Affirmative action law
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- Term 1
This course is an interdisciplinary immersion in affirmative action law, its prominent accomplishments as well as persistent problems. At its heart is the question of equality with all its legal, philosophical and political ramifications; joining social and political theory to legal concerns, the course assesses how states map and alter inequalities while analysing the underlying antagonisms between formal equality and substantive equalisation, equal and preferential treatment, individual and group rights. The teaching is built around two themes: Firstly, the ideological and epistemological problems of identifying the beneficiaries – how do discursive practices of law and judicial institutions come to terms with the political recognition of caste, ethnicity, gender, or race? Secondly, the de facto redistributive effects and general effectiveness of affirmative action – to what extent does affirmative action law redress social marginalisation, political exclusion, and distributive injustice?
Students will spend the first half of this course studying the conceptual and theoretical foundations of affirmative action law from a comparative perspective, analysing the case law and rich literature from India and the United States of America. As a second step, the following countries will be studied and compared – Malaysia, Nigeria, South Africa, Sri Lanka, and the United Kingdom. In the process, the course locates the theoretical debates underlying affirmative action law in their practical and empirical setting and explores specific case studies; examples of topics which may be addressed include: the administrative and legal process of designation and classification of beneficiaries, quotas and the promotion of diversity, meritocratic selection criteria and unearned advantages, entrenched discrimination and differential criteria of selection in respect of such matters as university admissions, governmental institutions, private and public-sector jobs, as well as loans, scholarships, and other special economic programmes. Throughout this course students will be exposed to a law and society approach, as most affirmative action policies are situated at the intersection of constitutional provisions, politically driven legislative intervention, and the jurisprudence of powerful judiciaries. The overarching objectives of the course will be to analyse the efficaciousness of affirmative action law as a policy tool and, at the same time, to understand how affirmative action policies reflect and reproduce the very legal categories and schema they seek to transcend.
Objectives and learning outcomes of the course
At the end of this course, students will be able to:
- examine equality as an essentially contested concept and to distinguish between competing perspectives on equality, in particular within the legal domain.
- critically compare contemporary affirmative action law regimes in diverse historical, political, sociological contexts.
- articulate and appraise he legal problems related to the designation and recognition of the beneficiaries of affirmative action policies.
- explain how discursive practice of law and judicial institutions give distinctive shape and substance to affirmative action policies in light of rapid social, economic and political change.
- illustrate this understanding through the use of specific cases studies, empirical evidence and by conducting independent research on affirmative action law in a global context.