Denise G. Reaume

Individuals, Groups and Rights to Public Goods

Are there any rights to public goods? Can they be claimed by individuals? Recent literature has elided these two questions and reached a skeptical conclusion. This oversimplifies the issue. The difficulty with individual rights claims in respect of public goods has to do less with the public nature of the good than with whether the good is participatory by nature; some but not all public goods are participatory. Thus individual rights claims to some public goods may be valid under certain circumstances. However, groups rather than individuals must hold any rights that may validly be claimed in respect of participatory public goods.

Lingua franca fever: sceptical remarks

The policy push in favour of fostering a global lingua franca has shed overtly imperialistic underpinnings and been recast, but many of the same objections can be levelled at new attempts to justify an old policy. Efforts to explain the impetus towards linguistic uniformity through rational choice theory obscure the power dynamics behind choice of language in multilingual contexts. Invoking democratic engagement as a benefit of uniformity overestimates the role of linguistic diversity as a drag on participation and ignores more important forces. A focus on equality of opportunity and social mobility through lingua franca competence as justification for the policy reveals a shallow conception of equality and underplays the long-term consequences for non-lingua franca communities were equality of opportunity for individuals to be taken seriously. Finally, seeing the justice issues that arise out of competition between languages as one of ensuring adequate compensation to the losers underscores how thin is the conception of equality animating the approach; it purchases an inadequate level of equal opportunity for individuals at the expense of inequality amongst language communities.

What’s Distinctive About Feminist Analysis of Law?: A Conceptual Analysis of Women’s Exclusion from Law

What is distinctive about a feminist analysis of law? Conversely, what does it mean to characterize the law as distinctively ‘male’ as a way of criticizing its injustice? It is widely assumed by both feminist scholars and non-feminists or curious onlookers that a feminist analysis of law must have distinctive features that set it off from mainstream\“malestream” theories of law. Feminist scholars often try to ‘sell’ feminist analysis to interested newcomers and try to break down the recalcitrance of those who seem to want to marginalize and dismiss it precisely by claiming a difference of perspective for feminist analysis of which no well educated lawyer or legal commentator can afford to be ignorant. Meanwhile, feminist claims are also challenged by those who think they can reach the same conclusion on independent grounds for therefore not being distinctively feminist: “what makes that particularly feminist” the communitarian, for example, will ask, faced with an argument that feminism is critical of the individualistic bias of the legal system.Distinctiveness implies not only contrast with some other kind of account, but also internal cohesiveness, some kind of commonality amongst accounts sharing the label “feminist jurisprudence”. Yet the assumption of distinctiveness pervades a literature in which it is increasingly difficult to identify anything that unites all feminists. Originally, the assumption that feminist analysis of law could be grounded in something that all women have in common may have been born of an understandable impatience to bring about immediate change together with the optimistic normative belief that if something (law, policy, etc.) was bad for all women it simply had to be changed. However, articulating feminist distinctiveness in terms of women’s commonality has given rise to an unfortunate dynamic as competing accounts – all at least implicitly claiming to define the meaning of feminism – proliferate. After examining this dynamic and its consequences for healthy debate amongst feminists interested in law, I propose a different way of thinking about what makes feminist analysis of law distinctive – one that shifts away from a substantive level of analysis to the conceptual level.

Harm and Fault in Discrimination Law: The Transition from Intentional to Adverse Effect Discrimination

A central trend in the development of discrimination law, in every jurisdiction, has been the movement from a requirement of intention to ground a complaint to the recognition as actionable of indirect or adverse effect discrimination. Initially, liability for discrimination was circumscribed very narrowly, requiring a form of intention that was tantamount to malice. The practical consequences of this narrow conception were apparent early on, and those concerned about them have long been agitating, with some success, for a reading or redrafting of anti-discrimination statutes that would yield broader liability. Advocacy (both practical and theoretical) in the discrimination law context has tended to swing wildly between two extremes -- from a virtually exclusive focus on the moral blameworthiness of the defendant to an attempt to focus solely on the effects of discrimination on its victims. This article seeks to reexamine the gradual expansion of liability in discrimination law from the perspective of the key conceptual elements of liability in tort law in order to reexamine the normative underpinnings of this area of law. Viewed from a tort perspective, the enlargement of the scope of discrimination law can best be understood as resulting from an implicit expansion of the concept of fault appropriate to this context of human interaction, a change linked to an expanding conception of the human interests that discrimination law protects from infringement. From its beginnings, discrimination law implicitly recognized that deliberately refusing to contract with others out of ill will or prejudice toward an important aspect of identity such as race or sex constituted an affront to human dignity that could not be justified by the value of freedom of contract. The expansion of liability over time reflects an expansion of the concept of human dignity bound up with fair access to important opportunities and due consideration of the needs and interests of differently situated groups in the design of important social institutions. This conception of dignity constructs it as an objective interest that can be affected by implicitly discriminatory behavior as well as by conduct motivated by prejudice, requiring more robust justification than the mere claim to liberty. This approach can explain many of the advances in modern discrimination law without resorting to end-state distributive principles.

Fairness and equal recognition

An important contribution of Alan Patten’s Equal Recognition is the conception of neutrality that grounds his defence of minority cultural rights. Built in to his conception of neutrality of treatment is a notion of ‘fairness’ whose effect is to provide an upfront, across the board limitation on the demands cultural minorities may legitimately make on the rest of society. There must be limits on the duty to accommodate, but it obscures more than it illuminates to build this into the content of the right to equal recognition itself. We see more clearly what is at stake in these conflicts by articulating the value of self-determination independently and taking account of necessary limits to its satisfaction as part of a second-stage analysis of what duties may be claimed and against whom. Familiar principles of discrimination law exemplify this alternative model. This presents the interest in self-determination more robustly, while acknowledging that the claims of duty arising out of it are defeasible. The result is a more flexible and nuanced exploration of the complex moral issues involved when fundamental interests clash.