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11. Equality as a Basic Human Right:
Choice and Responsibility
.Archana.Parashar
Drawing on post-structural theory, this chapter argues for a re-
conceptualisation of the role of the judge in equality jurisprudence. It
suggests a closer link between choice and responsibility, which would
require revising conventional theories of judicial reasoning. The approach
would allow the illusory distance between the decision maker and the
decision to be bridged. The chapter concludes by drawing attention to the
transformative potential of legal education for training law students as
independent and ethical thinkers who rmly grasp the relationship between
choice and responsibility.
Introduction
The recent senate review of the Sex Discrimination Act 1984 (Cth) (SDA)
became the occasion for asking whether the legislation is adequate for the task
of eliminating discrimination and promoting gender equality.1 The Senate,
however, did not ask the initial question of how the aims of the SDA might be
ascertained and how we would measure its eectiveness. These are recurring
questions in legal scholarship and as yet remain unresolved. In this chapter,
instead of focusing on measuring the eectiveness in quantitative terms, I
propose to focus on the normative eect and the aim of anti-discrimination
legislation.
There is robust discussion in legal scholarship about whether law can be a
means of intentional and progressive social change. A related stream of thought
questions whether legislation is required or eective for achieving social change
and suggests instead that education is a better tool of social transformation. I take
these as non-issues for this chapter because, everything else notwithstanding,
the normative eect of legislation is undeniable. Therefore, as a starting point,
I wish to address the narrower issue of what kind of equality legislation the
1 Standing Committee on Legal and Constitutional Aairs, Report on the Eectiveness of the Commonwealth
Sex Discrimination Act 1984 in Eliminating Discrimination and Promoting Gender Equality, Parliament of
Australia, Canberra, 2008, <http://www.aph.gov.au/Senate/committee/legcon_ctte/sex_discrim/report/
index.htm>
Sex.Discrimination.in.Uncertain.Times
262
law should aim for. In the senate committee review of the SDA, this issue was
framed in part as whether we need an Equality Act.2 There were arguments
on both sides and the recommendation was for a further, wider inquiry. The
following argument is my eort to identify some of the issues that must be a part
of the debate about the design and scope of an Equality Act.
The initial question of what concept of equality should be pursued in legislation
is answered in part by asking why equality is desired. It is uncontroversial that
the demand of equality is a manifestation of the desire for non-discrimination/
fairness/dignity of every human being. Legislation that will capture these
aspirations best will not be in limited-scope legislation such as the current
SDA. An Equality Act can serve as the shorthand way of describing the human
rights aim of the legislation. That said, the real legislative formula remains to
be developed. Moreover, there is always a large gap between the aims and their
realisation and it is reasonable to expect that the Equality Act would be no
dierent in this regard.
Therefore, it is necessary to address two separate issues: the design of
the legislative provisions and the interpretation and application of these
provisions. In brief, I wish to argue that it is important to formulate the
legislative provisions as clearly and succinctly as possible, but however perfect
the legislative formulations are, they will nevertheless be interpreted by the
judiciary. Therefore, focusing merely on designing better legislative provisions
is an insucient remedy for the identied shortcomings of the law. Instead, it
is essential that we also address the jurisprudential theories of how the courts
can and should interpret these provisions. Therefore the two tasks—that is,
design of the legislation and re-conceptualisation of the judicial role—require
simultaneous attention.
My main aim in this chapter is to analyse the shortcomings of the extant
literature on the nature of judicial role and argue for the re-conceptualisation
of the task of judicial interpretation. In part, this re-conceptualisation of the
judicial role is supported by the post-structural theories of the constructed
nature of all knowledge, but I wish to extend these insights. I wish to argue
that the links between judicial choice and responsibility should be the central
focus of the jurisprudence of equality.
I begin with a brief discussion of the desirable design of an Equality Act. I
argue that equality should be conceptualised as a basic human right. This is,
however, merely to set the context for the subsequent argument about the
judicial role. This is followed by an analysis of the debates about the appropriate
role of the judiciary in implementing legislation. I argue that the conventional
2 I will not analyse the merits of the submissions made or the eventual recommendations because my main
aim in this chapter is to move beyond the issue of designing appropriate legislative provisions.
11.Equality.as.a.Basic.Human.Right
263
theories about the nature of judicial reasoning need to be revised in order to
pin the responsibility on the individual judge for choosing an appropriate
interpretation. This is necessary to bridge the illusory distance between the
decision maker and the decision and for the anti-discrimination legislation to
full the promise of achieving substantial equality. To achieve such change in
the conventions of theorising, it is necessary that legal education develops the
critical and self-reective capacities of thinkers.
Legislative Denition of Equality
An extensive philosophical literature on the concept of equality already exists
but this is not the focus of my chapter.3 Sex equality debates extended these
original arguments about equality to women, but feminist thinkers are also
the ones who have problematised the concept of equality more than any other
group of thinkers. Perhaps unsurprisingly this abundance of discussion has
not as yet brought a resolution to the meaning of equality that everyone can
agree on. In the contemporary debates about conceptualising equality there is,
however, a big dierence from the early feminist eorts when the struggle was
to gain acceptance for the concept of gender justice itself.4 In the contemporary
context, it is widely accepted that inequalities of sex, race, age, sexuality,
ability, and so on, are all illegitimate and the debates now are more about which
strategies to use to eradicate them.5 For example, Squires says that what it
means is that gender equality advocates are expected to pursue gender equality
within a wider equalities framework with attention given to the intersection
of various axes of inequalities. This concern is more accurately described as a
concern with diversity.6
This shift in the conceptualisation of equality is to an extent a function of
the advent of the post-structural method of analysis and thus also carries the
tendency to valorize diversity. The broadening of the concept of gender equality
goes hand in hand with a reluctance to rank in importance various kinds of
discrimination. It is also impossible logically to argue for directed social change
as no concept of justice or fairness can be justied. I believe that the relativism
3 For a comprehensive discussion, see: Wojciech Sadurski, Equality and Legitimacy, Oxford University
Press, New York, 2008. See also: Amartya Sen, Inequality Re-Examined, Oxford University Press, UK, 1992.
4 For a discussion of legal debates on gender equality, see: Rosemary Hunter (ed.), Rethinking Equality
Projects in Law: Feminist Challenges, Hart Publishing, Portland, Ore., 2008.
5 For a wide-ranging discussion on this topic, see: Katherine M. Franke, ‘The Central Mistake of Sex
Discrimination Law: The Disaggregation of Sex from Gender’ (1995–96) 144 University of Pennsylvania Law
Review 1.
6 Judith Squires (The New Politics of Gender Equality, Palgrave Macmillan, Basingstoke, UK, 2007, p. 16);
but she also points out the danger of losing the focus on gender equality. See also: Michele Moody-Adams,
‘Reclaiming the Ideal of Equality’ in Barbara S. Andrew, Jean Keller and Lisa H. Schwartzman (eds), Feminist
Interventions in Ethics and Politics, Rowman and Littleeld Publishers, Oxford, 2005.
Sex.Discrimination.in.Uncertain.Times
264
of this way of thinking can be logical but it is not essential.7 Since all concepts
of equality are equally constructed in discourse, rather than treating them all
as equally relevant, the focus must be to explain why one construct is to be
preferred over another and what are the consequences of such choices.
Anti-discrimination law is a manifestation of the aspiration that law should
help in achieving a fair society,8 although it is one that is very regularly
defeated by the judiciary. The more common and plausible response to this
problematic outcome is that the legislative denition of non-discrimination or
equality should be changed. This suggested course of action, however, assumes
that legislative drafting can x the problem. There are many problems in
this suggestion but even if, for argument’s sake, this explanation is accepted,
changing the denition nevertheless requires a prior articulation of what is or
should be the aim of the legislation. Without being cynical, the desire to be fair
can be seen as an uncontroversial aspiration and with that starting point it is
easy to argue that equality should be given a substantive rather than a formal
content in the legislation. One way of proceeding is to conceptualise equality as
a basic human right.
The Human Rights Model for Equality
I draw on the literature on the US Equal Rights Amendment (ERA) to argue
that we require an overarching principle that discrimination is unacceptable
and this can best be achieved by a constitutional guarantee of equality as a
fundamental or human right.9 The main issue here is not whether such a human
right should be a constitutional or legislative guarantee. Rather the debates
about a constitutional equality right serve to focus attention on the scope or
the extent of such a right. A merging of the concepts of non-discrimination and
equality is necessary for conceptualising equality as a human right.10 Therefore
we need legislation that guarantees equality, and such an equality right can
7 There is extensive discussion in the literature about directed social change in the light of post-structural
analyses. For an introduction, see: Nancy Fraser, Justice Interruptus: Critical Reections on the ‘Postsocialist’
Condition, Routledge, New York, 1997; Jodi Dean (ed.), Feminism and the New Democracy: Resisting the
Political, Sage, London, 1997.
8 Christopher McCrudden (ed.), Anti-Discrimination Law, Dartmouth Ashgate, Aldershot, UK, 2004, pp. xi–
xxxii. See also, for a discussion in the context of racial discrimination but with an argument that is extendable
to all bases of discrimination that more than formal equality is desirable in anti-discrimination jurisprudence:
Tracy E. Higgins and Laura A. Rosenbury, ‘Agency, Equality and Anti-Discrimination Law’ (1999–2000) 85
Cornell Law Review 1194.
9 For a comprehensive review of issues, see: Martha Davis, ‘The Equal Rights Amendment: Then and Now’
(2008) 17(3) Columbia Journal of Gender and Law 419.
10 This is a fairly common idea in the literature. See, for example: Ruth Colker, ‘Anti-Subordination Above
All: Sex, Race and Equality Protection’ (1986) 61 New York University Law Review 1003. See also: Australian
Law Reform Commission, Equality Before the Law: Women’s Equality, Report No. 69, Australian Law Reform
Commission, Sydney, 1994, Part II.
11.Equality.as.a.Basic.Human.Right
265
operate as akin to a constitutional guarantee and thus broaden the scope of the
right to include both state policies and individuals’ actions. More importantly,
it will be a blanket guarantee rather than picking and choosing which grounds
of discrimination are to be proscribed—but admittedly with a drawback of
reduced visibility for gender as a separate ground.11
Some of the objections to the ERA are a good indicator of the importance of
such a norm. The objections are particularly instructive in that they identify
the areas that the opponents of the ERA do not want to be covered by the
equality guarantee. For example, the opponents of the ERA did not wish
equality to govern the organisation of the military, marriage or other issues of
privacy, including abortion and homosexuality.12 As we now know, over time,
greater public acceptance of the principle of non-discrimination on some of
these grounds has come about.13 Discrimination on the other remaining grounds
continues to persist, however, and to be justied. The point is that the rationales
for discrimination on particular grounds continue to be as arbitrary as ever
despite the increased acceptance of the non-discrimination principles. It is in
this context that the introduction of an Equality Act has the potential to create
a normative force for treating all discrimination as suspect or unjustiable.
Australia has a protracted history of unsuccessful eorts to introduce a
constitutional bill of rights and the current move to introduce one as a statutory
measure is the most recent ‘compromise’ development.14 Given this shift in
focus of the human rights movement, it might be argued that any proposed
Equality Act can be part of such human rights legislation and there is no need
for separate legislation. While there is an overlap between the human rights
discourse and the demand for equality, there are important reasons for treating
equality as a distinct issue for the time being. It is important to remember that
the traditional scope of human rights has been dierent from the demand for
equality. In human rights discourse, it is more a case of upholding equality of
various identied rights described as fundamental or human rights. Treating
equality itself as a human right requires a conceptual shift but it is a necessary
shift if genuine non-discrimination is the legislative goal. This goal can be better
11 See also Margaret Thornton’s observations in her submission to the Senate Standing Committee on Legal
and Constitutional Aairs (Report on the Eectiveness of the Commonwealth Sex Discrimination Act 1984 in
Eliminating Discrimination and Promoting Gender Equality, Ch. 4, para. 4.60).
12 Jane J. Mansbridge, Why We Lost the ERA, University of Chicago Press, Ill, 1986.
13 See also Barbara Sullivan (‘Sex Equality and the Australian Body Politic’ in S. Watson [ed.], Playing the
State, Allen & Unwin, Sydney, 1990) for an account of the enactment of the SDA and the compromises made
to appease the opponents who feared, inter alia, that the Act would encourage women to give up their roles
as wives and mothers.
14 Gilbert and Tobin Centre of Public Law, History of Charters of Human Rights in Australia, <http://www.
gtcentre.unsw.edu.au/Resources/cohr/historyChartersofHumanRights.asp>. It has, however, met with sti
opposition; see Claire Chaey, ‘Human Rights Proposal Still Aoat’, Lawyers Weekly, 22 February 2010, Lexis
Nexis, <http://www.lawyersweekly.com.au/blogs/top_stories/archive/2010/02/22/human-rights-proposal-
still-aoat.aspx>
Sex.Discrimination.in.Uncertain.Times
266
achieved through a stand-alone Equality Act. Therefore, the design of such
equality legislation must be overarching like a constitutional guarantee but it
must be embodied in separate legislation.15
In making this proposal for conceptualising equality as a basic human right, I
am fully aware that human rights are not a panacea where other legal rights have
well-documented shortcomings.16 Nevertheless, as argued by various minority
scholars, legal rights are critiqued primarily by privileged scholars. With all
their shortcomings, legal rights are still valued and pursued by the relatively
more oppressed minorities in the same liberal and developed societies that
produce the most trenchant critique of rights. Moreover, as argued by Lacey,
rights are not transcendent or objective but are a product of contestations and
they can be seen as ‘an emergent critical force within modern societies’ and ‘as a
framework within which new political ideas can be articulated’.17 The critiques
of law and rights in particular operate to demonstrate the contingency of our
normative concepts, including the concepts of rights, justice and equality;
and by implication indicate that these concepts can be redened in radically
dierent ways.18
It is in keeping with the post-structural insights about construction of
knowledge that legal analysis needs to focus on the specic sites of construction
of meaning and, in common-law jurisdictions, this site is pre-eminently judicial
interpretations of precedents and statutory provisions. Therefore, the main
focus of the rest of my argument is on how such reconstruction of the concept
of equality might happen.
Judicial Interpretation and Responsibility
The legal literature on assessing the anti-discrimination laws and judicial
pronouncements is replete with analyses suggesting interpretations that are
plausible and desirable but very often are not the ones adopted by judges.19
There is a wide gap between the ideal and the real and, despite the exhortations
15 The relative merits of constitutional versus legislative measures are an important but separate topic and
one outside the scope of the present chapter.
16 Shelley Wright, ‘Human Rights and Women’s Rights’ in K. E. Mahoney and P. Mahoney (eds), Human
Rights in the Twenty-First Century, M. Nijho, Dordrecht, Boston, 1993. See also: Didi Herman, ‘Beyond the
Rights Debate’ (1993) 2 Social and Legal Studies 25.
17 Nicola Lacey, ‘Feminist Legal Theory and the Rights of Women’ in Karen Knop (ed.), Gender and Human
Rights, Academy of European Law, Oxford University Press, UK, 2004, p. 42.
18 Ibid., p. 45.
19 For an incisive critique of the decisions under the SDA, see: Margaret Thornton, ‘Sex Discrimination,
Courts and Corporate Power’ (2008) 36 Federal Law Review 31. For an analysis of decisions under the Racial
Discrimination Act, see: Jonathan Hunyor, ‘Skin-Deep: Proof and Inferences of Racial Discrimination in
Employment’ (2003) 25 Sydney Law Review 535. See also: Beth Gaze, ‘Context and Interpretation in Anti-
Discrimination Laws’ (2002) 26(2) Melbourne University Law Review 325.
11.Equality.as.a.Basic.Human.Right
267
of scholars, judges mostly seem unable to do anything about it.20 While everyone
else seems to be able to understand equality as symbolising fairness or non-
arbitrariness, legal scholars and judges, in particular, tie themselves in knots
about interpreting what would be an appropriate meaning of equality. My
argument is that a genuine rethinking of legal equality requires a deconstruction
of the contemporary methods of legal interpretation. What I mean by this is
best illustrated with the help of the story of the SDA since its enactment.21
All liberal legal systems gain legitimacy by claiming to uphold the fundamental
principle of equality. The SDA, as with all other anti-discrimination laws, was
enacted as recognition of the inadequacy of the formal equality guarantee of
liberal legal systems. That is, even though liberal legal systems are premised on
the equality of all legal subjects, feminists successfully illustrated the relevance
of gender dierences in legal discourse and the disadvantages in law suered by
women, despite the assumption that legal standards are neutral. As a result, the
SDA was enacted to rectify this aw in formal legal equality but once enacted it
ended up being interpreted as a guarantee of formal equality.22 Why the judges
are unable to see the absurdity of this situation is hard to explain—except
by deconstructing the mechanism of judicial/legal reasoning. The importance
of focusing on the concept of legal reasoning is evident furthermore in that
the specialised tribunals set up under anti-discrimination laws have failed to
establish new ways of interpreting the non-discrimination/equality guarantees.
The specialised tribunals set up to administer anti-discrimination laws have not
managed to replace the dominant methods of legal reasoning primarily because
it is their place in the hierarchy of the courts that makes them ineective
especially since the higher courts do not feel the need to focus on the nature of
their task.23
20 This is also evidenced by the regular reversing of lower court decisions by the Australian High Court in
discrimination complaints, as discussed by Thornton in ‘Sex Discrimination, Courts and Corporate Power’.
21 See, for a comprehensive analysis, Margaret Thornton, The Liberal Promise: Anti-Discrimination
Legislation in Australia, Oxford University Press, Melbourne, 1990.
22 There is some dierence of opinion on this issue, as in Australia the SDA as well as most other anti-
discrimination laws use gender-neutral language. The courts have without fail interpreted this as a
guarantee of formal equality. Many commentators on these laws as well accept that the laws were enacted
to guarantee formal equality; see: Thornton, ‘Sex Discrimination, Courts and Corporate Power’; Beth Gaze,
‘ The Sex Discrimination Act After Twenty Years: Achievements, Disillusionments and Alternatives’ (2004)
27(3) UNSW Law Journal 914. I prefer the interpretation put forward by Sadurski, however, that it is up to
the courts to conceptualise discrimination on the basis of the eect of any classication rather than on the
fact of classication per se: Wojciech Sadurski, ‘Equality Before the Law: A Conceptual Analysis’ (1986) 60
Australian Law Journal 131.
23 Institutional design is a relevant avenue for exploring possibilities of making anti-discrimination law a
means of achieving substantive equality but it is outside the scope of this discussion. It is for the same reason
that I am not discussing the merits of changing the regulatory regime of these laws. See Belinda Smith, ‘It’s
About Time for a New Regulatory Approach to Equality’ (2008) 36 Federal Law Review 117.
Sex.Discrimination.in.Uncertain.Times
268
There is much literature suggesting avenues of making anti-discrimination laws
deliver on their promise of equality.24 As far as I have been able to ascertain,
however, there is not anything written on re-conceptualising the category of
judicial reasoning as one way of proceeding. It is not my intention to attribute
mala des to the judges; rather I am more inclined to ask why it is so. What
is it about being a superior-court judge that prevents one from seeing the
discrimination in the alleged situation? Moreover, what can be done to make
the enterprise of interpretation a socially responsible one? These are the very
questions usually silenced by the mainstream jurisprudential insistence on
claiming that
• the judicial task is one of applying the law
• professional reasoning is dierent from ordinary reasoning
• institutional role responsibility is separate from personal responsibility.
These claims of conventional jurisprudence create the possibility of deecting
attention from the choice or discretion exercised by the judges in every instance
of interpretation. Recognising this is an initial step towards conceptualising the
judicial act of interpretation in a manner that emphasises choice and thus the
agency of the judges in attributing meaning to legal rules. Once the element of
choice is acknowledged, the responsibility for that choice becomes inevitable,
for it follows that judges would strive for socially just outcomes if they were the
ones exercising choice.
Judicial Task as One of Applying the Law
It is an article of faith in jurisprudence to conceptualise the judicial task as
one of applying the law or more specically as one of not making the law.
While the mainstream jurisprudential writings give extensive reasons for a
conception of judicial authority as constrained reasoning—otherwise described
as legal reasoning25—it is also true that critical theorists have demonstrated
the extensive discretion that judges exercise and in doing so are inevitably
inuenced by an array of extra-legal factors. Moreover, the nature of language
and how it operates form the core of post-structural analyses that explain how
interpretation requires attributing meaning. The obvious conclusions of such
analyses challenge the conventional view of legal reasoning that invokes the
24 See, for an argument that private contract law is able to yield better results than public equality laws:
Belinda Smith and Joellen Riley, ‘Family Friendly Work Practices and the Law’ (2004) 26 Sydney Law Review
395.
25 This is one of the extensively discussed issues in conventional jurisprudence scholarship, but it is not my
main concern here. I have analysed some of these issues in my chapter ‘Responsibility for Legal Knowledge’ in
Amita Dhanda and Archana Parashar (eds), Decolonisation of Legal Knowledge, Routledge, Delhi, 2009, p. 178.
11.Equality.as.a.Basic.Human.Right
269
separation-of-powers doctrine, the desirability of democratic control of legal
policy and a particular understanding of how language operates. This critical
legal literature has its own set of shortcomings but the more important issue for
now is that despite such extensive critical scholarship the dominant view about
the nature of the judicial task remains unchanged. Therefore it is necessary to
focus on how—by using which legal concepts—the mainstream legal scholars
as well as judges in particular manage to steer clear of this literature and thus
help maintain the hegemony of the conventional view that legal reasoning is a
special kind of reasoning.
I argue that it is the particular conception of legal reasoning, the idea that judges
‘apply’ the law and that there is a division of authority between the legislature
and the judiciary, which enables the mainstream thinking to persist. One
important consequence of this conception of legal reasoning is that it distances
the decision maker from their decision because it is not ‘their’ decision. As a
consequence, judges, when interpreting anti-discrimination laws, can dissociate
themselves from the consequences of their interpretation. Moreover, if the judges
fail to uphold justice or fairness as the guiding principle in their judgments,
they are permitted or even encouraged to do so by the prevailing orthodoxy
that they are simply applying an already existing law.
Such a conception of the judicial role is also a logical extension of the positivist
understanding of law that dissociates law and morality. The legislators can but
are not compelled to create a just or fair law, but if they have failed to do so the
judge must remain agnostic. Thus, there is no possibility of expecting the judges
to strive for just or fair results as they are ‘constrained’ by law and not free to
pursue their own preferences. Although there is abundant evidence that there
is no pre-constituted law waiting to be discovered and applied by the judges,26
the mainstream jurists object that any other conception of the judicial task will
‘give’ judges too much power.
There are two dierent issues that arise out of this insistence of the mainstream
jurisprudential view of the judicial task: the claim that it is necessary to
maintain the legitimacy of judicial authority and that otherwise the judges will
have unlimited power. Although it is undeniable that law and judges require
continued legitimacy, it can be better achieved by ensuring that judges engage
in interpretations that strive to achieve justice. One way of proceeding is to focus
on the fact that the judges are making choices and deploying their expertise,
intelligence, good conscience and so on to make reasonable decisions and not
saying so does not change the facts. Second, the gains made by articially
constraining judges are lesser than the loss of opportunity to engage the judges
26 For a classical contrast, see the dierence between the arguments of Stanley Fish and Dworkin in the
discussion below.
Sex.Discrimination.in.Uncertain.Times
270
in striving for justice and fairness in the law. If it could be openly acknowledged
that judges exercise discretion in interpreting legal rules, one could then focus
on how best to do so.27
It is dicult, however, to acknowledge that judges exercise discretion in
every task of interpretation because it raises the question of why the judges
can be entrusted with this authority. Or put dierently, what is the basis of
judicial authority? This is an unstated and unresolved issue of contemporary
jurisprudence.28 The earlier common-law understanding of law and the
conception of the judicial task were complementary in so far as common law
was seen as the expression of natural reason and the judges who were conned
to applying this law were thus upholding the fair and just natural law. With the
contemporary positivist understanding of law, however, the same condence in
the judge’s capacity is sought to be achieved by the concept of ‘constraint’—
that is, the judge is not free to do whatever. The judge is bound by the law.
The problem of course is that the law as enacted by the Parliament is now
anything at all (that has the correct pedigree). The ction of the democratic
control of Parliament does nothing to ensure that laws made are just laws.29 It is
in this context that insisting on the constrained role of the judge writes out the
possibility of any aspiration for justice or fairness in law.
In the meantime, judges engaged in ‘applying’ the law nevertheless have to
choose between at least two interpretations of the same law. It thus becomes
problematic to assert that judges have no more to do than ‘apply’ whatever
the legislature enacts. Dworkin has tried valiantly to rescue the legitimacy of
judicial authority by postulating that judges are constrained in exercising their
discretion and therefore can be trusted to uphold the law rather than create it
anew.30 The law so upheld is a combination of rules and principles and the judges
are the nal authority on what weight to give to any principle. The obvious
problem with this conception of the judicial task is that there is no way of
knowing which principles are relevant and what weight they will carry before
the judge decides. In this conception of the judicial task, the judge remains the
ultimate arbiter of meaning, exercising choice but this time with the dubious
guarantee that the law constrains the judge.
27 As I have argued above, however, merely changing the legislative formula is not enough. I therefore dier
from the argument made by Belinda Smith in this volume.
28 For a comparative study discussing the more conventional issues, see: Maur Cappelletti, ‘Who Watches
the Watchmen? A Comparative Study of Judicial Responsibility’ (1983) 31 American Journal of Comparative
Law 1. For an interesting discussion, see: Michel Rosenfeld, ‘Deconstruction and Legal Interpretation: Conict,
Indeterminacy and the Temptations of the New Legal Formalism’ in Drucilla Cornell, Michel Rosenfeld and
David Gray Carlson (eds), Deconstruction and the Possibility of Justice, Routledge, New York, 1992, p. 152.
29 Even though a theoretical possibility exists of legislatures creating perfect laws, it does not detract from
the following argument.
30 Ronald Dworkin, Law’s Empire, Harvard University Press, Cambridge, Mass., 1986.
11.Equality.as.a.Basic.Human.Right
271
I do not know of any satisfactory resolution of this problem as the critical
theorists’ answers are equally even if dierently problematic, as analysed below.
Critical Theorists and the Basis of Judicial Authority
With slight variations, all post-structural critiques point out that knowledge
is constituted and in turn constitutes reality. That being the case, how law is
constituted becomes the initial question for such theories. Even though these
analyses are of law in general, their primary focus invariably is on the judicial
pronouncements. Moreover, all of these theorists seem to be mesmerised by
the desire to disprove the claims of law as being about fairness, equity or its
objective and principled nature. As examples of this kind of analysis, one has
only to point to the extant literature that explicates the power of law as the
‘force of law’ or the ‘racism of law’, and so on.31 It is not in doubt that such
analyses are a necessary challenge to the mainstream view of the law as being
about fairness or justice, but neither is it enough to stop here. Any analyses that
show how law is the very means of oppression and discrimination but stop there
are deterministic. They do not leave any avenue to explore whether law could
also be the means of achieving non-discrimination.
At the very least, this kind of analysis makes the status quo look inevitable. The
eect of this kind of theorising is as exclusionary and debilitating as that of the
mainstream theorising it was meant to critique. Surely post-structural scholars
must accept responsibility for their analyses—that all meanings are relative and
contingent and that it is nonsensical to talk about law’s role in bringing about
social change or justice; they are legitimising the continuation of a status quo
that is less than ideal, fair or just. The common response of critical theorists that
the function of critique is not to provide alternatives is simply not good enough
because critique for the sake of critique is only self-serving for the critics.
Moreover, this is a problematic outcome even for the post-structuralists because
contrary to the tenets of post-structuralism, it provides an essentialist answer
as it makes the law appear as if it was a pre-discursive object and one with an
invariable content and eect of oppression. Even though in a stream of post-
structural analysis, it is acknowledged that no law is pre-discursive and the
mechanisms of oppression in law are ever changing, the overall import of such
analyses still remains that law is oppressive rather than emancipatory. This
predominant message of post-structural theories in turn helps avoid focusing
on the question of why it is that law cannot be emancipatory.
31 See, for example: Peter Fitzpatrick (ed.), Nationalism, Racism and the Rule of Law, Dartmouth, Brookeld,
UK, 1995.
Sex.Discrimination.in.Uncertain.Times
272
For instance, this is illustrated well in the analysis of law provided by Stanley
Fish.32 He sees the judge as free to attribute meaning to the rules of law, as
all rules are texts waiting to be interpreted. This is because he insists that
any critique of institutional practices depends on invoking an essentialist
view that pure knowledge or truth is possible and accessible. It is against this
claimed objective standard that the critics argue that institutional practices are
problematic. If, however, all knowledge is historically contingent, there is no
basis for suggesting that such an ahistorical or universal standard is available
as the measure of criticism. It follows in the argument of Fish that dominant
perspectives can be explained but not replaced with supposedly neutral or
objective views. Importantly, Fish does not concern himself with the issue of
how to replace a problematic or dominant perspective with a more desirable,
even if contingent perspective, and it is this choice made by Fish and other
critical theorists that makes a post-structural analysis unsuitable for connecting
law and justice/fairness/non-discrimination.
In conclusion, the relativism of most post-structural analyses of the judicial
task is no more convincing than the mainstream claim that it is principled. The
arguments, respectively, of Stanley Fish and Ronald Dworkin to me exemplify
the shortcomings of both ways of thinking. Thus, all contemporary analyses
of law are neglecting a central issue: that any meaning is attributed, created,
attached. If so, those involved in such construction must take the responsibility
for their choices. That there is a choice in any formulation about the nature of
law must become the starting point of any analysis.
Choice and Responsibility
It is not possible or desirable to go back to a pre-post-structural way of
understanding the construction of meaning but we denitely need to
move beyond what Foster describes as the postmodernism of reaction to a
postmodernism of resistance.33 I understand this to mean that there is a need to
extend the post-structural insight about the constructed nature of knowledge
but more importantly to link it with the responsibility of those ‘doing’ the
construction. Legal scholars are not only responsible for providing post-
structural analyses of law that demonstrate the indeterminacy of meaning, they
also must acknowledge their power to attribute meanings.
32 For this analysis, I rely on Stanley Fish, ‘Anti-Professionalism’ (1985) 7 Cardozo Law Review 645. Drucilla
Cornell (‘Time, Deconstruction, and the Challenge to Legal Positivism: The Call for Judicial Responsibility’
(1990) 2 Yale Journal of Law and Humanities 267) challenges this view of Fish’s.
33 Hal Foster, ‘Postmodernism: A Preface’ in Hal Foster (ed.), The Anti-Aesthetic: Essays on Postmodern
Culture, Bay Press, Port Townsend, Wash., 1983, p. xii.
11.Equality.as.a.Basic.Human.Right
273
There is an undeniable nexus between the institutional location of the thinkers
and the authority attributed or accorded to their views. The very fact that not
all theorists or analyses are equally inuential is cause for asking how certain
readings are accepted as authoritative while others are marginalised and ignored.
It is not simply a function of the merit of an argument. In some ways, the
mainstream legal scholarship that manages to ignore post-structural insights is
exhibiting this very nexus between knowledge and power that such scholarship
is so good at postulating. More specically, the post-structural way of thinking
requires us to focus on how interpretation is a matter of attaching meaning
and always involves making choices. This fact of making choices is eectively
obscured in legal scholarship and thus the responsibility for the consequences
owing from those choices does not attach to the decision maker. In the next
section, I analyse how responsibility is conceptualised in legal scholarship.
The concept of responsibility is used in various disciplines other than law and
it has dierent meanings than in the discipline of law.34 Cane has argued, and
I agree, that the concepts of responsibility play an important role in both law
and morality, yet philosophers pay little attention to the legal versions of the
concept. A careful study of the legal concept of responsibility and legal practices
associated with it could, however, be useful to understand responsibility in
general.35
The ideas of responsibility and legal philosophy have a long connection, but
a very cursory survey of legal scholarship on the concept of responsibility
shows that most of the writers are engaged in discussing when the law does or
should attach responsibility to a legal subject. Primarily these discussions relate
to the individual’s responsibility in criminal law; responsibility in civil law is
discussed to a lesser extent.36 What I found missing was any discussion of the
responsibility of lawmakers and more particularly of judges for their views.
Here I focus only on the lack of scholarly attention to the responsibility of
judges. No doubt this is because of the prevalent conventions about the judicial
role that these responsibilities are not their own but decisions necessitated by
the conventions of legal reasoning that they, as professionals, have to follow.
As discussed above, however, there are serious problems with this view and
I am helped by Cane, who has argued that the distinction between law and
morality also enables us to draw some contrasts between ‘moral reasoning’ and
‘legal reasoning’ as techniques for generating normative conclusions about
34 Peter Cane, Responsibility in Law and Morality, Hart Publishing, Oxford, 2002, p. 1.
35 Ibid., pp. 2–3.
36 For a good review of this literature, see: Nicola Lacey, ‘Responsibility and Modernity in Criminal Law’
(2001) 9(3) Journal of Political Philosophy 249.
Sex.Discrimination.in.Uncertain.Times
274
responsibility.37 Once it is acknowledged that normative conclusions about
legal reasoning follow from the particular concept of legal reasoning, it must be
possible to argue for re-conceptualising legal reasoning.
I will discuss this point in the context of the analysis of law and responsibility
provided by Veitch.38 He has argued eloquently that judges are not held
responsible in their individual capacity because they are acting in the role of
the judge. The institutional role of the judge is created precisely so that disputes
are decided by reference to the law rather than by reference to the values of the
judge as the individual decision maker. Veitch makes this argument as an aspect
of his broader argument that law, by design, and not incidentally, dissociates the
legal actor from the responsibility for human suering. The legal norms dene
what injury is and also dene by exclusion that which may be damage but
not injury. Thus, suering caused by the former (damage) is, legally speaking,
legitimate. The legal actor’s responsibility is transferred to the legal norm and it
is the norm that decides when there is an obligation or responsibility. As long
as the legal actor is conforming to the legal norm, he or she is guiltless because
responsibility stops with fullling the legal obligation.39 This is an eect of
legal categorisation compartmentalising responsibility, so that the legal actor,
the judge, is only a conduit of legal authority.40 The judge is not personally
responsible for the judgment as it is the state of law that is responsible; it is the
decision’s legal reasoning, and not the reasoning of the actual person, that must
do the work of justifying the outcome.
Veitch goes on to argue that even if the judges have discretion, they are merely
the mouthpieces of the law and their personal views are, legally speaking,
irrelevant. According to Veitch, this is the reason why the judge is not personally
responsible because legal responsibility in accordance with the law and the
legal role is non-responsibility for the person.41 The role usurps the autonomy
of the person because when it comes to human beings acting in legal roles, there
is only one living person who can act and if the law determines what the right
action is the person cannot independently decide otherwise.
At one level, this is a persuasive analysis but I wish to extend it by asking
what exactly does it mean to say that the ‘law’ determines what the right action
37 Cane, Responsibility in Law and Morality, p. 3.
38 Scott Veitch, Law and Irresponsibility: On the Legitimation of Human Suering, Routledge, Oxford, 2007,
p. 85 . His argument is impressively detailed and tightly constructed. It is not possible to do justice to its
nuances in this short formulation, but I do believe that it leads to an essentialist view of law.
39 Ibid., p. 87.
40 Earlier in his argument, Veitch has explained that responsibilities are organised as role responsibilities—
that is, ‘action according to a set rule or role is itself blameless’; the role responsibility thus segregates
responsibility for the role from the consequences—to act according to a set rule or role is itself blameless
(ibid., p. 48).
41 Ibid., p. 88.
11.Equality.as.a.Basic.Human.Right
275
is? If this were a straightforward matter, there would be no occasion for the
issue to come before the judge. The very existence of the judge is an indication
that ‘the law’ is not unambiguous and an exercise of judgment is required to
ascertain what the ‘law’ is. To hold otherwise, moreover, goes against all the
post-structural insights about the nature of meaning and how interpretation
is attributing meaning to terms and concepts. It also goes against the obvious
fact that ‘not only the wording of the positive law makes up the positive law in
force at the time; there is also the interpretive practice of the time’.42 The judge
necessarily has to exercise a choice in deciding what ‘the law’ in any particular
instance demands. Once this determination is made, however, the judge is not
free to disregard the law, as Veitch persuasively argues. The institutional role
to that extent usurps individual autonomy. This last step, however, in no way
dispenses with the need to attribute meaning to ‘the law’ in the rst instance.
It is by focusing on this prior issue that it becomes clear that judges have to
exercise choice in deciding the meaning of the terms used in law.
Conceptually also it needs to be acknowledged that the task of interpretation is a
matter of exercising judgment rather than merely performing a mechanical task.
Even in the mainstream conception, the judges are choosing an interpretation
but they are able to distance themselves from the determinations in the name
of their professional responsibility to act according to law rather than acting
according to their personal values.
This argument can be easily illustrated in the context of anti-discrimination
legislation and the interpretations adopted by judges at various levels of the
judicial system. For example, in the case of Purvis,43 the judge who cannot
understand the disruptive behaviour of the child as an aspect of his disability is
no more objective or correct than the judge who sees it otherwise. It is, therefore,
not a simple matter of the law determining what the ‘right action’ is and the
judge implementing that. Whether the action of the school is in accordance
with the law or not is the very issue that the judge must decide. And to do
this the judge must rst ascertain what the law demands. The interpretation is
42 Robert Alexy, ‘A Defence of Radbruch’s Formula’ in David Disenhaus (ed.), Recrafting the Rule of Law:
The Limits of Legal Order, Hart Publishing, Oxford, 1999, p. 21.
43 Purvis v NSW Department of Education and Training (2003) 217 CLR 92. This case related to Daniel
Hoggan, who had an intellectual disability that resulted in him being aggressive and violent at times. The
school suspended and eventually excluded him. His foster father, Mr Purvis, brought a case of disability
discrimination against the school, invoking the Disability Discrimination Act 1992 (Cth). The dispute went
through various levels of the courts and nally the High Court dismissed his application. The majority of
judges held that the protection against discrimination on the basis of disability does not extend to functional
limitations that may result from the condition. For doctrinal analysis, see: Susan Roberts, ‘The Inequality of
Treating Unequals Equally: The Future of Direct Discrimination Under the Disability Discrimination Act 1992
(Cth)?’ (2005) 45 AIAL Forum 20.
Sex.Discrimination.in.Uncertain.Times
276
that of the judge and it is for the judge to choose which interpretative practice
to adopt. Whether one describes it as role responsibility, institutional role or
anything else, it is ultimately a task that demands an exercise of choice.
Moreover, this exercise of choice is a matter of judgment and I would like to
argue that the judges, in deciding whether a practice is discriminatory or not,
are as aware of the demands of justice and fairness as the next person. Their
seeming inability to name the unfair or unjust practice as ‘discrimination’ is due
not so much to particular understandings of equality and discrimination but
to a large extent is a function of being able to distance themselves from ‘their’
decisions in the name of upholding the law.
If, however, it is argued that the conception of the judicial act in this chapter
seems to free the judge of any constraint and therefore has the potential to
lead to an unfettered exercise of power, the solution for that problem lies in
conceptualising the exercise of authority in a responsible and meaningful
manner rather than trying to constrain the judge articially. A conception of
legal reasoning that is more conducive to acknowledging the choices made
by judges in interpretation can have a denite advantage. I take support for
this view from Alexy, who has argued in a dierent context that the mere
availability of a concept of law—whether positivist or anti-positivist—can
have a bearing on the lawmakers’ behaviour. Similarly, the availability of a
conception of legal reasoning that focuses on the reasonableness or fairness of
choices made can create the conditions for judges to adopt interpretations that
connect law with justice.44
The dierence between this conception and that of Dworkin lies in making the
judge accountable for their choice of interpretation. The judge would no longer
be the ultimate and inscrutable arbiter of the meaning of any rule of law. Instead,
they would need to justify their choice in terms of its discriminatory or non-
discriminatory eect. This conception of the judicial role is also in accordance
with the post-structural analysis, as, unlike the mainstream theorists, the
post-structural theorists explain any judgment as an eect of judicial choice.
It extends the post-structural insight, however, in that it demands of the
judges that they will exercise their judgment in a responsible manner. Working
with this conception of the judicial task, if judges give an interpretation of
an anti-discrimination rule that denies or diminishes the human dignity of
the complainant, it would be incumbent on them to explain the choice of
that interpretation. Importantly, such an explanation would no longer be of
the kind that absolves the judge of the responsibility to reach a fair/just/non-
discriminatory solution.
44 Alexy, ‘A Defence of Radbruch’s Formula’, pp. 31–2.
11.Equality.as.a.Basic.Human.Right
277
In another context, Postema has argued persuasively that there is a distinction
between the professional responsibility and the responsibility of a layperson,
but the professional nevertheless has the responsibility to act in a moral way.45
He relies on Aristotle’s concept of practical judgment to argue that judgment
is neither a matter of simply applying general rules to particular cases nor a
matter of mere intuition. Rather it is that in judgment general principles and
particularities of a case both come into play. General principles provide the
broader framework and a target but not the nal outcome. The ultimate decision
takes into account the particular circumstances and resolves the conict of
values. Thus, morality is not merely a matter of getting things right but of
relating to people in a special and specically human way. Professionals have
to act in specically moral ways but what can be done is to conceptualise this
moral responsibility in a broader sense. This professional responsibility can be
linked to understanding the professional role as not a xed role. A ‘recourse
role’ conception of the professional role allows for the possibility that such a
role requires ‘the agent not only to act according to what he perceives to be the
explicit duties of the role in a narrow sense, but also to carry out those duties in
keeping with the functional objectives of the role’.46
Functional Objectives of the Role of the Judge
The fact that so many judges cannot see the wrongness of discrimination in the
actions of the respondents is not an indication of their lack of moral values.
Rather it is a function of a lack of agreement about the functional objectives of
the role of judges—that is, whether they are constrained or free to exercise their
judgment. The freedom to exercise discretion is not, however, synonymous with
unfettered freedom because, if as argued above there is no ‘law’ pre-existing
the determination made by the judge, it seems obvious that in a disputed
case the judge has to ascertain the meaning of the law, in the form of a rule
or concept. Thus, a legal rule that says that less favourable treatment on the
basis of disability is prohibited at the very least requires the judge to decide
whether a particular conduct constitutes less favourable treatment. That is,
what the law demands is the very issue in dispute and it is only the judge who
has the authority to decide. The contemporary judicial practices give the judge
an option to focus on the technical aspects rather than the substantive outcomes
45 He makes his argument with regard to lawyers, but I think it is equally applicable to the actions of judges.
See Gerald Postema, ‘Moral Responsibility in Professional Ethics’ (1980) 55 New York University Law Review
63, esp. at 68.
46 Ibid., 83.
Sex.Discrimination.in.Uncertain.Times
278
of the matter. If, however, the interpretative practice demanded a focus on the
substantive outcome of the interpretation, it would make for the possibility of
judges making more realistic determinations.
In a slightly dierent context, Judith Butler’s argument about gender as
‘performative’47 needs to be invoked in the context of law as well. ‘Law’ is not
a natural category; it is constructed and, when judges, among others, engage in
interpretation of any rule they are attributing meaning to that rule or concept.
Similarly, when scholars explain the nature of law, they too are conceptualising
rather than describing a pre-existing reality. A theory of judicial task that
conceives the judge as personally responsible for their decision would make
it inevitable that the judge does not formulate the dispute in technical terms.
If the judges could make this understanding of law their starting point it is
possible to imagine that discrimination issues would be resolved to achieve
genuine non-oppression. For example, the dispute in the case of Purvis48 or of
Amery,49 if decided under this conception of the judicial task, could have had a
very dierent outcome.
In the case of Amery, a group of women claimed that they performed the same
tasks as the permanent teachers but were paid less because they were employed
as long-term casual teachers. They framed their claim as one of indirect
discrimination under the Anti-Discrimination Act 1977 (NSW) (ADA). They
argued that the employer made it a condition of work that the teachers had to be
employed as permanent sta before they could access the higher pay scales. The
long-term casual teachers claimed that they were unable to meet this condition
because of the gendered expectations imposed on them as women that they
would give priority to family responsibilities.
The majority in the High Court, however, found that the casual employment
was not a ‘condition of employment’ imposed by the employer and therefore the
ADA was not relevant. Therefore, the issue of whether the dierent pay scales
were discriminatory did not even arise for judicial consideration. At the same
time, however, there is nothing in the judgments of the majority that could be
classied as incorrect technically. The most that the commentators can say is
that the judges should have dened the requirement of permanent employment
as a ‘condition’ imposed by the employer and thus bring the case under the
purview of the ADA.50 In the contemporary conventions of legal reasoning,
however, judges are able to focus on whether the situation is covered by the
47 Judith Butler, Gender Trouble: Feminism and the Subversion of Identity, Routledge, New York, 1999.
48 (2003) 217 CLR 92.
49 NSW v Amery (2006) 226 ALR 196.
50 See, for example, K. Lee Adams, ‘Dening Away Discrimination’ (2006) 19 Australian Journal of Labour
Law 263. Her assessment that the High Court failed to deconstruct the assumptions of normalcy and objectivity
and thus equality is ne but it does not provide any reason for hoping that the judges will act dierently the
next time around. See also Thornton, ‘Sex Discrimination, Courts and Corporate Power’.
11.Equality.as.a.Basic.Human.Right
279
relevant legislation. Since in their understanding it is not within the purview
of the legislation, it becomes irrelevant to consider whether the employment
arrangements are unfair for women with family responsibilities. That is, the
ADA has a limited scope.
It is of course a truism that the judges can give relief only if the relevant law
is applicable. Whether the law is applicable or not itself requires, however, a
more nuanced understanding of their responsibility. If the same judges were
to operate in a milieu of equality as fairness and judges’ responsibility to reach
a non-discriminatory outcome, they could not avoid having to explain why it
is acceptable for casual teachers—most of whom are women—to be paid less
when they are doing the same work as the permanent teachers. Moreover,
judges trained to achieve a fair outcome would be able to argue that the choice
of permanent or casual employment is not a real choice but an eect of gender
hierarchy that the anti-discrimination laws are meant to address.
Similarly, I suggest that if the majority judges in Purvis had the option
of distancing themselves from the judgment made, they would indeed be
compelled to make a more reasonable or fairer judgment. The majority judges
in this instance were able to say that the school was entitled to exclude a boy
with intellectual disabilities as the basis of its decision was discrimination on
the ground not of disability, but of his disruptive behaviour. The bifurcation
between the disability and the behaviour of the person is breathtakingly
ingenious but the more important issue here is that the judges were able or were
permitted by the conventions of legal reasoning to focus on the technicalities.
Now I am not suggesting that the complainant will always be correct and the
respondent wrong, but I am arguing for an acknowledgment that there are at
least two interpretations and the judge has to choose between them. Since there
is no compulsion to choose one interpretation over another, as exemplied in
the dierent judgments of the majority and the minority, it must be obligatory
on the judges to explain their choice in terms of substantive outcomes. If a judge
in Purvis holds that the school can exclude the student, they must explain why
it is not discrimination. The reasoning in the present judgment that the ground
of exclusion is not covered by the legislation is a technical reason, which does
not deny that the action of the school will disadvantage the student. Instead
it avoids the issue of disadvantage or unfairness of the action altogether. It is
perfectly understandable that the school has to manage a dicult situation and
might not have the resources to do so. If, however, the problem was identied
thus many avenues could be explored to nd solutions taking into account
the interests of both parties. But if the problem is written out of existence—as
done by the majority in the High Court—nothing more remains to be done. The
diculties related to disability are privatised and the state and its institutions
absolve themselves of any responsibility by relying on technicalities.
Sex.Discrimination.in.Uncertain.Times
280
It is in this sense that Veitch is right that the compartmentalisation of legal tasks
absolves the judge of the responsibility for the outcome of a decision. Does
this mean that it is futile to expect justice from the law and the judges? If yes,
is this not a deterministic analysis that portrays law as inherently incapable of
delivering justice? How could it be otherwise?
One way out of this dead end is to acknowledge that the judge has to exercise
choice in the pursuit of justice or fairness. It has to be the pursuit of these
ideals and not the pretended neutrality that provides the legitimation of judicial
authority. It is however, not simply a matter of making these ideals the legislative
standard that the judges have to apply.51 Rather, it must be the requirement of
the judicial role that the judges are the pursuers of justice. Justice according to
which denition, one could ask? It is easier to answer this question negatively
and say that it is certainly not according to the ‘neutrality of the judge’ standard.
It necessarily means that the judge has to articulate and justify their choice of
interpretation as fair or just. The emphasis is on ‘justify’ and in my opinion
this responsibility can be discharged only if we move away from the ction of
constraint on the exercise of discretion.52 Such a move will not be a licence for
relativism in the sense that a judge is free to be totally arbitrary or idiosyncratic.
The constraint in this conception of the judicial task comes from the judge’s
responsibility for pursuing justice or fairness. It also does not allow judges to
distance themselves from the consequence of the decision and thus pins the
responsibility of the consequences of the decision on the person making the
choice. The disjuncture between role responsibility and personal responsibility
is thus avoided but the person occupying the role of the judge cannot leave their
morals at home! Undoubtedly, in a morally pluralistic society there would be
inevitable disagreements about which morals are worth enforcing through the
judiciary. This is an important issue but it is not one resolved by either relying
on the ction of constraint or giving in to the relativism of post-structural views.
In the present context, the accountability of the judge for the interpretation
chosen is the best guarantee of non-arbitrariness.
51 For example, suppose the conventions of legal reasoning demanded that in anti-discrimination actions the
outcome should be geared to integrating the complainant in a particular setting (for example, the mainstream
school in Purvis). It will still fall on the judge to determine what may be classied as adequate integration. The
only certainty that the judge will be sympathetic to the complainant’s disadvantage can come from the judge
taking personal responsibility for the consequences owing from their decision.
52 As argued by formalists as well as by natural-law theorists—in particular, those such as Dworkin. See,
for example: R. M. Dworkin, ‘Is Law a System of Rules’ in R. M. Dworkin (ed.), The Philosophy of Law, Oxford
University Press, UK, 1977.
11.Equality.as.a.Basic.Human.Right
281
Conclusion
The obvious question of course is how can this view of the judicial task be made
the mainstream view? It is not simply a matter of theoretically re-conceptualising
the judicial role. Such ideas need to be adopted by the legal professionals and
thinkers alike. I have critiqued above the analyses that expect judges to change
their ways simply because the scholars ‘show’ them the shortcomings of their
views. The same criticism would apply to the expectation that the theorists will
change their conceptions of legal reasoning because of critics’ arguments.
Therefore, for this re-conceptualisation to succeed, the transformative potential
of legal education needs to be deployed. New ways of theorising the connections
between ideas and responsibility for the consequences owing from those ideas
will only ever come from the young legal scholars trained to be independent
thinking agents. If combined with a suciently broad-based legal education,
this conception has the potential for connecting law and justice in a principled
as well as practical manner.
Therefore, we need to refocus on the transformative potential of knowledge
and especially of education, as it is the site where knowledge is produced and
disseminated. I use legal education as my particular focus but the argument
is wider in its scope and extendable to education in general. It is necessary to
combine the post-structural insights about the constructed nature of knowledge
and the responsibility of scholars for their views.
Just as I have argued above about judicial responsibility, so too it can be
expected that the theorists are accountable for the consequences owing from
their critiques. For this to happen, it is necessary to create the possibility and
the capacities for critical thinking in the students. The idea of critical thinking
is paid lip-service to in the burgeoning legal education literature,53 but I argue
that genuine critical thinking requires an appreciation that ideas are formulated
by thinkers who always come from a particular perspective. The insight that
objective knowledge is not possible has to be associated with the further
acknowledgment that the particular perspective adopted by a thinker needs to
be justied. Whether the theorist convinces the readers or not involves them
53 Legal education as a topic has generated extensive scholarship but I will not review it here. My point
is, however, illustrated well by the Australian Universities Teaching Committee report that chronicles the
extreme diversity of practices in Australian law school curricula. Diversity in itself is not the problem but the
fact that there is no systematic attempt at articulating how critical capacities of students can be developed
in university training. See Richard Johnstone and Sumitra Vignaendra, Learning Outcomes and Curriculum
Development in Law: A Report commissioned by the Australian Universities Teaching Committee (AUTC),
Commonwealth of Australia, Canberra, 2003.
Sex.Discrimination.in.Uncertain.Times
282
(us) in legitimising ideas. Therefore, the single most important aspect of training
critical thinkers is that students (and thus the future professionals) learn to ask
how ideas are normalised and legitimised.54
The acknowledgment by each one of us must follow that when we accept ideas
and theories we are active agents in the process of ‘creating’ authoritative
knowledge. Such critical thinkers who can capture their agency in the
legitimation of ideas will of necessity also understand their role in making and
unmaking social structures.55 Once the individual thinker is thus implicated in
making sense of the social structures it should become that much harder for the
theorists to propose ideas that leave out of the theory the responsibility of the
thinker. That is, if the thinker is not simply describing the surrounding reality
but also partly ‘constitutes’ it then it is logical to expect that the injustices
of the contemporary arrangements ought not be allowed to go on unchecked.
Otherwise those ‘constituting’ such arrangements as inevitable are complicit
in perpetuating them. If all that the theorists can do is establish the inevitable
nature of contemporary societies, it is another way of being determinists.56
Critique for the sake of critique can only be self-serving for the scholars.57
Therefore, ethical responsibility can and ought to be inculcated as an integral
aspect of education as it follows directly from the contemporary theories of
knowledge.
In legal education, integrating legal theory in the entire curriculum is one
possible way of inculcating critical thinking capacities of students.58 To achieve
this aim, however, it is crucial that students are engaged in analysing a broad
spectrum of theoretical ideas.59 That is, unless the students of law are trained
to critique every idea and recognise their own agency in legitimising particular
ideas, they are simply going to reproduce the authoritative knowledge that they
are taught. It matters very little that what counts as authoritative could now
be in the post-structural genre. Generating the capacity for the self-reexivity
54 The enormity of this task is undeniable and the institutional obstructions are well analysed by Margaret
Thornton ‘Gothic Horror in the Legal Academy’ (2005) 14(2) Social and Legal Studies 267.
55 I take this idea from Henry Giroux, ‘Pedagogy of the Depressed: Beyond the New Politics of Cynicism’
(2001) 28(3) College Literature 1, 14–15.
56 Cornel West, ‘On Fox and Lears’s The Culture of Consumption’, Prophetic Fragments, Africa World Press,
Lawrenceville, NJ, 1988.
57 Joel Pster, Critique for What: Cultural Studies, American Studies, Left Studies, Paradigm Publishers,
London, 2006.
58 I have developed this argument in greater detail in Archana Parashar and Vijaya Nagarajan, ‘An
Empowering Experience: Repositioning Critical Thinking Skills in the Law Curriculum’ (2006) 10 Southern
Cross Law Review 219. See also: Amita Dhanda, ‘The Power of One: the Law Teacher in the Academy’ in Amita
Dhanda and Archana Parashar (eds), Decolonisation of Legal Knowledge, Routledge, Delhi, 2009.
59 A further diculty, however, is that in legal education the inclusion of any theory is already a contentious
issue and to argue for the inclusion of diverse streams is that much more dicult. See: Ian Duncanson, ‘Legal
Education and the Possibility of Critique: An Australian Perspective’ (1993) 8 Canadian Journal of Law and
Society p. 59. For an example of the debates, see also the articles in the special issue of Sydney Law Review
(vol. 26 [2004]).
11.Equality.as.a.Basic.Human.Right
283
of thinkers in accepting or rejecting ideas is the logical basis of connecting
responsibility with agency. These students are the legal thinkers of tomorrow
and if equipped to think for themselves they will be the authors of a responsible
jurisprudence of equality.
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