A Theory of Discrimination Law

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. This ambitious book delivers. Its analysis of discrimination law in liberal societies is compelling, offering a lucid introduction for newcomers and a challenging theoretical account for those long versed in the field. A fascinating report of law across borders. Reva B. Siegal, Nicholas deB. Katzenbach Professor, Yale Law School In this perceptive book, Tarunabh Khaitan shows that discrimination law 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. 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, Professor of the Philosophy of Law, University of Oxford This is a masterful work. It is the first book on discrimination law to offer both a probing analysis of the relevant legal doctrines in a number of jurisdictions and also a philosophically rigorous account of the purpose of these laws. Khaitan's writing is lucid and helpful; his account of anti-discrimination law is detailed and impressively wide-ranging; and his two-level theory of discrimination law's purpose is ingenious and illuminating. This book is essential reading both for scholars of anti-discrimination law and for philosophers trying to understand what is required of a state that truly wishes to treat its citizens as equals. Sophia Moreau, Associate Professor, University of Toronto Khaitan's account is sophisticated, extensive and among the very best normative accounts of discrimination law available. All in all, I strongly recommend A Theory of Discrimination Law to anyone interested in legal and moral theories about discrimination. Professor Kasper Lippert-Rasmussen, Department of Political Science, Aarhus University It is not often one comes across a book that really sharpens the focus on a familiar subject. I have been teaching the law relating to discrimination all my professional life. After such a long engagement with the subject, I was not expecting to discover anything new in Khaitans book, but my low expectations were confounded. This serious monograph has really got me thinking again very hard about the subject. Hugh Collins, Vinerian Professor of English Law, All Souls College, University of Oxford One of the things readers will find so enjoyable about this book is the clarity with which Khaitan expresses his ideas and in doing so, he makes complex theoretical ideas accessible. Dominique Allen, Senior Lecturer, Deakin Law School, Melbourne Regardless of whether the reader, in the guise of legislator, academician, student, lawyer, activist or layperson, agrees with this theory, Khaitan has so neatly presented each step in his approach and in such a manner that any response, whether positive or negative, requires serious contemplation and argument. Laura Carlson, Associate Professor, Department of Law, Stockholm It is an admirably ambitious exercise in what the author describes as particular jurisprudence, which is informed throughout by the author's keen intelligence and in-depth knowledge of comparative discrimination law. It is also original: his analysis differs radically from other liberal accounts of the law in this regard. This book therefore represents a major contribution to the somewhat scattered conceptual literature that exists in this field. Colm O'Cinneide, Professor of Law, University College LondonPART I: SCOPE AND DEFINITION ; PART II: POINT AND PURPOSE ; PART III: DESIGNING THE DUTIES