Philosophical Foundations of Discrimination Law, Deborah Hellman and Sophia Moreau, eds., Oxford University Press, 2013
41 Pages Posted: 1 May 2013 Last revised: 25 Jun 2013
Date Written: April 30, 2013
Although affirmative action remains constitutionally permitted in the United States, racial quotas have long been rejected as wrongful discrimination. The law’s distinction between morally repugnant quotas and morally permissible affirmative action appears to rest on a conception of discrimination as a failure to respect the moral worth of individuals. This Essay argues that, despite this strong deontological language, the doctrinal line between quotas and affirmative action expresses a concern with the balkanizing consequences of quotas in a democracy. Yet, the rejection of quotas depends on an impoverished account of quotas’ consequences. The prohibition of quotas is best understood as pursuing a consequentialist theory of democratic legitimacy. I then engage in transnational comparisons to suggest that, from the standpoint of democratic legitimacy, the consequences of quotas are more varied and complex than is assumed by U.S. antidiscrimination law. Recent constitutional developments authorizing gender quotas in France and racial quotas in Brazil reveal the belief that quotas will facilitate greater social cohesion rather than balkanization, thereby enhancing the legitimacy of democratic institutions. Ultimately, neither deontological nor consequentialist accounts of discrimination justify the moral rejection of quotas. The Essay concludes by arguing that quota schemes should ultimately be judged based on their consequences for democratic institutions. Quotas -- and discrimination generally -- should be regarded as wrongful only when they corrupt more than they enhance the legitimate functioning of democratic institutions.
Suggested Citation: Suggested Citation
Suk, Julie C., Quotas and Consequences: A Transnational Re-evaluation (April 30, 2013). Philosophical Foundations of Discrimination Law, Deborah Hellman and Sophia Moreau, eds., Oxford University Press, 2013. Available at SSRN: https://ssrn.com/abstract=2258733