A. The Need for a “Substantive” Principle

What kind of constraint does the demand of equal treatment place on action?Footnote ¹ One common notion is that equal treatment requires simply that individuals who are alike be treated alike. This basic prescription is sometimes called the principle of formal equality or formal justice,Footnote ² because the constraint on action that it embodies appears, on its face, to be independent both of the substance of the treatment in question and of the criteria of likeness that are taken to be applicable. The principle of formal equality, as standardly stated, just says that given some rule that determines likeness, like individuals must be treated alike under that rule. This principle has frequently been characterized as tautologous, empty, or devoid of moral content.Footnote ³ Whether or not those characterizations are warranted,Footnote ⁴ it does seem true that the moral idea of equal treatment must also have a more “substantive” dimension. The most obvious reason for thinking so is that an action's satisfying the formal principle of equality does not seem to imply its immunity from moral objections of unequal treatment. Since the principle of formal equality demands only that like cases be treated alike under some consistently applied criterion of likeness, it cannot speak to whether the criterion applied is itself objectionable as a matter of equal treatment.Footnote ⁵ (This is precisely the sense in which the principle is formal.) If there are criteria of likeness that are themselves objectionable in that way, it follows that the requirement of equal treatment cannot be exhausted by the formal principle.

It is not difficult to imagine cases that illustrate this possibility. Indeed, any case in which a discriminatory rule is applied consistently would seem to suffice. Suppose, for example, that a professor adopts the rule that a student who scores a 60 shall receive a passing grade if and only if the student is male. Formal equality demands that like individuals be treated alike. The professor might claim that male and female students are not alike and that her grading rule therefore does not violate the maxim of treating like cases alike. Obviously, this would be absurd. The professor's rule surely constitutes unequal treatment in an obvious and important sense. What we may want to say is that the professor's rule does violate the demand to treat like cases alike under morally acceptable norms of likeness. But the formal principle of equality cannot by itself fully capture that judgment,Footnote ⁶ because the formal principle does not determine the validity of any particular criteria of likeness. What we need, therefore, is an account of equal treatment—what I am characterizing as a substantive interpretation—that captures the judgment that the professor's treatment of the students is wrong because it involves an objectionable comparison between male and female students.

B. The Problem of Moral Distinctiveness

What might a substantive requirement of equal treatment encompass that the formal principle does not?Footnote ⁷ One possibility (which I reject) is to see the requirement as a moral constraint on the criteria of likeness or similarity that determine the satisfaction conditions of the formal principle in a given case. We might say, for example, that the professor's application of her sex-based grading rule violates the requirement of equal treatment simply because sex fails to pick out a morally relevant consideration that justifies the differential treatment at issue. Thus, even if the professor could say that all students who are alike under her rule are treated formally alike, she cannot claim that they are treated equally, because her rule involves differential treatment of individuals who are not different in any morally relevant way. According to this theory, equal treatment in its substantive aspect can be analyzed as a requirement that differential treatment be justified by morally relevant differences. Which differences are morally relevant would then depend on the context of the differential treatment at issue.Footnote ⁸ Let us call this the relevant-difference view of the substantive requirement of equal treatment. It represents an attempt to analyze the demand of equal treatment primarily as a substantive requirement that actions be justified by morally relevant considerations.

The difficulties with the relevant-difference view as an understanding of the substantive requirement of equal treatment are that it is too broad and that it is explanatorily misdirected. It is too broad because not every case of treating an individual differently for an irrelevant reason seems to be objectionable in virtue of constituting unequal treatment. Suppose, for example, that an employer decides to hire Benson but not Johnson for a position as a tollbooth operator because Benson graduated first in his class from Harvard, whereas Johnson graduated second.Footnote ⁹ This difference between Benson and Johnson does not seem to provide a morally relevant reason that could justify the hiring of one rather than the other for the tollbooth position. We could therefore say that Johnson has been treated differently from Benson on the basis of an irrelevant consideration, one that fails to justify their differential treatment. But it would be implausible for Johnson to claim that the employer's hiring decision is morally objectionable on grounds of unequal treatment.Footnote ¹⁰

The relevant-difference interpretation of equal treatment is also explanatorily misdirected or incomplete. By this I mean that it seems to focus on the wrong aspect of the treatment in question. Suppose the employer hires Benson instead of Johnson based on the fact that Benson is white and Johnson is not. What does it mean to say that hiring Benson over Johnson on the basis of skin color is wrong because it constitutes unequal treatment? The relevant-difference view says that this objection reduces to the claim that the color of Benson's skin is not a difference between the two applicants that justifies the hiring of Benson rather than Johnson. The view focuses on the failure of justification for the treatment in question rather than on the way in which the treatment offends against the presumed equality of the two individuals. This focus is misdirected. It is surely true that the color of Benson's skin justifies neither his hiring nor Johnson's rejection. The objection of unequal treatment, however, implies not (just) that the treatment in question rests on an insufficient justification but that the treatment in question depends on an objectionable judgment about how the differently treated individuals are related to each other.

In claiming that the employer's reliance on skin color in hiring Benson is criticizable on grounds of unequal treatment, we are making a claim not just about the sorts of considerations that can justify a hiring decision, but that the employer's actions imply some morally objectionable judgment about the difference between Benson and Johnson. The relevant-difference view interprets the objection of unequal treatment as a claim about the justificatory insufficiency of irrelevant considerations while leaving unexplained the complaint that the objection implicitly voices about the relational judgment of moral inferiority that acting on such considerations involves. The relevant-difference view falls short as an interpretation of unequal treatment because it does not provide an account of the nature of that morally objectionable relational judgment.

Both of these difficulties with analyzing the substantive requirement of equal treatment in terms of the relevant-difference approach are aspects of the same theoretical problem, which I am calling the problem of distinctiveness. This problem consists in the challenge of articulating a principle of equal treatment that is not readily reducible to a general requirement of acting on the basis of morally relevant reasons. The worry is that if the wrongness of every action that seems objectionable because it violates the substantive requirement of equal treatment can be fully explained in terms of acting in the absence of sufficient reason, it follows that the requirement is morally otiose. An adequate conception of the substantive requirement of equal treatment should provide a response to this “otiosity objection.”Footnote ¹¹ I argue that a successful response can be developed by focusing on the objectionable relational judgment that characterizes those actions that we regard as morally wrong on grounds of unequal treatment. I turn now to that argument. In Section III, I introduce some basic ideas about the meaning of equal treatment and explain how the otiosity objection casts doubt on the significance of those ideas. In Section IV, I set forth my arguments for rejecting that objection.

A. Equal Respect and Concern

The central idea that animates the substantive interpretation of equal treatment is that individuals ought to be treated in a way that is consistent with the fundamental notion that all persons have equal moral statusFootnote ¹² and are entitled to equal moral respect and concern.Footnote ¹³ Rawls discusses this idea in his description in A Theory of Justice of the moral basis of the demand of equality. There he speaks of a “fundamental” idea of equality that is “owed to human beings as moral persons” and is defined in part by a moral duty of “mutual respect.”Footnote ¹⁴ The obligation of mutual respect is, according to Rawls, “the duty to show a person the respect which is due to him as a moral being” and calls forth various attitudes, including “our willingness to see the situation of others from their point of view, from the perspective of their conception of their good; and in our being prepared to give reasons for our actions whenever the interests of others are materially affected.”Footnote ¹⁵

The idea of equal treatment is that everyone is equally entitled to be treated with this sort of respect. As Rawls writes, the idea of the moral equality of persons—which is one of the concepts modeled by the Original PositionFootnote ¹⁶—is “expressed by the supposition that [all persons have] . . . a right to equal respect and consideration in determining the principles by which the basic arrangements of their society are to be regulated.”Footnote ¹⁷

Ronald Dworkin has also invoked in his writings the notion of a right to “equal respect and concern.”Footnote ¹⁸ He describes this right of equal treatment as the right “to be treated with the same respect and concern as everyone else” and the right that one's “interests be treated as fully and sympathetically as the interests of others.”Footnote ¹⁹ But Dworkin wants this right to be understood as more than a purely formal protection that could just as well be satisfied by an equal failure of respect with regard to all individuals. He explains that treating others equally in the sense of equal respect and concern involves a certain kind of respect for the autonomy of others. This means, in his words, “attempting, so far as it is possible, to see the situation of each person defined through the ambitions and values of that person.”Footnote ²⁰

Taken together, these remarks suggest that equality of treatment in the sense of equal respect and concern means that no individual's reasonable objection to a particular principle of action should be considered less important than another's, that no one should be regarded as less entitled to demand reasonable justification of actions that affect him adversely, as less worthy of being treated in accordance with moral reason, or as less secure in his basic rights and liberties.

B. The Skeptic's Challenge

At this point, the skeptic about the distinctiveness of equal treatment enters the scene, ready to assert the otiosity objection. What work is equality doing in the notion of equal respect and concern? Assuming that one acts in a manner that is consistent with the autonomy and the moral status of others, what could be added by the requirement that one's actions evince this attitude equally with respect to all persons? Joseph Raz, raising this objection against Dworkin's view,Footnote ²¹ puts the point in this way:

Raz's claim is that the notion of equality in Dworkin's talk of a right to equal concern and respect adds nothing to the idea of a right to concern and respect simpliciter. It is true, Raz argues, that everyone has an equal entitlement to concern and respect, but this is just to say that the content of that entitlement is the same for everyone. The right itself has nothing to do with equality.Footnote ²³

In order to respond to Raz's challenge,Footnote ²⁴ let us distinguish between comparative and noncomparative requirements or rights concerning the treatment of others.Footnote ²⁵ A comparative requirement or right represents a constraint on how an individual may be treated the content of which is predicated upon how individuals in some comparison class are treated. An example of a comparative right might be a right to equal pay for equal work. Whether this right is satisfied with respect to Smith depends upon how others in the relevant comparison class (employees performing equal work) are being paid. If Jones is in that class, then Smith can assert ipso facto a right to be paid the same as Jones. A noncomparative requirement or right is a constraint on how an individual may be treated that is not predicated on how any other individual is treated. An example of a noncomparative right might be a right to receive a statutory minimum wage. If the legislated minimum wage is $6 per hour, then whether this right is satisfied with respect to Smith does not depend on how others in any comparison class are treated. If Smith is covered by the wage law, then he is entitled to be paid $6 per hour, regardless what Jones or anyone else is being paid.

We can think of the basic duty to treat others with moral respect and concern as consisting at least in the duty to treat others in accordance with their noncomparative rights. The requirement of equal treatment, then, interpreted as the comparative requirement to treat all individuals with equal respect and concern, amounts to a duty to treat others equally in accordance with their noncomparative rights.

The otiosity objection asserts that treating individuals equally with respect to their noncomparative rights amounts to just the same thing as treating them in accordance with their noncomparative rights. When an individual's right to be treated equally with respect to a given noncomparative right is violated, the wrong consists in the violation of the noncomparative right, and nothing of moral significance is added by characterizing it as unequal treatment.Footnote ²⁶ In other words, according to the otiosity objection, in cases where it might be claimed that an action violates an individual's right to be treated equally with respect to his noncomparative rights, the complaint against the action is already exhausted by the objection that it simply violates the individual's noncomparative rights.

A. Response to the Skeptic: An Initial Formulation

There is, to be sure, a deep connection between the noncomparative requirement of moral respect and the comparative requirement of equal respect or equal treatment. We might say that the comparative demand of equal treatment falls out of the fact that the basis of moral respect is a status that is shared by everyone to whom it is owed. We might disagree about exactly what the basis of the entitlement to moral respect is. But it seems internal to the concept that it is owed to individuals in virtue of some fundamental status—for example, status as a moral person, a human being, rational agent, or member of a moral community—that transcends human heterogeneity and socially manifested variability.Footnote ²⁷ If the noncomparative requirement of moral respect stems from the implications of this status for the justification of action with regard to those who have it, we can think of the requirement of equal treatment as falling out of and reflecting back upon the fact that this status is shared by everyone. The basis of moral respect is in an important way coterminous with the basis of the substantive requirement of equal treatment.

That still leaves unanswered, though, how the requirement of equal treatment might be thought to add anything to the noncomparative requirement of moral respect. My view is that they represent different aspects of the recognition of an individual's moral status. If we can think of the noncomparative requirement of respect as a constraint that speaks to the adequacy of particular considerations as justifications for action, then we can think of the requirement of equal treatment as a constraint that speaks to whether the reasons for an action are consistent with the fact of the moral equality of persons.

So, for example, breaking a promise to someone just because you did not feel like keeping it is a violation of moral respect insofar as it involves a failure to take seriously the promisee's entitlement to have her expectations met except on the basis of adequate reasons. But breaking a promise to someone because you have a practice of keeping only those promises you make to Caucasians is, in addition to being a violation of moral respect, also a violation of the requirement of equal treatment insofar as it is predicated on a rejection of the presumed moral equality of Caucasians and non-Caucasians. These two cases of promise-breaking thus seem to give rise to two distinct objections—one based on the noncomparative requirement of moral respect, and the other based on a comparative ideal of moral equality or equal treatment.

The fallacy in the otiosity objection is that it relies on a question-begging assumption that whenever an action involves an impermissible violation of a noncomparative entitlement, the fact of that impermissibility provides a complete explanation of the wrongness of that action. In order fully to understand this fallacy, I need to set forth what exactly the substantive demand of equal treatment—the comparative demand of equal respect—entails. Some remarks by Bernard Williams in his paper “The Idea of Equality” are helpfully suggestive.Footnote ²⁸ Williams proposes that the distinctive demand of equal treatment be understood as a general constraint against allowing our “fundamental attitudes” toward others to be governed by socially salient differentiating characteristics such as their social and professional status. Williams thus construes equal treatment as an unconditional demand on our attitudes toward others but also as a demand whose force is felt as a counterweight against various comparative judgments we might be inclined to make about individuals on the basis of socially salient differentiating characteristics. On this interpretation, we can think of the idea of equal treatment as substantive in the sense that its prescriptive force is categorical or unconditional, whereas in virtue of its incompatibility with certain comparative judgments it can be understood as a genuine norm of equality.

Equal treatment surely does not require, however, that in deciding how any individual ought to be treated, we abstract away from all socially salient characteristics that might differentiate him from others. No one thinks, for example, that equal treatment requires that jobs requiring technical proficiency be awarded without regard to characteristics that may largely or wholly be the product of social circumstance, such as the fact that one individual has more work experience than another. This is presumably because taking account of that consideration does not deprecate the moral status of the individual with less experience in any way.

What is needed, then, is a specification of the demand of equal treatment that constrains moral deliberation to respect the moral equality of individuals while not precluding the possibility that differential treatment of them might be justified. These considerations, though very general, already suggest a way of stating a substantive principle of equal treatment. As a first pass at formulating it, consider the following proposition:

Under this principle, the requirement of equal treatment is categorical or unconditional in that its violation cannot be avoided by the selection of a comparison class determined by some more or less arbitrary rule of treatment. This makes it sufficiently substantive to be able to capture as unequal treatment those differential actions in which an individual is actually treated the same as all individuals in a selected comparison class (e.g., “Minorities must sit at the back of the bus”), yet all such individuals are treated in an objectionably discriminatory way because the rule that defines that class is itself discriminatory. Such an action constitutes unequal treatment as defined by (S0) insofar as it expresses unequal moral respect for the individuals who are adversely affected by it, relative to those who are not.

Yet, though the requirement of equal treatment is unconditional in this sense, there is still a comparative element embedded in principle (S0) that applies to what the action, considered in light of its rationale, may “express.” I postpone briefly a fuller discussion of what it means for an action to “express” unequal respect for an individual's moral status, but for now I suggest that an action expresses unequal respect for an individual at least when its rationale is given by considerations that depend for their force as reasons upon an assumption that the individual has a lesser moral status than do the individuals to whom the standing to object to the action is presumably reserved. An action's “rationale,” as I intend the term, broadly encompasses the actor's putative reasons or the apparent motive for the action.

The principle's focus on an action's rationale is inspired by Williams's suggestion that equality of respect is centrally concerned with the attitude that we adopt in our treatment of others and in particular with the considerations that we take to justify treating one individual differently from another. The principle (S0) is comparative insofar as it defines unequal treatment in terms of whether the level of respect that an action expresses with regard to an individual is equal to that reserved to others.Footnote ²⁹ Unequal treatment according to (S0) is a matter of giving more weight or significance to the reasons or reasonable objections of some individuals than to those of others.Footnote ³⁰ We might say, therefore, that whether an action violates the substantive requirement of equal treatment as formulated in (S0) is a matter of the comparative content of the action's motive or rationale.

There is, however, an obvious and serious problem with (S0) as a principle of equal treatment. It may well pick out as unequal treatment the actions we would want to be picked out as such, but it also seems to pick out some actions that while morally objectionable, do not seem to involve unequal treatment in any ordinary sense. A sociopathic individual who engages in indiscriminate killing, for example, by firing an assault rifle into a crowd of people, may act on a rationale that evinces unequal respect for the moral status of his victims compared, say, to himself. But I do not think that we would normally object to the killer's conduct on the grounds that it constitutes unequal treatment.Footnote ³¹ A similar difficulty arises in the case of the sadistic dictator who orders that everyone be tortured.Footnote ³² The dictator's action may demonstrate unequal respect for the moral status of his victims compared to the status he presumably reserves for himself and perhaps his kin, but its indiscriminate character makes it difficult to locate its wrongness even partly in its constituting unequal treatment in any ordinary sense.Footnote ³³

The problem, I believe, is that many or even most cases of morally unjustified action will involve, in some sense, unequal respect for the moral status of others. In any case in which an agent wrongfully harms another or simply excepts himself from any moral rule, the agent implicitly fails to respect the moral status of others as much as his own. Under the formulation of principle (S0), every such case would fall under the definition of unequal treatment. Thus that principle fails to provide an understanding of what, if anything, is morally distinctive about the requirement of equal treatment: it falls prey to the otiosity objection.

B. The Principle

What we need, therefore, is a modification of (S0) under which an agent's failure to give some other individual the same moral respect that he presumes for himself is not by itself sufficient to make it count as unequal treatment. I propose that this modification be effected as follows:

By “differentiating description,” I mean some specification of the individual that picks out a class whose members possess or exhibit that specification. Most ordinary descriptions that refer to some feature, trait, or characteristic of an individual will count as differentiating in my intended sense. Descriptions constituted by proper names or indexical references (e.g., “the person standing to my left”) are among those that do not generally count as differentiating in the relevant way. This restriction reflects our ordinary judgments about the sorts of action that seem objectionable as unequal treatment.Footnote ³⁴ More theoretically speaking, in cases where the differentiating description is something like a proper name or indexical reference, it will not usually make sense to think of the agent's action as evincing a judgment that the victimized individual is entitled to lesser moral respect in virtue of falling under that description,Footnote ³⁵ even though the description is what does the work for the agent in picking out his victim.

Looking at some examples may help clarify my view. Consider again the indiscriminate killer. According to (S), the indiscriminate killer does not violate the substantive requirement of equal treatment because the rationale of his action does not express unequal respect for the moral status of his victims under a differentiating description of the relevant sort. The killer fires upon whomever he happens upon, or whoever is in closest proximity, or perhaps whoever is at a particular place at a particular time. It is true that this latter kind of description—“whoever is at a particular place at a particular time”—may very well pick out a unique set of individuals (at a given place and time). Presumably, however, the killer's motive does not rest on the idea that the individuals thus picked out have a lesser moral status than any other group of individuals that might have been picked out by some different description (or the same description, modulo a different place and time). The killer's choice of whom to fire upon might as well be regarded as presupposing equal disregard for everyone's moral status. This is precisely the sense in which his killing is indiscriminate.

Much the same can be said for the case of the brutal dictator who orders his subjects to be tortured. Even though the dictator's action clearly fails to give equal respect to the moral status of his subjects compared to the respect he presumably reserves for himself, it seems inapt to object to the action as unequal treatment. On my view, this is because the dictator's action does not express unequal respect for the moral status of his victims under any particular differentiating description or in virtue of their membership in some differentiable class.

Suppose we were to change the case slightly so that the dictator now orders the torture of only some of his subjects. Would his action then constitute unequal treatment according to (S)? The answer depends on the significance of the description that differentiates those to be victimized from those to be spared. Suppose that the dictator orders that only those subjects who have an even number of letters in their last names shall be tortured. Again, as in the case of the indiscriminate killer, this description certainly does single out a specific set of individuals who will receive different treatment. But I would claim that the dictator's action does not express a judgment that these individuals with an even number of letters in their last names are less entitled, in virtue of falling under that description, to moral respect than any group of subjects who could be picked out by some other description.Footnote ³⁶ It seems more plausible to say that the dictator's action expresses equal disregard for the moral status of all subjects and that his bizarre method of selecting his victims simply reflects that he does not really care who gets selected. One imagines that he might just as soon have selected some other class of individuals to victimize. In any event, on my account, the dictator even in this second case does not violate the substantive requirement of equal treatment.

I noted that a description constituted by a proper name does not count as “differentiating” in the sense I have in mind.Footnote ³⁷ Thus, if the dictator takes a disliking to a particular named individual and orders him to be tortured just because he is that very individual, this will not count as unequal treatment under (S). I do not deny that the dictator, by singling out this particular individual, expresses unequal respect for his moral status in a very real sense. But, to repeat, manifestation of unequal respect in that sense characterizes almost every case of a willful violation of an individual's rights. What we want is an account that distinguishes the concept of unequal treatment from the broader notion of morally objectionable action.

Contrast the foregoing cases with one that clearly does seem to involve a violation of the requirement of equal treatment. We might imagine that the dictator orders the torture of all subjects with a particular racial ancestry. In such a case, it seems quite plausible to say that the dictator's action expresses unequal respect for the moral status of individuals of that race, under that description, compared to individuals of other races. We presume that the dictator's rationale (such as it is) involves the idea that the differentiating description he invokes—being of a particular ancestry—picks out individuals who are, in virtue of meeting that description, less worthy of moral respect and therefore have a lesser objection to being victimized. This is different from the previous case, in which the most we might have said is that the differentiating description there—having an even number of letters in one's last name—picked out individuals who were, as a result of meeting that description, subjected to different treatment. The crucial distinction between the two cases is the presumed role of the differentiating description in the dictator's rationale: in the race case, but not the other, it picks out a class of individuals who are presumed to be less entitled than others to moral respect and who therefore have less standing to object to the wrongful treatment at issue.Footnote ³⁸

When it comes to deciding whether a particular action constitutes unequal respect for some class of individuals, there are, of course, going to be some hard cases. This is not necessarily a defect of the principle I am proposing. After all, from the standpoint of our ordinary judgments, situations do sometimes arise in which it seems unclear whether an objection of equality of treatment should be raised. The account I am proposing helps us understand the source of the difficulty in some of these cases. At least in some hard cases, the source of the uncertainty is the inherent vagueness of the idea of an action's “expressing” unequal moral respect.

Sometimes the uncertainty is primarily an epistemic matter—we just might not know or we might be unable to infer what the putative rationale of the action in question is. Importantly, however, there are other cases in which the uncertainty is not simply epistemic. If we know that the agent's operative rationale—the set of considerations that constitute the agent's putative reasons for acting—involves the idea that some individual under some differentiating description is less entitled than others to moral respect, then the objection of substantive unequal treatment will generally be well taken. However, in the opposite case, where we know that the agent's operative rationale does not involve any such specific idea, an objection of unequal treatment might nevertheless be sustainable.

This possibility is reflected in (S) by the fact that an action, in view of its rationale, might express unequal respect for the status of some class of individuals even if the agent responsible for the action has no conscious belief as to the moral inferiority of such individuals. This might be the case, for example, where a government prosecutor consistently exercises her broad prosecutorial discretion to seek the death penalty in every possible case in which the defendant is a minority but never in cases where the defendant is not a minority, even though she has ample opportunity and resources to do so. The prosecutor might not be aware that she is doing this and perhaps might insist that she seeks the death penalty only in the most grievous cases. But if this rationale fails to explain her conduct adequately, we might very well be inclined to object to her actions as constituting unequal treatment in the substantive sense, her own professed neutrality notwithstanding.

My account allows for (although it does not compel) such an objection insofar as we can say that the prosecutor's different treatment of minority defendants, in view of the weak rationale she gives for it, expresses unequal respect for that class of individuals: it fails to take seriously their reasonable objection against being disproportionately subjected to capital punishment while apparently reserving to nonminorities a claim to be immune from it.

These observations suggest the following general account of what it is for an action to “express” a principle in the sense relevant to (S). On my view, an agent's action expresses a principle when it would be objectively reasonable for observers to attribute to the agent an attitude of endorsement regarding that principle. Whether such an attribution is reasonable will typically depend upon an assessment of the ostensible rationale for the action. This explains why (S) calls for attention to an action “in view of its rationale.” In any event, an action expresses unequal moral respect for an individual under a differentiating description when it would be reasonable to attribute to the agent an attitude endorsing such inequality of respect.Footnote ³⁹

The claim that the treatment of an individual expresses unequal respect is not necessarily a claim about the actual psychology of the agent responsible for it.Footnote ⁴⁰ It is more in the nature of a moral claim about how that treatment can be interpreted for purposes of determining whether it is objectionable. Of course, since what an action expresses may often depend on what we think its rationale might have been, investigation into what the agent was actually thinking may be relevant to this determination.Footnote ⁴¹ But as the example of the biased prosecutor was meant to show, we may be justified in regarding an action as expressive of an attitude of unequal moral respect even if the agent responsible for it does not actually act on any such attitude.Footnote ⁴²

I am not trying to provide a general account of the conditions under which we would be so justified, but I hope it suffices to observe that a number of different aspects of the context of the treatment in question will come into play.Footnote ⁴³ In particular, our judgments about what attitudes can reasonably be attributed may be heavily driven by the history of the treatment of a particular group of people.

For example, in a case where a bank loan officer consistently rejected the loan applications of minorities at a higher rate than applications by similarly qualified Caucasians, we might judge the loan officer's differential decisions as expressing an attitude of unequal respect, even if the loan officer believed herself to be acting on individualized determinations of creditworthiness. Any judgment to that effect would in large part be driven, I believe, by cognizance of the history of discriminatory lending practices, combined with a feeling that the loan officer should be faulted for being oblivious to the consonance of her differential action with those patterns of historical injustice. The point is that our judgment about what that action expresses—and consequently how we can object to it—may be affected by a variety of considerations that may be external to the agent's subjective psychological states, including symbolic connections between the action and historical examples of injustice.Footnote ⁴⁴

It may be useful at this point to summarize my main conclusions so far. I am trying to establish the following points: (1) that the idea of equal treatment includes what might be called a substantive as well as a formal element; (2) that this substantive requirement of equal treatment consists in an unconditional demand that our attitudes reflect the moral equality of persons; and (3) that this requirement is violated when an action expresses an inequality of respect for the moral status of some class of individuals compared to another. As we see above, the question of whether an action expresses the attitude of inequality that characterizes unequal treatment is often a difficult one and may not always admit of a determinate answer. But it is my contention that the distinctive thrust of a complaint of unequal treatment in the substantive sense is to register an objection to the principle of unequal moral status that it expresses.Footnote ⁴⁵ This is ultimately what qualifies the substantive requirement of equal treatment as a meaningful norm of equality.

C. The Otiosity Objection Reconsidered and Rejected

The foregoing elaboration of the substantive requirement of equal treatment has shown how the requirement of equal treatment, interpreted as deriving from the idea of equal respect and concern, could be a genuine norm of equality while at the same time being more than just a formal norm of consistency. The skeptic about the distinctiveness of equal treatment, however, will perhaps still feel unsatisfied. Even granting that the account of equal treatment stated in proposition (S) is plausible, it still remains unclear, the skeptic might argue, just why the idea of equal treatment is necessary to adequate moral judgment. After all, what the principle of equal treatment proscribes is the expressed endorsement of unequal respect for the moral status of some class of individuals.

But will it not be the case that every action that expresses unequal moral respect for some individual in this way will also involve a noncomparative violation of that respect? And if every expression of unequal respect does in fact involve a simple, noncomparative violation of respect, what moral work could be done by judgments concerning the former? Exactly what actions does the requirement of equal treatment rule out that purely noncomparative moral requirements do not? In this section, I address these lingering skeptical questions. I show how my account of equal treatment both answers those questions and at the same time facilitates a diagnostic explanation of why the skeptic's objections have the surface plausibility that they do.

To answer the skeptic's objections, I will introduce another bit of terminological shorthand to track the difference between the idea of respect for moral status and that of equal respect for moral status. Let us distinguish between the following:

Doing what right treatment requires is just a matter of taking an individual's noncomparative rights seriously without regard to what equal treatment may require.Footnote ⁴⁶ What equal treatment requires is the topic under discussion, but I am suggesting that it means, roughly, not treating an individual as though that individual belonged to some class of individuals that was less entitled to right treatment than anyone else.Footnote ⁴⁷

The worry we are presently considering can be restated, then, in the following way. It might seem problematic for a theory of equal treatment if it turned out that every action that was ruled out as a purported violation of some individual's entitlement to equal treatment could just as adequately be ruled out as a violation of right treatment. If this were the case, then the requirement of equal treatment might appear to add nothing to that of right treatment. For example, if an individual complains that he was treated unequally in virtue of being singled out to suffer a violation of his right to x, one might think that the simpler objection to the treatment he suffered is just that his right to x was violated. And since the fact that the treatment violates the individual's right to x is sufficient to make it inconsistent with right treatment, it would seem that no recourse to any idea of equal treatment is necessary to rule out the treatment in question.Footnote ⁴⁸ So wherefore any further talk of unequal treatment?

The problem with this line of objection is that it is question-begging as to the moral primacy of judgments about the permissibility of action. An alternative and, to my mind, a more adequate way of understanding what is going on in the kind of case just mentioned is to think of the offense to equal treatment as being merely obscured or overshadowed by the fact that the violation of the individual's right to x is by itself sufficient to make the objectionable treatment morally impermissible. That is, the fact that the action in question would entail violating the individual's rights is by itself a conclusive moral reason against doing it. This might make it appear that any further objection of unequal treatment would simply be otiose. But I believe that this conclusion is incorrect.

Even granted that an objection of unequal treatment might in a sense overdetermine the wrongness of a given action, it does not follow that the objection is superfluous, unimportant, or illusory. In my proposed account, to characterize an action as unequal treatment is to register a certain objection as to what, in view of its rationale, the action expresses. This objection will either be well taken or not, but its force does not depend upon its being necessary to a determination of the action's permissibility. For example, the impermissibility of falsely arresting an individual on account of his race follows simply from the individual's right not to be arrested except on the basis of certain well-defined types of reasons.

But it is nevertheless true that the principle of such an action, insofar as it presumes that an individual's being of the disfavored race is a reason to arrest him, violates our commitment to equal respect for the moral status of individuals of this race; it embodies a presumption that this class of individuals is morally inferior, incapable of making a demand on us that our actions toward them be justified in ways that everyone could reasonably be expected to accept. Our objection to the action on the grounds that it expresses this attitude does not depend on or imply that the action must be impermissible on these same grounds. In other words, assuming that the race-based false arrest constitutes a violation of both right treatment and equal treatment, our recognizing that the former is enough by itself to establish the action's impermissibility does not necessarily imply that the latter adds nothing to our understanding of why it is objectionable. Indeed, even granted that the idea of equal treatment is unnecessary here for a determination of permissibility, we might still think that it is necessary for a complete understanding of the action's wrongness and in particular of how its wrongness is affected by the action's being predicated on the victim's race.

I believe that the idea of unequal treatment is essential to understanding the moral difference between a “straightforward” case of false arrest and the race-based case we are imagining. The moral concern of equal treatment is distinct from that of right treatment.

Just as an objection of unequal treatment may be necessary to fill out our understanding of the wrongness of some actions that are already impermissible on other grounds, an objection of unequal treatment may also be necessary to account for our moral criticisms of some actions that we might judge to be independently permissible. These are cases in which the action in question is not a violation of right treatment but that nevertheless seem to raise questions of equal treatment. Let us return to the example I describe at the outset. Two qualified applicants apply for a desirable position. The hiring official has discretion to select one, both, or neither of the applicants. Suppose we now learn that one applicant is white, the other black. It turns out that the official is a racist, and so she hires the white applicant and rejects the other. It seems plausible to argue that insofar as neither applicant has any independent claim to be hired, what we might say about the official's action is that the hiring of the white applicant and the rejection of the other are not morally impermissible per se.Footnote ⁴⁹

If we thought that this judgment of permissibility exhausted our moral assessment of the action, we might then conclude that any notion of unequal treatment could not do any work here. Surely, though, we would not be right to think this. Even if we agreed that it was permissible for the official to hire the white applicant and reject the other, the treatment of the applicants would still remain objectionable in view of the decision-maker's rationale for it, and it would be objectionable specifically on the grounds of unequal treatment. A moral assessment of the official's action that ignored that aspect of its wrongness should be regarded as seriously incomplete.Footnote ⁵⁰