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HARMLESS DISCRIMINATION

Published online by Cambridge University Press:  10 February 2016

Adam Slavny  and
Tom Parr
Adam Slavny
Affiliation:
University of Warwick School of Law, [email protected]
Tom Parr
Affiliation:
University of Essex Department of Government
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Abstract

In Born Free and Equal: A Philosophical Inquiry into the Nature of Discrimination, Kasper Lippert-Rasmussen defends the harm-based account of the wrongness of discrimination, which explains the wrongness of discrimination with reference to the harmfulness of discriminatory acts. Against this view, we offer two objections. The conditions objection states that the harm-based account implausibly fails to recognize that harmless discrimination can be wrong. The explanation objection states that the harm-based account fails adequately to identify all of the wrong-making properties of discriminatory acts. We argue that the structure of a satisfactory view cannot be outcome-focused. A more promising family of views focuses on the deliberation of the discriminator and in particular on the reasons that motivate or fail to motivate her action.

Type
Research Article
Information
Legal Theory , Volume 21 , Issue 2 , June 2015 , pp. 100 - 114
Copyright
Copyright © Cambridge University Press 2016 

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References

1. Alexander, Larry, What Makes Wrongful Discrimination Wrong? Biases, Preferences, Stereotypes, and Proxies, 141 U. Pa. L. Rev. 149–219 (1992)Google Scholar.

2. Deborah Hellman, When Is Discrimination Wrong? (2008).

3. T.M. Scanlon, Moral Dimensions: Permissibility, Meaning, Blame (2008).

4. Strictly speaking, not all consequentialists make this claim about maximizing impersonal value. See, e.g., Slote, Michael, Satisficing Consequentialism, 58 Proc. Aristotelian Soc'y 139–163 (1984)Google Scholar.

5. Kasper Lippert-Rasmussen, Born Free and Equal: A Philosophical Inquiry into the Nature of Discrimination (2014).

6. Id. at 154–155.

7. It is also important to mention that Lippert-Rasmussen situates his harm-based account within a desert-prioritarian theory of moral value. These elements are separable from one another. The objections that we develop rely on cases of harmless discrimination that do not affect the distribution of harms and benefits that engage this theory of moral value. Our objections are directed at the harm-based account in general and not only at Lippert-Rasmussen's favored desert-prioritarian account. We concede that a desert-prioritarian account of moral value is superior to other consequentialist views, such as those that do not give priority to the worse off, but our objections ultimately target the exclusively consequence-focused feature of the harm-based account, which is shared by all versions. Id. at 165–170.

8. Id. at 29.

9. See Victor Tadros, What Might Have Been, in Philosophical Foundations of the Law of Torts 171–192 (John Oberdiek ed., 2014), at 172.

10. Lippert-Rasmussen, supra note 5, at 64.

11. Id. at 157.

12. Id. at 158.

13. For the threefold distinction between fact, evidence, and belief-relative wrongness, see Derek Parfit, 1 On What Matters (2011), ch. 7.

14. Arneson, Richard, What Is Wrongful Discrimination?, 43 San Diego L. Rev. 775–807 (2006)Google Scholar, at 790.

15. Lippert-Rasmussen, supra note 5, at 158 n. 9.

16. Id. at 157.

17. Nazi University is a case of beneficial discrimination that involves a local harm. For this reason, it is not a case of harmless wrongful discrimination that is beneficial.

18. We should not be surprised by the conclusion that an act can be wrongful even though it benefits the victim. Jonathan Quong, for example, reaches a structurally similar conclusion in his analysis of the wrongness of paternalism. See Jonathan Quong, Liberalism Without Perfectionism (2011), ch. 3.

19. For a defense of the view that intentions are irrelevant to permissibility, see Scanlon, supra note 3, ch. 1; Thomson, J.J., Self-Defense, 20 Phil. & Pub. Aff. 283–310 (1991)Google Scholar; Thomson, J.J., Physician Assisted Suicide: Two Moral Arguments, 109 Ethics 497–518 (1999)Google Scholar; and F.M. Kamm, Intricate Ethics: Rights, Responsibilities, and Permissible Harm (2007), ch. 5.

20. Scanlon, supra note 3, at 69–70.

21. It is consistent with this view that intentions may derivatively determine the permissibility of action by virtue of their predictive significance. See id. at 62–66.

22. Victor Tadros offers both of these examples; see Victor Tadros, The Ends of Harm: The Moral Foundations of Criminal Law (2011), at 158–159.

23. Hellman, supra note 2, at 16–17.

24. Id. at 17.

25. This is not to say that all necessary conditions of a wrongful act play a role in explaining its wrongness. For example, a necessary condition of an act being wrong is that it is located in time and space, but being located in time and space is not part of what makes it wrong. Unlike location in time and space, it is less controversial that the presence of harm sometimes helps to explain why an act is wrong. We thank Kasper Lippert-Rasmussen for pressing this point.

26. Alternative revisions are possible. See Lippert-Rasmussen, supra note 5, at 156.

27. In the section above we consider the possibility that all affronts to dignity or violations of equal moral worth are harmful. If this were true, Helen's action could be identified as wrong noncontingently, since these harms do not rely on any particular outcome obtaining, allowing the defender of the harm-based account to avoid the present objection. Although we acknowledge this caveat, we reject this expanded conception of harm for the reasons already given.

28. The moral status of others places constraints on the ways we are permitted to treat them, including both how our acts affect them and the reasons for which we act. For an argument to this effect in the case of manipulative harm, see Tadros, Ends, supra note 22, at 149–155.

29. For specific objections to Hellman's and Scanlon's alternative to the harm-based account, see Lippert-Rasmussen, supra note 5, at ch. 5.