These policies are an endeavour on the part of the state to combat racial segregation. Over the years it had generated intense environment and debates yet no stable stand had been reached, in this paper the focus will be on mapping out some of the justificatory strands of affirmative action policies, and how its emanates from the need to have justice for the victims of discrimination, and inspite of numerous objection to these policies, still we ‘need’ them and three important grounds for justification have been given, since it becomes practically impossible to cover each and every strand.

Defining affirmative action:

The nomenclature affirmative action originated in the United States of America but now this phenomena is not only confined to the developed U.S.A, but it is present in many South Asian countries too, including India as well. In simple terms, it refers to state endeavor in order to create sound circumstances for justice to prevail. By affirmative action policies the state aims to work on the cause of long neglected minorities. The term has various interpretations, Michel Rosenfeld (1991:42) supporting Greenawalt's definition of affirmative action states that ,it is a phrase that refers to attempts to bring members of underrepresented groups, into a higher degree of participation in some beneficial programme.² Rosenfeld keeping in view the numerous meanings and terms assigned to affirmative action policies states that affirmative action includes some kind of preferential treatment, specifically it shall refer to the preferential hiring, promotion and laying off of the minorities or women to perform government contracting work for purposes of remedying a wrong or of increasing the proportion of minorities and women in the relevant labor force, entrepreneurial class or university student population (Rosenfeld 1991:47)

The criterion for the programmes is relative to the needs of the state. When preference is practiced it cannot fully be considered a part of affirmative action policies, preferential treatment may be required in order among other things to achieve a defined goal or to fill a set quota, in the context of job hiring and promotion, preferential treatment shall include the hiring or promotion of a minority or a woman over a more qualified non minority or male. According to Rosenfeld, in the context of Payoffs preferential policy shall mean that a non minority or a male with more job seniority shall be laid off to an otherwise similarly situated minority or women who happens to have less job seniority(Rosenfeld 1991:47-48) The term preferential policy although is used synonymously with affirmative action but it is different in the sense that at times preference could come into use in order to satisfy or fulfill a social or political interest which is not what affirmative action is directed to, preference might be forced due to the nature of a job, as some laborious or physically intensive jobs need men over women. The affirmative action policies had especially taken a politicized form which is antithetical to the noble social aim for which it was initiated. The numerical angle added some sort of non seriousness to the policies, which is referred to as quotas, through which the affirmative action policies intend to provide proper chance to those who had been deprived. To have a clear understanding of why these days the issue is becoming all the more divisive, we need to have an idea of, what is quota? According to Michel Rosenfeld (1991:45), both quotas and goals relate to the relative proportion of the members of different groups in particular job or educational programmes. To set a goal is to aim for the future achievement of some ratio of blacks to whites, or women to men, in a given workforce or university programme, a goal may be flexible or inflexible. Moreover, the time for its realization may be short or long, limited or unlimited; the means used to attain it, on the other hand may involve no more than dedication to formal equality of opportunity or may be so extensive as to allow the unrestricted use of preferential treatment. Quotas relate to particular allocation of jobs or of places in universities. Quotas require a set number or proportion of the goods to be allocated, be distributed on some basis, other than or in addition to, relative job or educational qualification. A quota may require the allocation of a fixed number of percentages of the goods, which it applies to the members of a given group(Rosenfelt 1991:47-48). Its primarily the politics which surrounds the quota, which makes many philosophers feel that the affirmative action policies are unjust, the fluctuations in the numerical aspect of quotas due to political agenda or due to promoting one's own aims and ambitions by appealing to delicate and volatile areas and igniting tensions, within the numerous groups has created a negative perception of the policies, and also the preferential policies tend to get too much involved in fulfilling narrow interests that it may just wipe out the sanctity that affirmative action should posses.

Why a normative enquiry is needed:

The affirmative action policy is inevitably linked to the active role of the state by which it tries to bridge the gap between the haves and have not. Whenever an agency which is unanimously constituted by all, tries to do something for a particular group, it tends to arouse opposition. Affirmative action policies are also greeted with a lot of haste, here comes the need to delve into the deeper moral zones of morality. The normative theory here comes to our rescue to support the need for a moral take on the issue. Daniel MC Dermott clearly states that the role of a normative theory is to provide better understanding of the requirements of morality. When there is some institutional arrangement or some type of state action, that is controversial, and we want to figure out what morality has to say about the issue, here the normative leanings come to our rescue³ Here we have to take the socio political and the current scenario in consideration in order to give a proper shape to the moral issue at stake. Affirmative action is known to have caused intense situations on the political scene and the need to look at it from a philosophical lens can well be justified. The racist tendencies involve strong moral values, which are overlooked and compromised upon.

THE EQUALITY OF OPPORTUNITY ARGUMENT:

Equality is one of the central values which governs a sociopolitical system and to which dictatorial and autocratic regimes are an exception. Equality is a virtue which upholds the fact that every individual is equal as far as valuing its human worth. Over a period of time when man evolved, gradually leading to property acquisitions and the need to have more of it that led to the creation of wide differences between individuals. Consequently now equality of being human had to be seen in the context of inequality of wealth. This inequality is a direct result of exercising our natural rights if seen in the Lockean term. We cannot see everyone in equal respect be it our immediate relatives or our fellow beings; too much equality often leads to an irrational concept of an evolving society. This distinction was made particularly clear in the writings of James Wilson, a signer of the Declaration of Independence and one of the six original justices of the Supreme Court. Wilson argued:

When we say, that all men are equal, we mean not to apply this equality to their virtues, their talents, their dispositions, or their acquirements. In all these respects, there is, and it is fit for the great purposes of society that there should be, great inequality among men, but there is still one aspect, in which all men in society, previous to civil government, are equal. With regard to all, there is an equality in rights and in obligations. The natural rights and duties of man belong equally to all ⁴.

Equality of opportunity means providing circumstances favorable and conducive to strive for pursuits. Providing equal opportunity by means of affirmative action i.e. those who had been deprived of mere chance, should be given the opportunities, so that they could make the situation work for them ⁵.

According to Paul Gomberg (2007:2), the history of equal opportunity can be traced back to the late nineteenth century, when the phrases 'equal opportunity' and 'equality of opportunity' began to be appeared. Their first listings could be seen in an economics journal and then from the early twentieth century it was used in discussing the demand of the Fabian socialists for equality of opportunity for women. Later on in the states at the federal level the equal opportunity in employment commission was established by the civil right act 1964. Historically the demand for equal opportunity opposed discrimination that narrowed opportunities for women, immigrants and racial or religious minorities. The demand was specifically usually directed against discrimination in employment or against the efforts of racially segregated or gender stereotypical education. Later by the end of 18^th Century something like our ideal of equal opportunity was emerging. Immanuel Kant opposed aristocratic privilege and favored a civil service where positions were based on individual merit .These ideals were popularized in the French revolution and Napoleonic period under the slogan" careers open to talents", the slogan rejected the aristocratic privilege but countenanced other advantages and disadvantages particularly, associated with other gender ⁶

Equality of opportunity has changed over time and even exhibited a dynamic character. In the context of affirmative action, the awareness and assertiveness of the excluded groups forces them to ask for justifications of the denial of opportunities, to move towards a more concrete argument with regard to why equal opportunity strand justifies affirmative action. Every individual does not get the same start in life, one could be born in a wealthy family and the other poor, and this does not amount to condemning the well off, but certainly calls for some help for the not so well off. Here my views converge with Goldman, he chose to stick to the contractarian moral framework in order to decide whether the policy of reverse discrimination is justified. Goldman(1979 :170-171) trying to explain that why equality of opportunity is a salient reason to have affirmative action policies, states that equality of Opportunity, becomes an important social concept when inequalities in the distribution of benefits are held to be justifiable. Which most of the times is quite apparent if shares are to be unequal, then opportunities for attaining them ought not be limited or fixed arbitrarily, at worst, equal opportunity is appealed to in order to excuse otherwise unjustified inequalities in distribution, the myth of free and equal competition becomes an apology for the results of social Darwinism. The inequalities are not only large but also handed down from one generation to the next. The Belief that the survivors in such unregulated systems are the fittest is obviously false (even if such an outcome were moral).At times or rather most of the times these inequalities provide sound grounds for their justifications and when they are so acceptable, then they will be more just if opportunities to acquire the fatter shares are not arbitrarily limited⁷. The many ways in which opportunities can be considered open is that ,where positions or other goods are to be allotted only according to performance or predicted performance along some socially useful (non arbitrary) scale. This means that they are not to be allotted according to race, sex, national origin, or social position or background. Jobs for example are to be formally open to all strictly according to competence qualifications. Enforcement of such provisions can be seen to be morally insufficient, however unless all people are given equal chances to acquire such qualifications, or develop their potential abilities (Goldman (1979:170-179)

Richard Arneson differentiates between what he calls as the formal equality of opportunity and substantive equality of opportunity. The former confers that posts and positions that confer superior advantages should be open to all applicants .The ideal of formal equality of opportunity is associated with the liberation of economic practices and institutions from guild privileges and restrictions and with the development of competitive market economy .The slogan “careers open to talents” expresses the aspiration to establish a world where government posts go to the most qualified and the economic opportunities may be seized by anyone independently of whether or not one’ s parents are of noble blood or cronies of the king ²¹. But the problem with the formal equality of opportunity is that it is merely formal, and thus formal equality of opportunity needs to be complemented by substantive equality of opportunity. Even if all are eligible to apply for a superior position and applications are judged fairly on their merits, one might hold that genuine or substantive equality of opportunity requires that all have a ‘genuine’ opportunity to become qualified. Arneson further elaborates, “pursuing to limit the idea of reducing the competitive advantages, that favorable circumstances confer on some individuals, one arrives at the ideal that John Rawls, has called the equality of fair opportunity, which is satisfied in a society, just in case those individuals who have the same native talents and same ambition will have the same prospects of success in competition that determines who gets positions that generate superior benefits for their occupants” ⁸.

Arneson states that the , variety of conceptions of equality of opportunity suggests the complexity of the task of assessing what are called “affirmative action” programs in societies that are marred by a history of caste hierarchy, and systematic discrimination that excludes some groups in the population from any significant access to the fruits of social cooperation. Arneson goes on to elaborate, suppose that in the United States, whites have enjoyed superior social status, enforced by law and social custom, for decades, going back to times in which blacks were enslaved. Now whites on the average have greater wealth and education and blacks have less. Suppose that formal equality of opportunity is now proclaimed as the law of the land and embraced by popular morality. Still, most superior positions in society continue to go to whites. In this context a variety of measures might be adopted with the aim of increasing the effective opportunities enjoyed by blacks. Special educational resources might be channeled to them. This view had also been enforced in the Bakke verdict, for a time, to unsettle the status quo in which whites enjoy the lion’ s share of social privileges, quotas might be imposed by law or social custom. The quota requires that special preference be given to blacks when employment decisions are made until blacks and whites share in the superior positions and posts of society in proportion to their numbers. Affirmative action programs of this sort might be justified on the ground that in a world where discrimination persists, coercive imposition of quotas helps here and now to bring about greater fulfillment of formal equality of opportunity. The quota might exert an effect that roughly counter-balances the opposite effect of continuing unacknowledged discrimination. Alternatively, such programs might be justified by appealing to the moral desirability of achieving some substantive equality of opportunity affirmative action might be viewed as likely to increase the extent to which equality of fair opportunity is fulfilled in the long run (Arneson : SPE :fall 2008)

Equality of opportunity is a very potent idea as it tries to even out the differences between individuals. Although in exact terms absolute equality of opportunity sounds as a utopic goal but in the sense of providing an equal prospect to achieve their goals in a noble endeavor. In America justification of affirmative action in the light of equality of opportunity manifest in the form where the state undertakes the special programmes to ameliorate the conditions of those who are victims of discriminatory practices. The practice there ends up combining both resources and prospects to be equalized. In the Indian constitution this is enlisted in article 16, where article 16 (1) makes the case for a provision of equality of opportunity and article 16 (4) circumscribes the article to make reservation of jobs for any backward class of citizens. Reservation for backward classes hence constitutes the principle of equality of opportunity for the disadvantaged lot. The defense of equality of opportunity argument needs to be weighed against the other notions of justice, so as to fulfill a fully moral and concrete goal⁹.

COMPENSATORY JUSTICE ARGUMENT:

Justice means giving each person what he or she deserves or, in more traditional terms, giving each person his or her due. Justice and fairness are closely related terms that are often today used interchangeably. There have, however, also been more distinct understandings of the two terms. While justice usually has been used with reference to a standard of rightness, fairness often has been used with regard to an ability to judge without reference to one’s feelings or interests; fairness has also been used to refer to the ability to make judgments that are not overly general but that are concrete and specific to a particular case. In any case, a notion of desert is crucial to both justice and fairness. When people differ over what they believe should be given, or when decisions have to be made about how benefits and burdens should be distributed among a group of people, questions of justice or fairness inevitably arise. In fact, most ethicists today hold the view that there would be no point of talking about justice or fairness if it were not for the conflicts of interest that are created when goods and services are scarce and people differ over who should get what. When such conflicts arise in our society, we need principles of justice that we can all accept as reasonable and fair standards for determining what people deserve¹⁰. The affirmative action policies tend to create a tense atmosphere when seen from the angle of justice, as they are concerned with the social dimension of justice or social justice. Social justice is a story of tussle between individual and society. It is a part of the broader concept of justice which is a distributive principle. The subject matter of justice is the manner in which benefits and burdens are distributed among men (strictly sentient beings) whose qualities and relationship can be investigated. Social justice is one of the subdivisions of the concepts of justice; it is concerned with the distribution of benefits and burdens throughout a society as it results from the major social institutions like property systems, public organizations etc¹¹. The issues of justice stem from the highly fragile character of society, no two individuals are alike , and also differ remarkably in their needs, capabilities, talents and how they can contribute to the growth and well being of their own self and society, and how best they can acquire and benefit from the resources which the state and society offers to them and due to the external and internal obstacles and hindrances there develops a mismatched acquisition and distribution of resources ,which questions the value of justice, in the distribution of goods and resources and this automatically brings in the affirmative action policies as they are also concerned with the issue of distribution, redistribution and compensation.

The whole thing has taken the form of a never ending controversy as J Edward Kellough (2006:12) writes, “the controversy over affirmative action is understood most clearly with the realization that such policies are intended to redistribute opportunity from those who have been historically advantaged (e.g. as primarily white men) to those who have suffered disadvantages because of race, ethnicity or other traits or circumstances. By their nature many redistributive policies involve the transfer of resources from the haves to the have not’s. In the context of affirmative action, these transfers involve highly valued jobs, coveted seats in the educational institutions and other opportunities that allow people to prosper and succeed.

Compensatory justice requires the transfer of goods from one subject to another in order to restore the equilibrium that existed between these two subjects prior to their voluntary or involuntary involvement. This aspect of compensatory justice as a ground for justifying affirmative action will be dealt as one of the arguments. According to Pojman, compensatory justice comes under the backward looking argument and focuses on the injustice of the past, and stresses that because these past events occurred, we have certain duties and responsibilities now ¹². The modern philosopher who has most persuasively validated this argument is W.D Ross. The Rossian principle that is often appealed to in positive discrimination debates is the principles of reparation, i.e., those who have wronged others in the past owe reparation to them. Even if one has negligently wronged others, the Rossian principle considers this past event as generating a duty to pay reparations ,and it hardly matters whether doing so would result in nothing good .The argument involves unjust actions of the past. This principle is to bring in certain duties to respond to certain past events in specified ways. The Rossian principle tries to evaluate specific cases in the light of “self evident” general principles stressing that specific past events tend to generate present or future duties, in this background we evaluate the ideal of providing compensatory justice and how does it impart a salient character to the policies¹⁸. Goldman (1979:67) writes that the principle of compensation that governs the paradigm cases in which compensation is owed is when an individual is harmed in violation of his rights, and he should be restored by the perpetrator of the injury, to the position he would have occupied, had the injury not occurred. Since society ought a right to enforce rules, according to which individuals to be protected from the arbitrary denials of equal opportunity, but more often than not, the rule which rewards the efforts can be violated, hence when violations occur, perpetrators are to be held liable and victims ought to be compensated and distribution of benefits be done on morally sound principles. It aims to restore the balance of distributive rule that would have been the case, had there been no unjust violations of the rule ¹⁴. Pojman with regard to United States of America writes that blacks have been wronged and severely harmed by whites. Therefore the white society should compensate blacks for the injury caused to them. Reverse discrimination in terms of preferential hiring, contracts, and scholarships is a fitting way to compensate for past wrongs. Reverse discrimination tries to make sure that the compensation is not made simply to restore the goods unjustly taken or denied that is to return them to the status quo ante but to bring them to the level, that they, would have attained had there been no injustice in the first place¹⁵ According to Goldman (1979:74) the discrimination meted out to the minorities is a case of intentional and negligent one, and since the fault in these cases is typically intentional, and a negligent one the offenders cannot complain if made to pay an amount. Michel Rosenfeld (1991 :76)elaborating on Goldman’ s views on whether affirmative action is justified writes “For Goldman, affirmative action is justified as compensation in kind for the actual victim of first order discrimination — in relation to the allocation of scarce employment positions. The paradigmatic case in this connection is of a black or a woman who won the competition for a particular position, but who was nevertheless not awarded that position because of racism and sexism. At some future time when the same or a substantially similar position is open, then the previously wronged person is no longer the most qualified competing candidate. Notwithstanding the fact, the wronged person ought to be awarded the available position as a compensation for the past wrong. Moreover that wronged person has a superior claim to the latter position than a better qualified male candidate. For him the principle of compensation temporarily overrides the principle of distribution to redress injuries to distributive rights^”. Affirmative action through its protective discrimination is an endeavour in the same direction; this can be substantiated in a better way with what Miriam Schulman states with regard to the United States of America. He states that no reasonable person would argue with the fact that African-Americans have suffered more than their share of injustice over the course of U.S history. Many proponents of affirmative action defend the policies as a kind of reparation for the terrible wrongs of slavery and segregation. The white majority in this view must compensate African-Americans, for unjustly injuring them in the past. President Lyndon Johnson had this justification for preferential treatment in mind when he signed the 1964 voting rights act and said “you do not take a person who, for years had been hobbled by chains and liberate him, bring him up to the starting line of a race and then say, “you are free to compete “and still justly believe that you have been completely fair¹⁶. Thomas E. Weiskopff using the nomenclature, protective discrimination in place of affirmative action policies states that they compensate for explicit negative discrimination, as well as implicit biases that would otherwise unfairly penalize members of underrepresented communities¹⁷.

THE DIVERSITY ARGUMENT:

Diversity is a very important aspect without which equality is left incomplete. When diversity is seen it highlights the fact that efforts have been made to make sure that no one is left out and all groups had been given proper space.

What is diversity? It implies presence and coexistence of individuals belonging to diverse cultural backgrounds. As far as culture is concerned, it refers to a group or community which shares common experience that shapes the way in which its members understand the world. It includes groups that we are born into, such as race, national origin, gender, class or religion. It can also include a group we join or become part of. For example it is possible to acquire a new culture by moving to a new country or region, by a change in our economic status, or by becoming disabled. When we think of culture, we realize we all belong to many cultures at once. Culture is a strong part of people’s lives. It influences their view, their values, their humor, their hopes, their loyalties, their worries and fears¹⁸. What is the importance of having diversity and how can we justify affirmative action policy as promoting the same, why is the reason so strong, the answer requires us to bring in the utilitarian perspective.

Utilitarianism is the moral philosophy which was developed by Bentham primarily, and claimed to propound a reliable, even scientific, ethical theory by equating ‘good’ with pleasure or happiness, and evil with pain or unhappiness. It views individuals to act in a way so as to maximize pleasure and minimize pain or unhappiness, these being calculated in terms of utility or use value, are usually seen as satisfaction derived from material consumption¹⁹ . A principle of general or social utility can be used to evaluate laws, institutions, and political systems in the form of the ‘greatest happiness, for the greatest number. In the light of this diversity is a valued quality, the diversity argument can be seen to support the affirmative action policy.

This standpoint looks for utility in every action, they agree with the belief that affirmative action is justified on the ground that diversity could maximize the outputs, as J Edward Kellough (2006 :78) categorically states that integration and diversity within an organization brings desirable outcomes ,in work settings, for example organizations that hire a diversity of employees will include as a consequence within their ranks, individuals with diverse perspectives and ways of dealing with organizational tasks, this is so because racial ,ethnic and gender identities carry with them distinctive socialization experiences that often result in diverse values and perspectives. Alan Marzili (2004:42) trying to answer the question that why diversity might be desirable, explains, using the example of University Of Michigan, that there the affirmative action policy was to extend preference to groups that have historically been the victims of discrimination - Africans, Americans, Hispanics and Native Americans, in the name of diversity, this was based on the criteria of achieving a “critical mass” of minority students in each class, critical mass ,which in nuclear physics refers to the amount of radioactive material needed to cause a chain reaction. In the law school admission context it referred to the number of minority students needed to establish a community and a comfort level in the classroom, this brings in the utilitarian justification that since diversity adds up to the net harmony and peace hence it cannot be overlooked. This can be stated because in the Grutter decision which upheld the University of Michigan’ s, law school affirmative action plan to achieve a “critical mass” of minority students, in that case the U.S court gave credence to a judicial philosophy penned down by justice Lewis F.Powell, Jr , in the Bakke case ,a quarter of a century earlier ,that diversity is a “compelling state interest” and therefore, the state universities and employers may pursue the goal of ethnic and racial diversity without violating the constitution. What entailed was a general realization that, diversity in the classroom improves the educational experience of both minority and non minority and hence a good number of educational institutions started supporting affirmative action on this ground. Not only diversity in educational institutions generates diversity of opinions, but also diverse classrooms promote thinking skills more generally. In addition to promoting student’s intellectual and social self concept and college satisfaction it also generated creative problem solving skills²⁰.

Louis Pojman elaborating on the diversity defense of affirmative action policies state that, it’ s important that we learn to live in a pluralistic world, learning to get along with those of other races and cultures, so for which we should have fully integrated schools and employment situations, diversity is an important symbol and educative device. Thus the preferential treatment is warranted to perform this role in society, Pojman trying to emphasize the fact that the diversity considerations cannot override merit and efficiency and hence should take in consideration other relevant aspects from getting wrapped up in moral promiscuity²⁶.

As far as a unanimous justification for affirmative action is concerned the goal seems quite unrealistic in the near future and tends to have very “ideal” inclinations, but nevertheless, one cannot out-rightly deny whatever little contribution it has made in the last couple of years. To prevent strong reactions one can follow as what, Miriam Schulman calls the “common ground approach”. He further states that there is an equally valid moral argument for affirmative action that avoids the punitive overtones of the various grounds of justification. Why the common ground approach is in everyone’s interest as it consists primarily in ensuring that the social policies, social systems, institutions and environments on which we depend are beneficial to all, and appeals to the common good and also urges us to view ourselves as members of the same community, reflecting on broad questions concerning the kind of society we want to become and how we are to achieve that society ²². It is a non deniable fact that one cannot overlook the moral and ethical implications whether there should or should not be affirmative action policies, but in the need for catering to the macro normative aspects one cannot overlook the very fundamental aspects of individuals and especially minorities, who had been robbed of their basic rights, and before anything the rights approach regarding the policies needs to be reiterated and emphasized, that whether these policies protect and facilitate the basic rights of the individuals, and should the policies get the status of rights, as the preferential policies come quite later in an individual’s life, before which the other aspects of their personality and existence need to be moulded to pursue other goals such as higher education and employment. For these policies to not become a farce, it’s important to pay due importance to the issue of rights

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21. Schulman Mirriam. Affirmative Action Or Negative Action, Is there A Different Way To Frame The Debate over Race Based Preference?. Marcula Centre For Applied Ethics. http://www.scu.edu/ethics/publications/ iie/.../affirmative.html

Received on 01.06.2017

Modified on 05.06.2017

Accepted on 18.06.2017

Research J. Humanities and Social Sciences. 8(2): April- June, 2017, 151-158.

DOI: 10.5958/2321-5828.2017.00021.3