Equality & Differences - Professor John Finnis

Wednesday, 20 May, 2015 - 6:41 pm

finnis.jpgEquality & Differences


Professor John Finnis


            It is a privilege to be asked to speak in honour of Jerry Cohen, here with you in the Chabad Society tonight.  I last saw him to speak to, by chance, shortly before he died; before that our main occasions for meeting had been in the supervision of the doctoral studies (on Thomas Aquinas on friendship) of a young scholar now teaching political philosophy in the Hebrew University of Jerusalem.  But Jerry Cohen remains one of the very, very few people I have met in over 50 years in Oxford who has said to me, and more than once, on a casual Oxford social occasion, in friendly conversational terms and tones, something substantive about the reality that matters most.  I hold him in great esteem for that.  I regret that I could not attend his valedictory lecture given in the Law Faculty’s Gulbenkian Theatre to a standing-room only audience, to their exceptional – but for his audiences not exceptional -- delight.

            Many of his principal papers were published posthumously by Princeton University Press in 2011 under the title On the Currency of Egalitarian Justice and Other Essays in Political Philosophy.  There, in the essay entitled “How to Do Political Philosophy” you find an articulation of a principle with which his name is now indelibly associated for his resourceful and engaging framing and exploration of it, the principle of “luck egalitarianism”: that justice requires the elimination of all inequalities arising from luck (as distinct from the consequences of choices).  Cohen’s master exemplification of it is this: irremovable and non-transferable but destructible manna falls from heaven into Jane’s possession, but nobody else’s, in a peacefully anarchic state of nature.  What justice calls for, he says, is that she destroy her manna rather than make use of it (a use that could only be to her benefit alone).[1]   I want to explore that a bit with you tonight.  But first I want to say something about the factual basis and normative grounds of equality.  Then I will say something about the norm or principle of equal concern, proposed and defended by Ronald Dworkin, with whom I taught legal and political philosophy for many years but who in his later years on Oxford taught mainly with Jerry Cohen, with whom he shared the intuition that equality is the founding principle of political and indeed moral thought.   I would like to discuss, thirdly, the vast effort of modern law to give effect to principles of equality through the selective prohibition of direct and indirect “discrimination”, but time will prevent that tonight.



Equality’s factual and normative bases

            You don’t have to use the word equality to assert the most basic claim to equal of treatment.  One of the grounds for judging that there has been a historical course of divine revelation is the remarkable facts that the teachings of the prophets of Israel -- maintained by them with extraordinary consistency and unanimity over long periods and in face, often enough, of opposition – on such great truths as creation and providence by divine mind and will, and human freedom of choice, are teachings much superior in clarity and soundness and philosophical defensibility to the conclusions of the best philosophers of Greece.  And among those truths better conveyed by the prophets is that human beings are equal in the eyes of the Creator.   But that is not the terminology they employ to convey it; rather, “Have we not all one father?” (Malachi 2: 10). 

So too the late-Roman jurists’ definition of justice says it is the willingness to render what is due, as matter of right, to each; and it affirms that as a matter of natural right all human beings have been born free.[2]  What these propositions entail can then be spelled out in the language of equality, as in Thomas Aquinas’s formulations:  “All human beings are by nature equal”;  “nature made all of us [omnes homines] equal in liberty… for what is free is… an end in itself and none of us is ordered to another as [mere means] to an end”.[3]   This of course invites the question raised by the political philosopher John Rawls (with whose work so much of Cohen’s is in dialectic not to say opposition), about “the basis of equality, the features of human beings in virtue of which they are to be treated [unlike other living things] in accordance with the principles of justice”.[4]  What are these features?  Rawls’s answer is “[having] capacity for moral personality”; and to have moral personality is to be “capable of having…a conception of [one’s] good … and [capable] of having…a sense of justice…”[5]  Infants have this capacity, he makes clear; their immaturity is only a “fortuitous circumstance.” 

Now “capacity” needs more attention than Rawls gave it.  The child’s capacity to talk can be distinguished from its capacity to learn to speak a second language, and similarly its activated capacity to speak its parents’ language should be distinguished from the radical capacity to talk that it had at or before birth. (“Radical”, from radix, Latin for root.) It had this radical, root capacity not only before birth but as far back towards conception as you like to go, a capacity that mouse (or frog) embryos of comparable age and size (or any age or size) lacked altogether. A radical capacity is actual, not merely potential, though the potentialities it involves are not yet activated.  And when radical capacities are activated, in a condition of relative maturity, they do not cease to be radical, but remain so, continuously carrying one wholly or partially through times of sleep or coma or illness or injury.  One’s genomic constitution is both a material manifestation and a cause of such radical capacities.  Referring to one’s life is another way of articulating their reality and continuity.  Losing all such capacities is losing one’s life, one’s very reality as a human being.

            Capacities actually exist before, perhaps long before, their activations.  But to discern and understand capacities, one needs to look to their fullest actuations.  Acts of meaning (say in conversation), like other intentional acts, are understood -- by those who choose to do them, and by intelligent participants and observers -- as actions of an individual, a responsible person, author of and answerable for his or her conduct, each capable of honesty or dishonesty, fidelity or untrustworthiness, and hope, indifference or despair. Such acts and dispositions to act manifest the person, someone whose complete distinctness from other human persons the human infant begins to be aware of, and soon enough to understand, as the baby locks onto and follows eyes and learns to read them, i.e. to make inferences from them almost as compelling as if they were windows of the souls—the intentionality, emotionality, sensitivity—of the persons whose eyes they are. Vastly more transparent to each of those persons is his or her own individuality -- responsibility (authorship), and subsisting identity as all at once (like a word spoken or written) both bodily and mental or (to put it more sharply) spiritual. Equally indubitable (as if it were transparent not inferred) is the fact that other persons have the same kind of—and therefore in each case thoroughly particular, non-replicably individual – identities, transparent-to-self and partially self-shaped. Together these ways of knowing oneself and others as not only intelligible but also intelligent, not only active but each a doer and maker, provide the stable factual basis both for predicating a factual, descriptive equality between oneself and others, and for those practical norms which centre on “Do to others as you would wish them to do to you, and don’t do to them….”.  Such norms or principles, being about what is needed to instantiate the good of being reasonable and the good of friendship, are not inferred from their factual foundations, but rather take it as the matrix, so to speak, for the practical insight they articulate: that a way of relating personally and humanely to other persons is not only factually possible but also desirable, intelligent, and in itself incalculably superior to alternative ways of relating (such as sadistic or contemptuous harm-doing, or sheer indifference to the baby in the snow alongside one’s path).  So: saying that those principles are “about what is needed to instantiate the good of being reasonable … etc.” turns out to mean, unpacked, that they are about what is needed to be a person who respects other persons, for their own sake, and who sees the need to give to each of them their due (ius suum: their right, what they are entitled to), and indeed (though in ways involving all manner of prioritization and nothing merely sentimental) the need to love—will the good of—these neighbours as oneself.  The neighbour principle, just articulated (as in Leviticus 19: 18), both presupposes and guarantees, indeed entails, a decisive equality.

            One’s identity (as a person with interests some at least of which are truly intelligible goods) all the way back to one’s embryonic beginning[6] (with the radical capacities whose ultimate objects—those same intelligible goods—one now participates in and deliberately intends) is the ontological (that is, factual) foundation of one’s human rights, because it is the foundation of one’s judgment that “I matter” and of one’s duties to respect and promote one’s own good, and therefore of one’s judgment that “others matter” and of one’s duties to other persons to respect and promote their good. For they too have such identities (all the way back, and all the way forward to the end of their lifetimes), such radical capacities, and intelligible forms of flourishing (and harm) of just the same kind as one’s own. Just as immaturity and impairment do not, in one’s own existence, extinguish the radical capacities dynamically oriented towards self-development and healing, so they do not in the lives of other human persons. There is the ontological unity of the human race, and radical equality of human persons which, taken with the truths about basic human goods, grounds the duties whose correlatives are human rights—duties to,responsibilities for, persons, the duties summed up in the normative justice-principle: “Like cases are to be treated alike”.[7]



Content and Limits of the Equality Norm

            And relevantly different people are to be treated differently.  It will be interesting to explore this dimension of my teacher HLA Hart’s master principle of justice in the company of Ronald Dworkin, another student of Hart’s.  The advance summary with which he begins his fine new book, Justice for Hedgehogs, starts: “No government is legitimate unless [it shows] equal concern for the fate of every person over whom it claims dominion.”[8]  The book itself, long before we get to its exposition of the politico-legal principle of equal concern, elaborates, powerfully, a conception of personal responsibility, including in outline all “our various responsibilities and obligations to others”.[9]  And here a key proposition is:  “only in some special roles and responsibilities – principally in politics – do these responsibilities to others include any requirement of impartiality between them and ourselves.”[10]  Dworkin finds many ways to stress the wide inapplicability, or rather the very qualified applicability, of impartiality as a moral requirement of just conduct towards others.  Though the principle of equal concern is applicable in the interactions of individuals or non-governmental groups, equal concern for the fate of others turns out to be compatible with all sorts of prioritising of one person over another.

            Thus (he says), if you can rescue only either a lone shark-threatened swimmer or a pair of shark-threatened swimmers, you can reasonably and justly choose to rescue the one if you have a good reason for the choice -- the lone swimmer is your friend, or your wife, or is much younger than the others, or is a brilliant musician or philosopher or peacemaker.  And this is because your having such reasons for the choice entails that “you do not imply or assume that the lives of the two you abandon are objectively less important than” the life of the one you rescue.[11]   In the absence of such reasons, of course, you should rescue the two, for “the principle that it is better to save more rather than fewer lives, without regard to whose lives they are, is a plausible, even if not inevitable, understanding of what the right respect for life’s importance requires.”[12]  Again,

            I can accept with perfect sincerity that your children’s lives are no less important objectively than the lives of my own and yet dedicate my life to helping my children while I ignore yours.  They are, after all, my children.[13]

Dworkin draws a reasonable distinction between harming and not helping, and accepts, defends, and applies (under this very name) the “principle of double effect” – that is, the thesis that there is a genuine moral difference between what one intends and what one accepts as a side-effect, when it is a matter of assessing whether the harm one’s actions cause another is unjustly or in any other way wrongly done.  And, to distinguish cases where failing to rescue is unjust because showing an indifference to the importance of human lives, he applies a neighbour principle based on proximity (“degree of confrontation between victim and potential rescuer”[14]).

      All this seems right.  My discussion of justice and rights in Natural Law and Natural Rights expressed the point differently, arguing that you cannot reasonably treat with equal concern and respect everyone whose interests you could ascertain and affect; not only is it permissible for an individual or a government not to treat everyone as entitled to equal concern, it is wrong for individuals or governments to treat everyone with equal concern. The proper principle is, rather, that everyone is equally entitled to respectful consideration, a consideration that can instantly warrant treating different people very differently and with very great differences in the concern one shows for their wellbeing.[15]  Dworkin prefers to say that (i) everyone must always be treated by everyone with equal concern, but (ii) this is often compatible with simply ignoring almost everyone, as parents attending to their own children’s needs are entitled simply to ignore (Dworkin’s word) all or virtually all other children.  This, then, is not a dispute or disagreement between Dworkin and me, but a difference in terminology.

This substantial agreement shows how unlikely it is that, when we shift from personal to political responsibility (and thus to constitutional, legislative, or other political authority), there can be many, if any, straightforward decisions about the implications of, and how to give effect to, that political principle which Dworkin calls sovereign – “No government is legitimate unless [it shows] equal concern for the fate of every person over whom it claims dominion”. Just how will the political principle work out in reasonable practice, if it is true that in the non-political domain I show equal concern for the fate of all three shark-threatened swimmers when I abandon two or more to their fate to rescue my friend – but not when I shoot one or more of them to distract the sharks from my friend[16] -- or if parents who can vividly see wide differences in intelligence and other competences between their children can nonetheless maintain equal concern for all of them (in Dworkin’s sense), and do not cease to do so by spending much more on preserving the health of one, and on fostering the remarkable musical or medical talents of another, than on their other children?

Right here we are testing Jerry Cohen’s master exemplification of his “luck egalitarianism”  As you remember, that was the thought-experiment of irremovable and non-transferable but destructible manna that fell “from heaven” into Jane’s possession, but nobody else’s, in a peacefully anarchic state of nature.  What justice calls for, according to luck egalitarianism, is that she destroy her manna rather than make use of it (a use that could only be to her benefit alone).  Now the analogy between talent and manna is far from perfect, but Cohen in his Tanner Lectures in 1991 called talent “genetic-luck”, and the analogy is close enough to suggest what is involved in luck egalitarianism: better to destroy human good rather than allow it to be participated in unequally.  Families who nurture the talents of one child even though the talents of others must lie fallow (whether or not the family’s surplus income after provision of basic necessities is devoted to the talented one they choose to support) are showing that they reject luck egalitarianism.  Indeed, they seem to show that they reject any interpretation of “treat all with equal concern” that would even place a question-mark against their choice to devote vastly more to one child than to the others, where the egalitarian alternative would yield only small (albeit real) benefit to those other children.  And their rejection of egalitarian interpretations of “equal concern” is, I would say, sufficiently justified by the intrinsic human good involved in a developed musical-compositional talent or – to revert to the other case (of favouring two out of many children) – the intrinsic human good involved in a medical career which will never benefit the siblings left back in the village.  Such families regard the luck egalitarian principle as not a sound principle of justice, and notwithstanding Jerry Cohen’s powerful counter-voice I suggest they are right to do so.

      Let me plunger further into deep waters, into which I should but do not know how far or  whether Gerry Cohen’s writings ever venture or not.  You may have noticed that Dworkin’s “sovereign principle” of equal concern applies (as Dworkin formulates it) only in relation to “those under [the government’s and law’s] dominion”.  Dworkin thus avoids confronting explicitly the claims of persons who are not citizens or residents of the government’s territory; implicitly, he ignores to the point of denying those claims, but keeps the issue just out of sight by abstaining from confronting the phrase “those under its dominion” with the example of the would-be immigrant, seeking a better life, who is certainly under the dominion of our government when he emerges from the recesses of a lorry in Dover and then or later claims a right (or simply requests, or presumes, permission) to stay, reside, become a citizen, bring his extended family in the interests of his right to private life, and so forth, a claim which could and, if our government permitted it, doubtless would be repeated millions, or tens of millions, of times.  As I don’t need to tell you, today, there are few more urgent real-life questions of political justice, and few if any in which our law is now so deeply involved, as the question whether and why government and law can justly treat all its nationals alike at the border – namely as entitled to enter – and all non-nationals differently from nationals – namely as entitled only to enter, if at all, by permission which can be justly withheld quite freely except in certain cases of persons fleeing imminent persecution or starvation, and terminated whenever that dire necessity is past.[17]  About all this our political philosophy and discourse largely, like Dworkin, remains mute.

      But not entirely.  John Rawls, late in his innings, developed a powerful and truthful, albeit brief, account of the justice of territorial boundaries.[18]  We should help ourselves to his analogy of territory with property, and – forgetting national territories and boundaries for a moment -- remind ourselves of what is clear (and here we are in territory explored by Cohen in dialectic with Robert Nozick, though each of them to different effect from what I shall say).  No one comes into the world entitled by considerations of unaided reason – by moral principles as such – to any assigned parcel of the world’s resources.  Yet if we leave those resources to be used “in common”, available to all equally, and consumed by whoever gets to do so first or most forcefully, there soon ensue ruin for some or many, and poverty for all or almost all.  And if we (who?) assign the resources all to a Distributor who assigns to everyone an equal fraction of the whole, to be developed or consumed or left fallow as each pleases, inequality and poverty again soon ensue.  Or soon ensue unless by agreement or other arrangement the appropriation initiated by the Distributor is formalised in a system of property rights of broadly the kind developed by the Romans and again by our common law.  In such arrangements, the interest of the life-tenant or usufructuary in short-term enjoyment is limited by rules against waste (salva rei substantia), the division of things and funds into capital and income encourages investment in productive methods and uses and enterprises, and the net result tends, regularly, despite innumerable incidental defaults and failures, towards the vast increase in prosperity that makes possible civilized culture, among many other benefits such as health.  There may be great disparity of wealth (though even the common law puts limits on accumulation), but the condition of the worst-off and of everyone else tends to be materially improved so vastly, even before any voluntary or, failing that, compulsory redistribution of the kind that we summarise with terms such as “welfare state” [19]– improved so much that the Biblical scheme for a jubilee (re-equalising everyone’s landed wealth every fifty years)[20] comes to seem an extravagance at best only symbolically related to the common good.  And all this, ever so often verified and reverified again and again in the lifetime of Hart and his students, has a presupposition and a precondition.  The presupposition is that people differ widely in their aptitude, and their dispositions, for prudent development and use of resources, but widely share a tendency to free-ride on the labour of others if free-riding by others is unconstrained.  And the precondition, hidden just beneath the surface of the word “property”, and its conceptual cognates “ownership” and “holdings”, is that non-owners are excluded from any use of the thing owned, save by licence of the owner or, in limited and specific ways, by law or by moral recognition of emergency necessity. 

      So likewise, as Rawls says, the prospering of communal life that we gesture to with terms like Rule of Law, democratic Rechtsstaat, or again “welfare state”, has a similar presupposition and precondition: the presupposition of a shared, extensively overlapping conception of common good, mutual sympathy and trust and well-grounded expectation of reciprocity; and the precondition of territorial dominion and settled right of exclusion of non-citizens. The presupposed shared conception of common good, the mutual sympathy and trust, and the expectation of reciprocity all seem to presuppose, in turn (as Rawls, John Stuart Mill, and others have all emphasised),[21] the kind of sharing of characteristics and memories that there is little or no reason to anticipate finding in sufficient measure outside the framework of nation states.

      I have been recalling a set of strongly empirical claims, or rather two sets, the one about appropriation as opposed to communism, within the realm, and the other about territorial sovereignty.  All claims about needs involve, in varying forms, this sort of combination of a state of affairs (often more or less complex) understood by practical insight as good, desirable, worthwhile more or less for its own sake and fundamentally, and a set of empirical conditions and means judged capable of bringing about that good by choices to do this and abstain (altogether or for now) from that. 

            In short, the very great benefits, including internationally distributable or otherwise available benefits, available on condition of stringently discriminating (treating people unequally) at the state’s border provide the reasons for doing so that are equally reasons for concluding that this is no injustice, no denial of human equality or equality of concern, and is a proper instance of treating different cases differently.[22]  In saying so, I say no more than Dworkin, like many others, takes (to all appearances) for granted but does not rush in to say.



3. Some Discrimination about “Discrimination”

      In recent decades the long-settled conceptual framework of reflection and debate about equality has been in large measure translated into, and in some measure supplemented by, the conceptual framework whose key element is discrimination

Of course, since like cases should be treated alike and different cases differently, one must discriminate between like and unlike, and between different sorts of difference. To do otherwise is to act without discrimination, that is without good judgment, indiscriminately.  A good translation runs for a key sentence in the page of Plato’s Laws which anticipates much in Aristotle’s and Hart’s discussions of justice and equality: “indiscriminate equality for all amounts to inequality, and both fill a state with quarrels between its citizens.”[23] 

Notwithstanding all this, decisions, certainly decisions in what may broadly be called public life, should surely be made without discriminating between persons on grounds that ought to be regarded as irrelevant to securing the benefits which the decision has in view.  To eliminate such discrimination is to promote equality and is to respect (so far forth) the human right of each to equality of concern, or equality of concern and respect.

      To understand the ways in which equality is and is not promoted in contemporary anti-discrimination law, one must begin by observing that this law regulates decision (choice) and deliberation. The law’s structure mirrors the structure of practical reasoning.  Deliberation about interesting ends and available means generates proposals for action, proposals (plans of action) that are sets of ends and means (each means except the very first moment of exertion, being also an end) considered capable (in combination) of yielding the benefits supposed to be sufficiently desirable to make the effort and action worthwhile.  One intends all the states of affairs that are envisaged in the proposal as to be brought about as ends and means, and intends them under the description they have in that proposal as one shaped it in deliberation, not for purposes of justifying the action to others or rationalising it to one’s own conscience, but for the sake of the benefit and efficacy these states of affairs are envisaged as having as ends and means.  Everything included in the proposal is a ground for one’s acting.  Any other states of affairs brought about in or by the action, even though envisaged as liable or likely or indeed certain to be caused, are side effects just to the extent that they are not included in the proposal, whether as end or means, and are thus (by entailment) not intended.  Anti-discrimination law accordingly has two topics and limbs: direct discrimination, which looks strictly to the decision-makers grounds for decision, and indirect discrimination, which looks to side effects.

      In England, statutory anti-discrimination law got going in 1965 by forbidding, in certain contexts, any refusing or neglecting to afford access or services to someone “in the like manner and on the like terms” as others, “on the ground of colour, race, or ethnic or national origins”.[24]  Vastly extended over the forty-five years between then and the Equality Act 2010, “direct discrimination” is now similarly defined, its key element being less favourable treatment “because of” some characteristic of a person that the law treats as properly irrelevant to, or an inappropriate ground for, a decision-maker’s reasons for and proposal for action.  The draftsmen of the 2010 Act insisted that there was no change of meaning or effect in shifting from the phrase hitherto universal, “on the grounds of”, to the phrase “because of”, the latter just being more intelligible, they asserted, to “the ordinary user” of the statute.[25]  The phrase “on the ground of” is used in the controlling precepts of the European Convention on Human Rights (art. 14) and the European Union Charter of Human Rights, and judicial interpretation makes clear what a sound philosophical analysis of deliberation and intention would suggest, namely that the phrase”s effect is to delegitimize any decision in which a forbidden ground counts in the reasoning towards or is referred to in the proposal adopted in the decision.  The forbidden grounds, called by the 2010 Act “protected characteristics” (that is, characteristics of a person or class of persons qua counted by the decision-maker as reasons for the decision), are now greatly extended beyond colour, race or ethnic or national origin.  They now include also sex (and related characteristics such as so-called gender reassignment), religion or “philosophical belief”, age, disability, and “sexual orientation” (defined so as not include orientation towards sex acts with young children, sub-human animals, multiple partners, or corpses).

      Until the 2010 Act, the legal consequence of a decision’s being directly discriminatory was straightforward:  such a decision is unlawful and incapable of being legally justified.  That remains the case for most of the forbidden grounds or protected characteristics.  But the inclusion of age and disability meant that qualification was necessary, in the interests of the common good; direct discrimination on these grounds is legally justified if the decision-maker can show that taking this ground or characteristic into account as reason for less favourable treatment has a legitimate aim and is a “proportionate means” of pursuing the aim.[26] 

            Indirect discrimination, predicated not on any course of deliberation, grounds or intention, but on side effects, is a category introduced, that is made unlawful (in England), only in 1975, in the Sex Discrimination Act; it was extended to race in 1976 and of course to all the other now protected categories in 2010.  What is it?  As now defined, it occurs when person A applies to person B some provision, criterion or practice which, when applied to B and persons with whom B shares a protected characteristic,[27] puts such persons (including B) “at a particular disadvantage when compared with persons” who do not share that characteristic, and the provision, criterion or practice cannot be shown to be “a proportionate means of pursuing a legitimate aim”.[28]  This is, to repeat, a matter of side effects; the “particular” differential impact on (disadvantage to) a protected group may be quite invisible on the face of the “provision, criterion or practice” and neither intended nor foreseen in any way by the decision-maker (or anyone else).  Indeed, just as the intended and the side effect are mutually exclusive categories, so the courts have been clear that a practice cannot be both directly and indirectly discriminatory.[29] 

            Now in general, just as it is right to exclude from grounds of decision characteristics (differences) that are irrelevant to the ends or means appropriately pursued by decision-makers, so it will often be right to require decision-makers to take responsibility for what they cause, especially when the effect is in some relevant way a disadvantage to someone – i.e. to take care to avoid unfairly imposing side-effects.  So the aim of the legislation against indirect discrimination is, at least generally and abstractly speaking, morally good.  But its means and their side effects, too, are subject to scrutiny, for their fairness and their impact (in other respects besides fairness) on the common good.


A word, finally, about the final bit in the jigsaw of anti-discrimination law: “positive action”, a phrase designed, it seems, to avoid the American term “affirmative action” while replicating the substance of its meaning.  The disparate impact of academic tests and criteria on groups defined by a protected characteristic such as race can be made the subject of complaints of indirect discrimination, complaints by or on behalf of members of the group that does less well under those tests or criteria.  The complainants, however, may be individuals not belonging to any ethnic group disadvantaged by tests or academic criteria, individuals who would in all likelihood have gained admission but for the “positive measures” or “affirmative action” taken by the universities to offset such disadvantage by admitting members of the ethnicities disadvantaged by (their own relative incapacity as measured by) the tests and academic criteria – admitting them in the interests of “diversity” or “critical mass” or other such projected benefits – with the effect of excluding from admission a good many persons who would have been admitted but for those positive measures. The prohibition of indirect discrimination in the Sex Discrimination Act 1975 and the Race Relations Act 1976 was accompanied by provisions permitting positive action, as an authorized exception to the prohibition of direct discrimination.  Both kinds of measure – the prohibition and the permission – were defended and are today acclaimed by the legal theorists of anti-discrimination law as a means to “transformative equality”; Sir Bob Hepple, an architect of the Equality Act 2010, speaks of its measures as necessary for moving from merely “formal” equality to “substantive equality” (terminology employed in the European Court of Justice) or to “what the EU calls ‘full equality in practice’”.[30]

            What the Equality Act 2010 calls “positive action” is direct discrimination (say on grounds of race or sex) that could not be legally justified but for the Act’s provisions dedicated to authorizing it.  And those provisions authorize it quite generally[31] whenever it is a proportionate means of pursuing an aim declared by these provisions to be legitimate, notably to “enable or encourage” “participation in an activity” (say, being educated at Oxford, or being a member of the Fire Service in Cambridge) by persons who share a protected characteristic (say, a certain ethnicity) and the decision-maker “reasonably thinks” that people of that characteristic have a “disproportionately low” participation in that activity.[32]  Though I think they are often not seen in this light, these authorizing provisions could be regarded as, in part, a proleptic response to the threat of impasse or catch-22 threatening any measures adopted by decision-makers for fear that their policies or measures (say, their qualification tests) might be ruled discriminatory by reason of the tests” disparate impact on persons of a protected category.  For, to repeat, what the provisions authorize is direct discrimination against persons belonging to categories not thought to be under-represented.

  For “disproportionately low” translates the academic-bureaucratic concept of “under-representation”.  What is under-representation?  Suppose the number of persons sharing a certain ethnic characteristic who are admitted to Oxford University is very low compared with the number of persons sharing that characteristic as a proportion of the national and school population as a whole; and suppose further that the success rate of applications for admission by persons sharing this characteristic is also far lower than the success rate of applications by persons of all other significantly numerous ethnicities.  Is this ethnic characteristic under-represented at Oxford?  Suppose we now add that the success rate of persons sharing this characteristic in the final examinations (as measured by the percentage of candidates who achieve Firsts, Lower Seconds, Thirds and Fails) is very substantially lower, by all these measures, than any other numerically significant ethnicity.  Perhaps, then, persons sharing this ethnic characteristic are over-represented – perhaps admissions tutors have been stretching to favour applicants of that ethnicity?  (All these suppositions are in line with the raw ethnicity statistics published by the University of Oxford in July 2010, and I think whenever else they have been pubished.)[33]  It has to be said that the published academic, bureaucratic/quango and NGO discussion of these matters, and of associated concepts such as “pay gaps”, “barriers”, “prejudice”, and “glass ceilings”, is often highly inattentive to evidence that would be relevant to a rational application of the concepts. The conduct of even-handed analysis and discussion of the evidence is too fraught with danger to reputation and career for this situation to improve in the foreseeable future.   Yet these are concepts that, unless rationally applied, can scarcely fail to be both unjust and damaging to our common interest in the competent performance of tasks in which competence, on any view, really matters in terms of lives lost, permanent harms, and losses that truly blight.[34] And damaging also to our common interest in treating people as individuals, on their individual merits, and not as persons sharing (or not sharing!) some specially, “affirmatively”, or “positively” (because “under-represented”) protected characteristic.

For almost all applications of “positive action” involve direct discrimination and a zero-sum context: to the beneficiary of the action there corresponds, one-to-one, a loser;[35] and unless the concept of under-representation has been rationally applied with full attention to evidence, swapping the loser for the beneficiary will have been at the expense of both present and future competence.  To which one can add the bad side effects mentioned by Justice Thomas, dissenting in Grutter:  the saddling of all those in that “protected” or beneficiary grouping who participate (or participated) in the activity with the stigma of being presumed beneficiaries of affirmative action and disproportionately likely to be of at least relatively low competence; and, furthermore, the encouraging of a sense of entitlement and limited effort among those who anticipate being beneficiaries, and thus a perpetuating of relative incompetence among people who by reasonably sufficient effort could have raised their competence if not in this activity then in another humanly worthwhile and beneficial activity.[36]









[1] ‘How to Do Political Philosophy’  in GA Cohen, On the Currency of Egalitarian Justice and Other Essays in Political Philosophy (ed Michael Otsuka) (Princeton UP, 2011), 229.



[2] Institutes of Justinian; 1.2.2; Collected Essays of John Finnis (2011)[CEJF] II, essay 1 at 22-3.



[3]  Aquinas, In Sent. d. 44 q. 1 a. 3 ad 1; for further citations, quotations and commentary, see Finnis, Aquinas: Moral, Political and Legal Theory (1998) [Aquinas], 170; also 313 at n. 83.



[4] Rawls, A Theory of Justice (1972) [TJ ], 504.



[5] TJ 505 (emphasis added).



[6] See CEJF II, essay 16.



[7] Can a factual, “descriptive” property and equality be the basis for any normative propositions about entitlements, justice and so forth?  Yes, inasmuch as such a fact can have, and has, the place in practical reasoning (in the “practical syllogism”) that some fact or facts must have in every such syllogism.  The first or normative premise here is that life, knowledge, friendship and so forth are goods, to be favoured in my existence and in the existence of anyone like me.  The second premise is that in one respect at least, every human person is “like me”.  The normative conclusion follows: precisely as possessing the radical capacity for moral personality (just to use Rawls’s term for it), everyone is to be treated alike.



[8] JfH 2.



[9] JfH 13.



[10] Id.



[11] JfH 281.



[12] JfH 283.



[13] Ibid., 274. In the context, ‘without regard to’ here is subject to the proviso just discussed, about reasons for setting aside this principle.



[14] Ibid 275.



[15] NLNR 173-4, 177, 223.



[16] See JfH 285-96.



[17] See ‘Migration Rights’ (1992), CEJF III, essay 2; ‘Boundaries’ (2003), CEJF III, essay 8; ‘Law, Universality and Social Identity’ (2007), CEJF II, essay 6 secs III and IV esp pp 118-121; ‘Cosmopolis, Nation States, and Families’ (2008), CEJF II, essay 7.  On the equality of all persons lawfully within the realm, see ‘Nationality and Alienage’ (2007), CEJF III, essay 9.



[18] See Rawls, The Law of Peoples (1999), 23-5, 34-9; discussed in CEJF II, essay 7 at 124-7.



[19] I use the term with something like the sense it had in or in relation to William Beveridge’s Report on Social Insurance and Allied Services (1942), Cmd 6404, in which the menace of idleness and squalor is kept in view along with the need to sustain maternity and maternal childcare, and the guiding principle is that the ‘welfare’ for which the state’s assistance is provided is for citizens, and is primarily (though not exclusively) a matter of return for contribution.



[20] Leviticus 25: 8-52.



[21] See CEJF II, essay 7.  See also Joseph Raz’s ‘Multiculturalism’, Ratio Juris 11 (1998) 193-205 at 202-3; discussed at CEJF II, essay 6 (‘Law, Universality, and Social Identity’) at 114-9.



[22] See ‘Migration Rights’, CEJF III, essay 7; ‘Boundaries’, CEJF III, essay 8; and essays 6 and  7 in CEJF III.



[23] Laws VI: 757a (trans GMA Grube, rev CDC Reeve).



[24] Race Relations Act 1965 (Great Britain), s 1(3).  For a lucid and revealing account of British anti-discrimination law by one of its scholarly architects, see Bob Hepple, Equality: The New Legal Framework (Hart Publishing, 2011).



[25] Explanatory Memorandum to cl 13 of the Equality Bill; see ‘Directly Discriminatory Decisions: A Missed Opportunity’ 126 LQR (2010) 491-6 at 496 (now ‘Intention in Direct Discrimination’, CEJF II, essay 14 at 275).



[26] Equality Act 2010, s 13(2) (age).



[27] For these purposes pregnancy and maternity are not protected characteristics: Equality Act 2010, s 19(3).



[28] Equality Act 2010, s 19(2).



[29] See eg R (E) v Governing Body of JFS [2009] UKSC 15 at paras 56-7.



[30] Hepple, Equality 9; see also 179-80 (including the quotation from Fredman, ‘Facing the Future: Substantive Equality under the Spotlight’ (2010)).






[32] Equality Act 2010, s 158(1), (2); also s 149 (1), (2) and s 159(1), (2).



[33] See Oxford University Gazette 21 July 2010, Supplement to No 4925, pp 1332-3  ‘University of Oxford Race Equality Scheme: 2009-2010’, tables 1 and 3a.



[34] That is not to say that all tests of competence are truly necessary to secure levels of competence truly needed for the task; sometimes tests are used in an effort to avoid more nuanced processes of assessing entitlement to or suitability for promotion, processes that would lay those conducting them open to accusations of favoritism or discrimination, accusations that are both difficult to rebut even when entirely ungrounded, and hazardous to the careers of those accused.



[35] Thus the complainants in Bakke and in Grutter v Bollinger were in each case an individual who would in all likelihood have gained admission but for the ‘positive measures’ or ‘affirmative action’ taken by the relevant university by admitting instead a member of an ethnicity disadvantaged by (its own relative average incapacity as measured by) the tests and academic criteria – and doing so in order to offset such disadvantage, in the interests of ‘diversity’ or ‘critical mass’ or other such projected benefits – with the overall effect of excluding from admission a good many persons who would have been admitted but for those positive measures.  As Thomas J, concurring in Parents Involved in Community Schools v Seattle School District No 1 (2007) 551 US 701, 127 S Ct 2739 at 2775 (Part IIA), remarks:

                  every time the government uses racial criteria to "bring the races together"… someone gets excluded, and the person excluded suffers an injury solely because of his or her race. … This type of exclusion, solely on the basis of race, is precisely the sort of government action that pits the races against one another, exacerbates racial tension, and provoke[s] resentment among those who believe that they have been wronged by the government's use of race.



[36] Grutter v Bollinger, 539 US 306 (2003) at 371-3 and 364-5 (Thomas J diss).



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