Academic

Shin on Equal Treatment

By Lawrence Solum

Patrick Shin (Suffolk University Law School) has posted The Substantive Principle of Equal Treatment (Legal Theory, Vol. 15, 2009) on SSRN. Here is the 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 reveal the fallacy underlying accounts that have concluded otherwise.

And from the paper:

There is, to be sure, a deep connection between the noncomparative requirement of moral respect and the comparative requirement of equal respect or equal treatment. We might say that the comparative demand of equal treatment falls out of the fact that the basis of moral respect is a status that is shared by everyone to whom it is owed. We might disagree about exactly what the basis of the entitlement to moral respect is. But it seems internal to the concept that it is owed to individuals in virtue of some fundamental status ? e.g., status as a moral person, a human being, rational agent, or member of a moral community ? that transcends human heterogeneity and socially manifested variability. If the noncomparative requirement of moral respect stems from the implications of this status for the justification of action with regard to those who have it, we can think of the requirement of equal treatment as falling out of, and reflecting back upon, the fact that this status is shared by everyone. The basis of moral respect is, in an important way, coterminous with the basis of the substantive requirement of equal treatment.

That still leaves unanswered, though, how the requirement of equal treatment might be thought to add anything to the noncomparative requirement of moral respect. My view is that they represent different aspects of the recognition of an individual?s moral status. If we can think of the noncomparative requirement of respect as a constraint that speaks to the adequacy of particular considerations as justifications for action, then we can think of the requirement of equal treatment as a constraint that speaks to whether the reasons for an action are consistent with the fact of the moral equality of persons. So, for example, breaking a promise to someone just because you did not feel like keeping it is a violation of moral respect insofar as it involves a failure to take seriously the promisee?s entitlement to have her expectations met except on the basis of adequate reasons. But breaking a promise to someone because you have a practice of keeping only those promises you make to Caucasians is, in addition to being a violation of moral respect, also a violation of the requirement of equal treatment insofar as it is predicated on a rejection of the presumed moral equality of Caucasians and non-Caucasians. These two cases of promise-breaking thus seem to give rise to two distinct objections ? one based on the noncomparative requirement of moral respect, and the other based on a comparative ideal of moral equality or equal treatment.

The fallacy in the otiosity objection is that it relies on a question-begging assumption that whenever an action involves an impermissible violation of a noncomparative entitlement, the fact of that impermissibility provides a complete explanation of the wrongness of that action. In order to fully understand this fallacy, I need to set forth what exactly the substantive demand of equal treatment ? the comparative demand of equal respect ? entails. Some remarks by Bernard Williams in his paper, ?The Idea of Equality,? are helpfully suggestive.28 Williams proposes that the distinctive demand of equal treatment be understood as a general constraint against allowing our ?fundamental attitudes? toward others to be governed by socially salient differentiating characteristics such as their social and professional status. Williams thus construes equal treatment as an unconditional demand on our attitudes toward others, but also as a demand whose force is felt as a counterweight against various comparative judgments we might be inclined to make about individuals on the basis of socially salient differentiating characteristics. On this interpretation, we can think of the idea of equal treatment as substantive in the sense that its prescriptive force is categorical or unconditional, while it is in virtue of its incompatibility with certain comparative judgments that it can be understood as a genuine norm of equality.

Equal treatment surely does not require, however, that in deciding how any individual ought to be treated, we abstract away from all socially salient characteristics that might differentiate him from others. No one thinks, for example, that equal treatment requires that jobs requiring technical proficiency be awarded without regard to characteristics that may largely or wholly be the product of social circumstance, such as the fact that one individual has more work experience than another. This is presumably because taking account of that consideration does not deprecate the moral status of the individual with less experience in any way.

What is needed, then, is a specification of the demand of equal treatment that constrains moral deliberation to respect the moral equality of individuals, while not precluding the possibility that differential treatment of them might be justified. These considerations, though very general, already suggest a way of stating a substantive principle of equal treatment. As a first pass at formulating it, consider the following proposition:


(S0) The treatment of an individual violates the requirement of equal treatment in the substantive sense when that treatment, in view of its rationale, expresses unequal respect for the moral status of that individual.


Under this principle, the requirement of equal treatment is categorical or unconditional in that its violation cannot be avoided by the selection of a comparison class determined by some more-or-less arbitrary rule of treatment.

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Full post as published by Legal Theory Blog on June 22, 2009 (boomark / email).