Northern Arizona University/Philosophy of Law/Research Projects Spring 2010/Shared resources on Affirmative Action

1. Ballot initiative to amend constitution of Arizona to make many affirmative action measures illegal.

http://ballotpedia.org/wiki/index.php/Arizona_Civil_Rights_Amendment_(2010)

Law and Philosophy and notes on Kant

The difference between the German (A) verstand and (B) vernunft

1) (B)Is not attached to anything in the world but is what enables man to act in accordance with supreme principles. You can’t physically see justice, but you can see its sensory manifestations. Therefore to act in the future under an idea of justice it must be independent of the outside world. Kant says this kind of faculty cannot be proved. 2) Insists that we use this B reason which is independent of the outside world (a priori) to find fundamental principles, no morality is possible without it. 3) Morality lies in the goodness of the moral motive that necessitates the action, regardless of the outcome. Categorical imperative must arise from the B reason because it demands an action regardless of the “physical world” outcome. Therefore, Its source must be a priori. 4) Kant claims that moral laws must happen because they originate in the a priori pure judgment devoid of experience, while practical rules are not of this necessity 5) Kant would call Mill an anthropologist, because he makes his moral judgments in the empirical realm 6) Free from all empirical motives (page 5) is like the veil of ignorance (Rawls). 7) Out of duty vs. in accordance with duty, aka doing it for the Duty as an end in itself versus doing it for some other reason but that action still seems to be dutiful. It has to do with the motive behind the action, once again. To act selflessly vs., selfishness. Kant says we can never be sure if an action was either one because we may think we are acting solely because it was a dutiful thing to do, but we may secretly be motivated by self love. 8) Even if we can never be sure here and now if the actions are taking (p 23 -24) place we should still strive to form principles that may not have a real world manifestation because these are arrived at a priori. 9) Examples cannot supply the basis of morality because they are brought to us as examples by our preconceived notion of what is moral...we pick it as an example because of the ideal we have in mind. In order to judge if something is a precedent setting case we must apply it to our ideal conception. These ideal conceptions must be arrived at a priori if they are to have universal appeal. (24) 10) Must start with general principles and then apply to the empirical or popular grounds. 11) The universality of a duty will be diminished when it is given more and more empirical support.

For tomorrows discussion.

Kant claims all of the above as grounds that the principle must be arrived at a priori because every example we choose to show if something is unjust or just is chosen based on these underlying principles in the first place. Therefore there must be general principles that we should focus our attention on, metaphysics.

Example: We choose the example of an under representation of minority groups in some school. This is an empirical assessment. The court may choose this as evidence that there is inequality. They must already have this general principle of equality in their mind in order to arrive at an empirical assessment that this example (under representation in schools) is an indication of equality versus inequality.

Therefore we must admit that the general principle reigns king, and that examples cannot be the source of the principle.

So, if we read the 14th amendment as a general principle then it would be prior to all empirical, example based judgments.

Procedural justice under the 14th amendment as applied to Kant’s general principle conception. The affirmative action court cases stress the fact that everyone should be treated as an individuals, based on their individual merits. So, we must use the general principle of equality during our procedural choosing time. The admissions board carries out this preceding.

This relates to Dworkin when he makes the distinction between what should be judged as a merit. He claims that when race is factored in as one of the merits, this factor is considered a merit because more racial diversity is sought for the future, rather than the common conception that affirmative action is in place to correct past injustice.

Related back to Kant: So the general principle of equality can be applied to equality for each individual to have a chance to be chosen to attend a certain school. The crux is what you choose to judge the individuals by. If race is valued as an attribute because it will correct past injustices this judgment is made on empirical grounds (an empirical eye towards the past) But if we take it as a general principle that more diversity in schools is good in and of itself then we will weigh race as a factor also. It lies in our reasons for ascribing value to race as an aspect of an individual when considering selection into a school. This is a purely procedural difference and may not change the actual outcome (Tribe). Pure procedure can adhere to general principles, but we can never know, as Kant points out weather the procedure will actually be carried out based on principles. (Notes By Chris Murtaugh)