The Wrongs of Unequal Treatment

AuthorSophia Moreau
Pages31-71
one
e Wrongs of Unequal Treatment
Sophia Moreau
A. INTRODUCTION
Over the past twenty years, analytic phi losophers in the United States and
England have devoted extensive thought to the dierent reasons we have
for valuing equality — and, relatedly, to the dierent ways in which we can
conceptualize the wrong or wrongs done to individuals when the state does
not treat them as equal s. However, neither Canadian lega l academics nor
Canadian courts have made extensive use of this literature in interpreting
the equality provisions of the Canadi an Charter of Rights and Freedoms.
ere are a number of good reasons why one might expect this philosophi-
cal literature to remain somewhat remote from Canadian legal debates.
One reason is that philosophers have tended to approach the question
of what kind of equality matters as an inquiry into which system of general
principles for the distribution of resources should guide leg islatures in the
design of particula r policies. Since a court ca nnot unproblematically as-
sume that it is either institutionally competent to make judgments about
the most appropriate general distributive principles, or possessed of the in-
stitutional mandate to do so, these philosophical discussions can seem of
little relevance to a court’s task of interpreting constitutionalized equality
rights. Furthermore, philosophers have tended to focus on the distribution
of goods that can be privately owned, such as income and real property. Al-
though this is usual ly done only for ease of illustration, the result has been
that their work oen lacks explicit discussion of claims for t he equal avail-

     
ability of goods that are not privately appropriable — for instance, access to
public spaces that have been designed in such a way that everyone can move
easily through them, or the freedom to present one’s relationship in public
as involving t he most extensive kind of commitment that our society rec-
ognizes. Yet it is very oen these sorts of goo ds that claimants in equality
rights cases have been denied. Finally, and most importantly, philosophical
discussions have tended to assume — either implicitly or, as in the case of
Ronald Dworkin, quite explicitly — that questions concerning the just dis-
tribution of resources ca n be pursued without broaching questions about
the just distribution of political and social power. Consequently, prior to
the work of Elizabeth Anderson, and more recently, Samuel Scheer, most
philosophers did not concern themselves directly w ith inequalities in the
distribution of political or so cial power, or with how to conceptualize the
wrong that is done by institutional structures and policies t hat stigmatize
individuals, margi nalize them, or perpetuate their domination by others.
e latter question is of course of particular relevance to Canadian
equality jurisprudence, g iven that the Supreme Court of Canada ha s con-
strued the protection oered by section  of the Charter as limited to
those forms of unequal treatment that involve “discrimi nation. Indeed,
for th is reason, it might be thought that any more general discussion of
inequality could have only limited relevance, if any, to Canadian equalit y
jurisprudence. However, if we are to dene discrimination broadly enough
to include not only intentional discrim ination but also what has come to
be called “adverse eec ts discr imination” — that is, discrimi nation that
merits the name not b ecause some have deliberately been denied a benet
out of malice or prejudice but because, under the circumstances, even the
unintended eect of depriving these people of this particular benet is
unfair to them — then it seems we must understand discrimination, quite
generally, a s “depriving some of a benet available to others, in ci rcum-
stances where this treatment is unfai r to them.” But, of course, thi s is just
the most general cha racterization that philosophers defending some form
of equality would give of the kind of unequal treatment that they hold to
be objectionable. No plausible theory of equality ma intains that what is
objectionable about unequal treatment is the mere fact that some individu-
als end up with more or less than others. Rather, such theories hold that
unequal treatment is objectionable when, and to the extent that, this treat-
ment is unfair. Hence, the real question for philosophers writing on equal-
ityhasbeen,whenunequaltreatmentisunfair,whatmakesitso?Or,aswe
one•  
might otherwise put it, what is the nature of the wrong or wrongs done to
individualswhenthey areunfairlytreatedunequally?isispreciselythe
question that courts and legal academics face, in interpreting the equality
rights contained in section .
As I hope this paper will show, the philosophical literature on equality
can help us answer this question, in spite of the dierences in focus and
context noted above. We can learn, in particular, from some of the concep-
tual d istinctions that have been drawn in the philosophical literature be-
tween various ways of understanding the wrong that is done to individuals
when the state unfairly treats them unequally. I shal l begin by separating
out one abstract conception of this wrong and four more specic, substan-
tive conceptions of the wrong, and I shall suggest that all of them can be
found in Canadia n equality jurisprudence. As my discussion will sug gest,
these dierent conceptions of the wrong are not reducible to a single , uni-
fying explanation; that is, there is no one factor that all of them can be un-
derstood as invoking as the source of the wrong. Assuming that all of them
are plausible conceptions of the wrong, it follows that there is no sing le
type of wrong present in all cases of unfairly unequal treatment. ere is,
rather, a variety of wrongs , each irreducible to the others. But a g iven case
may involve more than one of these wrongs.
With this theoretical basis in place, I sha ll turn to consideration of the
test laid down by the Supreme Court in Law v. Canada for v iolations of
section (). I shall argue that, at least in its current form, this test fai ls
to separate out these dierent conceptions of the wrong, a nd that this has
rendered it both conceptually problematic and less able to recognize as dis-
criminatory certain insta nces in which the claimant has indeed suered
one or more of the wrongs I have discusse d. In conclusion, I shal l explore
several ways in which Law nevertheless leaves us room to maneuver in seek-
ing a new approach to section , one that would acknowledge the distinct-
ness of the various ways in which unequal treatment can wrong individuals,
and would therefore place courts in a better position both to identify these
wrongs and to decide whether section  is indeed rightly construed a s of-
fering protection against all of them.
B. AN ABSTRACT CONCEPTION OF THE WRONG
Regardless of how we conceive of the w rong that is done to individuals by
unfair unequal treatment (for brevity’s sake, I shall presuppose the quali-

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT