Law and Philosophy (2013) 32: 347–352 DOI 10.1007/s10982-013-9180-7

Ó Springer Science+Business Media Dordrecht 2013

BOOK REVIEW Review of David Boonin, Should Race Matter? Unusual Answers to the Usual Questions (New York: Cambridge University Press, 2011). In David Boonin’s Should Race Matter? Unusual Answers to the Usual Questions, Boonin addresses some of the most controversial racepolicies.1 Specifically, he addresses reparations for slavery, affirmative action, hate-speech penalties, hate-crime laws, and racial profiling. Boonin treats each policy separately, and other than a unified normative-ethical approach, there is no theme that unifies his conclusions about each of the policies. The book is excellent and, with one possible exception, the best discussion of these topics in philosophy or law.2 Like his earlier work on punishment and abortion, Boonin’s analyses are razor sharp, accessible, and interesting.3 In Chapters 2 and 3, Boonin begins by finding that AfricanAmericans have a legitimate claim to reparations. His argument consists of a defense of these five steps. Step #1: Compensation Principle. If a government wrongfully harms someone as a result of the authorized actions of some of its public officials, then it incurs a moral obligation to compensate its victim for the harms that it has wrongfully caused. Step #2: Historical Claim. In the past, the U.S. government wrongfully harmed previous generations of Africans and African-Americans by supporting the institution of slavery and subsequent forms of legalized segregation and discrimination. Step #3: Causal Claim. The acts by which the U.S. government wrongfully harmed previous generations of Africans and African-Americans by supporting the institution of slavery and subsequent forms of legalized 1 See David Boonin, Should Race Matter? Unusual Answers to the Usual Questions (New York: Cambridge University Press, 2011). 2 The possible exception is Michael Levin, Why Race Matters: Race Differences and What They Mean (Westport: Praeger, 1997). 3 See David Boonin, The Problem of Punishment (New York: Cambridge University Press, 2008) and David Boonin, A Defense of Abortion (New York: Cambridge University Press, 2002).

348

BOOK REVIEW

segregation and discrimination in the past continue to cause harmful consequences to the currently living generation of black Americans today. Step #4: Surviving Public Obligation Principle. If a government incurs a moral obligation as a result of unauthorized actions of some of its public officials, then this obligation doesn’t cease to exist when the officials in question die. Step #5: Unpaid Balance Claim. The U.S. government has not yet fully compensated the currently living generation of black Americans for the harmful consequences they continue to incur as a result of slavery and its aftermath.

In Chapters 4 and 5, Boonin finds that race-based affirmative action is morally permissible, but not obligatory. His argument rests on two steps. First, geography-based affirmative action is permissible, but not obligatory. Second, race-based affirmative action is morally on a par with geography-based affirmative action. He qualifies this by noting that some institutions might have an obligation to practice affirmative action or not do so. Also, he notes that while it is morally optional, it is still possible that affirmative action is good or bad. In Chapters 6 and 7, Boonin argues against hate speech restrictions. His argument is that such restrictions restrict people from saying certain sorts of things. He argues that it is morally objectionable to prohibit people from saying certain sorts of things unless there’s a sufficiently good reason for the prohibition and there is not a sufficiently good reason for the prohibitions enacted by hate speech restrictions in either the legal or the academic context. In Chapters 8 and 9, Boonin’s argument for punishing hate crimes consists of the following premises: hate crimes are worse than the same crime without the hate, and if one crime is worse than a second, then the first should receive a more severe punishment. He argues that hate crimes are worse than the same crime without the hate because they cause more harm and because they are done with a worse state of mind. The claim about more harm rests in part on common sense and in part on empirical data. Both common sense and empirical data relate in part to harmful effects on third parties. In Chapter 10, Boonin argues that racial profiling is morally permissible because it is rational and does not infringe a moral

BOOK REVIEW

349

constraint. The claim that racial profiling is rational in turn rests on two premises. First, members of some races are more likely, on average, to commit certain kinds of criminal offenses than are members of other races. Second, it is rational for police departments to adopt those policies that will enable them to apprehend a larger number of offenders. The book is excellent, but in the end the arguments do not succeed. Consider first his argument on reparations for slavery.4 The non-existence problem to the argument for reparations states that slavery affected patterns of reproduction. Because of this, many slaves and their descendants would not exist but for slavery. That is, slavery caused them to exist. Assuming their lives have positive value (better than non-existence), slavery therefore benefited them. Boonin thus needs to argue that the descendants of slaves received the slaves’ claim to compensation. Specifically, he needs to explain why they inherited it or may act on behalf on the slaves (by analogy, consider trustees to estates). He does not provide such an explanation. Boonin responds that the state’s failure to remedy the subsequent effects of slavery and oppression do not fall prey to the non-existence problem.5 This response is unconvincing. First, many oppressive measures in the twentieth century (for example, discrimination and bad schools) affected reproduction patterns. In addition, they make it hard to estimate the degree of damages. Second, the more recent harms that survive the non-existence problems were done by private parties and by state and local governments, not the federal government. Hence, this shifts the focus because Chapter 2 focuses on what the federal government owes. Boonin asserts that the federal government has a special obligation to protect its citizens presumably from wrongdoing by private individuals and local governments.6 This is problematic. It is hard to see the moral argument for this claim. It is not obviously wrong to have a central government with a different area of sovereignty than the states. Also, failure to protect is different from commission of 4

See Boonin, Should Race Matter? Unusual Answers to the Usual Questions, Chaps. 2 and 3. See Boonin, pp. 106–112. 6 This is implicit in Boonin, Chaps. 2 and 3 because the enslavement and later injustices were done by private parties rather than the federal government and, on Boonin’s account, the acts still give rise to a claim to compensation. 5

350

BOOK REVIEW

wrongful harm. The latter does not give rise to a claim to compensation in a straightforward manner. Third, Boonin also does not address many of the problems with the compensation-counterfactuals that are central to the compensation claim.7 First, how much of the debt has been paid off already via affirmative action and disproportionately filling government jobs with blacks? If blacks are doing better than how they would in the absence of slavery and past discrimination because of government benefits, then it is not clear if further compensation is owed. Boonin needs to consider whether blacks occupy more professional roles or have more income than they would have but for past discrimination. This might come about if we discovered that affirmative action was widely applied or that large numbers were hired by the government and it pays a lot more than the private sector. I take no position here on whether either disjunct is true. Boonin does not provide empirical evidence against the disjunction. Further issues arise regarding the counterfactual of how much compensation current African-Americans would be owed were the claim to compensation passed down to them. Consider when a slave owner mistreats slave A. A has 10 sons. Do they each inherit 1/10 of his claim? If they each have three children, does each one inherit 1/30th of the claim? Third, if Slave A was fully compensated and gave his money to son B, there is some likelihood that B would have spent all the money and not left any of it for his son. Is this probability relevant? Fourth, should the claim that is owed be increased by the inflation rate, interest rate, or stock-market rate? More importantly, how in principle does one answer this question? Fifth, imagine the country can afford to fully compensate Native Americans or blacks but not both. Is this relevant? Again, Boonin is silent on these matters. In general, problems with the relevant compensation-counterfactuals undermine our ability to gauge the amount of compensation owed. Similarly, because no one knows how much of the blackwhite gap is due to genetics or African cultural influence or other factors, judging the amount of the black-white gap due to slavery and subsequent oppression is nearly impossible. When paid via tax 7 These objections can be seen in Stephen Kershnar, ‘The Inheritance-Based Claim to Reparations’, Legal Theory 8 (2002): 243–267 and Stephen Kershnar, ‘Reparations for Slavery and Justice’, University of Memphis Law Review 33 (2003): 278–306.

BOOK REVIEW

351

dollars, both unwarranted compensation and unpaid compensatory debts are unjust. Hence, when it is murky whether or to what extent compensation is owed, compensatory justice pulls us in two directions. Boonin’s affirmative-action argument misses what is, in my view, the strongest argument against affirmative action. Boonin’s argument fails if affirmative action conflicts with the responsibilities of states and their publicly funded institutions. Here is the argument as it relates to the responsibilities of a publicly funded, state professional school (for example, the University of Michigan Law School). (P1) Publicly funded professional schools have a responsibility to maximally promote the interests of citizens. (P2) If publicly funded professional schools have a responsibility to maximally promote the interests of citizens, then they have a duty not to admit or hire people when doing so fails to maximally promote the interests of students. (C1) Hence, publicly funded professional schools have a duty not to admit or hire people when doing so fails to maximally promote the interests of citizens. [(P1), (P2)] (P3) Affirmative-action admissions or hiring by publicly funded professional schools does not maximally promote the citizens’ interest. (C2) Hence, publicly funded professional schools have a duty to avoid affirmative-action hiring or admissions. [(C1), (P3)]

Premise (P1) rests in part on the notion that publicly funded professional schools exist in order to provide professional services to the citizenry. This in turn is likely a means by which they aim to maximize the good or their aggregate welfare. These purposes go some way towards explaining the favoritism given to state residents and the emphasis on admitting the best students, since these things increase the amount and quality of professional services that will go to the citizenry. Premises (P1) and (P2) rest on the notion that the most plausible justifications for the state and its institutions and practices are closely related to the maximization of welfare or the good. These justifications are that the state or some feature of it has been consented to, is required by a duty of fair play, or maximizes the good.

352

BOOK REVIEW

In support of (P3), consider that Boonin fails to provide a convincing response to a cost-benefit argument. This argument states that affirmative action produces costs that are not outweighed by its benefits. By analogy, consider a wealthy country that hires non-doctors to practice medicine, do surgery, diagnose cancer, etc. As a result, many people suffer or die unnecessarily. It might be true, and probably is, that the benefits of such hiring do not outweigh its costs. Hiring weakly qualified doctors arguably has the same effects, but to a lesser degree. Perhaps there are benefits to affirmative action that outweigh the costs (for example, misdiagnoses, botched surgeries, and avoidable murders and rapes). At the very least, affirmative-action defenders, or those such as Boonin who defend the permissibility of affirmative action, need to provide evidence that the benefits exist and are sufficiently weighty. He does not do so. Boonin might respond that the defense of the permissibility of affirmative action does not apply to state-funded institutions. His theory then survives this argument, but at the cost of being less interesting than it initially appears. For example, his theory would then not have implications for state universities in California, Texas, and Michigan, universities whose cases shaped affirmative-action law. Despite these criticisms, Boonin’s book is outstanding. It will reshape the discussion of these issues and is required reading for people doing research on race-policies. ACKNOWLEDGMENTS

I am grateful to David Boonin for his very helpful comments and criticisms of this review. State University of New York College at Fredonia, Fredonia, NY, USA E-mail: [email protected]

Stephen Kershnar