Inverse discrimination.
Is it a sin to be white? Is it wrong to have blue eyes? Is it against human value to train and be fit? A few days ago I was put again under a situation that left me thinking. As one of the editors for a journal in a particular science, it was time to select the pieces of writing that were going to be part of this year’s edition. When we realized, there were many proposals in regard different topics. However, one or two were topics not covered at all with the exception of one essay. This particular essay was not good either in terms of contents or formal aspects (e.g. grammar, quotes). To my surprise, the head of the journal proposed to include this writing in this year’s edition and omit other proposals –firstly selected due to their highest standards- because of the fact there were no other papers presented in that specific field. I understood this decision as inverse discrimination and didn’t accept the idea. In the end, the article isn’t going to be present in the next edition of the journal.
The above story is only one of the many examples I had to go through in the recent years. Because of regulations in UK, every time you apply for any position you have to complete and equal opportunities’ form stating your gender, age group, ethnic origin, religion and even sexual preference! Is it a plus then if I were a black lesbian girl with any disability?
Without sounding racist –that isn’t the intention at all- it feels that many people are left without chances just because nowadays they don’t belong to any minority. What before was racism, today is inverse discrimination.
If you’ve worked hard all your life and saved money to have a good car or a big house or expensive holidays, it seems you should share your standards of living with those who didn’t make it. And people in higher spheres support this way of thinking with theories of distributive justice –people that have millions of pounds, american dollars or euros or all of them- and are not willing to distribute their fortunes. To be clear: one thing is to help those in need that don’t have the opportunity to improve their relative position due to their personal circumstances (e.g. disability) or the place where they live (e.g. dictatorships) and another thing is not to push yourself further and intend others to do it for you! To this latter group, no distributive justice should be even considered. If you don’t work hard, why those who do it should make the effort for them?
In brief, if someone is better at something that someone should be in a better position when applying for a job, competing in any sport, applying for a scholarship or intending to publish an article. If they aren’t good enough, c’est la vi. However, to use any other excuse to jump the queue or to use other people’s effort is simply cheating. We’re all different and that’s how we grow, from these differences. Why should we all be the same? We’re free beings with the ability to think, to dream, to do. Don’t let anyone take you an opportunity because you’re white or black, straight or gay, part of a majority or a minority. If you’re better at something, you’re. There’s nothing to be ashamed of. There’s nothing to compensate. Because to be different is fine. However, it isn’t fine to use that difference in order to improve your relative position if that has nothing to do with the situation (i.e. I receive the scholarship even though my average is low in comparison to others only because I’m LatinAmerican).
To distribute justly one must be fair. In order to be fair, differences must be acknowledged and respected. Thus, these differences ought not to be considered in circumstances in which they don’t make any difference.
Sunday 12 February 2012
Friday 10 February 2012
Kant
In order to understand Kant’s way of thinking we have to remember that although it may seem important what we ought to do due to a rule or norm, it is more what we have to do according to intrinsic elements. “A good will is not good because of what it effects or accomplishes […] that is, good in itself ”. For instance, when we decide not to harm or steal someone it should not be because we would otherwise receive a sanction but because we know that actions are by all means wrong: “[…] its true function must be to produce a will which is good; not as a means to some further end, but in itself […] ”.
Of course here Kant is developing his ideas in two levels: law and moral. One prerequisite to analyze any possible situation is that the actions carried out by the subject must be autonomous. “Autonomy of the will is the sole principle of all moral laws and of the duties conforming them; any heteronomy of the power of choice, on the other hand, not only is no basis for any obligation at all but is, rather, opposed to the principle of obligation and to the morality of the will ”.
The problem of freedom will be present throughout his work (as we shall see). “The will is a kind of causality belonging to living beings in so far as they are rational, and freedom would be this property of such causality that it can be efficient ”. We can classify the causes in necessary and efficient. Necessary causes are all the ones needed in order to obtain a final result (i.e.: each and every subject within the career of law to achieve a law degree); efficient cause is the outcome itself (i.e.: in the example given, the degree).
From the above we can follow that “[…] we must attribute to every rational being which has will that is has also the idea of freedom and acts entirely under this idea ”. In other words, so to have a subject morally and legally speaking acting in any of these normative spheres it is a necessary condition that he is a rational being with understanding of his/her actions and omissions and his/her will is free from any external constriction.
In Kant’s own words: “I must regard itself as the author of its principles independent on foreign influences. Consequently as practical reason or as the will of a rational being it must regards itself as free, that is to say, the will of such a being cannot be a will of its own except under the idea of freedom ”.
The author includes at this point the notion of duty: but not as a legal obligation that prescribes the way the rational beings have to behave under certain circumstances. His concept of duty is intimate linked with the idea of freedom already explained. He “[…] therefore take[s] up the concept of duty, which includes that of a good will, exposed, however, to certain subjective limitations and obstacles. […] [T]he greater part of mankind […] protect their lives in conformity with duty, but not from the motive of duty ”.
As it may well seem a word game, it is not within his theory and will be key for the understanding of his later developments. Every single action and/or omission may have legal and/or moral consequences. Once again he asks us to separate the act/omission itself from the outcome: “[a]n action done from duty has its moral worth, not in the purpose to be attained by it, but in he maxim according with which it is decided upon; it depends therefore, not on the realisation of the object of the action, but solely on he principle of volition in accordance with which, irrespective of al objects of the faculty of desire, the action has been performed ”.
Do you behave rightly because you know is right or in order to avoid something?
Quotes from Kant, Immanuel (1976), The moral law, translated by H. J. Paton, Hutchinson of London; Kant, Immanuel, Critique of practical reason (2002), translated by W. S. Pluhar, , Hackett Publishing Company Inc., Indianapolis/Cambridge; Kant, Immanuel, Selections (1929), edited by T. Meyer Greene, London, Charles Scribner’s Sons Ltd., 1929.
Of course here Kant is developing his ideas in two levels: law and moral. One prerequisite to analyze any possible situation is that the actions carried out by the subject must be autonomous. “Autonomy of the will is the sole principle of all moral laws and of the duties conforming them; any heteronomy of the power of choice, on the other hand, not only is no basis for any obligation at all but is, rather, opposed to the principle of obligation and to the morality of the will ”.
The problem of freedom will be present throughout his work (as we shall see). “The will is a kind of causality belonging to living beings in so far as they are rational, and freedom would be this property of such causality that it can be efficient ”. We can classify the causes in necessary and efficient. Necessary causes are all the ones needed in order to obtain a final result (i.e.: each and every subject within the career of law to achieve a law degree); efficient cause is the outcome itself (i.e.: in the example given, the degree).
From the above we can follow that “[…] we must attribute to every rational being which has will that is has also the idea of freedom and acts entirely under this idea ”. In other words, so to have a subject morally and legally speaking acting in any of these normative spheres it is a necessary condition that he is a rational being with understanding of his/her actions and omissions and his/her will is free from any external constriction.
In Kant’s own words: “I must regard itself as the author of its principles independent on foreign influences. Consequently as practical reason or as the will of a rational being it must regards itself as free, that is to say, the will of such a being cannot be a will of its own except under the idea of freedom ”.
The author includes at this point the notion of duty: but not as a legal obligation that prescribes the way the rational beings have to behave under certain circumstances. His concept of duty is intimate linked with the idea of freedom already explained. He “[…] therefore take[s] up the concept of duty, which includes that of a good will, exposed, however, to certain subjective limitations and obstacles. […] [T]he greater part of mankind […] protect their lives in conformity with duty, but not from the motive of duty ”.
As it may well seem a word game, it is not within his theory and will be key for the understanding of his later developments. Every single action and/or omission may have legal and/or moral consequences. Once again he asks us to separate the act/omission itself from the outcome: “[a]n action done from duty has its moral worth, not in the purpose to be attained by it, but in he maxim according with which it is decided upon; it depends therefore, not on the realisation of the object of the action, but solely on he principle of volition in accordance with which, irrespective of al objects of the faculty of desire, the action has been performed ”.
Do you behave rightly because you know is right or in order to avoid something?
Quotes from Kant, Immanuel (1976), The moral law, translated by H. J. Paton, Hutchinson of London; Kant, Immanuel, Critique of practical reason (2002), translated by W. S. Pluhar, , Hackett Publishing Company Inc., Indianapolis/Cambridge; Kant, Immanuel, Selections (1929), edited by T. Meyer Greene, London, Charles Scribner’s Sons Ltd., 1929.
Shared sovereignty over Falkland islands
There have been and are several worldwide attempts of a global organization from a legal, social, economic, etc. point of view. The best example is still the European Union. We also have other similar intents in Asia (ASEAN), South America (MERCOSUR), Africa (OUA or UA), America (OAS) to name a few.
We could go into detail and revise each of them and their structure. However, we do not need to know much about them so to realize that they are in each and every case regional organizations. Although the European Union could be considered as the most evolved of them from a legal and economic point of view, it is still regional.
The globalization process started a while ago. People that are not longer nationals of a State but citizens of the world are no longer an exception. Cities as London and New York and countries as England are the best paradigms. The latter provides a key example at this point: the archbishop of Canterbury raised controversy in February 2008 by suggesting that the United Kingdom had to consider allowing Muslims to decide disputes under Sharia by creating ‘plural jurisdiction’.
In brief, we do have international organizations and what we may call super States. Is that enough to be referring to the phenomenon of globalization? It is not. In order to have a real exercise on the issue we would without doubt ask at least interference between different territories, cultures, religions, legal systems, etc. from different points in the world.
The Falkland/Malvinas islands offer an excellent base to depart. Their territory has been disputed between Argentina and the United Kingdom for almost 200 years. With a population of about 2900 inhabitants, they have also territory, legal system and a government (currently under British legal hierarchy).
Without entering here into the historical references about the dispute between Argentina and the United Kingdom we shall discuss now the actual elements that we consider interesting for a case study. We have all the necessary requisites to be dealing with the notion of State and dual sovereignty at the same time: two sovereign States and one common territory under international dispute. Moreover (and that is one of the most important factors) the two involved States are in two different continents and both are part of different regional organizations.
We shall now detail the key factors we find following our notion of State within the frame of the case study under revision.
Having defined State as a group of people (population) located in a certain land (territory) ruled by the same authority (government) under the same norms (law) we have:
a) population: the Argentinean citizens; the British citizens; the islanders (currently, British citizens). In the hypothetical case we had dual sovereignty over the islands, the only ones affected would be the islanders. In that case, they would have to be granted dual nationality (Argentinean-British) with the implication of having the same rights and obligations any of the formers have in their States. There are several cases worldwide with citizens having more than one nationality. Even Argentina and the United Kingdom are good examples of this phenomenon.
b) territory: physically the territory would be exactly the same as nowadays. The difference would be that Argentina and the United Kingdom would share the sovereignty over the land and the maritime. There would be an overlap of sovereignty so it would be necessary to negotiate between both parties the geographical limits of the maritime space and its exploitation as well as the exploitation of the land.
c) government: the administrative authorities of the islands could perfectly continue their activities. They are currently following British procedures so if it was more beneficial for the islanders to continue with them that should not be an obstacle. The difference could arise with the following element (law) in matters of justice, appeals (jurisdictional and administrative, etc.).
d) law: as Kelsen would suggest, we would have two different legal structures or systems of norms: the Argentinean law and the British law. Without analyzing them in detail so to establish if they are similar or diverse, we have in any case two groups of sovereign norms.
Under this theoretical dilemma we visualize two options: 1) the creation of a third system of norms that coordinate the Argentinean and the British legal systems in cases in which the islanders are the subjects or issues occurred within the islands territory; b) to leave the decision to the interpretation of the Judge in each case in any branch of law.
What about the appeal cases? Which one would be the ultimate authority: the Higher Court in Argentina or in the United Kingdom?
The elements to start working are there. The theories to support the enterprise are there. The population of the three international agents is there. What are the governments waiting for then?
We could go into detail and revise each of them and their structure. However, we do not need to know much about them so to realize that they are in each and every case regional organizations. Although the European Union could be considered as the most evolved of them from a legal and economic point of view, it is still regional.
The globalization process started a while ago. People that are not longer nationals of a State but citizens of the world are no longer an exception. Cities as London and New York and countries as England are the best paradigms. The latter provides a key example at this point: the archbishop of Canterbury raised controversy in February 2008 by suggesting that the United Kingdom had to consider allowing Muslims to decide disputes under Sharia by creating ‘plural jurisdiction’.
In brief, we do have international organizations and what we may call super States. Is that enough to be referring to the phenomenon of globalization? It is not. In order to have a real exercise on the issue we would without doubt ask at least interference between different territories, cultures, religions, legal systems, etc. from different points in the world.
The Falkland/Malvinas islands offer an excellent base to depart. Their territory has been disputed between Argentina and the United Kingdom for almost 200 years. With a population of about 2900 inhabitants, they have also territory, legal system and a government (currently under British legal hierarchy).
Without entering here into the historical references about the dispute between Argentina and the United Kingdom we shall discuss now the actual elements that we consider interesting for a case study. We have all the necessary requisites to be dealing with the notion of State and dual sovereignty at the same time: two sovereign States and one common territory under international dispute. Moreover (and that is one of the most important factors) the two involved States are in two different continents and both are part of different regional organizations.
We shall now detail the key factors we find following our notion of State within the frame of the case study under revision.
Having defined State as a group of people (population) located in a certain land (territory) ruled by the same authority (government) under the same norms (law) we have:
a) population: the Argentinean citizens; the British citizens; the islanders (currently, British citizens). In the hypothetical case we had dual sovereignty over the islands, the only ones affected would be the islanders. In that case, they would have to be granted dual nationality (Argentinean-British) with the implication of having the same rights and obligations any of the formers have in their States. There are several cases worldwide with citizens having more than one nationality. Even Argentina and the United Kingdom are good examples of this phenomenon.
b) territory: physically the territory would be exactly the same as nowadays. The difference would be that Argentina and the United Kingdom would share the sovereignty over the land and the maritime. There would be an overlap of sovereignty so it would be necessary to negotiate between both parties the geographical limits of the maritime space and its exploitation as well as the exploitation of the land.
c) government: the administrative authorities of the islands could perfectly continue their activities. They are currently following British procedures so if it was more beneficial for the islanders to continue with them that should not be an obstacle. The difference could arise with the following element (law) in matters of justice, appeals (jurisdictional and administrative, etc.).
d) law: as Kelsen would suggest, we would have two different legal structures or systems of norms: the Argentinean law and the British law. Without analyzing them in detail so to establish if they are similar or diverse, we have in any case two groups of sovereign norms.
Under this theoretical dilemma we visualize two options: 1) the creation of a third system of norms that coordinate the Argentinean and the British legal systems in cases in which the islanders are the subjects or issues occurred within the islands territory; b) to leave the decision to the interpretation of the Judge in each case in any branch of law.
What about the appeal cases? Which one would be the ultimate authority: the Higher Court in Argentina or in the United Kingdom?
The elements to start working are there. The theories to support the enterprise are there. The population of the three international agents is there. What are the governments waiting for then?
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