Harmless Discrimination, Wrongs, and Rules
Law & Philosophy, forthcoming
20 Pages Posted: 19 May 2023
Date Written: May 8, 2023
Discrimination is often tremendously harmful. But cases of harmless, yet morally wrongful discrimination suggest that there are factors that make discrimination wrong other than its harmfulness. This article analyzes three views that resist this conclusion and poses some challenges for each. The first view appeals to unnoticed forms of harm in cases of harmless discrimination. But it counterintuitively entails that discriminatory acts are morally wrong by definition. The second view holds that harmless discrimination is made wrong by how its perpetrator wrongs the victim by disrespecting her moral status without setting back her wellbeing. But it is unclear how impermissibly wronging a person is different from unjustifiably harming her. The third view holds that, even if discriminatory acts can be made wrong by factors other than harm, they ought to be prohibited by a legal rule whose sole justification is that it prevents harm. But there may be reasons for legally prohibiting discriminatory acts other than harm prevention.
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