Focusing primarily on the ECHR, my paper tracks the normative justification of religious antidiscrimination on the moral right to ethical independence. The analysis proceeds from the theoretical and doctrinal uncertainty over the relationship between religious antidiscrimination and other rights, such as freedom of religion and freedom of association. Based on a liberal egalitarian account of ethical independence, the paper pursues the argument that religious antidiscrimination, religious freedom and freedom of association, among other rights, share significant parts of their normative foundation on ethical independence. Moreover, I argue that religious antidiscrimination functions as a distinct axis, which complements other rights and, in specific ways, aims to secure sufficient social conditions for ethical independence. The paper aims to highlight the morally distinctive features of religious discrimination and their broader implications for a general theory of discrimination law.
This article examines affirmative action as an element of transitional justice by studying the experiences of South Africa and the United States. In fixing their gaze on a limited set of measures such as truth and reconciliation commissions and criminal prosecutions, transitional justice scholars have largely overlooked the role that affirmative action plays in facilitating transition. At the same time, affirmative action scholars have often neglected the ways in which transitional dynamics shape legal and political debates over affirmative action. This article addresses these shortcomings in two primary ways. First, it brings affirmative action and transitional justice scholarship into conversation to show how fundamental insights from transitional justice apply in the context of affirmative action, and how affirmative action sheds light on transitional debates and dilemmas. Second, the project compares the evolving struggle over affirmative action in two countries seeking racial transition.
In 2016, Canada amended its Criminal Code to permit medical assistance in dying (MAID). The amendments followed a Supreme Court decision that the criminal prohibitions on assisted suicide violated the section 7 Charter rights of competent adults who had a “grievous and irremediable condition” that caused them “intolerable suffering.” The new law permits some MAID to occur. But it includes two criteria not discussed in Carter: that the condition be “incurable” and that death be “reasonably foreseeable”. As a result, some individuals have launched fresh challenges against the new law. This paper looks at the equality rights implications of the new regime with specific attention to substantive equality and the possible role of the Constitution’s “affirmative action” clause. Acknowledging competing arguments from the disability rights community, the paper considers which analytical framework is consistent with previous equality rights jurisprudence, and can promote just outcomes.
In recent years, the use of nudges as regulatory tools—including disclosures, graphic and textual warnings, default rules, alterations of physical environments, messaging of social norms, and other forms of choice architecture—has gained increasing attention. While nudge literature typically focuses on the impact of nudging on constitutional values such as human dignity, autonomy, transparency, and welfare, the value of equality is quite often overlooked. Accordingly, this paper seeks to correct this oversight by discussing two phenomena. Firstly, how existing inequalities among nudge recipients can undermine the effectiveness and legitimacy of choice architecture. Secondly, how certain kinds of nudges can either reinforce or overcome existing social stigmas. In light of this analysis, it is argued that nudging can indeed promote equality, as long as it is complemented by other traditional regulatory techniques and takes into account existing inequalities between its recipients.
The Chilean Antidiscrimination Law has proved to be insufficient and seriously flawed. Enacted in 2012, it has been applied scarcely, with limited results before the Courts. This year, the Government has announced a bill reforming the Antidiscrimination Law, opening a public consultation. This presentation summarises the main problems of the current law. Then, drawing from Comparative Antidiscrimination Law, it proposes several improvements.
Discrimination is a social phenomenon that can be studied through the exploration of the societal patterns, behavioral strategies, cultural symbols, and economic arrangements that organize, materialize and reproduce the multiple and heterogeneous sources of structural disadvantage that affect various human groups as a whole within past and present societies. But the word discrimination is also a linguistic convention that brings these phenomena to our minds when pronounced; a concept that condenses them semantically. For this reason, it is also possible to approach the social phenomenon that we now call discrimination using as an entry point the study of the construction, circulation and appropriation of the concept that bears this name, the concept of discrimination, in order to understand its place within our sociopolitical vocabularies and to cast light on its continuities and changes over space and time. This presentation seeks to provide historical support for the intuition that at some point a differentiation emerged between discrimination as a “mere” word and discrimination as a fundamental sociopolitical concept.