Deliberative freedoms and the asymmetric features of anti-discrimination law

In a series of papers, Sophia Moreau has offered an original and important account of the value underlying anti-discrimination law, which we call 'the deliberative freedoms account.' According to this account, anti-discrimination law exists to protect people's 'deliberative freedoms' – that is, their freedom to make decisions about how to live their lives without having to take into account, as a cost, characteristics such as their gender, race, and age. Viewing anti-discrimination law in this way, Moreau suggests, helps explain why the law treats a discriminatory act as a personal wrong against the complainant. It also reveals an underlying unity between different areas of anti-discrimination law, such as direct discrimination, indirect discrimination, and special accommodation requirements. Despite its strengths, we argue that the deliberative freedoms account does not fit well with asymmetrical features of anti-discrimination law – that is, ways in which the law provides protection to one group (for example, people with a disability) but not to an associated group (for example, people without a disability). In particular, we contend that Moreau cannot account for the recognition by anti-discrimination law of legitimate affirmative action policies. This, we argue, provides a powerful reason to reject the deliberative freedoms account. We also consider more recent, largely unpublished work in which Moreau suggests that she may be moving towards offering a pluralist account of anti-discrimination law, according to which the protection of deliberative freedoms is only one of the aims, or values underlying, this area of law. We argue that the difficulties we have identified with the deliberative freedoms account are likely to apply also to a pluralist theory that accords significant weight to the protection of deliberative freedoms.