The Point of Discrimination Law

The Empire of Disgust: Prejudice, Discrimination, and Policy in India and the US (Martha Nussbaum, Zoya Hasan, Aziz Huq, Vidhu Verma eds, OUP 2018)

U of Melbourne Legal Studies Research Paper No. 858

17 Pages Posted: 20 Feb 2019 Last revised: 4 Dec 2019

See all articles by Tarunabh Khaitan

Tarunabh Khaitan

University of Melbourne - Law School; University of Oxford - Faculty of Law; NYU Law School; Berkeley Center on Comparative Equality Law

Date Written: August 14, 2018

Abstract

This chapter supports the growing philosophical opinion that it is freedom rather than equality which provides a better foundation for discrimination law. What these other freedom-based theories of discrimination lack (or, at least, fail to make sufficiently explicit) is the insight that the freedom we are entitled to also depends on the freedom that others enjoy. In other words, our liberty-interest is relative, because three of the four basic goods that constitute this interest have an essential connection with what others enjoy. Secured negative freedom cannot be enjoyed if there are particularly striking power imbalances between different societal groups. The range of opportunities that is adequate for us to have a flourishing life depends on the range of opportunities it is possible to have, which in turn depends on how much access the better-off people have. Even our self-respect has a relative dimension, inasmuch as it depends on how much respect others show to us, and how successful we believe our lives to be in relation to the success of the lives of others.

Keywords: discrimination law, legal theory, liberty, equality, self respect, group disadvantage

Suggested Citation

Khaitan, Tarunabh, The Point of Discrimination Law (August 14, 2018). The Empire of Disgust: Prejudice, Discrimination, and Policy in India and the US (Martha Nussbaum, Zoya Hasan, Aziz Huq, Vidhu Verma eds, OUP 2018); U of Melbourne Legal Studies Research Paper No. 858. Available at SSRN: https://ssrn.com/abstract=3301152 or http://dx.doi.org/10.2139/ssrn.3301152

Tarunabh Khaitan (Contact Author)

University of Melbourne - Law School ( email )

University Square
185 Pelham Street, Carlton
Victoria, Victoria 3010
Australia

University of Oxford - Faculty of Law ( email )

St. Cross Building
St. Cross Road
Oxford, OX1 3UJ
United Kingdom

NYU Law School ( email )

40 Washington Square South
New York, NY 10012-1099
United States

Berkeley Center on Comparative Equality Law

Boalt Hall
Berkeley, CA 94720-7200
United States

Here is the Coronavirus
related research on SSRN

Paper statistics

Downloads
106
Abstract Views
590
rank
267,669
PlumX Metrics