Legal rules prohibiting discrimination often make this mandate conditional on the fact that the difference in treatment is not justified. The difference in treatment will be justified, among other requirements, when the conduct or the concerned rule of conduct has a legitimate aim and is an appropriate means to achieve it. What does "appropriate" mean in such a discursive context? In this article, I offer an answer that can be summarised in three steps. The first is to elucidate the vague term as a certain causal input. The second is to reconstruct the content assigned to the latter idea by two conceptions of causality, the regularist and the probabilistic. The third consists in arguing in favour of understanding the requirement of "adequacy" as a probabilistic causal contribution. After advancing on these fronts, I will turn to the regulatory opportunities that this latter choice opens up with respect to the strategy, common in anti-discrimination law, of requiring a more robust justification for certain kinds of cases. As I will show, the gradual character of the notion of probabilistic causal contribution allows for the formulation of different levels of "adequacy" that are sufficient for justificatory purposes. With respect to the non-basic levels, there is what might turn out to be a dilemma.
De medios “adecuados” a fines anhelados. Sobre la justificación instrumental en los casos de discriminación
Giles, Alejo Joaquin
2023-01-01
Abstract
Legal rules prohibiting discrimination often make this mandate conditional on the fact that the difference in treatment is not justified. The difference in treatment will be justified, among other requirements, when the conduct or the concerned rule of conduct has a legitimate aim and is an appropriate means to achieve it. What does "appropriate" mean in such a discursive context? In this article, I offer an answer that can be summarised in three steps. The first is to elucidate the vague term as a certain causal input. The second is to reconstruct the content assigned to the latter idea by two conceptions of causality, the regularist and the probabilistic. The third consists in arguing in favour of understanding the requirement of "adequacy" as a probabilistic causal contribution. After advancing on these fronts, I will turn to the regulatory opportunities that this latter choice opens up with respect to the strategy, common in anti-discrimination law, of requiring a more robust justification for certain kinds of cases. As I will show, the gradual character of the notion of probabilistic causal contribution allows for the formulation of different levels of "adequacy" that are sufficient for justificatory purposes. With respect to the non-basic levels, there is what might turn out to be a dilemma.
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