Rights and Equality

There are two conceptions of ‘inclusion’ in play in this debate. 1. The traditional conception in sport: How does sport provide inclusion/exclusion? Through eligibility criteria. 2. The social justice conception: trans people must be included in all social endeavours/institutions, one of these being sport. In the latter ‘inclusion’ facilitates affirmation and validation of their gender identity. The question is: should sport take on this ‘social justice’ task?

(OPEN ACCESS) In this paper, I criticize two views on how political equality is related to equally distributed political power, and I offer a novel, pluralist account of political equality to address their shortcomings—in particular, concerning their implications for affirmative action in the political domain, political representation, and the situation of permanent minorities. The Equal Power View holds that political equality requires equally distributed political power. It considers affirmative action—e.g., racial or gender electoral quotas—, representation, and more-than-equal power to permanent (...) minorities pro tanto objectionable. The Equal Status View, in contrast, holds that political equality concerns equal relations and status, and it is only contingently related to equally distributed power. I argue that while the Equal Status View is right that equal power can be insufficient for—or even objectionable from the viewpoint of—political equality, it is wrong to conclude that equal power has no independent significance in an account of political equality. My pluralist account shows that political equality entails not only status-based requirements but also independent egalitarian requirements to distribute political power equally. This account provides a finer-grained understanding of affirmative action in the political domain. It justifies affirmative action but holds that it should only be used to realize equal political status until thorough-going social reform allows us to maintain both equal political status and equally distributed political power at the same time. Similarly, representation should be amended with power-balancing institutions, and permanent minorities should enjoy equal status with minimal compromise to power equality. (shrink)

According to the standard story, there are two defensible theories of property rights: historical and institutional theories. The former says that you own something when you’ve received it via an unbroken chain of just transfers from its original appropriation. The latter says that you own something when you’ve been assigned it by just institutions. This standard story says that the historical theory throws up a barrier to redistributive economic policies while the institutional theory does not. In this paper, I argue (...) that the standard story is wrong in almost every detail. For a start, neither of these theories are defensible. Both generate absurd consequences when combined with our non-ideal circumstances. In actuality, no unbroken chains of just transfers stretch from original appropriation to what we now possess. And our actual institutions are very seriously unjust. So both theories imply that we actually own almost nothing. I revise these theories so that they avoid this absurd consequence. Yet, when we do this, their distributive implications flip. The institutional theory throws up serious barriers to redistribution while the historical theory tears them down. In our non-ideal circumstances, the distributive implications of these theories are the opposite of what is standardly presumed. (shrink)

Being sure of each other is the blossoming of Kimberley Brownlee’s earlier work on the intrinsic value and qualities of human connection (2013, 2016c, 2016b), opening with a scene from A. A. Milne’s House at Pooh Corner: lost in the woods together, Piglet takes Pooh’s paw ‘just to be sure’ of his friend. The importance of social connection is often overlooked because it is central to our lives, like breathable air. Brownlee’s work highlights the need for social connection, as deserving (...) of more philosophical attention and practical protection through rights. But her key insight is that receiving relational goods isn’t all that matters: being able and permitted to provide relational goods to others, as Piglet and Pooh receive and offer each other reassurance, is just as essential for our wellbeing. Brownlee argues these interests are strong enough to ground rights (2016c: 28). (shrink)

In punishment, proportionality is the systematic mathematical relationship between the significance of the wrongdoing and the amount of punishment that may be imposed on the wrongdoer. In this chapter, Kershnar argues that there is no adequate equation for proportionality. The lack of an adequate equation rests on intuitions and the absence of a shared metric. If there is no equation for proportionality, then there is no proportionality. This is because if there is no equation for proportionality, then there is no (...) general justification for proportionality. Purported justifications of punishment that lack proportionality—specifically, consequentialism and consent theory—are implausible. The lack of proportionality, then, is a threat to the notion that some punishment is justified and, more generally, non-consequentialism. (shrink)

In this paper, I offer a solution to the Capacity/Equality Puzzle. The puzzle holds that an account of the franchise may adequately capture at most two of the following: (1) a political equality-based account of the franchise, (2) a capacity-based account of disenfranchising children, and (3) universal adult enfranchisement. To resolve the puzzle, I provide a complex liberal egalitarian justification of a moral requirement to disenfranchise children. I show that disenfranchising children is permitted by both the proper political liberal and (...) the proper political egalitarian understandings of the relationship between cognitive capacity and the franchise. Further, I argue, disenfranchising children is required by a minimalistic, procedural principle of collective competence in political decision-making. At the same time, I show that political equality requires the enfranchisement of all adults, regardless of cognitive capacities, and that the collective competence principle does not ground adult disenfranchisement. This justifies the progressive legal trend that holds the capacity-based disenfranchisement of adults to be incompatible with liberal democratic principles. (shrink)

In Rescuing Justice and Equality G.A. Cohen argues that justice requires an uncompromising commitment to equality. Cohen also argues, however, that justice must be sensitive to other values, including a robust commitment to individual freedom and to the welfare of the community. We ask whether a commitment to these other values means that, despite Cohen’s commitment to equality, his view requires that we make room for inequality in the name of justice? We argue that even on Cohen’s version of egalitarianism (...) equality, freedom, and welfare are not always compatible. Justice will require trade-offs between these values. Sometimes, equality will need to be sacrificed. This is a surprising result and to show it, we use two informal impossibility proofs drawn from examples in Rescuing Justice and Equality. (shrink)

This article is part of a symposium on property-owning democracy. In A Theory of Justice John Rawls argued that people in a just society would have rights to some forms of personal property, whatever the best way to organise the economy. Without being explicit about it, he also seems to have believed that protection for at least some forms of privacy are included in the Basic Liberties, to which all are entitled. Thus, Rawls assumes that people are entitled to form (...) families, as well as personal associations which reflect their tastes as well as their beliefs and interests. He seems also to have assumed that people are entitled to seclude themselves, as well as to associate with others, and to keep some of their beliefs, knowledge, feelings and ideas to themselves, rather than having to share them with others. So, thinking of privacy as an amalgam of claims to seclusion, solitude, anonymity and intimate association, we can say that Rawls appears to include at least some forms of privacy in his account of the liberties protected by the first principle of justice. -/- However, Rawls did not say very much about how he understands people’s claims to privacy, or how those claims relate to his ideas about property-ownership. This is unfortunate, because two familiar objections to privacy seem particularly pertinent to his conception of the basic liberties. The first was articulated with customary panache by Judith Thomson, in a famous article on the moral right to privacy, in which she argued that talk of a moral right to privacy is confused and confusing, because privacy rights are really just property rights in disguise. The second objection has long been a staple of leftist politics, and is that the association of privacy with private property means that privacy rights are just a mask for coercive and exploitative relationships, and therefore at odds with democratic freedom, equality and solidarity. If the first objection implies that Rawls is wrong to think that protection for privacy can be distinguished from protection of personal property, the second objection implies that Rawls cannot hope to protect privacy without thereby committing himself to the grossest forms of capitalist inequality. -/- In this paper I will not discuss Rawls’ views of property-owning democracy. However, by clarifying the relationship between claims to privacy and claims to property-ownership, I hope to illuminate some of the conceptual, moral and political issues raised by Rawls’ ideas, and by work on the concept of a property-owning democracy, which he inspired. As we will see, privacy-based justifications of private ownership are not always unappealing, and privacy is sometimes promoted, rather than threatened, by collective ownership. The conclusion draws out the significance of these claims for the idea of a property-owning democracy. (shrink)

In 2001, three non-Aboriginal men in their twenties were charged with the sexual assault of a twelve year old Aboriginal girl in rural Saskatchewan. Legal proceedings lasted almost seven years and included two preliminary hearings, two jury trials, two retrials with juries, and appeals to the provincial appeal court and the Supreme Court of Canada. One accused was convicted. The case raises questions about the administration of justice in sexual assault cases in Saskatchewan. Based on observation and analysis of the (...) record, this paper: (1) examines relationships between legal errors dealing with availability of the defence of “belief in consent” and interpretation of the “all reasonable steps” provision, the need for retrials, and apprehended race-gender-age bias and discrimination; and 2) proposes incremental and systemic remedies to address the weaknesses in police, prosecutorial and judicial policy and practice highlighted by this case. (shrink)

One of the most high-profile debates in Chinese philosophy concerns the compatibility of human and individual rights with basic Confucian doctrines and practices. Defenders of the incompatibilist view argue that rights are inconsistent with Confucianism because rights are (necessarily) role-independent obligations and entitlements, whereas Confucians think that all obligations and entitlements are role-dependent. Two other arguments have to do with the practice of claiming one's own rights, holding (a) that claiming one's rights undercuts family-like community bonds and (b) that giving (...) everyone license to claim her own rights is incompatible with certain hierarchical social structures that Confucians value. In this essay, I show that these arguments are too crudely formulated to identify the real points of contention with rights compatibilism, and then develop versions of two of the arguments which, when properly qualified, pose a more serious challenge for those who think rights and a license to claim one's own rights are consistent with core Confucian views. (shrink)

Should voting be compulsory? This question has recently gained the attention of political scientists, politicians and philosophers, many of whom believe that countries, like Britain, which have never had compulsion, ought to adopt it. The arguments are a mixture of principle and political calculation, reflecting the idea that compulsory voting is morally right and that it is will prove beneficial. This article casts a sceptical eye on the claims, by emphasizing how complex political morality and strategy can be. Hence, I (...) show, while there are good reasons to worry about voter turnout in established democracies, and to worry about inequalities of turnout as well, the case for compulsory voting is unpersuasive. (shrink)

Lisa Hill’s response to my critique of compulsory voting, like similar responses in print or in discussion, remind me how much a child of the ‘70s I am, and how far my beliefs and intuitions about politics have been shaped by the electoral conflicts, social movements and violence of that period. -/- But my perceptions of politics have also been profoundly shaped by my teachers, and fellow graduate students, at MIT. Theda Skocpol famously urged political scientists to ‘bring the state (...) back in’ to their analyses, and to recognise that political identities, interests and coalitions cannot be read off straightforwardly from people’s socio-economic position. In their different ways, this was the lesson that Suzanne Berger, Charles Sabel and Joshua Cohen tried to teach us, emphasising the ways that political participation and conflict, themselves, can change people’s identities, their sense of what it is desirable and possible, and their ability to recognise, or oppose, the freedom and equality of others. -/- I do not therefore take it as self-evident that the poor and seemingly powerless should be politically apathetic, unwilling to vote, or incapable of imagining a political solution to at least some of the problems confronting them. Nor do I suppose that non-voters are all-of-a-piece, and that their shared interests are, inevitably, more significant, morally or politically, than those which divide them. Such assumptions seem mistaken in the case of voters, and I see no reason why they should be true of non-voters. The people we find in these categories are not predestined to be in one rather than the other; they do not always stay where they start off; and at an individual level, the reasons why people fall into one group, rather than another, are likely to be complex and sometimes unpredictable. -/- Above all I see nothing in a commitment to democratic government, understood realistically or in more idealistic terms, that requires us to treat raising turnout at national elections (once every four years or so) as of such moral or political importance that we should make it legally mandatory. Realistically, it is an open question how far the ballot box is, for most people, the path to empowerment – important though it is that people should have an equal right to vote and to stand as candidates at national elections. On a more idealistic view of democratic politics it is hard to avoid the thought that the importance of national elections to self-government, posited by proponents of compulsory voting, reflects an alienated and alienating view of democracy, in which the choice of our leaders becomes more important than the development and exercise of our own capacities to lead; and in which our awe at the power our leaders might wield is matched only by our inability to imagine less intimidating, distant and centralised forms of politics. -/- But before saying a little more about these points, and their significance for compulsory voting, I would like to dispel some misunderstandings or misrepresentations of my views in Hill’s essay. I do not believe socio-economic disparities in turnout are not worrying for democratic politics, nor do I believe that abstention is generally synonymous with consent. I do not assume that people have a right not to vote, but try to explain why moral and legal rights to abstain are an important part of democratic politics, including electoral politics. (shrink)

Should voting be compulsory? Many people believe that it should, and that countries, like Britain, which have never had compulsion, ought to adopt it. As is common with such things, the arguments are a mixture of principle and political calculation, reflecting the idea that compulsory voting is morally right and that it is likely to prove politically beneficial. This article casts a sceptical eye on both types of argument. It shows that compulsory voting is generally unjustified although there are good (...) reasons to worry about declining voter turnout in established democracies, and to worry about inequalities of turnout as well. (shrink)

This paper examines Jeremy Waldron’s ‘core case’ against judicial review. Waldron’s arguments, it shows, exaggerate the importance of voting to our judgements about the legitimacy and democratic credentials of a society and its government. Moreover, Waldron is insufficiently sensitive to the ways that judicial review can provide a legitimate avenue of political activity for those seeking to rectify historic injustice. While judicial review is not necessary for democratic government, the paper concludes that Waldron is wrong to believe that it is (...) a threat to democracy. (shrink)

In their article, “Racial Profiling,” Risse and Zeckhauser offer a qualified defense of racial profiling in a racist society, such as the contemporary United States of America. It is a qualified defense, because they wish to distinguish racial profiling as it is, and as it might be, and to argue that while the former is not justified, the latter might be. Racial profiling as it is, they recognize, is marked by police abuse and the harassment of racial minorities, and by (...) the disproportionate use of race in profiling.These, on their view, are unjustified. But, they contend, this does not mean that all forms of racial profiling are unjustified, even in a racist society, or that one has to be indifferent to the harms of racism to believe that this is so. Indeed, one of the aims of their article is to show that racial profiling, suitably qualified, “is consistent with support for far-reaching measures to decrease racial inequities and inequality” (p. 134), and so to challenge the assumption that “arguments in support of profiling can speak only to those who callously disregard the disadvantaged status of racial minorities.” In a long and provocative article there is, inevitably, a great deal to discuss. However, I will concentrate on two claims about the harms of racial profiling advanced on page 146, both because these merit careful discussion and because they are critical to Risse and Zeckhauser’s argumentative strategy. Those two claims are (1) that “the harm caused byprofiling per se is largely due to underlying racism” and is, therefore, purely expressive; and (2) that “the incremental harm done by profiling often factors into utilitarian considerations in such a way as to support profiling.” We can call the first the expressive harm thesis and the second the incremental harm thesis. I am no expert on racial profiling, or on racism, however, I will suggest that these two theses are far more controversial than Risse and Zeckhauser assume, and point to serious difficulties with their justification of profiling. (shrink)

What role should rights play in feminist politics and the quest for equality? This article examines Wendy Brown's response to that question in her 'suffering rights as paradoxes' and shows that for all its merits, it draws our attention away from the central question of how to describe women's interests, given the many differences amongst women.

In The Decent Society, Avishai Margalit’s contends that a good society is a decent society, a society whose institutions do not humiliate persons. However, Margalit affirms a stark distinction between the decent society and a just society. “[T]he concept of a decent society … is not necessarily connected with the concept of rights. Even a society without a concept of rights can develop concepts of honor and humiliation appropriate for a decent society.” This paper rejects this position by showing that (...) in order for a society to be a decent society it must incorporate fundamental rights. Sections II, III, and IV examine, criticize, and reject Margalit’s arguments to the contrary, and in so doing summon arguments that demonstrate the indispensable value of fundamental rights for any society that purports to be decent. The central contention here is that only a concept of humiliation that affirms and respects fundamental rights is sufficiently robust to recognize certain violations of these rights as constituting distinctive and devastating assaults on the self-respect of specific individuals. Thus insofar as a decent society cannot countenance such assaults, a decent society must include rights. (shrink)