Economic Theories of Discrimination

This paper examines the relationship between positive and normative economic theories of discrimination, that is, what discrimination is and why law should prohibit it. Prior economic scholarship has modelled discrimination as the result of (a) a taste for non-association; (b) statistically rational generalizations; and (c) group-based status competition. I examine these theories along with the psychological theory of implicit bias and other types of irrational stereotypes. For each positive theory, I explore the normative implications. The taste-based and statistical theories do not match well with antidiscrimination law, though the status theory potentially does.

Processes of Shaming

Ableism is entrenched in all societies and cultures, and reveals itself in the cultural inclination towards normalcy. The ‘norm’ reflects the cultural reproduction of ableism, by drawing boundaries around those bodies that transgress able-bodied whiteness. Emotions, as normative evaluative judgements, help in understanding social relationships within both macro and micro contexts. In the case of disability, emotions make the exclusion of some bodies acceptable through a process of othering, by devaluing and debasing certain identity groups. Public policy discourses on disability frequently reference emotions such as shame or pity to describe the lived experience of disabled people. In India, laws and policies around disability have largely been influenced by the ableist socio-cultural ideologies, drawing on cultural assumptions and dominant power equations. This paper seeks to elaborate the processes whereby persons with impairments are socialised into accepting their own bodies as “deviant/impaired” and consequently experience shame and stigma in society. This paper uses qualitative case studies of men and women with different disabilities in India to reflect on how pity, disgust and shame, influenced by socio-cultural ideologies, operate within interpersonal interactions to ensure that disabled people remain othered in everyday life processes. The socio-cultural ideologies around disability and impairments have been evinced through focus groups discussion by mostly nondisabled people and in-depth interviews with key informants. The paper will illustrate how disabled people experience internalised oppression, a phenomenon that has hitherto remained unaddressed by policy frameworks in India. The paper will finally reflect on the ways in which disability policy in India has failed to address both the structural barriers and the socio-cultural attitudes that underpin the process of disabilism.

The Dalit Body

Dalit bodies have been the objects of upper-caste disgust when they have not been simply overlooked. Even in academic writings such as those of the Subaltern Studies group, the figure of the ‘dalit’ gets folded into the figure of the ‘insurgent peasant’, and the question of caste remains largely overlooked. This essay attempts to construct ‘the dalit body’ and, while acknowledging this to be a construct in the manner of Frantz Fanon’s construction of ‘the black body’, it seeks to tease out of such a construction a way of thinking about the human body in an age when humans collectively are recognized as exercising a geological agency that changes the climate system of the whole planet and reveals our entanglement with other forms of life and larger planetary processes. With this aim in view, the chapter ends with a reading of some excerpts of Rohit Vemula’s Facebook postings that became available after his tragic suicide in 2016.

The Point of Discrimination Law

In this chapter, I will argue that the primary purpose of discrimination law is to secure to us an aspect of freedom that is essential in order to live a flourishing life. In order to enjoy this freedom, we all need a secured access to a sufficient amount of four basic goods: (a) a set of goods that satisfy our biological needs, (b) negative freedom, (c) an adequate range of valuable opportunities, and (d) an appropriate level of self-respect. Membership of certain types of groups—groups (say women) that suffer substantial, pervasive, and abiding relative disadvantage compared with their cognate groups (in this case, men)—imperils our secured access to the last three of these goods. Discrimination law, in seeking to protect members of such groups by trying to break the nexus between group membership and relative disadvantage, aims to improve our access to the basic goods, and thereby make us more free.

Disability, Exclusions, and Resistance

The study of disability has been a major preoccupation of the last three decades of my life. I will make an attempt here to present disability as an epistemic category, which interrogates normalization, stigma, subjugated subjectivity, difference, deficit, and the disabled body. Disability, like questions of race, gender, caste, and class, is one of the most provocative topics among scholars who have an interest in marginality. Very few people accept the fact that disability is as much a social construct as other categories such as gender. In short, disability is conceived as a naturalized category. Society thus exhibits a structural amnesia about a particular category of people, who, because they do not fit into the hegemonic discourse of ‘normality’, are excluded, separated, and socially disempowered. This social and cultural apartheid is sustained by the existence of a built environment, which lacks amenities for the disabled and solely caters to the needs of the more complete and able-bodied ‘Other’. This social disregard coupled with experiences of social, economic, and political subjugation deny the disabled a voice, a space, and even power, to disrupt these deeply entrenched normative ideals that deprive them their social presence and any semblance of identity.

Disgust or Equality? Sexual Orientation and Indian Law

The landscape of laws regarding sexual orientation and same sex conduct is changing rapidly around the globe. In all of these changes, we can see the operation of a form of stigma and group discrimination that has disgust as a central component—people share an acute discomfort with features of their own body that remind them of their animality and mortality, and then project this disgust onto powerless minorities. Recent legal developments in India are of urgent human significance, but also appear to confirm this account of the operations of disgust in stigma and discrimination. In this chapter, Nussbaum details the historical background to India’s current struggle, showing how the Hindu Right and the legacy of Victorian British puritanism have fostered an ideology of disgust, forgetting the celebration of the body exemplified by Indian poet, philosopher, and choreographer Rabindranath Tagore. Nussbaum then analyses Section 377 of the Indian Penal Code which criminalizes same sex intercourse, as well as the 2009 Naz Foundation case in which the Delhi High Court struck down this law, rejecting the ideology of disgust that it represented. Finally, Nussbaum discusses the recent Indian Supreme Court decision reversing this ruling, as well as some promising Indian legal developments for hijras and rights to privacy.

Ageing, Stigma, and Disgust

The category of age is the only category of discrimination that includes all human beings—if they live long enough. With other categories—racial, caste-based, ethno-religious, gender-based, sexual, and disability-based, the dominant group can view itself as immune from the traits it imputes to the group targeted for discrimination. Because age and its signs are associated with death, this condition is regarded with particular fear and with a disgust closely linked to fear. It is thus no surprise that one of the most tenacious types of prejudice in all societies is prejudice against people who are aging. They are stigmatized in popular culture and discourse, and very often law gives sanction to those forms of stigma. The bodies of aging people remind younger people of their own frailty and mortality, and popular discourse portrays those bodies as incompetent, unattractive, even revolting. Moreover, even ageing people themselves often come to feel disgust with their own bodies, as new research proposes. This stigma is itself a social problem, producing much unhappiness, and it leads to various forms of injustice, such as discrimination against aging people in employment and in informal social interactions, not to mention the huge social evil of compulsory retirement. Age may well be the new issue for our time, since discrimination on the basis of age deprives all societies of valuable human capital. After situating this case in the context of my theory of disgust and stigma, I focus on the special aspects of this case.

Of Big Black Bucks and Golden-Haired Little Girls

This chapter explores how fears and stigma surrounding interracial sex (particularly between black males and white females) rest at the very heart of opposition to Brown v. Board of Education, the United States Supreme Court’s 1954 decision that invalidated racially segregated schools. It is striking that this dimension of Brown—the most celebrated and studied Supreme Court opinion of the twentieth century, and perhaps ever—forms a severely underappreciated part of its legacy. By recovering the anti-miscegenation sentiment that engulfed school desegregation discussions, I hope to demonstrate how an aversion to discussing sexuality prevents fully understanding both Brown and its resistance.

What Is the Case against Muslims?

Widespread aversive sentiment against Muslim co-citizens and migrants persists among the European and American publics. On both sides of the Atlantic, new political formations have challenged established parties by leveraging recent exogenous shocks—economic crisis, migration surge, and terrorism wave—to stake a claim for political power on avowedly anti-Muslim grounds. For now, naked appeals to animus remain exceptional. Instead, specific disputes or policy disagreements work as prisms. They refract and blend anti-Muslim sentiment into larger, more neutral, and broadly appealing justifications. This chapter examines this ideological and political conjunction through the lens of three specific policy disputes, each of which conjoins anti-Muslim sentiment with a neutral political principle. These disputes concern the veil, the mosque, and the terrorist profile. Respectively, these disputes integrate anti-Muslim policy vectors into the programmatic aims of securing liberal freedoms, national culture, and public order: Ambitions that can be invoked without a superficial taint of animus. Close examination of the terms of each of these public debates, however, reveals unravelling inconsistencies and internal contradictions. The actual behaviour or beliefs of Muslims have little purchase within these arguments. A naturalized category of “Muslims” with affinities to anti-Jews and anti-black stereotypes, instead does intellectual work. As a result, each of the three goals avowedly pursued in anti-Muslim polemicals—liberalism, national culture, and public order—can be conditionally embraced, and can further conduce to rejections of specific anti-Muslim positions. The chapter concludes by considering whether an insistence on the mundane and the empirical, rather than the symbolic, is a viable political strategy.

The Rule of Disgust?

The Supreme Court of India’s 2014 decision in National Legal Services Authority v. Union of India was a complex opinion coming at a complicated time for India’s LGBTQ community. While this opinion spoke to the empowerment of India’s transgender communities, it seemed to neglect India’s sexual minorities. Yet the Supreme Court’s seeming distinction between the welfare of transgendered people in India, and the welfare of sexual minorities, was not the only line-drawing that the Court engaged in with National Legal Services Authority. Indeed, the Court also seemed to draw a sharp distinction between transgendered people and cisgendered women and men, in the process not only cabining transgendered persons as a ‘third gender,’ but also carving off trans activism from feminism. This chapter explores how something like disgust informed this set of legal line-drawing and, moreover, a kind of disgust which is difficult to sift out from other liberal legal practices.