Niko Kolodny, Discrimination, Subordination, and Pluralism (Book Forum) [2020 C4eJ 30]

[➡︎ read the rest of the book symposium on Sophia Moreau, Faces of Inequality: A Theory of Wrongful Discrimination (2020)]

Niko Kolodny*

Sophia’s book is tremendously illuminating. I’ve learned a great deal from it, as I hope these comments will reflect. However, while even to entertain the thought feels like treason against philosophy itself, I wonder whether the book might make too many distinctions. I’ll focus on the chapter on basic goods, and say a bit about the chapter on subordination, but I felt this worry about multiplying wrongs beyond necessity at other places, such as the discussion of deliberative freedom.

As I went through the book’s examples of wrongful discrimination, I found myself slotting them into the following three complaints.

First, complaints of fair improvement: people might complain that their condition could have been improved, in a way that would not have been unfair to others.

Second, complaints of unequal treatment: people might complain that a “public institution” did not give them something that it in fact gave others, when there was no justifying difference between them.

While complaints of fair improvement and unequal treatment sometimes involve a broader pattern of differential treatment on the basis of personal traits, such as race, gender, ethnicity, religion, sexual orientation, disability, etc., they don’t always. When they don’t, we don’t speak of “discrimination.”

Finally, there is what I think Sophia would call “subordination” or I would call “relations of inferiority”: people might complain that they are somehow put beneath others, in a way that isn’t tempered by context, limits, exit, etc.

Relations of inferiority also need not involve a broader pattern of differential treatment on the basis of a personal trait. Consider the relation of a debt peon to his creditor.  In these cases, we also don’t speak of “discrimination.”

However, a broader pattern of differential treatment on the basis of a personal trait is sometimes key: for it is sometimes why the relevant relations are in my terms, “untemptered”: pervasive, inescapable, and so on.

I take these relations of inferiority to consist in asymmetries of power, authority, and consideration.

Sophia thinks that this needs to be supplemented with points about censure, stereotypes, and structural accommodation.  Here, as elsewhere, I find her discussion extremely insightful, and I’ve learned from it. But her examples, at least, don’t persuade me that we need these new categories.

That others are seen, whereas you are not, or that their interests are taken into account, whereas yours are not—which is the effect of structural accommodation—is straightforwardly a disparity in consideration: with consideration in this case being seen or having your interests taken into account.

Likewise, that others are trusted by default as decent and peaceable whereas a Muslim, “censured” as an extremist sympathizer with terrorism, is not also seems a disparity in consideration: with consideration being trusted by default.

Now to “basic goods.” Here, again, I slot the complaints into three categories.

First, in some of Sophia’s cases, the denial of the good supports a fair improvement complaint. There is a way to improve water resources for aboriginal communities that wouldn’t be unfair to others.

Second, in some cases, the denial of the good supports an unequal treatment complaint. Public institutions provide the resource, such as marriage, to some but not to others, when there is no justifying difference.

Finally, in many of these cases, perhaps all, the denial of the good reflects or reinforces “subordination.”

For example, if there is a broader pattern of lesser consideration, then the maldistribution might, first, express lesser consideration by the distributor, or, second, encourage others to have lesser consideration. If same-sex couples are denied marriage licenses, for example, then this expresses, and encourages others to express, that their relationships are not “deemed equal in commitment and maturity to the relationships of married couples” (98).

But there is a third point to be made here, which I learned from Sophia’s discussion. There might be some goods such that the very lacking of those goods is likely to be a “basing trait” like having an unfavored sexual orientation, religion, etc., that attracts lesser consideration. That is, even setting aside prejudice against indigenous people, not being able to bathe regularly may mean that others ignore one or distrust one or keep their distance.

And this third way in which the denial good can be bound up with a broader pattern of lesser consideration on the basis of personal traits has distinctive implications for remedies. When the basing trait is lacking a good that one should have anyway, rather than, say, religion, there are two different ways to address the disparity of consideration. Instead of changing how people respond to the trait, we might simply change the trait. We shouldn’t ask people to change their religion to get equal consideration. But we might well provide them with bathing facilities so that they can get equal consideration. The same might be said for the goods of having a name or a home (101).

If Sophia left it at this, then I would agree. But she seems to suggest that basic goods give rise to some further complaint, and I have trouble following what she has in mind here.

The basic problem is that, on Sophia’s definition, something counts as a basic good only if it is necessary for being perceived as an equal participant. But we are then left to spell out “being perceived as an equal” in terms of enjoying equal consideration, power, etc.

After all, why don’t non-aboriginal people living in remote places, who also lack access to water, have the same objection? “because they have not historically been stereotyped as unclean or primitive, this lack of water will likely not lead to their being seen by others… as less than full or equal participants—at least, not unless their water crisis persists for some years.” In other words, unless lacking access to water reinforces some pattern of lesser consideration, etc. (something that, as Sophia indicates, would likely take years to solidify), then having access to water is not necessary for being perceived as an equal, and so that necessary condition for a basic good complaint does not obtain.

But if this is the way to understand being perceived as an equal participant, then, whenever there’s a basic-good complaint, there’s already a subordination complaint. So what do basic-good complaints add? Why aren’t they just a special case of subordination complaints?

Perhaps the reply lies in the other necessary condition for basic goods—that they are not only necessary for being perceived as equal but also necessary for being equal. There is a special objection, one might say, that arises when one is denied a good that is necessary not merely for being perceived as an equal participant, but also for being an equal participant, however it is perceived (and whatever “being an equal participant” means, exactly). If there were a good that was necessary for being perceived as, but not for being, an equal participant, then someone denied this good would have a subordination complaint, but not yet this further basic-good complaint. And having this further basic-good complaint might make a difference. It might call for specific restitution—i.e., being given the basic good—whereas at least some subordination complaints do not call for specific restitution (126).

The only example in chapter 4 of a good necessary for being perceived as an equal but not for being an equal, it seems, is the license denied to non-aboriginal fishermen. While they need the license to be perceived as equals (98), they don’t actually need the license to be equals. But the example doesn’t help me, because having a special fishing license isn’t necessary for being perceived as an equal. Perhaps a better example is the Sketching the Line, where “having a picture of riders such as yourself posted on public transit is in no sense a basic good,” because you don’t need it to be an equal (whatever that comes to), although, it seems, you do need it to be perceived as an equal (123).

In any event, it isn’t clear to me why fair improvement and equal treatment complaints wouldn’t account for the further complaint that one is supposed to have when one is denied a good that one needs to be an equal.

Toward the end of the chapter, Sophia does directly respond to the worry that the complaint about basic goods is just the complaint about subordination. She writes: “you can lack one of the necessary conditions for participating fully and equally in society even if, overall, your social group is much better off than others, and has a much higher social standing.” Whereas Sketching the Line exemplified a subordination complaint without a basic good complaint, this is supposed to exemplify a basic good complaint without a subordination complaint.

Now, I worry that this seems to imply, falsely, that if you belong to a social group with higher “overall” social standing, then you can’t have subordination complaints. This implication seems false for reasons that Sophia so perceptively gives elsewhere in the book. People belong to many social groups, and it often happens that they enjoy higher social standing in virtue of some of those groups, and lower social standing in virtue of others. Consider well-educated, professional white women, etc., who are cat-called, belittled, judged on how they are attired, etc., by working-class, uneducated men of an ethnic minority, who would never command the same sort of attention from a bank manager or police officer.

But set this aside. The basic problem is that if you lack a necessary condition simply for being an equal participant, and not for being perceived as one, then, by definition, you wouldn’t have a basic good complaint. So the relevant possibility must be that you also lack a necessary condition for being perceived as an equal participant. But then, once again, don’t you have a subordination complaint after all? How else is being perceived as an equal participant to be understood?

For this reason, I have trouble understanding how Sophia’s example is even supposed to work: how different-sex couples, as things are, could have a basic-good complaint about being denied access to the civil partnerships to which same-sex couples are granted access. Even if access to civil partnerships is somehow necessary for being equals (whatever that comes to), it isn’t necessary for being perceived as equals. So, by definition, there’s no basic-good complaint. Different-sex couples are like the remote, non-aboriginal people who are temporarily without access to water.

Of course, different-sex couples have a complaint about being denied civil partnerships. But this is explained in terms of fair improvement and equal treatment. Even if civil partnerships aren’t necessary for being equal participants (whatever exactly that comes to), still civil partnerships are a legal option, which some might want. So there are grounds for a fair improvement complaint: they could have further legal options, at no real cost, fair or unfair, to others. And there are grounds for an unequal treatment complaint: they are not getting a legal option that others do get, even though there’s no justifying difference.

Of course, we can imagine a hypothetical social context in which civil partnerships were the ideal domestic partnership. In that case, being denied civil partnerships might lead over time to being perceived as somehow second class. It would be like the case of the non-aboriginal people who lack clean water year after year. In that case, there could be a basic-good complaint. But then it would seem to involve a subordination complaint too.

* Professor of Philosophy at the University of California, Berkeley.