The Rule of Law, Discrimination, and Morality

and mayhem that they had witnessed daily in the enclosure literally on their doorstep? Because morality is a transaction. As Rabbi Hillel, the Talmudic Jewish sage, and Jesus of Nazareth put it: do not do unto others that which you don’t want them to do to you (to apply a utilitarian slant to their words).

When people believe and are assured by the authorities that an immoral law or practice will never apply to them, they don’t mind its application to others. Immoral acts inevitably devolve from guaranteed impunity. The Rule of Law does not preclude exclusionary or discriminatory or even evil praxis.

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The only way to make sure that agents behave ethically is by providing equal treatment to all subjects, regardless of race, sex, religious beliefs, sexual preferences, or age. “Don’t do unto others what you fear might be done to you” is a potent deterrent but it has a corollary: “Feel free to do unto them what, in all probability, will never be done to you.”

The self-identity of most nation-states is exclusionary and oppositional: to generate solidarity, a sense of shared community, and consensus, an ill-defined “we” is unfavorably contrasted with a fuzzy “they”. While hate speech has been largely outlawed the world over, these often counterfactual dichotomies between “us” and “them” still reign supreme.

In extreme – though surprisingly frequent – cases, whole groups (typically