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Tarunabh Khaitan, A Theory of Discrimination Law

Document Cited in Related
Vincent
Date01 May 2016
Published date01 May 2016
DOI10.3366/elr.2016.0357
Pages254-255
Author

I am a reader who teaches some discrimination law, but who is not primarily a legal theorist. This may, or may not, make me a typical user of this book. The elements of discrimination law that are analysed are taken from a wide range of jurisdictions and that breadth of coverage makes the book an interesting read for anyone whose deep knowledge is jurisdiction-specific.

However, the book does not have the aim of simply describing a wide range of laws that appear to belong under the heading “discrimination law”. Its aim is to offer us a new theory. The contribution of other theorists to the broad field of discrimination law is mentioned in chapter 1, with equality, dignity, and liberty presented as the three foundations or justifications used by earlier theorists and rejected by Khaitan.

So, what alternative is offered by Khaitan? This is where the difficult issue of the methodology of legal theory needs to be mentioned. Khaitan takes the reader through a set of steps that arrive at a theory that is general enough to apply to the vast majority of discrimination law that is “out there” in his chosen jurisdictions. However, the method of theory creation is not itself explored and justified in sufficient depth for the present reader. Perhaps readers who are themselves legal theorists will immediately recognise Khaitan's method as the standard method currently being used in the field, but I would have liked to have been offered more about the choice of method and its suitability for the subject matter. A legal theory can (simply) be descriptive or it can be normative. In chapter 1, Khaitan claims that theories based on equality, dignity, or liberty can be criticised because they lead to some “normatively unpalatable outcomes” and because they are unable to “explain certain well-established aspects of existing law” (7). In chapters 2 and 3 the essence and architecture of discrimination law are explored for the chosen jurisdictions and as that law has developed up to the 2010s. These...

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