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THE SUBSTANTIVE PRINCIPLE OF EQUAL TREATMENT

Published online by Cambridge University Press:  01 June 2009

Patrick S. Shin
Patrick S. Shin*
Affiliation:
Suffolk University Law School
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Abstract

This paper attempts to identify a principle of equal treatment that gives specific structure to our widely shared judgments about the circumstances in which we have moral reason to object to the differential adverse treatment of others. I formulate what I call a “substantive” principle of equal treatment (to be distinguished from principles of formal equality) that describes a moral constraint on the reasons we can have for picking out individuals for differentially adverse action. I argue that this constraint is violated when an action, in view of its rationale, expresses lesser respect for the moral status of an individual under some differentiating description compared to the respect reserved to another class of individuals who are not picked out by that description. I show that this substantive demand of equal treatment is not morally otiose and I reveal the fallacy underlying accounts that have concluded otherwise.

Type
Research Article
Information
Legal Theory , Volume 15 , Issue 2 , June 2009 , pp. 149 - 172
Copyright
Copyright © Cambridge University Press 2009

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References

1. I am referring here to actions by individual agents or institutional actors, not the “actions” of a society in arranging for the distribution of goods and resources. Thus the question of equality I am raising here is very different from the central concern of political philosophy, which usually focuses on what it means for a society to be characterized by equality or justice. See Anderson, Elizabeth, What Is the Point of Equality?, 109 Ethics287 (1999)Google Scholar; see also Will Kymlicka, Contemporary Political Philosophy: An Introduction 3–4 (2d ed. 2002); John Rawls, A Theory of Justice 47 (rev. ed. 1999) (explaining that his theory of justice governs the basic institutional structure of society, not the decision-making of agents within that structure).

2. See, e.g., Rawls, Theory of Justice, supra note 1, at 50–51; Simons, Kenneth W., The Logic of Egalitarian Norms, 80 B.U. L. Rev.693, 698, 727–728 (2000)Google Scholar.

3. See Rawls, Theory of Justice, supra note 1, at 50–51; William Frankena, The Concept of Social Justice, in Social Justice 9 (Richard Brandt ed., 1962); Peter Westen, Speaking of Equality: An Analysis of the Rhetorical Force of “Equality” in Moral and Legal Discourse 193 (1990); Bernard Williams, The Idea of Equality, in Equality: Selected Readings 91 (Louis P. Pojman & Robert Westmoreland eds., 1997).

4. In fact, I do not think the formal principle is tautologous or empty. I believe that a complete conception of equal treatment should provide an account of the formal principle as well as the substantive principle. The latter is my focus in this paper. I argue elsewhere that previous accounts of the formal principle have not fully captured the structure of arguments from formal inequality of treatment nor adequately explained how such arguments can often seem to have the moral force and significance that they do. My own account of the formal principle attempts to provide such explanation, but further elaboration is beyond my scope here.

5. I argue elseswhere for an interpretation of the formal principle that is somewhat more complicated than I suggest here, but the point I am presently making applies just the same to either formulation.

6. This aspect of the formal principle is sometimes taken to show its inadequacy as a principle of justice or its weakness as a moral principle. But what I take the inadequacy to show is that the formal principle by itself does not provide a fully adequate account of the concept of equal treatment. This does not imply that the formal principle is not an important part of the concept.

7. One answer that does not seem plausible to me is that the equal treatment of a group of individuals always requires the promotion of equality of outcomes within that group. If an employer pays a bonus to one of her employees, the mere fact that this differential reward would make her employees unequal in wealth does not imply, without more, that the employer has violated any requirement of equal treatment. Conversely, the employer violates a norm of equal treatment if she docks the pay of an employee because of the employee's race, even if that action has an equalizing effect on the overall wealth of her employees. The idea of equal treatment, interpreted as a constraint on individual action, does not reduce to a standing normative presumption in favor of actions that benefit the less well-off or promote outcomes tending toward distributive equality. I think this is true whether or not we favor an egalitarian theory of justice. Cf. Rawls, Theory of Justice, supra note 1, at 47 (distinguishing the principles of justice from principles that govern individual action); see also John Rawls, Justice as Fairness: A Restatement 11 (Erin Kelly ed., 2001) (same).

8. A difference may be relevant in some contexts but not others. For example, sex may not be relevant to decisions about which doctors should be awarded a surgical residency but it might be relevant to decisions about which doctors should be assigned to examine female victims of sexual abuse.

9. Let us assume that the demand of formal equality of treatment is satisfied here in virtue of the employer's consistent application of a hiring rule that calls for ranking of candidates based on college performance.

10. It seems to me that Johnson's real complaint (if he has one) is simply that the hiring decision was arbitrary or baseless.

11. Addressing the problem of distinctiveness may not necessarily require proof that the substantive objection of unequal treatment uniquely picks out a class of actions to which we would otherwise have no moral objection or that there exists a special class of reasons for action consisting in irreducible considerations of equality. For purposes of establishing distinctiveness, it may be enough to show that the substantive objection of unequal treatment picks out features of an action or of the structure of its motivation that are not captured by other moral objections that may also apply. The latter is the conclusion for which I argue.

12. The presumption of equal moral status is a moral claim, not an empirical one. As Kenneth Simons puts a related point, “normative equality need not supervene upon descriptive equality.” Simons, supra note 2, at 726. Or perhaps it might be better to say that it is a moral question whether any particular descriptive equality should be thought to be sufficient for equality of moral status.

13. See, e.g., Brian Barry, Equality, in 1 Encyclopedia of Ethics 322–323 (Lawrence C. Becker ed., 1992). Barry identifies in various discussions of equality a common idea of “fundamental equality,” which he describes as encompassing the notion that all human beings have equal moral worth and are entitled to equal moral respect and concern.

14. Rawls, Theory of Justice, supra note 1, at 447.

15. Id. at 297. As I argue below in my discussion of Ronald Dworkin's view, this notion of mutuality of respect does not by itself provide an adequate understanding of the substantive requirement of equal treatment.

16. See John Rawls, Justice as Fairness: Political not Metaphysical, in Collected Papers 400 n.19 (Samuel Freeman ed., 1999).

17. John Rawls, A Kantian Conception of Equality, in Collected Papers 255 (Samuel Freeman ed., 1999).

18. See Ronald Dworkin, Taking Rights Seriously 180 (1978).

19. Id. at 227. Dworkin actually draws a distinction between “equal treatment,” which he associates with the right to equal distributive shares, and “treatment as an equal,” which he connects with the right to equal respect and concern. I do not adhere to this useage, which seems to me largely stipulative, in my own discussion.

20. Id. at 357.

21. The objection could also be put to Rawls, insofar as his remarks can be taken to suggest that moral equality of treatment reduces to treating everyone equally in accordance with the duty of mutual respect.

22. Raz, Joseph, Professor Dworkin's Theory of Rights, 26 Pol. Stud.123, 130 (1978)Google Scholar.

23. Raz reiterates the point in later writings. See Joseph Raz, The Morality of Freedom 220, 228 (1988).

24. Dworkin's own reply to Raz on this point strikes a rather concessionary note. Dworkin allows that it would “perhaps” be better to speak just of “respect and concern” rather than of “equal respect and concern” and then adds that “the idea of equality” means something like “attempting, so far as it is possible, to see the situation of each person defined through the ambitions and values of that person.” Dworkin, supra note 18, at 356–367. This interpretation of equal respect and concern, however, sounds very much like a demand for reciprocity rather than for equality as such. A wide variety of actions that violate that sort of demand (e.g., promise-breaking, lying, killing) are not typically going to be objectionable on the specific grounds of unequal treatment. Thus the reciprocity interpretation fails to capture what is morally distinctive about the demand for equal treatment. The response to Raz that I develop below attempts to do just that.

25. This distinction is related to the one that Joel Feinberg draws between the notion of comparative and noncomparative justice, but I do not follow Feinberg's usage precisely. See Feinberg, Joel, Noncomparative Justice, 83 Phil. Rev.297 (1974)Google Scholar. My understanding of this idea has been aided greatly by Peter Westen's discussion, although I disagree with many of his conclusions. See Westen, supra note 3, at 72–74, 134–139. See also Simons, supra note 2, at 693–771; Hoffman, Joshua, A New Theory of Comparative and Noncomparative Justice, 70 Phil. Stud.165 (1993)Google Scholar.

26. As an example, Raz asserts that a “person who keeps his promises to one person and breaks his promises to another is . . . treating them unequally,” but “the wrong is the same as where . . . a person always breaks his promises to all. . . . To accuse him of unequal treatment . . . is not to identify the nature of the wrong.” Raz, Morality, supra note 23, at 228–229.

27. Rawls, for example, describes an idea of moral or “fundamental” equality that applies to the respect that is “owed to human beings as moral persons.” Rawls, Theory of Justice, supra note 1, at 447. Richard Arneson, in a prelude to an avowedly inconclusive investigation into the basis of moral equality, says this: “Neither supposed racial differences, nor skin color, sex, sexual orientation, ethnicity, intelligence, or any other differences among humans negate their fundamental equal worth and dignity. These platitudes are virtually universally affirmed.” Richard J. Arneson, What, if Anything, Renders All Humans Morally Equal?, in Singer and His Critics 103 (Dale Jamieson ed., 1999).

28. Williams, supra note 3.

29. As discussed below, this aspect of the formulation will require some revision in order to capture adequately our common understanding of equal treatment.

30. I use the term “individuals” advisedly so as not to limit the principle's application to, say, persons or human beings. My discussion to this point (and hereinafter) assumes, however, that the requirement of equal treatment applies to individuals who share the same moral status—for example, all human beings who are persons. I do not take this assumption to be controversial, particularly because my aim here is to analyze the moral objection contained in a commonly held notion of equal treatment rather than to resolve debates about whether that notion extends to entities such as fetuses or nonhuman animals. If this assumption were rejected, then the differential treatment of two individuals with different moral status—e.g., a nonperson and a person—would give rise to an objection of unequal treatment under (S0) if that treatment expressed unequal treatment for the moral status of the nonperson. The difficulty would be that this sort of “unequal treatment” should arguably be regarded as morally justified. This is not fatal to (S0) nor to the more adequate principle (S) I ultimately endorse below, but my account would then have to be slightly adjusted to allow more explicitly for a distinction between justified and unjustified unequal treatment. For my present purposes, however, I assume that the moral demand of equal treatment with respect to a given set of individuals generally presupposes that the individuals entitled to the equal treatment share the same moral status.

31. Perhaps there is some sense in which the indiscriminate killer engages in unequal treatment, but then all cases in which an agent excepts himself from a moral rule would also constitute unequal treatment in that same sense. Thus this sense of unequal treatment could not provide an answer to the otiosity objection.

32. The example is a variant of one offered by William Frankena. See Frankena, supra note 3, at 17.

33. One may be reminded here of one of Sidney Morgenbesser's memorable quips. When asked by a reporter whether Morgenbesser believed he had been treated unjustly or unfairly when he was hit on the head by the police during a student protest, Morgenbesser reportedly responded that he had been treated unjustly but not unfairly: unjustly because the police ought not to have hit him on the head, but not unfairly, “since they hit everyone else over the head, too.” Obituary, Sidney Morgenbesser, The Times (London), Sept. 8, 2004; see also Sidney Morgenbesser, 82, Kibitzing Philosopher, Dies, N.Y. Times, Aug. 4, 2004. (Both obituaries actually seem to misquote Morgenbesser, transposing the words “unjust” and “unfair.” See the online posting by Gilbert Harman at http://crookedtimber.org/2004/08/03/sidney-morgenbesser, Aug. 5, 2004 for an account of what Morgenbesser actually said.) Morgenbesser's terminology differs from mine, but the point is the same: there is a difference—one that an adequate account of equal treatment must register seriously—between the indiscriminate trampling of individuals' rights and the unequal treatment of individuals in respect of their rights.

34. It is consistent, for example, with the common notion that equal treatment is concerned with the differential treatment of individuals based on group characteristics. See, e.g., Adarand Constructors v. Peña, 515 U.S. 200, 227 (1995) (O'Connor, J.). But I do not want to make too much of this common notion. I would not want to claim that group-based generalizations are always subject to an equal treatment objection. On some of the difficulties with such a claim, see Cass R. Sunstein, One Case at a Time 125–126 (1999). And I want to be clear that the objection of unequal treatment does not depend, in my view, on any notion of “natural” groups or “natural” group differences. Thus my substantive principle does not imply or reduce to anything like the equal-protection principle postulated by Owen Fiss. See Fiss, Owen, Groups and the Equal Protection Clause, 5 Phil. & Pub. Aff.107, 148 (1975)Google Scholar.

35. An exception might be a case in which some agent, say Hatfield, picks out some individual for worse treatment because that individual is a McCoy, and the action expresses a judgment that McCoys in general have a lesser moral standing than people who are not McCoys, such as Hatfields.

36. I do not deny, however, that given more detail about the case, we might plausibly reach a different conclusion. If there were reason to believe that the dictator's action really was predicated on some notion of the inferiority of the particular class of victims selected, then the action could count as unequal treatment under (S).

37. As noted above (see supra note 35), an exception to this general rule might be required where a proper name was used to pick out a group of individuals, such as a family, tribe, or other group.

38. This same distinction allows us to understand why the punishment of criminals and the paternalistic treatment of children are not automatically objectionable as unequal treatment. Depriving criminals of certain rights and privileges does not imply a rejection of or disregard for their moral status. Imprisoning someone who has committed a crime, for example, is not predicated on any judgment that the individual is somehow less entitled than noncriminals to demand justification for that treatment. On the contrary, legitimate state-sanctioned punishment depends upon justification under general principles that no one could reasonably reject. (Absent such justification, an objection of equal treatment might very well arise.) To put it another way, the differential treatment of criminals is consistent with the demand of equal treatment not because we are justified in disregarding the moral status of criminals but because—and only to the extent that—our treatment of them is based on justificatory principles that express respect for their moral status. The case of children is perhaps more controversial. Some might argue that children have the same moral status as adults (i.e., are entitled to the same moral consideration) but that it is justifiable to treat them differently in light of their inchoate rationality. If that is true, then their different treatment does not express unequal respect. Others might argue that children do not have the same moral status as adults, in which case the requirement of equal treatment simply does not apply to them in the same way, as discussed supra, note 30.

39. It may be worth adding explicitly that whether an action expresses an attitude of inequality of respect does not necessarily imply that anyone suffers a harm, dignitary or otherwise. Conversely, the fact that someone suffers a dignitary harm because of an action will not be sufficient to qualify it as unequal treatment.

40. For a helpful discussion of what it means in general for an action to express an attitude, see Anderson, Elizabeth & Pildes, Richard, Expressive Theories of Law: A General Restatement, 148 U. Pa. L. Rev.1503, 1512–1513 (2000)Google Scholar. Anderson and Pildes observe that “people's conscious purposes and intentions, while relevant to, are not the sole determinants of, what attitudes their actions express.” Id. at 1513.

41. As Tim Scanlon puts it, an agent's reasons for acting can affect the “meaning” of the action for the agent and others. T.M. Scanlon, Moral Dimensions: Permissibility, Meaning, Blame (2008).

42. What about the following case, based on a hypothetical suggested by an anonymous reviewer for Legal Theory? Suppose that a prosecutor is racist and tries to obtain harsher punishments for black defendants than white defendants but, due to his incompetence, actually ends up accomplishing the reverse. Is there an objection of unequal treatment under (S)? I think so: in light of the prosecutor's goal, the differential treatment of the black and white defendants surely can be regarded as an expression of unequal respect for those individuals under those race-based descriptions, even though the results ultimately produced by the prosecutor are not what he intended. And I think that (S) delivers the right answer here. To be sure, neither the white nor the black defendants are in the best position to assert the unequal treatment objection, insofar as the former are only unintended victims and the latter are actual beneficiaries of the prosecutors' actions; but it does not follow that there was no unequal treatment. If we accept (S), then claiming that the prosecutor's bungled plan to achieve disparate results constitutes unequal treatment is just to claim that his actions are morally objectionable because they give voice (albeit inarticulately) to a judgment that black and white defendants have different moral standing.

43. Anderson and Pildes suggest several ways in which actions may express attitudes that are at odds with agents' actual intentions in acting. “First, they might act negligently or thoughtlessly, by failing to notice or take certain considerations as reasons for action,” and in so acting, their behavior might express a certain attitude of “inconsiderateness.” Anderson & Pildes, supra note 40, at 1512–1513. “Second, people may act in ignorance of social conventions or norms that set public standards for expressing certain attitudes. . . . Third, people may act on attitudes or assumptions of which they are unaware.” Id. at 1513.

44. For a similar discussion of the wrongness of discrimination, see Scanlon, supra note 41, at 72–74.

45. This does not imply that rights to equal treatment must be understood as rights protecting solely against expressive harms. First, expressive harm is neither necessary nor sufficient to a violation of (S). Second, when an objection of unequal treatment lies, there is necessarily an objection to the treatment's expressive content, but the objection is to the treatment as a whole (in view of its rationale). However, as I elaborate further in the next section, it is indeed my position that the objection to the treatment's expressive content is what accounts for the moral distinctiveness of the complaint of unequal treatment. I am grateful to an anonymous reviewer for prompting me to make this clarification.

46. I do not mean by my definition of “right treatment” to suggest that equal treatment is not itself a right. My terminology here is meant to mirror the sentiment behind the otiosity objection, which basically claims that any right to equal treatment is redundant of our noncomparative rights. That is of course the claim that I wish to reject.

47. This distinction is not necessarily meant to be substantively different from the original distinction between noncomparative and comparative requirements. It is largely heuristic and is meant to provide a slightly different way of articulating the skeptical challenge to the moral distinctiveness of equal treatment.

48. J.R. Lucas makes just this kind of point in arguing that the idea of equal respect for humanity has nothing to do with equality as such. See J.R. Lucas, Against Equality, in Justice and Equality 140–141 (Hugo Bedau ed., 1971). And as discussed above, Joseph Raz makes a similar argument in arguing against Dworkin's notion of equal respect and concern. See Raz, Morality, supra note 23, at 228–229; see also Peters, Christopher J., Equality Revisited, 110 Harv. L. Rev.1210, 1213 (1997)Google Scholar.

49. I am bracketing here any questions about whether the rejected applicant would have a legal claim of discrimination. We might very well have good reason, from an institutional standpoint, to regard the decision-maker's actions as legally impermissible whether or not we could say that the employer's action was morally impermissible.

50. The skeptic about equal treatment might argue that even though neither applicant has a claim to the position, they both do have a claim that the decision-maker use some impartial procedure for determining which of them is selected. The skeptic might then say that it is in virtue of this latter claim being violated, not in virtue of any distinct proscription against unequal treatment, that the official's action is objectionable even if the rejection of the disfavored applicant itself is permissible. But this leaves the skeptic with no way to distinguish the wrongness of what the decision-maker does in this case from the wrongness of a case in which the actor refuses to use an impartial procedure for nonracist reasons, for example, simply because she is lazy. In both cases, the decision-maker violates any claim the applicants might have to an impartial procedure. I think there is a further character to the wrongness of the racist decision-maker's action. My claim is that this additional aspect of the action's wrongness is given by its violation of the substantive requirement of equal treatment.

51. See Scanlon, T.M., Intention and Permissibility I, 74 Proc. Aristotelian Soc'y301 (2000)Google Scholar; Thomson, Judith Jarvis, Physician-Assisted Suicide: Two Moral Arguments, 109 Ethics497 (1999)Google ScholarPubMed; Thomson, Judith Jarvis, Self Defense, 20 Phil. & Pub. Aff.283, 293 (1991)Google Scholar; Bennett, Jonathan, Morality and Consequences, 2 Tanner Lectures on Human Values96–99 (1981)Google Scholar