Rights and, er, other rights
Feb. 3rd, 2010 05:37 pm![[personal profile]](https://www.dreamwidth.org/img/silk/identity/user.png){kind=small}
mirrorshardSimon Jenkins has been grumping about rights again, starting with Pope Benedict and moving on to Harriet Harman.
Obviously, Jenkins has an internally consistent view, but where he falls down - in my opinion - is in the basic principle that some people Have Rights To Do Things, and other people Try To Stop Them[1].
This is quite a naive model of rights, and it's rather more complicated than that; we all have intersecting, overlapping, and occasionally opposing rights. In the first case he discusses, the Catholic organizations have the right to decide their own hiring policies, but the employees have the right not to be discriminated against (and not to be pressured either to reveal or to conceal their orientation) and the people they serve, many of whom are also homosexual, have the right to be served by people who will understand and not discriminate against them.
(NB: I'm using "right" in a moral rather than a legal sense here, with the attendant fuzziness, ambiguity, and imprecision. This fuzziness, ambiguity, and imprecision is a feature not a bug.)
So, this situation is inevitable; there are basically two ways for it to be dealt with.
First, no interference, which is to say whoever's got the power makes the rules. Except in very rare cases, employment is a buyer's market, and in cases like this with long-established policies of discrimination it's even more so. The prospective employee has no leverage. The problem with this sort of entrenched power situation is that it will inevitably amplify itself, further increasing and solidifying the inequality in power relations, because that's what capitalistic setups do.
The other is for an outside body to arbitrate, and to judge which right is more important. It can - will - do this on whatever grounds it likes, without necessarily making reference to the internal logic either party uses to justify its arguments. At the moment, the government is doing this. It's making decisions based on a number of factors, including harm to the people involved; harm to the organisations involved; satisfying its own obligations under domestic and EU law; and its own reputation.
What the government isn't doing, on the other hand, is either serving or opposing anyone else's agenda. It isn't a case of considering one party's actions and either permitting or denying them; instead, they're balancing two requests-to-carry-on and deciding which one will do less harm and be more socially useful.
[1] And the bit where he drifts off into frothing hatred of Harriet Harman and all her works, obviously.
Obviously, Jenkins has an internally consistent view, but where he falls down - in my opinion - is in the basic principle that some people Have Rights To Do Things, and other people Try To Stop Them[1].
This is quite a naive model of rights, and it's rather more complicated than that; we all have intersecting, overlapping, and occasionally opposing rights. In the first case he discusses, the Catholic organizations have the right to decide their own hiring policies, but the employees have the right not to be discriminated against (and not to be pressured either to reveal or to conceal their orientation) and the people they serve, many of whom are also homosexual, have the right to be served by people who will understand and not discriminate against them.
(NB: I'm using "right" in a moral rather than a legal sense here, with the attendant fuzziness, ambiguity, and imprecision. This fuzziness, ambiguity, and imprecision is a feature not a bug.)
So, this situation is inevitable; there are basically two ways for it to be dealt with.
First, no interference, which is to say whoever's got the power makes the rules. Except in very rare cases, employment is a buyer's market, and in cases like this with long-established policies of discrimination it's even more so. The prospective employee has no leverage. The problem with this sort of entrenched power situation is that it will inevitably amplify itself, further increasing and solidifying the inequality in power relations, because that's what capitalistic setups do.
The other is for an outside body to arbitrate, and to judge which right is more important. It can - will - do this on whatever grounds it likes, without necessarily making reference to the internal logic either party uses to justify its arguments. At the moment, the government is doing this. It's making decisions based on a number of factors, including harm to the people involved; harm to the organisations involved; satisfying its own obligations under domestic and EU law; and its own reputation.
What the government isn't doing, on the other hand, is either serving or opposing anyone else's agenda. It isn't a case of considering one party's actions and either permitting or denying them; instead, they're balancing two requests-to-carry-on and deciding which one will do less harm and be more socially useful.
[1] And the bit where he drifts off into frothing hatred of Harriet Harman and all her works, obviously.
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no subject
Date: 2010-02-03 05:56 pm (UTC)I think I'd say that that situations where the prospective employee has no leverage are problematic in themselves, regardless of whether it exacerbates the power situation as is. But other than that, I completely agree.
This fuzziness, ambiguity, and imprecision is a feature not a bug.
*grins*
no subject
Date: 2010-02-03 06:23 pm (UTC)Ugh. How sexist. I really hate polemical articles which use words describing women's high voices to imply that we're irrational, stupid or hysterical.
And the comparison to St Theresa's bones is really dumb: venerating relics doesn't hurt anyone in the way that denying them a job does.
On the other hand, "The ailing Catholic church, like most hallowed institutions, does much good work, and it does bad" is one of the most sensible things I've seen written in a newspaper about Catholicism for a long time.
no subject
Date: 2010-02-04 10:33 am (UTC)The way Jenkins is using the word 'rights' in the article is still moral, but it's a deontological moral system being applied. There are things that are Correct, and they are always Correct regardless of the negative outcome. Your characterization of rights as balance is consequentialist (the view I'd personally defend), seeing two things as wrongs (right to discriminate in one's own hiring policy vs right to employment and non-discriminatory treatment) which must be balanced, not because either must be judged the Correct thing to do, but because of a recgognition that one causes more harm and so must be prevented using the power of the state.
However, Jenkins defeats his own argument when he says an opinion's practice should be allowed "within the customary limits of reasonableness." Custom changes. What custom and society defines as reasonable therefore also changes. Where it once was fine to discriminate against homosexuals, blacks, women, the disabled, ordinary and commonplace even, it now isn't reasonable in the slightest. Appeal to custom is, of crouse, shorthand for appeal to 'leave us the hell alone', but putting it in such conservative terms doesn't appeal to Jenkin's intended targe audience.
I like the comment: "Substitute the words Catholic Church and homosexuals in this article for Taliban and women and then see if you still can defend these views." Because I think it highlights exactly what is wrong with Jenkin's argument - the deontological rule set he's using is a faulty one, because its premise isn't 'leave them, whoever they are, have their religion' it's 'this is the way WE do things, shove off'.