Discrimination Law’s Virtue

What Aristotle can teach modern discrimination scholars

The New Digest is please to present a guest post by Dr Khomotso Moshikaro. Dr Moshikaro is Senior Lecturer in Private Law (University of Cape Town), Fellow in Criminal Law and Evidence (Edinburgh), Visiting Professor in the Common Law in a Global Context (Ruhr Universitat Bochum). Khomotso is a private and public law scholar who, like most sound people, spends too much free time thinking about debates in the Classical and Early Christian World. The post is the last installment in our running symposium on Michael Foran’s new book “Equality Before the Law.”

In a growing and complex literature, Michael Foran’s account of wrongful discrimination stands out in its clarity and coherence. It brings light, rather than adding heat, to various debates plaguing the field. Others have rightly praised Foran for his close attention to constitutional principle and the rule of law’s influence on wrongful discrimination. Here, however, I wish to address instead his treatment of the very concept of wrongful and demeaning discrimination. Foran unabashedly conceives of the prohibition against wrongful discrimination as a deontic principle that concretises the moral equality of persons in law. He expressly rejects what we can term a liberty-based account of wrongful discrimination. A liberty-based account would conceive of the wrongfulness of wrongful discrimination as a violation of the right for a person to enjoy certain freedoms without being unjustly hindered in doing so by certain traits he may possess. Instead, Foran argues that the wrongfulness of wrongful discrimination should be an equality-based account concerned with addressing cases when we fail to treat another as a moral equal. I am no fundamentalist liberal so I am sympathetic to Foran’s arguments here. However, I am also not the committed Kantian he is either, and so have qualms with how Foran later develops his equality-based conception of wrongful discrimination. What follows is less a critique, but a call for modification (and some supplementary addition) to the more categorical claims made by Foran about what it means to treat someone as an equal. I would hope that he would be sympathetic to these modifications, and where he is not that others would see the need for them.

Relying on the work of Benjamin Eidelsohn, Foran accepts that the moral equality of persons can have two dimensions – (i) disrespect for a person that fails to treat someone as an equal because they are members of some group or possess some trait and (ii) disrespect for a person as an individual. Any one of these forms of disrespect may be wrongful, but under certain conditions would be far more serious and so would best be classified as demeaning discrimination. Demeaning discrimination, Foran tells us, cannot be countenanced. It is this last statement I wish to probe. Foran argues that demeaning discrimination is morally impermissible because it directly violates moral equality and treats individuals or groups as inferiors. But here is where things get a little complicated. If you will recall a part of moral equality is the treatment of persons as individuals. After all, all human beings are persons with the capacity for choice. So, an individual’s choices must in turn be respected. However, when we do so we cannot treat them as inferiors. Discrimination law takes this injunction so seriously that it prohibits discrimination against anyone on the basis of their chosen religious affiliation, philosophical beliefs and freedom of conscience. However, imagine a religion that is avowedly committed to their own racial superiority and considers individuals with different racial characteristics inferiors by definition. We must consider such religious individuals as guilty of demeaning discrimination and so any legal order committed to moral equality cannot tolerate such a group holding and manifesting their beliefs. It certainly cannot extend the protections of discrimination law to allow members of such a religion to attempt to subordinate apparently inferior individuals. And yet, what do we do with our injunction to treat them as individuals precisely because of our commitment to moral equality. A commitment to moral equality itself cannot help explain how and why we can rightly reject the invitation to respect the firmly held religious views of these individuals. This is because we cannot focus on the equality of persons to do much work here.

Instead, we must focus on the inequality in the moral value of these persons to get out of this seeming tension. The moral value concerned here can only be the character and virtue of these individual choices. Discrimination law cannot consider it wrongful to recognise the obvious disvalue of viceful and hateful individual choices and beliefs such as this. However, how does it avoid being branded as guilty of the very kind of demeaning discrimination here that fails to treat even individuals who hold odious religious and philosophical beliefs as equals? My suggestion is that implicit in the liberal order and its trumpeting of equality norms is an old aristocratic ethic that recognises inferior character (even as this applies to groups). The vice of unearned superiority disclosed by the hubris and arrogance of these religious minorities can only be responded to with an ethic of apt contempt. Contempt requires that we respond to such arrogance and hubris with a judgement not only that such persons hold beliefs that are harmful in some manner, but because they aim to treat others as inferiors, they disclose their own inferior character and moral status. Now, Foran here would rush in to warn us not to think that this inferior status could ever mean inferior qua basic humanity. We cannot torture them or some equivalent. Needless to say he is correct. However, discrimination law itself cannot offer them any solace – it requires that we withdraw protections we would have extended. We cannot treat them, therefore, as equal to those with other religious or philosophical beliefs in our moral community.

Before one shrugs the implications of this position off, imagine how individuals and groups who are found by the liberal order to violate less controversial equality norms may react to such a determination? It would not be the dispassionate assessment of ‘balancing rights’ between litigants in an equality claim, but rather a judgement by state authorities about the low character and vices of such a religious individual and group. Perhaps the point is easier to see when we move from the realm of racial discrimination to sexual (some may say gender) attraction, gender identity, sex-based rights etc. To use the language of the UK Equality Act, is it the case that these views would not be acceptable in a free and open democratic society’. This is a global assessment of one’s beliefs and character, not simply a judgement of individualised conduct. Ironically, the liberal order cannot save itself from the creation of hierarchies of belief. More troublingly for liberals, it cannot help but create social hierarchies of virtuous and viceful groups and individuals. The categorical injunction that demeaning discrimination cannot be countenanced requires that religious and philosophical beliefs be probed for signs of the vice of unearned superiority or hubris where groups or individuals could ever believe (and manifest the belief) that other groups are morally inferior. Inevitably, faith groups that think some sexual relationships (and indeed attractions) are to be prioritised over others will have to be prohibited from manifesting such beliefs on a fundamentalist application of this position. Those women who think that biological sex may take priority over gender identity in crafting prison policy, data collection in the census and so forth will also in due course have to be declared as moral inferiors if we are committed to moral equality.

But this need not be some fait accompli of discrimination law. A better way to think of the main question a court has to face when dealing with such cases of religious and philosophical disagreement would be to ask if indeed a particular religious or philosophical position genuinely displays the vice of hubris or arrogance. Does a female policy analysist who thinks biological sex matters for a range of policies affecting female prison inmates (and with whom they are housed) reveal the kind of hubris that warrants contempt? The stakes are high. What must matter is whether we get our Aristotelian instincts right, rather than cleaving to Kant. A court must provide the normative reasons that justify our moral reactions of contempt. This may make us uncomfortable since there is the unwarranted fear that acknowledging inequality in virtue and morality ought not to feature in our concepts of wrongful discrimination. However, my argument here is that wrongful discrimination itself calls us to make these assessments precisely as a result of its commitment to treating persons as individuals (and later as chosen religious or philosophical societies or groups). This also means that we cannot say that it is only thinking of someone as an inferior per se that makes one guilty of demeaning discrimination. One must actually mean that they are less than human, rather than morally inferior in some other sense. This ought to be a much more carefully circumscribed category appropriate only to those we genuinely think are worthy of apt contempt. Introducing contempt into Foran’s schema helps us appreciate the stakes at hand when we find persons to have demeaned someone. My suggested amendment to him then in his definition of discrimination is as follows:

Demeaning discrimination: discrimination which is morally impermissible because it directly disrespects moral equality warranting apt contempt and treats individuals or groups as inferiors qua their status as human beings.

The focus on this basic equality of human status is a sharp reminder of who the liberal state regards worthy of contempt and what it will be communicating to those of us who would not follow the intricacies of a discrimination claim in a court. I would hope Foran would agree with my amendments. If not, then it may be a testament to why, even for a brilliant and remarkable mind, too much deontology can be a vice.