Archives for category: ethics

close-the-gap

Although Aboriginal and Torres Strait Islander people comprise only about 3 per cent of the Australian population, they make up 28 per cent of the total prison population. This is an imprisonment rate 14 times higher than the non-Indigenous rate. Aboriginal people continue to die in custody – 270 people since the Royal Commission into Aboriginal Deaths in Custody Report (1991). Growing prison populations mean increased costs for taxpayers without breaking the cycle of offending. The system is not working to prevent crime and is not sustainable[1].The Australian Law Reform Commission Aboriginal Customary Law Report (1986) investigated Aboriginal customary laws and any basis for their recognition in the common law. The ALRC recommended that Aboriginal customary law should be recognized, in appropriate ways, by the Australian legal system, and that the recognition of such laws must occur within the framework of the general law[2]. While both the Aboriginal Deaths in Custody Report and the Aboriginal Customary Law Report advocated in favour of upholding the rights, both traditional and modern, of Indigenous Australians, neither reports’ recommendations have been properly administered or implemented so as to fully address the issue of Indigenous disadvantage. Therefore, almost thirty years after these expensively produced reports were completed, successive Australian governments have continued to fail the Indigenous population on whose country this nation was founded.

This travesty of justice continues to beleaguer courts across Australia, with judges having to make complex decisions using the only legislative tool available the Racial Discrimination Act 1975 (Cth). This leads to arbitrary decision making that in turn leads to expensive appeals processes in order to ascertain the correct form of justice available. An example of this is Walker v NSW (1994) 182 CLR 45, where the High Court considered whether customary law has an application in criminal law where there is no legislative basis. Mason CJ referenced the Racial Discrimination Act 1975 to declare:

It is a basic principle that all people should stand equal before the law. A construction which results in different criminal sanctions applying to different persons for the same conduct offends that basic principle (See Racial Discrimination Act 1975 (Cth), s.10)…And just as all persons in the country enjoy the benefits of domestic laws from which they are not expressly excluded, so also must they accept the burdens those laws impose[3].

It is this reference to the Racial Discrimination Act which is telling in Mason CJ’s ruling, as Part 1, Article 1.4 of the Schedule to that Act, being the international source of the Act itself, “The International Convention on the elimination of all forms of racial discrimination” plainly states:

Special measures taken for the sole purpose of securing adequate advancement of certain racial or ethnic groups or individuals requiring such protection as may be necessary in order to ensure such groups or individuals equal enjoyment or exercise of human rights and fundamental freedoms shall not be deemed racial discrimination, provided, however, that such measures do not, as a consequence, lead to the maintenance of separate rights for different racial groups and that they shall not be continued after the objectives for which they were taken have been achieved[4].

The Convention’s intent is to not just seek equality for all humans but also to enact equity for those who have suffered discrimination, and it is this UN Article that alludes to this intent. Special measures are needed in order to apply justice with an even hand. However, should this mean that customary law should be applied over criminal law in Australian courts? I will argue that, while the recognition of customary law may make the implementation of the law seem arbitrary, the recognition of socially reinforced disadvantage, particularly Indigenous disadvantage, is important to prevent the law being applied arbitrarily.

In the early 1990s the High Court upheld the native title rights of Indigenous Australians and the Native Title Act 1993 (Cth) was born. At about the same time Mason CJ declared that customary law had no place in Australian law and the Royal Commission into Aboriginal Deaths in Custody (RCIADC) released its recommendations. The cause of the Royal Commission was the intolerable amount of Indigenous people who had died in police custody in the preceding years. It is with interest that one can regard the recommendations of the RCIADC to ascertain almost three decades later whether processes have changed and what has worked.  With regard to the legal system, the Commission made many conclusions which have been completely ignored, especially by state governments. Some nineteen of these recommendations were:

That Police Services take all possible steps to eliminate:Violent or rough treatment or verbal abuse of Aboriginal persons, including women and young people, by police officers; and the use of racist or offensive language, or the use of racist or derogatory comments in log books and other documents, by police officers. When such conduct is found to have occurred, it should be treated as a serious breach of discipline. (2:223)

That all Police Services review their use of para-military forces such as the New South Wales SWOS and TRG units to ensure that there is no avoidable use of such units in circumstances affecting Aboriginal communities. (2:223)

That governments and Aboriginal organisations recognise that the problems affecting Aboriginal juveniles are so widespread and have such potentially disastrous repercussions for the future that there is an urgent need for governments and Aboriginal organisations to negotiate together to devise strategies designed to reduce the rate at which Aboriginal juveniles are involved in the welfare and criminal justice systems and, in particular, to reduce the rate at which Aboriginal juveniles are separated from their families and communities, whether by being declared to be in need of care, detained, imprisoned or otherwise. (2:252)

That police services should monitor the effect of legislation which decriminalises drunkenness with a view to ensuring that people detained by police officers are not being detained in police cells when they should more appropriately have been taken to alternative places of care. The effect of such legislation should be monitored to ensure that persons who would otherwise have been apprehended for drunkenness are not, instead, being arrested and charged with other minor offences. Such monitoring should also assess differences in police practices between urban and rural areas. The results of such monitoring of the implementation of the decriminalisation of drunkenness should be made public. (3:29)

The use of offensive language in circumstances of interventions initiated by police should not normally be occasion for arrest or charge. Police services should examine and monitor the use of offensive language charges. (3:29)

That all police services should adopt and apply the principle of arrest being the sanction of last resort in dealing with offenders. Police administrators should train and instruct police officers accordingly and should closely check that this principle is carried out in practice. Administrators of police services should take a more active role in ensuring police compliance with directives, guidelines and rules aimed at reducing unnecessary custodies and should review practices and procedures relevant to the use of arrest or process by summons and in particular should take account of the following matters. That all possible steps should be taken to ensure that allowances paid to police officers do not operate as an incentive to increase the number of arrests. That a statistical data base should be established for monitoring the use of summons and arrest procedures on a Statewide basis noting the utilisation of such procedures, in particular divisions and stations. Also, the role of supervisors should be examined and, where necessary, strengthened to provide for the overseeing of the appropriateness of arrest practices by police officers. That efficiency and promotion criteria should be reviewed to ensure that advantage does not accrue to individuals or to police stations as a result of the frequency of making charges or arrests. That procedures should be reviewed to ensure that work processes (particularly relating to paper work) are not encouraging arrest rather than the adoption of other options such as proceeding by summons or caution. That governments, in conjunction with police services, should consider the question of whether procedures for formal caution should be established in respect of certain types of offences rather than proceeding by way of prosecution. (3:42).

That in jurisdictions where motor vehicle offences are a significant cause of Aboriginal imprisonment the factors relevant to such incidence be identified, and, in conjunction with Aboriginal community organisations, programs be designed to reduce that incidence of offending. (3:71)

 That legislation in all jurisdictions should provide that where an Aboriginal defendant appears before a Court and there is doubt as to whether the person has the ability to fully understand proceedings in the English language and is fully able to express himself or herself in the English language, the court be obliged to satisfy itself that the person has that ability. Where there is doubt or reservations as to these matters proceedings should not continue until a competent interpreter is provided to the person without cost to that person. (3:79)

That, in the first instance, proceedings for a breach of a non- custodial order should ordinarily be commenced by summons or attendance notice and not by arrest of the offender. (3:80)

That it be recognised by Aboriginal Legal Services, funding authorities and courts that lawyers cannot adequately represent clients unless they have adequate time to take instructions and prepare cases, and that this is a special problem in communities without access to lawyers other than at the time of court hearings. (3:91)

 That State and Territory Governments examine the range of non-custodial sentencing options available in each jurisdiction with a view to ensuring that an appropriate range of such options is available. (3:96)

 That adequate resources be made available to provide support by way of personnel and infrastructure so as to ensure that non-custodial sentencing options which are made available by legislation are capable of implementation in practice. It is particularly important that such support be provided in rural and remote areas of significant Aboriginal population. (3:96)

 That Corrective Services authorities ensure that Aboriginal offenders are not being denied opportunities for probation and parole by virtue of the lack of adequate numbers of trained support staff or of infrastructure to ensure monitoring of such orders. (3:117)

That governments consider introducing an ongoing amnesty on the execution of long outstanding warrants of commitment for unpaid fines. (3:126)

Where legislation does not already so provide governments should ensure that sentences of imprisonment are not automatically imposed in default of payment of a fine. Such legislation should provide alternative sanctions and impose a statutory duty upon sentencers to consider a defendant’s capacity to pay in assessing the appropriate monetary penalty and time to pay, by instalments or otherwise. (3:126)

That the Department of Education, Employment and Training be responsible for the development of a comprehensive national strategy designed to improve the opportunities for the education and training of those in custody. This should be done in co- operation with state Corrective Services authorities, adult education providers (including in particular independent Aboriginal-controlled providers) and State departments of employment and education. The aim of the strategy should be to extend the aims of the Aboriginal Education Policy and the Aboriginal Employment Development Policy to Aboriginal prisoners, and to develop suitable mechanisms for the delivery of education and training programs to prisoners (3:353).

 That prisoners, including Aboriginal prisoners, should receive remuneration for work performed. In order to encourage Aboriginal prisoners to overcome the educational disadvantage, which most Aboriginal people presently suffer, Aboriginal prisoners who pursue education or training courses during the hours when other prisoners are involved in remunerated work should receive the same level of remuneration. (This recommendation is not intended to apply to study undertaken outside the normal hours of work of prisoners.) (3:357)

That police administrators give police officers greater encouragement to proceed by way of caution rather than by arrest, summons or attendance notice. That wherever possible the police caution be given in the presence of a parent, adult relative or person having care and responsibility for the juvenile. Also, that if a police caution is given other than in the presence of any such person having care and responsibility for the juvenile such person be notified in writing of the fact and details of the caution administered. (4:184)

 That where an Aboriginal juvenile is taken to a police station for interrogation or as a result of arrest, the officer in charge of the police station at which the juvenile is detained should be required to immediately advise the relevant Aboriginal Legal Service and the parent or person responsible for the care and supervision of the juvenile of the fact of the child being detained at the police station (without prejudice to any obligation to advise any other person). (4:203)

That no Aboriginal juvenile should be interrogated by a police officer except in the presence of a parent, other person responsible for the care and supervision of the child or, in the absence of a parent or such other person, an officer of an agency or organisation charged with responsibility for the care and welfare of Aboriginal juveniles. (4:203)

 That legislation, regulations and/or police standing orders, as may be appropriate, be amended so as to require compliance with the above recommendations. (4:205)

According to the Human Rights Commission both state and federal governments have done little to implement the Royal Commission’s recommendations and, due to this, the percentage of Indigenous people incarcerated in Australian prisons has increased exponentially in proportion to the rest of the population[5]. It would seem that the recommendations would have done much to assist the intention to prevent this increase and yet many governments, such as the Northern Territory’s administration, have actually brought in more pernicious laws such as mandatory detention which have exacerbated the problem. Mandatory detention takes the responsibility of a judge to determine justice and puts it in the hands of politicians trying to gain popularity with a majority. This, in itself, is fundamentally against the intentions and objectives of the “International Convention on the elimination of all forms of racial discrimination”, has had an overwhelming negative effect on Indigenous people, and is a serious indictment on Australia’s performance as an international actor.

Just after the RCIADC, the Supreme Court of NSW had sought to implement the objectives of the UN Convention in R v Fernando (1992) 76 a crim r 58 and try and to address these problems judicially. The Fernando principles underpinned a direction in sentencing that framed jurisprudence on the relevance of Aboriginality, alcoholism and disadvantage. The principles provided for lighter sentences that reflected the Indigenous offender’s reduced moral culpability and promote non-custodial sentences in light of over-representation in the prison system. However, it could be argued that only having a judicial approach to social justice reinforces stereotypes and that it is only through structural reform within the larger society, as set out in the Royal Commission’s findings, that a more genuine sense of justice can be achieved.

Advances in neuroscience have led criminologists to assert that offender autonomy is an assumption based upon a fallacy of free will[6]. As the political philosopher John Rawls claimed, we are not in control of the situation to which we are born and therefore being born into strong social disadvantage is something that is difficult to overcome[7]. It relies upon the availability of opportunity and societal good will. This is reflected in the Convention and has led courts to be more lenient of disadvantaged offenders to redistribute their burdens. When courts fail to consider such inequalities the disadvantaged are given sentences disproportionate to their culpability. Widening social inequalities also limit offenders’ choices and so justice would also demand that society acknowledge responsibility for such economic hardship and assist the offender in sentencing. This last assertion should also require that society be active in alleviating hardship and suffering within the community and address political policy and legislation towards this purpose. Further programs of rehabilitation and reintegration in lieu of imprisonment could reform and improve the position of the offender.

While the principles in Fernando continue to be advocated on behalf of Indigenous defendants, Australian courts since the late 1990s have confined who can be classed as Indigenous for the purposes of applying those principles. Increasingly in court decisions, it regards the identity and community ties of Indigenous offenders as being washed away by time and urbanization.  This results in further discrimination as to deciphering what is being ‘Aboriginal enough’, and considering  all remote Indigenous communities as being dysfunctional and in need of activating the Fernando principles. Therefore, while harsher penalties are meted out to those that are considered to have been re-advantaged through time, the arbitrariness in the way the Fernando principles are enacted and the judicial view of the Indigenous community is managed impels a rethink of how social justice can be better achieved through transformative techniques. To continue to rely upon judicial or political magnanimity and mercy is relying upon the whims of the Anglo-Australian legal order, thereby reinforcing discrimination and continuing the overrepresentation of Indigenous people in prisons.

The Australian Law Reform Commission in its report on Aboriginal Customary Laws[8] found that judicial recognition did not project Aboriginal community concerns, and that a greater degree of local control over community-identified crime problems would be more effective. It is a pluralist strategy that responds to the circumstances of the individual Indigenous community. Where Indigenous laws bind communities the processes directed to punishment can be a legitimate method for mediation and resolution between victims, perpetrators and the rest of the community. An example of this is the acceptance of the Warlpiri Elders who conveyed their acceptance of Anglo-Australian court processes, so long as ‘traditional’ punishment can be carried out to reconcile their community[9].

 

When social justice is considered by the wider community to be applied simply through more lenient sentencing for Indigenous offenders this only reinforces the white racial illusion which presents itself as tolerant and understanding but is merely a means of controlling an Indigenous population. This type of affirmative action is prone to disintegrate in the face of other norms such as courts falling back on the position that Indigenous offenders are to be treated equally to other offenders through refusal to recognize Indigeneity. There is also the further injustice and institutional subordination of determining Indigenous communities as dysfunctional in order to aggravate sentences and condemn the community. Recently, the High Court addressed the issue of the whether courts should take into account unique circumstances of Aboriginal offenders and the high rate of incarceration of Aboriginal Australians when sentencing Aboriginal offenders in Bugmy v The Queen [2013] HCA 37.

In Bugmy, French CJ, Hayne, Crennan, Kiefel, Bell and Keane JJ. expressed that a deprived background may mitigate a sentence for an Indigenous offender in the same way that it does for a non-Indigenous offender. They quoted Simpson J who in Fernando explained the significance of the statements in Fernando:

“Properly understood, Fernando is a decision, not about sentencing Aboriginals, but about the recognition, in sentencing decisions, of social disadvantage that frequently (no matter what the ethnicity of the offender) precedes the commission of crime.”

 In concluding, the High Court held that the same sentencing principles apply irrespective of the identity of a particular offender or his or her membership of an ethnic or other group. Additionally, the joint reasons held that the effects upon an offender of profound deprivation do not diminish over time and should be given full weight when sentencing the offender. However, the judgment also went on to declare that those effects do not necessarily serve to mitigate an offender’s sentence given the conflicting purposes of punishment, such as rehabilitation and personal and general deterrence, which must be balanced in each individual case.

Even taking into account the High Court decision in Bugmy to renew the principles in Fernando, this approach to convicting and sentencing Indigenous people still leaves the situation where the incarceration rates will keep increasing, and does not address the issues and recommendations of the RCIADC. Alcohol is not just an issue in Indigenous communities anymore, methamphetamine and petrol sniffing is also causing a scourge of destruction and damage. The increase in youth suicides in some communities is substantial which leaves the necessity to implement policies that reflect those recommendations as an imperative.

Currently, state and federal governments must address transparently their goals of reducing the health gap between Indigenous and non-Indigenous Australians in a bipartisan program called Close the Gap[10]. Yet it seems another program to be at the mercy of competing political ideologies, as were the other costly reports and recommendations that failed to be translated into legislation and dependent upon the budget allocations of successive changing government administrations. A consultative approach to Indigenous affairs is one of the main bridges to achieving these goals, as was pointed out in the Royal Commission’s findings. Therefore, while it is good that the High Court has again implemented the principles of sentencing by Wood J in Fernando, such an approach is ad hoc and needs the Australian community to commit to instigating social programs that are not politically ideological but those that have been recommended by Indigenous groups, are known to work and are protected by legislation that adheres to the objectives of the “The International Convention on the elimination of all forms of racial discrimination”.

 

[1] http://antar.org.au/campaigns/justice-campaign

[2]http://www.alrc.gov.au/publications/Recognition%20of%20Aboriginal%20Customary%20Laws%20%28ALRC%20Report%2031%29/37-summary-recommendations

[3] Walker v NSW (1994) 182 CLR 45

 

[4] http://www.austlii.edu.au/au/legis/cth/consol_act/rda1975202/

[5] https://www.humanrights.gov.au/publications/indigenous-deaths-custody-report-summary

[6] Green and Cohen, (2004), For the law, neuroscience changes nothing and everything, Princeton University, Princeton

[7] Rawls, J. 1972, ‘An Egalitarian Theory of Justice’, extracts from A Theory of Justice, reprinted in Tom Beauchamp & Norman Bowie (eds.). Ethical Theory and Business, 6th edition, (Prentice Hall, 2001)

[8] http://www.alrc.gov.au/publications/report-31

[9] Anthony, Thalia. Is there social justice in sentencing indigenous offenders [online]. University of New South Wales Law Journal, The, Vol. 35, No. 2, 2012 563-59

[10] http://www.naccho.org.au/aboriginal-health/close-the-gap-campaign

Above image: https://nacchocommunique.files.wordpress.com/2013/02/close-the-gap.jpg

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‘If only thou couldst feel as I do, and couldst get thee power of speech’

                                                                   (Od. 9.455-58)[1]

An important feature of the relationship between humans and animals since the early Neolithic age is one of reciprocity. In this line from Odysseus, Homer draws our attention to the close symbiotic relationship between a shepherd and his flock. The shepherd provides protection and the sheep provide sustenance and companionship in his lonely life[2]. However, Hesiod stated that it is the notion of justice that holds us apart from animals, with justice demanding that we do not prey on our own kind[3]. Lonsdale notes that Xenophon went further and argued that man is different because of his capacity to speak and reason, and also in his deep religiosity[4]. Yet, while the Greeks were deeply anthropocentric, the Egyptians did not have such a notion of division between human and animal. Humans were not considered superior and animals were considered the vehicle of earthly representation of the gods[5]. To consider ancient notions of the important attributes differentiating human and non-human it is necessary to review the literature left by ancient writers. These writers tend to relegate these attributes into three distinct types: rationality, intelligence and language, and argue for difference or deny it. The ancient argument that is most valid is the one propounded by writers such as Alexander, Plutarch and Porphyry and denies the superiority of humans, as it takes into account what we may not understand.

The first criterion that many ancient writers cite is the lack of rationality found in animals. In the 5th century BCE Alcamaeon of Croton wrote that humans have xunesis, an understanding which is the basis for rational thought. This allows language to develop which assists cultural maturity. He argues that animals do not have this facility and only have perception, or aesthesis, which humans have also[6]. Plato also states that the difference between humans and animals is human rationality and goes on to say that humans who do not use rational thought are no better than beasts[7]. Aristotle also denies animals reason but concedes that they have phronesis which is the knowledge needed to cope with their environment[8]. For Aristotle, humans live by skill and reason, whereas animals live by experience made up of impressions and memories[9]. In his protestation against his nephew Alexander’s assertion of the rationality of animals, Philo of Alexandria declares that, while animals might exhibit courage, only man has the understanding that enables him to form laws and governments, and to worship God[10]. Such a determination was later reflected even more vehemently by Augustine who stated that humans were made in God’s image and that animals were for their use. For Augustine, the commandment “Thou shalt not kill” only referred to humans[11].

Other writers, such as Alexander, claimed that animals were very much like humans. Alexander said that there were two types of reason: logos endiathelos (reason within the mind) and logos proporikos (uttered reason), and that animals had both. Alexander used the ability of different animals to construct complex dwellings, especially some birds and bees, to prove reason in animals, and also contended that the deliberation of a dog in following its prey is proof of reason[12]. Plutarch and Porphyry also used such an argument, but Plutarch added that good rational thinking was not apparent in many humans and only came about through much education. He argued that because animals chose between useful and harmful and exhibited fear, hope and desire this proved their rationality[13]. Porphyry extended this further by stating that justice should be awarded to animals because both humans and non-humans are endowed with reason and practise justice[14]. However, Diogenes Laertius contended that the practice of reasoned thought in humans, especially after the fourteenth year, showed that humans have a governing principle, or hegemonikon[15], that allows one to express meaningful language and is considered to be the foundation of intelligence.

Intelligence is the second criterion that ancient writers advance when they assert the superiority of humans over animals. For Aristotle, man is deliberative in that he has intentionality; only man has the ability of recollection and reason which differentiates him intellectually from animals[16]. Philo thought that pleasure and self-preservation were the prime motivating factors of animals and that they did not need intelligence for these[17]. The Stoics stated that humans have no intellectual kinship with animals as they are irrational, and for this reason humans owe them no obligation of justice[18]. There are other ancient writers who disagreed with this view. Alexander asserted that animals do have a sovereign mind[19], while Plutarch contended that the cleverness and intellect animals use for their survival ought to be enough for us to treat them respectfully[20]. Plutarch also believed that humans shared kinship, or oikeinsois, through manner or lifestyle[21]. Lonsdale writes that Aristotle’s follower, Theophrastus, argued that animal sacrifice was wrong because humans and animals shared an intellectual kinship[22]. Further, Cicero thought that while humans were superior in that they had higher intentions, such as the pursuit of comfort, industry and sympathy for others, he conceded that some animals have such higher intentions and some intellect[23].

Higher intentions and intellect could be prerequisites for engaging in contractual behaviour, a foundation of justice. Epicurus stated that, as animals do not have the capacity for language, they do not have the capacity for forming tacit contractual agreements with an intention to respect one another’s interests[24]. Language is the third criterion for the moral status of animals. For Xenophon, humans were superior to animals both intellectually and physically, and this was manifested in the human capacity for articulate language[25]. This view was also reflected by Diogenes Laertius, who stated that the lack of intelligible language in animals proved their inferiority[26]. While Aristotle thought that animals did communicate through language, he countered that it was not based in semantics and therefore inferior to humans[27]. Philo took this argument further, stating that animal utterances are as meaningless as musical notes[28]. However, Lucretius argues that humans and non-humans do engage in tacit contractual agreements. This is illustrated by the guardianship of humans to animals and the return of services and products by animals, and does not require the understanding of languages for it to be beneficial to both parties[29]. Plutarch and Porphyry also argue that humans lack the capacity to understand the language of animals not that animal language has no meaning[30]; as the modern philosopher, Wittgenstein, stated: “If a lion could talk we would not understand him”[31].

Most of the arguments above that deny non-humans the capacity of reason, intelligence and communication result in the denial to animals of any moral obligation. The Stoic, Chrysippus, puts this argument as such: humans and non-humans have three things on common: senses, utterance and reproduction. Humans can also reason, whereas animals are only motivated by impulse. Therefore, humans need not consider the interests of animals[32]. As Aristotle stated, slavery is a natural phenomenon because it is natural for one human to rule over another and as animals are intended for human use it is natural for humans to rule over animals[33]. This denial of interest to animals culminated in Augustine’s use of Aristotle’s and the Stoics’ arguments to defend the use of animals to benefit human lives on the grounds that God gave humans animals in order to help them to salvation[34]. To attribute reason to animals was tantamount to denying Christian notions of humans being fit for the divine recreation of God[35]. The Egyptian practice of animals representing the gods on earth was sacrilegious to Christian sensibilities. Therefore, animals became ‘the other’ and the primacy of humans became paramount.

Rather than a symbiotic and reciprocal relationship based upon the interests of both humans and non-humans, this reliance on a criteria of reason, intelligence and language to assert an anthropocentric world view discounts and ignores all the ancient contentions that counter such a view. Porphyry, Plutarch and Alexander were right in using the many examples from their environment to show that other animals are very much like humans. They live in complex societies, they build complex dwellings, they make choices between good and bad, they exhibit hopes, fears and desires, and have autonomy. As Lucretius stated, humans and non-humans do engage in tacit contractual agreements when they breed animals for their products or services. However, these agreements can quickly degenerate into master/slave relationships when humans disregard the interests of animals. Also, just as some humans cannot understand the language of other humans from another society, so too it is with other animals. Therefore, arguments used by ancient writers to support the claim that animals are different to humans rely upon criteria that are not exclusive to human beings and have caused the suffering of animals for over two thousand years.

BIBLIOGRAPHY:

  1. Alcaemon of Croton, DK1a, Hermann Diels & Walther Kranz, eds, Die Fragmente der Vorsokratiker, 6th edn (Berlin: Weidmann, 1951-52)
  2. Aristotle, “Metaphysics”, from Newmyer, S.T., Animals in Greek and Roman Thought: A Sourcebook, (2011), Routledge Press
  3. Aristotle, “Parts of Animals”, from Pierre Louis, ed., Aristote; Les Parties des Animaux (Paris: Les Belles Lettres, 1956)
  4. Aristotle, “Politics”, Jean Aubonnet, ed., Aristote; Politique, Livres I et II (Paris: Les Belles Lettres, 1968)
  5. Augustine, “De civitate dei” [The City of God], from B. Dombart & A. Kalb, eds, Sancti Aurelii Augustini de Civitate Dei Libri I-X (Turnhout: Brepols, 1955 (Corpus Christianorum Series Latina 47)
  6. Beck, J., (2012), “Why we can’t say what animals think”, Philosophical Psychology, 2012, 1-27, Routledge Press
  7. Chryssipus, “SVF”, from Johannes von Arnim, ed. Stoicorum Veterum Fragmenta (Stuttgart; Teubner, 1964; reprint of the edition of 1905)
  8. Cicero, “De finibus bonorum et malorum” [On the Ends of Good and Evil], from Claudio Moreschini, ed., M.Tullius Cicero Scripta Quae Manserunt Omnia Fasc. 43: De Finibus Bonorum et  Malorum (Munich and Leipzig: Saur, 2005)
  9. Diogenes Laertius, “Lives of the Philosophers”, from H.S. Long, Diogenis Laertii Vitae Philosophum (Oxford: Clarendon Press, 1964)
  10. Epicurus, kuriai Doxai [Soveregn Maxims] XXXI and XXXII, as cited in Diogenes Laertius, Lives of the Philosophers X. 150 [from the life of Epicurus], from Newmyer, S.T., (2011), Animals in Greek and Roman Thought: A Sourcebook, Routledge Press
  11. Gilhus, Ingvild S. (2006) “The religious value of animals” in Animals, Gods and Humans: Changing Attitudes to Animals in Greek, Roman and Early Christian Ideas , Gilhus, Ingvild S. , 2006 , 93-113
  12. Hesiod, The Homeric Hymns and Homerica with an English Translation by Hugh G. Evelyn-White, Works and Days. Cambridge, MA.,Harvard University Press; London, William Heinemann Ltd, 1918
  13. Homer, The Odyssey with an English Translation by A.T. Murray, PH.D. in two volumes, Cambridge, MA., Harvard University Press; London, William Heinemann, Ltd. 1919
  14. Lonsdale, S.H., (1979), “Attitudes Towards Animals in Ancient Greece”, Greece and Rome, 2nd Ser., Vol.26, No.2, (Oct., 1979), 146-159
  15. Lucretius, “De rerum natura” [On the Nature of Things], from Joseph Martin, ed., T. Lucreti Cari de Rerum Natura Libri Sex (Leipzig: Teubner, 1963)
  16. Newmyer, S.T., (2011), Animals in Greek and Roman Thought: A Sourcebook, Routledge Press
  17. Philo of Alexandria, “On Animals”, from Newmyer, S.T., Animals in Greek and Roman Thought: A Sourcebook, (2011), Routledge Press
  18. Plato, “Laws”, Burnet, J., ed., Platonis Opera (Oxford: Clarendon Press, 1901-1902; rept. 1962-1967)
  19. Plutarch, “De esu cranium” [On the Eating of Flesh), from Newmyer, S.T., (2011), Animals in Greek and Roman Thought: A Sourcebook, Routledge PressPlutarch, “On the Cleverness of Animals”, from Newmyer, S.T., Animals in Greek and Roman Thought: A Sourcebook, (2011), Routledge Press
  20. Plutarch, “De Stoicurum repugnantis” [On the Self-Contradictions of the Stoics], from Michel Casevitz & Daniel Babut, eds, Plutarque: Ouvres Morales XV (Sur les Contradictions Stoiciennes, etc.) (Paris: Les Belles Lettres, 2004)
  21. Porphyry, “On Abstinence from Animal Flesh”, from Jean Bouffartigue, Michele Patillon, Alain Segond and Luc Brisson, eds, Porphyre; De l’Abstinence (Paris: Les Belle Lettres, 1977-1995)
  22. Wittgenstein, L., (1973), Philosophical Investigations, Oxford: Blackwell
  23. Xenophon, “Memorabilia” [Recollections of Socrates], from E.C. Marchant, ed., Xenophontis Opera Omnia (Oxford: Clarendon Press, 1967)

[1] Homer, The Odyssey with an English Translation by A.T. Murray, PH.D. in two volumes, Cambridge, MA., Harvard University Press; London, William Heinemann, Ltd. 1919

[2] Lonsdale, S.H., (1979), “Attitudes Towards Animals in Ancient Greece”, Greece and Rome, 2nd Ser., Vol.26, No.2, (Oct., 1979), 149

[3] Hesiod, The Homeric Hymns and Homerica with an English Translation by Hugh G. Evelyn-White, Works and Days. Cambridge, MA.,Harvard University Press; London, William Heinemann Ltd, 1914

[4] Lonsdale, Attitudes Towards Animals in Ancient Greece, Greece and Rome, (1979), 156

[5] Gilhus, Ingvild S. (2006) “The religious value of animals” in Animals, Gods and Humans: Changing Attitudes to Animals in Greek, Roman and Early Christian Ideas , Gilhus, Ingvild S. , 2006 , 99

[6] Alcaemon of Croton, (DK1a)

[7] Plato, Laws, 766a

[8] Aristotle, Politics 1332b3-8

[9] Aristotle, Metaphysics, 980a28-981a4

[10] Philo of Alexandria, On Animals, 85

[11] Augustine, De civitate dei [The City of God] , 1.20

[12] Philo of Alexandria, On Animals, 17; 45

[13] Plutarch, On the Cleverness of Animals, 960D-E

[14] Porphyry, On Abstinence from Animal Flesh III. 13.1-3

[15] Diogenes Laertius, Lives of the Philosophers VII.55 [from the life of Zeno the Stoic]

[16] Aristotle, History of Animals, 488a20-26;588a16-18-588b3

[17] Philo of Alexandria, On Animals 44

[18] Newmyer, S.T., (2011), Animals in Greek and Roman Thought: A Sourcebook, Routledge Press, 28

[19] Philo of Alexandria, On Animals 29

[20] Plutarch, On the Cleverness of Animals, 960D-E

[21] Plutarch, De Stoicurum repugnantis [On the Self-Contradictions of the Stoics] 1038B

[22] Newmyer, (2011), Animals in Greek and Roman Thought: A Sourcebook, 28

[23] Cicero, De finibus bonorum et malorum [On the Ends of Good and Evil] II. 109-110

[24] Epicurus, kuriai Doxai [Soveregn Maxims] XXXI and XXXII, as cited in Diogenes Laertius, Lives of the Philosophers X. 150 [from the life of Epicurus]

[25] Xenophon, Memorabilia [Recollections of Socrates] 1.4.11-14

[26] Diogenes Laertius, Lives of the Philosophers VII.55

[27] Aristotle, Parts of Animals 660a35-660b2

[28] Philo of Alexandria, On Animals, 98

[29] Lucretius, De rerum natura [On the Nature of Things] V. 855-877

[30] Plutarch, De esu carnium [On the Eating of Flesh] 994E; Porphyry, On Abstinence from Animal Flesh III.2-4

[31] Wittgenstein, L., (1973),Philosophical Investigations,  Oxford: Blackwell, XXxi

[32] Chryssipus, SVF 2.821

[33] Aristotle, Politics 1256b15-23

[34] Augustine, De civitate dei, 1.20

[35] Gilhus, (2006) “The religious value of animals” in Animals, Gods and Humans: Changing Attitudes to Animals in Greek, Roman and Early Christian Ideas, 99

Nicholas Georgouras, 2005, Carrara marble, 250cm x 100cm

“We do not inherit the earth from our ancestors, we borrow it from our children.”

Native American proverb

Sorrell and Hendry define a narrow code of ethics within business as that which is restrained only to its employees or shareholders[1]. A broad code of ethics is that which includes responsibilities to the wider community and environment[2]. Although most codes of ethics define responsibilities to communities, some businesses find that their particular responsibilities to the pursuit of profit for shareholders constrain and conflict with these policy objectives[3]. However, businesses operate in and rely upon the communities where they are situated. The people within these communities expect to be treated equally and fairly by governments and businesses. This essay will argue that a broad code of ethics is needed in the application of inclusive principles, such as the concepts of equal opportunity and affirmative action, and that such inclusive principles can benefit the businesses that apply them.

The expectations and ideals of equality do not reflect the real differences between peoples’ physical and psychological abilities. When these types of real inequalities are transferred to a business environment so that it can reflect political equality, these issues can become problematic[4]. A narrow ethical objection could be: Why is it the responsibility of business to compensate individuals for these real inequalities? To consider these responsibilities, it is useful to consider the laws that are in place and how they are enacted.

The anti-discrimination laws, such as the Anti-Discrimination Act 1977 (NSW), legislate that all employers must fairly treat their employees and potential jobseekers[5]. As such, they reflect the impartiality of the law and appeal to normative ethical approaches of equality and fairness. All employees are entitled to equal opportunities and employers must not allow prejudices or stereotyped views to influence their decisions about hiring or treating people that they employ[6]. The only reason that an employer can legally justify an action of discrimination is if it would cause unjustifiable hardship to them[7]. This type of legislation recognizes the equality of people but also preserves fairness to business.

This legislation means that businesses must operate with a broad code of ethics when it comes to dealing with equal opportunity. These policies began to be enacted in the 1980s as a response to the disadvantages women suffered in the workforce[8], and were extended and implemented by the human resources department of some organisations as a program entitled Managing Diversity (MD)[9]. The main concept of an MD program is to increase competitive advantage through being able to access a diverse workforce. This is supposed to meet employee needs, reduce turnover costs and give the best customer service[10]. At the same time, governments have relaxed the legislative requirements and penalties for breaches[11] and affirmative action legislation has been negated to a certain degree[12].

The use of MD programs has become an answer for corporations subject to equal opportunity requirements. It is seen to broaden the ethical requirements rather than restricting them to the narrow environment of legislated affirmative action[13]. MD programs are also considered to focus upon the positive aspects of diversity rather than the negative aspects of disadvantage[14]: ‘“Managing diversity- the new paradigm” is internally driven, rests on a business case and perceives MD as an investment and difference is perceived as an asset’[15]. Therefore, it seems that business has broadened the scope of the ethics involved in equal opportunity and lobbied to narrow the legislative requirements that were brought about to give access to work for the disadvantaged. Has this broadening of the ethical scope resulted in better access for those who potentially benefit from equal opportunity legislation?

It has been alleged that many companies, such as Microsoft and Coca Cola, simply pay lip service to their espoused equal opportunity policies, with suspicions that policies are a process in image management and are not enshrined in practice[16]. In Britain, while Equal Opportunity (EO) policies have been adopted by many companies, only a quarter of companies surveyed arranged to consult disabled employees, and only half allowed time off for rehabilitation and treatment[17]. It is asserted by Jewson et al.[18] that the four reasons that companies adopt EO policies are:

  1. 1.      as an ‘insurance policy’ against future claims against their reputation;
  2. 2.      to demonstrate employer responsibility;
  3. 3.      as a response to problems created by community pressure; and
  4. 4.      to access a wider talent base or to expand the customer client base.

It is the final reason, that of accessing an expanded base of talent and customers, that should be considered the most important reason for a company to properly attend to equal opportunity policies. It is simply good business.

While EO legislation allows for a company to object to employing someone if it would cause them unjustified hardship, not employing people on the basis of gender, reproductive capability, ethnic origin, disability or age is also unjustified. It denies those effected access to life’s opportunities. Objections to EO policies on the grounds that they do not address primary societal differences in housing and education[19] fail to recognise that having work helps to relieve people from the trap of poverty and allows them access to quality housing and education.

The broadening of the ethics of business to include EO policies is in line with many other policy implementations that have occurred throughout the last century. Businesses have to deal with wage issues that reflect true living costs and conditions that enable workers to be able to have enough security to be a secure workforce. These issues are regulated and are beneficial to businesses because they ensure access to a reliable workforce. Health and safety regulations are also issues that businesses now have to deal with and they benefit through not having to pay for lengthy court cases and compensation claims that can occur after the event. This is similar to anti-discrimination regulations. These regulations give businesses access to a diverse workforce that truly represents the societies in which these businesses operate.

The concept of using a MD program has the advantages for businesses and the community of being internally-driven policy that can be linked to organisational objectives, and being less restrictive than an external EO agenda that demands a set of minimal targets[20]. The main concept of EO policies is that they use a white, heterosexual male as the norm and try to fit other groups into this, whereas MD is about diversity and expects that the mainstream will be a diverse group[21]. It responds to objections to EO policies, being reverse discrimination towards white males[22], by highlighting demographic difference. In this way, MD is able to be sensitive to labour needs and clientele differences which can improve productivity, employee commitment and profitability[23].

A broad ethical approach by any business to concepts of equal opportunity and affirmative action are based upon good reason. These concepts reflect the principles of equality and fairness in our society. They also reflect good business judgments about acting within the self-interest of a company and its shareholders, in that they broaden the scope of access to employees and customers. Finally they reflect the intuitive and universal Kantian concept of acting towards others as you would have them act towards you. It must be remembered that all of us can be affected, broadly or narrowly, by such inequalities as gender difference, ethnicity, disability or age.

BIBLIOGRAPHY

  1. De Cieri, H. and R. Kramar, 2003, Human Resource Management in Australia, McGraw Hill, Sydney
  2. Gaze, B. 1998, “The Ambiguity of Affirmative Action in Australia”, in Law in Context, (1998), vol. 15 no. 2
  3. Grace, D. & Cohen, S. 1995, “Ethical reasoning in business” in Business Ethics , Grace, Damian; Cohen, Stephen, 1995, pp.1-51
  4. Hettinger E.C. 2001, ‘What is Wrong with Reverse Discrimination?’ in W. Michael Hoffman, Robert E. Frederick & Mark Schwartz (eds.) Business Ethics: Readings and Cases in Corporate Morality, 4th edition (McGraw-Hill, New York, 2001), pp. 315-322
  5. Hoque, K. & Noon, M. 2004, “Equal Opportunities Policy and Practice in Britain: Evaluating the ‘Empty Shell’ Hypothesis”, in Work, Employment & Society,British Sociological Association, September 2004, vol. 18 no. 3, pp. 481-506
  6. Jewson, N., Waters, S. and Harvey, J. 1990, “Ethnic Minorities and Employment Practice: A Study of Six Employers”, Research Paper No. 76, Sheffield: Employment Department
  7. Jewson, N., Mason, D., Lambkin, C. and Taylor, F.,1992,  “Ethnic Monitoring Policy and Practice: A Study of Employers’ Experiences”, Research Paper No.89, London: Department of  Employment
  8. Jewson, N., Mason, D., Drewett, A. and Rossiter, W., 1995, “Formal Equal Opportunities Policies and Employment Best Practice”, Employment Department Research Series No. 69, Sheffield: Employment Department
  9. Pojman, Louis P. “The modern workplace: transition to equality and diversity: The moral status of affirmative action” in Business Ethics: Readings and Cases in Corporate Morality , Hoffman, W. Michael; Frederick, Robert E.; Schwartz, Mark S. , 2001 , 303-315
  10. Sorell, T. & Hendry, J. 1994, “Narrow and broad business ethics” in Business Ethics , Sorell, Tom; Hendry, John , 1994 , pp. 28-54
  11. Strachan, G., Burgess, J. & Sullivan, A. 2003,  Affirmative Action or Managing Diversity- What is the future of Equal Opportunity Policies in Organisations? Faculty of Business and Law, University of Newcastle, NSW
  12. The Anti-Discrimination Board, “Discrimination and the Anti-Discrimination Board of NSW”, ADB factsheet, viewed on: 30 July 2012 http://www.lawlink.nsw.gov.au/lawlink/adb/ll_adb.nsf/vwFiles/Disc_ADB_0311.pdf/$file/Disc_ADB_0311.pdf


                [1] Sorrell & Hendry, 1994, “Narrow and broad business ethics” in Business Ethics, Sorrell, Tom; Hendry, John,1994, p.28

                [2] Sorrell & Hendry, 1994, p.28

                [3] Sorrell & Hendry, 1994, p.28

[4] Grace & Cohen, 1995, p.144

[5] The Anti-Discrimination Board, “Discrimination and the Anti-Discrimination Board of NSW”, ADB factsheet, p.1, viewed on: 30 July 2012 http://www.lawlink.nsw.gov.au/lawlink/adb/ll_adb.nsf/vwFiles/Disc_ADB_0311.pdf/$file/Disc_ADB_0311.pdf

[6] The Anti-Discrimination Board, 2012, p.1

[7] The Anti-Discrimination Board, 2012, p.2

[8] Strachan, G., Burgess, J. & Sullivan, A. 2003,  Affirmative Action or Managing Diversity- What is the future of Equal Opportunity Policies in Organisations? Faculty of Business and Law, University of Newcastle, NSW, p.1

[9] Strachan et al. 2003, p. 1

                [10] De Cieri, H. and R. Kramar, 2003, Human Resource Management in Australia, McGraw Hill, Sydney, pp. 28-29

                [11] Strachan et al. 2003, p. 3-4

                [12] Strachan et al. 2003, p. 5

                [13] Strachan et al. 2003, p. 5

                [14] Strachan et al. 2003, p. 5

                [15] Strachan et al. 2003, p. 6

[16] Hoque, K. & Noon, M. 2004, “Equal Opportunities Policy and Practice in Britain: Evaluating the ‘Empty Shell’ Hypothesis”, in Work, Employment & Society,British Sociological Association, pp.481-482

[17] Hoque & Noon, 2004, p. 483

 [18] Jewson, N., Waters, S. and Harvey, J. 1990, “Ethnic Minorities and Employment Practice: A Study of Six Employers”, Research Paper No. 76, Sheffield: Employment Department; Jewson, N., Mason, D., Lambkin, C. and Taylor, F.,1992,  “Ethnic Monitoring Policy and Practice: A Study of Employers’ Experiences”, Research Paper No.89, London: Department of  Employment; Jewson, N., Mason, D., Drewett, A. and Rossiter, W., 1995, “Formal Equal Opportunities Policies and Employment Best Practice”, Employment Department Research Series No. 69, Sheffield: Employment Department

[19] Pojman, Louis P. “The modern workplace: transition to equality and diversity: The moral status of affirmative action” in Business Ethics: Readings and Cases in Corporate Morality , Hoffman, W. Michael; Frederick, Robert E.; Schwartz, Mark S. , 2001 , p.314

[20] Strachan et al., 2003, p.6

[21] Strachan et al., 2003, p.6

[22] Hettinger, E.C., 2001, ‘What is Wrong with Reverse Discrimination?’ in W. Michael Hoffman, Robert E. Frederick & Mark Schwartz (eds.) Business Ethics: Readings and Cases in Corporate Morality, 4th edition, pp. 315-322

[23] Strachan et al., 2003, p.6

Image

Nils Holtug argues for the Value of Existence View which makes ‘the comparative claim that existence can be better (or worse) for a person than non-existence’ (p.370). Derek Parfit and John Broome argue against this view by stating that it is incoherent. Parfit argues that causing someone to exist cannot be better for a person because the alternative would not have been worse. Broome argues that it can never be true that it is better for a person to exist than to not exist because if she had not existed there would not have been a ‘her’ to have been worse off.

The argument set out by Parfit and Broome is called the Metaphysical Argument and it relies upon two premises. The first premise makes the judgement that it is better (or worse) to exist than never to exist and entails that it is worse (or better) to not exist than to exist. The second premise is that it cannot be worse (or better) to not exist. The first claim, Holtug states, is based upon the logic of ‘betterness’ relation, and the second premise is based upon the metaphysical principle called The No Properties of the Non-Existent Principle. This means that an individual cannot have any properties if it does not exist.

This principle can be disputed. Broome’s argument relies upon the point that if a person does not exist then it is impossible for any properties to be attached to her. Holtug contends that the logic of betterness relation that the argument relies upon assumes that in order for existence to be worse than non-existence, non-existence must be better than existence. To explore the logical properties of the betterness relation, Holtug considers the following definition:

1)      y is worse for S than x, if and only of x is better for S than y.

If (1) states that existence if better (or worse) for a person than non-existence, non existence is better (or worse) for her. The latter part seems to violate the No Properties of the Non-Existent Principle. It seems to ascribe to her the property of being worse (or better) off in a possible world in which she does not exist. According to this principle we cannot claim that existence is better for her than non-existence because this implies that non-existence is worse for her than existence. So Holtug reassesses the argument with the proposition:

P: Non-existence is worse for Jeremy than existence.

Can the truth of P be established without ascribing to Jeremy positive properties in a possible world in which he does not exist? Holtug claims that P can be established by appeal to a preference that Jeremy has in an actual world in which he exists. Existence may be preferable for Jeremy because he prefers existence to non-existence. Jeremy’s life includes a surplus of positive value, whereas his non-existence had no value. Holtug insists that this is compatible with The No Properties of the Non-Existent Principle; it is better to have a surplus of values than no value. The Metaphysical Argument is not preserved because the Value of Existence View does not rely upon someone existing for the possibility of them benefiting from existence.

  • Holtug, Nils. “On the value of coming into existence” Journal of Ethics , 5:4 , 2001 , 361-384

Commercial surrogacy is defended on five main principles. The first is its effective means of allowing childless couples to have children is considered to make it a significant good. Second, the rights for autonomous adults to procreate and form contracts are too fundamental to interfere with unless it causes a significant harm. Third the act of surrogacy is seen as altruistic and to be encouraged and finally, commercial surrogacy should be seen as no different to and consistent with already accepted practices in the reproduction and raising of children.

Anderson argues against these principles stating that commercial surrogacy makes women’s labor a commodity. By applying market norms to this labor it regards the woman’s body and her role as a mother as one of mere use. For Anderson, it is the worth and respect that should be given to a woman for her labor, with regard to gestation and childbirth, that is disregarded when commercial factors are applied. It does not regard the emotional impact of such labor and can be seen as a callous disregard of the impact that such intimate relationships as a mother and child has upon the woman and the child.  Anderson argues that the application of commercial norms requires a mother to repress her parental emotions and this is a degradation of human relationships.

The surrogacy industry follows the contracting-out-of-labour system that works in manufacturing industries. The attached problem to this method is that it must disregard the fundamental emotional requirement of parenthood, that of attachment to the child. The woman’s labor is alienated because of this factor and it is a factor that does not affect any other type of manufacturing process.  For Anderson, such a requirement to alienate oneself from one’s child is a demand that should be not be upheld as it turns a woman’s body into a major part of a commercial production process.

Anerson argues for commercial surrogacy by claiming that surrogacy is inspired by altruistic motives. He argues that if there is nothing wrong with altruistic surrogacy, there should be nothing wrong with commercial surrogacy as it applies to a woman’s labor. Anerson states that Anderson promotes a woman’s labor as noble labor and that the commercialisation of this labor is degrading. He then argues that many kinds of noble labor is done for commercial exchange and cannot see why a woman’s labor should be seen differently.

Anerson states that as long as there is no fraud or misrepresentation in a surrogacy contract a woman who wishes to render her surrogate services should be free to sign it, just as if she wishes to supply a babysitting service. Anerson also argues that although the surrogate contract might stipulate that the woman not form an attachment to the child and this can be an alienating form of labor, alienating labor is not impermissible. Citizens should be free, Anerson contends, to arrange their work lives the way they wish.

  • Anderson, Elizabeth S. “Is women’s labor a commodity?” Philosophy and Public Affairs , 19:1 , 1990 , 71 – 92
  • Arneson, Richard. “Commodification and commercial surrogacy” Philosophy and Public Affairs , 21:2 , 1992 , 132-164