Successive Discrimination? (Part two of three)

This is the second in a series of three posts.
The first can be found here and the third is still to come.

In the first post we mentioned the fact that some people are claiming that three things in the law of succession are unacceptably "discriminatory": (1) male preference in the law of primogeniture, (2) the bar on the sovereign being a Roman Catholic and (3) the bar on the sovereign marrying a Roman Catholic. In this second post I want to consider these claims in more depth.

In recent years cries of "discrimination" have taken on an almost mantric effect in society. You don't like your lot in life? Cry 'discrimination'! Sue someone for a breach of your 'right' not to be 'discriminated against'! Countless "rights" movements over the course of the last century have perpetrated the pernicious idea that 'discrimination' is an evil to be eliminated from society. But on closer reflexion it should be apparent that discrimination as such is neither inherently good nor bad. Pretty much every law is "discriminatory" in some way or another. In other words just about every law treats one group of people differently from another. The real issue is not whether a law is discriminatory, but how it is discriminatory and whether such discrimination is justifiable (acceptable) or not. 'Thou shalt do no murder' is a discriminatory law; it discriminates against murderers in favour of their intended victims and the rest of society and (no surprises here) I'm all for it. Let's continue to discriminate against murderers, rapists, thieves and the like and say that murder, rape, thievery etc are not valid lifestyle choices and moreover that those who engage in such conduct will face the full force of the law.

So quite clearly the question is not whether the law discriminates, but whether it unjustifiably discriminates. When someone cries 'discrimination' what she really means is this: 'you have treated me differently than you ought to have'. Pointing out differences between the way you and someone else were treated is not enough. You also have to argue that the person oughtn't to have treated you differently -- in other words that he had no legitimate grounds for discrimination. Simply put, the assumption is that (as a matter of justice) like cases should be treated alike.

Now the law of succession does not criminalise anything so it is not like the laws against murder, rape, theft etc above. Just because the law of succession gives preference to male over female heirs or prevents the sovereign from being or marrying a Roman Catholic it is most definitely not saying that being female or Roman Catholic (or marring one) are not valid lifestyle choices in our society. No, it is saying something rather different. But what exactly?

I.

Before we can answer the question as to whether any discrimination is justified we first have to be clear on how it is discriminatory (i.e. what exactly does the law of succession prevent and for whom?). It will become clear that the law of succession does not prevent anyone in society (including members of the royal family) from being female, Roman Catholic or marrying a Roman Catholic. It does not outlaw these things. But being female or Roman Catholic (or marrying one) can have consequences for members of the royal family. What are they? And what does all of this have to say about whether any discrimination in the law of succession is justified?

The first point we need to make is the rather obvious -- but all too often overlooked -- one that a hereditary monarchy is inherently discriminatory and this renders a lot of the objections against male preference in primogeniture and the restriction on the sovereign being a Roman Catholic nugatory. In a hereditary monarchy the choice of King or Queen is, well, hereditary and discriminatory in a number of ways. How so? Well one way is that by its very nature a hereditary monarchy discriminates against everyone who is not a member of the royal family. Only members of the royal family can become King or Queen. That law of succession 'discriminates' against everyone in society who is not a member of the royal family. Is this discrimination acceptable? Assuming we're not members of the royal family then you or I can never become King or Queen and all arguments about "discrimination" on the grounds of sex or religion are irrelevant as far as your or my claim to become King or Queen is concerned. Because we weren't born into the right family we simply do not have any claim to be King or Queen regardless of our sex or religion. A second way in which a hereditary monarchy is inherently discriminatory is that it discriminates against some members of the royal family in favour of others. Only one member of the royal family can be King or Queen at a time and there have to be rules for determining which member of the royal family is to be King or Queen. Simply put, these rules "discriminate" against all those members of the royal family who don't become King or Queen. Is this discrimination acceptable? One common way (and that chosen by the UK and the other Commonwealth realms) is the law of primogeniture. This 'discriminates' against younger in favour of older siblings. (Ed. - The shame of it says he as the youngest of three!)

These two kinds of "discrimination" are inherent to the nature of a hereditary monarchy and if they irk you then arguments about whether you should have male-preference in the law of primogeniture or not or indeed whether the sovereign can be or marry a Roman Catholic would seem to be mere bagatelles in comparison. If this is your view then the only real solution is to abolish the monarchy in favour of some other form of government (eg a republic, or anarchy etc -- but even in most republics access to office is is some ways "discriminatory", eg the office of President being limited on grounds of citizenship and age.) So to such people I would say: What are you really opposed to? Are you really opposed to male preference in the law of primogeniture? Or are you in actual fact opposed to the idea of hereditary monarchy (with or without primogeniture) altogether? Arguments about male preference in the law of primogeniture and religious tests for an office that is not open to the general public (including yourself) anyway are relatively trifling matters in the scheme of things. If you really don't like the idea of a hereditary monarchy and primogeniture then be honest and argue the case against hereditary monarchy and primogeniture in general. Arguments from Republicans about the "discriminatory" nature of male preference in primogeniture or religious tests are for the most part canards (even more so in places such as Australia and Canada than in Britain if that were indeed possible). Even if we abolished the three things currently under consideration, Republicans would still think the whole system stinks. I suspect that most of the people making the calls for change (including many members of the Labour Party in the UK) in actual fact object to the very principles of a hereditary monarchy and the law of primogeniture themselves but for political reasons can't win this debate and so settle short by tinkering with the monarch around the edges. So why not be honest and say what you really think instead of playing trendy (underhanded?) games about male-preference and religious tests within a system you deeply despise?

Secondly, when we come to two of the three things which people are talking about changing in the current law of succession, viz. male preference in the law of primogeniture and the restriction on the sovereign being a Roman Catholic (NB I will hold off talking about the restriction on the sovereign marrying a Roman Catholic until later), we need to be careful not to engage in a category mistake. In brief, it is a fundamental mistake to claim that male preference primogeniture discriminates against 'women' or that the restriction on the sovereign being a Roman Catholic discriminates against 'Roman Catholics'. No, the fact that we have a hereditary monarchy and the principle of primogeniture to begin with is the cause of most of the "discrimination" in who can and can't become King or Queen. The basic question is this: who do these rules discriminate against? Perhaps surprisingly, the answer is not "women" or "Roman Catholics". At most these two rules discriminate against a very small subset of women (viz. female members of the royal family) and against a very small subset of Roman Catholics, or potential Roman Catholics (viz. members of the Royal family who are or would like to be Roman Catholic).

Male preference in the law of primogeniture does not discriminate against 'women' for the simple reason that most women can't become Queen anyway. The fact that we have a hereditary monarchy at all means that well over 99% of women in a monarchy can never become Queen (and here I am talking of a queen regnant not a queen consort). And that situation has absolutely nothing to do with male preference in the law of primogeniture. It is simply wrong to suggest therefore that male preference primogeniture discriminates against women. If you are a woman reading this then unless you are a member of the royal family the law of male preference in primogeniture does not affect you one iota. You (along with all the other women of the realm outside of the royal family) are not discriminated against by male preference in the law of primogeniture. Similarly with Roman Catholics (or potential Roman Catholics): If you are a Roman Catholic (or potential Roman Catholic) reading this then unless you are a member of the royal family the law barring Roman Catholics from acceding the throne does not affect you one iota. You (along with all the other actual and potential Roman Catholics of the realm outside of the royal family) are not discriminated against by this law. So don't falsely argue that the law of succession discriminates against 'women' or 'Roman Catholics'. Unless you are a member of the royal family, then arguments about sexual or religious discrimination in the law of succession are irrelevant as far as your rights are concerned.

What's more, for all practical purposes the group of people affected by these laws is actually smaller than what I have just suggested. Take the law of male preference in primogeniture as an example. If the sovereign has four children, two female and two male (F1,F2, M3, and M4 in their order of birth) then who does the principle of male preference in primogeniture affect? In one sense all of them: under the principle of male preference the order of accession would be M3 M4, F1, F2. If, however, male preference were abolished and we had a system of simple primogeniture the order would be F1, F2, M3 and M4. So with this we can begin to answer the question of who it is that is "discriminated against" by male preference in the law of primogeniture. Well very clearly F1 is discriminated against. Without male preference she would be first in line, with it third. That is the difference between being queen regnant and remaining a princess. Now while it is true that in a sense male preference "discriminates against" F2 (with it she is fourth in line, without it second), in both cases someone has a better claim to the throne than her. In other words under both systems F2 remains a princess with no claim to the throne. It is important to note that in neither case is it male preference which is preventing F2 from becoming Queen and a change in the law to abolish male preference would not alter that fact. What is stopping F2 becoming Queen is not male preference but another principle -- that of simple primogeniture. If F2 wants to become Queen then tinkering with the law of male preference makes no difference to her so long as F1 is alive. At most it changes her claim from fourth best to second best and while F1 is alive there is no substantive difference between having the second and fourth best claim to the throne. In both cases she remains a 'mere' princess.

So simple primogeniture and not male preference is the real villain of the piece for F2 (and in fact all women in the royal family apart from F1). That is what I mean by the fact that for all practical purposes the law of male preference (or mutatis mutandis the bar on the sovereign being a Roman Catholic) at most only "discriminates" against one person: either a first-born female in the case of male preference or the heir apparent in the case of the bar on the sovereign being a Roman Catholic. In all other cases it is a different principle (viz. simple primogeniture) which prevents a member of the royal family from becoming King or Queen.

Now as it happens the current heir apparent (Prince Charles) is a non-Roman Catholic first-born male so no-one is discriminated against by either of these two principles. Changing the law wouldn't change who the heir apparent is.

II.

Now that we have seen that (a) hereditary monarchy and primogeniture are inherently discriminatory and (b) that the bits about male preference and Roman Catholicism in the law of succession don't actually discriminate against women or Roman Catholics but only against a very few female and Roman Catholic members of the royal family (and arguably a maximum of one at at time) we can turn to the next question. Is such "discrimination" a bad thing? Ought we to change it? Why or or why not? And how?

There is an argument that although no-one is currently discriminated against by any of the principles currently under attack (i.e. none of them is preventing anyone who would otherwise be King or Queen from becoming so), we still ought to change the system so that the rules won't prevent anyone in the future from becoming King or Queen who otherwise would.

One reply to this would be to argue that since the whole system of a hereditary monarchy based on primogeniture is discriminatory anyway you can hardly say on principle that it is legitimate to discriminate between members of the royal family and the rest of society in general on the basis of heredity or among members of the royal family on the basis of age but that it is illegitimate to discriminate among members of the royal family on the basis of sex or religion. At the very least proponents for change would have to argue why the former kinds of discrimination are legitimate and why the latter are not.

A second reply would be to ask what concern it is of ours anyway. Regardless of what we happen to think it could be argued that it really is no business of ours anyway since our rights are not affected anyway. Since the proposed changes to the law of succession make no real difference to anyone outside of the royal family, we commoners should leave it to the possible victims of the discrimination (i.e. members of the royal family in general and those affected by any potential changes in particular) to initiate the calls for change. If the female or Roman Catholic members of the royal family have a problem with it we should let them raise the point -- at least initially. But if they don't have a problem with the system then why should we if changing the rules wouldn't affect us one way or the other? Have those clamouring for change thought to ask Princess Anne and the other female members of the royal family whether they actually want to be bumped up the order of preference? Maybe they would like to be. But then again maybe they wouldn't. For all we know Princess Anne might prefer being below her younger brothers Andrew and Edward in the pecking order and being spared the burden of becoming Queen regnant. If so, then who are we to force her up the pecking order against her will?

Contrary to these stated objections, however, people might argue one of two things: first that justice requires an abolition of the law of male preference within hereditary primogeniture (or the bar on Roman Catholics being or being married to the monarch) and secondly that while justice may not require such a change, in a democratic constitutional monarchy the people are free to change the law of succession according to their conception of the good, regardless of the wishes of the members of the royal family affected by any change.

This first claim (i.e. that justice requires change) is difficult (but not impossible) to make for two reasons:
First, it is hard to argue that 'justice' requires non-discrimination with regard to sex and religion within the royal family while nevertheless defending the very existence of a hereditary monarchy which discriminates between members of the royal family and all others or primogeniture within the royal family. How can you argue that it is 'unjust' for a younger male sibling to get preference over an older female sibling but that it is not 'unjust' for an older sibling to get preference over a younger sibling, or indeed that it is not 'unjust' for members of one family (the royal family) to get exclusive preference over accession to the throne? At most we could argue that the current system is less just (perhaps infinitesimally so) than the proposed new system. In other words, the proposed new system is not itself just, just a little bit less unjust than the current system. Now such an argument can certainly be made, but once you make it you abandon the strength of arguing from the position of justice. Arguments that the whole system of a hereditary monarchy are unjust and should therefore be abolished resonate much more loudly than saying the system is itself unjust but we need to make it a little bit less unjust! And, more importantly, once you abandon the high ground you open the possibility of people countering your claims with a kind of a cost-benefit argument. Why replace one unjust system with another? Even if we grant for the sake of argument that the proposed changes would be less unjust than the current system, why change them if they are not in themselves just? Can we (indeed should we?) weigh up other possible considerations in choosing to replace one unjust system with another (perhaps marginally less) unjust system? Is there a legitimate argument to be had about the costs and benefits of marginal justice?

The second reason why arguments from justice are hard to make is that the necessity of a connection between law and justice is assumed but never demonstrated. Ought our laws (including the constitution) to aspire to justice? If so why? This is a perennial problem in the philosophy of law. I believe the answer to be yes, but with some important qualifications. I shan't go into this debate in detail here. But I shall pose a few questions to consider. Even if we agree that in an ideal world our laws should be perfectly just (which is not necessarily something everyone would agree with, but let's go with it for the sake of argument), given that we don't live in an ideal world what kinds of imperfections of justice are acceptable in our laws? Is there an obligation to make our laws more just when the changes wouldn't be perfectly just? Is there a cost-benefit analysis to all of this? Does having our laws reflect justice come at a price? And what kind of price is acceptable? You might agree that a hereditary monarchy with simple primogeniture is not (perfectly) just but is still more just than one with male preference primogeniture. Fine, but so what? Is there an obligation to replace an unjust law with a marginally less unjust one? Why? And does cost-benefit come into this at all? Can you say that outcome B although not perfectly just would be less unjust than outcome A but still say the "cost" of the change outweighs the benefits? These are difficult questions we need to face if you are going to try to make arguments from "justice" for a change to the law of succession.

The second claim (i.e. that in a democratic constitutional monarchy the people are free to change the law of succession according to their conception of the good, regardless of the wishes of the members of the royal family) brings us, in my view, to the very heart of the matter under consideration. For reasons I don't want to go into here I think the answer is yes: Such a society is free to change the law of succession according to its conception of the good and this in my view is the real point of contention here.

The argument is not about individual claims of right against discrimination but about our conception of the collective good in a political society. There is a fundamental difference between laws (and claims of right) under a constitution and the act of making a constitution itself. Make no mistake about it: these calls are calls to change the constitution. It is a category error to argue this in terms of the "legal rights" of female and Roman Catholic members of the royal family to non-discrimination. What you are in fact saying is this (and strictly speaking this description only applies to the UK and not the other Commonwealth realms; for the others you would have to phrase it slightly differently but the broad point is the same): "We as a people want to re-constitute our society moving from a Protestant Reformed (Church of England/ Church of Scotland) hereditary monarchy based on male-preference primogeniture to a non-denominational hereditary monarchy based on simple primogeniture" -- or something to that effect.

Arguments about the "rights" of individual members of the royal family aren't really relevant. People are not calling for change because the (legal) "rights" of female and Roman Catholic members of the royal family are being violated. No, they are calling for change because they want to reconstitute political society from one form of government to another (perhaps out of aspiration towards some kind of a perceived 'natural' right of older sisters in the royal family not to be 'discriminated against' in favour of their younger brothers, or perhaps for different reasons entirely). Society is making a choice between constituting itself as one form of hereditary constitutional monarchy as opposed to another. Questions about the (legal) "rights" of members of the royal family aren't what we're talking about here. Any legal rights they have only arise according to law after society has decided how it wants to constitute itself (eg the choice between a Protestant Reformed (Anglican) hereditary monarchy based on male-preference primogeniture and a non-denominational hereditary monarchy based on simple primogeniture). Briefly put, in a Protestant male preference primogenitary monarchy Roman Catholics and elder sisters cannot complain that the system violates their legal "rights". All they can do is attempt to change the system from one form of political organisation to another.

So that's the choice we're faced with. And it is a political choice for society to make. Questions of individual legal right simply don't enter into the equation. They come later, once we have made the fundamental political choice about the kind of society we will create. In the case of the UK it needs to ask itself what kind of society it wants to constitute itself as. Do you want yourselves to be a Protestant Reformed (Church of England/ Church of Scotland) hereditary monarchy based on male-preference primogeniture? Or do you want to be a non-denominational hereditary monarchy based on simple primogeniture? Or do you want to be something else entirely (eg a secular Judeo-Christian republic, a Marxist dictatorship of the proletariat, an elective Roman Catholic monarchy, an anarchy etc)? That's the real question. What do you as a nation want to be?

Of course in answering that question you will have to ask yourselves some questions about sex and religion and whether it is right that they play a role in determining which member of the royal family occupies the throne. What is the point of male preference in the law of primogeniture? What is the point of being a Protestant monarchy (albeit one which guarantees freedom of religion to all subjects -- including members of the royal family)? Is the current form of monarchy in accordance with "the good"? Or would a different one be better for us as a society?

Seen in this light the question is not really about the individual "rights" of members of the royal family not to be "discriminated" against but rather the constitutional nature of the political society we are constructing and whether in constituting ourselves as a society there is a role for sex and religion in our choice of who occupies the throne. As things stand, a female or Roman Catholic member of the royal family can't go to court and claim a violation of a legal right not to be subjected to sexual or religious discrimination. Why? Well for the simple reason that no such legal right exists -- even if the constitution or law otherwise contains such a legal right (for instance the Canadian Constitution's Charter of Rights and Freedoms). The law of succession including its "discriminatory" provisions is the constitution and trumps all laws made under the constitution and also cannot be "trumped" by any other constitutional provision against non-discrimination in matters of sex and religion (eg the Canadian Charter of Rights and Freedoms).

In saying the law of succession is "discriminatory" you are not saying "female and Roman Catholic members of the royal family have a legal right to non-discrimination". What you are in fact saying is "we want to re-constitute our society moving from a Protestant Reformed (Church of England/ Church of Scotland) hereditary monarchy based on male-preference primogeniture to a non-denominational hereditary monarchy based on simple primogeniture because we do not believe it is acceptable to let sex or religion play any role in the selection of our king or queen".

So in this light we can finally turn to the three questions Brown and others are saying need to be addressed. Is it "acceptable" in the 21st Century for sex or religion to play a role in the selction of king or queen? If so what role? And if not, why not? Coming back to the specific calls for change can we offer reasons in justification of (1) male preference in the law of primogeniture, (2) the bar on Roman Catholics acceding the throne and (3) the bar on the sovereign marrying or being married to a Roman Catholic as the advocates of change want to deny? And can their opponents offer better reasons for their alternative vision?

If the people of the UK choose to constitute themselves as a Protestant hereditary monarchy or if the people of the Vatican choose to constitute themselves as a Roman Catholic elective monarchy or if the people of the United States of America choose to constitute themselves as a secular democratic republic based on Judeo-Christian values or if the people of China choose to constitute themselves as an atheist socialist democratic (Marxist-Leninist) republic, then no-one can claim that her legal "rights" are violated by that. This is a question of sovereignty which precedes questions of legal right. A descendant of the last Chinese emperor (if there are any -- I have no idea) can't go to court in China and claim his legal right to be King of China has been violated because the Chinese nation (rightly or wrongly) has constituted itself as a Marxist-Leninist people's republic. A Protestant in the Vatican can't claim he is legally discriminated against because he is excluded from being head of state on the basis of his religion because (rightly or wrongly) the Vatican has constituted itself as a Roman Catholic elective monarchy. And likewise a Roman Catholic member of the royal family in Britain. The United Kingdom of Great Britain and Northern Ireland is (rightly or wrongly) a Protestant constitutional hereditary monarchy (albeit one which guarantees freedom of religion to all subjects).

Those kinds of choices -- what kind of society you want to constitute yourself as -- are fundamental questions of sovereignty and not questions of legal right. These are questions of making constitutions and not questions that arise under a constitution. Such questions precede questions of legal right. That is why claims of "discrimination" in the law of succession must necessarily fail before the courts (as they did in Canada). At most, cries of "discrimination" in the law of succession are a call to say that although no Roman Catholic member of the Royal family (or a first-born female) currently enjoys a right under the constitution to be king or queen, we want to change the constitution in order that he or she does. In other words although s/he doesn't have such a right, as a nation we think s/he ought and we want to reconstitute the nation accordingly. Not surprisingly, this desire reflects an underlying difference in values. What it boils down to is this: those calling for change do not agree with the values underlying the current constitutional settlement and are espousing a different set of values. Out with the value of a Protestant monarchy with freedom of religion (as the UK currently is) and in with a secular non-denominational monarchy (as the advocates for change want it to be).

So the question for our consideration is this: What was the value in a society such as the UK having constituted itself in the past as a Protestant monarchy on the basis of male-preference primogeniture? And what (if any) is its continued value today? Opposed to this, what is the value of the UK reconstituting itself as a simple primogenitary secular/ a-religious monarchy (or perhaps some half-way house such as a Protestant monarchy based on simple primogeniture)? Specific arguments on these points will be addressed in the third post (still to come!).