• legal aspects
• legal philosophy
• philosophical ethics
• public policy

This journal has been known to print papers intended as a reduction ad absurdum of this or that position: Richard Bentall’s suggestion that happiness be considered a psychiatric disorder is a good example.1 Joona Räsänen’s proposal that there is a case for being able to change one’s age in law in cases when that does not match the age one feels might be seen in this tradition.2 Perhaps it is written with one eye on debates elsewhere in academia and social media about the interaction between ‘identity’ and facticity. On examination, though, it seems that Räsänen is in earnest. This is perplexing, because the argument offered is flawed in many respects. I shall consider just a couple here.

Räsänen sets out the argument syllogistically:

P1: Legal age is a cause of severe discrimination for some people whose biological and emotional age do not match their chronological age.

P2: People should be allowed to secure relief from severe discrimination against them unless this has excessive consequences.

P3: Changing a person’s legal age would not, in the case of people whose biological and emotional age do not match their chronological age, have excessive consequences.

C: People whose biological and emotional age do not match their chronological age should be allowed to change their legal age in order to secure relief from discrimination.

Helpful as this is, it can be simplified. For efficiency, I shall cut out the second half of the second premise: any plausible normative argument about correction for injustice will have a criterion about reasonable impacts on others. That renders the third premise de trop, so that can go, too. The argument thus boils down to this:

P1: legal age is a cause of severe discrimination for some people.

P2: people should be allowed to secure relief from severe discrimination against them.

C: people should be allowed to change their legal age in order to secure relief from discrimination.

The argument is now clearly invalid, since it is only in the conclusion that age change has been introduced as a way to secure relief from discrimination. (The phrase was seen in P3, but in that context, it refers only to whether age change would impact unacceptably on others if adopted, not to whether it is a way to secure relief from discrimination at all.) At the very least, there are hidden premises that should be unhidden in order to establish age change as a plausible, and indeed good, way of securing relief.

Räsänen hints at such argumentative reinforcement by suggesting that

if a person suffering from ageism were able to change his legal age to younger, he would face less discrimination in hiring.  An analogy might help illustrate this. Certain minorities, such as Muslim immigrants, are often discriminated against in hiring because of their foreign names. Studies in Sweden have shown that when immigrants have changed their names, they have faced less discrimination in hiring and their annual earnings have increased substantially. That is because discrimination was reduced after the name change.

Similarly, if those who are discriminated against because of their age had the option to change their legal age, they would face less discrimination in hiring and at the workplace. That is because others would not be aware of their chronological age, and they would therefore receive more invitations for job interviews.

However, age change is neither a good nor plausible way of countering discrimination.

That people looking for work or promotion are discriminated against because of their names and ages is true. Still: that point will furnish us with a reason to require that names or ages not be asked—at least in the early stages of recruitment—and to have rules about the kinds of question that can be asked later on. That will not get rid of the problems entirely: the veil of ignorance constructed around the candidate’s sex and ethnicity would collapse sooner or later, and interviewers might take against a candidate when she turns out to be an African hijabi. That indicates an injustice. However, the injustice is better remedied through by a shift in the attitudes of the discriminator, not a risibly thin legal fiction constructed around the discriminated-against. Now, for sure, age is less obvious than something like skin colour; the determined ageist therefore has work to do that the racist does not, and so the legal fiction might be easier to maintain. But that fact amplifies the power of the thought that not asking about age to begin with is a better solution to ageism than is constructing a legally fictive age.

Importantly, if we are concerned about discrimination, we probably ought to think that pretending that one can opt out of it with a snap of the regulatory fingers is positively undesirable. This is because it leaves the structures that make the harms and wrongs possible to begin with exactly as they were. Legal age , sex or race change as a means to escape discrimination implicitly endorses those discriminatory structures, since it only makes sense if we think that there is something about age, sex or race of which one may properly take note in the normal run of things. That is something we have a good moral reason to deny; we have no reason, then, to endorse legal fictions that mask these facts. Worse, where there are morally defensible reasons to consider age, sex and race, masking them legally would be pro tanto unjust, since it would obscure facts relevant to justice.

The other problem is found in the way the first premise is worded. Recall:

Legal age is a cause of severe discrimination for some people whose biological and emotional age do not match their chronological age.

There is a lot of reference throughout the paper to chronological age not matching biological or emotional age. Legal age is introduced as something that we commonly assume must match chronological age, but that could be considered as matching biological or emotional age.

But what, precisely, are biological or emotional age? It is very hard to tell. I contend that these phrases mean nothing substantial; the idea that legal age might be changed to reflect them ought not to be taken seriously.

If by making a claim about biological age I mean that I feel as healthy as I did when I was 20 years old, then that is great, but it is hardly a reason to change how the law sees or presents me. More fundamentally, when I say that I feel like someone much younger, that is figurative. We should not see it as truth-tracking.

Maybe we could—and should—move the focus from what is going on inside my head to what is going on outside of it. Along these lines, Räsänen invites us to ‘consider two fictional but plausible cases’:

Alan (chronological age of 50) drinks and smokes heavily, does not exercise, eats unhealthily and has a stressful job. Alan visits a doctor for a medical check-up. The doctor examines Alan and tells him that his body is that of a man aged 60 years.

Bob (chronological age of 50) does not smoke or drink, exercises, eats healthily and has a less stressful job. Bob visits a doctor for a medical check-up. The doctor examines Bob and tells him that his body is that of a man aged 40 years.

While the chronological ages of Alan and Bob are both 50 years, Alan’s biological age is 60 while Bob’s biological age is 40. Thus, biological age does not always correspond with chronological age. This has been confirmed by medical research.

But this is deeply confused; Räsänen being much too literal. When we say that a 50-year-old has the body of a 40-year-old, we are—again—speaking figuratively. We mean that their body displays the kinds of things that we would typically expect of someone of that age. We do not mean that they are in any way actually younger or that anyone would be mistaken to think that the date on their birth certificate is a reliable guide to their age. There is nothing normative to it. And this is ‘confirmed by medical research’ only insofar as that medical research offers us a few hints about the sorts of things that we might look out for in people who are 50 years old or thereabouts: backache, menopause, incipient prostate problems, and so on. If I reach 70 years, if and there is still no sign of anything at all iffy with my prostate at that point, nobody is going to wonder whether I might not have been born in 1976 after all.

Much the same applies to emotional age. We might say that someone is immature, but ‘Smith is not acting his age’ is a criticism of Smith, not a call for legal reform. In fact, appeals to emotional age say even less than do appeals to biological age, because there is at least something material to which the latter might hope to attach.

Räsänen’s paper is intriguing but turns out to be an invalid argument deployed to defend the counterintuitive by means of an appeal to the pretty much meaningless.