Sunday, 11 April 2010

The rights and wrongs of human rights

In my last post, I drew attention to the distinction between just and unjust forms of discrimination:

Suppose I am taking casting auditions for a film I am directing.  The film is a biopic of Devon Malcolm, and Mr. White is auditioning for the main role.  But Mr. White is white.  If I refuse to cast Mr. White as Malcolm, since whoever plays Malcolm has to be black, am I in the right?

Not all discrimination is unjust.  It’s generally taken as a rebuke against a person to tell him that he does something requiring precision ‘indiscriminately’.  Discrimination on the grounds of race, sex, religion, sexual orientation, age or whatever is unjust to the extent that those factors are irrelevant to someone’s ability to do the job in question or entitlement to the benefit in question.  So, while it would not be unjust discrimination to refuse to cast Mr. White as Devon Malcolm merely because he’s white, it would be unjust to refuse to pick Devon Malcolm in your cricket team merely because he is black, since his being black has no bearing on his ability to play cricket well.  That kind of discrimination has no place in a just society.

Ilíon disagreed:

This position is not exactly right. This particular discrimination is immoral ... but it is the sort of personal immorality which must be allowed by government precisely because we wish to live in just societies. For, governmental suppression if this particular immorality creates more injustice, and ultimately more immorality, than is solved by the suppression.

This is an interesting perspective that I have heard before and against which it’s not that easy to argue.  What I think it highlights is the fact that the more that rights and freedoms are enshrined in law, the greater the probability that these will come into conflict.  For example, has the right to freedom of association in this country been compromised when the British National Party is legally disbarred from having a whites-only membership policy?

Should any clarification be needed (I hope not), I do not support the BNP.  I just think this is a genuinely interesting case, since freedom of association has historically been a very important liberty, and surely must include the freedom to disassociate as well (otherwise it’s pretty meaningless) – and yet here we have an example of a situation where that freedom is denied.  Denied for good and well-meaning reasons, I’m sure, but denied all the same.

Tough questions here, with no easy answers.  I think the position one takes on questions like this depends largely on what one’s idea of the ideal society is; I mean, in terms of structure rather than of citizens (people are unpredictable, after all).  Someone who thinks that freedom is the ultimate good in a society will presumably support e.g. the BNP’s right to freely associate in a racist manner, while someone who think that equality is more important presumably won’t.

In my last post, I also said that Bible-believing Christians ‘want to work with you for the common good’ (and I meant it).  But what is the common good?

16 comments:

Paul Wright said...

Have you seen Michael Sandel's Justice lectures? They're an attempt to review what various people have thought the common good was. I thought they were worthwhile, though you may know more normative ethics stuff than I do and find them too basic.

Sandel himself is a philosophical communitarian. From what I can tell, he seems to be rejecting Ilíon's liberal (in the sense of valuing the rights of the individual, rather than in the American sense of "those left-wingers I don't like") conception that government can and should be neutral on certain matters: he argues that to pretend neutrality is actually to take a position, whereas a liberal would say that there could be reasons for political neutrality even about moral questions. This exchange with Nagel seems like a good summary of the debate.

mattghg said...

No, I haven't seen them; thanks for the recommendation. I've now read Nagel's review and the ensuing exchange, and will hopefully be able to get into the lectures sooner rather than later.

Peter D. Williams BA(Hons), AKC said...

From my point of view, I think that the easiest way to solve these conflicts is surely to cut the gordian knot altogether, and prioritise negative liberty over positive liberty. In this case, insist that there is a fundamental right to freedom of association, and thus a fundamental right to discriminate. Freedom of association is a fundamental liberty. The 'civil', 'positive' right not to be discriminated against contradicts this. Therefore, the later ought to be denied in law in favour of the former.

Obviously the same limits that we put on freedom of speech ought to be put on freedom of association - just as we don't allow someone to speak in favour of violence towards others, so people ought not to be allowed to organise into violent groups. All other forms of association however, just as all other kins of association, ought to be allowed, however morally repulsive we might find them (as is the case in genuinely racist discriminatory employment practices).

Obviously this only deals with the procedural side of the debate and not the substantive. What would be the real-world consequences of doing what I prescribe above? I would argue that the effects would be more positive, and the far greater tolerance we possess in our society today would mean that those who do openly discriminate *unjustly* would suffer such negative practical consequences (boycotts, social stigma, etc.) as to render their choices prohibitive. I.e. The law is unnecessary anyway. However, this falls beyond the purview of your post.

Finally, as to the Common Good, I would define it as the Catholic Church does within her Social Doctrine. "Quelle surprise"! ;) According to the Catholic definition, the Common Good is ‘the sum total of social conditions which allow people, either as groups or as individuals, to reach their fulfilment more fully and more easily’. (Catechism of the Catholic Church, § 1906)

Obviously, as applied to the above discussion, this makes the substantive argument as much important as the procedural, which is why I cannot be (any longer - I was briefly when I was a teenager) a Libertarian. However, what leads me to many Libertarian conclusions, even without some of their premises, is precisely two practically demonstrable convictions:

1) That government action *at best* either has limited or short-term good effects before becoming useless. Otherwise, it can also tend to fail to heal a situation, or can even make that situation worse due to unintended consequences.

2) We can use human freedom to solve problems often yields the best results, and makes for a better society.

I would contend that both these convictions apply in the case of anti-discrimination legislation, and that repeal of said legislation and the enshrinement of freedom of association as a fundamental liberty passes the test of being both procedurally and substantively more in keeping with the Common Good.

Anyway, there's my penny's worth! What think ye?

Grace and Peace be with you brother, and all my fraternal affection,

Peter
+ :)

P.S. My own two(!) Blogs should, I hope, be up in the next week, so look out for that! Will Tweet/Facebook it when I 'launch' properly...

mattghg said...

Peter,

That definition looks quite good, although of course it leaves open the question of what human fulfilment amounts to. A few definitions spring to mind:

Aristotle's view, "eudaimonia": "an activity of the soul in accordance with virtue" (Nichomachean Ethics 1098a15-20)

A Reformed view, "the chief end of man": "to glorify God, and enjoy him forever" (Westminster Shorter Catechism).

Would I be right to assume that the Roman Catholic Catechism has in mind some combination of the above?

I bring it up because the project of working together with secular liberals for social conditions which allow people most easily to reach their fulfilment is scuppered if we disagree seriously on what human fulfilment is.

As I've said, I'm not convinced that the anti-discrimination law is unnecessary after all, although I follow your argument for negative liberty to take priority over positive liberty and haven't decided what I think about that.

mattghg said...

Also, while we're on the subject of Aristotle:

"Legislators make their citizens good by habituation; this is the intention of every legislator, and those who do not carry it out fail of their object. This is what makes the difference between a good constitution and a bad one." (Nichomachean Ethics, 1103b1-6).

I suppose this makes sense if you think that the common good is overall moral improvement. But obviously it's easy to confuse means and ends if that's your aim.

Paul Wright said...

Springheel Jack (not his real name) over at LJ wrote an article in which he actually talks about what he thinks is wrong with libertarianism and pure "negative freedom": that without redistribution, systems arise where negative freedom isn't sufficient to call people "free", so libertarianism ends up introducing other things which are just good in themselves, more so even than freedom, such as private property.

In this case, one can imagine that in a world where, say, everyone hates Christians and almost all hotels won't have them as guests, the Christians are still free to frequent those hotels where they are welcome (suppose that there will always be a few such forward thinking people), but they seem less free than non-Christians.

mattghg said...

Freedom of association has to come high up on anyone's hierarchy of liberties, though, even if you think that there are situations in which some positive liberties take precedence over some negative liberties.

Just to clarify: no-one in this thread so far is a libertarian or has said that negative liberties are the only real liberties. It's a question of what takes precedence over what.

Ilíon said...

This is an interesting perspective that I have heard before and against which it’s not that easy to argue. What I think it highlights is the fact that the more that rights and freedoms are enshrined in law, the greater the probability that these will come into conflict. For example, has the right to freedom of association in this country been compromised when the British National Party is legally disbarred from having a whites-only membership policy?

Has freedom of association in the UK been fatally compromised when the owner of a bed-and-breakfast is prosecuted for declining to cater to homosexuals? Has freedom of association in the UK been fatally compromised when a Moslem can simply accuse the Christian owner of a bed-and-breakfast of “discrimination” … and the Christian has to prove her innocence, rather than the Moslem proving her guilt?

Is there not a straight line between the silly notion that “all discrimination is wicked (and must be stamped out by the government boot)” and the wicked notion that Christianity, and even common morality, must be stamped out?

Here in the US, in the Southern States, the infamous Jim Crow laws required businesses to discriminate against black citizens and potential customers. And so, to correct that injustice, in the US as a whole, the “liberals” have certainly turned things around … now, whites (and especially men) must be discriminated against in schooling and hiring practices.

mattghg said...

Is there not a straight line between the silly notion that “all discrimination is wicked (and must be stamped out by the government boot)” and the wicked notion that Christianity, and even common morality, must be stamped out?

Not sure if it's a straight line, but that the way things seem to be going in the UK at least.

Ilíon said...

To discriminate between two or more things, or events, or states, is:
1) first, to distinguish between them as separate entities;
2) and then, to distinguish between one’s valuing of them in relation one to the other.

Now, it is utterly impossible for us to live without doing both these steps about everything we encounter, or even merely think about. This is not to say that we always correctly distinguish between things, or that we always correctly value the things we do distinguish, just that we always do value or “disvalue” everything we distinguish (even to be “neutral” about something is to place a value on it in relation to some other entity).

So, to assert that it is wrong/immoral to “discriminate” is to assert that it is wrong/immoral to do what one *must* do simply to get through one’s day. And, the assertion is itself an instance of making a discrimination, so the assertion is self-referentially incoherent.

Most of the discriminations we make during any day are “low-level;” they’re not morally significant, but we make them simply do choosing this over that. That we usually make them on autopilot, so to speak, or following habit, that we rarely consciously deliberate the discrimination doesn’t change what it us.

But, Christianity (or morality, to the extent in is separate from religion) explicitly is about training us to make proper discriminations: to value this, to disvalue that, to be neutral on the other thing.

So, on the one hand, we have the now-official social dogma, endorsed and supported by the “movers and shakers” of society, that “discrimination” is wicked. Never mind the logical incoherency.

And, on the other hand, we have common morality, which is *all about* making explicit discriminations. And we have Christianity, which is (among other things) about training us in making explicit moral discriminations.

There isn’t room enough in the world for what is on those two hands to co-exist: it’s the logic of human nature that each of the two must each try to eliminate the other.

Paul Wright said...

More comments in the comment feed: blimey...

Here's a good one: the recent sexual orientation cases (Ladelle, the registrar; and McFarlane, the relationship counsellor) are clearly freedom of association cases. How so? Because their employers in both cases had policies which said that they were against discrimination against gays. In McFarlane's case, he agreed to the employer's policy as part of his contract of employment (paras 3 and 4 of the judgement). In the Ladelle case, the employment appeal tribunal commented that the council "were not required to connive in what they perceived to be unacceptable discriminatory behaviour by relieving the claimant of these duties. They were entitled to adopt as an objective an unambiguous commitment to the non-discriminatory provision of services by all staff who in the normal course of events, would be required to carry out those services. It would necessarily undermine that objective to make an exception for the claimant. Accordingly, their refusal to accommodate the religious belief of the claimant did not in our judgment involve unlawful indirect discrimination."

Now, you may argue that these employers have a freedom to chose who they associate with which is being eroded in the case of Christian organisations. As I've said, I'd agree that such organisations should be able to chose who they employ, though organisations which do discriminate against gays should not be the recipients of public money.

Still, it seems odd for Christians to complain about these two cases on the one hand, and ask for their own freedom of association on the other, just as it was odd that the same bishops who voted down parts of the Equality Bill because it would restrict their religious freedom also were against Quakers being able to perform civil partnership ceremonies (civil partnership ceremonies, like civil weddings, cannot have religious components to them under the current law). Much of this argument starts to sound like special pleading.

mattghg said...

Ilion,

I basically agree, but I think that this is largely a problem because people don't realise that often when they say 'discrimination' what they mean is unjust discrimination as I've termed it. Of course, then, there's the debate over what kinds of discrimination are unjust. But I'm not sure all this means that no forms of unjust discrimination should be criminalised.

Paul,

We agreed that each of these cases should be judged on its merits. It looks like Lillian Ladelle's agreed terms of employment changed from underneath her without her consent. This is the kind of thing that trades unions strike over all the time, but in her case it seems she just didn't have the power to stop it happening. Is that fair?

Ilíon said...

"... but I think that this is largely a problem because people don't realise that often when they say 'discrimination' what they mean is unjust discrimination as I've termed it."

I think that would be for two main reasons:
1) the leftists, having controlled "education" for so long, have trained the masses of people to this automatic response;
2) most people are sheep; most people are impatient about thinking things through carefully.


What does "unjust discrimination" mean, really? I know what people imagine they mean by it, but I think that what they mean is incoherent -- or, at best, is a redundancy, and thus is quite unnecessary as a concept.

Whatever it is that you mean by "unjust discrimination," can you give me one example not committed by agents of the state that will stand up to examination such that reasonable persons can agree that that, at least, is the state's business to censure and suppress?

Now, I could tell you right now the criteria/reasoning by which I am sure I can show you that no example you can offer me will stand up. But, I'm curious to see how this might go; for instance, in trying to come up with a good example, might it be that you realize on your own my point/argument before I say anything more?

Paul Wright said...

It looks like Lillian Ladelle's agreed terms of employment changed from underneath her without her consent.

Ms Ladelle's case didn't rest on a breach of contract, therefore I assume that her lawyers didn't think such a case could be made. They did make an argument that the decision to designate existing registrars as registrars for civil partnerships put Ladelle at a disadvantage because of her religion. The appeal court judgement agreed that Ladelle was at a disadvantage (para 43) but considered that Islington council had a legitimate aim in applying its Dignity for All policy and that the action it took was proportionate.

This is the kind of thing that trades unions strike over all the time, but in her case it seems she just didn't have the power to stop it happening. Is that fair?

The council's aim, of providing a non-discriminatory environment, seems entirely fair to me. As I said, this seems a straightforward "freedom of association" case: the council has a policy and they applied it. I suppose there's some complication in that Ladelle became directly employed by them as the result of an Act of Parliament regulating registrars, but it seems hard to argue that a democratically elected Parliament doesn't have the power to make such organisational changes.

mattghg said...

Ilion,

I thought I gave an example in the last poast, quoted again in this post, when I said

Discrimination on the grounds of race, sex, religion, sexual orientation, age or whatever is unjust to the extent that those factors are irrelevant to someone’s ability to do the job in question or entitlement to the benefit in question. So, while it would not be unjust discrimination to refuse to cast Mr. White as Devon Malcolm merely because he’s white, it would be unjust to refuse to pick Devon Malcolm in your cricket team merely because he is black, since his being black has no bearing on his ability to play cricket well. That kind of discrimination has no place in a just society.

You objected, and so I made this post to discuss the issues raised. Now's your chance.

mattghg said...

Paul,

Would things be different if the council's policy was simply to refuse to employ Christians?

Obviously, legally it would, since this would fly in the face of other equality legislation. But would it in terms of your analyis of this as 'a straightforward "freedom of association" case'?

One could take a scorched earth, negative-liberties-only approach to this, but I thought you were arguing for something more nuanced. If there's a difference between the real case and the hypothetical one, it's not in the area of freedom of association. The whole point of invoking freedom of association is that you don't judge the rightness or otherwise of the associating principle(s) - just as freedom of speech means the freedom to say stuff I don't like.

the council has a policy and they applied it

And behind that, a woman lost her job. In fact, any orthodox Christian in the council's employ as a registrar would lose his/her job since the policy 'disadvantages' them to that extent. And so we're back to arguing about the rights and wrongs of the policy.