Sunday, May 13, 2007

Arneson on What is Wrongful Discrimination?

Arneson Thanks to Larry Solum at the Legal Theory Blog for bringing to my attention this interesting piece on the concept of discrimination from a philosophical perspective.  The piece by Richard Arneson (UC-San Diego, Philosophy), forthcoming in the San Diego Law Review, is entitled: What Is Wrongful Discrimination?

Here's part of the blurb from Arneson's paper that Larry featured on his blog:

Antidiscrimination norms single out particular categories of traits and forbid discrimination among persons in certain contexts on the basis of these traits. Neither theory nor practice tell us much about the principle for selecting these categories, if such there be, and the justification for this principle, if any. The principle of selection does not leap out and confront us when we inspect the particular categories of traits that are commonly agreed to be illegitimate determinants of choice. The idea that it is wrong to discriminate on the basis of race, creed, or color commands wide assent. The idea that it is wrong to discriminate on the basis of talent, virtue, citizenship, or friendship and family ties does not. Beyond that, the status of many classifications is uncertain, and the principle of selection looks elusive , , , ,

The exploration of this topic will proceed within a given moral framework. This framework is assumed, and not even cursory attempts are made to defend it. The framework is not idiosyncratic. Arguably, it is part of the plain common sense of contemporary culture. At any rate, it is worth asking, what is the most sensible account of wrongful discrimination, given the framework? The framework is a deontological morality that holds, contrary to act consequentialism, that what it is morally right and wrong to do is fixed by constraints and options. There are moral constraints on conduct that restrict what it is permissible to do in pursuit of any of one’s goals. These moral constraints mainly take the form of moral rights of others that are correlative with moral obligations that one must not violate these rights. So long as one conforms one’s conduct to the moral constraints, one is not morally required to bring about the greatest good that one’s choice of act could achieve within these constraints. Thus, one has wide liberty to live one’s life as one chooses so long as one does not violate any moral constraints. In the leeway that constraints leave open, one has options.

Let me echo Larry and highly recommend this piece.  It provides a perspective on employment discrimination law that we rarely are privy to within the confines of legal academia.


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