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9 - How to Keep on Loving Hate Crime Laws
- David Boonin, University of Colorado, Boulder
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- Should Race Matter?
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- 14 November 2011, pp 274-299
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Summary
In Chapter 8, I presented a simple, two-step argument in defense of hate crime laws: hate crimes are worse than ordinary crimes, worse crimes merit greater punishment, so hate crimes merit greater punishment. I noted that many people who oppose hate speech restrictions are led to oppose hate crime laws for the same sorts of reasons, acknowledged that this “thought police” objection to hate crime laws is considerably stronger than it may at first appear to be, but argued that in the end the objection fails to undermine the case for hate crime laws. Let’s now suppose that I was right about this. Even if I was right, hate crime laws might still be objectionable for some other reason. So in this chapter, I’ll consider and respond to other objections that people have raised against such laws. I’ll conclude that none of them are successful, either.
What’s Hate Got To Do With It?
Step one of my simple argument for hate crime laws maintains that hate crimes are worse than the ordinary crimes that they otherwise resemble. A number of people have raised doubts about this step of the argument. It isn’t necessarily that their intuitions about such crimes are different from mine. As far as I can tell, even many critics of hate crime laws have the same sort of fundamental response that I have: the arsonist who targets a house because a black family lives in it does something worse than the arsonist who strikes at random. But while they may share my intuitive reaction to such cases, these critics aren’t satisfied with letting a case for hate crime laws rest on such reactions. Instead, they demand a further argument of some sort, an argument that doesn’t simply establish that we tend to think that hate crimes are worse than ordinary crimes, but that explains why they are worse. More specifically, they demand an argument that identifies some property that distinguishes hate crimes from ordinary crimes and that can plausibly be used to show that hate crimes are worse in a manner that’s consistent with other things we commonly believe about the relative severity of crimes. For a variety of reasons, these critics are skeptical about the viability of such an argument. And, for a variety of reasons, I’m not. In fact, I think there are two distinct arguments that can plausibly be given to justify the conclusion that hate crimes are worse than the ordinary crimes that they otherwise resemble.
1 - Thinking in Black and White
- David Boonin, University of Colorado, Boulder
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- Should Race Matter?
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- 14 November 2011, pp 1-23
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Summary
Two facts about black and white people in the United States give rise to a number of important moral questions. This book attempts to answer five of them. The two facts are that for much of our nation’s history, black people as a group were treated worse than were white people as a group and that by many uncontroversial measures of human well-being, black Americans on average aren’t doing as well today as white Americans are doing. The five moral questions that arise from these facts, and that constitute the subject of this book, concern the moral status of slave reparations, affirmative action, hate speech restrictions, hate crime laws, and racial profiling.
One way to respond to these five practices would be to focus on something they all have in common. All five practices involve treating racial distinctions, in one way or another, as morally relevant. Someone might claim that racial distinctions should never be treated as morally relevant, and so oppose all five practices. Or someone might claim that racial distinctions may always be treated as morally relevant, and so think that there’s nothing wrong in principle with any of them.
Contents
- David Boonin, University of Colorado, Boulder
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- Should Race Matter?
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- 14 November 2011, pp vii-viii
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Preface
- David Boonin, University of Colorado, Boulder
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- Should Race Matter?
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- 14 November 2011, pp ix-x
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Preface
Several years ago, a student suggested that our department introduce a course focusing on applied ethics issues that involve race. This struck me as a good idea. I wondered how much work would be involved if I wanted to put such a course together myself, and so I started to make a list of all of the issues I had covered, in well over a decade of teaching a variety of applied ethics courses, that were strongly connected to race. It didn’t take long for me to realize that there weren’t any. That’s when I decided to write this book.
I decided to write this book because I wanted to be able to teach a course on applied ethics and race and because I knew that committing myself to a new book project on the subject would motivate me to do the research necessary to get such a course up and running. I began by looking into the popular and the academic literature on a number of issues that my teaching had previously ignored and ended up deciding to focus on five controversies that struck me as particularly important: the debates over slave reparations, affirmative action, hate speech restrictions, hate crime laws, and racial profiling. With the help of a teaching reduction that was funded by a course development grant from the Institute for Ethical and Civic Engagement at the University of Colorado, I then began to put together a series of documents that would serve both as tentative lecture notes and as preliminary chapter drafts. Although the grant was awarded to help me develop the course and not the book, I would like to express my gratitude here for the support that the grant indirectly provided as my various ideas for the book began to take shape through the process of creating the course.
Index
- David Boonin, University of Colorado, Boulder
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- Should Race Matter?
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- 14 November 2011, pp 407-411
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Sources
- David Boonin, University of Colorado, Boulder
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- Should Race Matter?
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- 14 November 2011, pp 387-406
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7 - Why I Still Hate Hate Speech Restrictions
- David Boonin, University of Colorado, Boulder
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- Should Race Matter?
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- 14 November 2011, pp 230-249
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Summary
One way to try to justify hate speech restrictions is to argue from categories of expression that most people already accept as legitimate subjects of constraint. I argued in Chapter 6 that such arguments are unsuccessful. The kinds of cases in which most people agree that it’s morally unobjectionable to restrict people’s freedom of expression can’t be used to show that hate speech restrictions are morally unobjectionable. The lesson I’m inclined to draw from this analysis is: so much the worse for hate speech restrictions. But a defender of hate speech restrictions might instead draw a very different lesson: so much the worse for the traditional limits on legitimately restricting freedom of expression. Rather than trying to justify hate speech restrictions by appealing to an already existing category of unprotected speech, that is, supporters of such restrictions might instead try to justify them by carving out a new category of speech that may unobjectionably be restricted and by showing that hate speech belongs in this new category. And, in fact, three of the most prominent and potentially powerful arguments for restricting hate speech in the contemporary literature have precisely this structure. I want to conclude my discussion of hate speech restrictions in this chapter, then, by considering these three arguments in turn and by explaining why they, too, strike me as unsuccessful.
Words that Wound
One argument of this sort appeals to the simple claim that hate speech hurts. In one sense, this isn’t really a new argument. As I noted in the previous chapter in the section on the “fighting words” doctrine, the opinion that Justice Murphy wrote for the United States Supreme Court in the 1942 Chaplinsky case included as a class of unprotected speech words that “by their very utterance inflict injury.” But as time went by, the Supreme Court came to ignore this element of the Chaplinsky ruling, and even though it was never officially overturned, it eventually became obsolete. A 1991 Supreme Court decision striking down a University of Wisconsin hate speech code as unconstitutional, for example, referred to this part of Chaplinsky as “defunct.” In this sense, endorsing hate speech restrictions now on the grounds that hate speech hurts is a case of something old being new all over again.
2 - Repairing the Slave Reparations Debate
- David Boonin, University of Colorado, Boulder
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- Should Race Matter?
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Suppose that a white American kidnapped a black American and forced him to work in his home. Virtually everyone would agree that this was wrong of him and that the white American would owe the black American some kind of compensation as a result. If the original perpetrators and victims of American slavery were alive today, then, I suspect that there would be little dispute about the claim that the former would owe a debt of some kind to the latter. But slavery in the United States ended well over a hundred years ago, and none of the original participants remain. The contemporary debate over slave reparations, then, is not about whether wrongdoers owe debts to those they unjustly exploit – surely they do – but rather about whether such debts can meaningfully be passed down through the generations. Do white Americans today owe something to their black contemporaries because some white Americans in the past enslaved some of their ancestors?
In the spring of 2001, the writer and political activist David Horowitz entered this debate in memorable fashion by attempting to take out an ad in seventy-one college newspapers across the country. The message of the ad was reflected in its clear and simple title: “Ten Reasons Why Reparations for Slavery Is a Bad Idea – and Racist Too.” Although polls at the time indicated that roughly three out of four Americans agreed with Horowitz’s assessment, the ad set off a series of events that generated national attention. Forty-three of the newspapers that Horowitz solicited refused to run the ad, and many of those that did run it were attacked for doing so. Copies of some papers were stolen and destroyed by protesters. Horowitz was called a racist. And, somewhat suddenly, the issue of slave reparations was moved closer to the center of the American debate about race.
Notes
- David Boonin, University of Colorado, Boulder
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- Should Race Matter?
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- 14 November 2011, pp 351-386
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8 - How to Stop Worrying and Learn to Love Hate Crime Laws
- David Boonin, University of Colorado, Boulder
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- Should Race Matter?
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- 14 November 2011, pp 250-273
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Two arsonists are walking around town looking for a suitable house to burn down. One ends up selecting a particular house because it is a bit more convenient to get to than those nearby. The other ends up selecting a particular house because the family who lives in it is black. Both are caught, convicted, and punished for their acts. The men live in a state that has a hate crime law. Such laws treat what the second arsonist does as worse than what the first arsonist does. As a result, the second arsonist receives a greater punishment than the first.
Many people are troubled by hate crime laws. And many of those who are troubled by them are troubled for largely the same reasons that they’re troubled by hate speech restrictions. As Dinseh D’Souza has put it in lumping the two cases together, for example, “free speech is subordinated to the goals of sensitivity and diversity, as in so-called hate speech and hate crimes laws.” These are people who will largely agree with what I said about hate speech restrictions in Chapters 6 and 7, but who will think that I haven’t yet gone far enough. The reasons for rejecting hate speech restrictions, they’ll say, are also reasons for rejecting hate crime laws.
Should Race Matter?
- Unusual Answers to the Usual Questions
- David Boonin
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- 14 November 2011
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In this book, philosopher David Boonin attempts to answer the moral questions raised by five important and widely contested racial practices: slave reparations, affirmative action, hate speech restrictions, hate crime laws and racial profiling. Arguing from premises that virtually everyone on both sides of the debates over these issues already accepts, Boonin arrives at an unusual and unorthodox set of conclusions, one that is neither liberal nor conservative, color conscious nor color blind. Defended with the rigor that has characterized his previous work but written in a more widely accessible style, this provocative and important new book is sure to spark controversy and should be of interest to philosophers, legal theorists and anyone interested in trying to resolve the debate over these important and divisive issues.
Frontmatter
- David Boonin, University of Colorado, Boulder
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- Should Race Matter?
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- 14 November 2011, pp i-v
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6 - Why I Used to Hate Hate Speech Restrictions
- David Boonin, University of Colorado, Boulder
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- Should Race Matter?
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- 14 November 2011, pp 203-229
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Summary
Two students are walking across different parts of the same campus. Each passes a fellow student that he strongly dislikes. The first insults the student he encounters by calling him a fat and ugly asshole. The second insults the student he encounters by calling him a fat and ugly nigger. Because the college in question has a policy prohibiting hate speech, the second student is punished for his use of offensive language while the first student isn’t. Meanwhile, two arsonists are walking around different parts of the same state. Each is planning to burn down someone’s house and each is trying to find a suitable house to target. The first ends up selecting a particular house because it’s a bit more convenient to get to than others in the area. The second ends up selecting a particular house because the family who lives in it is black. Both are caught and are punished for their acts. Because the state in question has a hate crime law, the second arsonist receives a greater punishment than the first.
These two pairs of cases have a number of things in common. In both pairs of cases, each person does something objectionable. In both pairs of cases, the kind of objectionable thing that the first person does is the same as the kind of objectionable thing that the second person does. In both pairs of cases, what the second person does involves targeting someone by race while what the first person does doesn’t involve targeting someone by race. And in both pairs of cases, there’s a policy in place that results in the second person receiving a particular kind of sanction that the first person doesn’t receive as a result of this fact.
3 - Advancing the Slave Reparations Debate
- David Boonin, University of Colorado, Boulder
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- Should Race Matter?
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- 14 November 2011, pp 77-134
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In Chapter 2, I tried to help repair the reparations debate. I argued that too many defenders of the reparations position devote too much of their energies to defending the unjust enrichment argument, and that while that argument isn’t as bad as some people think it is, it isn’t good enough to justify the reparations position either. And I argued that a better alternative was available in what I called the compensation argument, an argument that’s strong enough to overcome all ten of David Horowitz’s famous objections to slave reparations. In this chapter, I want to try to advance the debate further by turning to the question of whether there are any other objections to the compensation argument that might succeed where Horowitz’s objections fail. Since the compensation argument consists of five steps, it seems plausible to suppose that if there is such an objection, it will be one that gives us a reason to reject one of these five steps. As a result, I’ll begin my consideration of additional objections to the reparations position in this chapter by going back through these five steps in order before turning to some further objections that can’t be readily understood as objections to any one step of the argument in particular.
Governments Aren’t People
Step one of the compensation argument endorses what I called the compensation principle. When I first introduced this principle, I presented it in general terms by saying that if someone wrongfully harms another person, then he incurs a moral obligation to compensate his victim for the harms that he has wrongfully caused. Horowitz didn’t raise any doubts about this step in the argument and, so far as I am aware, neither have any other critics of the reparations position. People on both sides of the reparations debate generally accept the view that when you wrongfully harm someone, you owe them some kind of compensation as a result. And so, I concluded, step one of the compensation argument is perfectly secure.
10 - Is Racial Profiling Irrational?
- David Boonin, University of Colorado, Boulder
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- Should Race Matter?
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- 14 November 2011, pp 300-326
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Summary
A young man is driving on the New Jersey Turnpike. Like most people on the road, he’s going a bit over the speed limit. Unlike most people on the road, he’s pulled over by a cop. The cop is hoping that if he pulls over enough people, he’ll catch some drug traffickers, either because their drugs will be clearly visible when they roll down their window or because they’ll consent to a search of their vehicle when they’re pulled over and incriminating evidence will be discovered as a result. The cop explains his decision to pull over this particular driver by pointing out that the young man was exceeding the posted speed limit and that he had changed lanes at least twice without first engaging his turn signal for the required amount of time. And this is, indeed, part of the story. If the cop hadn’t seen the driver commit these moving violations, he wouldn’t have pulled him over. But, as every police officer knows, it’s virtually impossible to drive for any sustained period of time without committing at least some sort of moving violation. And the fact is that the cop saw a number of other drivers exceeding the posted speed limit and changing lanes without using their turn signals at all. He didn’t pull them over, but he did pull this particular driver over. And the reason he pulled this one over rather than the others is that this particular young man is black and the cop believed that he was therefore more likely to be carrying illegal drugs. In deciding which speeding drivers to pull over, in other words, the cop targeted the drivers by race. Has the cop done something wrong?
Americans as a whole seem to agree about very little when it comes to the debate about racial matters in this country. But if there’s one opinion that they do by and large seem to share, it’s that the answer to this question is yes. President Clinton referred to such racial profiling as “morally indefensible” and “wrong,” and President Bush after him said “It’s wrong, and we will end it in America.” Al Gore is on the record as opposing racial profiling, and so is Dick Cheney. Indeed, the conviction that such racial profiling is wrong may be one of the few things that unite liberals like Ira Glasser of the ACLU, conservatives like Dinesh D’Souza of the Hoover Institution, and libertarians like William Anderson and Gene Callahan of the Ludwig von Mises Institute. A 1999 Gallup poll, moreover, found that fully 81 percent of Americans disapproved of racial profiling, and it’s hard to find an opinion about anything that 81 percent of Americans can agree about, let alone an opinion about anything relating to race. Since the events of September 11, 2001, of course, a number of people have become more open to the use of racial profiling in the context of preventing terrorist attacks. But, at least in the more mundane kinds of cases that I’ll be concerned with in this chapter and the chapter that follows, where in the context of ordinary crimes like shoplifting or drug trafficking a police officer subjects a young man to a greater degree of scrutiny and investigation because he’s black, there remains a powerful and striking consensus in this country: this sort of racial profiling is simply unacceptable.
5 - Two Cheers for Affirmative Action
- David Boonin, University of Colorado, Boulder
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- 14 November 2011, pp 175-202
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I argued in Chapter 4 that race-based affirmative action isn’t morally obligatory. Many people will agree with me about this. But most of those who do agree will insist that I haven’t yet gone far enough. Not only is affirmative action not obligatory, they’ll say, it’s not even permissible. It’s not just that it’s not immoral not to practice affirmative action on their view. It’s that it’s positively immoral to practice it. But I think these people are mistaken, too. Having explained in the previous chapter why I’m not convinced by arguments for the claim that affirmative action is obligatory, then, I’ll try in this chapter to explain why I’m not convinced by arguments for the claim that it’s unjust or impermissible either.
Before turning to the many arguments that have been offered against affirmative action, though, two preliminary points should be made. These points parallel the two preliminary points I made before discussing the arguments in favor of affirmative action in the previous chapter. First, in maintaining that affirmative action is not morally impermissible, I don’t mean to be insisting that no institution has or could have a moral obligation to refrain from practicing affirmative action. If a school or business makes an explicit promise not to practice affirmative action in its admissions or hiring decisions, for example, then that might well make it impermissible for the school or business in question to practice affirmative action. If the management of a publicly traded corporation does not reasonably believe that practicing affirmative action will be in the corporation’s financial interests, and if it fails to notify its shareholders that it plans to practice affirmative action despite the fact that doing so will not be in the corporation’s financial interests, then its fiduciary obligations to the corporation’s shareholders might well make it impermissible for that particular corporation to practice affirmative action. Such considerations, though, wouldn’t do anything to show that affirmative action itself is morally impermissible unless there was a reason to think that it was morally obligatory to promise not to practice it, in the first sort of case, or to fail to notify the shareholders that it would be practiced, in the second. At most, they would simply establish that some policies that are not otherwise impermissible can become impermissible when promises of a certain sort are made or information of a certain sort is concealed. Since my concern in this chapter is with the question of whether there’s something about affirmative action itself that makes it wrong to engage in it, I will simply set these sorts of considerations to the side. As long as it’s morally permissible not to make the sorts of promises or commitments that might in turn require an organization not to practice affirmative action in order to live up to the expectations it has reasonably generated in other people, these sorts of considerations will be irrelevant to trying to determine the moral status of affirmative action itself.
4 - One Cheer for Affirmative Action
- David Boonin, University of Colorado, Boulder
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- Should Race Matter?
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- 14 November 2011, pp 135-174
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Summary
A white candidate and a black candidate submit an application for a position. Both want to be admitted to the same university, hired at the same automobile plant, or promoted from their current jobs within the same police department. Both candidates are suitably qualified for the position. If either of them were the only one to submit an application, the organization in question would offer the position to that candidate without hesitation. The white applicant, though, is at least a little bit better qualified than the black applicant. His grades and test scores are a little bit higher, he has slightly stronger letters of recommendation, or he has a little bit more experience on the job. If the organization didn’t know the race of either of the applicants, it would select the white applicant over the black applicant for this reason. But the organization does know the race of both applicants. And it has a policy that leads it to select the black applicant over the white applicant, despite the fact that the white applicant is at least a little bit better qualified, precisely because the white applicant is white and the black applicant is black.
Supporters of policies that give an advantage to black applicants over white applicants in this way tend to refer to such policies as a form of “affirmative action.” It’s hard to oppose taking action that’s “affirmative,” after all, without sounding, well, negative. Opponents of such policies, on the other hand, tend to refer to them as “racial preferences”. If the advantage that’s given to black candidates over white candidates is merely a matter of “preference” after all, rather than of sound moral reasoning, then such policies seem to be simply a matter of imposing one’s whim on others, like insisting that since you prefer chocolate ice cream to vanilla, everyone else should, too. I’m not particularly fond of either label. Something like “race-based prioritization” strikes me as a more accurate and less question-begging term to use. I’ll mostly stick with the term “affirmative action” in this chapter and the chapter that follows, though, since that’s the closest thing we have to an official title.
11 - Is Racial Profiling Immoral?
- David Boonin, University of Colorado, Boulder
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- 14 November 2011, pp 327-350
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I argued in Chapter 10 that racial profiling is sometimes rational. Let’s now assume that this is correct. Rational racial profiling takes into account some uncomfortable and unfortunate but nonetheless apparently accurate claims about the differences between black and white crime rates in America, at least with respect to certain sorts of offenses, and uses those facts to make police work more efficient and more effective. By focusing more attention on those groups that are, on average, disproportionately responsible for committing certain kinds of crimes, rational racial profiling helps to keep the overall crime rate down. It may often be difficult, as a practical matter, to figure out which cases of racial profiling are rational and which are irrational, but at least in those cases where it turns out to be rational, it’s more plausible to suppose that racial profiling may be worthy of our support.
But even if some racial profiling does prove to be rational, this doesn’t mean that it would be okay to engage in it. A practice might be practically effective, after all, but still be morally objectionable. Performing painful, involuntary medical experiments on homeless people, for example, might turn out to be a fast and efficient means of testing some new drugs or surgical procedures. But even if it did turn out to be effective from a practical point of view, and so rational in this instrumental sense, virtually everyone would nonetheless reject it as morally unacceptable. Similarly, even if it turns out that some forms of racial profiling really are rational in this sense, there might still be a good reason to reject them as immoral. Assuming for the purposes of this chapter that some racial profiling is rational, then, I want now to consider whether rational racial profiling is nonetheless immoral.
2 - The Consequentialist Solution
- David Boonin, University of Colorado, Boulder
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- The Problem of Punishment
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- 14 April 2008, pp 37-84
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OVERVIEW
The consequentialist solution to the problem of punishment maintains that punishing people for breaking the law is morally permissible because of its presumed good consequences. This solution can be defended in two importantly distinct ways. First, the consequentialist solution in particular can be defended in the context of a broader defense of consequentialism as a moral theory in general. On this account, any behavior is morally justified if and only if its expected consequences are better than those of any available alternative behavior and punishment is simply one particular instance of this general phenomenon. A second defense of the consequentialist solution seeks to defend punishment in particular without committing itself to this larger principle about morality in general. On this second approach, the defender of punishment maintains that some things are morally justified by their positive consequences, and that punishment is one of these things, without insisting that everything that is morally justified is justified by its positive consequences or that everything that has positive consequences is thereby morally justified. Thus, while a successful refutation of consequentialism in general would count as a successful refutation of the broad defense of the consequentialist solution, it would not count as a successful refutation of the narrow defense of punishment in particular. And while an objection to the consequentialist justification of punishment in particular might show that the consequentialist solution has implications that are unacceptable to proponents of the narrow defense, it might turn out that proponents of the broader defense would be willing to live with them.
Bibliography
- David Boonin, University of Colorado, Boulder
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- 14 April 2008, pp 277-292
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