BSJ

The Butler Scholarly Journal

Equality; it’s simple…right?

By Ben Warwick

Equality; it’s simple…right? The scientist’s head spins with equations, the arts student begins to recall the plights of peoples and the law student inanely quotes legislation. Leaving the equations aside we might suggest that equality is simply treating like people alike; not an unreasonable assertion, certainly not a bad starting point.

This idea, known as formal equality, is commonplace in government policy, the workplace, the classroom and elsewhere. Formal equality prevents the worst excesses of discrimination and recognises that humans (by virtue of being human) should be treated with the same amount of dignity and respect. Thus in segregated America, formal equality said that the designation of swimming pools as ‘white only’ was discriminatory and that access should be available to all. The result of this pronouncement neatly illustrates one of the problems with formal equality. Rather than opening the pools to all, they were gradually closed; no preferential treatment existed if there were no pools for anyone (this is a process known as levelling-down).

Formal equality has other problems too. Imagine I have placed a prize (let’s assume it’s a prize worth getting up and racing towards), in Dublin (because I like Dublin). We, the contestants in the race to the prize, are in various locations across the world, that is, in different starting places. The starting gun is fired and we all set off. After running a few hundred metres you despair and protest that the race was unfair; “I was further from the prize”, you say. You’d be right; the contestants in the race were discriminated upon based on their proximity to Dublin- a clear example of inequality. Formal equality would indeed remedy this great injustice. It insists that, in life, as in our race, people should start from the same place. The metaphorical ‘different starting place’ might be because of historical prejudices or as a virtue of being a minority of society; the most commonly cited examples are those of sex, race, ethnicity, nationality and religion.

The starter calls us back to the blocks, this time ensuring we are all congregated in the same location (somewhere in Russia) before firing her pistol. Now formal equality has been satisfied- we are all treated the same- there was no preference for the Irish. Yet there still could remain great unfairness, some of us might have a map, speak Russian, have a local knowledge of Dublin, have great personal wealth to spend on a jet to Dublin. We might all start in the same place thanks to formal equality, but our personal characteristics continue to skew the race. This is where substantive equality comes in.

A substantive equality approach suggests that to have equality in our race to Dublin, everyone should have an equal opportunity to win. This goes beyond simply starting in the same place and might demand, for example, that everyone has the same amount of money to spend on transport, that we are all given enough education to be able to read train timetables, that we can all drive, that we all have suitable clothing to brave the Russian (or worse- the Irish) weather, the list could go on. As you can see, to give everyone the equality of opportunity we might like, there are numerous considerations and hefty resource constraints (even for our somewhat simplistic race).

Take a more realistic and multifaceted issue of equality of opportunity to become a Supreme Court judge or a university professor and there are suddenly almost too many inequalities to address. It is acknowledged that one’s ability for and propensity to a career is formed throughout one’s life. So as a society we would have to address every single inequality from the moment of conception until the moment that the selection committee decides between the candidates. An impossible task- but fear not, there is another way, a shortcut to equality- positive discrimination.

Positive discrimination is a concept that alienates people. Not surprisingly I might add; solving the problem of discrimination, through discrimination is at best counter-intuitive and at worst completely mad. It involves the active promotion of one group of people over another. Gender quotas in boardrooms (and in many European parliaments), giving disability living allowance only to one group, and levying more tax from those at the upper end of the income spectrum, are but a few of the most obvious examples.

So why isn’t positive discrimination just as bad as ‘the other kind’? It is clear that we don’t morally (or legally) condemn all discrimination. When someone chooses their friends, they presumably, and perhaps unconsciously, choose them on some ground or another; conceivably those grounds might be similar interests, gender or location. That involves a discrimination against people with different interests, of the ‘wrong’ gender and in the ‘wrong’ location. Why is that not immoral and illegal discrimination? The answer involves nuancing our purportedly simple idea(l) of equality still further. Rather than a flat statement that all discrimination is wrong, we might say that society should treat everyone equally unless there is some objective and reasonable justification for unequal treatment. So the objective and reasonable justification for unequally choosing friends with similar interests could be as simple as noting that friendship is a personal choice, without grave effects on the functioning of society.

So herein lies the validation of positive discrimination. Positive discrimination is permitted, as indeed is any discrimination, if there are objective and reasonable justifications. Given the contested nature of positive discrimination (including by those who stand to benefit from it), particularly strong justifications will have to be found for it. This is where agreement is sparse. For my part, a strong argument would include evidence of the historical injustice suffered by the group, an acknowledgement that formal equality is not working or would take a long time to correct the imbalance and a recognition that the positive measure is only temporary. Many, however, despite agreeing on the general need for equality would require a much greater justification.

Equality, therefore, might not be as symmetric as we initially posited. Rather, it is complex enough to create an impassioned debate and that, surely, is one of the greatest compliments that can be given to a concept. Complexity can cause people to turn off, to stop thinking and to concede to simplicity. That sort of concession should be saved for less important issues (equations, perhaps), because the complexity of equality is something that shapes how we react to one another, the worth of the person and human dignity. It has formed the basis of many a war and plenty of campaigns. Is it really too much to expect that everyone should start the race on an equal footing?

Ben Warwick is a Butler Alumus and is now at the University of Nottingham studying Human Rights Law. He can be contacted at btcw@me.com or tweeted at @btcwarwick.

  • Ali Poll

    Really interesting article Ben. It raised just a couple of issues for me:

    Where do you draw a line as to what characteristics are fair or unfair to discriminate. I appreciate the obvious at the extremes, but, to continue with the race to Dublin metaphor, if someone has spent 3 years learning Russian, then they should be allowed to use that to their advantage, I’m sure you’d agree. So when it comes to a job application, beyond the obvious where race, gender, religion, sexuality, socioeconomic class etc should clearly not play a role, how do you think it is best to define what constitutes a ‘fair’ advantage on which someone may ‘discriminate’, and what isn’t? I mean in a way to pick one person out of 50 is to discriminate… I appreciate most of the time it is obvious what is to discriminate and what is just to pick the best person for the job, but just going on a theoretical perspective (which I’m usually not great at and so leave to those with a much better grasp of philosophy!) it does, to me, raise a question.

    Secondly, and more importantly, positive discrimination/ quotas. Now in the utopia to which I occasionally drift in stressful times, I hate the idea of race/ gender quotas because it isn’t treating people with equality, as you highlight (fear not, this is not a “men are so oppressed by the matriachy” point!! I just don’t like basing a judgement of anyone on such traits). However, I do see their usefulness, particularly in the long run: if the previously over-privileged section of society becomes used to seeing the previously oppressed section in senior roles etc and is forced to view them as equal, this can remove the view of inequality from that society eventually. However I have grave concerns in that quotas may drive a rift (even greater than that which previously existed) between said factions of society. It isn’t hard to imagine a man’s misogyny or a white person’s racism increasing if they feel they are losing out to someone they view as “beneath them”, and obviously the short-term effects this would have could be catastrophic in trying to create a society in which people view one another equally. I think (although I am by no means well informed on the matter) that South Africa’s race quotas are a fair indication of this? And so I wondered how you think this can be negated, or indeed if it needs to be?

    Sorry for length of reply!

  • Ben

    You raise interesting points. Answering as briefly as I can-

    Your first point starts to approach another category of equality, one which I avoided because it commands so little support. Substantive equality is properly divided into two categories- equality of opportunity and equality of result. Equality of opportunity would require everyone at least had the chance to learn russian, whereas equality of result would require everyone to either speak russian or not. I didn’t deal with them in the post as they are not particularly easy to divide, because in practice there is a spectrum between opportunity and result. Achieving opportunity of result is very hard and very controversial for the reasons you raise.

    The ‘on what grounds’ question which you had combined with the above point is another whole topic in itself. Human rights law has picked a selection of the most commonly understood and agreed upon grounds of discrimination. There isn’t as much philosophy behind the rights movement as one might think/expect/like. The chosen grounds are pretty crudely included in the treaties/law based on political horse-trading. They also tend to become outdated as the treaties aren’t updated as such. Therefore sexual orientation, poverty and gender identity are either excluded from, or shoe-horned into, these legal texts. Attempts have been made to theorise that the grounds of discrimination are based on ‘inherent characteristics’- the notion that if you are born a certain way, you can’t change that and shouldn’t face discrimination because of it. However this doesn’t hold for religious discrimination, nationality etc. In short, there isn’t much theory behind it!

    Finally, and most easy to answer is the last point you raise. Yes I agree that positive discrimination has the potential to cause huge waves of discontent. My first response to this (and I mean no offence by it) is -obviously! It is clear that groups with entrenched interests will be unhappy when you diminish their power (evidence Leveson et al.). That shouldn’t be surprising, or prevent the work of equality. The second response is that if positive discrimination is carried out in a systematic and immediate way there is the potential for a backlash (South Africa is probably a good example of this). This very rarely happens though. Much more common is the gradual implementation of measures, that inequalities are dealt with as they are highlighted by some report or media headline and therefore the perception of a conspiracy against the majority never really gains (serious) momentum. This mitigates tension between the oppressors and the oppressed, but it doesn’t promise to eradicate it. Equality doesn’t promise social cohesion, it just promises equality!

  • Jo

    Thanks for this Ben, this is really interesting and I appreciate your clarification above on the two types of substantive equality,but I think I agree with Ali on the point about what constitutes discrimination. I’m a big believer in equality of opportunity, but I don’t think that, as you say, “we would have to address every single inequality from the moment of conception until the moment that the selection committee decides between the candidates.” If it were possible to do that (very hypothetically as clearly it’s not feasible!), the two candidates would presumably be exactly the same; there would be no discrimination because there would literally be no way to decide between them. So who would get the job? I appreciate that you’re not actually proposing this kind of extreme equality but I think it raises an interesting question about which characteristics and differences we can judge people on without discriminating unfairly. As you said in your reply above, the ‘grounds for discriminiation’ is a big discussion in itself.

    A person’s experiences (along with genes) are what makes them who they are and what makes us individuals. If we took equality to the extreme in every aspect of life, society couldn’t really function and frankly, the world would be a very dull place. I’m not suggesting that people with more money deserve to get better opportunities or that two people born with different skin colours can justifiably be treated differently because of it, but surely there has to be a line somewhere where variant characteristics stop being inequalities and are actually just individualities? Some people are naturally more confident; some have worked hard their whole life to improve their prospects; some have sought out opportunities to develop their skills; some just have an innate talent – going back to the selection committee analogy, aren’t these all valid reasons to ‘discriminate’ between the candidates? You say later in your article that unqequal treatment is ok if there is some objective and reasonable justification behind it, and I think that this can apply to more than just positive discrimination.

    On that point, I’ve always been against the concept of positive discrimination as it’s all unfair as far as I’m concerned. Seats in the boardroom, places on a university course, posts in governments etc. should be given to the most competent person, not allocated according to either outdated prejudices or well-intentioned quotas. That said, you make some strong arguments and your article has given me food for thought!