Abstract
Many theorists think that discrimination is wrongful because it involves treating discriminatees as if they have a lower moral status than others when in fact all people are moral equals. However, there are strong reasons, expounded by Peter Singer and others, to doubt that all people are indeed moral equals. While it may turn out that, ultimately, these reasons can be shown to be unsound, we cannot rule out the possibility that we are not all moral equals. If we are not, discrimination cannot be wrong because it involves failure to treat people as moral equals. With this in mind, I propose two anti-inegalitarian accounts of the wrongness of discrimination – “anti-inegalitarian” rather than “egalitarian” because, strictly speaking, they do not posit equality of status, and “anti-inegalitarian” rather than “inegalitarian” because they reject almost all (and in the case of one of them, all) inequalities in status. These two accounts have many of the attractions of the moral equality account. Being immune to Singerian doubts about moral equality is also a strength of the accounts because it means that they are not hostage to the outcome of the intricate debate over moral equality. Lastly, the anti-inegalitarian accounts I propose are in some ways preferable to the moral equality account because they have certain implications for the wrongness of discrimination that an account given in terms of moral equality does not have, and which egalitarians so far have not theorized.
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Notes
Hellman (2008, 17) submits that discrimination is wrongful as discrimination only when it involves failing to treat “each person as a person of equal moral worth”. However, she believes discriminatory acts might be wrongful for reasons other than their being acts of discrimination, e.g., for being harmful. All three accounts of the wrongness of discrimination that I discuss in this article can be advanced with a similar openness to there being other wrong-making features in addition to the one each identifies. Such additional features might be invoked to explain, for example, why some instances of discrimination are more seriously wrongful than others (see footnote 19).
Admittedly, this (as we might call it) status-conferring-property approach to moral equality is not the only way to ground moral equality. In its stead, some have pursued what Giacomo Floris calls the relations-first approach, according to which moral equality is grounded in commitment to the view that treating others as inferiors is morally wrong (for a central account along these lines, see Sangiovanni 2017). The two anti-inegalitarian positions I explore below bear negatively on the soundness of this approach in that they imply that it is possible not to treat anyone as inferiors, even if one does not treat everyone as equals. I also suspect that when we say who the relevant “others” we are dutybound not to treat as inferiors are (as friends of the relations-first approach must do), the Singer Problem, as I call it below, reappears in a different form. For two, forceful criticisms of the relations-first approach, see (Floris 2019, 241–249).
One exception is Rawls’ (1971, 508–509) notion of the range property of moral personality. That property, however, supervenes on other properties which are scalar. Accordingly, many theorists challenge Rawls’ view that variations in the subvening scalar properties make no difference to moral equality (Arneson 2015, 3, 36–37; Carter 2011, 549–550; Husi 2017, 392; Sher 2015, 19, 84; for a reply, see Parr and Slavny 2019, 846–850). In any case, the scalar nature of moral status-generating properties might not be essential to Singer’s challenge, even if it strengthens it.
Another challenge arises from the fact that some non-human animals have greater agential capacities (and so, on this picture, higher moral status) than some human beings (Arneson 1999, 104).
This view reflects a challenge to moral equality that differs from the challenge of unequal moral status (Lippert-Rasmussen 2022). Rather than saying that all human beings have a moral status, and that it varies across persons, it says that there is no such thing as moral status. At least, there is no moral status in a non-epiphenomenal sense, where moral status determines what one is morally permitted to do to the holder of the status and what that holder is permitted to do – and accordingly where moral status does not simply sum up the relevant moral injunctions applying to that being.
There are specific reasons (e.g., sexist belief in a gender hierarchy of moral statuses) for denying the moral equality account which do rule out condemning certain kinds of discrimination on egalitarian grounds (see Waldron 2017, 1–40). My concern here is with denial of the moral equality account per se.
I hasten to add, though, that the two anti-inegalitarian accounts I propose are consistent with, and thus can supplement rather than replace, the moral equality account.
Hence, the status misattribution account is consistent with the view that because, say, anencephalics have a lower moral status than cognitively well-functioning human beings, it would be wrong not to treat the latter better than the former to a degree that is fitting given the difference in their levels of moral status.
Admittedly, the same is true of a narrow scope moral equality account – one that does not apply to anencephalic (and relevantly similar) human beings. However, unlike the status misattribution account, a narrow scope moral equality view would commit one to the claim that there is some property of those who fall within the narrow scope in virtue of which they are moral equals.
I accept that it is natural to take the label “the irrelevant property account” to suggest that there exists a property such that whether or not an individual possesses that property makes a difference to its moral status. However, surely one can consistently accept the irrelevant property account and think that no properties make any difference to the moral status of an individual – just as an atheist who rejects the intelligibility of an almighty God can truly say that having the property of having many believers is irrelevant to whether one is an almighty God.
This is one reason why one can accept the two anti-inegalitarian accounts without thinking that there is a presumption in favor of equality. Another is that one could accept them and either of the sufficientarian and incommensurability accounts of moral status I introduce below. In any case, I am not here arguing against a presumption in favor of moral equality. For a helpful discussion of this presumption, see (Gosepath 2015). I thank an anonymous reviewer for pushing me on this issue.
Perhaps a useful, if somewhat provocative, analogy here is with the way a feudalist thinks about social status. From a feudalist’s perspective, the fact that someone has the social status of being noble is itself a reason for treating this person in a particular way such that if one can either prevent a nobleman or a peasant from suffering pain, then, other things being equal, one should do the first given the nobleman’s higher social status.
If the members of one group have higher moral status than the members of another, the former must have some property that boosts their moral status relative to those without that property. Where the members of one group have the same moral status as members of another that can either result from the fact that the members of the two groups are identical in their moral status generating properties or because differences between them in these properties cancel each other out (perhaps the first group scores α for capacity to form a sense of justice and β for capacity to form a plan of life, while the second scores β for capacity to form a sense of justice and α for capacity to form a plan of life).
On the status misattribution anti-inegalitarian account, it may be the case that there is no wrongful discrimination occurring in the polis, since it is not the case that any individual is being treated as if she has a lower moral status than anyone else.
Discrimination is only accidentally non-comparative across individuals in this case, because if the properties had been distributed slightly differently (as could easily have been the case, e.g., if some men had believed in the true religion) some individuals would have been treated as if they had a lower moral status than others. Contrived cases of modally robust, non-comparative discrimination are possible, but for present purposes it is sufficient that, accidentally, discrimination can be non-comparative across individuals. Some might deny that there is any discrimination going on in the Polis of Coincidental Equality, appealing to the relevant comparator constraint on the concept of discrimination, i.e., the view that X discriminates against Y only if there is some relevant comparator, Z, such that X treats Y worse than Z. However, we should reject this constraint, see (Jonker 2018).
If we subscribe to utilitarianism, for instance, we will accept that to the extent that this feature detracts from people’s well-being, it is associated with a wrong-making feature. However, in all those easily imaginable cases where the feature either does not affect people’s well-being or even promotes it, it is neither wrong-making in itself nor associated with the instantiation of some other wrong-making feature.
The sufficientarian account says: For any pair of human beings, X and Y, it is true that, whether or not one of them has a higher moral standing than the other, both have sufficient moral status. An individual possesses “sufficient moral standing” when there is, in some sense, a sufficient number of sufficiently important things that one is not permitted to do to that individual and which this individual is permitted to do. The incommensurability view says: For any pair of human beings, X and Y, if it is not the case that X and Y are qualitatively identical in each and every moral status-relevant respect it is (1) false that X and Y have the same moral standing, and (2) false that one of X and Y has higher moral standing than the other. Arguably, versions of both accounts imply the two anti-inegalitarian accounts. In core cases of discrimination (e.g., in my two opening examples) discriminatees are treated neither as sufficients nor as incommensurables.
For limitations of this purely negative strategy, see Husi 2017, 386. The sufficientarian and incommensurabilitarian views briefly stated in the previous footnote offer more than the purely negative strategy of simply denying that certain ascriptive properties make a difference to moral status. The present epistemological point is also a reason, all things considered, not to prefer a justification of the wrongness of discrimination given in terms of the moral equality account even if that account entails the two anti-inegalitarian accounts and, in addition to that, might explain other facts as well. During peer review, an anonymous reviewer suggested that, unlike the irrelevant property account, the moral equality account can explain both why positive discrimination (affirmative action) is justified and why racial discrimination against black people on the job market that expresses racism is morally different from racial discrimination against white people motivated by a concern to reduce inequality of opportunity across white and black people even if, as the reviewer assumed, both forms of racial discrimination are wrong. In my view, however, each of the three accounts discussed in this paper entails neither that affirmative action is morally required nor that such action is morally permissible: all three simply identify a wrong-making feature of discrimination, and for this reason each is consistent with affirmative action being morally required. Also, while I agree that the two cases of job market discrimination appear morally different, I do not see how the moral equality and irrelevant property accounts differ in their ability to explain this fact. Suppose the moral equality account implies that the discrimination in the first of the cases is wrong on account of its expressive meaning, and that the discrimination in the second case is not wrong because, plausibly, being motivated to reduce inequality of opportunity does not involve treating those who do not benefit from one’s acting on this reason as morally inferior. Supposing this, the moral equality account can explain why the two cases are morally different. That being the case, it is difficult to see why the irrelevant property account does not similarly (a) imply that the first case of discrimination is wrong on account of its expressive meaning – to wit, that race makes a difference to one’s moral status – and that the second case of discrimination is not – being motivated to reduce inequality of opportunity where those who are disadvantaged belong to a certain racial group does not express that race affects moral status; and thus can also (b) explain why the two cases are morally different.
One might wonder how these different characterizations of denying equal moral worth relate. For present purposes, I shall simply assume that the various claims and terms refer to one and the same way of denying equal moral worth.
As far as I can see, Hellman uses “worth” and “dignity” as synonyms. In what follows, I shall only refer to people’s worth when referring to Hellman’s views.
An anonymous reviewer suggested that even if this contention – that the irrelevant property anti-inegalitarians can explain the wrongness of the dress code – is true, the anti-property account must be combined with a presumption in favor of equal moral status that constrains us morally in the absence of a compelling argument in favor of unequal moral status. Without this presumption we are not sufficiently morally constrained in what we can permissibly do to others. In response, I note that in principle one can deny moral equality yet think that there are stringent moral constraints on how we can treat others, morally speaking. Plenty of people think that non-human animals have lower moral status than human animals and that it is pro tanto wrong to cause pain to animals. There may be other reasons why one should embrace a presumption of equal moral status, but the worry about almost any act involving people with lower moral status being morally permitted is not among those reasons (see also footnote 12).
I suspect you would do so even when the imagined status-reduction is counterbalanced by other, and status-boosting, properties.
This is consistent with Hellman’s general view that discrimination is wrong (in a distinctive way) because it demeans. However, the present account implies that her view must be adjusted to allow for demeaning acts that are consistent with moral equality.
More generally, one might suggest tweaking the moral equality account as follows: The revised moral equality account: “Discrimination is wrongful because it involves treating discriminatees either as if they have a lower moral status than relevant others when in fact all people are moral equals or as if they have equal moral status for the wrong sorts of reasons.” With the second disjunct, this account implies that whatever discrimination takes place in the Polis of Coincidental Equality is wrongful. One might even point to Hellman’s first and non-comparative sub-principle of the principle of equal moral worth – “there is a worth or inherent dignity in persons that requires that we treat each other with respect” (Hellman 2008, 6; see above) – and suggest that those in the Polis of Coincidental Equality violate this principle because respecting people requires not treating them as if their gender etc. makes a difference to their moral status (whether or not that difference is balanced out by countervailing considerations). Unfortunately, the revised moral equality account seems problematic in other ways, however. Suppose I treat all human beings equally, and that I do so because I think they all have the same moral status in virtue of all being equally members of Homo sapiens. This seems to be treating all people equally for the wrong sort of reason – it is not in virtue of belonging to a particular species that we enjoy the moral status that we do. Still, it is at least unclear whether we want the moral equality account to condemn this act. In connection with Hellman’s non-comparative sub-principle, I would stress that my suggestion above about how to understand it is not grounded in anything she says. More substantively, I note that if this is the best, or the exegetically correct, way to understand that sub-principle, that simply shows that the sub-principle, in conjunction with the plausible premise that discrimination involves treating people differently on the basis of properties that are irrelevant from the perspective of respect, justifies something like the irrelevant property account. Given this, the present discussion should be seen, not as a criticism of Hellman’s account, but as an explication of some hidden implications of the account she offers that are in tension with some of her claims. I thank an anonymous reviewer for pressing me on this issue.
Utilitarians accept that people have equal moral worth (or rather, without the Kantian connotations, status) in the epiphenomenal sense that ‘‘the like interests of all those affected by our actions” have equal moral weight (Singer 2011, 20). However, they deny that the moral status of an individual makes a difference to how we are permitted to treat them and what they are entitled do, morally speaking: a particular interest of a person might take moral priority over the equally significant interest (prudentially speaking) of a non-person such as a dog. This is the non-epiphenomenal sense of moral status that takes centerstage in this article (see also Lippert-Rasmussen 2022).
Cp. Hellman’s (2008, 80) (plausible) view that white applicants are not demeaned by affirmative action because “there is no history of whites qua whites being excluded that gives this interpretation traction”.
Admittedly, not ascribing moral worth to someone who has moral worth might be considered demeaning. I set this complication aside, because Hellman’s account of the wrongfulness of discrimination focuses on the ascription of differential moral worth to different individuals.
Moreover, we could easily fine-tune the status misattribution and irrelevant property anti-inegalitarian accounts in such a way that they, too, incorporate the requirement that persons are treated in the way their non-comparative worth implies they should be treated and thus entail condemnation of the imagined situation.
By a “basic good” Moreau (2020, 126, 249) means a good access to which is necessary if one is to be, and is to be seen as, an equal in one’s society.
The argument I press here in relation to subordination also applies mutatis mutandis to acts and procedures depriving people of deliberative freedoms and basic goods.
The following passage – “I do not think that equal status within a society of equals is something that admits of… offsetting of certain inferiorizing acts by other privileges” (Moreau 2020, 219) – suggests Moreau would concur that the relevant objectionable feature derives from the ideal of relating as equals.
Moreau discusses moral equality together with some arguments for the view that the state has a duty to treat people as equals (Moreau 2020, 220–226). Obviously, these two issues are connected, though we can set aside the latter. Any proposed reasons explaining why the state is dutybound to treat citizens as moral equals would not involve arguments for moral equality but rather arguments from basic equality.
Carter’s (2011) moral equality argument might not rest on the identification of such a set of properties, but that is because it is not really an argument for the claim that all persons have equal moral status, but rather an argument explaining why we have a duty to treat them as if they have that status (Christiano 2015, 58).
Admittedly, disabled people appear on most lists of protected traits and while most disabilities do not lower agential capacities, some do. In those cases, however, it is still under the description of being disabled that one belongs to the group of people with protected traits.
Admittedly, this supposition renders the two anti-inegalitarian accounts false only if a natural interpretation of which groups of people and which properties they apply to is adopted.
It is true that we would not have this expectation in overdetermination cases, where there are two independent accounts of the truth of the same fact each of which is conclusive. This possibility once again draws attention to the fact that the moral equality account and the two anti-inegalitarian accounts might supplement one another.
Some might accept that in cases of differential treatment based on the properties that are at stake in typical situations involving wrongful discrimination, e.g., gender and race, we can be confident that the irrelevant property anti-inegalitarian account is true of those properties. However, we can also ask proponents of this account whether differential treatment based on properties that are not typically at stake in situations involving wrongful discrimination (e.g., differential treatment based on levels of agential capacity) is wrong. This sort of question may seem to push proponents of the irrelevant property account to explain which properties do in fact confer moral status. However, proponents of neither of the two anti-inegalitarian accounts need to feel pushed on that point. Consistently with their accounts of wrongful discrimination, they can remain agnostic on what grounds moral status, and thus remain neutral on whether the better candidates, like level of agential capacity, does the job, and still be justifiably confident that, say, men do not have higher moral status than women, and that gender is a property that makes no difference to moral status. In short, they do not have to engage with the Singer Problem. Things are different for proponents of the moral equality account because that account seeks to explain the wrongness of discrimination by appealing to the fact of moral equality: being agnostic about one’s explanans is then indefensible.
A previous version of this paper was presented over zoom at a REAL workshop at Trinity College, Dublin, June 7–8, 2021, and at a workshop at UiT-Norways Arctic University, June 3, 2022. I am grateful to the participants for helpful comments, especially Showkat Ali, Ian Carter, Pei-Lung Chen, Zsolt Kapelner, Gerald Lang, Jeff McMahan, Marie-Thérèse Montana, Michael Morreau, Adina Preda, Gopal Srinivasan, Bastian Steuwer, Jens Damgaard Thaysen, Laura Valentini, Annamari Vitikainen, and Ariel Zylbermann. This work was supported by the Danish National Research Foundation (DNRF144).
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Lippert-Rasmussen, K. Wrongful Discrimination Without Equal, Basic Moral Status. Ethic Theory Moral Prac 26, 19–36 (2023). https://doi.org/10.1007/s10677-022-10343-3
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DOI: https://doi.org/10.1007/s10677-022-10343-3