This book provides a general theory of discrimination law as practised in liberal democratic jurisdictions. Rejecting accounts that place the value of equality at the heart of the law, it argues that discrimination law protects individual autonomy. Applying the theory, the book tackles the central legal problems in applying discrimination laws.

This book provides a general theory of discrimination law as practised in liberal democratic jurisdictions. Rejecting accounts that place the value of equality at the heart of the law, it argues that discrimination law protects individual autonomy. Applying the theory, the book tackles the central legal problems in applying discrimination laws.

Indirect discrimination (or disparate impact) concerns the application of the same rule to everyone, even though that rule significantly disadvantages one particular group in society. Ever since its recognition by the Supreme Court of the United States in 1971, liberal democracies around the world have grappled with the puzzle that it can sometimes be unfair and wrong to treat everyone equally. The law's regulation of private acts that unintentionally (but disproportionately) harm vulnerable groups has remained extremely controversial, especially in the (...) United States and the United Kingdom. In original essays in this volume, leading scholars of discrimination law from North America and Europe explore the various facets of the law on indirect discrimination, interrogating its foundations, history, legitimacy, purpose, structure, and relationship with other legal concepts. The collection provides the first international work devoted to this vital area of the law that seeks both to prevent unfair treatment and to transform societies. (shrink)

Many concerned citizens, including judges, bureaucrats, politicians, activists, journalists, and academics, have been claiming that Indian democracy has been imperilled under the premiership of Narendra Modi, which began in 2014. To examine this claim, the Article sets up an analytic framework for accountability mechanisms liberal democratic constitutions put in place to provide a check on the political executive. The assumption is that only if this framework is dismantled in a systemic manner can we claim that democracy itself is in peril. (...) This framework helps distinguish between actions that one may disagree with ideologically but are nonetheless permitted by an elected government, from actions that strike at the heart of liberal democratic constitutionalism. Liberal democratic constitutions typically adopt three ways of making accountability demands on the political executive: vertically, by demanding electoral accountability to the people; horizontally, by subjecting it to accountability demands of other state institutions like the judiciary and fourth branch institutions; and diagonally, by requiring discursive accountability by the media, the academy, and civil society. This framework assures democracy over time – i.e. it guarantees democratic governance not only to the people today, but to all future peoples of India. Each elected government has the mandate to implement its policies over a wide range of matters. However, seeking to entrench the ruling party’s stranglehold on power in ways that are inimical to the continued operation of democracy cannot be one of them. The Article finds that the first Modi government in power between 2014 and 2019 did indeed seek to undermine each of these three strands of executive accountability. Unlike the assault on democratic norms during India Gandhi’s Emergency in the 1970s, there is little evidence of a direct or full-frontal attack during this period. The Bharatiya Janata Party government’s mode of operation was subtle, indirect, and incremental, but also systemic. Hence, the Article characterizes the phenomenon as “killing a constitution by a thousand cuts.” The incremental assaults on democratic governance were typically justified by a combination of a managerial rhetoric of efficiency and good governance (made plausible by the undeniable imperfection of our institutions) and a divisive rhetoric of hyper-nationalism (which brands political opponents of the party as traitors of the state). Since its resounding victory in the 2019 general elections, the Modi government appears to have moved into consolidation mode. No longer constrained by the demands of coalition partners, early signs suggest that it may abandon the incrementalist approach for a more direct assault on democratic constitutionalism. (shrink)

This paper provides a taxonomy of the different kinds of theory that may be offered of an area of law. We distinguish two basic types of philosophical accounts in special jurisprudence: nonnormative accounts and normative accounts. Section II explains the two central subspecies of nonnormative accounts of areas of law: (i) conceptual and ontological theories and (ii) reason-tracking causal theories. Section III explores normative theories of areas of law. Normative accounts subdivide into detached and committed normative accounts. Detached or committed (...) normative accounts can be subdivided further into the following cross-cutting categories: (i) pro tanto or all-things-considered, (ii) hyper-reformist or practice-dependent, (iii) taxonomical or substantive. Section IV shows that our taxonomy does not presume a prior commitment to any particular school in general jurisprudence. This paper clarifies methodological confusion that exists in theorizing about areas of law, and contributes to the subfield of thinking generally about special jurisprudence. (shrink)

This book provides a general theory of discrimination law as practised in liberal democratic jurisdictions. Rejecting accounts that place the value of equality at the heart of the law, it argues that discrimination law protects individual autonomy. Applying the theory, the book tackles the central legal problems in applying discrimination laws.

In a seminal 1977 article, Rumelhart argued that perception required the simultaneous use of multiple sources of information, allowing perceivers to optimally interpret sensory information at many levels of representation in real time as information arrives. Building on Rumelhart's arguments, we present the Interactive Activation hypothesis—the idea that the mechanism used in perception and comprehension to achieve these feats exploits an interactive activation process implemented through the bidirectional propagation of activation among simple processing units. We then examine the interactive activation (...) model of letter and word perception and the TRACE model of speech perception, as early attempts to explore this hypothesis, and review the experimental evidence relevant to their assumptions and predictions. We consider how well these models address the computational challenge posed by the problem of perception, and we consider how consistent they are with evidence from behavioral experiments. We examine empirical and theoretical controversies surrounding the idea of interactive processing, including a controversy that swirls around the relationship between interactive computation and optimal Bayesian inference. Some of the implementation details of early versions of interactive activation models caused deviation from optimality and from aspects of human performance data. More recent versions of these models, however, overcome these deficiencies. Among these is a model called the multinomial interactive activation model, which explicitly links interactive activation and Bayesian computations. We also review evidence from neurophysiological and neuroimaging studies supporting the view that interactive processing is a characteristic of the perceptual processing machinery in the brain. In sum, we argue that a computational analysis, as well as behavioral and neuroscience evidence, all support the Interactive Activation hypothesis. The evidence suggests that contemporary versions of models based on the idea of interactive activation continue to provide a basis for efforts to achieve a fuller understanding of the process of perception. (shrink)

This review article analyses Tarunabh Khaitan’s attempt in his recent book, A Theory of Discrimination Law, to identify the central purpose and justification of discrimination law. Khaitan sets out to determine the key features of discrimination law through rigorous comparative analysis, and to locate a solid normative foundation for its provisions. He concludes that discrimination law is structured around an ‘obsession’ with combating group disadvantage, ie relative forms of disadvantage between different groups whose membership is defined by (...) morally irrelevant or valuable personal characteristics such as gender, race and disability. He goes on to make a strongly argued liberal case as to why discrimination law is justified in seeking to minimise the negative impact on individual liberty of group disadvantage. Certain aspects of his analysis fail to capture the full complexity of discrimination law and the moral concerns which underpin its functioning. However, in general, Khaitan’s arguments make an invaluable contribution to the diffuse theoretical literature on discrimination law, and are bound to become a major point of reference in conceptual debates about this highly significant area of law. (shrink)

The concept of dignity figures prominently in legal and moral discussion on such topics as human rights, euthanasia, abortion, and criminal punishment. Yet the notion has been criticized for being indeterminate and either insufficient or redundant (or both) in justifying the kinds of legal and moral rights and views its proponents use it to vindicate. The criticisms have inspired some novel conceptions of dignity. One of them is Tarunabh Khaitan’s proposal that dignity should be understood as an expressive (...) norm. In this article, I assess Khaitan’s suggestion. I maintain that it faces two challenges that its advocates should be able to solve for the proposal to be plausible. (shrink)

Writing about “self” as an autobiography became an elite device in the hands of many Indian women post independence, who wished to write about their lives and exerted strenuously to break the restrictions imposed on them within the “four-walled peripheries” to construct their own identity and exhibit their individuality in various fields such as sports, business, film industry, defense, and in various other professions. They assertively voiced in the form of writing their life narratives to discard the burden of patriarchal (...) dominance where with a prevalent sense of gender discrimination, they are considered feeble, inept, or subjugated. This article explores and cognizes the course of an inspirational and tear-jerking narrative, A Life Apart, crafted by a well-off industrialist and writer, Prabha Khaitan who flouted her community codes and stated against injustices and hypocrisies prevalent in the male-dominated society. It analyses how Prabha footsteps the arduous trail between the passion for love, work, and independence and the pull of traditions and family restrictions to be her own woman creating her own identity. (shrink)