Kant get service – putting it through the Mills

A gentleman on Twitter made an interesting comment: “If you’re OK with Selfridges refusing to serve the EDL, you also need to be OK with B&Bs refusing gay couples”.1

This is a very thought provoking statement, but also in my opinion quite wrong. Unfortunately Twitter may be a great forum for quick conversations with a range of people, but it’s not so good for debating complex philosophical issues, so this post intends to explain why I believe this.

Firstly this comparison is comparing apples and oranges. Membership of the EDL2 is a voluntary choice, whereas all the current scientific evidence is that ones position on the homosexuality/heterosexuality axis3 is inate not chosen; it’s not a club one chooses to join and pay membership for. So from this point of view discrimination on this basis is just the same as discrimination on skin colour, hair colour, place of birth or anything else the person in question cannot choose.

Ah” says the proponent, “but I am choosing to act in accordance with my sexual preferences by having a relationship with someone of the same sex.” It is true: and historically many people attracted to their own sex have due to social pressures4 entered into relationships with those of the opposite sex. Likewise someone who is not attracted to their own sex could voluntarily enter into a same sex relationship for other reasons5 and if we intend to challenge people on the reasons for entering into a relationship we need to have some pretty compelling reasons to do so.

But there is still a significant difference even if we were to consider the expression of homosexuality to be a choice rather than a natural attribute of a person. A same sex couple are in a voluntary association with each other, the purpose of which is interaction with each other; the EDL is a voluntary association, the purpose of which is imposing its views on other people.

So what we are looking at is intersection of different parties rights, and balancing the rights of one against another. This is where we need to bring in the big philosophical guns to help decide what is “right”.

There are a number of theories of justice, but I will just look at two: the Liberal Utilitarianism of JS Mill and the Imperative Ethics of Immanuel Kant.

Mill, in his work “On Liberty”6 sets out 3 basic liberties in order of importance:

  1. Liberty of Thought and Discussion.
  2. Liberty to pursue individual tastes (provided they do no harm to others).
  3. Liberty to voluntarily associate with others, so long as no harm is done to others.

The basic rule of Kant is “Always act according to that maxim whose universality as a law you can at the same time will”

Armed with these guides to ethics, how do we distinguish the two cases?

Starting with Mill’s first liberty, someone wishing to think about and discuss topics whether that be racialism or same sex associations should not be prevented from doing so. By refusing to serve someone at our shop are we infringing that liberty? Possibly, if we are doing so because of what they say or think. So we should not refuse service merely because someone has racialist or same sex related beliefs or expresses them.

Regarding the second liberty, individuality or diversity, the shopkeeper refusing service is infringing the customers liberty of individuality to a certain degree. But the racialists actively campaigning against those they perceive as “alien” are infringing those persons liberties, and the liberties of those other members of society who wish to retain the that diversity. The same sex couple who are maintaining a private relationship are not infringing anyone elses liberty of individuality merely exercising their own. Therefore the shopkeeper may morally take proportionate steps against the ones who are harming other peoples liberty. If the same sex couple are in fact part of an organisation seeking to prevent mixed sex couples, it would be as justifiable to refuse them service as against the campaigning racialist. Likewise the non-campaigning racialist is not infringing others liberty of individuality so refusal of service is not justified.

With the third liberty, Mills himself states “We have a right, also, in various ways, to act upon our unfavourable opinion of any one, not to the oppression of his individuality, but in the exercise of ours. We are not bound, for example, to seek his society; we have a right to avoid it (though not to parade the avoidance), for we have a right to choose the society most acceptable to us.7 So the liberty of association includes the freedom not to associate too.

Now refusing someone service at our shop does cause inconvenience to them, so there is a certain degree of harm. But forcing us to accept their presence in our shop infringes our rights too. If there are other shops nearby, that person could merely go there instead. On the other hand while serving this person, we cannot serve another customer who we would find more acceptable. So on this right we can say the two sets of rights balance out.

If we are refusing accomodation at our B&B the inconvenience caused depends when we refuse; if we refuse the booking there may be alternative accomodation nearby or there might not. If we refuse when the customer arrives, that will cause substantial inconvenience which we can avoid but the customer cannot. In this case on balance of harm their rights should be preferred.8

If we are a duty lawyer seeing the person when they’ve been arrested or a medic seeing them when they’ve been injured, they have no viable alternative and refusing to act for them in those circumstances would be a serious harm so they have a right to the service. Of course, once the immediate emergency has been dealt with continued service might be another issue.9

But as well as the harm to us of the customers associations, there is the harm to others to consider. Despite the caution not to “parade the avoidance” the implied approval of association with an organisation may indicate at least indifference to that organisations goals, whereas a boycott sends a strong message of disapproval. So again, a same sex couple are not infringing anyone elses rights by their association but the member of the EDL is seeking to infringe others rights. Therefore refusing to serve the same sex couple gives a message one is against them exercising their rights, while refusing the EDL member is giving a message that one is against them infringing other peoples rights.

So going through these three liberties, a generalised rule can be drawn: “it is acceptable to refuse to provide services to someone attempting to infringe others freedoms, where they have alternatives”

But is this position justifiable by Kant, or is it only utilitarianism which supports this rule?
We are saying “it is acceptable”; it is not compulsory to refuse the service, as you may consider there are other more important considerations justifying the provision of service.
The term is “someone attempting to infringe others freedoms”; if someone is exercising their own freedom without harming others, the rule does not justify refusal.
The final qualification “where they have alternatives” is a limitation on the harm you can impose on them.

Taking Kant’s maxim there seems no reason not to accept this as a universal rule and therefore it is justifiable under his philosophy.

1. https://twitter.com/amateuradam/statuses/380600827049967616
2. Other racialist organisations are available
3. I realise that there is still debate on how much this is a continuum or not, but that is a different issue nor really relevant to this current argument.
4. Being beaten or jailed are pretty strong social pressures, as are beliefs that one will face an eternity of torture after death.
5. And knowing human nature this has undoubtedly happened at least once, if not many times, in human history.
6. http://www.gutenberg.org/ebooks/34901
7. On Liberty, Chpt 4, p145
8. This would indicate that just refusing same sex couple from booking could be acceptable, but once they’ve booked cancelling it would not. In the former case there are other considerations regarding the public utility of allowing or not such a policy, but that is another debate.
9. We’re ignoring here the separate element of someone working on behalf of the state, as that brings in a whole other set of rights and duties to examine.

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