- 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.
- 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.
- 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 had not been discriminated against. It is even
so much less that simply opening up nondiscriminatory opportunities 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.
- 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 implications 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.
- 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 against 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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