Three ways of failing to treat others as equals: comments on Sophia Moreau's Faces of Inequality
UVA Law Faculty Affiliations
In Faces of Inequality, Sophia Moreau offers an intricate and nuanced account of the wrong of discrimination that is grounded in the real-world complaints of people who have been the victims of discrimination and the law's reaction to these wrongs. According to Moreau, actions and policies discriminate when they disadvantage some people because of a protected trait and do so wrongfully when this disadvantageous treatment fails to treat those affected as equals. The innovation of her account lies in the way she understands the idea of failing to treat others as equals. For Moreau, discrimination can fail to treat others as equals in at least three distinct ways. Discrimination can unfairly subordinate, it can infringe deliberative freedoms that a person is entitled to, and it can deny access to basic goods. She describes her account as pluralist because each of these ideas identifies a different way that a law, policy, or practice can fail to treat another as an equal.
Moreau's account is sophisticated, nuanced, and detailed. In addition, it is presented in an accessible manner using concrete examples. This style of analysis allows Moreau to speak to many audiences, including philosophers and legal scholars as well as students and citizens. In addition, this reliance of complex, real-world examples invites readers to identify where their intuitions depart from Moreau's in a way that is productive and illuminating. The book is a pleasure to read, and I learned tremendously from it.
Still, I am not fully convinced and in the balance of this commentary I will identify the places I disagree with Moreau's account. I begin with a small bit of nit-picking in which I identify where I think Moreau mischaracterises my account. My aim here is to clarify both her view and my own – not to find fault. This discussion then turns to a substantive disagreement between us, which I hope will also be clarificatory. I then move on to the heart my challenge to Moreau's view: my worry that a failure to provide basic goods and a denial of deliberative freedom both devolve into a concern about unfair subordination and so the account she offers is, at bottom, less fully pluralist that she suggests.