Book Co-Edited by Professor Hellman Explores Philosophy of Discrimination Law

A new book co-edited by University of Virginia law professor Deborah Hellman digs deeply into how we understand and justify laws that prohibit discrimination.

Hellman, one of the nation's leading scholars on discrimination and equality, co-edited the Oxford University Press volume "The Philosophical Foundations of Discrimination Law" with Sophia Moreau, an associate professor of law and philosophy at the University of Toronto.

The book features 13 essays by scholars who think and write about discrimination from a philosophical perspective, many of whom originally presented their papers at two conferences organized by Hellman and Moreau.

"The aim of the book is to bring together scholars thinking about discrimination philosophically, in order to develop a sense of what the questions are that are worth further investigation and to begin to provide answers to these questions," Hellman said.

Hellman said the book stands out because only recently has discrimination and its legal implications attracted the attention of philosophers.

"The book is exciting because it brings together many of the people currently working on the philosophical foundation of discrimination law," she said. "In addition, because the book grew out of two conferences, the essays reflect the back and forth between participants that these events made possible."

The book's first section consists of five essays that ask the questions: What makes discrimination wrong? And what kind of a wrong is it?

"Is discrimination like a tort — a individual wrong that a person or entity commits against another? " Hellman asked. "Or should we think of it as more of a social wrong, like an unjust distribution of social resources?"

Hellman, author of the 2008 book "When Is Discrimination Wrong?," wrote one of the first section's essays, "Equality and Unconstitutional Discrimination."

"I make the argument in that chapter that, broadly speaking, there are two ways of understanding what makes discrimination an individual wrong," she said. "On the first account, discrimination is wrong when the law or policy at issue fails to treat people as equals. On the second account, discrimination is wrong when it denies a person a freedom or liberty to which she is entitled. Each of these two competing theories has many variants. But the first family of views grounds the wrong in the value of equality and the second set of views grounds it in the value of liberty."

The second section of the book deals with meta-theoretical questions, such as whether we should expect one theory of discrimination that explains and justifies laws forbidding discrimination of all different sorts, such as race, sex or disability. Perhaps, Hellman said, these different laws have different rationales and there is no grand, overarching account of discrimination law, only theories of race discrimination law, sex discrimination law and so on.

UVA law professor George Rutherglen authored one of the second section's essays, "Concrete or Abstract Conceptions of Discrimination."

"Any adequate theory of discrimination law must do more than offer an abstract justification for the law," Rutherglen said. "It must take account of how it is implemented in the terms of particular statutes, which identify who is protected, from what forms of discrimination and with what exceptions, by which institutions. The pragmatic view [is that] these specific issues often have more influence over the law's development than abstract theory."

The book's third section is focused on discrete topics of philosophical interest related to discrimination, including how we should think about disparate impact discrimination, whether quotas are different than other forms of affirmative action, what treating someone as an individual entails and whether disability discrimination is meaningfully different from other forms of discrimination.

"These chapters are still philosophical in orientation, but rather than focus on the big questions like what makes discrimination wrong, these essays are more narrowly focused, asking things like whether quotas are always wrong," Hellman said.