Arthur Ripstein (Toronto) at the PPE/ESPF Colloquium

Private Claims and Public Rights – What Is Wrong with Discrimination?

My aim is to provide a novel account of the special type of claim that one private person can make against another in cases of discrimination. I first argue that such claims are misunderstood when framed either as responses to cases of market failure or as responses to failures of distributive justice.  I explain them in terms of a distinctive type of part-based obligations that are particular to a public legal order. I argue that people have distinctive rights as members of the public. Once these rights are properly in focus, I show that they: (i) provide a basis for prohibiting wrongful private discrimination; (ii) explain the standing of the person who has been discriminated against as a claimant in an action against the business employer or landlord that discriminates; and (iii) generate a fundamental distinction between private and public law, distinguishing between two different standpoints, which are distinct but coordinate.