Change search
CiteExportLink to record
Permanent link

Direct link
Cite
Citation style
  • apa
  • ieee
  • modern-language-association-8th-edition
  • vancouver
  • Other style
More styles
Language
  • de-DE
  • en-GB
  • en-US
  • fi-FI
  • nn-NO
  • nn-NB
  • sv-SE
  • Other locale
More languages
Output format
  • html
  • text
  • asciidoc
  • rtf
The Formal Concept of Discrimination
Lunds universitet, Juridiska fakulteten.
2006 (English)Independent thesis Advanced level (degree of Master (One Year)), 20 credits / 30 HE creditsStudent thesis
Abstract [en]

According to the Principle of Formal Justice like cases must be treated alike, and different cases must be treated differently. This principle is derived from the Aristotelian concept of distributive justice. Aristotle held that ‘All men agree that what is just in distribution should be according to merit of some sort, but not all men agree as to what that merit should be’.

The classical concept of illegal discrimination, in Community law referred to as direct discrimination, seeks to decide what these merits must not be. This is done by declaring disparate treatment on certain grounds, in certain circumstances, illegal. It is argued in this paper that exceptions to this principle are made through acknowledging that discriminations on prohibited grounds are sometimes justified, and that this should be called justified direct discrimination. It is submitted that it is only obscuring to the concept to suggest otherwise, since the concept of discrimination as such, just as the Principle of Formal Justice, should not be carrying substantive or emotive meanings.

The subsequent concept of indirect discrimination aims instead at prohibiting disparate impacts of neutral criteria. There is some ambiguity to this concept, specifically on what it is that amounts to ‘discrimination’ in this context, and how the available defences should be perceived. It is submitted that to pursue clarity, it must be acknowledged that this concept is built on the second element of the Principle of Formal Justice, i.e., that different cases must be treated differently, and that ‘discrimination’ occurs when discriminators omit to do so, causing disparate impacts statistically connected to prohibited grounds of discrimination. A justification defence, if successful, should in such circumstances prompt courts to hold that there has been discrimination, but that it is justified.

It is further argued that the concept of positive action is a formal concept through which disparate treatment is required on specific grounds, i.e., that the legislature in this case indeed recognises some ‘merits’ according to which distribution is ‘just’ (according to the legislature). Unlike direct and indirect discrimination, positive action is necessarily a one-way vessel, designed to promote preference for individuals belonging to a certain class of people identified by the positive action norm.

The author concludes that all these concepts are built upon a formal structure taken from the Principle of Formal Justice, and that the acknowledgment of this fact can contribute to clarity in anti-discrimination law.

Place, publisher, year, edition, pages
2006. , p. 75
Keywords [en]
discrimination, formal justice, philosophy of law, jurisprudence, EU law
Keywords [sv]
diskriminering, formell rättvisa, EU-rätt, rättsfilosofi, allmän rättslära
National Category
Law (excluding Law and Society)
Identifiers
URN: urn:nbn:se:uu:diva-161162OAI: oai:DiVA.org:uu-161162DiVA, id: diva2:454814
Uppsok
Social and Behavioural Science, Law
Supervisors
Available from: 2011-11-08 Created: 2011-11-08 Last updated: 2011-11-08Bibliographically approved

Open Access in DiVA

fulltext(512 kB)2065 downloads
File information
File name FULLTEXT01.pdfFile size 512 kBChecksum SHA-512
fcf5cc65127a81be41dadba63b6bef1bcf6a401e3f8b9144ab23e3d84f5f30a9119cc933b472ea2cccbdc0bf8519ab54286386a5fcc570157ee87bf6d841766c
Type fulltextMimetype application/pdf

Other links

http://lup.lub.lu.se/luur/download?func=downloadFile&recordOId=1562167&fileOId=1565872

Search in DiVA

By author/editor
Strand, Magnus
Law (excluding Law and Society)

Search outside of DiVA

GoogleGoogle Scholar
Total: 2065 downloads
The number of downloads is the sum of all downloads of full texts. It may include eg previous versions that are now no longer available

urn-nbn

Altmetric score

urn-nbn
Total: 527 hits
CiteExportLink to record
Permanent link

Direct link
Cite
Citation style
  • apa
  • ieee
  • modern-language-association-8th-edition
  • vancouver
  • Other style
More styles
Language
  • de-DE
  • en-GB
  • en-US
  • fi-FI
  • nn-NO
  • nn-NB
  • sv-SE
  • Other locale
More languages
Output format
  • html
  • text
  • asciidoc
  • rtf