The Ethics of Human Rights (83): The Snowball Effect of Equality of Opportunity

Like social mobility, equality of opportunity is one of those vague political ideals favored by those who want to offer a “vision of the future” but don’t really know what they’re talking about. I agree that it sounds nice, and no one would want to be against it. But the concept of equality of opportunity is highly problematic, at least for those willing to think it through to its logical conclusions. What you get is an initially modest sounding goal – modest compared to, let’s say, equality of outcomes – which then rapidly snowballs into something huge and, in the end, something highly undesirable. Here’s how this snowballing can occur in 7 steps (I personally gave up at around the third step):

  1. Equality of opportunity, in a basic sense, just means that careers, jobs and positions are open to all applicants and that applicants are judged only on their merit and qualifications. Their social class, family connections, friendships etc. don’t matter. Equality of opportunity (henceforth EO) is therefore a condition for meritocracy.
  2. But then people should also have an equal opportunity to acquire merit and to become qualified. In other words, they should have EO in education as well. Slots in school – or perhaps even slots in the best schools – should be open to all applicants, or at least to all those who are willing and able to study. And not just formally “open”, but accessible: poor students or people belonging to historically disadvantaged groups should get scholarships, grants, subsidies, preferential admission etc.
  3. However, all this is useless if people don’t have an equal opportunity to become willing and able to study. Children, especially poor children, should have the opportunity to grow up in an environment that fosters an ethic favoring work and study. That may imply abolishing poverty and other circumstances that sometimes inhibit a good ethic, since we want all people to have an equal opportunity to raise children. We don’t want EO by way of forced sterilization of the poors or the redistribution of their children.
  4. It’s not just deprivation that undermines EO. What about those born with disabilities or without native talents? Does not EO require that we also remedy or offset these kinds of disadvantages? After all, even if the severely disabled or the talentless have (acquired) the right ethic, have managed to get into a good school, have studied hard, and aren’t discriminated against by prejudiced employers, it often doesn’t make economic sense to hire them. So, EO may require that they are either compensated in some way, or that people like that aren’t born in the first place. Genetic engineering, designer babies and so on may then enhance EO.
  5. What about ugly people? There’s clearly a bias against them. They are often treated as if they have no talents, or as if they are disabled. And extreme ugliness can just as well be seen as a disability in the world we live in. Again, genetic engineering may help. Or maybe legislation against discrimination in employment should include rules against lookism. And if such legislation isn’t effective, then compensation should be an option. Or perhaps even subsidized plastic surgery. How else could one guarantee EO for the ugly among us?
  6. EO can also be undermined by persistent differences in early socialization. For example, if girls are successfully socialized into domestic roles, then no amount of schooling, anti-discrimination legislation or employer benevolence will give girls and women EO.
  7. Imagine now that we have solved all those problems and successfully broadened EO to include groups that don’t have it automatically. People will be qualified and meritorious, but in different fields because they have different preferences and different talents. This leads to a final problem for EO: EO is only a fact if we have solved the previous 6 problems and if all human capacities are encouraged and rewarded. Imagine someone has a talent only for classical music, but all consumers have an aversion for classical music. She obviously doesn’t have EO. It doesn’t matter that she is free to apply to all positions, that employers do not have a bias against her, that she received a subsidized education in music, that she has the right ethic and that she hasn’t been socialized into an unchosen role. If people aren’t interested she won’t be able to be a classical musician, except as a hobby for which she may or may not have time. So maybe she should be compensated. In general, EO depends on customers of the goods and services produced and marketed by people free and able to act on the opportunities that they have. Customers may be reluctant to buy goods or services that they don’t care about or that are produced by blacks, poors, gays etc. EO may then require anti-discrimination laws imposed on customers.

I guess I’ve lost most of you a few steps back. And rightly so. EO does have a tendency to become a reductio ad absurdum. This doesn’t mean that disability, lookism, socialization, the lottery of birth, customer prejudice etc. aren’t important problems. On the contrary. The thing is that these problems should perhaps not be framed in terms of EO. And legislation, compensation, subsidies and so on are perhaps not the best solutions.

However, EO should remain a worthy ideal – if we give it up we’ll only have nepotism and discrimination as an alternative – but we’ll have to find a way to limit its scope and stop the risk of snowballing. I’ve already offered a possible limit in earlier posts. You won’t be surprised to hear that human rights should be the outer limits of EO.

More on EO here and here.

What is Equality? (4): Equality of Opportunity

I wasn’t very pleased with my previous attempts, so here’s one more. Equality of opportunity is a type of equality that’s usually seen as a very moderate one, one that’s not too demanding – especially compared to other types of equality that focus on equal outcomes – and hence it’s supposed to be acceptable to those of us who are a bit squeamish about equality. However, I’ll try to show that this is a mistake. Real equality of opportunity is a very ambitious and difficult project. In order to show that, I’ll talk first about some of the causes of inequality of opportunity, and then about the things we can do to reduce this inequality.

Four source of inequality of opportunity

1. Unequal endowments and circumstances

Equality of opportunity means that different people should have an equal chance of success in a certain life project, conditional on the willingness to invest an equal amount of effort. Of course, in reality, people will never have such an equal chance. The lottery of birth means that we are unable to choose to be born in a wealthy family with caring parents who can finance our education and motivate us to achieve our goals. It also means that we can’t choose which talents and genes we are born with. Talents and genetic differences are no more a matter of choice than the character and means of our parents. And genetic differences affect our talents, skills and maybe even our capacity to invest effort. (It’s not impossible that they even determine our choices of projects in which we want to be successful). So two people with the same life projects will only rarely have the same chance of success.

What can we do to equalize their chances? We can’t (yet) redistribute beneficial genes or disable harmful ones, and we don’t want to intervene in people’s families (and force parents to behave in a certain way or possibly even redistribute children). So we can’t remove the impact of genes and parents. But we can correct it, partially. For example, we can compensate people born with a genetic defect that reduces their chances of success in their life projects. We can offer people suffering from a genetic disorder that has left them paralyzed certain instruments to enhance their mobility. We can offer children born in dysfunctional or poor families free education, child benefits and encouragement. Etc.

2. Discrimination

Equality of opportunity also means correcting for lack of opportunity not resulting from the lottery of birth. If African Americans are systematically discriminated in employment, then they don’t enjoy equality of opportunity. They don’t have an equal chance of success in employment. If working for a certain company is part of an African American’s life project, and this company prefers white employees, then this African American doesn’t have an equal chance of success in his life project compared to whites with the same project.

The rule of equality of opportunity is only violated when the African American is rejected for no other reason than his race, and when this rejection diminishes that person’s opportunities (in other words, when this rejection is common and widespread rather than occasional; see here). If his skills, talents, merit and efforts are equal to those of other candidates, he should have an equal chance of employment or advancement. Equality of opportunity means that he should be allowed to compete for positions on equal terms, and that the difference between winners and losers in such competitions can only be a difference based on skills, talents, merit or efforts. However, even when he is rejected for the position because his skills, talents, merit and efforts are below the level of those of other candidates, he may not have been granted equality of opportunity. That is because the lottery of birth (point 1 above) has landed him in a discriminated group and because his lesser skills and willingness to invest effort and strive for merit may be caused by this discrimination.

Even if all are eligible to apply for a … position and applications are judged fairly on their merits, one might hold that genuine or substantive equality of opportunity requires that all have a genuine opportunity to become qualified. (source)

3. Misfortune in life

The natural lottery can reduce your equality of opportunity. Misfortune in the circumstances of your upbringing (bad parents, bad schools etc.) can also do it. And discrimination throughout your life as well. On top of that, other types of misfortune can limit your opportunities: you may get sick or have an accident. So we have to promote equality of opportunity at every step in people’s lives.

4. Neglect of abilities and talents

And there’s yet one additional cause of inequality of opportunity. Until now, I’ve assumed that equality of opportunity means that different people should have an equal chance of success in a certain life project. But maybe people have an equal chance of success in whatever life project they choose (as long as the project is morally acceptable of course). If society recognizes, rewards and encourages only certain talents and abilities, then some people will not be able to be successful in the life projects that they choose and that are compatible with their talents and abilities. For example, it’s fair to say that someone like Elton John would not have enjoyed equality of opportunity in Sparta or Saudi Arabia.

How to promote equality of opportunity?

If we accept all that, then the promotion of equality of opportunity involves different things:

1. Social structures or traditions

At the most basic level, it means getting rid of social structures or traditions that assign people to fixed places in a social hierarchy, to occupations or to life projects on a basis that has nothing to do with skills, abilities, talents, merit and efforts. Patriarchy, in which women are forced to focus on family life and raising children, is incompatible with equality of opportunity. As is a caste society, a society in which racial or other minorities (or majorities) are systematically discriminated against, or a class society in which the class of your parents, your blood line, your religion, your friends and relationships (nepotism) determine your chances of success in life. Getting rid of such social structures and traditions may simply require legislation outlawing them, or may also require affirmative action or positive discrimination and other forms of compensation for past wrongs (if some still benefit in the present from past wrongs, then equality of opportunity will not be respected simply because the wrongs have ended).

2. Equalizing skills, abilities and talents

But the promotion of equality of opportunity also means equalizing skills, abilities and talents, to the extent that this is possible (e.g. offering poor children free education of the same quality as the education and private tutoring offered to children born in wealthy families). And compensating people when this isn’t possible (e.g. give a blind man some help if we can’t cure his blindness).

3. Upgrading ambitions

And the promotion of equality of opportunity means reducing differences in merit and effort that are not the consequences of people’s voluntary choices. E.g. a child raised in a poor and dysfunctional family may have involuntarily adapted her ambitions downwards. Helping her at a young age may allow us to prevent this down-scaling of ambitions. Perhaps this down-scaling of ambitions is the result of the structures and traditions described in 1 above.

4. Other types of misfortune

The promotion of equality of opportunity also means helping people whose skills, abilities, talents, merit and efforts have been limited by misfortune different from the misfortune caused by the lottery of birth. If two people have the same ambition, talents and skill to become a lawyer – perhaps after social corrections to their initial starting positions in life (e.g. free schooling for the poorest one of them) and after legislation providing equal employment access (e.g. for the black lawyer-to-be) – but an accident leaves one of them blind, maybe society should provide that person with law books in Braille and such.

5. Recognizing abilities

And, finally, it means that a broad range of talents and abilities should be recognized and rewarded in society, with the exception of those that involve limitations of other people’s talents and abilities.

Limits of equality of opportunity

So equality of opportunity is a very ambitious and far-reaching project, contrary to what people usually believe about this type of equality. Hence we have to limit it somehow. For example, it shouldn’t extend to people’s private lives. You can’t demand that the girl next door marries you even if that’s your project in life and even if you think you’re the best candidate who didn’t have his equal opportunity. And the girl can decide not to marry you simply because you’re black. A club of racists can decide not to accept your membership request. A racist restaurant owner can decide not to serve you food on his private property. None of this diminishes your equality of opportunity, at least not as long as enough of the same opportunities exist for you elsewhere.

There will be a problem of equality of opportunity if all or many restaurants, clubs etc. turn you away. But if that’s not the case, and enough of the same opportunities remain elsewhere, even businesses can discriminate on the basis of race in their employment decisions, as long as this practice is not widespread and not part of a wider system of discrimination not limited to employment. If, in a perfectly tolerant and egalitarian society, there’s one bakery insisting on being racist and refusing to hire or serve blacks, who cares? (More here).

Equality of opportunity and statistical discrimination

However, discrimination in employment doesn’t have to be taste based, as they say. It can be mere statistical discrimination. Is that a violation of equality of opportunity? I would say yes, because discrimination is discrimination and whatever the motives are – a taste for discrimination or just prudence based of statistical averages – it diminishes the opportunities of those affected by it. People who engage in statistical discrimination make no effort to assess the skills, merit and talents of individuals.

Cultural Rights (13): Their Place in the System of Human Rights

I know I’ve neglected cultural rights on this blog. That’s not because I think they should be neglected. Cultural rights are indeed important and they deserve a thorough discussion. First, what are they? Cultural rights are the rights of

  • indigenous peoples,
  • ethnic, racial or linguistics minorities or “nationalities”,
  • immigrants
  • and perhaps also other marginalized groups.

In certain circumstance, some such groups can legitimately claim cultural rights because without these rights they will be unable to preserve, experience and act in accordance with their cultural identity. This cultural identity includes institutions, beliefs, practices, a way of life, a language etc., all of which can be under pressure from another, dominant culture or from some other hostile forces (e.g. globalization, capitalism etc.). Other, more commonly accepted human rights such as religious liberty, non-discrimination etc. are of course helpful as well but sometimes insufficient for this purpose. For example, a state can’t help but to impose an official language, and the users of this official language have therefore an unfair educational, economic and political advantage. Minority groups can then claim that they need the cultural right to receive education in their own language. Non-cultural human rights won’t be much help.

The background assumption of cultural rights is the equal value of all cultures. All cultures have an equal right to survival and all groups have an equal right to preserve their cultural way of life. The pressures that threaten cultures can take various forms, going from genocide (or ethnocide, or cultural genocide) at one extreme to milder forms of acculturation at the other extreme. Some typical forms of pressure are:

  • reducing birthrates through forced sterilization
  • forcibly transferring children to other groups
  • relocating entire groups
  • interfering with education or the transmission of culture to future generations of a group
  • forced conversion
  • erasing the group’s existence or practices from the historical record
  • attacking a culture’s resource base (e.g. deforestation)
  • etc.

The concept of cultural rights should be distinguished from related concerns about economic or political domination. Marginalized cultures can indeed suffer cultural as well as other types of oppression simultaneously, and depriving a culture of its economic base can be as lethal as a direct attack on its identity. However, I think it’s useful to isolate the cultural and identity issues. So I’ll focus on those, and I’ll also deliberately sideline the thorny question of the definition of “culture”, a notoriously overbroad concept: which groups can legitimately claim to be a “culture” deserving of cultural rights? Are cultures really distinct and self-contained? Let’s just assume that there are some such groups, and that some of those are threatened.

Which cultural rights?

Apart from the general right to cultural survival, it’s not very clear which are the more specific rights that are bundled together under the general right, and it’s commonly accepted that the concrete realization of cultural rights depends on the circumstances. In some cases cultural rights can imply a right to some form of affirmative action, in other cases a right to regional self-determination etc.

Article 27 of the International Covenant on Economic, Social and Cultural Rights only mentions a right of groups to enjoy and practice their own culture. The UN Declaration on the Rights of Indigenous Peoples is somewhat more precise, but only somewhat. Hence, cultural rights are often attacked for a double vagueness: vagueness about the specific rights involved, and vagueness about the beneficiaries (which groups qualify as a “culture”?). However, we’ll see below that a more fundamental criticism of those rights is also possible.

Justifications of cultural rights

And yet, I do believe that cultural rights are an important addition to the body of human rights. The justification for these rights is based on two things:

  • the importance of culture for individuals, and perhaps also some vaguer notion of the general importance of cultural diversity and the “heritage of humanity” (in which case cultural rights are important for everyone and not just for members of threatened cultures)
  • the failure of more traditional human rights to protect culture in all cases.

People need a cultural life, a life in a community that transcends time. They want to belong to a group and share a traditional identity. These human values can only be enjoyed collectively and are often neglected in more individualist and liberal theories of rights. Individual human rights such as freedom of religion and association, anti-discrimination laws, tolerance, democratic pluralism etc. are helpful for the preservation of culture and other collective values (such as religion), but not in all circumstances. Take the example I gave before: the simple fact of an official state language and school language puts some minorities in a disadvantaged position, not just culturally but also economically and politically. And indeed there’s nothing that ordinary human rights or tolerance can do about that.

Another justification of cultural rights can be based, not on the value of culture, but on the need for reparations for past injustices. For example, indigenous people can claim that respect for their cultural rights is due to them because of the injustices perpetrated by past generations of the dominant culture, even if there are no present-day threats to their culture.

Criticism of cultural rights

Contrary to the more traditional, individual human rights, cultural rights don’t require the recognition of individuals as equal human beings, equally deserving of respect in spite of their differences. They demand, on the contrary, the recognition of differences and respect for those differences, and differences between groups of individuals rather than differences between individuals. Common identity, group difference and recognition are the keywords behind the notion of cultural rights.

This explains why these rights are often criticized in liberal democracies. Liberalism focuses on the individual. It recognizes group interests but those are typically understood as cooperative, associational and interest based. People, according to liberalism, voluntarily join groups in order to advance their interests. Groups are defined by shared goals and interests, not by the shared identity of the members. Individuals are there first, and groups are secondary. From this point of view, cultural rights can be seen as essentialist: they reduce the identity of members to the identity of the group to which they belong.

This essentialism can indeed be detrimental to individual group members. Because cultural rights are rights aimed at the preservation of cultures, there may be a temptation to use these rights in order to discipline members who deviate from the cultural orthodoxy. Such deviations can be viewed as a threat to the group’s identity and survival. In that case, cultural identity becomes a goal in itself rather than a good for the members. Ideally, cultural rights are valuable because the members of the cultural groups in question value cultural identity, cultural practices and language and can use these rights to protect what they value. It’s those members who have an interest in cultural preservation, not the cultures themselves. (Will Kymlicka has developed this argument). This means that when members lose this interest, they should be free to do so, and cultural rights should not be used to impose an identity, practices or a language. Individual members should be free to evaluate their culture and to reject it if that is what they decide.

It follows that cultural rights should not grant groups power or priority over individuals or over individual rights. If an individual member of a group decides to use her freedom of religion to change her religion, her freedom of movement and residence to physically leave the cultural group, her freedom of expression to decide to start speaking another language etc., then there’s nothing the group can do. The group’s cultural rights can’t trump the individual’s rights. And if individual rights are threatened by cultural rights, the latter should give way. For instance, if a religious group claims the right to oppress its female members or sacrifice its children, that group can’t claim cultural rights as means to protect those practices.

That doesn’t mean a group can never legitimately limit the individual rights of its members. It can, as long as it guarantees a realistic exit right. Individuals can waive their individual rights if they think the rules and practices of their group are more important than their individual rights. This exit right, however, should be realistic and not just formal. There should be no indoctrination and alternatives should not be cut off. For example, Muslim communities should be allowed to discriminate against their female members as long as these members have a realistic right to go elsewhere, realistic meaning that going elsewhere shouldn’t imply abandoning their religion, their family etc., meaning also that they have a real choice and haven’t been indoctrinated into submission (more here).

The priority of individual rights over cultural rights does not force us to adopt an extreme individualist philosophy in which the individual is always prior to the community or in which the community doesn’t count at all. This priority of individual rights is compatible with a communitarian stance. Cultures and cultural rights are important, and they are important for communitarian reasons, but they are not so important that they can trump individual rights. Cultures or other groups have value only in so far as they are of value for the individual members. They can’t have intrinsic value. In other words, they can’t have value for themselves.

The problem of enforced internal orthodoxy within cultural groups, which I mentioned above, may be exacerbated by the possible recognition of cultural rights. Group leaders may believe that they need to enforce orthodoxy and silence “minorities within minorities” in order to present a united culture. Presenting a united culture can make it more likely that the wider society recognizes cultural rights for the minority culture. For example, a leader (or leading class) of an indigenous group may believe that it’s necessary to emphasize the distinctive nature of the group by reviving traditional practices. This revival makes the group seem more valuable from a cultural point of view, and that’s something which will make it more likely that special recognition and special rights are forthcoming. Leaders may even have a personal and selfish interests in those rights, for example their personal leading role may be cemented after the recognition of those rights or during the struggle for recognition. However, some of these traditional practices can be harmful to the individual rights of certain members (e.g. gender discrimination, polygamy etc.) or can go against one particular current of belief within the minority group which is subsequently repressed.

So cultural rights may harm individual rights and may promote internal orthodoxy before they are recognized – and as a means to achieve recognition – as well as after they are recognized – for example, regional autonomy can imply restrictions on intervention by the central authority in the case of rights violations occurring within the regional group. It’s relatively easy to make the granting of cultural rights conditional on respect for individual rights within the group demanding cultural rights (and withdraw those rights when they result in violations of individual rights), but it’s a lot more difficult to avoid the dynamic of groups violating individual rights and suppressing internal dissent in the process of a struggle for cultural rights.

Actionability of cultural rights

Individual rights trump cultural rights, but this raises the question of the actionability of cultural rights: when exactly can they be used to protect cultures? They can’t if a culture’s preservation is in danger because individual members decide to leave, for example through voluntary assimilation into other groups, or decide to fashion the group’s identity differently. Neither can they be actionable when a culture dies because of low fertility rates for instance. Artificially propping up fertility rates for the sake of cultural preservation would harm the rights of individuals in a manner which few would accept. A culture that can’t gain the uncoerced adherence of its members or promote the vitality necessary for the reproduction of its members at replacement rates, doesn’t seem to be worth preserving. Again, cultures are important for individuals. And if individuals lose their interest or change their minds, there’s not much one can do.

If one were to limit individual rights in order to prop up a culture, one would violate the principle that culture are important because they are important for individuals. One would have to adopt the unlikely view that cultures are important in themselves whatever people believe, and that they have an intrinsic value even if no one wants to be a member. Of course, it’s sad when a language dies or when some cultural practices disappear, but this sadness isn’t enough to give cultures the right to force people to do something against their will. Even if it would be somehow morally OK to force people, it would be pointless. One may succeed in getting people to speak a language, take part in rituals etc., but that would happen for the wrong reasons. A culture has to come from within. It shouldn’t be an externally imposed duty.

Perhaps cultural rights become actionable when the preservation of a culture is threatened, not by the free choices of individual members, but by economic forces, migration patterns or political oppression. Indeed, it’s not entirely unreasonable for the French government for instance to subsidize French language cinema in order to protect it against the “onslaught” of Hollywood. Or for the Tibetans to complain of Chinese “demographic aggression”. (Similar talk about Eurabia seems a lot less reasonable). Or for native Indians in the U.S. to resist forced resettlement.

Realization of cultural rights

And when we decide that cultural rights are actionable in certain cases, we still don’t know which actions short of violations of individual rights we can take to protect them. Some possibilities:

  • An obvious policy could be some kind of federalism and limited self-government, primarily but not exclusively when the minority cultures are geographically isolated and when they haven’t voluntarily chosen to live within a larger political unity (e.g. tribal sovereignty for indigenous peoples).
  • Maybe some quota systems in representative bodies could also help to give culture a voice.
  • Affirmative action.
  • Reparations.
  • Special educational provisions (for example the provision of some hours of education in a native language) or other types of assistance to do things that the majority takes for granted (e.g. multilingual ballots).
  • Certain veto powers (for example, the right of indigenous people to veto the use of land).
  • Some group-based exceptions to general laws (such as an exemption to the rule forcing drivers to wear a crash helmet).
  • Granting jurisdiction over family law to religious or tribal courts.
  • A politics of recognition (e.g. teaching black history in U.S. schools).
  • And perhaps even a right to separate from the political community if nothing else works or if the claim to authority of the central state is weak (as in the case of colonies).

It’s clear from this that cultural rights can in some cases restrict the rights of non-members. For example, the use of English is restricted in Quebec; affirmative action restricts the rights of non-group members; veto-powers over land use restrict the property rights of outsiders etc. However, it’s not the case that cultural rights necessarily restrict the rights of outsiders. Subsidies or regional autonomy for example do not, by definition, involve such restrictions. But if they do restrict some of the rights of outsiders, then we should be very careful. As stated above, cultural rights don’t trump individual rights; the opposite is true. But this general priority of individual rights doesn’t mean that there will never be cases in which it’s better to give priority to cultural rights (the good this will allow us to do may sometimes far outweigh the harm to some people’s individual rights). The general priority of individual rights over group rights doesn’t mean that there can’t be specific cases where the balance goes the other way.

Racism (18): Human Rights and Affirmative Action

Affirmative action is a set of policies aimed at improving the representation of women and minorities in education, business, employment and other sectors of society where these groups have traditionally been underrepresented or even completely excluded. Representation is improved by way of preferential selection.

For example, if students are normally selected on the basis of test scores, affirmative action will add other selection criteria such as race, gender, ethnicity, language, religion etc. Maybe in certain cases the initial selection criteria (e.g. test scores) are dumped altogether because it’s assumed that they reflect racial bias or because past discrimination makes it difficult for discriminated groups to achieve good test scores.

As you can see from this description, affirmative action policies are usually internal policies implemented by organizations or institutions (schools, businesses, representative bodies etc.) wishing to become more diverse and more representative of society at large, although they can also be imposed by the government. It’s common – but not necessary – for affirmative action policies to work with quotas, i.e. fixed percentages of selectees from historically disadvantaged groups.

Now, how should we evaluate affirmative action from the perspective of human rights? Some see affirmative action as a means to compensate for past human rights violations and past exclusion. A minority which has been discriminated in the past may still find it difficult today to achieve equality of opportunity today. Affirmative action is then intended to break a self-continuing pattern of exclusion. Combined with other policies such as reparations, welfare, anti-discrimination laws etc., affirmative action will hopefully achieve more equality. According to this view, affirmative action is necessary from a human rights perspective.

However, it’s equally possible to argue that affirmative action doesn’t help or even undermines human rights. An example of the way in which it may not help is given by its application in education. Those African-Americans who are most likely to profit from affirmative action in access to higher education institutions aren’t the most disadvantaged of their group. On the contrary, they are probably among those who already have sufficiently good educational credentials (a requirement to be eligible to higher education in the first place), and they are by definition not the least advantaged. Affirmative action doesn’t seem to serve equality.

The same setting provides another example of the way in which affirmative action fails to help or even harms the cause of human rights. White people who enter education are by definition relatively young and hence least likely to have contributed to past discrimination. Their exclusion from a university resulting from the preferential selection of African-Americans harms their right to equal treatment for no good reason. It looks like discrimination as a means to fight discrimination, racism as a means to fight racism. Affirmative action is then supposed to harm the rights of whites. It’s even possible that a poor white boy, who would profit a lot from acceptance by a highly ranked university, is excluded in order to benefit a rich black boy who will have a decent life even without any education. That seems perverse to many opponents of affirmative action who argue that all racial classifications should be abandoned and all selection policies should be color-blind.

There are a few possible counter-arguments against this position. It’s true that those who are excluded or not selected because of affirmative action programs probably aren’t individually responsible for the historical disadvantages imposed on the beneficiaries of those programs, and therefore shouldn’t “pay” for correcting those disadvantages. However, it may still be true that they benefit from continuing inequality. For example, if women are systematically excluded from some professions, men in general benefit from this exclusion, even if they haven’t excluded women themselves. (That’s an argument made by Mary Anne Warren among others). Also, if African-Americans have traditionally been excluded from higher quality educational institutions, it’s likely that the better test scores presented by whites and required to enter university do not simply represent higher ability. Discrimination has benefited and continues to benefit whites in terms of test scores, even those whites who are not in the least responsible for the substandard basic education received by blacks. Demanding that only test scores be used as a criterion for selection in universities is not the way to avoid discrimination (of whites) but the way to cement discrimination (of blacks).

Moreover, even if it’s true that some whites are unjustly discriminated against by affirmative action programs, one might argue that this is a small price to pay for correcting a much higher number of cases of anti-black discrimination. Although personally I’m weary of sacrificing the rights of some for the benefit of others.

Also, to the extent that it’s true that affirmative action means fighting discrimination with discrimination, we should realize that the two kinds of “discrimination” are not at all the same. The type of discrimination that affirmative action is supposed to correct is a discrimination motivated by racial animus and intended to stigmatize some people as “inferior”. If affirmative action is a kind of discrimination, it’s one that has other motives. Whites who are excluded from a university because of affirmative action programs aren’t excluded because we believe that whites are inferior or because we don’t like them. However, it’s probably cold comfort for whites to know that their discrimination is not motivated by hatred.

And finally, affirmative action can be defended on a number of other consequentialist grounds that have nothing to do with the possible compensation or correction of injustices. For instance, allowing more blacks in law school can bring about a justice system that is seen as more legitimate by black citizens. More blacks in the police force may result in police departments that are more legitimate, more acceptable and more authoritative to black people. More female CEOs or professors may inspire more young women to follow their lead or to be more successful generally. More blacks in medical school may result in better healthcare for communities that are currently not well served. Diversity in school may have some educational advantages: proximity to people from other races may reduce racism and may better prepare students for their future lives in a diverse society. In general, a society that is representative in all fields is much more legitimate in the eyes of all citizens. And, last but not least, diversity improves the functioning of the marketplace of ideas. So, if all of this or some of this is true, affirmative action can yield more overall respect for human rights.

The Ethics of Human Rights (31): Reparations for Violations of the Human Rights of Past Generations

How should we deal with the violations of the human rights of past generations? This question is similar to one I already discussed here, namely the rights of future generations. The difference, however, is that our current actions can influence the well-being of future generations, but cannot mean anything for past generations since the people in questions are already dead. However, many people favor reparations for past rights violations that benefit the descendants of the deceased victims of those rights violations. It can be argued that these descendants still suffer the consequences of the violations inflicted on their deceased relatives.

Such reparations – also called restitutions – can take different forms:

  • restoration of lands owned by previous generations but expropriated
  • financial compensation for goods that cannot be restored (such as desecrated burial grounds)
  • financial compensation for financial loss (theft)
  • merely symbolic restoration (public apologies or amendments to textbooks etc.)
  • etc.

This kind of intergenerational justice is – just like but even more so than the forward looking kind – fraught with difficulties. I’ll describe some of those problems below, but if you want a more systematic treatment there are two good papers by Tyler Cowen here and here.

Since we have to deal, necessarily, with the descendants of the victims rather than the victims themselves, we have to take into account the time element. The claim that the descendants should be compensated somehow, at least in the case of gross violations with lasting effects such as slavery, quickly faces the difficult question of “how much?”. How much did the descendants exactly lose as a result of the ancient theft, and how much should be given back? That’s extremely difficult to determine. First you have to calculate the initial loss for the original victims. In the case of slavery for example, how much did slavery represent in financial terms: how much value did slaves produce for instance. That’s already very difficult.

But then you have to calculate the loss over generations: imagine the counterfactual that slaves could have kept the proceeds of their work, weren’t deprived of education opportunities etc., then how much would their capital have grown over time, given investments, savings etc., and how much would they have profited from their education had they received it? It’s clear that the descendants of the original victims have lost more than the initial sum of the theft that was caused by slavery. They have forgone investment opportunities, educational opportunities that can also be translated in loss of income, etc. But how much? If you take all the lost opportunities – investments, education and many others – into account, and if you deal with an original crime that is relatively far in the past, you can arrive at huge sums, perhaps even sums that are larger than the current wealth of a society.

Likewise, the descendants of the thieves – the slave owners in this case – have gained more than the amount of the initial theft, since this theft has allowed them to invest, and their better education has allowed them to compete inequitably with the descendants of the slaves. And so on. But how can you possible calculate all this? Also, how can you ever know what the descendants of the slaves would have done with the capital – financial and human – if it hadn’t been stolen from their forefathers? Can you just assume that they would have done the same thing as anyone else and use market interest rates? No, I don’t think you can. There is an infinite number of possible counterfactuals.

And that’s just one problem. You also have to make some dubious assumptions. First, you have to assume that you can unequivocally identify the original victims and their descendants, and the original perpetrators and their descendants. How else can you redistribute? If you just assume that all whites in the U.S. are to blame for slavery and all blacks are to benefit from reparations for slavery, you’ll be punishing and rewarding people who don’t deserve it. Some whites fought against slavery and some blacks collaborated. The descendants of those whites don’t deserve to pay restitutions. Also, you have to assume that there hasn’t been any genetic exchange between the victims and the thieves, and that’s demonstrably wrong. How will you treat the descendants of a child born from a slave and her owner? As a victim or a perpetrator, or both? That doesn’t make any sense.

There’s also the point, made by Derek Parfit, that the exact individuals who comprise the descendant generations would not have been born had the initial violation not occurred. A state of slavery for instance has enormous consequences for marriage, intercourse etc. In other words, since the descendants would not have been born without the initial violation, in a sense they can be said to have benefited from the violation. They now exist, where otherwise they wouldn’t have existed. To exist is obviously better than not to exist (at least in most cases, or I’m completely wrong about humanity). In another counterfactual you can claim that the descendants of slaves for instance don’t actually benefit from slavery, but that the negative consequences they suffer from the slavery of their forefathers don’t grow worse over time (see above) but tend to fade away. Their current predicament is caused by more recent events rather than old history.

And there are numerous other problems (for example, if you go back sufficiently far in time, all of us have ancestors who were oppressed; should we all receive restitutions?). So, given all this, does justice require some form of reparation for the most serious and widespread human rights violations of the past? We may not know exactly how much we have to pay or what exactly we should do to right the wrong. We also don’t know exactly who should benefit or pay. And maybe there are conflicting movements: for some reasons, the injury grows over time, but perhaps for other reasons it diminishes (genetic exchange, diminishing rates of return on capital etc.). Nevertheless, it may be good public policy to admit the mistakes of the past and also to put your money where your mouth is, especially when it’s obvious that current generations continue to suffer to some extent (as is the case for African-Americans for instance).

However, personally I feel that the focus should be, not on restitutions for violations of the past but on protection for violations of the present. If African-Americans in the U.S. are currently in a disadvantaged position (which is often the case), then their current rights are violated and we should do something about that, whatever the causes of those violations. These causes are in part the violations of the rights of their ancestors, which still have an effect today and produce violations of the rights of descendants. If these descendants suffer from poverty and poor education, it can be helpful to know the causes, even if some of these are far back in time, but ultimately these causes don’t change the nature of the current violations, or the nature of current obligations. These people have a right to assistance and education, just as much, not more or less, as other people who suffer the same violations but who are not descendants of people who suffered centuries ago. So in a sense we don’t need restitutions to do something. Current rights violations are sufficient reasons to act.

The Causes of Poverty (35): The Membership Theory of Poverty

When you read about the causes of poverty you’ve probably convinced yourself that there are causes, and that the poor don’t have only themselves to blame. What you’re most likely to find are the following causes:

  • culture
  • geography, climate, resources (most notably in the work of Jeffrey Sachs)
  • institutional, political and governmental causes (e.g. the resource curse, the role of the rule of law and economic freedom etc.)
  • education
  • sociological causes (e.g. family structure)
  • etc.

It’s less common to find discussions about group affiliation as a cause of poverty. The group membership theory of poverty states that some people are poor because of the dynamics of the group(s) to which they belong. The groups may be residential areas (“ghettos”), schools, ethnic groups, workplaces etc. Poverty in this sense is “contagious”, hereditary, and self-perpetuating. It’s an example of a poverty trap.

This membership theory of poverty has a certain intuitive appeal to it. Group membership influences individual behavior and individual outcomes in various ways, so it wouldn’t be surprising to see that it influences economic status as well.

How do groups exert a negative influence over their members’ economic status? Peer pressure plays a role. The choices of some members of the group become the “natural” thing to do. The desire for social acceptance can force individuals to mimic their peers. Something similar occurs with role models. The behavior of older group members or members with some form of authority becomes standard behavior. Furthermore, when people witness high rates of failure among members, this will negatively affect their aspirations and effort. Finally, social and economic activities are highly complementary. When few group members start businesses for example, few other members will have the opportunity to work for them or trade with them. Conversely, when many members engage in economically destructive activities such as crime, other members may have no other economic opportunity than to collaborate.

You may ask, if groups are so bad, why don’t people just get out? Of course, it’s not always as easy as that. When you live in a crime infested ghetto, you don’t just move uptown. People will need some form of help. In order to break negative group dynamics, you can either work on these dynamics themselves (provide better education, crime protection, economic opportunities, affirmative action schemes etc.), or you can try to influence the prior group affiliation. How do people end up in a harmful group in the first place? There may be some room for government intervention. There’s the example of school desegregation through busing in the U.S. (not highly successful however). Governments can also tweak their social housing policies. Such policies are often called associational redistribution. One should be careful, however, not to cause harm elsewhere. There’s still a right to freedom of association and a right to privacy. Governments shouldn’t mess too much with group membership.

If you want to read more about the membership theory of poverty, I recommend two papers by Steven Durlauf, here and here. Those papers also contain an overview of the empirical evidence.

Measuring Equality of Opportunity

People on opposite sides of political debates often agree on very little, but they do agree on the importance of equality of opportunity. There is almost universal agreement that people should have at least a starting position that guarantees an equal chance of success in whatever life projects one chooses, for those willing to invest an equal amount of effort. More specifically, equality of opportunity is often defined as an equal likelihood of success for all at age 18 (in order to factor in possible inequalities of opportunity determined by education).

Equality of opportunity is by definition an impossible goal. The lottery of birth means more than being unable to choose to be born in a wealthy family with caring parents who can finance your education and motivate you to achieve your goals. It also means that you can’t choose which talents and genes you are born with. Genetic differences are no more a matter of choice than the character and means of your parents. And genetic differences affect people’s talents, skills and maybe even their capacity to invest effort. So, as long as we can’t redistribute beneficial genes or disable harmful ones, and as long as we don’t want to intervene in people’s families and redistribute children, we can’t remove the impact of genes and parents.

However, we can do something. Equality of opportunity may be impossible but there is less or more inequality of opportunity. Or concern should be to provide as much equality of opportunity as possible, and to expand opportunity for those who are relatively less privileged. This means removing things that hold some people back (e.g. discrimination, unemployment, bad schools etc.), and – more positively – helping people to cultivate their capabilities and expand their choices.

How doe we measure if these interventions are successful? It seems very difficult to measure equality of opportunity. All we can do is measure some of the elements of opportunity:

  • We can measure unequal income and infer unequal opportunity from this. People with low income obviously have less opportunities than other people. However, not all opportunities can be bought and maybe low income isn’t the result of a disadvantaged upbringing or bad schools, but of bad choices, or even conscious choices. Can we say that a child of a millionaire who chose to be a hermit suffered from unequal opportunity? Don’t think so.
  • We can measure unequal education and skills (educational attainment or degrees, IQ tests etc.). However, someone who comes from a very privileged family but with low or alternative aspirations may score low on educational attainment or even IQ.
  • We can deduce unequal opportunity by the absence of opportunity enhancing government policies and legislation. The Civil Rights Act was self-evidently a boost for the opportunities of African-Americans.
  • We can measure social mobility and assume, correctly I think, that very low levels of mobility indicate inequality of opportunity.
  • Etc.

Whatever actions we take to enhance opportunity, it will probably always be relatively unclear what the net outcome will be on overall equality of opportunity. Of course, that doesn’t mean we shouldn’t do anything. And when we do something, we should also distinguish clearly between things we can do and things we can’t to, or things we feel are immoral (e.g. genetic redistribution or child redistribution). We know that parental attitudes, genetics, talent, appearance, networks and luck have a huge impact on individuals’ chances of success, but those are things we can’t do anything about, either because it’s impossible or because it’s immoral. But we can teach people skills and perseverance, to a certain extent. We can help the unlucky, for example with unemployment benefits. We can regulate firms’ employment policies so as to counteract the “old boys networks” or racism in employment decisions. We can impose an inheritance tax in order to limit the effects of the lottery of family. Etc etc.

Lies, Damned Lies, and Statistics (19): Fun With Percentages

A certain company discovered that 40% of all sick days were taken on a Friday or a Monday. They immediately clamped down on sick leave before they realized their mistake. Forty percent represents two days out of a five day working week and is therefore a normal spread. Nothing to do with lazy employees wishing to extend their weekends. They are just as sick on any other day.

A more serious example, now, more relevant also to human rights:

The stunning statistic that 70% of black babies are born out of wedlock is driven, to be sure, by the fact that many poor black women have a lot of children. But it turns out it is also driven by the fact that married black women have fewer children than married white women. (source)

The fact that married black women have fewer children than married white women obviously inflates the percentage of black babies born out of wedlock. If married black women had just as many children as married white women, the proportion or percentage of black babies out of wedlock would drop mechanically. But why do they have fewer children? It seems it’s a matter of being able to afford children.

It’s well known that the black middle class has a lot less in the way of assets than whites of similar income levels – hardly surprising, given the legacy of generations of discrimination and poverty. But that also means that things that a lot of white middle class people take for granted – like help with a down-payment on a house when you have your first kid – are less available. Middle class black parents have less in the way of a parental safety net than their white equivalents, so they’re less likely to have a second kid. (source)

The 70%, when compared to the national average which is about 40%, may seem high, but it’s artificially inflated by the relatively low number of black babies in wedlock. So before you go out yelling (see here for example) that all the poverty and educational problems of African-Americans are caused by the fact that too many of their children are born and raised out of wedlock, and presumably by single parents (although the latter doesn’t follow from the former), and that it’s better to promote “traditional marriage” instead of affirmative action, welfare etc., you may want to dig a bit deeper first. If you do, you’ll paint a more nuanced picture than the one about dysfunctional black families and irresponsible black fathers.

Nevertheless, while the percentages may not be as high as they seem at first glance, it remains true that black babies still make up a disproportionate share of kids born out of wedlock. And if “born out of wedlock” means “single parents” (usually mothers) then this can be a problem. Although many single parents do a great job raising their children (and often a better job than many “normal” families), it can be tough and the risks of ending up in poverty are much higher. And yet, even this is not enough to justify sermons about irresponsible black fathers. Maybe the misguided war on drugs, racial profiling and incarceration statistics have something to do with it.

The Compatibility of Freedom and Equality (1): Impossible?

Freedom vs. Equality, or Equal Freedom/Free Equality?

In this blog series, I want to look for philosophical arguments in favor of the link between freedom and equality and against the traditional opposition between these values. The conclusion will be that the best way of defending this link is by adopting a certain definition of freedom, namely freedom as self-realization, self-development and autonomy. Other types of freedom are more difficult to combine with the demands of equality.

An important part of the link between freedom and equality is the law and the state. Protection by the law, security because of the law, the creation of a public space by the law, political participation in a democratic state based on the law, are all factors which combine in producing an equal liberty for all, liberty in the sense of self-rule, freedom of choice and the possibility to determine your own life and to develop your self.

In this first post of the series, I will limit myself to the statement of the problem. Why should there be a contradiction between freedom and equality? Over the last centuries, it has indeed become kind of a tradition to juxtapose freedom and equality and to view these two important human values as opposing goals, one inevitably leading to the limitation of the other.

Some examples

One can point to the way in which the claims of equality, as they are expressed in economic rights and policies of income redistribution, limit the freedom of the wealthier parts of the population, in particular the freedom to do with their possessions as they want.

Moreover, the struggle against poverty can become the overriding preoccupation and often even an excuse for violations of freedom rights (the Chinese government can be criticized for this). Non-economic injustices are often readily accepted once people are convinced that these injustices are needed to combat economic injustices.

Another example of the way in which the struggle for equality limits the freedom of certain groups is given by some kinds of affirmative action programs. And a final example, the principle of non-discrimination may require limiting the freedom of expression of those who promote racism or other forms of discrimination.

Conversely, freedom can also limit equality. Although I’m all in favor of economic freedom, I have to admit that the unfettered free market and the absolute protection of property – a freedom right – can produce or exacerbate economic inequalities. When the unequal distribution of talent and starting-capital is not checked by government intervention then the outcome tends to be more economic inequality, the exceptional “rags to riches” story notwithstanding. It is obvious that people who are born in wealthy families have more opportunities and less risks than others.

This is true even if we don’t assume that people only use their abilities and starting capital for selfish purposes. There is charity and solidarity, but even if we combine this with so-called trickle-down effects or Invisible hand effects (the wealth of the wealthy benefits the less wealthy because they can work for the wealthy etc.) we have to admit that some people will lose and will find themselves in a situation which is not only economically unequal but also detrimental for their wellbeing.

Economic rights, the rights to these basic resources and capabilities, are not the automatic product of voluntary caritas, free solidarity, economic freedom or the invisible hand. Some kind of government intervention and coercion is necessary in order to redistribute wealth and undo the most heinous forms of economic inequality.

Another example: an absolute freedom of expression which includes the protection of hatred and racist speech, can lead to inequality, discrimination and even genocide.

The choice between freedom and equality

Most if not all people consider both freedom and equality to be important human values and goals. But because of the apparent contradiction between these goals, people tend to make a choice, and prefer one to the other. It is this choice which separates conservatives and liberals, or people from the right and left; the former preferring liberty, the latter equality (simplistically).

No one, however, throws the other value overboard. Either equality or freedom is merely deemed somewhat less important in certain specific cases. Not all things that are good and desirable are necessarily compatible. Sometimes one good thing will have to be abandoned or limited in order to protect another good thing. And I don’t exclude that this can be the case of equality and freedom. However, what I will try to do in this series is to show that things aren’t so problematic and that, given a correct understanding of freedom in particular, conflicts are not necessary.

Discrimination (1)

Discrimination, in its non-political and non-legal sense, simply means the recognition of differences. In the political and legal sense, it means unjustifiable differences in treatment between groups of people, most often the unjustifiable denial of the equal enjoyment of human rights.

Groups of people are discriminated because they have certain group-specific attributes that set them apart from the rest of society and that warrant, in the eyes of the people who are discriminating, less favorable treatment. One can make the following distinctions:

  • Discrimination can come in different degrees, affecting large or small numbers of people to a large or small extent: from government policy to an unspoken mentality of a small part of the population, and everything in between (such as states not acting to counter discrimination, very active and outspoken discrimination in some parts of the community, entrenched cultural practices such as the caste system etc.).
  • It can be exercised in different ways. People may be discriminated on the grounds of their race, gender etc. They can be discriminated in relatively harmless ways (denial of a promotion because of a likely pregnancy for example) or very brutal ways (slavery, denying of equal education etc.). They can also be discriminated in many different fields of life: education, employment, justice, health care etc.

Some people have the misfortune of finding themselves in a state which has an overt and active policy of discrimination, and in different discriminated groups at the same time (black lesbians in Apartheid South-Africa for example). As a result, they may also be discriminated in different fields of life at the same time (employment, family law, education etc.).

There are many types of discrimination, and the concept of discrimination is often linked to others such as racism, agism, sexism, xenophobia, intolerance, religious fundamentalism, genocide, ethnic cleansing etc. Whereas all these phenomena undoubtedly have a dose of discrimination, they are not the necessary result of discrimination. Discrimination can be much more limited.

One can distinguish between types of discrimination according to the groups that are discriminated, and the ways in which these groups are discriminated.

Groups:

  • racial discrimination
  • gender discrimination
  • discrimination based on one’s sexual orientation
  • discrimination based on one’s language, culture or national origin
  • discrimination based on one’s religion or one’s status within a religion
  • discrimination based on one’s political convictions
  • age discrimination
  • health discrimination (e.g. discrimination of HIV patients, disabled persons or obese persons)
  • etc. (when it comes to cruelty, man’s imagination has no limits I’m afraid)

Ways:

  • economic discrimination (e.g. persistent differences in poverty levels between groups)
  • employment discrimination (e.g. discrimination in career opportunities, pay, “Berufsverbot” etc.)
  • housing discrimination
  • family law discrimination (e.g. the inability of homosexuals to marry or to adopt)
  • education discrimination, different levels or quality of education for different groups
  • discrimination of the access to public service or elected positions
  • judicial discrimination, discrimination in the justice system
  • health discrimination, different levels or quality of healthcare for different groups
  • cultural practices such as honor killings, female genital mutilation,…
  • legal discrimination such as Jim Crow or segregation
  • etc.

Causes of discrimination:

  • racism, sexism etc.
  • a history of discrimination, creating a burden on future generations
  • immigration
  • xenophobia
  • recession or economic scarcity
  • education
  • cultural practices (e.g. the caste system)
  • religious doctrine
  • legislation (e.g. the Jim Crow laws or other types of legally enforced discrimination)
  • etc.

Article 2 of the Universal Declaration prohibits discrimination:

“Everyone is entitled to all the rights and freedoms set forth in this Declaration, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.”

Although poverty has many causes, discrimination is undoubtedly one of them. Large differences in wealth between groups (for example racial groups) may indicate the existence of discrimination.

Statistics on the differences between races in incarceration or execution rates may indicate the existence of discrimination in the justice system, although these differences may have other causes besides discrimination, e.g. differences in poverty rates (see above), differences in levels of education etc. Of course, the latter differences may be caused by discrimination so that discrimination is indirectly the cause of the differences in the application of justice. Here again are some data on the situation in the US, showing that blacks, although they make up only 12% of the population, account for more than 1 in 3 of the prison population and of the executions. 5% of black men are in jail, compared to less than 1% of white men.

 

 

Blacks are also about twice as likely as whites to be a victim of a crime.