Re-Describing the Limits of Anti-Discrimination Law through a Modern Systems Theory Perspective

Abstract

This thesis adopts the methodology of systems theory to examine the limits of anti-discrimination law. The sociology of Niklas Luhmann, alongside extensions provided by Michel Foucault and Gilles Deleuze, is applied to construct a versatile re-description of anti-discrimination law. This is an innovative approach because it articulates the social basis for discrimination alongside a legal picture of anti-discrimination within the same theoretical framework. By considering each side of this discrimination/anti-discrimination equation the capacity of law to address discrimination is put into question. The difficulty of providing a philosophically sound explanation for discrimination involves a legitimate academic question, but it also indicates its limitation. This thesis argues that this difficultly reflects a genuine divergence between the social meaning of discrimination and the ability of moral philosophy to comprehend this phenomenon. Racism is analyzed as a confluence of moral, artistic, and mass mediated communications; it is communicated through inconsistency and complex repetition. This confluence is described by tracing societal differentiations and self-descriptions, as developed by Luhmann, with an emphasis on the history of manners as a precursor to modern racism. The legal picture of anti-discrimination presented here is divided into argumentation and decision. Firstly, the description of direct and indirect discrimination in terms of justice is questioned through an examination of argumentative limits, with legal liability being re-interpreted in the light of how concepts and interests inform argumentation. Secondly, the validity of a decision is analyzed as a separate problem for anti-discrimination law. The jurisprudence of the positivist Joseph Raz is criticized from the perspective of a Luhmannian theorization of law as symbolically valid decisions. This thesis constructs an explanatory framework that redraws the limitations of anti-discrimination law by revealing [1] how racism is a protean social phenomenon, and [2] that separation of the legal understanding of anti-discrimination law into discrete streams exposes the concrete limitations available for engaging issues of justiciability.