Abstract
This chapter will examine the meaning of discrimination in convergent but analytically distinct ways. We look first at its evolution in British legislation, considering simultaneously how these statutory changes embodied an altered view of the problem of racial inequality, and then analyse diverse concepts of discrimination at a more abstract level. Ultimately our concern is with the way in which discrimination may be applied as a legal concept. Any such definition, however, is at bottom the expression in a peculiar specialised vocabulary of what may, rather loosely, be termed a social-philosophical concept; and it is only when work at this level is complete that the translation into law may begin. Hence both levels of analysis are undertaken.
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Notes
L. Pollak, Employment Discrimination — The American Response, published in pamphlet form by the Runnymede Trust in 1974. Its intellectual impact may be noted both in the Preface by the then Chairman of the Race Relations Board, Sir Geoffrey Wilson, and in the reference by Geoffrey Bindman, the Board’s legal adviser, in ‘The Law and Discrimination — Third Thoughts’, 3 B.J. Law & Soc. 195 (1976).
L. Mayhew, Law and Equal Opportunity (Harvard U.P., 1968) pp. 59–74.
Fiss, ‘The Fate of an Idea Whose Time Has Come’, 41 U. Chi. L. Rev. 742, 764 (1974).
J. Rawls, A Theory of Justice (Harvard U.P., 1971) pp. 17–22.
R. Nozick, Anarchy, State and Utopia (Harvard U.P., 1974) pp. 155–64.
See B. Sundberg-Weitman, Discrimination on Grounds of Nationality (North-Holland, 1977) chap. 8.
See N. Glazer and D. Moynihan (eds), Ethnicity (Harvard U.P. 1975), passim. For a wide-ranging account of constitutional arrangements designed to protect ethnic minorities,
see C. Palley, Constitutional Law and Minorities (Minority Rights Group, 1978).
[1977] I.R.L.R. 288, EAT. See the illuminating note by McCrudden, (1977) 6 I.L.J. 241.
Perhaps the most useful sources are two periodicals, Analysis and Philosophy and Public Affairs, which have printed numerous papers on the subject over the past eight years. M. Cohen et al. (eds) Equality and Preferential Treatment (Princeton U.P., 1977) collects several of those printed in the latter.
Others are A. Goldman, Justice and Reverse Discrimination (Princeton U.P., 1979);
W. Gould, Black Workers in White Unions (Cornell U.P., 1977) chap. 5;
R. Dworkin, Taking Rights Seriously (Oxford U.P., 1977) chap. 9; Symposium, 75 Col. L. Rev. no. 2 (1975);
B. Bittker, The Case for Black Reparations (Yale U.P., 1973).
W. Gould, Black Workers in White Unions (Cornell U.P., 1977) chap. 5.
For some sympathetic descriptions see the chapters on the political behaviour of the various ethnic groups in N. Glazer and D. Moynihan, Beyond the Melting Pot (M.I.T. Press, 1963).
F. Lawson, Remedies of English Law (Penguin Books, 1972) pp. 253 ff. He contrasts this with American law, which has extended the scope of obligations of contracting parties by use of concepts such as the third party beneficiary.
See the discussion in B. Schlei and P. Grossman, Employment Discrimination Law (BNA, 1976) p. 1211. A good example is the judgment in Bridgeport Guardians v. Bridgeport Civil Service Commn, 482 F. 2d 1333 (2nd Circ. 1973), in which quotas ordered for employment of police constables were upheld, whilst those for sergeants were overturned.
As argued by Ely, ‘The Constitutionality of Reverse Discrimination’, 41 U. Chi. L. Rev 723 (1974).
B. Bittker, The Case for Black Reparations (Yale U.P., 1973).
W. J. Wilson, The Declining Significance of Race (University of Chicago Press, 1978) p. 22.
See especially Freeman, ‘Black Economic Progress since 1964’, Pub. Int. no. 52 (Summer 1978) passim;
also S. Levitan et al., Still a Dream (Harvard U.P., 1975) chap. 1, who point out (p. 21) that some of the apparent gain was a statistical artifact due to migration from the South to the North, a higher-wage area;
Hogan and Featherman, ‘Racial Stratification and Socio-Economic Change in the American North and South’, 83 A.J.S. 100 (1977).
This might be one psychological dimension of the idea of ‘status harm’ advanced by Fiss, ‘Groups and the Equal Protection Clause’, 5 Phil. & Pub. Aff. 107 (1976).
An interesting study of the response of the social services to the influx of Irish and Jews, which then compares their response to New Commonwealth immigration, is that of C. Jones, Immigration and Social Policy in Britain (Tavistock, 1977).
See the discussion and data in Greeley, ‘The Ethnic Miracle’, Pub. Int. no. 45 (Fall 1976) pp. 20–37.
For a general comparison, now unfortunately somewhat dated, see S. Castles and G. Kosack, Migrant Workers and Class Structure (Oxford U.P., 1973).
A point made long ago by Bentham, who castigated claims based upon ‘natural rights’ as attempts by the claimant to gain allies in the achievement of whatever end recognition of the right was supposed to produce. See, e.g., his comment quoted in D. Lloyd, Introduction to Jurisprudence (Stevens, 4th edn, 1979) p. 172 n. 9. Of course accepting the truth of Bentham’s political analysis does not entail rejecting the desirability of rights, when socially established.
Cmnd 6845. See further D. McKay and A. Cox, The Politics of Urban Change (Croom Helm, 1979) chap. 7. This is not the place to assess the validity of the theory that deprivation is spatially concentrated in particular urban areas, which has received substantial empirical criticism.
K. Jones and A. Smith, The Economic Impact of Commonwealth Immigration (Cambridge U.P., 1970) p. 96.
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© 1980 Laurence Lustgarten
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Lustgarten, L. (1980). Concepts of Discrimination — History and Theory. In: Legal Control of Racial Discrimination. Palgrave, London. https://doi.org/10.1007/978-1-349-16439-4_1
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