You are on page 1of 63

LAWS 20102: Jurisprudence

Iain Brassington
CSEP/ iSEI/ School of Law
19.iii 23.iv.15

A Starting Point
Lets take as a starting point that
discrimination is wrong.
That is, treating people differently because of
their sex/ ethnicity/ sexual orientation &c is not
morally defensible.

This would explain things like nondiscrimination laws.

They would appear to have a good moral

A Starting Point (2)

After all, it is a central tenet of modern
societies that each person, qua person, is
of equal moral value.
As such, each has an equal status before the

It doesnt follow from that that the law

ought to legislate against discrimination
but there would seem to be a good moral

However, it may be easy enough to pick
holes in this basic account.
Go to any public building: there will be places
where men cant go, and places where
women cant go.
Is this discriminatory?
In one sense, perhaps.
But not in another sense. It would seem strange to
say that there is anything wrong with such a policy.

Discrimination (2)
So maybe we need to refine our definition
a little.
Maybe we could distinguish between just and
unjust discrimination.

Alternatively, discrimination might turn

out to mean differential treatment of one
person and another for morally irrelevant

Discrimination (3)
On this understanding, sex-segregated
changing rooms may be justified.
Race-segregated changing rooms wouldnt
Neither would sex-segregated equipment in
the gym.

So, in most cases discrimination is

shorthand for unjust discrimination.
Justice would be determined by moral

Discrimination (4)
Take it as read that there is a moral
obligation not to discriminate, then.
Back to the question: does it follow that the
law ought to enforce non-discrimination after
It might have a reason to do so, but it might
have a reason not to, too.
There might be concerns about liberty: the
law also has a reason to protect that.
Millian concerns

Discrimination (5)
Imagine that I own a fish-and-chip shop.
Imagine also that I happen to be racist.
I make it known that I will not serve or employ
members of some particular ethnic group.
Should a member of that group attempt to buy
food from me, I (politely) refuse, and ask them
to leave.

Is, or ought this to be, the laws business?

The Argument from Liberty

If youre of a libertarian mindset, there
might be no place for the law in this.
Why not?
Maybe a version of the Harm Principle would
explain that.
I have the liberty to live my life according to my
own precepts, unless another is harmed.
There is no obvious harm to anyone (except
Its private property

The Argument from Liberty (2)

What about protecting others liberty?
They still have a right to disapprove of me!
Its hard to see how theres a defensible right
to buy fish and chips
Besides: the right to buy fish and chips isnt
really violated here
There certainly isnt a right to buy food from me!

Would there be an
analogy in this reallife case?
Sincere belief on the
part of the B&B
No right to access
No harm done
Private property
etc, etc

Legal Intervention
The fact that the law might intervene in
cases like this isnt going to tell us that the
law ought to intervene.
So weve still got that question to answer.

Might the law as it stands treat some

people unjustly simply because of moral

Legal Intervention (2)

But the libertarian concerns may not be
the only ones.
Is the conception of harm too narrow?
And does it matter that theres no (explicit)
right to access a service?
We might think that theres an implicit right,
and that I would be unilaterally denying that.
That is, Id be overstepping my place.

Positive Discrimination
What, then, are we to say about positive
These are policies that, in the context of a
given decision, engineer advantage to Smith
over Jones.
This may be because Smith is a member of
some historically marginalised group.
Still: is this unjust? (Jones might think so!)

Positive Discrimination (2)

Well tread positive discrimination,
affirmative action and so on as
Working definition: laws, policies and
guidelines intended to end and correct for
the effects of a specific form of
This may be based on sex, ethnicity, sexuality,
disability, class, and so on.

The Puzzle
So heres a question.
Granted a supposition that a just law
would be colour and sex blind (in most
cases), is it ever compatible with justice
for certain people to benefit from unequal
If so, under what circumstances?

The Puzzle (2)

The dilemma is that to eschew (say)
preferential hiring is to permit
discrimination to exist but to use it is
also to discriminate.
But some might deny that the puzzle is a
puzzle at all.
Iris Marion Young thinks that it might be more
productive to ditch the language of
discrimination here.

The Puzzle (3)

For her, if we talk in terms of oppression
rather than discrimination, then we dont
have to worry that affirmative action
perpetuates something its supposed to
Discrimination is not the only or primary
wrong that [some] groups suffer. Justice, p

The Puzzle (4)

If this is right, we have a way to sidestep the
problem: affirmative action is counteroppressive.
But much might depend on language here .
[M]ost processes that would qualify as oppressive in
Youngs account involve group discrimination.
Because oppression is rarely universal, the relevant
oppressive institutional processes will involve
differential treatment of different people and, thus,
qualify as discriminatory relationships. (LippertRasmussen, p 51)

Another worry: might laws designed to
promote members of some disadvantaged
group lead to tokenism?
Might we end up staffing boardrooms with
women/ ethnic minority candidates because
theyre women or members of ethnic
minorities, rather than because theyre any

Tokenism (2)
Indeed, this might undermine the
desirable end were trying to achieve, no?
For example, it might create resentment.
And a person who is wholly a token might
make the world less good than it could be.
Would you want to be operated on by a
tokenistically-chosen surgeon, or the best

Tokenism (3)
This is possible, but not a certainty.
Take the low number of women represented
in boardrooms or the judiciary, for example.
It is possible that there simply arent any
suitably able women out there
but it hardly seems likely.

Besides: practical (rather than latent)

ability is linked to experience, and noone
is experienced when they first get a job.

Tokenism (4)
If the reason why members of group x do
not feature in profession y is partially
attributable to discriminatory traditions,
then members of x may suffer an injustice.
Thus even if (mirabile dictu) there are simply
very few women able of presiding over the
Supreme Court at the moment
we might still have a moral reason to invest
in programmes to correct this.

Tokens, or Figureheads?
Theres also a concern about the power of
Theres a number of stereotypes that help
form our mental image of what a particular
role demands, and what a person filling that
role is like.
Often, these are quite rigid and value laden.
Chefs and doctors are male, cooks and nurses
female; chief executives are white, athletes

Tokens, or Figureheads?
The problem with this is that people may
begin to internalise those stereotypes, and
then to live up to them
Cordelia Fine gives examples of women being
turned away from STEM subjects because
theyre not feminine and so their being a
male domain becomes a self-fulfilling

Women and Maths

(Fine provides case studies where
womens performance in maths tests
changed according to what theyd been
told previously about supposed
neurological differences between the
(The same kind of concern might apply

Tokens, or Figureheads? (2)

Again, this might give us a reason to
wonder whether its justifiable to target
government policies towards different
This may be based on sex, race, class, or
something else.

The general point would be that theres a

social good to be served by shattering the

Institutional -isms
This might be an important consideration
when it comes to problems of how to solve
institutional racism/ sexism/ classism etc.
Social or internalised pressures might lead
certain groups to be disadvantaged at time t;
The absence of members of those groups
might help reenforce those pressures at t+1,
thereby generating a circle.
PD might help break that.

Who Loses Out?

If penalising people for sex/ ethnicity/
class is wrong, then arent we at risk of
compounding the wrong by penalising the
But does affirmative action actually penalise
It might lead to a loss of privilege but that
might not really be a penalty
although, of course, it might feel like it!


The Duties of the Dominant

It is arguable that people who have
benefitted from unearned advantage have
certain duties.
Imagine that youre in a casino and you
benefit from a crooked croupiers actions.
If youre ignorant of this, you mightnt have
any duties; but this changes if you become
aware of it.

The Duties of the Dominant (2)

This may mean that theres some duty of
compensation owed.
But its not that straightforward.
For example, as a white, middle-class, ablebodied, straight male, I might benefit from all
kinds of hidden structures, and might know
about them, and might disavow them
but it doesnt follow that I can do anything
about them.

The Duties of the Dominant (3)

For example, You are structurally
disadvantaged; I am not; have 10
seems to be absurd and the wrong way to
solve the problem.
And if Im benefitting from a structural bias
in my favour, then there might not be
anything I can do to stop benefitting
Nothing thats not supererogatory, anyway:
and justice cant demand the supererogatory.

The Duties of the Dominant (4)

So its maybe not a matter of restitution.
But there might still be duties to support
things like affirmative action.
Might I have a duty to contribute to
dismantling the system?
Maybe: but would that improve others lot, or
simply diminish my own?

Is Justice Really the Thing?

Avery Kolers suggests that an appeal to
solidarity will fill the gaps better.
The concern here is with inequity.
Inequities of social or distributive justice occur
when just institutions operating justly tend to
disfavour particular persons on the basis of morally
arbitrary features: for instance, health gradients
persist, or a particular race is overrepresented
among the least well-off cohort, or the best-off
cohort tends to have a disproportionate say in
political outcomes. (p 431)

Is Justice Really the Thing? (2)

What is needed here is an appeal to
Moreover, by hearing out those who have suffered
inequity and taking their side, solidarity expresses that
this treatment is inequitable, and hence wrongful, and
rejects the assertion that such inequity is tolerable. It
therefore raises up the victims, affirming their equal
status. (ibid)
which, in a way, seems to be what Dworkin was
talking about in Sweatt.

In Real Life
Suppose that members of some group G
are underrepresented in some forum.
Eg black South Africans in important public
roles post-Apartheid
BEM people or women in Parliament
Women in academia

PD might be useful to help redress this.

In Real Life (2)

How might this work?
Wed have to work out what we mean by
Does the number of members of G at a given time
really indicate underrepresentation?
Does it really matter if MPs dont look like the
population? (What does representation mean?)

and what the corrective is.

How do you accommodate educational deprivation
in SA? Seems strange to parachute just anyone
into the highest roles!

In Real Life (3)

Consider the case of academia.
Noted problem with women being sidelined/
not being heard in Q&A, etc.
One possible method: specify particularly
woman-friendly paper policies!
Might this be a bit clumsy, though?
How would we know when enough has been
Preaching to the converted?
But would it be unjust, notwithstanding all this?

Dworkin on Real Cases

Sweatt (1945)
Sweatt was a black man who had been
refused entry to the University of Texas to
study law.
State law stipulated that only white students
could attend.
This was declared unlawful under the 14th
Amendment (the Equal Protection clause).

Dworkin on Real Cases (2)

DeFunis (1971)
DeFunis was a Jew who was refused entry to
the University of Washington to study law.
DeFunis grades were good enough to mean
that he would have been admitted had he
been non-white.
This was because UW had a policy of positive
discrimination in place.
DeFunis never made it to court but we might
still speculate about whether he had a case.

Sweatt and DeFunis

On the face of it, there does seem to be a
similarity between the two cases.
Both men were refused entry to law
school, apparently because of their
If this was unjustified in Sweatt, would it
not be in DeFunis as well, and for similar
Dworkin isnt so sure.

Equal Protection
What does the equal protection clause
actually demand?
Equal treatment or treatment as an equal?

Imagine you have two children

One is dying from an illness; the other is
uncomfortable. Who gets the medicine?
Could you decide by tossing a coin?
They might be treated as (moral) equals, but
this doesnt mean equal treatment.

Equal Protection (2)

This, Dworkin thinks, is enough to show
that the right to treatment as an equal is
The right to equal treatment is derivative.
In some cases, the two will match; in others,
they wont.

Sweatt and DeFunis (2)

So heres one way to distinguish the
All universities must discriminate on some
grounds (intelligence, race, whatever). This
will put some at a disadvantage.
DeFunis was not disputing that there may be
some principle of discrimination.
A policy that favours the intelligent may be
defensible on the grounds that it serves some
wider concern.

Sweatt and DeFunis (3)

Much the same could be said of the
University of Washington.
There must be some way to sort students.
Having preferential access for some students
may serve some desirable social end.
Therefore we might admit that DeFunis
suffered, but that this was a price worth
paying for some greater good.

Sweatt and DeFunis (4)

Thus [t]he disadvantage to applicants
such as DeFunis is a cost that must be
paid for a greater gain; it is in that way like
the disadvantage to less intelligent
students that is the cost of ordinary
admissions policies

DeFunis did suffer from the Washington policy
more than those majority applicants who were
accepted. But that discrimination was not
arbitrary; it was a consequence of the
meritocratic standards he approves. The Equal
Protection Clause gives constitutional standing
to the right to be treated as an equal, but he
cannot find, in that right, any support for his
claim that the clause makes all racial
classifications illegal. (TRS, 9.2; modified)

Sweatt and DeFunis (5)

Case closed?
This does leave us with a puzzle. Dworkin
recognises that, if its really that easy, its
not obvious why so many lawyers were
willing to represent DeFunis.
So it looks like theres more to the story.

Sweatt and DeFunis (6)

For Dworkin, there are two ways in which
we can say that a community is made
better off by a policy.
In the utilitarian sense, it is better off iff the
average or collective welfare is improved,
even if some individuals are less well-off.
In the ideal sense, it is better off because it is
made more just or more morally praiseworthy
in some way, irrespective of welfare concerns.

Ideal Arguments
The UT cannot make an appeal to an ideal
argument to defend its policy of
It does not serve any plausible theory of

The UW might be able to make this kind of

Whatever the effect on average welfare, the
community will be made more equal and just.

Ideal Arguments (2)

NB we dont yet have to worry about
whether UWs arguments are successful
Its enough to be able to say that its plausible
that this argument, or something like it, could
Theres not even that plausibility in respect of
UTs treatment of Sweatt.

Utilitarian Arguments
Utilitarian arguments could shake out in a
number of ways.
For Dworkin, the most plausible route is to
talk in terms of preference satisfaction: a
policy is justified if it satisfies the collection of
(reasonably-inferred) preferences better than
would an alternative arrangement. (TRS, 9.4)
On the face of it, this satisfies treating people
as equals, since their preferences will all be
measured by the same standard.

Utilitarian Arguments (2)

So we might think that there could be a
utilitarian justification for the UT policy.
All wed need to show is that a preference in
favour of segregation is sufficiently widely or
strongly-held to be able to say that the policy
is defensible.

There could also be utilitarian defences for

the UW
Maybe black people prefer(red) black lawyers!

Utilitarian Arguments (3)

But, actually, theres even more to say!
The kind of preference might matter.

Theres a distinction to be drawn between

personal and external preferences.
I would prefer black students to be excluded
because that improves my chances is a
personal preference.
I would prefer black students to be excluded
because I disapprove of black people and/ or
racial mixing is external.

External Preferences
Dworkin thinks that an appeal to external
preferences is fatal to the utilitarian claim.
If a utilitarian argument counts external preferences
along with personal preferences, then the egalitarian
character of that argument is corrupted, because the
chance that anyones preferences have to succeed
will then depend, not only on the demands that the
personal preferences of others make on scarce
resources, but on the respect and affection that they
have for his way of life (ibid)

External Preferences (2)

That is: if you hold your neighbour in
contempt, then the chance that you will
treat his preferences as equal to yours is
I might prefer (personally) that I get the place at
university, and (externally) that my neighbours
corresponding desire count for less. But that seems
to double-count my preferences.
[T]hose against whom the external preferences run
might be unable or unwilling to develop reciprocal
external preferences that would right the balance.

External Preferences (3)

So the idea that each persons
preferences should count equally is
unless we embrace the idea that everyone
can discount everyones preferences which
is incompatible with preference utilitarianism
(Besides: it seems strange to advocate
minimising the impact of prejudice by
encouraging it elsewhere!)

Personal Preferences (3)

What if we only count personal
For the segregationist, thisd presumably relate to a
preference not to have black classmates.

The problem here is that personal

preferences may be inseparable from
My desire not to be in a mixed class might well be
parasitic upon contempt for black people.
(Why prefer not to compete specifically with black

Sweatt and DeFunis (7)

So there could be a way to separate the
cases after all.
Sweatt has access to ideal arguments that
DeFunis lacks.
Some of Sweatts arguments could be
utilitarian, too.
Some of these might rest on external preferences
(eg black Texans preference for a black lawyer,
perhaps). But since these arent the whole story,
that mightnt matter too much.

Sweatt and DeFunis (8)

The arguments for an admissions program that
discriminates in favor of blacks are both utilitarian and
ideal. Some of the utilitarian arguments do rely, at least
indirectly, on external preferences, such as the
preference of certain blacks for lawyers of their own
race; but the utilitarian arguments that do not rely on
such preferences are strong and may be sufficient. The
ideal arguments do not rely upon preferences at all, but
on the independent argument that a more equal society
is a better society even if its citizens prefer inequality.
That argument does not deny anyones right to be
treated as an equal himself.

Sweatt and DeFunis (9)

We are therefore left, in DeFunis, with the simple and
straightforward argument with which we began. Racial
criteria are not necessarily the right standards for
deciding which applicants should be accepted by law
schools. But neither are intellectual criteria, nor indeed,
any other set of criteria. The fairness and
constitutionality of any admissions program must be
tested in the same way. It is justified if it serves a proper
policy that respects the right of all members of the
community to be treated as equals, but not otherwise.
The criteria used by schools that refused to consider
blacks failed that test, but the criteria used by the
Washington University Law School do not. (TRS, 9.5)

Suggested Reading
Fine, C, Delusions of Gender (London: Icon, 2010)
Lippert-Rasmussen, K, Born Free and Equal? (Oxford: Oxford UP,
Kolers, A, The Priority of Solidarity to Justice Journal of Applied
Philosophy, 31(4), 2014
Dworkin, R, Taking Rights Seriously (London: Bloomsbury, 1997)
Young, IM, Justice and the Politics of Difference (Princeton:
Princeton UP, 1990)
Useful chapters in part III of LaFollette, H (ed), The Oxford
Handbook of Practical Ethics (Oxford: Oxford UP, 2005); see also
45-47 of LaFollette (ed), Ethics in Practice: An Anthology
(Chichester: Wiley, 2014)