A Fraserian theory of anti-discrimination law
| Date | 01 March 2020 |
| DOI | 10.1177/1358229120927909 |
| Published date | 01 March 2020 |
| Author | Alberto R Coddou Mc Manus |
| Subject Matter | Articles |
Article
A Fraserian theory of
anti-discrimination law
Alberto R Coddou Mc Manus
Abstract
To be part of progressive political projects, anti-discrimination law needs to be critical of
its role in contemporary societies, where it is faced with processes of modernisation that
push towards social/political disintegration and systemic/market integration. This article
attempts to locate anti-discrimination law within a theory of social/political emancipa-
tion, in order to understand both its strengths and limits. In that regard, it uses elements
and insights from Nancy Fraser’s critical theory to argue that anti-discrimination law is an
anti-misrecognition device that operates within an interimbrication of different spheres:
culture, economy and politics. In societies facing complex and systemic challenges, anti-
discrimination law constitutes an interesting case of non-reformist reform. Indeed, anti-
discrimination law can be a first step, with the materials we have at hand, towards
elaborating progressive political projects that could reinforce the current struggles for
human emancipation and alter the terrain upon which later struggles will be mounted.
Keywords
Nancy Fraser, anti-discrimination law, emancipation, critical theory, recognition
Introduction
Different governments have created equality and anti-discrimination laws on the
assumption that they are part of progressive political projects tackling key social and
economic evils: discrimination undermines the social basis for economic systems,
unjustly restricts access to important social goods, constrains valuable options for indi-
vidual freedom, generates harms for individual and social identities and endangers social
Universidad Austral de Chile, Valdivia, Chile
Corresponding author:
Alberto R Coddou Mc Manus, Institute of Public Law, Universidad Austral de Chile, Valdivia, Chile.
Email: alberto.coddou@uach.cl
International Journalof
Discrimination and theLaw
2020, Vol. 20(1) 88–109
ªThe Author(s) 2020
Article reuse guidelines:
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DOI: 10.1177/1358229120927909
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cohesion.
1
For conservatives, however, anti-discrimination law goes too far in attempt-
ing to intervene in social relations and promote cultural and social changes according to
an egalitarian ideal (Pricker, 2003, p. 771); for some liberals, anti-discrimination law
should be narrowly crafted (or, worse still, dispensed with altogether) in order to avoid
curtailing other important freedoms, like freedom of association or freedom of contract
(Epstein, 1995); for the sceptical left, anti-discrimination law may be deemed as the
‘darling’ of neoliberal projects, endorsing a politics of identity that forgoes issues of
redistribution (Somek, 2011). This puzzling scenario invites us to think better about the
nature and purpose of anti-discrimination law.
To be part of progressive political projects, anti-discrimination law needs to be
critical of its role in contemporary societies, where it is faced with processes of moder-
nisation that push towards social/political disintegration and systemic/market integration
(Streeck, 2011, p. 25). Neither a panacea nor a purely human face for neoliberal arrange-
ments, anti-discrimination law could be a truly revolutionary project that aims to trans-
form the current state of affairs. Philosophical debates around anti-discrimination law
have attempted to give an account of its promises. By placing the wrongness of discrim-
ination in certain aspects of our current practices, different theories of anti-
discrimination law have tried to give an account of this emergent field of law by
explaining when and why discrimination is wrong, and the need for legal regulation
(Hellman and Moreau, 2013).
Debates around the philosophical foundations of anti-discrimination law seem to be
ill-equipped to provide an account of the emancipatory potential of this emergent field of
law. Although these debates wander between the look for univocal and pluralist theories
that can provide a normative foundation for anti-discrimination law, and which have an
impact on how the law works and affects people’s lives, these theories bypass the fact
that anti-discrimination law contains radical promises that need to be reassessed in the
current state of post-socialist conditions.
2,3
The debates around the philosophical foun-
dations of anti-discrimination law are important for doctrinal issues that continually arise
in the case law, which include the distinction between direct and indirect discrimination,
the availability of defences against discrimination claims and the connection between
particular distributive questions (the distribution of rights and duties to different actors)
and the general justifying aim of anti-discrimination law, among others. It is here that
critical social theories enter the picture, clarifying the strengths and limits of anti-
discrimination projects, that is, the place of anti-discrimination law within a theory of
social/political emancipation.
4
To the extent that legal frameworks observe both norma-
tive and instrumental dimensions, anti-discrimination law has an enormous emancipa-
tory potential. However, to unfold that potential, we must go beyond the frontiers of law
and take the long turn: to start from the basic premises of critical theory in order to locate
anti-discrimination law within them. As a result, I will claim that even if anti-
discrimination law is not a solution to every social problem, or the ultimate revolutionary
device, it is more transformative than what some of its critics sustain.
What are the limits of the transformative potential of anti-discrimination law? If anti-
discrimination law is not a solution to every problem, how should we understand the role
of anti-discrimination law in different spheres, such as the economy, culture and poli-
tics? What kind of economic or political harms can anti-discrimination law properly
Mc Manus 89
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