Seminar One prep Justice and Equality PDF

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Seminar One - Concepts of ‘Equality’ and ‘Justice’ Spring term week 3 What is ‘equality’? What is ‘justice’? Is it possible to have one without the other? In order to evaluate the law and assess whether it is successful in promoting ‘equality’ and ‘justice’ we need to clearly define these terms. The aim of this seminar then, is to think about what these concepts mean and some of the different ways they have been understood. Sandra Fredman, Discrimination Law (2nd edn, OUP 2011) Chapter 1: ‘Equality: Concepts and Controversies’. We hold these truths to be sacred and undeniable, that all men are created equal and independent, that from that equal creation they derive rights inherent and inalienable, among which are the preservation of life, and liberty, and the pursuit of happiness. Thomas Jefferson The aphorism that like people should be treated alike doesn’t in fact create equality as it allows for discrimination of individuals based on characteristics that can remand them unfairly as different allowing for the denial of their rights. In fact, equal treatment can lead to inequality and discrimination against those who by nature are at a disadvantage, where as in some cases unequal treatment can create equality in opportunity and result. Equality of treatment can be based on the concept that justice requires consistency, though this falls on the abstract view of justice which fails to consider the unequal distribution of wealth and power. consistently treating two individuals who appear alike but have different access to wealth, education and power will lead to an uneven outcome. Equality can also be interpreted based on the substantive view of justice that focuses on fixing the maldistribution of wealth. This focuses on equality of results which requires unequal treatment through creating equality of opportunities available.    

Redistributive equality aims to alleviate all disadvantage. Liberal equality aims to treat all with equal concern and respect. Neo-liberal goal of market and contractual equality. Political goal of access to the decision-making process.

Equality of treatmentAristotle viewed different as the opposite of equality thus making different treatment unjust. But in Britain’s plural society different is positive. Aristotle did not believe in society based on equality and advocated the unequal treatment of women and slaves. Young viewed differences in social groups as being non-definitive with all different groups having things in common. It is with the growth of capitalism in the 17 th-18th century and the growth of economic freedom that he concepts of equality began to arise. With John Locke 1690 saying ‘men [are] by Nature all free, equal and independent’. Three legal stages of equality, firstly the emancipation of subordinate groups making them equal in the eyes of the law, then the antidiscrimination legislation aimed at preventing disadvantage through social structures and thirdly the introduction of the HRA to entrench legal rights and equality in the UK constitution which introduced a positive duty to promote equality. With the equality act 2010 extending rights to 9 protected characteristics. Equality shouldn’t be equal treatment as it would allow groups to be treated equally as bad as long as it was the same. For example, legislation

allowing holding of non-uk nationals without trial was discriminatory, so they introduced the Prevention of Terrorism Act 2005 to extend the breach of liberty to both uk nationals as well. Equality of treatment has to rely on the standard of one group to which all will be held to, thus it tends to be to majority, which creates disadvantage to minorities as their differing characteristics may make them unable to meet such standards. Sen argues ‘equal consideration for all may demand very unequal treatment on favour of the disadvantaged’. Equal treatment disregards individualism in cases such as religion and ethnicity, funnelling people into the same mould. This approach to equality fails to take into account indirect discrimination. Equality of resultsThis is concerned with achieving a fairer distribution on benefits. There is several approaches; creating equal results for individuals (remedying wrongs), equality of results for groups this approach believes that there should be even distribution of different groups in situations and the absence of such will be due to restrictions though if none exist it is due to personal preference, thirdly equality of outcome should be proportionate to the distribution in society as a whole advocating preferential treatment to promote equality of results. Though focusing on the results fails to consider the equality of social structures and accommodation of diversity. There may be equal results but they may not be treated equally in the process. There may still be a lack of recognition of the individuals differences which is a form of discrimination that advocates prejudice. Equality of opportunityRejects quota systems to force changes to the balance of minorities and promotes the removal of all barriers in society that prevent minorities from equal achievement. Procedural view is that the removal of all discrimination doesn’t guarantee equality of results. Substantive view means that there should be measures taken to ensure that all have a realistic equal chance of access. DignityCourts have viewed it as a fundamental of equality. EU Charter of Fundamental Rights requires dignity in the preamble and article 1. All are required to be apportioned value due to their status as human beings. This requires equal positive treatment. Though it creates the problem that people can be treated unequally but if it is not as a direct discrimination or treating them as less valuable then it won’t qualify as discrimination. It can be considered to infringe autonomy in some cases, instead it should be considered if the states measures are a proportionate means to achieve a legitimate ends. Substantive equalityCan be considered a multidimensional concept to achieve legitimate aims; to break cycle of disadvantage, promote dignity, it shouldn’t force conformity and should facilitate full participation in society. affirmative action to redress disadvantage although it is unequal treatment could pave he way for equality of result. Distribution of benefits, opportunities, ability to effectively exercise choices. Accommodation of differences prevents the forcing of an individual to comply with the norm. though there are limitation to the extent that can be accommodated usually what can reasonably or practically achieved. Aiming to redistribute costs for differences in a way that is fairer to all so that the disadvantaged don’t have to bare them their selves. Minorities shuld be able to participate socially as well as politically. Liberty-

Liberty is considered fundamental to society though it often conflicts with equality. Liberty of the powerful can lead to infringement of the rights of the weak. Dworkin argues that liberty is a fundamental of equality, s we should all equally be able to exercise our rights and choices. Restriction on spending in political campaigns promotes equality but limits liberty. Business or market orientated concernsBusiness concerns may need to get around equality. Neo-liberals will place the view of liberty over equality.

Scott Veitch, Emilios Christodoulidis and Lindsay Farmer, Jurisprudence: Themes and Concepts (2nd edn, Routledge 2012) Part I, Section 2.1: ‘Justice’. Part II, Section 2.2: ‘Equality, difference and domination’. Need to get from the library Nancy Fraser, ‘On Justice: Lessons from Plato, Rawls and Ishiguro’ (2012) 74 New Left Review 41. In the pantheon of virtues, justice occupies a privileged place. During antiquity, it was often considered the master virtue, the one that ordains all others. It is very precisely this fundamental position that it occupies in Plato: a just individual, he writes in La Republique.is an individual in whom the three parts of the soul (reason, heart and appetite) and the three virtues associated with them (wisdom, courage and temperance) maintain proper relationships. Justice works in a similar way in the city: for the latter to be just, each class must exercise its own virtue in performing the task that corresponds to its nature, and no class should interfere with the tasks of others. The wise and rational part governs, the brave and angry part constitutes the army, while the rest, that is to say those who lack courage or intelligence but are capable of moderation, are entrusted with the manual labor and agricultural. Justice lies in the harmonious relationship of these constituent elements, the proper sequencing of all the other virtues. 2Most modern philosophers have rejected in their entirety the Platonic point of view. However, even though almost no one today thinks that a just city is a rigidly stratified city into three permanent classes - a ruling class, a military class and a working class - whose lives would be radically different, a number of Philosophers have retained Plato's idea that justice is not only a virtue among others, but enjoys a special status, that of mistress or metavertu. 3The famous book by John Rawls, Theory of Justice takes this idea in a new form, marking a major revival of the theorization of justice. Rawls argues that "justice is the first virtue of social institutions as the truth is that of systems of thought" (Rawls, 1987: 29). This does not mean that justice is the highest of virtues, but rather that it is the fundamental virtue, the one that makes possible the development of all others. In principle, social arrangements can put forward any virtue - for example, a society can be effective, or orderly, or harmonious, or supportive or rewarding ( ennobling).). But the realization of these possibilities depends on an essential precondition, namely that these social arrangements are just. Thus, asserting that justice is the first virtue means that only by overcoming institutionalized injustice can we become capable of creating a foundation from which other virtues both individual and social - can flourish. 4If Rawls is right on this point - as I believe - then justice must indeed occupy a privileged place in the pantheon of virtues. Therefore, when it comes to evaluating social arrangements, the first question that comes to mind is: "Are they right? To start answering this question, we must start from another

insight of Rawls: "The primary object of justice is the basic structure of society" ( ibid.).. : 33). This assertion diverts our view of the wide variety of features of social life immediately accessible, to focus on the deeper grammar that underlies them, that is to say on the institutionalized rules that lay the fundamental terms of all social interactions. And it is only when these règles- there are precisely ordered as the aspects of social life that we experience more directly may also be just. 5There is no doubt that the view of Rawls on justice - like that of Plato - is problematic in many respects. The idea that justice can be judged in exclusively distributive terms is far too restrictive, as is the way Rawls builds its "original position". However, in the context of this article, I will accept the assumption that all thinking about justice must focus primarily on the basic structure of society. In order to explore the consequences of such an idea and to bring out all its persistent relevance to the present, I will study a recent novel by Kazuo Ishiguro, Auprès de moi toujours.My interpretation will finally reveal some of the limitations of Rawls' specific understanding of his own idea. I will show that we must reformulate the notion of basic structure to adapt it to a globalized world, in which injustice transgresses the borders of national states on a daily basis. 6But let's start with Auprès de moi . This novel tells the story of three friends, Kathy, Tommy and Ruth, who live in a strange social order. The reader discovers them children, while they live together in what appears to be an upscale English boarding school, Hailsham. As the story progresses, the reader discovers that these children are actually clones, designed to provide vital organs to nonclones, which I will now call the "originals". In the second part of the novel, the protagonists, who became teenagers, left Hailsham to live at the Cottages, an old farm, where they await their "training". They are preparing to step into their life of "giving", which will culminate at the end of the fourth surgical operation, following which, they have "finished", that is, they are dying. In the third part of the novel, the protagonists are young adults. Tommy and Ruth became "donors," while Kathy became a "caregiver," a clone watching over the well-being of other clones after ablation of one of their organs . After Tommy and Ruth have "finished", Kathy feels unable to continue to assume her role and the book ends with her decision to "give herself". 7The first time I read this book, I was overwhelmed by a powerful wave of sadness. It is even a understatement, because, reached the end of the book, I sobbed without being able to stop me. Some critics have seen in this book a science fiction work, a dystopia denouncing the perils of genetic engineering; others, a Bildungsroman, a novel of learning in which three young people with hopes disproportionate and insensitive to what is really important in life grow up and acquire wisdom: they end up measuring the value of human relations and accept the world as it East. Neither of these two interpretations is completely wrong to me, and each one captures a dimension of the work. But both miss what I consider the heart of this story. I read, above all, a meditation on justice, the striking vision of an unjust world, and the harm that is inflicted in depth to those who live there. 8What lessons can be learned from this book? First, and above all, he invites us to think justice through negation. Unlike Plato, Ishiguro does not attempt to represent a just social order, but instead offers the chilling portrait of a social order that the reader can not consider otherwise than profoundly unjust. This idea alone already states something very important: justice is never really experienced directly. On the contrary, what we are really experiencingit is injustice, and it is only through it that we forge our idea of justice. It is only by reflecting on the nature of these things that we consider it unjust that we begin to have the intuition of what might be a just alternative. And it is only by taking the measure of what it would be necessary to do to overcome the injustice that our

abstract concept of justice acquires a substance. So, the answer to Socrates' question, "What is justice? Can only be this: Justice is the process that leads to overcoming injustice . 9How then do we recognize injustice? If we look more closely at the social order represented in Auprès de moi alwaysthe answer is obvious: this social order is unfair because it exploits. The clones are created and kept alive for the only salvation of the originals. They are sources of organs, itinerant markets of spare parts, which will be torn from their bodies to be transplanted into that of the originals as soon as the need arises. They live, suffer and die so that the originals live longer and healthier. Treated as pure means for the end of the originals, they have no intrinsic value, as Kant would say. Their needs and interests are denied or, at best, subordinate to those of the originals. In other words, clones do not count as subjects of justice. Unworthy of consideration or respect, 10Here, Ishiguro makes a penetrating observation about the dynamics of identity, otherness and exclusion. Clones are excluded from any moral consideration because they are categorically categorized different from the originals. It is this supposedly fundamental and ontological difference that legitimizes their exploitation and the segregation they will experience throughout their lives. But this difference is itself fabricated by their confinement in special places, like Hailsham, in which they live, in a world closed to itself, without contact with the outside, and where they interact only between them or with the teachers - whom Ishiguro, in a nod to Plato, calls the "guardians". The impossibility of an encounter between the clones and their originals excludes the experience they could make of their similarity as well as the birth of a certain affinity between them, an experience that would contradict the hypothesis of a difference ontological. 11There is no doubt that this hypothesis is paradoxical from the outset: the clones are actually the exact genetic replicas of their originals. Their utility for these lies precisely in the fact that it is impossible to biologically distinguish a clone from its original. Of course, their subjectivity differs; as we will see, clones have their own experiences and have forged their own memories. Yet, genetically, the two groups maintain a relationship of absolute identity, a proximity so extreme that it could quickly become disturbing, if not unbearable. One can easily imagine that this identity is potentially a source of great anxiety. 12Still, as Ishiguro shows us, clones participate in the same pattern of social cooperation as the originals. They are subject to the same basic structure of society, in the Rawlsian sense. The two groups act in concert under one set of rules: the vital substance of one is at the disposal of the other, the clone is in the world for the benefit of the original, and any damage that he could undergo anything. Thus, the two groups contribute to a unique and shared bio-economy, a common biopolitical matrix of life and death. The survival of the originals rests on the clones, and yet the latter are denied the title of partners in this interaction. 13For us, readers, this situation is unfair. We recognize a gap between the narrow circle of those who count as subjects of justice (the originals) and the larger circle of those who are subjects of the basic structure of society (the originals and the clones). And we feel that this incongruity is morally wrong. For us, therefore, justice requires that all who obey a set of common rules be recognized as counting , that is, belonging to the same moral universe. No participant should be instrumentalized for the benefit of another, and all deserve equal interest. This reason alone is enough to make the social order imagined in Auprès de moi always deeply disturbing. 14However, this is another thing that makes the world portray by Ishiguro truly horrifying: the protagonists of the book do not perceive things the same way as us. Clones do not judge their situation unfair. They were created for this exploitative order, they were socialized within it, and

because it is the only social order they know, it appears to them as natural and natural. Yet one of them, Tommy, is often angry. As a child, while living in Hailsham, he is subject to violent mood swings for no apparent reason. Her friends, including the closest, Kathy, see in her rage only a personal problem. No one, not even Tommy, conceives the possibility that he may have a good reason to be angry. And all, one way or another, encourage him to calm down, which he does. When we find Tommy later, teenager at the Cottages, he learned to control this rage. All that remains is a kind of sadness, an inner turmoil that suggests psychic depths as inaccessible as incomprehensible. 15We are dealing here with another profound intuition of Ishiguro. It is clear that injustice is a question of objective victimization, that it is a structural relationship in which some individuals exploit others and deny them the right to be subjects of justice. But this evil is aggravated when the exploited does not have the means to interpret his situation as unfair. This can happen through deliberate manipulation - when, for example, the exploiter is fully aware of the injustice, but the cache to those he exploits. But it can also happen in a more subtle way - when, for example, in a seemingly democratic society, the public sphere is dominated by an individualizing and guilt-rousing speech for the victim, while structural perspect...