basic equality and discrimination reconciling theory and law (applied legal philosophy) by nicholas mark smith

《basic equality and discrimination reconciling theory and law (applied legal philosophy) by nicholas mark smith》由会员分享，可在线阅读，更多相关《basic equality and discrimination reconciling theory and law (applied legal philosophy) by nicholas mark smith（8页珍藏版）》请在装配图网上搜索。

1、Basic Equality and Discrimination Reconciling Theory and Law (Applied Legal Philosophy) by Nicholas Mark SmithBasic Equality and Discrimination Reconciling Theory and LawNicholas Mark Smith Basic Equality and discriminationFor Amy and ByronBasic Equality and discriminationreconciling theory and lawn

2、icholas mark smithMassey University, New ZealandII? nicholas mark smith 2011all rights reserved. no part of this publication may be reproduced, stored in a retrieval system or transmitted in any form or by any means, electronic, mechanical, photocopying, recording or otherwise without the prior perm

3、ission of the publisher.nicholas mark smith has asserted his right under the copyright, designs and Patents act, 1988, to be identified as the author of this work.Published by ashgate Publishing limited Wey court East union road Farnham surrey, Gu9 7Pt England ashgate Publishing companysuite 420101

4、cherry streetBurlingtonVt 05401-4405usa ashgate British Library Cataloguing in Publication Datasmith, nicholas, 1954- Basic equality and discrimination : reconciling theory and law. - (applied legal philosophy) 1. Equality before the law. 2. discrimination-law and legislation-Philosophy. i. title ii

5、. series 340.11-dc22 Library of Congress Cataloging-in-Publication Datasmith, nicholas, 1954- Basic equality and discrimination : reconciling theory and law / by nicholas mark smith. p. cm. - (applied legal philosophy) includes index. isBn 978-1-4094-2843-5 (hbk) - isBn 978-1-4094-2844-2 (ebk) 1. di

6、scrimination-law and legislation. 2. Equality. i. title. k3242.s627 2011 342.085-dc22 2011004228isBn 9781409428435 (hbk)isBn 9781409428442 (ebk)ContentsPreface vii1 Introduction 12 Why Should We Speak of Equality? Why Westen Thinks Equality is Empty Waldrons Defence of Equality The Point of Talk abo

7、ut Equality 131315183 Why Do We Value Basic Equality? Introduction Range Properties Metaethical Considerations The Ethics of Superiority 27273035414 The Scope of Basic Equality Introduction Basic Equality and Morality When are We Bound by Basic Equality? 454545525 Basic Equality and Other Values Int

8、roduction Basic Equality and Fundamental Freedoms Enforcing Basic Equality Other Types of Liberty Equal Values? 5757596568696 Denying Basic Equality Introduction What Constitutes a Denial of Basic Equality? Some Different Types of Denial of Basic Equality 757576807 Discrimination and Culture Introdu

9、ction Definitions? ? ?898990Basic Equality and DiscriminationviWhat is Discrimination Against a Cultural Group? Is Critiquing Other Cultures Morally Permissible? Cultural Rights 9596998 EqualityPrefaceThis is a book, another one, about equality. My interest in the subject developed, as it happened,

10、in the context of moral disapproval of the system of South African racial inequality, in which I grew up. Although talking about politics was discouraged in some contexts it was never far from anyones mind and the politics of race dominated public and private social thought in South Africa. The deba

11、tes, apart from some in the academic literature, were not usually very intellectually sophisticated. They did not need to be: only the fear of social rejection, or worse forms of persecution, combined with intensive indoctrination, could make the harsh regime of segregation and deprivation that cons

12、tituted apartheid seem morally sensible. Apartheid in South Africa, like the terrible discrimination that black people faced in America, or that experienced by many women in patriarchal dictatorships today, was a paradigm case of failing to treat people as equals. We honour Desmond Tutu and Martin L

13、uther King, not for their ability to state basic moral axioms, but for their moral courage and integrity.Once all the obviously bad options are discarded apartheid, Jim Crow, oppression of women in its various forms moral and legal thinking, about equality for groups that have been and are discrimin

14、ated against, and for those which were not discriminated against, becomes harder. If Ronald Dworkin and Michael Walzer can disagree on the morality of affirmative action, it is not because either of them is on the side of racist injustice. In my adopted country, New Zealand for example, there are qu

15、andaries for egalitarians to ponder, as there are in other multicultural and cosmopolitan democracies, about equality, that are more subtle than the acceptance or rejection of crude racist or sexist theories. These questions, in liberal democratic societies, about discrimination and the ongoing effe

16、cts of past discrimination, are harder to resolve, in my view, than is commonly thought. Many thoughtful people have responded to the challenge and have written about discrimination and equality in recent times. I alluded to the multitude of books on equality in the first sentence of this preface. I

17、t seems to me that this fact dictates that one should, when writing on the subject, discuss that literature, engage with it, and agree or disagree with it often. At any rate, that is what I intend to do. The alternative, trying to be innovative by ignoring everyone else, the writers one agrees with

18、and those whose views one clearly contradicts, seems odd to me and it never works. A related point about freshness: the anti-discrimination enterprise is a quite modern one and while it is, for some reason, easier to appear original, when writing books, if one relies mostly on the thoughts of deceas

19、ed Basic Equality and Discriminationviiiwriters, many of the thinkers whose views I agree with or contest, are still alive. It seemed risky to wait, and churlish to wish them an imminent departure.This books topic is quite general in one sense, but not in the sense that it tries to provide a complet

20、e theory of justice. My focus is jurisprudential, motivated primarily by an interest in discrimination law and a concern to better understand the conundrums which arise in the interpretation and application of that law. However, because that jurisprudence is dense and conflicted I have found it help

21、ful to first consider equality as a moral and political concept, in the hope that a clearer understanding of the nature of the value equality will help us to understand the difficulties, or at least the nature of those difficulties, posed by constitutional and ordinary equality law. Equalitys contro

22、versies are many and they are discussed in many different sorts of academic enquiry. There are many important aspects of what it means to treat people as equals that I do not deal with at all, or only make a few passing remarks about, in this book. Because my interest is ultimately in human rights l

23、aw I say little about economic or distributional equality. I do not mean to suggest that questions about social and economic inequality are quite divorced from the concerns we evince when we try to do something about discrimination. We are, in part, concerned about discrimination because of its effe

24、cts on peoples material welfare.Our moral concerns about discrimination cannot, however, simply be reduced to our concerns about economic justice, and the elimination of discrimination is not all that economic justice requires. Both are important and while both may be better understood in the light

25、of a better understanding of equality in general, they are still to some extent separate topics. Discrimination law is also not the whole story about how equality inspires legal rules, and indeed legal systems, but it is discrimination law whose interpretation and application seems most vexed.Althou

26、gh my concern to understand equality is jurisprudential, I do not provide a summary or a systematic analysis of discrimination law. Works that do are amongst those which have attracted my critical attention, although I do not mean to disparage them in general. They are attempting to do what is very

27、difficult state and explain the law in one of its most confusing departments. Such books would be easier to write, and more satisfying to read, if the law itself, and its purposes, were less obscure. When I do mention specific laws or cases it might seem that I have disproportionately chosen North A

28、merican, particularly United States, examples. That is true, but only because that regions cases are probably more well known, in jurisdictions around the world. To the charge that I am aiding and abetting jurisprudential imperialism, I plead guilty. But there are mitigating circumstances. To the ex

29、tent that so many countries have adopted trends in North American human rights law or framed their own laws as revisions of the law of that region, that law inevitably serves as the logical starting point for discussion about affirmative action, indirect discrimination and so on. I also believe that

30、 those of us who are not North American find their discussions helpful because we do, and should have, Prefaceixsimilar political and moral concerns. I do not think equality is a worthwhile value in only some cultural settings. I think it has universal importance and application though its implicati

31、ons, like those of any value, might be somewhat different in different contexts. There is much useful legal and political writing about equality issues but I think, particularly in equality jurisprudence, it is a good time to go back to the conceptual drawing board and think for a while about the fu

32、ndamental nature of the principle we are discussing. Much of what I want to say is in the form of a reminder rather than a discovery. Discourse on equality has become fragmented and once now isolated parts of it are reconnected both the unavoidable difficulties and the possibilities for new dialogue

33、 should be clearer. What I will attempt to do, to that end, in this book, is to bring some more general theoretical considerations to bear on the discussion of equalitys law. I think doing this in a more comprehensive way than is customary in books that critique discrimination law will at least enab

34、le us to see where we are and hopefully be clearer about what to do next.Many thoughtful colleagues and friends helped a great deal by discussing the subject matter of this book with me. I would like to thank Jim Evans, Professor Emeritus at the University of Auckland School of Law, for his guidance

35、 and encouragement. A more patient and penetrating discussant and teacher of law and the philosophical insights which underpin legal studies would be hard to find. Participants at the Annual Conference of the Australian Society of Legal Philosophy 2006 (Auckland), 2008 (Melbourne), 2009 (Melbourne)

36、provided many useful comments on earlier drafts of various chapters in this book, as did those who attended a seminar I gave on Discrimination and Culture under the auspices of the Auckland branch of the New Zealand Society for Legal and Social Philosophy in 2007.Colleagues who attended departmental

37、 seminars over the last few years, on versions of various chapters, in the School of Accountancy, Massey University at Albany in Auckland, are also due thanks. Their fresh, insightful comments and questions always left me aware of the need to think more deeply about my subject. I also thank Massey U

38、niversity for granting me research leave from January to June 2010 to work on this book. Lastly, thanks are also due to the team at Ashgate, who have been efficient and friendly throughout the publication process.Why Do We Speak of Equality, (2005), 11(1), Otago Law Review, was my first attempt at t

39、he material covered in Chapters 13. A Critique of Recent Approaches to Discrimination Law, (2007), 3, New Zealand Law Review, 499525, was based on an earlier version of Chapter 8 and The Relationship between Equality and Liberty, (2009), New Zealand Universities Law Review, 45164, is an adapted form

40、 of Chapter 5. Comments that I have received on these publications assisted in the preparation of this book. The use of material contained in those articles is by kind permission of the publishers.This page has been left blank intentionallyChapter 1 IntroductionEquality is a core value in moral, pol

41、itical and legal philosophy. Morally and politically it is seen as an important part of the justification of the distribution of rights and goods, and the democratic form of government generally. It also plays important roles in other areas of moral concern. Jurisprudentially, equality has become ce

42、ntral to modern Bills of Rights discourse and finds its most obvious role in anti-discrimination provisions in Bills of Rights and human rights legislation. The idea of equality is also used to justify or discredit a wide range of other laws, from corporate takeover codes to tax legislation. Equalit

43、y is not a new idea, of course, but it does enjoy particularly high prestige in much current political and legal thought. As Louis Pojman and Robert Westmoreland, in the introduction to their anthology on the idea of equality, write:It is one of the basic tenets of almost all contemporary moral and

44、political theories that humans are essentially equal, of equal worth, and should have this ideal reflected in the economic, social, and political structures of society.1The editors of that compendium cite Will Kymlicka, who has suggested that all theories of justice that are taken seriously today ar

45、e egalitarian in the sense that equality is their foundational value.2 Kymlicka was, in turn, taking this idea of equalitys central role in modern political philosophy from the work of Ronald Dworkin who has, over the last 30 years or so, had a great deal to say about the importance of the idea of e

46、quality.3 The popularity of the idea, however, is not matched by agreement about what upholding that value entails in terms of the specific treatment that persons are due.1 Louis P. Pojman and Robert Westmoreland (eds) Equality (Oxford University Press, New York, 1997) 1.2 Will Kymlicka Contemporary

47、 Political Philosophy (Oxford University Press, Oxford, 1990) 4. Kymlicka is perhaps suggesting something more than Pojman and Westmoreland; a foundational value might denote something more than a basic tenet. See also a recent expression of the relationship between equality and a range of theories

48、about justice in Amartya Sen The Idea of Justice (Harvard University Press, Cambridge, 2009) 291. 3 Ronald Dworkin Taking Rights Seriously (Duckworth, London, 1977); A Matter of Principle (Harvard University Press, Cambridge, 1985); Sovereign Virtue (Harvard University Press, Cambridge, 2000).Basic

49、Equality and Discrimination2If Kymlicka is right to say that, for example, Robert Nozicks and Karl Marxs social theories both, in some sense, respect equality,4 we cannot know all of what is to be done to achieve a just social order simply by concluding it will be one based on equality simpliciter.

50、Naturally, Kymlicka and Dworkin, and other writers who compare and contrast different sorts of equality, understand this. They are not suggesting that we all now agree on what kinds of equality are required in a just society. Dworkins own work is concerned with defending particular conceptions5 of e

51、quality rather than the plain assertion that equality6 is what we are after. He and others have written extensively about which kind of equality produces the best theory of distributive equality, political equality, equal liberty, and so on.7Although there is plenty of disagreement about which equal

52、ities we should value and employ in the creation and maintenance of a just society, the basic egalitarianism8 identified by Kymlicka is itself a substantial value. The substance of what Kymlicka identifies as common in modern political philosophy is the requirement that the government treat its citi

53、zens with equal consideration; each citizen is entitled to equal concern and respect.9 There are theories that deny this, even if they are rare, but those who are egalitarians, in this broad sense, are in agreement at this abstract level at least. They may, and often do, disagree about some of the i

54、mplications of that general belief in equal human worth but they are, nevertheless, constrained by it.There is then, in modern social ethics, an abstract notion of equality, a belief in the equal worth of human beings, about which there is widespread (although sometimes implicit rather than explicit

55、) agreement, and a large range of specific equalities about which there is much disagreement. These two senses capture the difference between, as John Rawls puts it: equality as it is invoked in connection with the distribution of certain goods and equality as it applies to the respect which is owed

56、 to persons irrespective of their social position.10 Noting the difference between these two meanings of equality helps to explain in what sense it is meaningful to refer to a libertarian like Robert Nozick or to an apparent 4 Kymlicka Contemporary Political Philosophy, above n. 2, 4. 5 In the sense

57、 of the distinction between concepts and conceptions he uses, he tries to work out the requirements of equality. See Ronald Dworkin Laws Empire (Fontana Press, London, 1986) 7071. I will argue we also need an appropriate concept of equality.6 I shall be placing words (that I am not citing) in invert

58、ed commas very often. The reason for this is that I discuss the use of certain words a great deal. I will use single inverted commas when I do that to avoid cluttering the text too much.7 See Dworkin Sovereign Virtue, above n. 3.8 I use the words egalitarianism and egalitarian to denote a general be

59、lief in human equality rather than as a specific idea about economic equality. The word equality itself often has a specific economic or distributional connotation but I shall not intend that meaning unless I say so. 9 Kymlicka Contemporary Political Philosophy, above n. 2, 4.10 John Rawls A Theory

60、of Justice (Oxford University Press, Oxford, 1971) 511. Introduction3opponent of equality like Anthony Flew as egalitarians, in the sense used here.11 Libertarians are sometimes said to eschew equality in favour of freedom but it is equality in particular instances of Rawlss first sense that are usu

61、ally thought to be in tension with liberty. It is at least rare in modern academic political argument to find a justification for the freedom to treat some as intrinsically less worthy of respect than others.There is much debate, in political philosophy, about the implications of basic equality, to

62、use the term Jeremy Waldron uses to refer to the abstract belief in equal human worth.12 As Waldron says:A tremendous amount of energy has been devoted to equality as a specific standard in recent political philosophy: people ask whether equality of wealth, income, or happiness is something we shoul

63、d aim for; whether it is an acceptable aim in itself or code for something else, like the mitigation of poverty; whether it implies an unacceptable levelling; whether, if achieved, it could possibly be stable; how it is related to other social values such as efficiency, liberty, and the rule of law

64、etc.13The difficulty in sorting out which type or types of equality are morally supportable is also reflected in modern jurisprudential debates about the meaning of equality provisions in Bills of Rights. These provisions are concerned with discrimination on various grounds and, more recently, remed

65、ies for past discrimination. In the United States, the first country to have a Bill of Rights in the modern sense, the fundamental point of the equality provisions found in the Fifth and Fourteenth Amendments to the United States Constitution is now construed quite differently to the way it was 100 years ag