Paternalistic Discrimination

Law and Philosophy https://doi.org/10.1007/s10982-024-09521-4  The Author(s). 2024 SØREN FLINCH MIDTGAARD, VIKI MØLLER LYNGBY PEDERSEN PATERNALISTIC DISCRIMINATION (Accepted 15 October 2024) ABSTRACT. Some policies are paternalistic and discriminatory at the same time (e.g., certain benevolent sexist policies). Such policies constitute an interesting, yet somewhat overlooked, category. We scrutinize what paternalistic discrimination is and account for its wrongness. First, we argue that paternalistic discrimination is pro tanto wrong because it is disrespectful. The disrespect consists in the selective negligence or denial of some people’s moral power over their own good. This applies even if the policies and actions in question benefit those interfered with. Second, we show that paternalistic discrimination gives rise to a dilemma in situations where different social groups face different risks. In such situations, a choice must be made between (i) protecting people equally and (ii) respecting people’s moral power over their own good equally. Finally, we show that paternalistic discrimination in certain cases shows a lack of respect for the moral worth of the persons who are not the target of the policies. I. INTRODUCTION Discrimination is typically characterized by disadvantageous differential treatment. However – interestingly and somewhat underexplored – sometimes discriminatory practices are introduced with the particular purpose of benefiting the people that face discrimination.1 For example, governments may introduce paternalistic policies that apply only to poor citizens to promote the health of members of this group in particular.2 Other things being equal, it counts in favor of 1 Or, at least, this putative effect of the policy in question is taken to constitute a reason that speaks in favor of it amongst the relevant policymakers. 2 See Nicolas Cornell, ‘‘A Third Theory of Paternalism,’’ Michigan Law Review, 113 (2015), pp. 1295– 1336, 1326–1332. S. F. MIDTGAARD AND V. M. L. PEDERSEN such policies if they benefit those interfered with.3 At the same time, both paternalistic and discriminatory acts and practices give rise to moral concerns. Where both paternalism and discrimination have received a great deal of attention in the philosophical literature, paternalistic discrimination (i.e., acts that are both paternalistic and discriminatory) seems to be underexamined. We argue that paternalistic discrimination involves wrongs that are distinctive of paternalistic discrimination – wrongs that emerge when discrimination and paternalism interact.4 Specifically, we argue that paternalistic discrimination is pro tanto wrong towards the discriminatees (even if it makes them better off). It is so by virtue of denying the discriminatees the same moral power over self-regarding matters that others are granted. The wrongness in question cannot be accounted for solely by reference to familiar reasons for finding paternalism pro tanto wrong. Its discriminatory nature affects the moral makeup of the acts in question. To be sure, we do not argue that paternalistic discrimination is wrong all things considered. An action that does not respect different people’s moral powers over self-regarding matters equally might be justified all things considered (e.g., as we will illustrate, by a concern of protecting people’s interests equally). However, our argument informs the ethical evaluation of practices that are both paternalistic and discriminatory by highlighting a moral cost generated by these practices. Second, we argue that when the structures in society (i.e., regular patterns of social behavior) are disadvantageous for certain groups, e.g., women or people with disabilities, paternalistic discrimination 3 Of course, paternalistic discrimination may sometimes, or often, be unsuccessful and potentially do more harm than good to the potential beneficiaries. In such cases, the policies and actions will be wrong according to harm-based understandings of what makes discrimination wrong. The harm-based view suggests that the potential wrongness of a discriminatory practice is determined by its outcome: ‘‘an instance of discrimination is wrong, when it is, because it makes people worse off.’’ Kasper LippertRasmussen, Born Free and Equal (Oxford & New York: Oxford University Press, 2014), p. 154. Cf. Richard Arneson, ‘‘Egalitarianism and Responsibility,’’ Journal of Ethics, 3, 3 (1999), pp. 225–247. Still, successful paternalistic and discriminatory policies (i.e., policies that succeed in benefiting the discriminatees) are not wrongfully discriminatory because of their effects. Therefore, accounting for the wrongness of such policies involves considering, as we shall do in this paper, potential non-contingent reasons for the pro tanto moral wrongness of paternalistic discrimination. 4 As Lippert-Rasmussen explains (in his ‘‘Is discrimination wrong because it is undeserved?’’, Inquiry 2023 https://doi.org/10.1080/0020174X.2023.2186947: 4): forms of discrimination (or discrimination as such) may involve ‘‘wrongs that are distinctive of discrimination, such as widespread disadvantageous treatment based on race or gender, but the wrongs themselves, e.g. harm or disrespect, need not be distinctive.’’ Regarding the wrongs that may be distinctive of discrimination, see Niko Kolodny, The Pecking Order: Social Hierarchy as a Philosophical Problem (Cambridge, Massachusetts, and London, England, 2023), 140–144 and Chap. 13. PATERNALISTIC DISCRIMINATION will lead to a dilemma.5 On the one hand, we can try to counteract the unequal risk structures via paternalistic policies and actions, which particularly benefit disadvantaged groups. However, we will argue that there are weighty respect-based reasons for not allowing certain group’s (e.g., women’s or people with disabilities’) lives to be comparatively more restricted by unequal risk structures regardless of the potential welfare-enhancing outcomes of the measures. On the other hand, we can refrain from pursuing policies and actions that are paternalistically discriminatory, which implies an acceptance that the structures will lead to unequal outcomes for different groups. Our article is organized in the following manner. In Sect. ‘‘Paternalistic Discrimination,’’ we introduce the concept of paternalistic discrimination. We propose a definition of paternalistic discrimination – and distinguish between direct and indirect forms of paternalistic discrimination. In Sect. ‘‘The Wrongness of Direct Paternalistic Discrimination,’’ we put forward our account of why direct paternalistic discrimination is pro tanto wrong: it manifests comparative disrespect of the discriminatees’ moral power over their own interests, good or wellbeing. In Sect. ‘‘A Dilemma of Paternalistic Discrimination,’’ we present the dilemma of paternalistic discrimination. In Sect. ‘‘What about the non-beneficiaries?,’’ we briefly shift focus to consider how paterna (...truncated)