It's Not the Thought that Counts

Deborah Hellman, University of Maryland School of Law

Document Type Article

Working paper.


The article considers a central question about discrimination – are an actor’s intentions relevant to whether an action wrongfully discriminates – and takes issue with a familiar answer to this question. If one thinks of “discrimination” in its literal sense, as simply drawing distinctions among people on the basis of possessing or lacking some trait, it becomes clear that discrimination is ubiquitous and often benign. The challenge is to distinguish when discrimination is permissible and when it is not. One common answer to this question is that it is the intentions of the actor who adopts or enacts a law, policy or decision that are crucial. Legal doctrine, both constitutional and statutory, reflects this view by treating the actor’s intentions as centrally important. But is the moral claim on which it rests defensible; are intentions morally relevant to whether discrimination is wrong?

The article argues that the actor’s intent in enacting a law, adopting a policy or making a decision is irrelevant to the moral assessment of whether the law, policy or decision wrongfully discriminates. The article begins in Part I by drawing an analogy to a debate in the philosophical literature about the Doctrine of Double Effect in order to press the point that the focus on intentions confuses assessment of the wrongfulness of the action with assessment of the moral blameworthiness of the actor. The article goes on to argue that when we look more closely at instances of discrimination, we see that it is not the aims of the actor that render the action wrongful, rather it is what the actor does, whether intentional or unintentional, that matters. Parts II and III raise and reply to objections to the arguments advanced in Part I. In particular, Part II explores the argument that the actor’s intent is necessary to determine whether or not a law or policy distinguishes among people on the basis of a suspect trait. Part III explores objections meant to show that bad intentions contribute, at the very least, to rendering an action wrongful. The article finishes by concluding that, as far as discrimination is concerned, it is not the thought that counts.