Is a liberal framework of individual rights sufficient to make sense of the harms of wrongful discrimination, and can such a framework provide effective remedies for those harms?

Abstract

Liberalism holds that each of us is entitled to certain rights necessary for our freedom and autonomy, including rights protecting our property and person, a right to deliberative freedom, and to freedom of association. A liberal understanding of wrongful discrimination (‘discrimination’) is predicated on a rights-based analysis of what discrimination is. Thus anti-discrimination law is characterised as an interference with deliberative freedom, and a failure to respect autonomy. A rights-based response to discrimination is cast in terms of the protection and enforcement of rights, but a liberal concern with rightsconflict and unjustified state coercion is used to defend the limited scope of anti-discrimination law. I argue that anti-discrimination law fails to protect the victims of discrimination in the exercise of their rights, or otherwise to remedy the harms of discrimination. I rely on Hohfeld’s conceptual account of the form of rights, noting the basic two-party jural relationship, the strict correlativity between specific rights and duties, the powers associated with rights, and the distinction between in rem and in personam remedies. I argue that a liberal framework of individual rights does not provide a conceptual or practical basis for a remedial response to discrimination. I question the enforcement of moral rights that have no legal rights analogue, but argue in any event that anti-discrimination rights-remedies – legal or moral – are generally only compensatory rather than remedial. They do not put a rights-holder who suffers discrimination in the same position as a rights-holder who is not discriminated against, and is able to enjoy her rights freely, subject only to permissible interference. I argue that discrimination requires a remedial response based on a causal rather than a simply moralised, rights-based analysis of its harm