Discrimination, Freedom, and Intentions
| Date | 01 September 2016 |
| Published date | 01 September 2016 |
| Author | Kasper Lippert‐Rasmussen |
| DOI | http://doi.org/10.1111/1468-2230.12220 |
bs_bs_banner
REVIEW ARTICLE
Discrimination, Freedom, and Intentions
Kasper Lippert-Rasmussen∗
Tarunabh Khaitan,A Theory of Discrimination Law, Oxford: Oxford
University Press, 2015, 262 pp, hb £60.00.
INTRODUCTION
Recent years have seen a surge in academic interest in basic normative
questions in relation to discrimination and discrimination law. One of the
most recent and very welcome contributions to this growing body of literature
is Tarunabh Khaitan’s excellent A Theory of Discrimination Law.1The central
ambition of Khaitan’s book is ‘to give a theoretical account of the legal model
of regulating discrimination’ (4). His favoured account is a liberal, freedom-
based, group-disadvantage-focused account, which allows for asymmetric anti-
discrimination norms and explains the unity of discr imination laws, wherethese
include reasonable accommodation, affirmative action and harassment norms.
In the course of pursuing his core ambition, Khaitan intends to ‘explain
what the legal conception of discrimination is, and why the legal model for
regulating discrimination is justified’ (4). Executing this intention, he makes (at
least) three claims that theorists working on the foundations of discrimination
law will find extremely interesting. First, according to Khaitan, a concern for
equality is not the basic moral foundation of discrimination law; rather, in his
view, that basic concern is a concer n for freedom, where ‘freedom’ refers to the
secured access to certain basic goods (244). Second, Khaitan canvasses an effects-
based understanding of legal discrimination. Many legal theorists share his view
that indirect discrimination should be understood in terms of the effects of the
relevant discriminatory acts as opposed to whatever mental states underlie them.
They think differently of direct discrimination, however. According to what
I shall refer to as the standard view, direct discrimination differs from indirect
discrimination precisely because of how the (believed, perhaps sub-consciously)
fact that the discriminatee belongs to a particular protected group is among
∗University of Aarhus and University of Tromsø.
1 (Oxford: OUP, 2015). Other recent contributions include: B. Eidelson, Discrimination and Disre-
spect (Oxford: OUP, 2015); D.Hellman, When Is Discr imination Wrong? (Cambridge, MA: Harvard
University Press, 2008); D. Hellman and S. Moreau (eds), Philosophical Foundations of Discrimi-
nation Law (Oxford: OUP, 2013); K. Lippert-Rasmussen, Born Free and Equal? A Philosophical
Inquiry into the Nature of Discrimination (Oxford: OUP, 2013). All references below not explicitly
attributed to another author are to Khaitan’s book.
C2016 The Author.The Moder n Law Review C2016 The Modern Law Review Limited. (2016) 79(5) MLR 901–918
Published by John Wiley& Sons Ltd, 9600 Garsington Road, Oxford OX4 2DQ, UK and 350 Main Street, Malden, MA 02148, USA
Discrimination, Freedom, and Intentions
the operative elements in the discriminator’s motivational set.2According to
Khaitan, even direct discrimination should be understood in terms of the
specific kind of disadvantages that it imposes on discriminatees. Finally, Khaitan
ties discrimination to relative group disadvantage. According to his account,
for an individual to be subjected to discrimination he or she has to belong to
a group which is disadvantaged relative to at least one other relevant group.
However, the individual in question need not be disadvantaged relative to how
this individual would be placed had he or she been a member of the relevant
advantaged group.
In this review essay, I present the main contents of Khaitan’s book before ex-
plaining the dual nature of his project and raise some methodological concerns.
Next, I scrutinise Khaitan’s rejection of egalitarian accounts of discrimination
law. The final main section of this article takes a critical view of the suggestion
that the distinction between direct and indirect discrimination is not based on
the presence or absence of certain mental states, such as intentions to exclude
or disadvantage, on behalf of the discriminator.
OVERVIEW
Khaitan’s book has three parts. In the first par t, he defines the legal norms of
discrimination law and delimits their scope. Actually, he offers two different but
related definitions of legal norms of discrimination. The first is a lexical definition,
which purports to capture how a certain group of people – legislators – use
the term ‘discrimination’, that is, are disposed to group together a certain set
of legal norms under that label:
When I speak of ‘discrimination law’ I will mainly be referring to nor ms that
legislators deem fit to include in a single statutory instrument (often entitled
Equality Act, Anti-discrimination/Prevention of Discrimination Act, Civil Rights
Act, etc.) and to provisionsin Bills of Rights that tend to guarantee the r ight against
discrimination (frequently as a subset of or allied to the right of equality). At least
legislators think that there is something distinctive about these provisions, which
justified their being clubbed together (24).
The second definition is explicative; that is, it aims to explicate what is distinctive
about those provisions, which, according to Khaitan, legislators club together
under the heading ‘discrimination law’.3He contends that a duty-imposing
legal norm is a norm of discr imination lawif and only if it satisfies the following
four conditions:
2 cf A. Altman, ‘Discrimination’ in The Stanford Encyclopedia of Philosophy Fall 2015 at
http://plato.stanford.edu/entries/discrimination/#IndDis (last accessed 11 May 2016).
3 Presumably, the explicative definition allows for legislators making er rors at the margins, for
example, that legislators take a few norms to be discrimination norms even if they ought not to
be so classified, and they occasionally fail to see certain legal norms as norms of discr imination
law even if they should.
902 C2016 The Author. The Modern Law Review C2016 The Modern Law Review Limited.
(2016) 79(5) MLR 901–918
To continue reading
Request your trial