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)
17 Pages Posted: 20 Feb 2019 Last revised: 4 Dec 2019
Date Written: August 14, 2018
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
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