Anthony Sangiuliano (Sage School of Philosophy, Cornell University) has posted Bottom-Up and Top-Down Theories of Antidiscrimination Law (Forthcoming, Oxford Journal of Legal Studies published by Oxford University Press) on SSRN. Here is the abstract:
This paper restates and critically analyses two prevalent philosophical approaches towards studying antidiscrimination law. So-called ‘bottom-up’ approaches are committed to ‘moralism,’ the view that a discriminatory act’s being morally wrong gives a reason to legally prohibit it, and a ‘prescriptive’ method for theorizing about antidiscrimination law, which constructs a theory of the moral wrongness of discrimination as an abstract standard for appraising existing law. ‘Top-down’ approaches are committed to ‘instrumentalism,’ the view that the law’s purpose is, not to reflect private interpersonal morality, but to function as a tool for promoting a valuable social goal and an ‘interpretive’ method that seeks to justify existing antidiscrimination law. After canvasing alternative approaches, I explain how the influence of antidiscrimination on our moral intuitions about discrimination reveals a connection between prescriptivism and interpretivism. I then argue that interpretivism imposes constraints on accounts of antidiscrimination law’s purpose that are difficult for moralism to satisfy.
Recommended.