Chapter

Normative Twist and Antinomy

Alexander Somek

in Engineering Equality

Published in print April 2011 | ISBN: 9780199693375
Published online September 2011 | e-ISBN: 9780191729737 | DOI: http://dx.doi.org/10.1093/acprof:oso/9780199693375.003.0006
Normative Twist and Antinomy

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Systemic discrimination is the core concern of anti-discrimination law. Surprisingly, even direct discrimination can be understood to be a special case of indirect discrimination. In most instances, however, the observable impact of systemic discrimination is called ‘indirect’ or ‘disparate impact’ discrimination. Some groups end up worse off than others. The causal mechanisms may remain difficult to untangle. Yet, both categories are normatively deficient. Indirect discrimination is susceptible to justification on the ground of the proportionate pursuit of legitimate objectives. Determining the scope of legitimate objectives is not constrained by any distributive norm. Likewise, a case of direct discrimination cannot be established where the anti-discrimination norm does not declare a certain act to be an act of discrimination. The absence of a distributive norm comes to the fore, in this context, as a problem of identification. The emerging normative deficiency is the consequence of a deeper-seated antinomy of anti-discrimination law.

Keywords: Direct discrimination; indirect discrimination; systemic discrimination; causation; discriminatory intent; normative deficiency; comparability; proportionality principle; normative intent; pre-normative intent

Chapter.  14842 words. 

Subjects: Jurisprudence and Philosophy of Law

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