Prelude to a Theory of Discrimination Law
Philosophical Foundations of Discrimination Law, Deborah Hellman, Sophia Moreau, eds., Oxford University Press (Forthcoming)
25 Pages Posted: 28 Jan 2013 Last revised: 2 Apr 2015
Date Written: January 28, 2013
This paper engages with George Rutherglen's pessimistic view of the possibility of theorising about discrimination law. Part I will deal with the claim that discrimination law lacks internal coherence, that there is no common thread running through all the norms that together constitute the body of law we call ‘discrimination law.’ I will show that this it is possible to identify four conditions which are individually necessary and cumulatively sufficient for characterising a norm as a norm of discrimination law: the norm should have some connection with a ground that divides all persons between two or more groups, at least one of whose members must be significantly more disadvantaged in relation to members of another group defined by the same ground; and the norm must be designed to distribute the direct substantive benefits or burdens in question to some, but not all, members of a protected group.
The second aspect of Rutherglen’s paper, which I will uncover in Part II, is based on an important assumption that the proper role of legal theory is to determine the outcome of adjudication in hard cases. I will show that this assumption — arising from Rutherglen’s commitment to the interpretive jurisprudence of Ronald Dworkin — is the main reason for his pessimistic conclusions regarding theoretical possibilities in discrimination law. I will also show that theorists who do not share this commitment — and perhaps even those who do — need not share Rutherglen’s pessimism.
These two — relatively independent — parts together constitute a prelude to a theory of discrimination law. The findings in Part I, if true, impose important constraints on any theoretical enterprise relating to discrimination law. Part II, on the other hand, highlights the numerous possibilities that lie beyond these minimal constraints.
Keywords: discrimination law, philosophical foundations
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