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Australian Journal of Law & Society
Vol. 2 No. 2, 198
i
AFFIRMATIVE ACTION, MERIT
AND THE LIBERAL STATE
Margaret Thornton*
Introduction: The Liberal State
In liberal societies people generally get what they deserve, or if they don’t they
should—and that’s all that they should get furthermore what they deserve is
purely and simply a function of their own individual character and actions, noth­
ing else (Green 1981:14).
Liberalism has been described as the dominant ideology of the Western world
(Sparer 1984:516). It endorses the values of liberty, individual autonomy and equality,
values which are realised in a democratic and market-conscious framework. There is,
however, an inevitable tension between the realisation of individualistic and
institutional values (Trubek 1977:541). Nevertheless, while liberal philosophy
generally accepts that individuals are largely responsible for their own destiny, it is pre­
pared to acknowledge that artificial legal barriers may operate to deny them an equal
right to develop their abilities. Thus, in order for all members of society to realise
individual freedom of choice, there may have to be some corresponding restriction on
communal liberty.
While the Twentieth Century liberal state has been generally characterised by its
increased willingness to regulate the market in the interests of groups fettered by cir­
cumstance, liberalism nevertheless continues to be ambivalent about the identification
of women as a disadvantaged group. John Stuart Mill, the major Nineteenth Century
exponent of liberal philosophy, believed that women were unduly restricted by the
unjust and discriminatory laws which not only denied them independence but made
them possessions of their husbands (1970). Mill argued trenchantly for the repeal of
those laws which would, in his view, secure equality for women. Mill believed that so
long as individuals were not debarred from competing within the system, the best or
most meritorious people would emerge at the top. This realisation of a just society, he
believed, therefore had utilitarian value in that it would increase the sum total of human
happiness in two ways. First, it would utilise those talents which were presently wasted,
and, secondly, it would contribute to greater efficiency in that fair competition would
necessarily preclude the possibility of incompetent people rising to positions of
influence.
As Shapiro points out, however, Mill did not sufficiently appreciate that social
values other than a desire for the public good may be the conscious determinants of
social action (Shapiro 1977:53). Shapiro adverts to the antipathy of those who do not
want additional competitors in the market, a factor which Mill did not view as being
significant This factor, however, is merely one manifestation of the hostility displayed
Affirmative Action
29
towards women in the public sphere. It is the role of the ideology of male dominance
Which constitutes an ever-present impediment to the realisation of equality by means of
legal reform, an ideology which lies at the very heart of liberal legalism itself.
Women have been historically stigmatised as inferior ‘by nature’ because of the dif­
ference in reproductive capacities of men and women (Clarke and Lange 1979: ix). The
characterisation of women merely as agents of reproduction has resulted in women
being confined to the private sphere of home and family, while the public sphere of
politics and work has been delineated as the male sphere of endeavour.1 Theorists of the
liberal state, no less than earlier philosophers, have accepted the existence of the
public/private split as though it were pre-ordained.2 Indeed, with the exception of Mill,
liberal philosophy has largely rendered women invisible because it has displayed little
interest in the family (Clarke and Lange 1979: ix). However, Mill himself did not ques­
tion women’s role within the family, although the sexual division of labour within the
family and the way it is formally mirrored in the workplace is central to women’s ine­
quality.
Liberalism prefers to ignore structural factors, such as those arising from sexism,
racism and capitalism, which are inextricably bound together within Western democ­
ratic societies. The individualistic and utilitarian orientation of liberalism avoids
exposing the exploitative class-based reality of our society.
The Concept of Merit
The Macquarie Dictionary defines merit as ‘claim to commendation; excellence;
worth.’ As a secondary meaning, it is defined as ‘the state or fact of deserving well; good
desert’ These facets of meaning reveal that merit is an ontological abstraction. Devoid
of any social context, it is perceived as an apolitical criterion of personal worth. A mys­
tique of neutrality has nevertheless endowed the concept with considerable political
significance and moral persuasiveness when it is invoked to justify, to criticise, or to
constrain, any policy proposals. Merit, so defined, has a political form that is clearly
unrelated to the reality of its application as an ‘ apolitical’ selection criterion. It is, to use
the words of Marx, endowed with an ‘unreal universality’ (1975:220). Our society’s
collective solicitude for the merit principle operates to deflect attention away from its
real implications and thereby prevent challenge to the bulwarks of capitalism and
patriarchy.
In the context of employment, allocations purport to have more to do with the
primary meaning of merit as individual excellence than with its secondary meaning as
desert Indeed, the two meanings may be contradictory in an employment context
Thus, while the ‘best’ candidate may, in one sense, deserve the job, that person may not
be the most deserving in the sense of being the most needy. Indeed, the concept of desert
may have nothing to do with individual qualities. For example, an allocation on the
basis of desert may represent an attempt to overcome inegalitarian rules of distribution
so far as a particular class is concerned. Thus, the Australian Government’s allowance
paid to Aboriginal parents of secondary school children to enable the latter to continue
with their education is an affirmative action measure based on membership of a deserv­
ing class; individual characteristics are irrelevant In this sense, race is a moral rule per­
mitting correction of a moral wrong (Davis 1981:77).
Lucas distinguishes merit and desert, the former referring to the qualities of a man
sic), while desert refers to the deeds he has done (Lucas 1980:166). While this defini­
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Australian Journal of Law & Society
VoL 2 No. 2, 1985
tion might appear to be idiosyncratic, the distinction does have some relevance in the
workplace in that the person appointed on ‘the merits’ is appointed on the basis of the
promise or potential of qualities displayed In respect of promotion, however, a person
is more likely to be promoted if he or she deserved it on the basis of past performance,
that is on the basis of the ‘deeds’ performed
The principle of merit which purports to operate in respect ofjob allocations does not
assume that the same evaluation of excellence operates in respect of all positions, but
that different jobs require different characteristics if they are to be performed with max­
imum competence. As a corollary, it is assumed that people differ in ‘the constellation
of abilities and personality traits they possess’ (Daniels 1978:208). The underlying
rationale of the meritocratic system, therefore, is that if the most able are matched with
the jobs they are best able to perform, the greatest contribution to economic produc­
tivity will occur (Daniels 1978:209).
As Oppenheimer has pointed out, however, the merit principle depends on factors
over which the individual may have no control, such as education or training
(1970:151). Such factors may be the result of having been bom into the middle class, in
addition to having been bom white and male. The direct or indirect exclusion of women
and Aborigines from amongst those who are deemed to be the most able has little to do
with the innate ability of group members. It is this traditional exclusion which has ser­
ved the myth of intellectual inferiority and given rise to the view that the appointment of
women or non-whites is synonymous with a decline in efficiency (Thomson 1977).
Thus, while merit purports to maximise social utility, it does not mete out rewards in
ways which are sex, race and class neutral.
It is therefore apparent that the merit principle’s meretricious claims to neutrality
have helped to immunise against challenge allocations made to those considered to be
more deserving by virtue of membership of the dominant class in our society, that is,
those who are Anglo-Saxon, middle class men. This group continues to be allocated
well paid jobs commanding status and authority to a disproportionate extent
Ironically, race-conscious or sex-conscious methods of job allocation to those who
have been traditionally disfavoured are attacked as reverse discrimination and
violations of the merit principle (Stove 1984; 1985).
The allocation of important social opportunities in the form of jobs nevertheless
assumes that all the relevant characteristics of a person may be considered in the con­
struction of merit It is clear, however, that the determination of what criteria are rele
vant at the threshold ensures that a particular value system is encompassed in that
construct and allows biased decisions to be rationalised more easily (Ezorsky
1978:91).
In his detailed analysis of the merit principle, Fallon shows how the concept
possesses both a descriptive and an evaluative element On the one hand, ‘the descrip­
tive element consists of the implied claim that there exists some quality or thing that
possesses the relevant criteria to be classified as an excellent quality or thing of the kind
in question’ (Fallon 1980:822). On the other hand, the evaluative element requires not
only that the pertinent quality be judged as excellent but that it be such as to justify or
deserve the benefit (Fallon 1980:822).
The scope for arbitrariness is magnified in the case of a job which might require
limited specialised knowledge, but which possesses status and influence, such as
general manager of a prestigious company. In such a case, the descriptive element is
Affirmative Action
31
likely to include knowledge of the company’s operations and6 managerial experience’, a
factor difficult both to define and to quantify. Present practice suggests that credentials
are unlikely to be determinative.3 The assessment of personality, standing in the com­
munity, political and family connections may be considered all-important in the projec­
tion of the company’s image and its ability to wield corporate political power, but such
factors are unlikely to be enumerated in any job description. This example clearly illus­
trates the inherent difficulty in seeking to separate the descriptive element from the
evaluative element in the construction of‘merit’ in respect of a position which is inten­
ded to exclude all but a very select few, upper middle class men as the relevant
labour pool.
Of course, all administrative and academic jobs rely, to a large extent, on the evalua­
tive element which is subject to the vagaries of individual perception and bias. Despite
overtones of caprice and arbitrariness, however, the search for a purely technocratic
system is misconceived, for it is clear that the evaluative component is essential in order
to invest the descriptive data with meaning in the light of the institution’s value system,
despite the fact that it is bound to perpetuate homogeneity in the workplace.
In academia, for example, this means that the appointing personnel, usually male
professors untrained in selection techniques, are going to favour the appointment of
young men as much like themselves as possible. This homosocial reproduction (Sawer
1984:105-6) or cloning (Thornton 1984:120) is facilitated by the adduction of a num­
ber of other factors of a less formal nature which operate to maintain the hegemony of a
group of middle-aged, Anglo-Saxon men who have had all the advantages of education
and encouragement emanating from their middle class backgrounds.
The weighting of personality factors must necessarily run counter to the liberal ideal
of a meritocracy with clear and rigorous criteria, particularly as such factors are
unlikely to appear in any specification of criteria for appointment. Nevertheless, per­
sonality factors, together with racial, sexual and political differences may be con­
sidered in the construction of merit For example, personality and other non-academic
characteristics have figured prominently in letters of recommendation for academic
positions (Menges and Exum 1983:138). The advertence to factors which are non-jobrelated have traditionally militated against women in particular. Women who have
deviated from the norm, that is, a norm which is assessed in the light of male career pat­
terns, have always been adjudged as less meritorious. A classic example is the negative
perception of a woman’s ‘broken career pattern’ resulting from child bearing and child
raising, which leads to an inference that a woman demonstrates a lack of commitment to
a career and is necessarily a poor prospective employee (Alford 1981). Such factors
remind women with children that they properly belong in the private sphere and that
they are certainly not entitled to ‘careers’.
The higher one goes in the hierarchy of jobs, the more significant is the notion of
merit. Paradoxically, merit criteria become correspondingly more elusive so that the
evaluative process becomes less visible. Indeed, merit rhetoric is likely to be markedly
absent in respect of low status blue-collar jobs. Merit, then, is a bourgeois concept
designed to regulate the allocation of prestigious and well-paid jobs.
This point is well illustrated by reference to the public service which offers the
additional benefit of tenure. When the word ‘merit’ appears in legislation regulating
public service employment, it is not defined but used as though it were a universal. The
Public Service Reform Act 1984 (Commonwealth) does make clear, however, that
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Australian Journal of Law & Society
VoL 2 No. 2, 1985
merit is intended as a basis for achieving fairness in allocations.4 Patronage and
favouritism are expressly precluded in accordance with Nineteenth and Twentieth
Century changes in recruitment to the public service of Western countries which deter­
mined that such a basis for allocations did not comply with liberal notions of fairness
and equity (Helbum & Bennett 1972:620; Young 1961:92).
More recently, liberalism has accommodated the contemporary distaste for overt
discrimination on various grounds in circumstances perceived to constitute an unfair
impediment to the realisation of individual talent and ability.5 The Public Service
Reform Act purports to preclude discrimination on every conceivable groundapolitical affiliation, race, colour, ethnic origin, social origin, religion, sex, sexual
preference, marital status, pregnancy, age, or physical or mental disability;
and
(b)any other unjustified discrimination.6
The correlative legislation to the Reform Act, the Merit Protection (Australian
Government Employees) Act 1984, consciously avoids any attempt to define that
which it purports to be protecting. The legislation establishes a Merit Protection and
Review Agency and the ‘object’ section gives us the only clue as to the meaning of
merit
4(1) The object for which the Agency is established is to ensure that actions taken
and decisions made in relation to a Commonwealth employee in relation to his employ­
ment as a Commonwealth employee are fair and equitable and are taken or made in ac­
cordance with sound personnel management practices and with due regard being had to
(a)the efficiency of the relevant authority; and
(b)the need to ensure good relations between the relevant authority and its
employees.
The ‘need to ensure good relations' is particularly elusive in the context of merit
although it is clear that the phrase is intended to have some functional utility. Its vague­
ness suggests that the dissatisfaction of senior male employees could be properly
allayed by appointing a mediocre male applicant, for example, in preference to a betterqualified woman. Indeed, the clause highlights the potential contradiction inherent in
the co-existence of the individualistic and the community-oriented strands of the
merit principle.
The use of the word‘merit’ in the New South Wales Public Service Act 1979 is even
more obscure than that employed by the Commonwealth legislation. In s. 62, ‘merit,
diligence and good conduct,’ on the one hand, and ‘qualifications,’ on the other, are dis­
crete categories which go to define efficiency, the basis on which appointments are
made. Therefore, we see once again that the meaning of merit is constrained by the
overriding liberal aim of social utility. Richter and Hyde also make it clear that this use
of merit has little to do with clearly ascertainable individualistic criteria:
Tribunals have tended to interpret ‘merit’ along with ‘diligence’ and ‘good con­
duct’ as aspects of what might be said to be the personal worth of a candidate’s
claim for promotion measured against some framework of equity, justice and
good conscience’ (1983:269).
Richter and Hyde contrast this interpretation of merit with that of a ‘merit system’,
which they define as:
systems of promotion whose criteria relate to the job in question, and specifically
exclude personal factors not relevant to doing the job (1983:269).
Affirmative Action
33
While the inference may be that New South Wales is aberrent because it prefers an
nterpretation of merit which is incoherent to an ‘orderly’ merit system, the belief that
nherently contradictory, individualistic and communal values can be reconciled would
ieem to be misguided The legislative and judicial usage of the word ‘merit’ expose its
Essential fluidity in an employment context Since meritocratic criteria continue to be
dusive, the legislature effectively colludes in what is likely to be the perpetuation of the
prevailing social order, the character of merit as an ideological construct is
herefore revealed.
It is apparent then, that merit-in-practice, far from operating as a neutral principle
comprising clearly discernible and objective criteria, has operated as an idiosyncratic
md arbitrary means of assessing individual abilities and personal qualities. The essen:ial subjectivity of merit is acknowledged by Raspberry:
The best person is not detectable by counting years of experience of doing this or
that or by counting the number of decades. The only way people arrive at this
‘best’ thing is on terribly subjective kind of judgments (1976:19).
Despite the sometimes gross interpretations accorded merit in the past beneficiaries of
he system nevertheless have a particular interest in defending such interpretations:
to persuade each other, and the rest of us that they have never received anything
but their own ‘just individual deserts’ (Green 1981:80).
While the principle of equality of opportunity might be fundamental to liberal theory,
t has been shown that the construction of merit has assisted in the reproduction of
established social relations.
inti-Discrimination Measures
Anti-discrimination legislation was the legislative response designed to provide a
*emedy for individual victims of allegedly discriminatory practices. The raison d’etre
)f legislation, of the kind which has appeared in the United States, the United Kingdom
ind Australia, is equality of opportunity regardless of specified group membership.7
The theory is that if the individual is unencumbered by the trait of invidiousness attachng to group membership, she or he will be necessarily accorded equal treatment at the
starting points when seeking access to positions and benefits in society.
Anti-discrimination legislation is not concerned with effecting some idealised notion
)f absolute equality for all, such as equalisation of wealth. Its underlying theory of
jqual opportunity recognises, and indeed endorses, the perpetuation of structural ine­
qualities which emanate from the existence of hierarchies of wealth and power(Trubek
1977:548). The frailty of the non-discrimination principle is sharply revealed in its
icceptance of the prevailing socio-economic order when it is also pointed out that mem>ers of stigmatised groups who constitute the victims of officially-recognised dis­
crimination, particularly women, Aborigines and recently-arrived migrants, figure
iisproportionately in poverty statistics.8
In rendering certain proscribed traits irrelevant in the selection process, equal opporunity laws purport to mandate equal treatment for all in accordance with the
egalitarian norms of liberal democratic theory. The principle of equal treatment, then,
s concerned with procedural fairness within certain well-defined parameters, rather
han with equality of result That is, so long as the rules for the race are conducted fairly
it the threshold, in that there should be no advertence to the specified irrelevant factors
n the application of the merit principle, outcomes are inconsequential.9
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Australian Journal of Law & Society
VoL 2 No. 2, 1985
Essential to the concept of equality of opportunity, then, is the notion of winners and
losers. Indeed, inequality is a normative value underlying equality of opportunity, a
paradox recognised by Rawls:
Equality of opportunity means an equal chance to leave the less fortunate behind
in the personal quest for influence and social position (1972:106-7).
Therefore, the allocation of jobs, particularly those which are well-paid and which
offer promising career prospects, continue to elude the ‘less fortunate’. Anti­
discrimination legislation merely creates a private right of suit for an individual alleging
discrimination because she or he belongs to a stigmatised class. In this regard, we see
the impossibility of attempting to compress a group interest within the constraints of the
Nineteenth Century liberal conception of an individualised harm giving rise to a
civil action.
Predictably, the procedural schema is one which favours the perpetrator of the dis­
criminatory act, rather than the victim, (Freeman 1978:1049), which means that the
latter has to bear the entire onus of proof for what is effectively a classwide violation.
Within the context of a patriarchal and race-conscious society, this burden is virtually
insuperable. Indeed, no formal legal mechanism exists which guarantees penetration
and exposure of the subjective veil which cloaks the concept of merit, for the quin­
tessential subjectivity of the evaluative component defies systematic analysis.
Therefore, a respondent employer can always argue that an individual complainant was
deficient ‘on the merits’.10 Consequently, the atomistic and ad hoc nature of the
complaint-based system as a means of effecting significant social change has failed to
satisfy either the women’s movement or any other movement lobbying for change.
The move towards affirmative action in Australia has had its genesis in this dissatis­
faction. Legislation mandating the establishment of affirmative action measures in res­
pect of public employment has been enacted by both the Commonwalth and New South
Wales.11 However, affirmative action became a contentious social issue in Australia
only when its operation in the non-governmental business sector was mooted in the con­
text of the enactment of Federal sex discrimination legislation.12 In order to assuage
public criticism and to permit ventilation of the issues preparatory to devising legisla­
tion, a Government Green Paper was prepared.13 In addition, a voluntary pilot affirma­
tive action program was initiated involving a number of national companies and tertiary
institutions.
On the one hand, while the Hegelian view of civil society accepts that non­
governmental business concerns can be subsumed within the rubric of‘private’ along
with the family, modem liberalism is more ambivalent about the role of state regulation
vis-a-vis the market (Benn & Gaus 1983). The mooted intervention in the workplace
conforms to a somewhat broader conception of public life. Indeed, the ‘private’ cor­
poration’s ability to formulate public policy (Nadel 1975:2) suggests that its charac­
terisation as ‘private’ is no longer appropriate.14
On the other hand, the threat to the prevailing patriarchal social order of measures
which, on their face, have all the hallmarks of compensatory justice apportionments are
perceived to be even more threatening than possible state regulation of the business sec­
tor. In this regard, another dimension of the public/private dichotomy inevitably pre­
sents itself. Even though 37.3% of the Australian workforce is female,15 women are
still perceived primarily as nurturers who properly belong in the private world of the
family. Thus, while women are tolerated in the workforce, it is generally in positions of
Affirmative Action
35
low visibility which are inferior to and ancillary to male positions (Cass et al 1983).
Affirmative action implicitly questions the appropriateness of this norm, although it in
no way confronts the inequities in the private sphere qua family where the sexual divi­
sion of labour places the entire burden of housework and child care on women regard­
less of whether they are in the paid workforce or not
Affirmative action in the workplace is perceived as a means of effecting fairer
allocations than presently permitted by the sterile formalism of the equal treatment
model. That is, instead of assuming that individual members of historically-oppressed
groups will find their own way to the starting points, affirmative action theory requires
the formulation of institutional measures designed to identify and counteract factors,
such as the negative effects on the whole class of women of sex-role conditioning in a
genderised society. Although the Government Green Paper recognises this systemic
character of sex discrimination, it suggests comparatively modest remedial measures,
such as wording recruitment advertisements in such a way that they do not appeal only
to men, offering special training courses to overcome past deficiencies in education,
and reviewing selection procedures so that fairness operates at the point of entry.16
In accordance with the liberal tradition, the focus is therefore directed towards
removing the overt barriers militating against fairness, rather than counteracting the
subtleties of institutionalised sexism. If we were to place affirmative action strategies
on a continuum, the Australian initiatives might be grouped at one end. At the other end
of the continuum, we might place those measures which are structually-challenging,
result-oriented and highly contentious, such as preferential hiring and the use of
quotas.
While the American philosophical debate has focused almost entirely on the more
extreme measures, which are either justified as compensatory justice in the light of his­
toric mistreatment, (Boxhill 1978:246) or denigrated as unacceptable reverse dis­
crimination, (Glazer 1975), Lindgren has argued that the underlying presuppositions
of this debate are misconceived (1981:1). In particular, he has pointed out that the
requirement under Executive Order 11,246 regarding the preparation of goals and
timetables does not prompt contractors to engage in preferential treatment, either in the
sense of directly promoting preference or of promoting it as an unintended
consequence.17
The false premises on which the affirmative action debate has been conducted are a
result of fears on the part of the dominant group that affirmative action will have a des­
tabilising effect in the market, in the workplace and even in the family. Consequently,
all affirmative action measures have attracted a degree of stigma Therefore, pro­
ponents of affirmative action in Australia have sought assiduously to dissociate the
modest measures devised from anything which might be construed as grounds for an
allegation of reverse discrimination.
One of the most persistent and insidious arguments adduced against affirmative
action is that it will undermine the merit principle by allocating positions based on class
membership alone without reference to individual characteristics (Thornton
1984:120). The Green Paper, together with other publicity accorded the launching of
the program, reveals that the official proponents of affirmative action have
endeavoured to allay such fears by emphasising that affirmative action programs will
operate within the time-honoured, individualistic and apolitical constraints of the merit
principle:-
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Australian Journal of Law & Society
Voi 2 No. 2. 1985
Affirmative Action Programs are a way of ensuring that an organisation's
employment practices, in particular recruitment, selection and promotion, will he
based on the individual merit and fitness of applicants and employees for specific
jobs, without regard to factors such as sex or marital status. Affirmative Action
Programs are a way of ensuring that persons possessing equal skills and
qualifications have an equal chance of getting the job.18
The Prime Minister himself has stressed the centrality of merit to affirmative
action programs:
Women will gain greater job opportunities as a result of our proposals, but they
will do so strictly on the basis of merit Affirmative Action enshrines merit as the
principal means of determining who should be appointed to a job. Merit, not sex
or marital status, or some other irrelevant characteristic, should become central
to the employment policies of both public and private sector employers.19
While such sentiments might represent a fine statement of principle, they are some­
what lacking in substance unless the definition of what constitutes ‘merit’ is explicitly
tabled, an omission characteristic of almost every formal application of the merit
principle.
Merit, however, is persistently used as though it were an objective, value-free
absolute, whether by supporters or detractors of affirmative action. Indeed, even those
challenging the historic discrimination against women and minority groups in the
allocation of benefits take the view that there has been a misapplication or a distortion
of the merit principle, rather than the view that the principle itself may be flawed (Miller
1973:65). Furthermore, even an affirmative action theorist, such as Goldman, seeks to
contrast allegedly neutral and non-neutral distributive rules involving ‘impersonal
merit criteria regarding credentials and qualifications’ on the one hand with ‘compen­
satory considerations which result in reverse discrimination on the other hand.20
In fact, the concept of merit is deprived of meaning when considered in isolation from
the political lattice in which it is experienced, that is, without regard to the essential
referents of sex, race and social class, which remain fundamental determinants of an
individual’s ‘place’ in society.
Conclusion: The Ideology of Merit
By stressing the centrality of merit to the operation of affirmative action, society is
reassured that little difference in the basis of allocations is likely to occur. Fears that af­
firmative action is likely to be destabilising and result-oriented can be assuaged The
pre-eminence of merit ensures that affirmative action complies with equality of treat­
ment within the accepted liberal, rather than the radical tradition.
By focusing on form, rather than substance, affirmative action is made to conform to
the morality of the market and fair competition. By removing those artificial
impediments which limit the free flow of market forces, the race appears to be conduc­
ted fairly from the start in accordance with notions of the fundamental equity of the
market as developed by Nozick (1974).
Therefore, it is the individual woman who must still take primary responsibility for
becoming a nurse or a secretary, rather than a doctor, because the determinative cor­
relation between individual qualities and abilities and the position where one ends up
has not been severed. Liberalism has to emphasise individual responsibility for ones
success in life, rather than to recognise the inbuilt inequities arising from the chance of
Affirmative Action
37
birth, wealth, sex and race because it cannot address the question as to whether those
successful individuals ‘deserved’ to be bom into a middle class family, or to be bom
white and male, or even whether such a person ‘deserved’ to be bom with certain
talents.21 All these factors can be conveniently subsumed within the rubric of‘merit’
which has its locus within the individual will.
Through the operation of the merit principle, group differences, such as sex, race and
:lass, are transmuted into questions of individual differences, conceptualised as
variants of individual worth. Thus, the merit principle acts as a cipher to compress
seemingly race or sex-conscious activity into seemingly neutral personnel decision­
making, that is, decision-making which comports with the status quo.
Affirmative action for women has been launched with a great fanfare by the Austra­
lian Government Indeed, the accompanying rhetoric suggests that a‘transformation in
existing employment practices’ is likely to occur.22
It would appear, therefore, that the liberal state has effectively utilised the rhetoric of
radicalism in order to appease those dissatisfied with complaint-based anti-discrim­
ination legislation. By appearing to mediate the tensions between women as a
traditionally powerless, but increasingly vocal and potentially politically-significant
group and society’s dominant socio-economic interests, the state is able to reinforce
capitalist productive relations in the guise of conferring benefits on the former. Even if
affirmative action legislation were to be adopted, the Green Paper, with its themes of
competititve individualism and rational neutrality’ (Game 1984:254) makes clear that
such legislation would be committed to the nebulous merit principle and would reject
structural solutions, thereby denying the exploitative underside of capitalism with its
deleterious effects on women resulting from the sexual division of labour.
A Progress Report on the Pilot Program23 highlights the intensity of the opposition
to affirmative action legislation on the part of the business community. Both the Busi­
ness Council of Australia and the Confederation of Australian Industry emphasise the
desirability of voluntarism and self regulation as opposed to‘prescriptive legislation’.24
Both groups also stress their adherence to the merit principle as a means of counteract­
ing the ‘demonstrably undesirable path of legislative employment quotas’.25
It is therefore unlikely that a ‘transformation’ will occur, despite the high-flown
rhetoric surrounding affirmative action. As the central legitimating axiom of liberal
society, the merit principle will continue to sanction restricted allocations to individual
members of those groups which have been traditionally viewed with animus. The
recipients of such allocations are likely to bear a marked resemblance to members of the
"avoured group so that their presence can be tolerated without demur, a few highly
qualified, middle class women or minority members are unlikely to upset the social
:>rder. Society can be assured both that such appointees embody individual excellence
and that their appointment is conducive to maximum efficiency. The merit principle
;herefore acts as a distributive mechanism so that disruptive wholesale social change is
prevented. The focus on individual worth means that the appearance of justice in
allocations is maintained while major structural impediments to equality, such as the
>ex segregation of the labour market, wage discrimination and inequality of access to
education need not be addressed. Merit, therefore, also carries with it the moral quality
if absolution.
Although the liberal state does have a commitment to the ideals of egalitarianism and
ustice, it is drawn between the pressure for greater action by radicals and reformists on
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Australian Journal of Law & Society
Vol 2 No. 2, 1985
the one hand and the pressure for inaction by conservatives on the other hand. The
result explains why:
liberalism is often now considered wish-washy, an untenable compromise be­
tween two more forthright positions (Dworkin 1984:60).
For the liberal state to do other than to effect a compromise, however, is for it to
endanger its legitimacy.
Nevertheless, the ideological character of law itself within the liberal state requires
that the state at least present a veneer of addressing social tension. Thus, through the
combination of fine-sounding rhetoric and anaemic legislation, the state seeks to pre­
sent itself as the benevolent arbiter of justice operating through formal legal rules in
order to legitimise and strengthen its position (Trubek 1972:749).
It can therefore be concluded that, while affirmative action legislation might carry
with it all the hallmarks of substantive equality, the liberal state effectively continues to
utilise the concept of merit as a way of securing what Weber terms formal legal
rationality (Weber 1954; Balbus 1973:4-5). Hence, the universality of the merit princi­
ple allows it to act as a central legitimating principle of the liberal state.
The mystique of merit constitutes an effective subterfuge which serves to mask ine­
quitable allocations as well as to salve the collective conscience; its character as an
ideological construct is thereby effectively obscured.
Endnotes
* I would like to thank Margot Stubbs for her research assistance in this project Versions of this paper were presented at the
Australasian Universities Law Schools Association Conference, Adelaide, 26-29 August 1985, at ‘Defining Merit A Con­
ference', Sydney. 27 September 1985 and at ‘Feminist Perspectives in Law'. European Conference on Critical Legal
Studies, Conference 1986. London. 3-5 April. 1986.
1. Betsy Wearing persuasively demonstrates the way in which the ideology of motherhood legitimates the freeing of men
from responsibility for parenting, thereby enabling them to claim the public sphere for themselves. Betsy Wearing, The
Ideology of Motherhood (1984) George Allen & Unwin, Sydney.
2. As Carole Pateman points out, this dichotomy occupies a central place in feminist criticism. See Carole Pateman
‘Feminist Critiques of the Public/Private Dichotomy’ in Public and Private in Social Life, (ed) S.I. Benn and G.F.
Gaus(1983) Croom Helm, London & Canberra.
3. While credentials are widely used as a means of rewarding the successful with allocations, it would seem that they are in
fact poor predictors of eventual performance. Philip Green, The Pursuit of Inequality (1981) Martin Robertson.
Oxford, p 180; see also Griggs v Duke Power Co 401 US 424 (1971) and see Marilyn Gittell 'Putting Merit Back in the
Merit System’ (1972) Social Policy 20.
4. S 33 is headed ‘Application of merit principle, prohibition of patronage, &c’.
5. Eg, the statistical profile of the Public Service replicates the workplace paradigm of Western Society in which men are
over-represented in the upper echelons and women are over-represented in the lower echelons. Affirmative Action for
Women: A Policy Discussion Paper, Vol II (1984) AGPS, Canberra.
6. S 33.
7. See, eg Title VII of the Civil Rights Act 1964 (US) which is headed ‘Equal Employment Opportunity' and proscribes
discrimination on the grounds of race, colour, religion, sex or national origin. The Sex Discrimination Act 1975 (UK)
also specifies its aim of‘promoting equality of opportunity between men and women generally in its long title. The long
title of the Anti-Discrimination Act, 1977 (NSW) expresses the legislative aim to ‘promote equality of opportunity be­
tween all persons’.
8. Australian Government Commission of Inquiry into Poverty, Poverty in Australia: First Main Report Vol I (Canberra:
Australian Government Publishing Service. 1975) pp23, 258 and 269. See also, Bettina Cass, ‘The Feminisation of
Poverty: Issues of Theory, Measurement and Policy’ Paper presented at Women’s Studies Conference, University of
Sydney, 20-22 September, 1985.
9. It is nevertheless possible to argue that preferential treatment supports equal opportunity theory because of the inherent
ambiguity in the phrase - opportunity for what? See, for example, Joseph DeMarco, ‘Compensatory Justice and Equal
Opportunity’ (1975) 6 J Social Philosophy 3.
10. Eg, Bhattacharya v Department of Public Works (1984) EOC 92-117: Koh v Mitsubishi Motors Australia
Ltd (1985) EOC 92-122.
Affirmative Action
39
11. S 22B of the Public Service Act 1922 (Cth) requires an equal employment opportunity plan to be devised in respect of
women and‘persons in designated groups'. The Anti-Discrimination Act 1977 (NSW) Part IXA requires government
departments and statutory authorities to prepare EEO management plans and to submit tgem to a Director of Equal Op­
portunity in Public Employment for approval. Universities in New South Wales, which are incorporated under state
legislation, although federally funded, were scheduled under the ADA in 1983. Part IXA is intended to assist women.
Aborigines, migrants and the physically impaired.
12. A Federal Sex Discrimination Bill was first introduced in 1981 as a private member's bill which contained provision for
AA in the private sector based on contract compliance. These provisions were omitted from the Sex Discrimination Act
which was enacted in 1984.
13. Affirmative Action for Women op cit. Vols I and II.
14. Hannah Arendf s attempt to redefine the traditional bipolarity by replacing it with a tripartite perspective would seem to
be useful, even though this analysis has not w'on wide acceptance. See Benn & Gaus. op cit p 18.
15. Women’s Bureau, Department of Employment and Industrial Relations, Facts on Women and Work (1984)
AG PS, Canberra.
16. Affirmative Action for Women, op cit. Vol I. p 46.
17. As Ezorskv explains, a goal is preferential only if it requires that the workforce ratio of women to men or blacks to whites
be greater than the availability ratio; goals based on proportionality are impartial. (Ezorsky 1978).
18. Affirmative Action for Women, op cit. Vol I, p 8.
19. Hon R J Hawke, Prime Minister of Australia, at Affirmative Action for Women Seminar organised by the Australian
Financial Review. Melbourne, 15 June. 1984. in National Reconciliation: The Speeches of Bob Hawke. (1984) Domi­
nion Press, Melbourne, pp 202-3.
20. Alan H Goldman, Justice and Reverse Discrimination (1979) Princeton University Press, Princeton, p 64. On the
other hand, he does acknowledge that the merit principle has been employed ‘mainly in relation to a privileged class of
potential applicants'. Ibid, p 65.
21. A point recognised by Rawls, A Theory ofJustice (1972) Oxford University Press. Oxford, p 104. See also Michael J
Sandel. Liberalism and the Limits of Justics (1982) Cambridge University Press. New York, p 91.
22. Senator Susan Ryan, “Affirmative Action: The Government’s Philosophy and Objectives’. Speech. Sydney. 22
June. 1984.
23. Affirmative Action for Women : A Progress Report on the Pilot Program (1985) AGPS. Canberra.
24. Ibid, p 41
25. Ibid p43.
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