Anti‐Discrimination Rights Without Equality
| Published date | 01 March 2005 |
| Date | 01 March 2005 |
| DOI | http://doi.org/10.1111/j.1468-2230.2005.00534.x |
| Author | Elisa Holmes |
THE
MODERN LAW REVIEW
Volume 68 March 2005 No 2
Anti-Discr imination Rights Without Equality
Elisa Holmes
n
Anti-discrimination rights are nearly always thought to be justi¢ed or explained by equality,
although the precise nature of th is relationship is rarely considered. In this article I consider the
two most plausible relationships, both of which are commonly at least implicitly asserted: that
anti-discrimination rights are deontic equal treatmentnorms, and that anti-discrimination rights
are instrumentally aimed at achieving telic equality. I try to show that, as a conceptual matter,
anti-discrimination rights are not equal treatment norms: they do not require that all people
(perhaps in a certai n category) are treated the same. They allow for di¡erent treatment, but
they prohibit di¡erent treatment only on some grounds. Although the suggestion that anti-
discrimination rights are instrumentally aimed at telic equality (in some dimension) is concep-
tually plausible (like all instrumental relationships), it is most unlikely that anti-discrimination
rights can be justi¢ed on this ground.
Those writingabout discrimination law almostalways assume some kind of rela-
tionship between anti-discrimination rights and equality. But the precise nature
of this assumed relationship is often left ambiguous or at least inexplicit. Often
this uncertainty arises out of confusion about the concept of equality, and dissa-
tisfactionwith its characteristics and implications, particularly when it is assumed
to relate to a nti-discr imination rights. This confusion becomes most obvious
when dissatisfaction with anti-discrimination principles is expressed.When anti-
discrimination principles fail to achieve certain imputed objectives, which are
claimed to be egalitarian, they are criticised as being aimed at or justi¢ed by an
inadequate ‘concept’ of equality. The possibility that in fact anti-discrimination
principles are not egalitarian in any signi¢cant way is almost never considered.
1
In this paper I will consider this possibility in three stages: ¢rst by exploring the
concept of equality, secondly by understanding how direct and indirect discrimi-
nation normswork, and ¢nally bycomparingegalitarian norms with discrimina-
tion norms.
n
Faculty of Law, University of Oxford (Magdalen College). Many thanks to John Gardner, Joseph
Raz,TimothyEndicott and Nicola Lacey forcomments on previous versions of this paper.I am parti-
cularlygrateful to John Gardner for his extensive comments on an earlier draftof th is paper.
1 In a recentarticle i nthi s journal,Hugh Collins, motivated by the apparentcontradicting demands
of ‘di¡erentnotions of equality’, pro¡ers the suggestion thatanti-di scrimination lawspursue what
he refers to as a ‘distributive aim’, which in turn is motivated by the aim of social inclusion: H.
Collins,‘Discrimination, Equality and Social Inclusion’ (2003) 66 MLR 16. In so doing, however,
he does not altogether abandon the relationship of anti-discrimination laws to equality.
rThe Modern LawReview Limited 2005
Published by BlackwellPublishing, 9600 Garsington Road,Oxford OX4 2DQ,UK and 350 Main Street, Malden, MA 02148, USA
(2005) 68(2)MLR 175^194
SOME TYPES OF PRINCIPLES
Before all that, we need tou nderstand some preliminary distinctions: the distinc-
tion between deontological (deontic) and teleological (telic) principles and the
distinction between action-regarding and non-action-regarding principles. Let’s
begin with the former distinction. A proponent of a telic principle of equal treat-
ment, for example, takes the view that equal treatment mus t be promoted.
2
If I
encountera situation in which I have a choice whetherto treat A1and A2 equally
or to treat them unequally,and to treat them unequally would cause other people
to react by treating A1and A2 equal lymore than if Itreated A1 and A2 equallyon
this occasion, then I should on this occasion treat A1 and A2 unequally. This is so
despite the fact that I would not be honouring the value of equal treatment in this
instance.This is because I would be promoting the value of equal treatment gener-
ally. The deontic view of equal treatment, however, is the view that equal treat-
ment is a value which should be honoured whether or not it is thereby prom ote d.On
this view, we should always treat people equally even if treating peopleequally in
a particular instance would (foreseeably) cause greater inequality of treatment
than treating A1and A2 unequally onthis occasion.The distinction betweentelic
and deontic theories is not a new distinction for philosophers,
3
and it might be
thought by some to mirror the dis tinction often made betwee n consequentialism
and deontology.
4
But for these purposes we need only understand the particular
distinction I have just described.
We might also want to distinguish between a state of a¡airs constituted by
human action (eg a state of a¡airs in which there are fewer lies, more promises
kept, fewer discriminatory decisions) and a state of a¡airs not constituted by
human action (eg a state of a¡airs in which there is more money, more utility,
fewer deprivations). Some principles, such as those forbidding betrayal and
requiring truth-telling, cannot be understood without ¢rst understanding what
would count as an action of conformity with themor violation of them. Betray-
2 See generally P. Pettit,‘Consequentialism’ and N. Davis,‘ContemporaryDeontology’ in P. Singer
(ed),A Companion to Ethics (Oxford: Basil Blackwell,1993).
3 There were two notable early (unsuccessful) attempts to grapple with this distinction in terms of
equality by T. Nagel in ‘Equality’ in M. Clayton and A. Williams (eds), The Ideal of Equality
(Basingstoke: Palgrave Macmillian, 2002) and B.Williams in‘The Idea of Equality’ in L. Pojman
and R.Westmoreland (eds), Equality: Selected Readings (NewYork: OUP,1997). Later, Rawls, for
example, describes a deontological theoryas ‘one that either does not specify the good indepen-
dently from the right, or does not interpret the right as maximizing the good’ (See J. Rawls, A
Theoryof Justice (Oxford: OUP, Revised Edition,1999) 26). Dworkin makes a similar distinction
between goal-based and duty-based theories, where goal based theories are akin to Rawls’s telic
theories and duty based theories are similar to Rawls’s deontic theories. (R.Dworkin, A Matter of
Principle (Oxford: Clarendon Press,1986) 336^338). Par¢t makes a distinction between deonticand
telic views of equality (D. Par¢t,‘Equality or Priority?’in M. Clayton and A.Williams (eds), ibid 84),
although his distinction appears to be somewhatdi¡erent. He uses the word deontic in three dif-
ferent senses: action-regardingness (concerned with justice),the strict deontic sense of being con-
cerned with the action of this person (which is contrasted with any goal related aim, including a
goalwhich i s concerned with the actions of others) and in the s ense of responsibility for telic equal-
ity (whether someone is bound to act or to put a situation right).
4 The di¡erent ways of formulating this contrast do not need to be considered here. For nowI will
refer to it as a contrast between deontological and teleological values.
Anti-Discrimination Rights Without Equality
176 rThe Modern Law ReviewLimited 2005
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