Center for Humans and Nature, 109 West 77th Street, Suite 2, New York, NY 10024, USA. Tel.: 212 362 7170; Fax: 212 362 9592; Email: brucejennings{at}humansandnature.org ' + u + '@' + d + ' '//--> . Abstract A fundamental question for the ethical foundations of public health concerns the moral justification for limiting or overriding individual liberty. What might justify overriding the individual moral claim to non-interference or to self-realization? This paper argues that the libertarian justification for limiting individual (...) liberty known as the ‘harm principle’ or the ‘Millian paradigm’ is inadequate as a basis of public health ethics and policy. But simply pitting some collectivist value or utilitarian criterion over against individual liberty is not theoretically satisfactory, either. John Stuart Mill himself was not a Millian, in this sense, and his utilitarianism does not pit itself against individual liberty as a situation of balancing conflicting values. A reconsideration of Mill, particularly in light of the later work of Berlin on liberty, points toward a conception of relational liberty that is crucial for public health ethics because it contains within itself the basis for its own moral limitation. CiteULike Connotea Del.icio.us What's this? (shrink)

My paper explores the question of when it is wrong for a state’s immigration criteria to discriminate against people with disabilities, focusing on the idea that discrimination is wrong when it demeans a group, rather than when it disadvantages them. I argue that selecting against people with disabilities often demeans them but might not always do so even when immigration criteria explicitly exclude people on the basis of having disabilities – that is, in cases of direct discrimination. Moreover, I demonstrate (...) that certain cases of less direct forms of discrimination that select against people with disabilities – in particular, when states apply health-cost limits on admissions – can function as proxies designed to exclude people with disabilities and thereby demean them. Finally, I explain why my analysis of discrimination’s wrong does not typically apply to health conditions in general, such as heart, liver, or lung disease or cancer, setting my view apart from a prominent view in the literature. (shrink)

The aim of this paper is to examine whether it is morally wrong to ban only male citizens from leaving a country in wartime, and if it is, why it is the case. Following Russia’s invasion of Ukraine, President Volodymyr Zelensky declared martial law and ordered general mobilization, at the same time prohibiting male citizens aged 18 to 60 from crossing the border. The justifiability of the ban is in dispute, and opponents have made a case in both legal and (...) moral dimensions. In the moral dimension, there are arguments based on consequentialism, individual freedom, and fairness or non-discrimination. In this paper, I focus on the third argument and argue that the ban unfairly and morally wrongfully discriminates against male Ukraine citizens on the basis of their gender. First, I define discrimination and apply it to our case. Second, moving from the descriptive definition of discrimination to its moral wrongness, I argue that the male-only ban is unfair and morally unjustified. Third, I argue that the ban can also be deemed morally wrong from one of the prominent views in the field of the ethics of discrimination, namely the deliberative freedom view. (shrink)

In this position paper, we introduce a new epistemic lens for analyzing algorithmic harm. We argue that the epistemic lens we propose herein has two key contributions to help reframe and address some of the assumptions underlying inquiries into algorithmic fairness. First, we argue that using the framework of epistemic injustice helps to identify the root causes of harms currently framed as instances of representational harm. We suggest that the epistemic lens offers a theoretical foundation for expanding approaches to algorithmic (...) fairness in order to address a wider range of harms not recognized by existing technical or legal definitions. Second, we argue that the epistemic lens helps to identify the epistemic goals of inquiries into algorithmic fairness. There are two distinct contexts within which we examine algorithmic harm: at times, we seek to understand and describe the world as it is, and, at other times, we seek to build a more just future. The epistemic lens can serve to direct our attention to the epistemic frameworks that shape our interpretations of the world as it is and the ways we envision possible futures. Clarity with respect to which epistemic context is relevant in a given inquiry can further help inform choices among the different ways of measuring and addressing algorithmic harms. We introduce this framework with the goal of initiating new research directions bridging philosophical, legal, and technical approaches to understanding and mitigating algorithmic harms. (shrink)

Mary Kate McGowan’s Just Words offers an interesting account of exercitives. On McGowan’s view, one of the things we do with words is change what’s permitted, and we do this ubiquitously, without any special authority or specific intention. McGowan’s account of exercitives is meant to identify a mechanism by which ordinary speech is harmful, and which justifies the regulation of such speech. It is here that I part ways. I make three main arguments. First, McGowan’s focus on harm is misguided; (...) that ordinary speech is harmful is harder to support, and in turn does not less to support conclusions about whether it is wrong and warrants regulation, than Just Words suggests. Second, if the speech is harmful, McGowan’s account of exercitives is ill-suited to explain why; the relevant instances of ordinary speech seem to express speakers’ views about moral norms, not change social norms. Third, McGowan’s argument for why ordinary speech should be regulated because it is a form of discrimination presupposes a great deal that is controversial about what makes discrimination wrong and legally actionable, and even if it is right it may license the regulation of more speech than many, including McGowan, would deem acceptable. (shrink)

This paper argues that the concept and role of ‘institutional racism’ in contemporary discussions of race should be reconsidered. It starts by distinguishing between ‘intrinsic institutional racism’, which holds that institutions are racist in virtue of their constitutive features, and ‘extrinsic institutional racism’, which holds that institutions are racist in virtue of their negative effects. It accepts intrinsic institutional racism, but argues that a ‘disparate impact’ conception of extrinsic conception faces a number of objections, the most serious being that it (...) has no plausible account of what it is that makes extrinsically racist institutions racist. It also argues that claims about the explanatory indispensability of institutional racism are overstated (individual racism is at least as important), critiques structural approaches to racial inequality, and suggests that there is reason to doubt whether institutional reform can provide us with all that morality may require in the racial domain. (shrink)

A frequent caveat in online dating profiles – “No fats, femmes, or Asians” – caused an LGBT activist to complain about the bias against Asians in the American gay community, which he called “racial looksism”. In response, he was asked that, if he himself would not date a fat person, why he should find others not dating Asians so upsetting. This response embodies a popular attitude that personal preferences or tastes are simply personal matters – they are not subject to (...) moral evaluation. In this paper, I argue, against this popular attitude, that a personal preference like racial looksism is indeed wrong. A preference like racial looksism is wrong because it is an overgeneralization that disrespects individuality by treating people as exchangeable tokens of one type, and such disrespect denies its objects appreciation that their dignity entitles them to. As it turns out, there is on my account a relevant moral difference between racial looksism and simple looksism. (shrink)

This paper describes and defends a novel and distinctively egalitarian conception of the rule of law. Official behavior is to be governed by preexisting, public rules that do not draw irrelevant distinctions between the subjects of law. If these demands are satisfied, a state achieves vertical equality between officials and ordinary people and horizontal legal equality among ordinary people.

Journal of Social Philosophy, Volume 52, Issue 4, Page 491-515, Winter 2021.

The article argues that discrimination is bad as such when and because it undermines equality of opportunity. It shows, first, that other accounts, such as those concerning intent, efficiency, false representation, prejudice, respect and desert cannot account for the badness of discrimination as such. The inequality of opportunity account, in contrast, captures everything that is bad about discrimination. The article then addresses some counter-examples of practices that are discriminatory without arguably entailing inequality of opportunity, where the notable case is that (...) of segregation. It is further demonstrated that the account successfully handles some of the tricky aspects associated with discrimination, such as those concerning the confinement of discrimination to salient groups, discriminatees by means of financial compensation, in the selection of life partners, and the duties of employers. (shrink)

Public health professionals recognize the critical role the law plays in determining the success of public health measures. Even before September 11, 2001, public health experience with tobacco use, HIV, industrial pollution and other potent threats to the health of the public demonstrated that laws can assist or thwart public health efforts. The new focus on infectious threats and bioterrorism, starting with the anthrax attacks through the mail and continuing with SARS, has highlighted the important role of law.For lawyers to (...) serve as effective partners in public health, they should have a basic familiarity with public health: how public health professionals see the world and the key issues they tackle. A practical grasp of public health can be acquired, and often is acquired, “on the job.”. (shrink)

s This paper reports studies designed to examine perceptions of preferential selection. Subjects evaluated the fairness of hypothetical cases of selection decisions based on either candidate sex or ethnic origin. A within-subjects design and a between-subjects design yielded convergent results showing that (1) preferential selection was perceived as unfair, irrespective of respondent sex or the basis for the preferential treatment (i.e., candidate sex or ethnic origin), (2) the level of perceived injustice was directly related to the discrepancy in merits between (...) the successful minority candidate and the more qualified yet unsuccessful majority candidate, and (3) the provision of either an ethical or legislative justification for the selection decisions further exacerbated feelings of injustice. Possible interpretations for the findings and practical implications of the study were then discussed. (shrink)

With the development of human rights and anti-discrimination law, courts have increasingly been called upon to protect ethnicity related practices from general criminal and civil sanctions. These ‘claims of culture’ have so far been addressed with remarkable inconsistency, leading to popular fears of unlimited normative pluralism and targeted legislative measures. Compounding such controversies, philosophical approaches to multiculturalism have mostly been concerned with policy and offered vague or distorted portrayals of judicial challenges. This article seeks to fill the gap by exploring (...) how the legal standard of substantive equality might structure the courts’ approach to a range of cases involving minority litigants. In particular, I will argue that ethnic practices can be usefully divided into four categories triggering distinct modes of legal reasoning: criminal offences, human rights violations, civil infractions, and symbolic identification. In the first case, cultural differences mainly bear on the analysis of subjective blameworthiness, whereas in the second, they bring out an ongoing shift in the public/private and negative/positive nature of human rights obligations. Civil infractions call for the application of anti-discrimination standards developed in the doctrine of indirect discrimination and reasonable accommodation. As for symbolic identification, it raises the issue of national identities and legal instruments to make them inclusive of the whole citizenry. (shrink)

Can a minority agent, Jamal, discriminate against a majority agent, Dave, conceptually speaking? Taking an experimental-philosophical approach, this article addresses the conceptual puzzle by investigating both the ordinary usage of discrimination and whether the academic literature reflects the folk concept. First, it provides a conceptual analysis of discrimination as it is used across the discrimination research field. The analysis produces two novel definitions of discrimination: a symmetric conception, which implies multi-directionality, and an asymmetric conception, which implies uni-directionality. Then, I empirically (...) investigate the US lay concept of discrimination (N = 1,487). The highlight of the paper is an experiment on whether US ordinary usage is symmetric or asymmetric (Study 1), tested across four contexts and three traits (Hiring: Gender, Club: Sexuality, Dating: Race, Parental: Gender). In addition, I study which groups are most often discriminated against, according to respondents, to record potential sensitivity to the frequency of discrimination (Study 2). Overall, the results show that ordinary usage in the US is symmetric across different contexts and traits, and that paradigmatic minority groups are most often discriminated against. So, according to respondents, Jamal can discriminate against Dave, although Jamal is more often discriminated against than Dave. (shrink)

Several leading theorists embrace the Simple Desert Account of Discrimination. This account involves two claims: it claims that a mismatch between what people deserve, on the one hand, and what they get, on the other hand, is (a) integral to discrimination, and (b) wrong. I shall query (a). First, I challenge what I see as the principal, positive argument for the Simple Desert Account. Second, in some cases wrongful discrimination brings about a better match between desert and what people get. (...) Situations in which this could be the case include those where: the discriminatee is a serial discriminator herself; the person wrongfully discriminated in favour of deserves greater advantages than she enjoys; by engaging in wrongful discrimination the discriminator reduces her moral deservingness and thereby the gap between her level of deservingness and her otherwise unfittingly low level of advantage. (shrink)

This paper tries to explain why racial profiling involves a serious injustice and to do so in a way that avoids the problems of existing philosophical accounts. An initially plausible view maintains that racial profiling is pro tanto wrong in and of itself by violating a constraint on fair treatment that is generally violated by acts of statistical discrimination based on ascribed characteristics. However, consideration of other cases involving statistical discrimination suggests that violating a constraint of this kind may not (...) be an especially serious wrong in and of itself. To fully capture the significant wrong that occurs when racial profiling is targeted at black Americans or other similarly situated groups, it is argued that we should appeal to the idea that this basic injustice is exacerbated when it forms part of a larger pattern of similar actions that collectively realize a state of cumulative injustice. (shrink)

Discrimination is a central moral and legal concept. However, it is also a contested one. Particularly, accounts of the wrongness of discrimination often rely on controversial and particular assumptions. In this paper, I argue that a theory of discrimination that relies on premises that are very general (rather than unique to the concept of discrimination) and widely accepted provides a plausible (exhaustive) account of the concept of wrongful discrimination. According to the combined theory, wrongful discrimination consists of allocating a benefit (...) that is not supported by a morally significant fact (a valid reason), or in a way that involves distributive injustice, or both. (shrink)

Public health professionals recognize the critical role the law plays in determining the success of public health measures. Even before September 11, 2001, public health experience with tobacco use, HIV, industrial pollution and other potent threats to the health of the public demonstrated that laws can assist or thwart public health efforts. The new focus on infectious threats and bioterrorism, starting with the anthrax attacks through the mail and continuing with SARS, has highlighted the important role of law.For lawyers to (...) serve as effective partners in public health, they should have a basic familiarity with public health: how public health professionals see the world and the key issues they tackle. A practical grasp of public health can be acquired, and often is acquired, “on the job.”. (shrink)