LL246      Half Unit
Philosophical Foundations of Discrimination Law

This information is for the 2025/26 session.

Course Convenor

Availability

No prior knowledge of discrimination law is required to take this course. Legal theory has witnessed an explosion of theoretical attempts to explain discrimination law over the last decade or so. This course will, for most part, focus on theoretical scholarship that approaches discrimination law from a legal philosophy lens. The approach adopted in the seminar will largely be analytic and normative theory, rather than critical theory or legal doctrine (for a related course that adopts a critical perspective, please see Race, Class, and Law; primarily doctrinal/practical courses related to this one include Employment Law and Law, Poverty, and Access to Justice). In other words, we will analyse concepts in discrimination law to uncover their salient and essential features, and examine whether they are mutually coherent and normatively justified. Assessment of how these features actually work in practice or exploring them through a critical theory lens is beyond the scope of this seminar, but there will be some suggested additional readings for students keen to sample a critical approach.

The goal is not to equip you with a practitioner’s knowledge of discrimination law, or its historical development, or its effectiveness in achieving its objectives. Instead, in light of legal doctrine in key common law jurisdictions from the Global North and the Global South (the US, South Africa, the UK, Canada and India), we will consider questions of the following sort: what role do the concepts of grounds and groups perform in discrimination law doctrine? What is the point and purpose of discrimination law? Is this area of law coherent? Is affirmative action continuous with anti-discrimination or an exception to it? What distinguishes antidiscrimination law from welfare law and social rights? Does discrimination law seek corrective or distributive justice? What is the basis for prohibiting discrimination on certain grounds but not others? When, and to what extent, is prohibition on discrimination by non-state actors justified? Is the law fundamentally concerned with groups or individuals?

20 hours of seminars in the Winter Term.

This course has a reading week in Week 6 of Winter Term.

Essay (2000 words)

1. B Eidelson, Discrimination and Disrespect (2015)
2. T Khaitan, A Theory of Discrimination Law (2015)
3. D Hellman, When is Discrimination Wrong (2008)
4. S Moreau, Faces of Inequality (2020)
5. H Collins et al (eds), Foundations of Indirect Discrimination Law (2018)
6. Fiss, ‘Groups and the Equal Protection Clause’ (1976) 5 Philosophy and Public Affairs 107
7. P Shin, ‘Is There a Unitary Concept of Discrimination?’ in D Hellman and S Moreau (eds), Philosophical Foundations of Discrimination Law (2013)

Exam (100%), duration: 150 Minutes in the Spring exam period