Private Law Theory

ABSTRACT
This article 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 theorising 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 canvassing 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.

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Anthony Sangiuliano, Bottom-Up and Top-Down Theories of Antidiscrimination Law, Oxford Journal of Legal Studies, Volume 42, Issue 4, Winter 2022, pages 1118-1142. Published: 30 August 2022.