Details
- Presents a clear philosophical account and defence of discrimination law
- Distinguishes between the purposive and the distributive concerns in the theory of discrimination law
- Places the protection of liberty as the central purpose of discrimination law
- Provides a conceptually common foundation for the prohibition of direct and indirect discrimination and harassment and provision for reasonable accommodation
- Clarifies the legitimacy conditions for affirmative action
Marrying legal doctrine from five pioneering and conversant jurisdictions with contemporary political philosophy, this book provides a general theory of discrimination law. Part I gives a theoretically rigorous account of the identity and scope of discrimination law: what makes a legal norm a norm of discrimination law? What is the architecture of discrimination law? Unlike the approach popular with most textbooks, the discussion eschews list-based discussions of protected grounds, instead organising the doctrine in a clear thematic structure.
This definitional preamble sets the agenda for the next two parts. Part II draws upon the identity and structure of discrimination law to consider what the point of this area of law is. Attention to legal doctrine rules out many answers that ideologically-entrenched writers have offered to this question. The real point of discrimination law, this Part argues, is to remove abiding, pervasive, and substantial relative group disadvantage. This objective is best defended on liberal rather than egalitarian grounds.
Having considered its overall purpose, Part III gives a theoretical account of the duties imposed by discrimination law. A common definition of the antidiscrimination duty accommodates tools as diverse as direct and indirect discrimination, harassment, and reasonable accommodation. These different tools are shown to share a common normative concern and a single analytical structure. Uniquely in the literature, this Part also defends the imposition of these duties only to certain duty-bearers in specified contexts. Finally, the conditions under which affirmative action is justified are explained.
Readership: This book would be suited to legal academics, philosophers and students of legal philosophy and discrimination law.
1: Introduction
Part I: Scope and Definition
2: The Essence of Discrimination Law
3: The Architecture of Discrimination Law
Part II: Point and Purpose
4: A Good Life: Free of Equal?
5: The Point of Discrimination Law
Part III: Designing the Duties
6: The Antidiscrimination Duty
7: The Duty-Bearers
8: Affirmative Action
9: Conclusion
Dr Tarun Khaitan is an Associate Professor in the Faculty of Law at the University of Oxford and the Hackney Fellow in Law at Wadham College. His teaching and research interests cover legal theory, public law, and human rights.
"Can there be a satisfying theory of the complex and politically charged, body of laws that prohibit discrimination? In this perceptive book, Tarunabh Khaitan shows that there can. The field is not a ragbag of rules; it is unified around a moral duty to remedy serious, persistent, and pervasive forms of relative disadvantage among members of certain groups. Although relativities therefore matter, they do so for the sake of liberty, not equality. In defending that view, Khaitan casts new light on complex issues in legal philosophy and explains commonalties and contrasts in the law of five jurisdictions. A Theory of Discrimination Law is an engaging, and engaged, work on an important area of law, by one of the most interesting new voices in legal theory." - Leslie Green, University of Oxford
