Discrimination and Freedom

Discrimination and Freedom

Description

There has been a longstanding debate in Anglo-American political philosophy about the relationship between freedom and equality. Isaiah Berlin argued that these two values are always potentially in conflict: full social and political equality can only be achieved by taking certain freedoms away from some people, and even though we may be justified in doing this, we must, according to Berlin, acknowledge the very real loss that this involves and not pretend that it can ever be fully compensated by a gain in equality. Many contemporary political philosophers have followed Berlin in assuming that freedom and equality are competing values, and they have offered us different accounts of the respective weight of these values in a theory of justice: libertarians emphasize the importance of protecting individuals’ liberties, whereas egalitarians emphasize the need to promote social and political equality. Other philosophers, however, have denied that the two values stand in tension at all. Peter Westen and Joseph Raz have urged that equality is really an “empty” value: people are treated as equals when they are given what they are entitled to. On this account, freedom is the primary value, and people are treated as equals as long as each of them is given as much freedom as they are entitled to. By contrast, Ronald Dworkin argued that it is equality, and not freedom, that is the “sovereign virtue”: far from being an empty value, the proper conception of equality will tell us which kinds of freedom we are entitled to, and why. But what about the relationship between freedom and discrimination? Legal and political philosophers are only beginning to think about this, since it is only over the past 15 to 20 years that philosophers have begun to think of discrimination as something worth theorizing about. Wrongful discrimination, broadly conceived, involves disadvantaging certain individuals because they possess, or are believed to possess, a certain kind of characteristic, in circumstances where this disadvantage is unfair. Sometimes this occurs intentionally or explicitly, and we call it “direct discrimination” or “disparate treatment”; sometimes it is a side-effect of a policy adopted for quite different and perhaps even beneficial reasons, and we call it “indirect discrimination” or “disparate impact.” We can helpfully think of both kinds of wrongful discrimination as one way in which the state, and sometimes also ordinary people, can fail to treat people as equals. So if we were to draw a Venn diagram, we would map out unfair discrimination as a smaller circle within the broader circle that represents inequality. So understood, discrimination is not an “empty” value, or equivalent to failing to give someone their due—for it is only certain kinds of traits that we think of as the basis for unfair discrimination. But many questions similar to those that philosophers have asked about equality and freedom arise in the case of discrimination and its relationship to freedom. It may seem, for instance, that the same tensions that Berlin noted between freedom and equality exist between freedom and discrimination. Certainly prohibitions on discrimination have effects on the freedom of contract of the discriminator: under such prohibitions, I am not free to exclude you or “people like you” from my bar because of your race; not free to deny you an apartment lease because of your religion; and not free to refuse to employ you because you are pregnant. One set of questions raised by discrimination and discrimination laws is whether these restrictions on freedom of contract are justified, and these questions have been explored by scholars such as Richard Epstein. However, it is a mistake to suppose that the only freedom at issue in such cases is the freedom of contract of the discriminator. For discrimination also has significant effects on the freedom of the discriminatee, and often also on the freedom of those who share the trait on the basis of which that person was disadvantaged. To take an easy example: Donald Trump’s proposal to ban Muslims who are not U.S. citizens from entering the United States would clearly affect the freedom of movement of Muslims who are non-U.S. citizens, as well as their freedom to take up a variety of opportunities in the U.S. And such a ban would also have effects on Muslims who are U.S. citizens, and whose own freedom of movement is not at issue. Because the ban expresses and encourages prejudice against Muslims and stereotyping of “them” as a group—a group, moreover, that the ban conceives of as un-American and apparently homogeneous – there would be many ways in which it would lessen the social and political freedoms of all Muslims within the United States. So insofar as we are concerned with people’s freedom in cases of discrimination, the real question is not how to balance the discriminator’s freedom against the disadvantaged group’s right to equal treatment, but how to balance different people’s freedoms against each other.

Source Publication

The Routledge Handbook of the Ethics of Discrimination

Source Editors/Authors

Kasper Lippert-Rasmussen

Publication Date

2018

Discrimination and Freedom

Find @ NYU

Share

COinS