A working definition of “civil rights?”

On Con-Op, there’s a blog symposium going on about Danielle Citron’s really great work on gendered cyber-harassment as a civil rights issue.

Orin asks what, precisely, we mean by labeling something a civil rights issue. A discussion between me and him ensues, which is worth pulling out of the comments and reproducing separately here:

Orin:

I suppose the question is, what makes an issue a “civil rights” issue? Do we just know it when we see it? Or do we have a rigorous or working definition? Or perhaps it is a positive law issue, such that if conduct appears actionable under a statute labeled a civil rights statute, then it is a civil rights issue? I’m just not sure when the label is appropriate, or what we gain from using it.

Paul:

Here’s a working definition: something is a civil rights issue, rather than a general wrong, if it perpetuates, or is a wrong greatly facilitated or constituted by, the hierarchical position of an ascriptive (or otherwise involuntary) group that is assigned an inferior position in the aforementioned social hierarchy. That’s obviously off the cuff, but it seems about right to me and covers gendered cyber-harassment as well as the more conventionally understood civil rights problems.

Orin:

I certainly appreciate the effort, Paul. To the extent I understand your definition, though — which I’m not sure I do, to be candid — it seems really broad. Indeed, under that definition, I would think that a lot of criminal law can be considered civil rights law.

Paul:

Um, what’s not to understand? “Which I’m not sure I do, to be candid” is, to be candid, not terribly constructive in facilitating a clarification.

As for the broadness, well, some parts of criminal law probably ought to be considered civil rights law, like rape and domestic violence laws — or, at least, rape and domestic violence ought to be considered a civil rights problem. Other criminal laws address behavior that sometimes has civil rights implications, for surely gay-bashing is a civil rights issue even though ordinary assault isn’t. I’m not sure how else it’s terribly broad, once we realize we’re talking about patterns of behavior and societal subordination.

Orin:

Sorry if my uncertainty wasn’t constructive. The terms you are using are steeped in a specific ideology that I don’t share, and draw from a literature I haven’t read. As a result, understanding what you intend your definition to mean is really hard: I can make guesses at what you think it means, but they are just guesses.

Paul:

Orin, my working definition probably did rely on a little more race/feminist/etc. work than I should have assumed. But I think we can draw it out a little more. Some propositions:

1) There are certain involuntary categories of people in society who are systematically treated worse than others because of their membership in those categories: women, gay people, racial minorities, etc.

2) This systematic mistreatment comes in the form of certain repeated patterns of behavior that are associated with the identity — rapes, sexual harassment, domestic violence, gay bashing, cross-burning, employment discrimination, etc.

3) The systematic mistreatment is best understood in the context of a belief in the inferiority of the people in those classes. (In interpretive terms, the mistreatment is rationalized by that kind of belief.) The existence of this mistreatment and its tacit acceptance makes it easier for people to believe those false inferiority claims. (For an example of this, consider Larry Summers’s comments about a possible innate explanation for the absence of women in science, a prospect that only has cognitive appeal because of the discrimination against women in science.)

4) The systematic mistreatment plus the beliefs in inferiority make people in the target classes more vulnerable to [certain] kinds of harm than people who aren’t in the target classes. For example, women are more vulnerable than men to being put in fear by crude sexual comments because of the omnipresent threat of rape.

5) The things noted above also facilitate certain kinds of speech. Calling someone a “pussy” as an insult, for example, is facilitated by the fact that women are perceived as inferior.

Then a civil rights problem is anything that fits into the pattern of behavior, beliefs, and vulnerabilities outlined by those five propositions.

What do folks think about this definition? Note that merely labeling something a “civil rights problem” does not entail that there ought to be legal regulation of it. Hate speech, for example, is a civil rights problem, but it’s constitutionally protected and there’s good reason to believe that it’s right that it is constitutionally protected (although reasonable people could disagree).

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8 Responses to “A working definition of “civil rights?””

  1. x. trapnel Says:

    Seems a useful working definition.

  2. Mike Says:

    I approve.

    Orin’s response seems weird: “it seems to me that several of these steps require me to first agree with you on a lot of very controversial and highly contested questions or politics, ideology, and the nature of society and its divisions.”

    I’m a politically incorrect ass who thinks men have as much to fear from false rape claims than women do of getting raped. Still, it seems odd to contend that it’s in dispute that, “There are certain involuntary categories of people in society who are systematically treated worse than others because of their membership in those categories: women, gay people, racial minorities, etc.”

    I mean….. Is Orin really suggesting that it’s “controversial” that being a woman, gay, or a racial minority makes life at least a little bit more difficult?

    Fuck, man. Again, I’m an ass. Still, even I wouldn’t claim any controversy.

    Now, we could (and I suspect we would) argue over matter of degree. Do women/gays/racial minorities really have it that bad. Still, to contend that, on average, they don’t have it worse….. Seems a strange contention.

    Now, the crux of Orin’s critique (which he’s doing passive-aggressively by posting two counter examples – elderly and children) seems very strong. Namely….

    If we accept your definition, aren’t we saying that pretty much anything that happens to anyone other than a virile White Male is a civil rights issue? And if that’s the case, might your definition be too broad?

    Plus, poor people – even poor white people – have it worse off than rich people. I’d much rather be rich and black than poor and white. The criminal law falls more harshly on the poor than rich. Civil rights issue?

    And what do you do with a Rich Black Person. Blacks certainly have it worse, on average, than whites. Yet a rich black person has it better off than a poor white person. If the rich black person exploits the poor white person, whose civil rights have been violated?

  3. Paul Gowder Says:

    Mike, I think I’ve answered your points in my last answer to Orin — there’s something different about systematic subordination that makes it more than just having it rough.

    Plus, you can have a better life than someone else and still have a claim of injustice. Imagine two people. Person 1 is rich and healthy, but has had his reputation unfairly tarred by slanders from some third party. Person 2 is poor and ill, but has a good reputation. We presumably think that person 1 is, overall, better off than person 2. Nonetheless, person 1 has a claim of injustice against whoever slandered him. Being well-off doesn’t mean it’s fair to treat you unjustly.

    Same with the rich black person who still has to deal with the subordinate status of black people in general.

  4. salacious Says:

    Paul, I still think it cuts too broadly. What about less intelligent/less educated/less qualified people? I think the widespread discrimination against these groups satisfies all your requirements for being a civil rights issue, but it isn’t obvious to me that they actually are.

    Step 3 of your analysis needs strengthening. In addition to the behavior flowing from a belief in inferiority, the belief in inferiority needs to be *false*. For example, less intelligent people are generally inferior at a wide range of work-related tasks. This *actual* inferiority that prevents their disparate treatment in the workplace from becoming a civil rights issue. There’s a reason racists spend so much time concocting pseudo-science to prove the racial inferiority of minorities–if there actually is a systemic disparity between the races, discrimination becomes a lot less objectionable.

    I have the vague inkling that this topic couples into the earlier discussion on Rawlsian merit…

  5. salacious Says:

    You know, I need to expand on that. Paul, you are, like me, a liberal. Liberals avoid having their political system depend on a “thick” moral system for its legitimacy. This definition follows that principle by striving for universality and moral-neutrality. In fact, the only moral principle I see at work is a pretty anodyne assumption of moral equality.

    But this equality assumption isn’t enough to get you to a full theory of civil rights. That’s why everyone is tossing hypotheticals at you–there are plenty of examples of systemic inequality that we don’t believe to be civil rights’ issues. You need something more, and that something more is that I was trying to get at in my previous post: that the belief system which drives the subordinating behavior needs to be morally objectionable. It isn’t enough that the bad behavior flows from a belief, it needs to flow from a bad belief.

    This definition is less satisfying than yours because it lacks universiality: it needs contingent moral content to work. For example, before we can object to racially motivated behavior as a civil rights violation, we need to accept on a moral level that racism is bad, even racism that is solely intellectual. So, my definition wouldn’t have worked to well in the 1950’s south because back then plenty of people thought racism was just swell.

    This need for substantive moral content irritates the universalist liberal in me, but I don’t think it can be avoided. The objectionableness of civil rights violating behavior can’t be separated from the objectionableness of the belief system which drives it.

  6. Mike Says:

    What about less intelligent/less educated/less qualified people?

    Yes. Great point. I’ve long thought there should be different rules regarding contracts when dealing with sub-100 IQ people. Credit card companies rip off the dull all the time. Civil rights issue? If not, why not?

    there’s something different about systematic subordination that makes it more than just having it rough.

    As an empirical matter, this would likely be falsified. A poor white people will have a much worse life – measure it anyway you like – than a rich black person. Take O.J. Simpson as a great example. He might be called the n-word, but he has all the trippings of a rich person.

    My problem with your view is that it’s race/gender obsessed. You don’t seem to take into account how terrible poor whites have it. In a sense, your viewpoint is racist.

    Watch Diane Sawyer’s special report on Appalachian poverty:
    http://www.youtube.com/watch?v=ocqTQBk_aco

    Then tell me a black person at Andover is the one more deserving of sympathy; or the person who suffers more injustice.

  7. Steve M. Says:

    Paul, you say “there’s something different about systematic subordination that makes it more than just having it rough.” There are a number of ways of understanding that claim on which that’s clearly true. Systematic discrimination has a wider scope. If one is the victim of systematic discrimination, as opposed to incidental discrimination, he or she can’t just turn elsewhere for fair treatment. There’s no safe harbor. Knowing that one is the victim of systematic discrimination is also intensely psychologically frustrating. And that isn’t meant to denigrate anyone’s injuries. Psychological frustration has real physiological consequences. Loneliness, anger, and stress give people real health problems and lower life expectancy and quality of life on real, practical measures. I suspect that systematic discrimination plays some part in explaining the high rates of heart disease and lower life expectancy in black American men. I don’t want to make false generalizations about, e.g., all black Americans. Obviously, many members of discriminated-against classes succeed, and many people don’t suffer any ill effects from discrimination’s being systematic.

    So far, so good. I suspect you’d get a lot of people to agree with what I’ve said so far, conservatives included. And it’s not just race, gender, &c. There are innumerable other groups that society discriminates against in systematic ways, possibly including certain poor populations in hard-scrabble Appalachia (though I must confess I don’t know enough to say anything intelligent). Race is an easy case to diagnose, because of the obviousness of race-based discrimination in American society, and the significance of race in American history. But there are countless other group-based identities, membership in which singles one out for systematically unjust treatment. Doubtless, very few of these forms of mistreatment are as bad as race-based discrimination in American history (I count genocide, &c., as something entirely different and worse than discriminatory mistreatment), and the current state of scientific development probably doesn’t even allow us to understand them in any detail. But the conceptual framework is easy enough to understand.

    However, I get the sense that when people say things like what Paul’s said above, they mean to refer to something more than just this kind of complex psychological and sociological phenomena. What’s the something extra? A phenomenology of discriminatory mistreatment? Some moral property? The idea would be that there’s something about being discriminated against systematically based on group-membership — that is, about having one’s civil rights violated — that’s worse than being the victim of differently motivated but otherwise identical. That is, even assuming that the psychological and physiological trauma, &c., is identical, that there’s still something bad about being the victim of a civil rights violation over and above the mistreatment’s practical consequences. The conservative instinct is to say, no, that’s not true, because what makes the discrimination bad is the way in which the victim’s life, or prospects, are changed, and that can be measured without reference to the perpetrator’s intent — often, in fact, in purely economic terms. Looking to intent is just a tool for grievance-making.

    I’m inclined to think the conservative instinct is wrong here, because we don’t look just to the practical effects on victims when deciding whether rules and basic institutional arrangements are just. States and social institutions operate under moral constraints other than the prohibition on harming others. I leave the contents of those constraints to liberal political theory (another discussion!). For what it’s worth, I tend to think American law comes down very clearly on this side of the ledger. After all, section 1983 explicitly allows you to recover damages for the injury inherent in having one’s civil rights violated in exactly this way. So too with Title VII. I sometimes think that what makes conservatives so uncomfortable with 1983 and Title VII lawsuits is the way in which they enforce prohibitions against systematic discrimination or the systematic abuse of state power. Rather than just prohibiting these abuses, these statutes give damages to people in amounts greater than their purely pecuniary injuries. Civil rights plaintiffs free ride off our collective liberalism, private attorneys general are objectionable, &c. I really don’t see why we have to be so obsessive about this narrow sense of desert, so that line of thought isn’t at all interesting to me (for that matter, why not ask why Vikram Pandit is so damn deserving? NB — I don’t really care much about that question, either; desert isn’t a very useful concept). Sure, we could enforce liberal norms on power and equality in other ways, but American-type arrangements, in which the victim of a civil rights violation is thought aggrieved in precisely the same way a slip-and-fall plaintiff is, seem a reasonably good way to do it given the very real risks of institutional capture in law enforcement, &c.

  8. Paul Gowder Says:

    Steve, this is a lot of really interesting stuff — running out the door, so can’t give it the time it deserves. Hopefully I can come back to this later.

    But I’ll add one thing right now — one thing that makes the sort of wrong that counts as a civil rights violation worse than other sorts of wrongs is its cognitive component — civil rights violations often come hand-in-hand with a belief (held by the perpetrator, the victim, the wider society, in some combination) in the inferiority of the groups targeted — there’s a sense in which victims of civil-rights kinds of wrong are denied the respect of equal citizens.

    But your comment goes much deeper. Please prod me to say more later if I don’t get around to doing so on my own initiative.

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