Second Principles of Social Justice

Abstract

How far is it possible to regulate sexual harassment by legal means? Drawing for the most part on the Australian federal (rather than the Australian states’) sex-discrimination legislation and its accompanying instrumentalities; on a range of both federal and state tribunal cases; and on a series of informal interviews with practitioners, I approach this question by postulating certain ethical conditions for its current and continuing justiciability. A motley set, these conditions do not readily lend themselves to being assembled under the rubrics of philosophical (or political-ideological) justification through which legal and ethical concerns are usually brought together. Thus the principal candidate for this status, equality between the sexes, I suggest, forms but one of these conditions and may also be open to a non-philosophical interpretation. The unlawful status of sexual harassment hinges on considerations of ‘good manners’ and bodily integrity, honour and shame, natural justice, vicarious liability, and judicial judgements concerning ‘character’. These ‘secondary’ considerations also involve matters of principle. Contrary to what is often thought, equality is not the ‘first’ or the only principle at stake.