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.

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)

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)

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.