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This book is a challenging, thought-provoking yet highly accessible
introduction to discrimination law. It takes a thematic approach,
illuminating the major issues in discrimination law, while
imparting an in-depth understanding of the strengths and weaknesses
of legal responses to complex social problems of inequality. This
is enhanced by the comparative approach. By considering equality
law in the UK, US, India, Canada, and South Africa, as well as the
European Union and under the European Convention on Human Rights,
the book exposes common problems across different jurisdictions and
canvasses a variety of differing solutions. As in the highly
successful previous editions, the book locates discrimination law
within its historical and social context. One of its major
strengths is the development of an analytic framework of
substantive equality, drawing on a range of sources, and the
author's wide experience of equality law in many jurisdictions. As
well as chapters charting the social challenges and legal
responses, the book compares the ways in which different
jurisdictions formulate grounds of discrimination or protected
characteristics; the meaning of key concepts such as direct
discrimination (disparate treatment); indirect discrimination
(disparate impact); and when limitations on equality are
legitimate. Later chapters test these concepts in some of the most
challenging contexts: pregnancy and parenting, equal pay,
reasonable accommodation, and sexual harassment; as well as to the
particularly controversial issue of affirmative action or
deliberate preference policies. Discussing at length how racisms,
sexism, LGBTQ+ rights, and other topics impact these contexts. The
final chapter asks how the right to equality can be made more
effective, critically assessing the paradigm individual complaints
model, and possible alternatives, from class actions and strategic
litigation to mainstreaming and positive duties to promote
equality.
This book is a challenging, thought-provoking yet highly accessible
introduction to discrimination law. It takes a thematic approach,
illuminating the major issues in discrimination law, while
imparting an in-depth understanding of the strengths and weaknesses
of legal responses to complex social problems of inequality. This
is enhanced by the comparative approach. By considering equality
law in the UK, US, India, Canada, and South Africa, as well as the
European Union and under the European Convention on Human Rights,
the book exposes common problems across different jurisdictions and
canvasses a variety of differing solutions. As in the highly
successful previous editions, the book locates discrimination law
within its historical and social context. One of its major
strengths is the development of an analytic framework of
substantive equality, drawing on a range of sources, and the
author's wide experience of equality law in many jurisdictions. As
well as chapters charting the social challenges and legal
responses, the book compares the ways in which different
jurisdictions formulate grounds of discrimination or protected
characteristics; the meaning of key concepts such as direct
discrimination (disparate treatment); indirect discrimination
(disparate impact); and when limitations on equality are
legitimate. Later chapters test these concepts in some of the most
challenging contexts: pregnancy and parenting, equal pay,
reasonable accommodation, and sexual harassment; as well as to the
particularly controversial issue of affirmative action or
deliberate preference policies. Discussing at length how racisms,
sexism, LGBTQ+ rights, and other topics impact these contexts. The
final chapter asks how the right to equality can be made more
effective, critically assessing the paradigm individual complaints
model, and possible alternatives, from class actions and strategic
litigation to mainstreaming and positive duties to promote
equality.
Human rights have traditionally been understood as protecting
individual freedom against intrusion by the State. In this book,
Sandra Fredman argues that this understanding requires radical
revision. Human rights are based on a far richer view of freedom,
which goes beyond being let alone, and instead pays attention to
individuals' ability to exercise their rights.
This view fundamentally shifts the focus of human rights. As well
as restraining the State, human rights require the State to act
positively to remove barriers and facilitate the exercise of
freedom. This in turn breaks down traditional distinctions between
civil and political rights and socio-economic rights. Instead, all
rights give rise to a range of duties, both negative and positive.
However, because positive duties have for so long been regarded as
a question of policy or aspiration, little sustained attention has
been given to their role in actualising human rights. Drawing on
comparative experience from India, South Africa, the European
Convention on Human Rights, the European Union, Canada and the UK,
this book aims to create a theoretical and applied framework for
understanding positive human rights duties.
Part I elaborates the values of freedom, equality, and solidarity
underpinning a positive approach to human rights duties, and argues
that the dichotomy between democracy and human rights is misplaced.
Instead, positive human rights duties should strengthen rather than
substitute for democracy, particularly in the face of globalization
and privatization. Part II considers justiciability, fashioning a
democratic role for the courts based on their potential to
stimulate deliberative democracy in the widerenvironment. Part III
applies this framework to key positive duties, particularly
substantive equality and positive duties to provide, traditionally
associated with the Welfare State or socioeconomic rights.
Human rights have traditionally been understood as protecting
individual freedom against intrusion by the State. In this book,
Sandra Fredman argues that this understanding requires radical
revision. Human rights are based on a far richer view of freedom,
which goes beyond being let alone, and instead pays attention to
individuals' ability to exercise their rights.
This view fundamentally shifts the focus of human rights. As well
as restraining the State, human rights require the State to act
positively to remove barriers and facilitate the exercise of
freedom. This in turn breaks down traditional distinctions between
civil and political rights and socio-economic rights. Instead, all
rights give rise to a range of duties, both negative and positive.
However, because positive duties have for so long been regarded as
a question of policy or aspiration, little sustained attention has
been given to their role in actualising human rights. Drawing on
comparative experience from India, South Africa, the European
Convention on Human Rights, the European Union, Canada and the UK,
this book aims to create a theoretical and applied framework for
understanding positive human rights duties.
Part I elaborates the values of freedom, equality, and solidarity
underpinning a positive approach to human rights duties, and argues
that the dichotomy between democracy and human rights is misplaced.
Instead, positive human rights duties should strengthen rather than
substitute for democracy, particularly in the face of globalization
and privatization. Part II considers justiciability, fashioning a
democratic role for the courts based on their potential to
stimulate deliberative democracy in the widerenvironment. Part III
applies this framework to key positive duties, particularly
substantive equality and positive duties to provide, traditionally
associated with the Welfare State or socio-economic rights.
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