Skip to main content

Advertisement

SpringerLink
Log in

Harmless Discrimination, Wrongs, and Rules

  • Published:
Law and Philosophy Aims and scope Submit manuscript

Abstract

Discrimination is often tremendously harmful. But cases of harmless yet morally wrongful discrimination suggest that there are factors that make discrimination wrong other than its harmfulness. This article analyzes three views that resist this conclusion and poses some challenges for each. The first view appeals to unnoticed forms of harm in cases of harmless discrimination. But it counterintuitively entails that discriminatory acts are morally wrong by definition. The second view holds that harmless discrimination is made wrong by how its perpetrator wrongs the victim by disrespecting her moral status without setting back her wellbeing. But it is unclear how impermissibly wronging a person is different from unjustifiably harming her. The third view holds that, even if discriminatory acts can be made wrong by factors other than harm, they ought to be prohibited by a legal rule whose sole justification is that it prevents harm. But there may be reasons for legally prohibiting discriminatory acts other than harm prevention.

This is a preview of subscription content, log in via an institution to check access.

Access this article

Log in via an institution

Price excludes VAT (USA)
Tax calculation will be finalised during checkout.

Instant access to the full article PDF.

Institutional subscriptions

Similar content being viewed by others

Notes

  1. Kasper Lippert-Rasmussen, Born Free and Equal, A Philosophical Inquiry into the Nature of Discrimination (Oxford: Oxford University Press, 2012), pp. 165-170; Richard Arneson, “Discrimination, Disparate Impact, and Theories of Justice” in Deborah Hellman and Sophia Moreau (eds.) Philosophical Foundations of Discrimination Law (Oxford: Oxford University Press, 2013).

  2. Frej Klem Thomsen, “But Some Groups are More Equal Than Others: A Critical Review of the Group-Criterion in the Concept of Discrimination.” Social Theory and Practice 39(1) (2003): 120-46 at pp. 140-41.

  3. Lawrence Blum, “Racial and Other Asymmetries: A Problem for the Protected Categories Framework for Anti-Discrimination Thought” in Deborah Hellman and Sophia Moreau (eds.) Philosophical Foundations of Discrimination Law (Oxford: Oxford University Press, 2013), 187-190; Re’em Segev, “Making Sense of Discrimination” Ratio Juris 27(1) (2014): 47-78; Sophia Moreau, Faces of Inequality: A Theory of Wrongful Discrimination (Oxford: Oxford University Press, 2020), p. 11.

  4. Adam Slavny and Tom Parr, “Harmless Discrimination” Legal Theory, 21(2) (2015): 100-14 at pp. 106.

  5. Deborah Hellman, When is Discrimination Wrong? (Cambridge, MA: Harvard University Press, 2008); Benjamin Eidelson, Discrimination and Disrespect (Oxford: Oxford University Press, 2015), pp. 96–101.

  6. This may be true even if we have reservations about whether the mental states based on which an agent acts can determine the permissibility of her actions. Richard J. Arneson, “What is Wrongful Discrimination?” San Diego Law Review 43(4) (2006) 775-08 at pp. 780–87.

  7. Lipper-Rasmussen, Born Free and Equal, supra note 1 at pp. 161.

  8. Richard Arneson, “Discrimination and Harm” in Kasper Lippert-Rasmussen (ed.) The Routledge Handbook of the Ethics of Discrimination (New York: Routledge, 2018), 151-163 at p. 157.

  9. Slavny and Parr, “Harmless Discrimination,” supra note 4 at 106; Shu Ishida, “What Makes Discrimination Morally Wrong? A Harm-Based View Reconsidered” Theoria 87(2) (2021): 483-499 at pp. 489-90.

  10. Seana Valentine Shiffrin, “Wrongful Life, Procreative Responsibility, and the Significance of Harm” Legal Theory 5(2) (1999): 117-14 at p. 127; Elizabeth Harman, “Harming as Causing Harm” in Melinda A. Roberts and David T. Wasserman (eds.) Harming Future Persons: Ethics, Genetics and the Nonidentity Problem (Dordecht: Springer, 2009), 137-154 at p. 141.

  11. Lippert-Rasmussen, Born Free and Equal, supra note 1 at p. 15; Eidelson, Discrimination and Disrespect, supra note 5 at p. 17; Andrea Sangiovanni, Humanity Without Dignity: Moral Equality, Respect, and Human Rights (Harvard, MA: Harvard University Press, 2017); Moreau, Faces of Inequality, supra note 3 at pp. 15-17.

  12. Lippert-Rasmussen, Born Free and Equal, supra note 1 at pp. 30-36.

  13. Eidelson, Discrimination and Disrespect, supra note 5 at pp. 26-30.

  14. Malnes, Raino, “Discrimination: Classification and Moral Assessment” Moral Philosophy and Politics 2(2) (2015): 245-54 at pp. 246-47.

  15. Eidelson, Discrimination and Disrespect, supra note 5 at pp. 14, 19; Frej Klem Thomsen, “Stealing Bread and Sleeping Beneath Bridges – Indirect Discrimination as Disadvantageous Equal Treatment” Moral Philosophy and Politics, 2(2) (2015): 299-27 at p. 315.

  16. Julie Suk, “Discrimination and Affirmative Action” in Kasper Lipper-Rasmussen (ed.) The Routledge Handbook of the Ethics of Discrimination (New York: Routledge, 2018), 394-06 at p. 404.

  17. Kasper Lippert-Rasmussen, Making Sense of Affirmative Action (Oxford: Oxford University Press, 2020), at pp. 167-72.

  18. Erin Beeghly, “Stereotyping as Discrimination: Why Thoughts Can Be Discriminatory.” Social Epistemology: A Journal of Knowledge, Culture and Policy 35(6) (2021): 547-63 at pp. 553-55.

  19. Deborah Hellman, “The Epistemic Commitments of Non-Discrimination” in John Gardner, Leslie Green, and Brian Leiter (eds.) Oxford Studies in Philosophy of Law Volume 4 (Oxford University Press, 2022), pp. 156-81.

  20. Oscar Horta, “Does Discrimination Require Disadvantage?” Moral Philosophy and Politics 2(2) (2015): 277-97 at pp. 289-92.

  21. Patrick S Shin, “Diversity vs. Colorblindness” Brigham Young University Law Review 2009(5) (2009): 1175-20 at pp. 1191-95.

  22. Julian Jonker, “Beyond the Comparative Test for Discrimination” Analysis 79(2) (2009): 206-14 at pp. 207-11.

  23. Note that the intrapersonal counterfactual comparative view can accommodate the intuition that discriminatory acts seem to be essentially interpersonally comparative. Interpersonal comparison of positions facilitates evaluations of whether a victim is disadvantaged by a discriminatory act in an intrapersonal sense Katharina Berndt Rasmussen, “Harm and Discrimination,” Ethical Theory and Moral Practice 22(4) (2009): 873-891 at pp. 880-81; John Gardner, “Discrimination: The Good, the Bad, and the Wrongful” Proceedings of the Aristotelian Society 108(1) (2018): 55-81 at p. 57. For example, to determine whether Beth makes Chris worse off than he would have been had she not refused to cooperate with him because Chris is Buddhist, we can look to whether in so doing Beth agrees to cooperate with a third person who later arrives on the island, Dave, who is Muslim. The interpersonal comparison between the positions of Chris and Dave because of Beth’s act facilitates an evaluation of whether because of the act Chris is worse off than he would have been had the act not been committed.

  24. Horta, “Does Discrimination Require Disadvantage?” supra note 20 at p. 282.

  25. David Boonin, Dead Wrong: The Ethics of Posthumous Harm (Oxford: Oxford University Press, 2019), pp. 11-15.

  26. Ishida, supra note 9 at pp. 494-95.

  27. It has been claimed that the local harm makes make a discriminatory act wrong is not the same as the disadvantage that every discriminatory act against a victim involves because it requires intrapersonal counterfactual comparison while the latter involves interpersonal comparison. Id. at pp. 486-89. But this claim is doubtful given how, as we saw, an act can be discriminatory without involving interpersonal comparison.

  28. James Woodward, “The Non-Identity Problem” Ethics 96(4) (1986): 804-31 at pp. 810-11.

  29. D.C. Matthew, “Counterfactual Discrimination” South African Journal of Philosophy 36(4) (2017): 405-04 at p. 500.

  30. Bernd Rasmussen, “Harm and Discrimination,” supra note 1 at pp. 887-890.

  31. Slavny and Parr, “Harmless Discrimination,” supra note 4 at pp. 108-09.

  32. Rahul Kumar, “Who Can Be Wronged?” Philosophy and Public Affairs 31(2) (2003): 99-118, at pp. 102-05; R. Jay Wallace, The Moral Nexus (Oxford: Oxford University Press, 2018), pp. 5-11.

  33. Hellman, When is Discrimination Wrong?, supra note 5 at p. 29; Eidelson, supra note 5 at pp. 76-80.

  34. Moreau, Faces of Inequality, supra note 3 at p. 84.

  35. Id. at p. 97.

  36. Id. at p. 91.

  37. Id. at p. 92.

  38. Id. at pp. 94-95.

  39. Richard A. Epstein, Forbidden Grounds: The Case Against Employment Discrimination Laws (Cambridge, MA: Harvard, 1992).

  40. Hugh Lazenby and Paul Butterfield, “Discrimination and the Personal Sphere” in Kasper Lippert-Rasmussen (ed.) The Routledge Handbook of the Ethics of Discrimination (New York: Routledge, 2018): 369-78 at p. 372.

  41. Shelly Kagan, Normative Ethics (Boulder, CO: Westview Press, 1998), p. 82.

  42. Samantha Brennan, “Paternalism and Rights” Canadian Journal of Philosophy 24(3) (1994): 419-39 at p. 429.

  43. To be sure, Smith’s act might still be pro tanto wrong. But this is arguably not strong enough to vindicate our intuitive reaction to Smith’s discriminatory act, especially when compared to the available view that the act is made wrong all things considered by the act’s agential aspects, i.e., Smith’s bad deliberations or the bad message his act expresses.

  44. Jonathan Quong, Liberalism Without Perfection (Oxford, Oxford University Press, 2010), p. 81.

  45. Judith Jarvis Thomson, The Realm of Rights (Harvard, MA: Harvard University Press, 1990), pp. 189-91.

  46. Nicholas Cornell, “A Third Theory of Paternalism” Michigan Law Review 113(8) (2015): 1295-36 at p. 1316. Indeed, the claim is compatible with the possibility that, if Jones were to inform Smith of his preference to not be victimized by Smith’s discriminatory act, even at the expense of foregoing the benefits of being so victimized, it would be all things considered impermissible in a fact-relative sense for Smith to wrong Jones. For, in these circumstances, it is no longer clear that the benefits for Jones that the wrong produces outweigh the badness of the wrong for Jones. Thomson, The Realm of Rights, supra note 46 at p. 190-91.

  47. Arneson, “Disparate Impact,” supra note 1 at p. 94-100; Arneson, “Discrimination and Harm,” supra note 8 at p. 160-161.

  48. In aiming to explain what makes Smith’s discriminatory act morally wrong, this version of the view construal rests on a controversial theory of morality that has been subjected to serious objections. J.C.C. Smart, “Extreme and Restricted Utilitarianism” The Philosophical Quarterly 6(25) (1956): 344-54 at pp. 348-49; David Lyons, Forms and Limits of Utilitarianism (Oxford: Clarendon Press, 1965). Having said that, it has been argued that the standard objections to it are not decisive. Brad Hooker, Ideal Code, Real World: A Rule-Consequentialist Theory of Morality (Oxford: Oxford University Press, 2002), p. 32; Tim Mulgan, “Utilitarianism for a Broken World” Utilitas 27(1) (2015): 92-114 at p. 103.

  49. Robert E. Goodin, Utilitarianism as a Public Philosophy (New York: Cambridge University Press, 1995); Tim Mulgan, Understanding Utilitarianism (London: Routledge, 2007), pp. 127-29.

  50. Because the modest view is ready to explain the wrongness of Smith’s act in terms of Smith’s bad deliberations, it is committed to the thesis, which some have questioned, that an agent’s mental states can determine the permissibility of her conduct. Thomson, The Realm of Rights, supra note 45 at p. 194. Those who defend this account of the wrongness of discrimination have argued that it remains attractive even if this thesis is false. Eidelson, Discrimination and Disrespect, supra note 5 at 83-84. But note that even if we that thesis, the modest indirect consequentialist view is compatible with holding that the intuition that there is something morally amiss in Smith v. Jones can be explained by holding that Smith’s harmless discriminatory act, while not being impermissible, reveals that Smith is blameworthy for having a morally vicious character. Lippert-Rasmussen, Born Free and Equal, supra note 1 at p. 160. To be clear, the proposition that there ought to be a legal rule prohibiting Smith’s discriminatory act against Jones to reduce inequality is distinct from the proposition that the act is morally wrong in virtue of being illegal. A discriminatory act might be malum prohibitum, that is, wrong in virtue of violating a legal rule that is enacted for good reasons. Gardner, “The Good, the Bad, and the Wrongful,” supra note 23 at pp. 74–75. But whether this applies to Smith’s act is tangential to the modest view we have been discussing. This view is prepared to hold that the act is wrong prior to and independently of its legal prohibition, albeit not by how it contributes to inequality and its harms.

  51. Benjamin Eidelson, “Patterned Inequality, Compounding Injustice, and Algorithmic Prediction” American Journal of Law and Equality 1(1) (2021): 252-76 at p. 263.

  52. Victor Tadros, “Criminalization and Regulation” in R.A. Duff, Lindsay Farmar, S.E. Marshall, Massimo Renzo, and Victor Tadros (ed.) The Boundaries of the Criminal Law (Oxford: Oxford University Press, 2014), 163-90 at p. 175-84.

  53. Nicola Lacey, “Historicising Criminalisation: Conceptual and Empirical Issues” The Modern Law Review 72:6 (2009): 936–90 at p. 943.

  54. Moreover, if we imagine that Smith’s act is discovered through an investigation, there may be a harm-based justification for substantively enforcing it. For example, we could permit Jones to seek private recourse and obtain a nominal personal remedy for it from state officials even though Jones was not harmed by it. Peter Benson, “Equality of Opportunity and Private Law” in Daniel Friedmann and Daphne Barak-Erez (ed.) Human Rights in Private Law (Portland, OR: Hart Publishing, 2001), 201-243, at p. 233. The nominal award would reflect how Smith’s committing a discriminatory act based on a certain motive, or that expresses a certain social meaning, typically contributes to inequality and would do so in most nearby counterfactual worlds even if not in the actual world. The prospect of having to give a remedy to victims even when they predict that this kind of act will be beneficial would function as an additional deterrent to perpetrators such as Smith.

  55. Sangiovanni, Humanity Without Dignity, supra note 11 at p. 121.

  56. Eidelson, Discrimination and Disrespect, supra note 5 at p. 98.

  57. Sophia Moreau, “The Moral Seriousness of Indirect Discrimination” in Hugh Collins and Tarunabh Khaitan (eds.) Foundations of Indirect Discrimination Law (Portland, OR: Hart, 2018), 123-48, at pp. 123-29.

  58. Julie Chi-hye Suk, “Antidiscrimination Law in the Administrative State.” University of Illinois Law Review 2006(2) (2006): 404-73 at pp. 1326–28.

  59. Erik Encarnacion, “Discrimination, Mandatory Arbitration, and Courts” Georgetown Law Journal 108:9 (2020), 855-904 at p. 869.

  60. I investigate this issue further elsewhere. Anthony Sangiuliano, “Against Moralism in Anti-Discrimination Law” University of Toronto Law Journal (forthcoming).

Author information

Authors and Affiliations

  1. Cornell University, Ithaca, USA

    Anthony Sangiuliano

Authors
  1. Anthony Sangiuliano
    View author publications

    You can also search for this author in PubMed Google Scholar

Corresponding author

Correspondence to Anthony Sangiuliano.

Additional information

Publisher's Note

Springer Nature remains neutral with regard to jurisdictional claims in published maps and institutional affiliations.

Rights and permissions

Reprints and permissions

About this article

Check for updates. Verify currency and authenticity via CrossMark

Cite this article

Sangiuliano, A. Harmless Discrimination, Wrongs, and Rules. Law and Philos 43, 61–88 (2024). https://doi.org/10.1007/s10982-023-09480-2

Download citation

  • Accepted:

  • Published:

  • Issue Date:

  • DOI: https://doi.org/10.1007/s10982-023-09480-2

Search

Navigation