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Simpson, Amelia --- "Eric Heinze, The Logic of Equality: A Formal Analysis of Non-Discrimination Law" [2005] FedLawRw 6; (2005) 33(1) Federal Law Review 177

BOOK REVIEW
ERIC HEINZE, THE LOGIC OF EQUALITY: A FORMAL ANALYSIS OF NON-DISCRIMINATION LAW (Ashgate Publishing, 2003)

Amelia Simpson[*]

Anyone interested in contemporary non-discrimination jurisprudence will find much to contemplate in Eric Heinze's The Logic of Equality, published as part of Ashgate's Applied Legal Philosophy series. Aimed at legal practitioners as well as academics, the book sets out to illuminate certain enduring features of non-discrimination discourse and to provide a framework for analysing individual legal disputes. The author largely succeeds in that aim. However, in avoiding consideration of underlying subjective values the author leaves untouched an important input into the discourse, lessening the model's usefulness to disputants and decision-makers.

The book's central thesis is that contemporary non-discrimination discourse in Anglo-American and European jurisdictions is, in important respects, determinate; that is, it is conducted within identifiable parameters and conforms to certain set patterns. The author presents his analysis as descriptive only; that is, as aiming simply to isolate and illuminate the common threads, neither approvingly nor disapprovingly, while building a framework for discussing them. The framework that he constructs employs the tools and methodology of formal logic, attempting to reduce non-discrimination discourse to a set of variables and sequences that may be abstracted from the facts of any particular legal dispute.

There are four Parts, each comprising several short chapters. Parts I to III construct the author's logic-based model. The model's key components are introduced in stages and their variables are explored. The discussion is likely to be challenging for readers not already familiar with the methodology of formal logic, although the author does provide examples and exercises that allow readers to confirm their understanding as the model-building progresses. By the end of Part III, the reader has been introduced to the distinction between normative and factual arguments in non-discrimination discourse and also to the two core variables within the author's model, reflecting the concepts of a person's objective status, on the one hand, and his or her subjective merit, on the other.

Part IV tracks the model through several standard 'types' of non-discrimination dispute, distinguished by the nature of the claims and counter-claims that each involves. The author here aims to demonstrate both the accuracy of his model of non-discrimination discourse and the extent of its explanatory power by overlaying it upon decided cases taken from a range of jurisdictions and settings. He identifies four distinct types of non-discrimination dispute, being the 'Traditional Model', the 'Impact Model', the 'Accommodation Model', and the 'Non-Recognition Model'.[1] Each, he contends, represents a particular configuration of the variables identified in Parts I to III of the book. The Traditional Model, for example, encompasses discrimination disputes in which the claimant asserts her 'commensurate subjective merit' — that is, some personal ability, need, or circumstance identical to that of specified others — and contends that this should translate into treatment on the basis of 'objective' equality — that is, there should be no abstract legal distinction drawn between people in her position and those others to whom she compares herself.[2] The respondent to a Traditional Model case disputes the asserted link between personal merit and a broader conclusion of objective equality, for instance by pointing to other, impersonal, factors supporting the maintenance of a distinction.

By the end of the book, the author claims to have demonstrated that there are clear patterns to which all non-discrimination disputes conform, meaning that the discourse of non-discrimination is to that extent determinate. He regards his methodology as neutral and ascribes only descriptive significance to his project. There is only fleeting advertence to the standard criticisms levelled at such projects. In the Introduction, the author concedes that '[m]any have doubted whether a strictly formal model can illuminate the subtler or more controversial elements of legal reasoning.'[3] In the concluding paragraph, he assures readers that if his model seems 'icy and mechanical' or rigid and limiting, blame must lie with the jurisprudence and discourse from which the model is distilled, rather than with the model itself.[4] He does not advert at all to the possibility that some readers may be sceptical as to his motivations, seeing in his attachment to legal determinacy a latent distaste for judicial discretion.

In honing in upon the determinate aspects of non-discrimination discourse, the author has left to one side what he sees as inherently indeterminate inputs in the form of subjective values. This exclusion seems an unavoidable consequence of the author's chosen methodology. Nevertheless, it detracts from the explanatory power of his formal structure, as will be clear to anyone familiar with the High Court of Australia's non-discrimination jurisprudence. For over 15 years that court has insisted that the concept of 'relevant difference' lies at the heart of the legal conception of discrimination, the issue always being whether a given distinction should be accepted as legitimate in its context.[5] The Logic of Equality, in sidestepping the issue of the subjective values supporting particular legal distinctions, offers no insights into the way in which these important calculations are performed. The book devotes only a page to the 'Non-Recognition Model' which, of the author's identified models, comes closest to pointing up the question of how the legitimacy of a particular classification should be assessed. As the author himself asserts, 'the analysis in this book ends where those questions begin.'[6]

Another limitation of the author's model will appear to readers familiar with the 'subordination' approach to non-discrimination discourse.[7] That approach, distinctive in that it transcends the devices of classification and comparison, has received some judicial recognition.[8] Yet it cannot be captured and explained by the formal structure posited in The Logic of Equality.

The Logic of Equality achieves its author's goal; it teases out carefully and clearly several determinate aspects of mainstream non-discrimination discourse. To the extent that the book has limitations, they are for the most part limitations inherent in analytic jurisprudence more generally; any project of definition and classification will be more successful in its treatment of the 'core' of an idea than it will be in treating its murky and indistinct fringes. The contribution made by The Logic of Equality relates to the core of non-discrimination discourse. Readers not distracted by underlying questions of values and legitimacy will find the book a useful resource, especially as an aid to framing legal arguments that will be comprehensible within the parameters of mainstream non-discrimination analysis.


[*] Lecturer, Faculty of Law, Australian National University.

[1] Eric Heinze, The Logic of Equality: A Formal Analysis of Non-Discrimination Law (2003) 111-37.

[2] Ibid 111.

[3] Ibid 5.

[4] Ibid 136-7.

[5] Street v Queensland Bar Association; Re Robertson [1989] HCA 53; (1989) 168 CLR 461, 571-4 (Gaudron J); Castlemaine Tooheys Ltd v South Australia [1990] HCA 1; (1990) 169 CLR 436, 478 (Gaudron and McHugh JJ); Bayside City Council v Telstra Corporation Ltd [2004] HCA 19; (2004) 206 ALR 1, 15 (Gleeson CJ, Gummow, Kirby, Hayne and Heydon JJ).

[6] Heinze, above n 1, 136.

[7] Catharine A MacKinnon, Sexual Harassment of Working Women: A Case of Sex Discrimination (1979).

[8] See, eg, R v Butler [1992] 1 SCR 452, 479. See also Vicki Lens, 'Supreme Court Narratives on Equality and Gender Discrimination in Employment: 1971-2002' (2004) 10 Cardozo Women's Law Journal 501, 556-63.


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