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Compensatory Discrimination

  • J. P. Day (a1)

Like theories of punishment, theories of reverse (positive) discrimination can usefully be divided into forward-looking (teleological) ones and backward-looking (compensatory/retributive) ones. One example of the former type of theory is Dworkin's, who defends the policy on the ground that it will (perhaps) produce ‘a more equal society’. Another is Sher's, who defends it on the ground that it increases equality of opportunity. This essay is an examination of the latter type of theory. Compensatory discrimination is related, then, to discrimination thus: discrimination is the genus, of which reverse discrimination is a species, of which compensatory discrimination is a sub-species. It will be convenient to proceed by examining successively the ideas of discrimination, of compensation, and of compensatory discrimination.

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1 Goldman A. H., ‘Affirmative Action’, Equality and Preferential Treatment, Cohen Marshall and Scanlon Thomas (eds) (Princeton: University Press, 1977), 192.

2 Dworkin Ronald, Taking Rights Seriously (London: Duckworth, 1977), 223239.

3 George Sher, ‘Justifying Reverse Discrimination in Employment’, Cohen and Scanlon, op. cit., 49–60.

4 I advance a strong teleological objection to compensatory discrimination in the conclusion of subsection 4.2. Nathan Glazer presents another powerful teleological objection to reverse discrimination in his ‘Individual Rights against Group Rights’, in Human Rights, Kamenka Eugene and Tay A. E. (eds) (London: Edward Arnold, 1978), 87103.

5 Day J. P., ‘Fairness and Fortune’, Ratio 19, No. 1 (06 1977), note 13; Feinberg Joel, Social Philosophy (Englewood Cliffs: Prentice-Hall, 1973), 100; Vecchio Giorgio del, Justice (Edinburgh: University Press, 1952), 51, 169.

6 J. J. Thomson, ‘Preferential Hiring’, Cohen and Scanlon, op. cit., 39.

7 Allport G. W., The Nature of Prejudice (New York: Doubleday, 1968), 316. See also Field G. C., Prejudice and Impartiality (London: Methuen, 1932).

8 Op. cit., 212. Here is one more confirmation of the truth of Mill's assertion that ‘of all effects, none depend on so great a complication of causes as social phenomena’. He continues ‘social phenomena are those in which plurality of causes prevails in the utmost extent’. Allport's study does indeed show that prejudice is caused, e.g., sometimes by the authoritarian personality of the subject, sometimes by a tradition of anti-clericalism in the subject's society, and sometimes by both. But it is the third possibility which he finds to be much the most important one (J. S. Mill Logic, 8th edn, VI, vii, 1, 4; cf. III, x, 5–8).

9 J. G. McKenzie (London: Allen and Unwin, 1962), 20–24.

10 Freud Sigmund, An Outline of Psycho-Analysis (London: Hogarth Press), 45.

11 Lewis H. D., ‘The Problem of Guilt’, Aristotelian Society Supplement, 21 (1947), 175196; McKenzie, op. cit., 25–28. On the correlativity of non-voluntary compensation and retributive punishment see Day J. P., ‘Retributive Punishment’, Mind 87, No. 348 (10 1978), 498516; also subsection 3.1 below.

12 McKenzie, op. cit., 29–57.

13 Edmund Burke, Reflections on the Revolution in France.

14 The anthropologist Arthur Keith presents a qualified, Darwinian defence of ethnic prejudice in the modern sense of ‘prejudice’ in The Place of Prejudice in Modern Civilization (London: Williams and Norgate, 1931). But his argument is unconvincing.

15 Cf. O. M. Fiss, ‘Groups and the Equal Protection Clause’, Cohen and Scanlon, op. cit., 85–97; ‘School Desegregation’, Cohen and Scanlon, op. cit., 161–162.

16 Feinberg, op. cit., 100; cf. subsection 2.1, above, on impartiality and indiscriminateness. Aristotle, Nicomachean Ethics, V; Politics, III.

17 Day, ‘Retributive Punishment’ (note 11, above).

18 MacCormick D. N., ‘The Obligation of Reparation’, Aristotelian Society Proceedings, 78 (1978), 175193. See also Wasik Martin, ‘The Place of Compensation in the Penal System’, The Criminal Law Review (1978), 599611.

19 MacCormick, op. cit., 181.

20 Thomas Nagel, ‘Equal Treatment and Compensatory Discrimination’, Cohen and Scanlon, op. cit., xi.

21 McKenzie, op. cit., 97ff.

22 Locke John, An Essay Concerning Human Understanding, II, xxvii, 48.

23 Day, ‘Retributive Punishment’ (note 11, above), 503.

24 Bradley F. H., Ethical Studies (Oxford: Clarendon Press, 1927).

25 This argument is additional to and more basic than the two advanced in Day, ‘Retributive Punishment’, section 3. On the primacy of the state's duty to maintain civil rights, see also Dworkin, op. cit., especially ch. 7.

26 Melanie Klein, ‘Love, Guilt and Reparation’, in Klein Melanie and Riviere Joan, Love, Hate and Reparation (London: Hogarth Press, 1937), 65ff.

27 Day, ‘Retributive Punishment’ (note 11, above), section 4.

28 Another unsatisfactory feature of the English law of defamation is that here it is left to the jury and not to the judge to decide the amount of the damages. Three recent cases, those of Savalas, alias Kojak, Ryder and the Redgraves, illustrate how this practice can lead to plaintiffs being paid far too much or far too little. See the leading article, ‘Damages are not for Juries to Assess’, The Times (London: 11 November 1978).

29 For some interesting reflections on the relationship between justice and rights on the one hand and assistance and charity on the other, see Ch. Perelman, The Idea of Justice and the Problem of Argument (London: Routledge and Kegan Paul, 1963), 23, 40f.; Vecchio. op. cit., 148ff.; S. I. Benn, ‘Human Rights—for Whom and for What?’, Human Rights, Kamenka and Tay, op. cit., 68–71; Foot Philippa, ‘Euthanasia’, Philosophy and Public Affairs 6, No. 2 (1977), 85112. It should be added that there is a moral as well as a prudential obligation to insure oneself and one's dependants against misfortune, so as not ‘to come upon the parish’.

30 Day, ‘Fairness and Fortune’ (note 5, above), note 13.

31 It is, after all, quite a new idea. ‘The decade around 1660 is the birthtime of probability’ (Hacking Ian, The Emergence of Probability (Cambridge: University Press, 1975), 11).

32 Hayek F. A., The Mirage of Social Justice (London: Routledge and Kegan Paul, 1976).

33 Sher, op. cit., 51f.; Robert Simon, ‘Preferential Hiring: A Reply to Judith Jarvis Thomson’, Cohen and Scanlon, op. cit., 40.

34 Op. cit., 32f.; cf. 67ff.

35 Fiss, ‘School Desegregation’, 159.

36 ‘The Criminal Injuries Compensation Board’ is in fact a misnomer. For its members are obviously not identical with the deprivers, who are the murderers, muggers and rapists with whose misdeeds they deal. Consequently, the payments out of public funds which the Board makes to the victims are properly called, not ‘compensation’, but rather ‘relief’ or ‘aid’. Notice, in this connection, that although all relief of misfortune is charity or assistance (subsection 4.1), the converse is not true. The Board's payments are relief and not compensation; but the deprivations sustained by the victims are of course wrongs and not misfortunes. Indeed, any righting of a wrong except that effected by the wrong-doer is charity or assistance. It is possible to be misled on this point by the fact that it is correct to say of, e.g., the traveller who was aided by the Good Samaritan ‘he had the misfortune to fall among muggers’ (Luke, x, 30–37).

37 Op. cit., 17.

38 The qualifying adjectives are needed in order to distinguish this type of aggression from what Fromm calls ‘malignant aggression’, which is not reactive or defensive. Thus, according to Freud's later writings, ‘the love instinct’ and ‘the death instinct’ are Man's two basic organic drives (op. cit., ch. 2). But other psychologists question whether there really is any such ‘death instinct’. Allport, e.g., maintains that ‘love is a precondition of hate’, so that all aggression is reactive (op. cit., 342). However, this interesting controversy does not concern us, since our business is exclusively with reactive aggression, the reality of which has never been in doubt. See Allport, op. cit., 335–344; Joseph Butler ‘Upon Resentment’, in Fifteen Sermons; Fromm Erich, The Anatomy of Human Destructiveness (London: Cape, 1974); Westermarck Edvard, ‘The Essence of Revenge’, Mind 7 (1898), 289310; Strawson P. F., ‘Freedom and Resentment’, British Academy Proceedings 48 (1962), 187211.

39 Allport, op. cit., 338.

40 Benedict de Spinoza, Ethics, IV. Plainly, Bishop Butler is sharply at variance with Christian orthodoxy respecting the duty to ‘love your enemies’ (Matthew, v, 43–45). This is because he considers, rightly, that ‘in dealing with this problem we must take Man as he is, not inquire why he is not different’.

41 Eckhoff Torstein, Justice (Rotterdam: University Press, 1974).

42 If my introduction of such considerations is objected to as irrelevant psychologism, I reply that there are many precedents. To cite a single, but classic one: consider how Mill finds the sanction of the Principle of Utility in the social feelings, and that of retributive justice in both them and the resentment which is discussed in subsection 4.2 of this essay (J. S. Mill, Utilitarianism, chs 3, 5). A version of this essay was discussed in seminars at the University of Keele on 13 March 1979 and at the University of Manchester on 16 March 1979. I am obliged to participants in these seminars for their comments and suggestions. I am grateful to Professor Herbert Hart for suggesting amendments on some points of law and jurisprudence.

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