need to analyze appeals to rights in issues of discrimination is especially pressing when people disagree on the question whether they should (not), or are (not) allowed to, make a certain distinction. The most notorious controversy --also among ethical theorists-- is, then, that about 'positive' or 'reverse' discrimination. When couched in terms of rights the one party in this controversy may claim that everyone has the right to be treated as an equal or not to be discriminated against and should therefore be judged individually on the grounds of professional or other such qualifications only. The other party may claim that everyone has the right to an equal chance of receiving education, obtaining a job, etc., or even that there is a group right to an equal or proportional share of the cake, and that there should therefore be 'positive action' or ethnic, sexual or other such quotas to achieve what the individuals or groups concerned have a right to.

Another example of where appeals to rights are incompatible, so it seems, is where the one party appeals to the right not to be discriminated against on the basis of factors such as sex, marital status or sexual orientation, whereas the other party appeals to the freedom of religion and to the freedom of making distinctions enjoined or sanctioned by their religion, whether relevant or not in the eyes of others. Although the latter right is, perhaps, not a right of nondiscrimination in itself, its interpretation and force may play a crucial part in analyzing controversies of this type.

While dealing with the role of rights in issues of discrimination the purpose of the present paper is fourfold. First, it is to take a closer look at the foundations of rights which do or may play a part in such issues. I will, then, distinguish rights with nondiscrimination from rights with equality or some other regular, doctrinal value as foundation, (first-order) doctrine-based rights from metadoctrine-based rights and regular rights from corrective rights. Second, it is to consider the question whether group rights should be recognized in addition to individual rights of nondiscrimination. Third, it is to consider the question whether there is only a single right of nondiscrimination rather than a limited number of separate rights against discrimination on the basis of such factors as race, sex and religion. And finally, it is to show what bearing my analysis has on the issue of discrimination by the state and as permitted by the state.


2    DISCRIMINATING BETWEEN THE FOUNDATIONS OF RIGHTS

In theory it is possible to claim that the right or each separate right of nondiscrimination is ultimate. Such a claim, however, tends to block a further or broader discussion. This is clear when someone would claim, for example, that the right against discrimination on the basis of race (that is, of racial nondiscrimination) is ultimate. Because, why is there not such a right on the basis of sex, or if so, on the basis of age, or if so, on the basis of species, and so on? If there is a right of racial nondiscrimination because there is a right of nondiscrimination (in general), then this latter right is ultimate and the former one merely derivative. And if there is a right of racial nondiscrimination, but not of every other type of nondiscrimination, then there must be something with respect to which the distinction between specific rights and specific 'no-rights' of nondiscrimination is relevant, and then it may be this 'something' which is ultimate instead. (A no-right is the 'jural opposite' of a right in Hohfeld 1919.)

But why bother? If you believe that the right against racial discrimination is ultimate, and I believe that it is derivative, do we not agree in practice then? Perhaps. We may agree if we do and can confine ourselves to the issue of race, but the question whether we 'can' is itself at least partially normative. Thus someone claiming that the right against racial discrimination is ultimate may favor a law which forbids every form of racism by the state and by private citizens, however serious or however petty, without wondering why (all) other forms of discrimination should not be forbidden in the same way. (This is not to say that there could not be acceptable reasons to outlaw the one form of discrimination and not the other). Similarly, it is quite different to treat a right or principle of racial nondiscrimination as an ultimate right or principle in itself and to treat such a right or principle as something that ultimately enhances, say, total or average utility. A wholly utilitarian ethic does, in the latter case, make the right against racial discrimination contingent both in theory and in practice. And yet, also a nonutilitarian ethic which treats every specific right or principle as ultimate in itself does make such a right or principle more and more contingent in practice as its number of so-called 'ultimate' rights or principles increases.

To claim the existence of a right is therefore little interesting so long as we do not know the degree to which this claim is exclusive. To determine this we have to go down from the superficial claims to their roots, that is, their foundation. So far as issues of discrimination are concerned, the foundation adduced may be utility (or well-being in eudaemonistic or related terms), nondiscrimination (in general or on the basis of a particular factor), equality or personhood (or 'interest' insofar as it coincides with one or more of these values). I will not discuss utility here as it is a relatively clear value, nor will I discuss justice as a possible foundation of rights as it refers, in my view, to several ultimate principles rather than to one. Or, when said to represent a single ultimate principle, justice as such is too vague a notion to be of practical use, as a myriad of qualifying expressions, such as noncomparative justice, distributive justice, racial justice and corrective justice, testify. When I later discuss personhood this will turn out to cover normative considerations which some may prefer to call "considerations of (noncomparative/natural/political/liberal/procedural) justice". And when I later discuss the distinction between regular and corrective foundations of rights, this will turn out to cover considerations which some may prefer to call "considerations of corrective/rectificatory/remedial/compensatory justice" instead.

Here I will not deal with the question whether nondiscrimination and/or equality (or, for that matter, utility) should be recognized as values or as ultimate values. What I want to lay stress on is that nondiscrimination and equality are different values, and (if recognized) create different types of moral rights. A right of nondiscrimination is a right not to be treated differently on the basis of a distinction which is irrelevant in the context concerned. It admits of relevant distinctions which justify a different (worse or better) treatment. A right of equality, on the other hand, requires some form of equality regardless of distinctions which may be relevant to a legitimate goal. This 'equality' may be equal treatment or equality of outcomes.

Let me illustrate the difference by means of an example in the field of paid labor. There, both a woman's right of nondiscrimination and of equality demand that she should get a job, be paid the same as a man, and so on, regardless of her being a woman, except, perhaps, in a few cases when gender happens to be relevant. But the right of nondiscrimination allows that a woman does not get a certain job, and is not paid the same as a particular man, because of some relevant qualities (other than gender) having to do with the kind of job in question. The result is that, theoretically, the number of women in any kind of position may still vary from 0% to 100% without any right of nondiscrimination being infringed upon. Assuming that half of the population is female, the right of equality renders such variation unacceptable, however: equality requires, if not equality, proportional representation. From an egalitarian standpoint 50% of every kind of position should be filled by women. Of course, the implicit suggestion of those striving for equality in isolation (instead of in conjunction with relevance) is that the groups concerned also are/would be/would have been equally qualified for the jobs in question. This is an empirical assumption though which may or may not be true. It does not allow us to dispose of the fundamental difference between nondiscrimination (or relevantism) and equality (or egalitarianism).

Values such as nondiscrimination and equality, and the rights founded on them, are (if recognized) part of a first-order doctrine, rather than of a second-order doctrine or 'metadoctrine' which explicitly deals with the relationship between people and their first-order doctrine(s). Such values and rights are 'doctrinal' values and rights and should be distinguished from the 'meta(doctrinal)' value and right of personhood. By recognizing this latter right it is possible to explain why people have a right to be moral and a right to be immoral. But the right to be immoral is the right to be 'immoral' in terms of someone else's (for example, our own) first-order doctrine. This applies to anything a normative first-order doctrine may enjoin or sanction, discrimination and nondiscrimination included. From a 'meta' perspective people do not only have a right not to discriminate, but also a right to discriminate, provided that it is somehow enjoined or sanctioned by their first-order doctrine or set of normative considerations. Being enjoined or sanctioned, the action in question is unlikely to be called "discrimination" by the people discriminating though. (It is like trying to find a racist and a sexist who themselves call their action or attitude "racist" and "sexist".)

The right to discriminate and the right not to discriminate are personal rights with a second-order foundation. They derive from the same basic right as the right to live and act in accordance with one's religion and the right to live and to act in accordance with one's nonreligious worldview. This is not to say that these rights may not have, or be given, a first-order foundation too. They may rest on freedom or well-being, for instance. But if, and insofar as, they are based on such first-order doctrinal values, they are reasons of a low order à la Raz, reasons which may be easily overridden by other reasons. On the other hand, if, and insofar as, they are based on a second-order doctrinal value such as personhood, they can be construed as being of an order higher than that of any first-order doctrinal reason. The argument cuts both ways, however. (This is, again, why it is so important to go down to the basis of an ethical consideration.) Thus, those who want to give the freedom of religion the strength of a personal right must give the freedom of nonreligious belief, that is, the freedom from religion, the same strength. And those who want to give these freedoms this strength are also forced to give the 'meta' right to discriminate and the 'meta' right not to discriminate this strength.

In the first instance, foundations of rights, such as nondiscrimination, equality, freedom, well-being and personhood, are 'regular' as opposed to 'corrective'. That is, they determine what one ought to do or not to do apart from the question whether people (others or we ourselves) do or have done what they (or we) ought to do or not to do. We first have to establish the wrongness of discrimination before we can consider the question of what to do about those who have been discriminating or discriminated against nevertheless. The former issue is, like establishing the wrongness of breaking a promise, an issue of what might be labeled "regular" or "ideal ethics". The latter one is, like making up for having broken a promise, an issue of what might be labeled "corrective ethics". The foundation(s) of rights in corrective ethics may or may not be the same as that or those in regular ethics. In the event that they are the same, the distinction between the two branches of ethics is not fundamental. One need only think of considerations of corrective justice reduced to considerations of utility. The distinction does not become fundamental until one or more ultimate principles, values, rights or duties are typically remedial, or, perhaps, employed in a way typical of corrective ethics. Here one may conceive of equality instead of nondiscrimination as a foundation of rights of individuals or groups formerly discriminated against. In the next section I will discuss the question of a corrective foundation, such as equality, in connection with the question of antidiscriminatory group rights.


3    THE QUESTION OF GROUP RIGHTS

Glazer 1978 distinguishes individual rights from group rights while posing the question of 'why it is that the deprivation of individual rights on the basis of some group characteristic --race, religion, national origin-- is nevertheless treated ... as a problem of protecting the rights of an individual' (p.89). 'Can we ... solve the problem of group discrimination by using the language, and the law, of individual rights' (p.88)? Glazer assumes that the complete absence of discrimination entails a justice proportioned according to the size of each group. This is, as I pointed out in the previous section, a mistake: the principle of equality may require proportionality, but that of nondiscrimination does not, even when, conversely, discrimination will give rise to disproportionality, or to a bigger disproportionality than can be justified. Furthermore, by speaking in terms of proportionality it is implicitly admitted that the individual, and not the group, is the ultimate unit to be taken into account. Nonetheless, Glazer correctly draws attention to the fact that it may practically not be feasible to get rid of great unjust differences between ethnic or other groups without recognizing group rights.

The idea that differences or disproportional differences would be discriminatory, or unjust because discriminatory, is definitely erroneous so far as regular ethics is concerned, for any factor of distinction could be taken to establish whether a distribution is unequal or disproportional. And if every group, defined by whatever factor of distinction, had to have or enjoy the same amount of goods, jobs and property per member as every other group defined on the basis of the same factor, then every group of identical members must have or enjoy the same amount of goods and other things per member. Within such a group of which the members have all properties and relations in common one member could, in the first instance, have less than another. If there is one thing, however, which is arbitrary and irrelevant, it is such a distinction between entities that are identical in every respect. And where an entity is not identical to any other entity it follows immediately that it should not have more or less than the average for all entities if proportionality (for all factors) were really a criterion of discrimination in regular ethics. But it is not, even though it may be a criterion of equality.

The above argument does not only hold for groups distinguished on the basis of factors like race and sex, but also on the basis of factors like height, left-handedness, myopia, artistry, sociability, love of brussels sprouts, and so on and so forth. The latter type of factor is obviously not the one Glazer is thinking of when proposing the recognition of group rights. Nowhere is it proposed that good things should be distributed equally or proportionally according to people's height or artistry, for instance. Glazer clearly speaks of 'justice for minorities that have previously been treated unjustly' (p.87), and mentions race, color, religion, national origin, mother tongue and --vaguely, on page 89-- 'women and many other groups defined in various ways'. The question whether it is a minority which has previously been treated unjustly is not really to the point, however: blacks in South Africa, for instance, constitute an overwhelming majority. Moreover, when mentioning minorities Glazer would do well by including nonreligious minorities too if the list of factors or groups thus distinguished is not to be biased. But, of course, other things being equal it is easier to treat a minority unjustly than a majority; and has always been so in the past.

If group rights are accepted as a means of overcoming discrimination in the past, it is because of a deprivation in the past of individual rights which has led to backwardness or disadvantages in the present. The correction is not necessary because the share of the group (formerly) discriminated against is not equal or proportional, but because it is less than it would have been if the group (is or) were not discriminated against. It is even so much less that simply opening up nondiscriminatory opportunity will not raise the group in question. But to say that members of such a group do not have chances equal to those of nonmembers is to advocate equality, not nondiscrimination or the correction of discrimination (which, incidentally, does not prove that equal chances for everyone is not a respectable dictum).

Ironically, it is the discrimination (by nonmembers but, perhaps, also by members) which has created the kind of group whose existence is not supposed to be relevant in a world without discrimination. For the characteristic which all members of the group have in common is either relevant, and then it is relevant for each individual member; or irrelevant, and then it is irrelevant for each individual member. In both cases the existence of the group itself is superfluous. (Note that it is not the truth and relevancy of the social existence of the group which is at issue here but the relevancy of what its members have in common.) Hence, from the point of view of regular ethics the only rights of nondiscrimination which 'groups' have are rights they have because each individual member has them. But such rights are not 'group rights' in the relevant sense of the word. On the other hand, if we accept group rights on corrective, antidiscriminatory grounds, then we say, for example, that the group has the right to a certain share of the total amount of goods but without claiming that each individual member has the right to an equal share of the group's share. Because if we claimed that as well, we would not have to recognize anything else than individual, regular rights whose foundation is equality.

Theoretically, it appears to be possible to recognize group rights on regular grounds if groups are conceived of as entities in themselves. Such groups, however, do not have a skin color, political convictions, and so on, because, strictly speaking, these are characteristics of their individual members. And, we are talking about discrimination on the basis of such factors, not on the basis of factors like (group) size or (group) coherence. When treating a group as an entity and strictly confining oneself to characteristics of the group (and not of its members), 'group rights' are nothing else than a particular type of individual rights.

Although group rights of nondiscrimination (which are not merely individual rights of groups) do not exist within the purview of regular ethics, they can be defended, I believe, within the purview of corrective ethics. They can be better defended (1) as the discrimination in the past (up to the present day) has been more iniquitous, and (2) as it is more difficult for the members of such a group to achieve what they could have achieved if the group they belong to had not been discriminated against in the past. It is probably impossible to establish the latter thing in practice. If so, we must start out from the presumption of equality and assume that the group in question would, on average, have fared not worse and not better. (For example, that the average income of people of race A is the same as that of people of race B.) But even though we look at the group's 'right to an equal average' then, equality as such is not the value at issue here. (Note that this 'equal average' is not the average of groups regarded as entities.) Equality as such is a value of regular ethics which (if recognized) also applies in a situation where it can be proved that a group would not be capable of attaining the same level of, say, prosperity as other groups even in the absence of any past or present discrimination.


4    ONE REGULAR, DOCTRINAL RIGHT OF NONDISCRIMINATION

By right of nondiscrimination I understand primarily a right founded on the moral principle of nondiscrimination. So far as a moral agent is concerned it is a right not to discriminate which is at once a duty not to discriminate (on the basis of an irrelevant factor). This moral right is therefore a mandatory 'half-right'. Moreover, given that the moral principle of nondiscrimination contains the principle of discriminational relevance as an ultimate normative principle, the right is both a right (and duty) not to discriminate in favor of and not to discriminate in disfavor of an individual or group. It is, then, not a distinction as such which defines what is favor or disfavor in this sense, but an irrelevant distinction, or the degree to which it is irrelevant.

So far as a moral recipient is concerned my 'right of nondiscrimination' is the right not to be discriminated in disfavor of and the right not to be discriminated in favor of. In this respect, it is therefore the same as a so-called 'right of freedom from discrimination'. It may seem odd to speak of "a right not to discriminate" and "not to be discriminated in favor of", for discrimination is often associated with discriminating against an individual or group exclusively. The reason is that doing someone a favor is to do something kind for someone and as such an expression of beneficence or benevolence. And yet as discrimination (in a moral context) discrimination in favor of someone is not beneficence but drawing an irrelevant distinction between one moral recipient and the other. In a situation where a particular good is scarce, discrimination for the one is even automatically discrimination against the other. Especially in such a situation people speak of "preferential treatment" or "favoritism". Preferential treatment is wrong as a form of discrimination in everything but the narrowest sense of discrimination. Hence, it is acceptable to claim that there is also a right not to be discriminated in favor of, even though the meaning of this right may merely be that of an emphatic should.

The duty not to show favoritism and not to discriminate against anyone or anything is, as it were, a duty to be moral. The ethical right and duty not to indulge in favoritism or depreciative discrimination is part of the same, doctrinal right-duty constellation as the ethical right not to be discriminated (in favor of or) against and the ethical duty not to have oneself discriminated in favor of (or against). To recognize the moral principle of nondiscrimination, and to believe that it makes sense to speak of "rights" and "duties" in addition to speaking in terms of should or ought, is to recognize all these rights and duties; not just one or two of them. On the other hand, in an ethical doctrine with more ultimate values than nondiscrimination alone, they are prima facie rights and duties. Thus, in combination with the doctrinally grounded duty not to be maleficent and right not to be treated malevolently (because of some principle of well-being) the individual rights and duties anchored to the principle of nondiscrimination may receive different weights on further consideration.

Being founded on the moral principle of nondiscrimination the right of nondiscrimination and all its derivative rights are regular rights (part of regular ethics) and (first-order) doctrinal rights (part of an ethical first-order doctrine). These rights, together with the correlating doctrinal duties, forbid discrimination for or against something on the basis of whatever factor. Some might claim, however, that the principle of nondiscrimination is far too broad, or that there is only a limited number of specific rights of nondiscrimination people may appeal to in morality. They might deny the existence of a principle of nondiscrimination and say that racism is wrong because of a principle of racial nondiscrimination or justice, that sexism is wrong because of a principle of sexual nondiscrimination or justice. They might argue that what counts is whether a characteristic has been chosen of one's own free will or not.

But, while race and, let us assume, sex are not factors of choice --although sex change is possible-- what about something like religion or other ideological systems? People can certainly change their religion, or abstain from religious worship. Does this imply that making an irrelevant distinction in a moral context on the basis of someone's religion would not be discriminatory? No, it would be. It is only if people cannot, or can hardly, change the quality on the basis of which others make an irrelevant distinction, that the discrimination is extra painful when it is to their disadvantage. Conventional thought notwithstanding, it is sexism both not to hire a woman because she is a member of the fair sex and not to hire a man because he refuses to wear a tie at work (while not requiring the same of a female employee), but the woman has virtually no choice, whereas the man in this example has.

The freedom of choice involved does not determine whether a distinction is discriminatory or not. It does not even determine how discriminatory a distinction is, because this is a function of its irrelevance. In spite of this, the freedom of choice involved may determine the gravity of an irrelevant distinction in eudaemonistic terms. This is also Singer 1978's argument in Is Racial Discrimination Arbitrary?: "Race ... is not something that one chooses to adopt or that one can ever choose to give up ... This makes racial discrimination peculiarly invidious" (p.195). But Singer continues: "Why pick on race? Why not on whether a person was born in a leap year? Or whether there is more than one vowel in his surname? All these characteristics are equally irrelevant to the undesirability of pain from the universal point of view" (p.198). (Obviously, that I quote Singer here does not mean that I would agree with the reduction of discrimination to a question of pain or interest.)

In All Animals are Equal Singer 1979 reminds us that we 'should always be wary of talking of "the last remaining form of discrimination" (p.416). There does not seem to be an end to the number of oppressed groups who have campaigned vigorously for nondiscrimination. Singer mentions black people, Spanish-Americans, gay people and women, with animals at the present end of the road (except that their campaign is led by humans combating speciesism). Granted that animals, as sentient beings, belong to the domain of ethics, they have the ethical right not to be discriminated against. But this right is a doctrinal right anchored to the value of nondiscrimination; ultimately to the value of relevance in conjunction with well-being. As a doctrinal right it is also easily dispensable: the value of nondiscrimination itself suffices, although the language of should and ought may be less emphatic. Those who find the notion of animal rights unacceptable have either a narrow conception of morality (confined to persons or human beings) or a one-level conception of rights which lacks the distinction between an ethical right with a first- and with a second-order foundation. So far as the latter type of right is concerned, the idea that a known nonhuman animal on Earth would have it appears, indeed, to be preposterous. But the ethical rights against discrimination which members of racial or ethnic minorities have as members of racial or ethnic minorities, homosexuals as homosexuals and women as women are as doctrinal as those of nonhuman animals.

Raz 1986 suggests that 'most rights against discrimination deal with discrimination on religious, ethnic and racial grounds, all of which are associated with membership of groups with their own distinctive culture' (p. 254). "Discrimination on grounds of religion, nationality or race", Raz says, "distorts [the] ability [of individuals] to feel pride in membership in groups identification with which is an important element in their life. ... The important point is that the right is meant to foster a public culture which enables people to take pride in their identity as members of such groups". In my opinion, however, rights which are 'meant to foster public culture' are, ultimately, not rights of nondiscrimination. Such a justification of the right not to be discriminated against is as contingent as any utilitarian justification.

I venture to argue that it does not foster public culture at all when people take pride in their identity as members of a majority or minority race --and I say "race", not "ethnic culture" or "speech community". Our race is not part of what we have individually or collectively accomplished whatsoever, and it would serve the unity of a country, for instance, if people did not take pride in, and associate themselves on the basis of, something utterly irrelevant to citizenship such as their race. And yet, even if this is correct, they still have the right not to be discriminated against on the basis of their race. It is precisely because people are (and have been) discriminated against on the basis of an irrelevant factor like race that a racial identity is forced upon them, that they are (and have been) continually reminded of their being different, and that, despite all humiliation, they have started to feel proud of this identity, rightly or wrongly so. If the majority of a country proceeded to discriminate against tall people in all possible ways, tall people, too, would become 'members of a group', would acquire a social identity and would start fighting their oppression. They might develop a 'pride of height' as well, even though a tall, medium or short height is nothing to be proud of. Whether or not this actually happens, or has happened, people do have an ethical right against discrimination on grounds of height, in spite of what Raz and others may claim. (Raz admits that the argument does not apply to sexual discrimination. Would it, to mention another example, apply to age discrimination?)

Those who believe in only a limited number of specific rights against discrimination (or of nondiscrimination) seem to confuse regular ethical considerations and corrective ones. Within the purview of regular ethics there is only one doctrinal right of nondiscrimination whatever the factor of distinction may be. From this one right an unlimited number of lower-level rights may be derived, each corresponding with a different factor of distinction. Within the purview of corrective ethics, however, there are no more and no fewer rights against discrimination than there are or have been specific forms of discrimination. Rather than distorting identification with other members of the groups in question, these forms of discrimination may be the very reason that people have started to identify with other members of these groups even in contexts in which membership of such groups is irrelevant. This is precisely what the people discriminating against them (and for them) do too. In order to counterbalance these past and/or present manifestations of discrimination, or to build in an extra safeguard against them, it may be necessary or sensible to emphasize several specific rights against discrimination, like those on the grounds of race, descent, nationality, language, sex, sexual orientation, marital status, age, denominational belief and political persuasion. Nonetheless, the separate rights of nondiscrimination thus limited to a particular set of factors of distinction are corrective, not regular, rights of nondiscrimination. As to the regular right of nondiscrimination, there is only one of it: the universal right of nondiscrimination valid for every factor of distinction.

When distinguishing first-order from second-order doctrinal considerations it is, of course, also possible to give the universal right of nondiscrimination a second-order foundation. But --again, the justification cuts both ways-- it is then a twin-right of the right of discrimination, that is, the right to discriminate and to be discriminated against or in favor of. From a second-order standpoint everyone has the ethical right to discriminate or not to discriminate for or against something on any grounds. But one should keep three things in mind. Firstly, that the right does not allow of interference in other people's affairs; and that this interference also concerns the use of means which are, from the same second-order standpoint, not one's ethical property, or which ethically belong to others (as well) who do not assent to such use. Secondly, that the right is not some kind of doctrinal option-right, but that what is considered 'discrimination' by some, or by all, must be expressive of a lifestyle connected with a particular set of considerations, such as a religious or political ideology. (I use ideology as an umbrella term without any unfavorable connotation.) Perhaps, this second condition is of little or no practical significance, when a first-order doctrine cannot even be required to be consistent; and when what is or is not discrimination must be confined to the sphere of one's own person or group anyhow. The third thing one should keep in mind is that the right is a right of persons as persons, not as citizens. The question whether citizens or the state should be allowed to discriminate on the grounds of ethnicity, descent, sex, age or any other factor, we will discuss in the last section.

Although one may, from a 'meta' perspective, have the right to discriminate (provided that one does not infringe someone else's property), an appeal to this ethical right to discriminate as one thinks fit, is immoral; that is, immoral from a regular, doctrinal perspective. If this perspective is to be adequate, it must encompass one normative principle of discriminational relevance or one moral principle of nondiscrimination. To claim this though is to take on a specific normative first-order position. Even if valid, this claim is not a refutation of the argument that there is a 'meta' right of discrimination, which emerges when taking on a normative second-order position. It is therefore worth our while to consider the general impications this has with regard to the role of the state. For the state is the outstanding example of an organization relating to persons, groups of persons or communities who do or may adhere to dissimilar first-order doctrines.


5    THE PERSONAL RIGHT TO DISCRIMINATE IN POLITICS

If the existence and authority of a state is to be justifiable from a 'meta' perspective, that is, from the perspective of people's personal rights, then it should at least base its actions on assumptions which do justice to what people could have, or never would have, decided in 'free' negotiations. (Free not in such a sense of socially independent that none of us is free, but in a sense of independent from outside domination in which all of us can be equally free.) But what is it that we could have or never would have) decided as persons? It stands to reason that in the process of negotiations between free people or groups of people (such as parties or communities) we could decide to sacrifice some of our ideals for political reasons as part of a deal in which every person (and, indirectly, every group of persons) has an equal say. Should we, then, give in with respect to the principle of nondiscrimination, however, and if so, how far can we go? Of course, so far as only this moral principle is concerned, we should not give in, but our considerations are of a wider ethical and political nature now.

In the event that we do not yield at all with respect to the principle of nondiscrimination this does not mean that discrimination is made impossible altogether, since other people are still allowed to make whatever sort of distinction they like on their own premises. In the terms of Dworkin 1977 (p.276) it may be our 'external preference' to make that impossible as well. But we would have to pay for this in ideals, that is, we would have to yield with respect to one or more other normative principles. (Unless, of course, we could just convince the others, but such an assumption explains away all political problems.) Supposing that we leave others free to discriminate in private, what is the political significance of our refusal to yield at all? Evidently it means that we abstain from participating or cooperating with a state which discriminates on the basis of any factor in a way which offends against the moral principle of nondiscrimination. At present though, such a stance does not seem to be practicable, for I do not know of any country which does not offend against this principle.

Ethnic discrimination is a plain example when thinking of countries which do not grant the legal rights of citizenship to people because they are members of a particular ethnic group (majority or minority), even though the group has always lived in the country in question, or has lived there for generations. Naturally, to grant certain rights of citizenship to the members of one particular ethnic group exclusively amounts to exactly the same. Another plain example is sexual discrimination. Although there is hardly any polity left in which women, unlike men, do not even have the political right to vote, there is, on the other hand, hardly (or not?) any country which does not discriminate between male and female citizens. This is not to say that every distinction must be irrelevant and discriminatory. But what to think about countries in which conscription (into what are, or could be, either armed or unarmed forces) is applied to males exclusively, in which a woman never manages to become president, premier or a minister, in which a woman becomes head of state by default only (because there is no male heir to the throne), in which boys are not permitted to marry at the same age as girls, and so on and so forth? As the Universal Declaration of Human Rights testifies, it is still widely held that all sorts of discriminatory distinctions can be drawn in political declarations and in the law with impunity. They all give rise to legal rights to discriminate, not only for the benefit of private citizens but also for that of the state itself.

The second clause of Rawls 1971's second principle of justice reads: "social and economic inequalities are to be arranged so that they are ...(b) attached to offices and positions open to all under conditions of fair equality of opportunity" (p.302). Apparently, this condition is not fulfilled in monarchical polities, which reserve public offices and incomes for members of an elect group of one or a few families. In traditional terms this is injustice; in more up-to-date terms it is favoritism or aggrandizing discrimination on the basis of family-membership. Nepotism is a form of such discrimination in both monarchies and republics. Legal discrimination on the basis of family-membership may also be found in the laws regulating inheritance, when they draw irrelevant distinctions between personal or individual property being bequeathed to a relative (such as a sibling or a cousin) and to a nonrelative (such as a partner or a bosom friend one is or was not married to).

Altogether, the current list of dicriminatory state laws and practices is too long to admit of enumeration. A selection thereof is destined to remain arbitrary to a certain extent. Even in the event that we agree that all the distinctions I have mentioned are discriminatory, we may still attach a different weight to their significance. It is one thing not to have the legal right to vote in an election, and quite another not to have the legal right to be considered for the office of head of state. Whether a person would, in a hypothetical original position, ever be willing to participate in a system which discriminates in any of the above ways, is largely a question of that person's total set of doctrinal considerations. Such a person may decide to say "yes" in order to realize other ideals judged to be of greater weight. Yet, however much they may be part of a contract (hypothetical or not), a discriminatory law and a discriminatory legal right remain immoral.

Is there any essential difference between discrimination by the state and by private organizations using public funds? I think not, for in both cases it is public funds which are used. The essential difference is between private organizations or persons using private funds and organizations or persons using public funds. In the former case there is an immediate second-order doctrinal foundation for the legal right to discriminate; in the latter case the legal right must be thought of as the result of negotiations. Since funds does, in the first instance, not denote legal property but ethical 'meta' property, the question of which funds are 'private' in the second-order ethical sense can be crucial. Even religious institutions, for instance, do not fall from heaven like manna. When a religious board of education refuses to hire, or insists on firing, married women and unmarried homosexuals, they have the 'meta' right to do so, provided that the school system concerned has been wholly paid for and is wholly maintained by funds they own because of their 'meta' property rights. But legal property obscurely fuses together ethical and unethical rights, and even if the school system in question has been paid for and is maintained by private legal funds, this does not prove that the board of education have the 'meta' right to discriminate. I cannot deal with this question in any great depth here, but it should be clear that the distinction between private and public legal funds does not have much justificatory power, apart from the fact that it does not have any doctrinal justificatory power to start with.

Questions of discrimination are purely private when no personal rights other than those of persons who have freely chosen to be involved are infringed upon in the second-order ethical sense. These questions need not become the subject of political debate. (It goes without saying that they will always remain the subject of moral debate.) It is all other questions of discrimination which must become the subject of political debate so long as there is a difference of opinion about which distinction is discriminatory and which one is not, and so long as there are people who do not care about a distinction's being discriminatory. In an existing state (rather than in a hypothetical setting where people are not yet citizens of any state) the latter type of question will have to be subjected to the rules of a democratic decision procedure in which every person is treated like every other person. Does this imply that every form of discrimination by the state or with public or mixed private-public funds is negotiable? I fear that those supporting majoritarian democracy must admit that it is, for even constitutions can be replaced or amended by something like a two-third majority --unanimity of all persons is seldom or never required in politics. But should we stick to a majoritarian system and resign ourselves to its rulings through thick and thin? Should we accept every form of discrimination by the state as inevitable when a majority of the population does not care about it or wants it, and is not willing to make concessions (even not in exchange for something else)?

So far as the principle of nondiscrimination is concerned, it is harder to accept a form of discrimination as the distinction drawn is more irrelevant and/or as it is more plausible that it is irrelevant. Although this is an important consideration, a question of discrimination is still a matter of degree on this view. It is not a matter of degree anymore when a person, as a person, is incapable of accepting a certain type of discrimination by the state regardless of the extent to which the distinction in question is irrelevant or maleficent. There is one such type of discrimination, I believe. It is not racism or sexism or any of these forms of discrimination as forms of discrimination, for they concern us as human or (socio)biological beings, not as persons in the strict sense. When a racist or sexist government refuses equal democratic rights of citizenship to people on the basis of their skin color or gender, its discriminatory attitude and conduct are an infringement on their personal rights in addition to flouting their doctrinal rights against discrimination. In such a case a community or group of people of a certain race or gender --only women, so far as I know-- do not even have a chance to participate in a (majoritarian-)democratic decision process. And yet, the fact that the distinction drawn is racial or sexual, or even discriminatory, is not at issue here; what is at issue here, is that, in the first instance, no person must be barred from having an equal say in politics. Only in this way is it possible to justify the existence of the polity itself. What type of discrimination do I have in mind then?

Throughout this article I have used the term in the sense of an entity that has a unique relationship with a certain 'doctrine', especially with a certain normative doctrine or morality. It is the realization of this relationship which makes a human (or other) being into a person, instead of merely a sociobiological or sentient being. The fact that someone adheres to a particular doctrinal system, that is, someone's personhood, provides the foundation of this person's personal rights. To sever one's ties with such a system, with every such system, or to ignore them, is to relinquish the very claim to be regarded and respected as a person. Therefore, it is, in my opinion, not possible for a person as a person to treat the doctrine espoused as merely another part of the trade-off. Ethically speaking, it cannot be assumed that one would ever agree to the establishment of a state which discriminates against one's (first-order) doctrine as a doctrine, that is, against one's doctrinal convictions as such. These personal convictions may be political or apolitical; religious, nonreligious or antireligious; humanistic, nonhumanistic or antihumanistic; or whatever.

There is hardly any country or Swiss canton left where women, unlike men, or members of certain racial groups, unlike those of the race in power, do not formally possess the basic rights of citizenship, such as the right to vote in democratic elections. We may expect that this will be a thing of the past relatively soon. On the other hand, there is --so far as I know-- not one country in the world which does not discriminate on the basis of religion or on the basis of a party-political ideology. The latter countries are usually Marxist-Leninist, the former monotheistic. Why discrimination? Because in all of them the state is somehow used as an exclusive instrument for the imposition, perpetuation or advancement of a particular (kind of) denominational or political body of thought which is not that of all citizens, while the context of the state is, by its very nature, one which involves all citizens. By imposing, perpetuating or advancing the ideology of one particular group of citizens (even when this is the great majority), the state treats this ideology with special favor or partiality to the correlative neglect of the other or all others. It thus discriminates between believers and nonbelievers, adherents and nonadherents, (party-)members and non-(party-)members.

Ideological discrimination by the state may consist of not much more than partial propaganda and a partial selection of state symbols and special days. Examples are, besides communist symbols and national days, Christian, Islamic or general monotheistic symbols and holidays or days of rest. (Ideological mottoes on state property, money included, are such symbols too.) The most serious cases of discrimination by the state on the basis of denominational belief are, probably, those countries which have an established religion. (The question whether a majority of the population has voted for or wanted such a system does certainly not determine whether it is discriminatory or not --Nazi Germany may be a reminder for those who naively entertain a majoritarian ethic). It is ideological discrimination by the state (and by, perhaps, a majority of the population) which a person can never look upon as merely an unfortunate result of the political bargaining process between free and responsible people. The right to discriminate between first-order political, religious or other ideologies may be borne by private citizens and organizations, it cannot be borne by the state. The first-order doctrine of each person or group of persons that dissents has to receive an equal material and symbolical treatment. The very meaning of each person's personhood is precisely provided by a doctrinal system of normative considerations.

Although a state may have the right to pursue certain conceptions of the good, even when the distinctions made are considered discriminatory by some people, it is the state's duty to continue to recognize people's personal rights. This now includes their right not to be discriminated against on the basis of their (first-order) ideological persuasions. And this includes the immorality to discriminate on the grounds of ideology, even when it is not directly between citizens in practice, but in the state's symbolism and media. The appeal to a right of the majority or any other group to make one religious, atheist or (party-)political (kind of) ideology official for a whole nation is not only immoral, in a society which is not completely homogeneous --and which one is?-- it implicitly assumes that all members of the ideological group discriminated against are willing to abandon an ideal which constitutes the very reason for being a person in the first place. However far state perfectionism may be allowed to go, it degenerates into totalitarianism when going this far. With regard to our first-order political, religious or other ideological convictions the state must be even-handed between the rival forms of doctrinal symbolism and socialization. Every appeal to the right not to be discriminated on these grounds is both morally and politically justified.


 
 

REFERENCES

Dworkin,R.(1977), Taking Rights Seriously, London: Duckworth
Glazer,N.(1978), Individual rights against group rights, in E.Kamenka & A.Erh-Soon Tay (eds)(1978), Human Rights, London: Edward Arnold, pp.87-103
Hohfeld,W.N.(1919,1923), Fundamental Legal Conceptions, New Haven, Conn.: Yale University Press
Rawls,J.(1971), A Theory of Justice, Oxford: Oxford University Press
Raz,J.(1975), Practical Reason and Norms, London: Hutchenson of London
Raz,J.(1986), The Morality of Freedom, Oxford: Clarendon Press
Singer,P.(1978), Is racial discrimination arbitrary?, Philosophia, Vol.8, Nos 2-3, November 1978, pp.185-203
Singer,P.(1979), All animals are equal, in T.L.Beauchamp & N.E.Bowie (eds) (1979), Ethical Theory and Business, Englewood Cliffs, N.J.: Prentice-Hall, pp.416-8





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