When the Human Rights Act was passed in 1993 I supported the writing of non-discrimination rights into law. At that time I, like many New Zealanders, believed that people had a right to not be discriminated against that the government should protect. Since then, reflecting on the issue has lead me to change my mind. I am now inclined to think that non-discrimination rights do not exist, they are “nonsense on stilts”. Laws which purport to recognise and protect them are recognising and protecting something that does not exist.
My position now is that discrimination is not wrong, it is morally neutral. It is justified and reasonable to discriminate on certain grounds in certain contexts, and it is unjustified to do so in other contexts. When it is unjustified, what makes it so are factors that have nothing to do with discrimination; these factors would be problematic if applied equally.
Before elaborating my reasons for being sceptical about such rights, let us be clear as to what denying non-discrimination rights does not mean. It does not mean I believe that it is permissible for people to refuse to serve ethnic minorities because one holds to false sterotypes and has unwarranted hatred towards those minorities. Nor does it mean I support depriving women or African Americans of the vote. Likewise I do not support racist lynchings or gay bashings.
A sceptic about anti-discrimination rights can oppose all these things and still not be committed to supporting the existence of anti-discrimination rights. All that is entailed by my scepticism is that these thing are not wrong because they violate a right to not discriminate, and its clear to me that this is true; they are wrong for other reasons.
Discriminating against minorities in the manner suggested above is wrong because we have duties to not stereotype and treat people with contempt. If we treated everyone equally in this way it would still be wrong. Similarly, racist lynchings are wrong because they involve kidnapping, assault and homicide. If people were equal-opportunity lynchers who indiscriminately lynched people of all races, sexes, lifestyles and degrees of ability, it would still be wrong for them to do so. Depriving people of the vote is wrong because people have a right to vote, the right is not attached to sex or race, and so on. The point is that the wrongness of these sorts of practices can be adequately explained, and I think is more plausibly explained, without recourse to an alleged right to not be discriminated against. An appeal to “discrimination” misdiagnoses the moral problems with the action complained of.
Why Discrimination is Not Wrong
It is not wrong to discriminate. To discriminate against one person in favour of another is to treat the former less favourably than the latter. The problem is that, so defined, discrimination is clearly not wrong. In fact, discrimination is essential to any moral thinking at all.
To make a moral judgement condemning a particular action involves adopting a less favourable stance towards those who perform that action. We condemn particular actions, and if a person doing those actions lacks an adequate excuse we blame and censure that person for what he or she did. We expect the person to feel guilty and to make appropriate apology and reparations. On the other hand to judge an action is right is to treat the person who performs the action favourably. We do not censure or blame or condemn the person who does the favourable action, we condone that person’s actions and offer praise. Ian Hinkfuss notes “The whole idea is to provide a rationale for discrimination in favour of certain sorts of acts, people and things are against other sorts of act, people and things.”
This is particularly obvious when we are dealing with issues of justice; central to justice is the notion of desert. In administering Justice we discriminate against the guilty in favour of the innocent. To treat the innocent the same as the guilty or the guilty the same as the innocent would prima facie be to engage in injustice. Once these points are realised, the idea that it is wrong to discriminate or that justice requires we not discriminate prove to be incoherent; making judgements about what is just and right involves discrimination.
Qualifying the duty to not discriminate
So, contrary to popular slogans, discrimination cannot be wrong, at least not without significant qualification. A person may object that I am attacking a straw man here as no one says discrimination per se is wrong or unjust, what is alleged is that it is wrong is to discriminate on certain grounds. New Zealand Law, for example, singles out discrimination on the grounds of sex, race, age, disability, marital status, ethical belief, employment status, family status, colour, ethnic origin and religion as being unlawful, discrimination is permitted on all other grounds.
The first thing to note about this is that by limiting the wrongness of discrimination to these grounds the proponent of discrimination rights seems to concede that a person can discriminate on any other ground. So a photographer, for example, can lawfully refuse to be a wedding photographer if the couple have a bad haircut or they are 6 feet tall, but is in breach of the law if the basis for the refusal is disagreement with same-sex marriage and a desire to not want to associate or assist with such ceremonies.
Similarly, a shop keeper can refuse to serve a person because they dislike a person’s eye colour, but they cannot discriminate on the basis of the person’s skin-color. That seems arbitrary and ad hoc. Surely we need a basis for thinking these particular grounds violate a person’s rights and the others do not.
A more pressing problem is that there are counter-examples which suggest that discrimination, even on these grounds, is not wrong. Consider the following two cases:
A) The film-makers of Once Were Warriors are hiring someone to play the character Jake the Muss. Because Jake the Muss is, according to the script, a muscled Maori male, they offer the role to Temura Morriston. They do not offer the part to a talented slim-built Chinese actor.
B) A film-maker refuses to hire a Chinese female actor for a role as a Chinese woman because he considers Chinese to be an inferior race and all Chinese to be criminals.
It is clear to me that the actions of the film-maker in B) are reprehensible, the actions of the film-maker in A) are unobjectionable. Yet both cases involve discrimination on the grounds of race. This suggests that what is crucial is not the discrimination itself but the reasons for the discrimination.
Some argue that cases like that elaborated in (A) suggest the issue, at least with regards to employment discrimination, is relevance for the job. Employment discrimination on the basis of a characteristic is permissible when that characteristic is relevant to the job in question but is wrong when it is not.
This seems false. People are often turned down for a job on the basis of how they spoke at the job interview, the way they dressed, and the vibe they created, their choice of shoes, yet in many situations none of these things could plausibly have anything to do with relevance to their ability to do the job. Conversely, a person can be turned down for criteria that is relevant to the job, and the discrimination could still be grossly unjust. Suppose, for example, a school committed to the promotion of white supremacist ideology sought to hire a professor to teach students this ideology. Clearly being a white supremacist would be relevant to performing this job. Yet, surely, the discrimination here is not morally permissible. Employment relevance, therefore, does not seem to be the distinguishing factor.
The use of counter examples like this has lead some to propose a value-loaded definition of discrimination. What is wrong is not discrimination per se but wrongful discrimination or unjust discrimination, when someone says discrimination is wrong they mean to refer to wrongful discrimination. This gets the right result in cases A and B above and in the white supremacist case as well. However, it does so by making the claim that “it is wrong to discriminate” into an empty tautology.
It is true wrongful discrimination is wrong, but that is because it has the property of being wrongful, anything that has the property of being wrongful is wrong whether it is discrimination or not. Nothing which lacks this property is wrong, even if its discrimination. What this response shows is that, in reality, the issue is not discrimination it is whether the practice is wrong on other grounds. It is the presence or absence of other grounds that determines the moral status of the action, not the fact the action is discriminatory.
I think this is the most sensible thing to say about A and B above. Consider the Chinese actor in B, she is treated appallingly not because she was discriminated against – in this respect he does not differ from Temura Morriston in A. The reason the Chinese actor is wronged is because the film-maker judges her race to be inferior, the film-maker also judges her to be a criminal without any evidence. We have a duty to not treat human beings in a contemptible way and a duty to not accuse people of crimes without evidence. This is the basis for prohibitions on slander and defamation. It is these factors that make the actions of the film company in B objectionable, not racial discrimination.
It is also clear to me that the wrongness of these actions does not depend on the victims being discriminated against. Suppose, for example, the film company treated every person who applied for a job this way, they treated everyone they came across as inferior and considered every candidate a criminal without any evidence regardless of their race. Would we say that what they did was now somehow better because they did not discriminate? Has the moral problem been fixed because they now treat everyone in this way? It seems not, in fact, arguably their actions are now worse because in B) they treated some people objectionably but now they treat more people this way.
Returning to the examples I mentioned in the opening of this post, racist lynchings and racial segregation. Suppose a society instead implemented random lynchings of anyone regardless of race, or banned everyone from using certain buses. Would we withdraw our condemnation now that discrimination had been eliminated? Or suppose the kind of assault used in gay bashings was perpetuated on both homosexuals and heterosexuals, would that eliminate discrimination, would it be more just? Suppose society banned everyone from voting? Would society now be more just because everyone is now being treated in a non-discriminatory manner? The answer to me seems obvious, no.
The issue, then, is the way we treat people, not the fact that we treat them differently. What matters is not discrimination, it is not that some person from a group A was treated less favourably than a member of another group B. The issue is whether we are fulfilling our other duties towards these people and respecting their other rights. This means we do not need to appeal to non-discrimination rights at all, we need merely to exhort people to follow the real duties they do have that do exist and to treat people with appropriate respect. Appeals to non-discrimination rights are, it seems to me, often incoherent, confused and vacuous. They distort moral discourse by hiding the real moral issues in various practices behind a false veneer of equality.
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I’ve used this argument before as well. Unjust discrimination is bad, but we all have to discriminate every day between things. Discrimination is really another word for discernment: discerning between one thing and another and choosing which is better.
Unjust discrimination can only occur when you treat two things that are the same, differently. But, for example, in the case of gay marriage: men and women are different, and their coupling is different from that of gay couples, who biologically cannot have children without the aid of a 3rd party.
Treating things that are different, as different is discrimination, and rightly so.
Some might argue that this argument falls apart when we compare it to racial equality – that in the past people have argued that a black man and a white man aren’t “the same” or “equal” either and used that inequality as a basis for segregation; however, in this case the color of a man is not an attribute that defines what a man is or what makes him equal to another man. The color is a secondary characteristic, much like an apple is an apple, no matter if the skin is red or green.
As far as equality, a red apple has as much apple-ness as a green apple. They are the same and thus, equal as pertaining to the characteristics or properties that make an apple, an apple.
Marriage, though, is based on the complementarity of the couple based on gender. So, one of the things that define marriage is sexual intercourse (coitus), which gay couples cannot have.
I agree with most of this. It is not certain to me that discriminating wrongly is the same as acting wrongly in general. Discriminating wrongly is saying that there are certain attributes that cannot be used when discriminating. You use some examples where the action is morally wrong (lynching) but some actions are morally neutral (photography). So one can act wrongly by doing wrong, or wrongly by considering things (morally) relevant when they are not.
A further consideration not addressed is even if (false) discerning behaviour is considered wrong, is it something that should have any legal consequences?
Bethyada wrote:
That’s not quite my point, I am inclined to think that when a form of discrimination is wrongful its due to some other feature of the action.
Not sure I agree, here if an action is morally neutral and you literally have no duty to do it to anyone then it’s not obvious that anyone can justly complain if I dont refrain from it. Consider for example a gift, suppose I have 100$ and I give it to a worthy charity A but not to another charity B, both charities are equally worthy. Can charity B demand I give to them? Am I now required to give 100$ to every worthy charity in existence or give no money at all. I don’t think so
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Perhaps the idea is that this is true except when I can’t refrain from giving to a person on certain grounds, such as his race. But this seems to me to be false. Suppose a wealthy benefactor bequeaths his estate to a charity designed to help orphans from a recent earthquake in Christchurch.Does the fact he does not give his estate to the victims of an earthquake in china mean his gift is unjust? I don’t think so.
I accept that if he refrained from doing so because he hated Chinese people and had both contempt for and sterotypes of them as all crooks. Then one could criticise his motives ( though the action of giving to Christchurch earthquake victims would still be good) But this would be because he had in addition to discriminating, also violated some other duty such as to not show contempt or sterotype.
Matt, from my perspective I think people should be allowed to discriminate as they wish, rightly or wrongly. But to address the issue. Selling buns is morally neutral. But if I own a business can I discriminate? No shoes, no shirt, no burka, no Maori, no Jews, no Christians. Some of these discriminations seems reasonable, others less so. But if we do not have an anti-discrimination specifying what cannot be discriminated against, how do we object to the shop refusing to sell to someone? I don’t see how this example fits your post as baking is (generally) amoral.
Then there are examples where the shop-keeper is involved in the activity (photography, printing, etc.) and objects to the practice they are being asked to endorse. Thus the issue becomes moral but men view the action variously as immoral or eumoral.
Giving shop owners freedom is fine in the private realm, but the state needs to be more neutral. Though this becomes a problem when the state “grows”.
Hey Matt.
I agree with you discrimination isn’t wrong in and of itself and unjust discrimination is the thing that is wrong.
However it just might be easiest to explicate and outlaw unjust discrimination through a framework where unjust discrimination is noted.
(Maybe a non-realist approach?)
Hey Matt,
Thanks for that very thought provoking blog post. There is something that doesn’t quite sit right with me though. Perhaps it is me not fully understanding your angle.
Correct me if I’m wrong but it seems that, in summary, you are saying that discrimination in-and-of-itself isn’t wrong, but rather it is how we treat the subjects we are discriminating against which determines its moral quality.
It seems however that this isn’t quite the case – that there is some inherent wrongness to discrimination on certain grounds. The reason I say this is because your position seems to allow some intuitively problematic cases of partiality/favouritism: both parties may be treated in an entirely acceptable manner, however one is treated much better, on the grounds of say, skin colour.
Take for example mixed raced parents who have two children. One child happens to have darker skin and the other happens to have lighter skin. The parents treat both children lovingly and feed them well. But suppose every night they sneak into the room of the child with lighter skin and give him extra after-dinner treats, or spend more time reading him to sleep, or buy him slightly more expensive toys etc because they love light skin more than dark skin and express that by giving the light skinned child more. The parents aren’t behaving contemptuously toward either child, but they merely treat one child better.
Perhaps a better example would be that in James 2, where there is the explicit command not to show partiality and then given an example, i.e. by giving special benefits to rich people and not to the poor is “making distinctions among yourselves and [becoming] judges with evil thoughts”. It seems to be like there is some kind of inherent moral problem with discrimination on certain grounds.
Of course that doesn’t mean we need to protect against the aforementioned behaviour in law. But we can imagine scenarios where the law may need to intervene. For example, a company that introduces a policy to offer its Caucasian employees a 10% bonus every year simply on the grounds that they are Caucasian. Or making toll-roads free for men only, or the Immigration Authority issuing fast-track passports to immigrants who “look more like New Zealanders”.
Would be interested to hear your thoughts on this.
Very idealistic. And in a world which was not full of racist, sexist, and homophobic people, your ideas might work. In the real world, however, the instances of racism as so prevalent (in the way discrimination for having the wrong color shoelaces is not) that special laws are created to deal with the REAL world, rather than a theoretical constructed world.
To use one of your examples: gay people are abused and insulted BECAUSE they are gay… in a manner in which straight people are not. So noticing this, and wanting to protect our gay brothers and sisters, we make special laws to protect them… maybe it is not as “pure” as your way of seeing the world… but it works. Is saves lives.
This is just a string of assertions I don’t really see any attempt to address my argument.
That fact that people attacked them because they are Gay does not entail it was wrong because it discriminated against them, the motives people have for commiting a crime is a different question to what makes the action a crime.
But your comment also seems to me false, homosexuals are often attacked for their behaviour, people object to homosexual behaviour and express this illegitimately through violence. Being attacked for behavour considered objectionable does happen to heterosexual’s, people have been attacked and beaten up for committing adultery, or for sleeping with someone else’s girl friend, In NZ a few years ago someone was stabbed to death for tagging. People have been beaten up for theft, or for voicing opposition to certain political causes and so on. Men have beaten their wives for being lippy and so on.
Nor is it true that one needs a “special law” to protect people against this. In each case the action is already prohibited by law as a form of assault. One doesn’t need to have a special law of assaulting a person for reason Z, to protect anyone.
“This is just a string of assertions I don’t really see any attempt to address my argument.”
That was just an assertion that I made an assertion. I see no attempt to address anything I said.
“That fact that people attacked them because they are Gay does not entail it was wrong because it discriminated against them, the motives people have for commiting a crime is a different question to what makes the action a crime.”
As I said – from a purest point of view you might be right. And in a world full of rational people your approach might work. The reality is we are in a world full of hateful homophobic people who will beat up people because they are gay – or because they perceive them to be gay (whether they are or not). A law which stops this from happening, like anti-discrimination laws, whether or not it fits into a purest philosophical program is a good law. It saves lives. Period.
“But your comment also seems to me false, homosexuals are often attacked for their behaviour, people object to homosexual behaviour and express this illegitimately through violence.”
I am not sure what you mean by this. What behavior do you think motivates this violence? This seems to be implying that gay people are attacked because of something they have done. Often it is nothing to do with any action they have taken. In fact many people are attacked not because they are gay at all but because they exhibit characteristics which are stereotyped as gay – for instance being less masculine. A law which stops this sort of violence taking place is a good law.
“Being attacked for behavour considered objectionable does happen to heterosexual’s, people have been attacked and beaten up for committing adultery, or for sleeping with someone else’s girl friend, In NZ a few years ago someone was stabbed to death for tagging. People have been beaten up for theft, or for voicing opposition to certain political causes and so on. Men have beaten their wives for being lippy and so on.”
That is all very interesting – but of no relevance whatsoever to the points I have been making. Because (i) it is a different issue – we are allowed more than one law. And (ii) people are beaten up for BEING gay – not for a particular behavior.
“One doesn’t need to have a special law of assaulting a person for reason Z, to protect anyone.”
That is just an assertion based on nothing other than your philosophical musings. In the real world the empirical evidence shows that anti-hate crime legislation does actually reduce violence against minority groups. And saves lives. Again it comes back to whether you want to base your laws on reality or on artificial (albeit pure) philosophical constructions. I think reality is a better starting point. It might save the live of someone you love 🙂 My loved ones lives are more important to me than a philosophical construct 🙂
Blessings.
“This is just a string of assertions I don’t really see any attempt to address my argument.”
As a small aside. Not everything I (or other people) say is a direct response to your comments. Some things I say are my own ideas and may not relate to your points at all. Don’t take it personally!
God bless!
The cases are not analogous: asserting a contrary position is mistaken does not address it. Pointing out that someone’s response is simply an assertion does address it.
The issue is not whether what I say “works” its wether its true or rationally justified, I don’t think we should assent to things which are false because it achieves certain goals we have.
As I pointed out there are already laws which do this, laws against assault and homicide.
But your premise here seems to me to be mistaken, you state that a law “which stops assaults from happening” is a good law as it saves lives. There seem to me two problems here.
First, laws against discrimination don’t stop assaults, they don’t even address assaults they address failing to provide service on certain grounds or prevent people failing to be hired on certain grounds.
But second, the fact a law stops assaults does not entail it’s a good law, I can imagine that executing all recidivist assailants would stop assaults. Similarly banning cars would save lives, neither is a just or sensible law. It’s simply false that because a law serves some purpose we like then we can forget all the problems with it and implement.
If this is the case then your comment above “ gay people are abused and insulted BECAUSE they are gay… in a manner in which straight people are not.” Is false, they are not assaulted because they are gay, but because they display non Masculine traits, and straight people can and are abused and assaulted for this.
Actually it is relevant, you claim that because Gay people are beaten up for being Gay, a further law in addition to laws against assault are needed. The problem is we could make the same argument in all the above cases, adulterers are beaten up for committing adultery, so we need a new law for that, people who are beaten up for having a wallet are beaten up for having a wallet, so we need a new law for that and so on.
“One doesn’t need to have a special law of assaulting a person for reason Z, to protect anyone.”
I addressed that above, laws against driving would save thousands of lives, that doesn’t justify it.
I don’t accept the dichotomy, reality follows the laws of logic, contradictions and incoherent positions are rejected because in reality contradictions cannot be true. ( truth is in my view something that corresponds to reality).
“The cases are not analogous: asserting a contrary position is mistaken does not address it. Pointing out that someone’s response is simply an assertion does address it.”
It was a joke… which I should not have to point out!
“The issue is not whether what I say “works” its wether its true or rationally justified, I don’t think we should assent to things which are false because it achieves certain goals we have.”
I am not sure that laws are ever “true” or “false” any more than a spade is “true” or “false”. They are things which we judge precisely by the goals they achieve! A spade is a good spade if it digs holes. A spade designed by a philosopher which is theoretically pure and perfect but which breaks the first time you try to use it is a bad spade – however good it looks on paper! The same goes for laws. If a law saves lives (like hate-crime legislation and anti-discrimination laws) then they are good laws. They achieve their purpose.
“As I pointed out there are already laws which do this, laws against assault and homicide.”
Yes. And the ADDITIONAL laws have been shown empirically to save more lives. It does seem like abstract ideas are a lot more important to you than reality. Or you are so far gone that you no longer see the difference.
“laws against discrimination don’t stop assaults,”
This is just empirically wrong. You need to go and read some literature about the real life impact of these sorts of laws. You may not be able to argue that it has an impact from first principles, but this does not mean there is not a real world impact.
“But second, the fact a law stops assaults does not entail it’s a good law, I can imagine that executing all recidivist assailants would stop assaults.”
Good straw-man argument there. Not worth replying to really. But as you know anti-hate crime laws to not support the execution of people willy-nilly. Again you have to try to look at the REAL world rather than a philosophical construct which exists only in your own mind!
“adulterers are beaten up for committing adultery, so we need a new law for that”
If this was a MAJOR problem in society then in fact yes. FOr instance on countries where women have acid thrown in their face FREQUENTLY then looking at specific laws to try to protect these women would be a good idea. Even your attempted “counter-example” does not make the point you want it to make.
“I don’t accept the dichotomy, reality follows the laws of logic, contradictions and incoherent positions are rejected because in reality contradictions cannot be true. ( truth is in my view something that corresponds to reality).”
And this shallow way of seeing the world which ignores the complexity of large societies, and the complexity of human psychology is what leads you into your way of thinking in the first place. Yes, if you were omniscience, perhaps you could work out what the best laws were using logic and reason alone. But there are too many variables to do this. Too much you do not know about how individual people act, and how groups of people act. And so sometimes it is a matter of experimentation rather than logic. Experimentation is of course a reason as well – just a less narrow approach than the one you seem to take. Again it comes down to simply looking at reality. Countries which have anti-discrimination laws happier and safer minority populations.
I hope that gives you something to think about
Blessings.
Laws are imperatives so neither true or false, however I think moral statements such as “we have a right to not be discriminated against” or “discrimination is wrong” and so on are true or false, and good law is based on true moral statements not false ones
(that said imperatives can be irrational if they are inconsistent or incoherent, such as if I command people to do something but also command them to not do it)
A spade designed by a philosopher which is theoretically pure and perfect but which breaks the first time you try to use it is a bad spade – however good it looks on paper! The same goes for laws. If a law saves lives (like hate-crime legislation and anti-discrimination laws) then they are good laws. They achieve their purpose.
Actually if a spade breaks when you try it then its theoretically flawed. But here again your comment reflects a false assumption it assumes that if a law saves lives then it’s a good law, that’s false, for the reason I pointed out. Laws prohibiting swimming or fishing would save lives, laws prohibiting driving would save lives, neither is a good law. These examples show that can’t restrict someones freedom and prosecute someone simply because doing so leads to lives being saved.
Again that assumes that if a law saves more lives than an alternative law the first law is just. That’s false, laws against driving save more lives than laws against speeding do, it doesn’t follow we should ban cars.
Actually you misunderstand my point here, I didn’t said hate crime laws support executing people willy nilly, what I pointed out was that the principle your relying on, that a law that saves lives is a good law, entails that executing recidivists is good.
Also in the real world recidivists do hurt people, sit in a district court and observe the cases for a day. And in the real world dead recidivists don’t hurt anyone. Similarly in the real world people die swimming at the beach or in car accidents, yet we don’t ban these things despite the fact doing so would save lives.
Again the problem here is that, in the real world, people are often assaulted for all sorts of reasons. Its extremely common I venture to suggest that people are attacked for giving someone lip. Or for hitting on someones girl friend. Yet oddly no one suggests we need special laws banning discrimination against the cheeky or against those who attempt to encourage cheating.
This actually misses my point entirely what I said was that in the real world contradictiory claims are not both true. That’s quite a separate point from the claim one can work out the best laws uses logic and reason alone (which I don’t advocate)
But I think your response here actually undercuts itself, your final comment suggests a ultilitarian approach where we put in place those policies that promote the most happiness. The problem is that utilitarian calculations are in fact subject to the very epistemic problems you mention here, its very difficult given complex societies and variables to work out empirically which laws promote the greatest overall happiness.
“Rights” is not a biblical construct..
Test.
(All of my comments are getting blocked.)
Sorry Reed, I found you described as a spammer in one of our security programs. I have told it off. It should behave now.