2. Concepts and Conceptions

At several points, Moreau states that unfair subordination, infringement of a right to deliberative freedoms, and denial of access to a basic good represent three ways in which one can fail to treat some people as the equals of others (e.g., Moreau, Reference Moreau2020, pp. 11, 121, 153). This way of describing the relation between equality and the three types of wrong Moreau identifies gives rise to the concern, mentioned in Section 1, about whether her theory really is a pluralist one. It suggests that there is a single master wrong present in cases of wrongful discrimination, though there may be more than one way of committing that wrong.

However, Moreau offers an alternative explanation of the relation between equality and the three types of wrong. This explanation appeals to the distinction between a concept and a conception (Moreau, Reference Moreau2020, pp. 158–159). Moreau presents her accounts of unfair subordination, infringement of a right to deliberative freedoms, and denial of access to a basic good as different conceptions, or interpretations, of the concept of wrongful discrimination.Footnote ⁵ The idea seems to be that it is a conceptual truth about wrongful discrimination that it involves a failure to treat some people as the equals of others, and Moreau's accounts of unfair subordination, infringement of a right to deliberative freedoms, and denial of access to a basic good are different conceptions of the concept of wrongful discrimination, so understood.

Her invocation of the concept/conception distinction may help to explain why Moreau characterises her theory as a pluralist one. She regards the claim that wrongful discrimination involves a failure to treat some people as the equals of others as common ground among different accounts of wrongful discrimination. This is reflected in her suggestion that theories of wrongful discrimination (not only her own, but most other theories as well) seek to answer what she calls “the question of inequality” — namely, “[w]hen we disadvantage some people relative to others on the basis of certain traits, when and why do we wrong them by failing to treat them as the equals of others?” (Moreau, Reference Moreau2020, p. 7).Footnote ⁶ This suggests that the claim that wrongful discrimination involves a failure to treat some people as the equals of others does not operate in her theory as a master principle. Rather, that claim is a conceptual truth that any account of wrongful discrimination must acknowledge.Footnote ⁷ All the moral work — or, at least, all the moral work that is not conceptual in nature — is done when identifying what it is to fail to treat some people as the equals of others. Here, Moreau holds that there are plural answers: to fail to treat some people as the equals of others is to unfairly subordinate them, to infringe their right to deliberative freedoms, and/or to deny them access to a basic good.Footnote ⁸

In other respects, however, Moreau's use of the concept/conception distinction is puzzling. It seems implausible to claim that it is a conceptual truth that wrongful discrimination involves a failure to treat some people as the equals of others. Many theorists reject equality-based accounts of wrongful discrimination. Those theorists may be mistaken, but it seems unlikely that they are all conceptually confused or fall outside the scope of ordinary discourse about wrongful discrimination.Footnote ⁹

True, one could reject an equality-based account of wrongful discrimination while allowing that it is a conceptual truth that wrongful discrimination involves a failure to treat some people as the equals of others. However, to do so, one would have to deny that the failure to treat some people as the equals of others is what makes acts of discrimination wrongful. This is an odd position to hold. If one thinks that acts of wrongful discrimination involve a failure to treat some people as the equals of others, one is likely to think that this fact features in the explanation of why those acts are wrongful. Conversely, if one explains the wrongfulness of those acts in terms of some other value (e.g., liberty), one is unlikely to accept that those acts necessarily involve a failure to treat some people as the equals of others.

Moreau offers other arguments for recognising a close connection between wrongful discrimination and equality. For example, she points out that “most anti-discrimination laws … explicitly use the language of equality” (Moreau, Reference Moreau2020, p. 4). While this is true, it is not clear what significance we should accord to it. Moreau claims that it is important that an account of wrongful discrimination fit, at least roughly, with basic features of anti-discrimination law (Moreau, Reference Moreau2020, pp. 27–28). However, in assessing that claim, it may be helpful to distinguish between doctrines of anti-discrimination law and any theoretical claims that anti-discrimination law makes. We might agree with Moreau that legal doctrine has helped to shape our understanding of wrongful discrimination without feeling the need to attach much weight to theoretical claims made in anti-discrimination statutes (e.g., that the aim of anti-discrimination law is to promote equality).

There is another puzzling feature of Moreau's use of the concept/conception distinction. Different conceptions of the same concept are usually understood to be mutually exclusive, in the sense that only one conception can be correct. This is true of John Rawls’ use of the distinction, which Moreau cites (Rawls, Reference Rawls1971, pp. 5–6, cited in Moreau, Reference Moreau2020, pp. 158–159). When introducing the distinction, Rawls does not expressly state that different conceptions of the same concept are mutually exclusive. However, he introduces the concept/conception distinction when discussing disagreement about principles of justice, and he proceeds to argue for his preferred conception of justice — justice as fairness — over competing conceptions, such as utilitarianism.

Something similar is true of Ronald Dworkin's use of the distinction in Law's Empire. At the level of the concept of law, Dworkin suggests, we can say that law is concerned to restrict the use of coercion by the state to ways “licensed or required by individual rights and responsibilities flowing from past political decisions about when collective force is justified” (Dworkin, Reference Dworkin1986, p. 93). He then considers different conceptions, or interpretations, of that concept — conventionalism, pragmatism and law as integrity — each of which accepts this general characterisation of law. However, he clearly treats those conceptions as mutually exclusive, arguing for law as integrity over conventionalism and pragmatism.

By contrast, Moreau's accounts of the three types of wrong she identifies are meant to be complementary, not mutually exclusive. She claims that a failure to treat some people as the equals of others may involve any or all of those types of wrong. So, it is not the case that one conception represents the correct understanding of the concept of wrongful discrimination and the other conceptions should be rejected.

(Moreau allows that there can be conflicts between the three types of wrong, and she offers illuminating discussions of cases in which conflicts arise (Moreau, Reference Moreau2020, pp. 144–147, 169–174). However, the important point for present purposes is that Moreau maintains that the three conceptions of wrongful discrimination that she discusses can all be accepted simultaneously, even if conflicts can arise between the different types of wrong. By contrast, for Rawls and Dworkin, one cannot accept more than one conception of the same concept.)

My point is not that Moreau's understanding of the concept/conception distinction is mistaken. My worry is a different one. Whether or not her understanding of the distinction is tenable, it differs from other people's understanding. Why is this a problem? I have suggested that Moreau's invocation of the concept/conception distinction is meant to clarify the relation between her claim that wrongful discrimination amounts to a failure to treat some people as the equals of others and her claim that wrongful discrimination involves unfair subordination, infringement of a right to deliberative freedoms, and/or denial of access to a basic good. It is unclear whether Moreau's use of the concept/conception distinction can do this clarificatory work if she has a heterodox understanding of that distinction.

There is another way Moreau could go. Instead of saying that the three types of wrong represent three different conceptions of the concept of wrongful discrimination, she could say that she offers a single conception, according to which acts of wrongful discrimination involve one or more of the three types of wrong she identifies. This would be a pluralist conception of wrongful discrimination, and one that is a rival to both monist conceptions and other pluralist conceptions. Moreau would then be using the concept/conception distinction in more or less the same way as Rawls and Dworkin. However, she would have to abandon her claim that unfair subordination, infringement of a right to deliberative freedoms, and denial of access to a basic good each amount to a different conception of the concept of wrongful discrimination.

3. Is Moreau's Pluralism a Unified One?

We might describe Moreau's version of pluralism as a “unified” pluralism,Footnote ¹⁰ since she claims that the three types of wrong that are present in acts of wrongful discrimination are related by their shared connection to the idea of failing to treat some people as the equals of others. In Section 2, I expressed some uncertainty about exactly what that connection is meant to be. In this section, I raise some doubts about whether there is a connection, of the sort Moreau suggests, between failing to treat some people as the equals of others and the three types of wrong she identifies.

Obviously, uncertainty about what sort of connection Moreau has in mind will impact any discussion of whether that connection exists. Nevertheless, I shall suggest that at least one of the three types of wrong Moreau discusses does not involve a failure to treat some people as the equals of others. If so, the idea of failing to treat some people as the equals of others cannot provide a unifying feature that ties together the different types of wrong that Moreau claims are present in cases of wrongful discrimination.

I shall not contest Moreau's claim that unfair subordination involves a failure to treat some people as the equals of others.Footnote ¹¹ Nor shall I discuss denials of access to a basic good. Moreau defines basic goods in a way that connects them to equality, since a basic good is a good access to which is necessary for someone to be, and to be seen to be, a full and equal participant in the life of that person's society. Rather, I will focus on the other type of wrong she discusses — namely, the infringement of a right to deliberative freedoms.

In earlier work, Moreau denied that deliberative freedoms should be viewed through the lens of equality. What matters, she suggested, is that we each have the deliberative freedoms to which we are entitled, not that we each have the same deliberative freedoms as other people (Moreau, Reference Moreau2010, pp. 151–152). This suggests that the wrongfulness of infringing someone's right to deliberative freedoms is unrelated to a failure to treat that person as the equal of others.

While Moreau's earlier account needed to be modified to fit within the pluralist framework of Faces of Inequality, it is not obvious why this aspect of her account had to change.Footnote ¹² The earlier thought seems right. The interest that gives rise to the right to deliberative freedoms is an interest in being able to live one's life in a way that is protected from certain types of interference.Footnote ¹³ This interest is important, and deserving of protection, irrespective of whether other people's ability to live their lives has been interfered with. Moreover, it is plausibly regarded as an interest in non-discrimination, because of the types of interference it is concerned with — namely, interferences in one's deliberations, and actions, that relate to one's age, disability, race, sex, etc.

Moreau does, of course, offer an argument in Faces of Inequality for regarding an infringement of someone's right to deliberative freedoms as a failure to treat that person as the equal of others. Infringing someone's right to deliberative freedoms, Moreau suggests, involves failing to treat that person as capable of being autonomous (Moreau, Reference Moreau2020, p. 75). Yet, societies that value non-discrimination also tend to place a high value on the capacity for autonomy. In such a society, infringing someone's right to deliberative freedoms amounts to a failure to respect that person's (socially prized) capacity for autonomy, and hence amounts to a failure to treat that person as an equal participant in that society (Moreau, Reference Moreau2020, p. 98).Footnote ¹⁴ Thus, infringing a right to deliberative freedoms “is only an instance of failing to treat someone as an equal because we live in societies that so value autonomy that failing to treat someone as a person capable of autonomy amounts to failing to treat them as an equal” (Moreau, Reference Moreau2020, p. 148).

This is a subtle and intriguing argument. However, it cannot be the case that infringing someone's right to deliberative freedoms is wrongful only in societies that highly prize the capacity for autonomy. If, as Moreau suggests, infringing someone's right to deliberative freedoms involves failing to treat that person as capable of being autonomous, then this is wrongful in any society. The ability to direct, to the extent possible, the course of one's own life is valuable, and failing to recognise someone's possession of that valuable ability is a failure to recognise that person's full moral worth. This is true irrespective of whether one's society highly prizes the capacity for autonomy (and irrespective of whether other people are treated as capable of being autonomous).Footnote ¹⁵

Moreover, infringing someone's right to deliberative freedoms does not only fail to treat that person as capable of being autonomous. Typically, it amounts to an actual infringement of that person's autonomy. Moreau characterises autonomy in terms of “deciding what is important for you, and living your life as far as is possible in accordance with those decisions” (Moreau, Reference Moreau2020, p. 90). An infringement of one's right to deliberative freedoms often prevents one from living one's life in accordance with the decisions one has made. In some cases, it impedes discriminatees in deciding what is important for them in the first place. This actual infringement of autonomy is wrongful, and its wrongfulness is independent of one's society's attitude towards the capacity for autonomy.

For these reasons, the wrongfulness of infringing someone's right to deliberative freedoms is not limited to societies that value highly the capacity for autonomy. Yet, according to Moreau, it is only in those societies that infringing someone's right to deliberative freedoms fails to treat that person as an equal. This suggests that the wrong of infringing a right to deliberative freedoms bears no necessary connection to equality. That wrong can be present in societies that do not value the capacity for autonomy, and hence in which infringing someone's right to deliberative freedoms does not fail to treat that person as an equal participant in society. Thus, it is, at best, only sometimes true that infringing someone's right to deliberative freedoms involves a failure to treat that person as an equal.

Moreau might respond that her account of wrongful discrimination is limited to societies that value non-discrimination. These are societies in which the capacity for autonomy is highly prized, and hence in which there is a connection between infringements of a right to deliberative freedoms and equality. However, this would be a peculiar limitation on a theory of wrongful discrimination. Discrimination can also be wrongful in societies that do not value non-discrimination. Indeed, this is part of the explanation of why those societies are morally problematic. (It would be harder to criticise a society for failing to value non-discrimination if discrimination could not be wrongful in that society.) This suggests that a theory of wrongful discrimination that is limited to societies that value non-discrimination lacks explanatory power, since it cannot account for an important set of instances of wrongful discrimination — namely, those that arise in societies that do not value non-discrimination.

Alternatively, Moreau may wish to say that, in a society that values non-discrimination, infringement of a right to deliberative freedoms involves two types of wrong. It amounts to a failure to treat the discriminatee as capable of autonomy, which is wrongful in itself, irrespective of whether that capacity is highly valued in society. But, in societies in which this capacity is highly valued, failing to treat the discriminatee as capable of autonomy gives rise to a further wrong, because it fails to treat the discriminatee as an equal participant in society. However, even if we grant this, only the second type of wrong bears a necessary connection to equality. Hence, Moreau would still fail to make good on her claim that each of the types of wrong inherent in acts of wrongful discrimination involves a failure to treat some people as the equals of others. (Note also that, on this view, infringing someone's right to deliberative freedoms is not itself a wrong. Rather, the relevant wrongs are failing to treat the discriminatee as capable of being autonomous and, in some societies, failing to treat the discriminatee as an equal participant in society.)

So far, I have focused on Moreau's explanation of how infringements of a right to deliberative freedoms are connected to equality. She contends that infringing someone's right to deliberative freedoms amounts to a failure to respect that person's capacity for autonomy. She further claims that, in societies that value that capacity, the infringement amounts to a failure to treat the person as an equal participant in society. I have argued that this is problematic because infringing a right to deliberative freedoms can also be wrongful in societies that do not value the capacity for autonomy. In these societies, infringing that right does not amount to a failure to treat the other person as an equal, in the way Moreau claims.

However, perhaps there is some other way in which Moreau could establish a connection between equality and the infringement of a right to deliberative freedoms. At times (e.g., Moreau, Reference Moreau2020, pp. 92, 113), she seems to suggest that there is an infringement of a right to deliberative freedoms only if there is a failure to respect the other person as someone equally capable of autonomy. This suggests a different way of establishing a connection between the right to deliberative freedoms and equality. It suggests that, when we consider whether there has been a breach of a right to deliberative freedoms, the question is not just whether the discriminator interfered with the discriminatee's deliberative freedoms, but whether (by doing so) the discriminator failed to respect the discriminatee as someone equally capable of autonomy.

It is tempting to respond that this is to win the argument through definitional fiat. However, Moreau suggests an argument in favour of this understanding of the right to deliberative freedoms. She contends that we do not always have a right that our deliberative freedoms not be interfered with. Whether we have that right depends, in part, on what effect it would have on other people's interests. Asking whether the potentially discriminatory policy fails to respect us as people equally capable of autonomy is meant to provide a test for when our interest in deliberative freedoms gives rise to a right, in the face of the other person's competing interests (Moreau, Reference Moreau2020, p. 92).

However, even if we accept the need for such a test, it is not clear why the test needs to refer to equality. We might simply ask whether the potentially discriminatory policy fails to respect us as people capable of autonomy, omitting the reference to equality. If the answer to that question is yes, does this not warrant treating our interest in possessing deliberative freedoms as prevailing over the competing interests? If so, there is no need to appeal to considerations of equality to solve the problem with which Moreau is concerned. (Perhaps the failure to respect our capacity for autonomy does not warrant treating our interest in possessing deliberative freedoms as prevailing over competing interests. But, if so, why think that things will be different if there is a failure to respect us as people equally capable of autonomy?)

4. Is a Unifying Feature Necessary?

In the previous section, I argued that equality cannot serve as a unifying feature for the three types of wrong Moreau discusses. At least one of those types of wrong — infringement of a right to deliberative freedoms — need not involve a failure to treat some people as the equals of others. True, Moreau can avoid this conclusion by limiting the scope of her theory to those societies that value non-discrimination. However, this would be to abandon the search for a general theory of wrongful discrimination.

One possible conclusion is that we need to look elsewhere to find a unifying feature for the different elements in a pluralist account of wrongful discrimination. However, this may be the wrong conclusion to draw from the discussion in Section 3. Perhaps we should instead abandon the attempt to find a unifying feature of the sort Moreau seeks. In the present section, I suggest that a pluralist theory of wrongful discrimination may not need to identify some feature that each of the plural elements share in common, beyond the fact that each represents a way in which discriminatory conduct may be wrongful.

Moreau suggests that a pluralist theory fails to portray wrongful discrimination as a unified phenomenon unless it identifies some feature that the plural elements share in common. In the absence of such a feature, the theory cannot explain “why all of these different wrongs [i.e., the different types of wrong identified by the theory] are all instances of wrongful discrimination, as opposed to diverse wrongs that have nothing to do with each other” (Moreau, Reference Moreau2020, p. 154). Alternatively, it risks being a mere list of harmful effects of discrimination — or a list of circumstances in which discrimination is wrongful — rather than amounting to a theory of wrongful discrimination.

Moreau's concern may be warranted when it comes to some types of pluralism. Consider a pluralist theory that claims that different discriminatory acts instantiate different wrongs, such that act A involves wrong X, act B involves wrong Y, and act C involves wrong Z. In the absence of some explanation of what ties X, Y, and Z together, this type of pluralism may lack explanatory power.Footnote ¹⁶ In particular, it may fail to explain why we treat acts A, B, and C as belonging to a single category — the category of wrongful discrimination — despite the fact that each act instantiates a different wrong.

However, it is less clear that Moreau's concern is warranted when it comes to other types of pluralism. Consider a pluralist theory that claims that paradigmatic acts of wrongful discrimination are such that each act instantiates the same set of wrongs. (This set, let us assume, consists of unfair subordination, infringement of a right to deliberative freedoms, and denial of access to a basic good.) There may be acts of wrongful discrimination that instantiate only some of the wrongs in that set, but these are marginal cases. (Describing these cases as “marginal” is not meant to imply that the discriminatee does not have a legitimate complaint. It is meant to indicate only that these are not paradigmatic instances of wrongful discrimination, but rather are classified as instances of wrongful discrimination because of their relation to paradigmatic instances.)

This type of pluralist theory has a ready explanation for why we treat central cases of wrongful discrimination as belonging to a single category. Pre-theoretically, they are each regarded as a paradigmatic instance of wrongful discrimination and, upon closer scrutiny, they are found to instantiate the same combination of wrongs. It is the presence of this combination of wrongs that provides the theoretical justification for grouping paradigmatic cases of wrongful discrimination together, without there needing to be anything that these different wrongs share in common (other than the fact that they are each present in paradigmatic cases of wrongful discrimination). Thus, on this view, what is distinctive about paradigmatic acts of wrongful discrimination is the combination of wrongs they instantiate, rather than there being some unifying feature that is shared by each of those wrongs.Footnote ¹⁷

Things are more complicated when we consider marginal cases, which do not instantiate all of the wrongs present in paradigmatic cases of wrongful discrimination. Deciding whether a case is related in the right way to paradigmatic cases, so as to amount to a marginal case of wrongful discrimination (as opposed to not amounting to wrongful discrimination at all), may prove challenging. However, to count as a marginal case, it will need to be related in the right way to paradigmatic cases (perhaps, by instantiating some of the wrongs present in those cases). So, a story can be told about why a marginal case counts as a case of wrongful discrimination, even though it does not share some unifying property with all other cases of wrongful discrimination (and may share nothing in common with some other marginal case, except that both are related in the right way to paradigmatic cases).

Moreau would reject this second type of pluralist theory.Footnote ¹⁸ She would want to insist that we group acts of wrongful discrimination together, not because paradigmatic cases involve the same combination of wrongs and marginal cases are related in the right way to paradigmatic cases, but rather because those acts fail to treat some people as the equals of others.Footnote ¹⁹ And it is certainly true that the second type of pluralist theory faces a challenge in providing an adequate account of what the right type of relation is between paradigmatic cases and marginal cases. However, the second type of pluralist theory does not need to identify some feature that the plural elements share in common. If I was right to argue in Section 3 that Moreau's attempt to identify such a feature fails, this advantage may be a significant one. At the very least, it may warrant further exploration of the alternative sketched above.

5. Conclusion

Faces of Inequality is a truly excellent book. It combines remarkable philosophical rigour and insight with a deep and sensitive understanding of the phenomena being theorised. In doing so, it significantly advances our understanding of wrongful discrimination, not least by offering a sophisticated pluralist account of the types of wrong present in cases of wrongful discrimination. I have argued that Moreau fails in her attempt to identify a feature that unites those types of wrong. However, she has much of value to say about those types of wrong. Moreover, the failure to identify a unifying feature may not be such a problem, if I am right in suggesting that no such feature is needed.