Multiculturalism, Compassion, and the Law

Abstract

This paper looks at multiculturalism from a legal perspective. We have in the West equality laws. We also have popular resistance to anything beyond equal treatment, which falls well short of delivering equality. For instance, the law recognizes that different people require different (not the same) treatment. Thus, apparently neutral practices that adversely affect a protected group are outlawed unless justified. In limited cases, the law also recognizes the problems of historic discrimination, just as wealth tumbles down the generations, so does disadvantage. The legal solution here of course is positive discrimination. Both ‘different treatment’ and positive discrimination attract negative populists headlines. This suggests that there is a duty on lawmakers (politicians and judges) to enlighten the general public as the purpose behind these laws. The track record is not good. Government ministers and judges quite brazenly attack these laws in search of populist headlines. Be it Teresa May’s absurd ‘cat’ story, or David Blunket’s ‘airy-fairy civil liberties’ attack, or his observation that foreign children were ‘swamping’ British schools, or the mantra by nearly all politicians that the ‘Essex Travellers’ ‘should obey the planning law like anyone else’. Laws passed to redress prejudice are undermined by those who make them. What should be done? This paper discusses how equality law can be made more effective. The thesis is that first, in complex societies so much disadvantage is invisible to an uninformed public. Second, human rights laws - especially equality laws - are rooted in compassion. People generally have a sense of compassion, especially for the underdog. This appears at odds with the resistance by ordinary (so presumably decent) people to the more ambitious discrimination laws. The reconciliation, it is argued, can be achieved by lawmakers delivering positive messages about equality law, its purpose, e.g. compassion for the underdog, and the plight of those most vulnerable whom the law seeks to help.

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