Justifying Discrimination Law

Abstract

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 (as distinct from an egalitarian) 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.