ABSTRACT
It may seem obvious that a discussion of affirmative action belongs in a book about the ethics of discrimination. But there are at least two quite different understandings of the relationship of affirmative action to the idea of discrimination. On one view, affirmative action has been called “positive discrimination,” “affirmative discrimination,” and “reverse discrimination,” revealing the baseline understanding that affirmative action is a form of discrimination, and shares with discrimination some significant feature that has moral salience. On another view, affirmative action is in the DNA of the norm against discrimination. On the latter conception, affirmative action shares with the concept of non-discrimination a significant feature that has moral salience. This chapter lays out these two conceptions and explores how the law of many legal orders treats affirmative action as discrimination, which may or may not be justified. This chapter challenges this conceptual framework, and argues that it fundamentally misapprehends the essential features of discrimination.
