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14 - Non-discrimination

from Part III - Transactions and Risk: Private Law and the Market

Published online by Cambridge University Press:  09 April 2021

Stefan Grundmann
Affiliation:
European University Institute, Florence
Hans-W. Micklitz
Affiliation:
European University Institute, Florence
Moritz Renner
Affiliation:
Universität Mannheim, Germany
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Summary

This chapter discusses the relationship between private law and anti-discrimination law. Both conceptually and politically, the relationship between these two fields of law is as close as it is problematic. The principle of equal treatment is a fundamental and indispensable element of modern constitutional orders – and of law in general. It is clear that this principle is binding for public authorities: governments must treat all citizens equally, the courts must decide like cases alike. The scope of the principle for private actors, however, is much less clear. Private law is based on the principle of private autonomy, and the autonomous decisions of private actors follow private preferences, not the principle of equal treatment. Private actors’ decisions, then, might have discriminatory effects.

Type
Chapter
Information
New Private Law Theory
A Pluralist Approach
, pp. 261 - 271
Publisher: Cambridge University Press
Print publication year: 2021

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References

MacKinnon, Catharine, Sexual Harassment of Working Women: A Case of Sex Discrimination (New Haven / CT: Yale University Press, 1979), pp. 106–27Google Scholar
Somek, Alexander, ‘Neoliberale Gerechtigkeit’, 51 Deutsche Zeitschrift für Philosophie 4559 (2003) (English translation available on the book website)CrossRefGoogle Scholar
Butler, Judith, Gender Trouble: Feminism and the Subversion of Identity (New York: Routledge, 1990)Google Scholar
Habermas, Jürgen, ‘Paradigms of Law’, 17 Cardozo Law Review 771–84 (1995–1996)Google Scholar
Somek, Alexander, Engineering Equality: An Essay on European Anti-Discrimination Law (Oxford: Oxford University Press, 2011)CrossRefGoogle Scholar

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